        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                           JULY SESSION, 1997              March 4, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,             )                  Appellate Court Clerk
                                    C.C.A. NO. 01C01-9607-CR-00283
                                )
      Appellee,                 )
                                )
                                )   DAVIDSON COUNTY
VS.                             )
                                )   HON. THOMAS H. WARE
WILLIAM F. HEGGER,              )   JUDGE
                                )
      Appe llant.               )   (Direct Ap peal - D .U.I.)




FOR THE APPELLANT:                  FOR THE APPELLEE:

ROGER K. SMITH                      JOHN KNOX WALKUP
Suite 115                           Attorney General and Reporter
104 W oodmo nt Boulevard
Nashville, TN 37205                 PETER M. COUGHLAN
      (On A ppea l)                 Assistant Attorney General
                                    450 James Robertson Parkway
KARL DEAN                           Nashville, TN 37243
Public Defender
                                    VICTOR S. JOHNSON
MICHAEL FRIEDLAND                   District Attorney General
Assistant Public Defender
12th Floor, Stahlman Building       PATTY S. RAMSEY
Nashville, TN 37201                 Assistant District Attorney
      (At Tr ial)                   Washington Square, Ste. 500
                                    Nashville, TN 37201-1649


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION

      On May 17, 1994, a Davidson County jury found Appellant, William F.

Hegger, guilty of driving under the influence of an intoxicant, first offense. The

trial court sentenced Appellant as a Range I standard offender to eleven

months a nd twenty-nine d ays incarceration (all but ten days sus pended ),

imposed a two-hundred and fifty dollar fine, ordered Appellant to attend

alcohol treatm ent school, an d suspen ded App ellant’s driver’s license for a

period of one year. Appellant was further ordered to perform two hundred

hours of public service work. On February 22, 1996, following a hearing upon

Appellant’s motion, the trial court modified Appellant’s sentence, waiving the

fine and public service work. The trial court found that Appellant had

completed his jail time, and the one year suspension of his license. Appellant

filed a timely notice of app eal, raising several issue s, namely:



      1) whether the trial court erred in allowing evidence regarding the
horizon tal gaze n ystagm us (HG N) test;
      2) whether the trial court erred in admitting the testimony of Lt. Louise
Kelton;
      3) wheth er the evid ence w as sufficien t to suppo rt the jury verd ict;
      4) whether the defense counsel provided effective assistance of
coun sel.


      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                       FACTS



      On M ay 20, 19 93, Office r Dann y Hale of th e Metro -Davids on Co unty

Police Department observed Appellant’s automobile on the edge of a median

and a turn lan e on M urfree sboro Road in Nas hville. A ppella nt was in his

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vehicle, apparently trying to move it. Officer Hale stopped to see if he could be

of assistance and, in talking with Appellant, noticed the order of alcohol on

Appellant’s person. When Appellant got out of his car, he staggered;

Appellant’s spe ech was s lurred, and the officer d etected that his eye s were

glassy an d blood shot.



      Officer H ale requ ested tha t Appella nt perform a series o f field sobriety

tests; Appellant complied, preforming the horizontal gaze nystagmus test, the

one leg stand test, and the heel to toe walk and turn test. Office Hale reported

that Appellant performed poorly on these tests. The officer then requested that

Appellant submit to a breath alcohol test, which Appellant refused. Officer

Hale the n placed Appella nt unde r arrest.



                       HORIZONTAL GAZE NYSTAGMUS



      In his first assignme nt of error, Appellant co ntends that the trial court

erred in allow ing the State to prese nt evide nce re gardin g App ellant’s

perform ance o n the ho rizontal ga ze nysta gmus test. App ellant argu es that to

admit such evidence without first requiring the State to establish the general

acceptance of the test by the scientific community is reversible error. In State

v. Murphy, the Tennessee Supreme Court resolved this issue, holding that the

HGN test is a scientific test and that to be admissible at trial, evidence

regarding the test must satisfy the requirements of Tennessee Rules of

Evidenc e 702 a nd 703 . State v. Murphy, ___ S.W .2d ___ (Tenn . 1997), S .Ct.

No. 01-S-01-9602-CC-00035, Davidson County (Tenn., Nashville, Oct. 13,

1997). In Murphy, as in the case sub judice, the appellant was arrested for

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driving under the influence of an intoxicant. The arresting officer performed

field sobriety tests including the HGN test. The Supreme Court held that

because the average juror would not know about the correlation between

alcohol consumption and nystagmus, testimony concerning the test

constituted “scien tific, technical, or other specialized knowledge ” State v.

Murphy at 8. The Supreme Court held that as scientific evidence, testimony

regardin g the HG N test m ust be offe red throu gh an e xpert witne ss. Id..

Because the evidence regarding the HGN test in Appellant’s trial was

presented b y a witness not qu alified as an expert, we find that the trial court

should not have allowed the admission of this testimony. However, in light of

the overwhelming evidence of Appellant’s guilt we find that this error was

harmless.



                       SUFFICIENCY OF THE EVIDENCE



      Appellant also challenges the sufficiency of the evidence to support the

jury verdict of guilt, arguing that his failure of two field sobriety tests (one leg

stand a nd walk and turn heel to toe ) does n ot constitu te sufficient e vidence to

sustain the jury verdict. We do not agree. When an appellant challenges the

sufficiency of the evidence, this Court is obliged to review that challenge

according to c ertain well-settled principles. A verdict of guilty by the jury,

approved by the trial judge, accredits the testimony of the State’s witnesses

and res olves all co nflicts in the tes timony in favor of the State. State v. Cazes,

875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). Although an accused in originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of

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guilt. State v. Tug gle, 639 S .W .2d 91 3, 914 (Ten n. 198 2). He nce, o n app eal,

the burden of proof rests with Appellant to demonstrate the insufficiency of the

convicting evidenc e. Id. On appeal, “the [S]tate is entitled to the strongest

legitimate view of the e vidence as well as all reason able an d legitima te

inferences tha t may be dra wn therefrom .” Id. (Citing State v. Cabbage, 571

S.W .2d 83 2, 835 (Ten n. 197 8)). W here th e suffic iency o f the evid ence is

contested on appeal, the relevant question for the reviewing court is whether

any rational trier of fact could have found the accused guilty of every element

of the offen se beyo nd a rea sonab le doub t. Harris , 839 S.W.2d 54, 75;

Jack son v. V irginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979 ). In con ductin g our e valuatio n of the convic ting evid ence , this Co urt is

preclud ed from reweigh ing or reco nsidering the evide nce. State v. Morgan,

929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v. Mathews, 805 S.W.2d

776, 77 9 (Ten n. Crim. A pp. 199 0). More over, this C ourt ma y not sub stitute its

own inferences “for those drawn by the trier of fact from circumstantial

evidence.” State v. Mathews, 805 S.W.2d at 779. Finally, the Tennessee

Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt in criminal

action s whe ther by the trial c ourt or jury sha ll be set aside if the evid ence is

insuffic ient to s uppo rt the find ings b y the trie r of fact b eyond a reas onab le

doubt.” See also State v. Mathews, 805 S.W .2d at 780 .



       In add ition to th e prop erly ad mitted testim ony co ncern ing two of the fie ld

sobrie ty tests, th ere wa s testim ony ab out ho w App ellant s melle d of alc ohol,

staggered and had bloodshot eyes. Further, the jury heard testimony that

Appellant refus ed an alcoh ol breath test, from w hich the pane l could have

inferred A ppellant h ad bee n drinking . See, State v. Wright, 691 S.W.2d 564

                                            -5-
(Tenn . Crim. A pp. 198 5); State v. S mith, 681 S.W.2d 569 (Tenn. Crim. App.

1984); (a dmiss ion of evide nce of re fusal to tak e blood alcohol te st not a

violation of privilege against self-incrimination.) We find that a rational trier of

fact could conclude beyond a reasonable doubt that Appellant was in control

of the a utom obile a nd tha t he wa s und er the in fluenc e of an intoxica nt. Th is

issue is w ithout me rit.



TESTIMONY CONCERNING COMPLAINT AGAINST ARRESTING OFFICER



       In his next assignm ent of error, Appe llant argues that the trial cou rt

erred in allowing the State to present evidence of a complaint he filed against

Officer Hale. He alleges that the testimony was irrelevant, prejudicial and

violated his right to due process under the Fifth and Sixth Amendments to the

United States Constitution and Article 1, §§ 8 and 9 of the Tennessee

Con stitution . The record show s that A ppella nt failed to obje ct to the State’s

line of questioning until the State had elicited testimony that Appellant had

filed a claim, the nature of the claim, and that the witness had investigated

Appellant’s claim. Failure to make a contemporaneous objection waives

conside ration by this court of the issue on appea l. See T.R.A.P. 36 (a);

Teag ue v. State , 772 S.W .2d 915 , 926 (T enn. C rim. App . 1988), perm. to

appeal denied, id. (Tenn . 1989); State v. Killebrew, 760 S.W.2d 228, 235

(Tenn . Crim. A pp.), perm to appeal denied, id. (Ten n. 198 8). Ap pellan t did

eventually object to the State pursuing a line of questioning regarding the

investigation of Appellant’s claim against Officer Hale. The trial court sustained

Appellant’s objection. Appellant failed, however, to make a motion to strike the




                                           -6-
prece ding te stimo ny. Ap pellan t is not e ntitled to relief for a n error that a tim ely

objection could ha ve preve nted. Th is issue is w ithout me rit.




                     EFFECTIVE ASSISTANCE OF COUNSEL



       Appellant also argues that he did not receive effective assistance of

coun sel. Th is claim arises from th e fact th at his a ttorney attem pted to call a

Mr. O pilack i and w hen in forme d that th e witne ss wa s not w aiting in the ha ll

proceeded on with trial without making any attempt to secure the witness and

without mak ing an offer of proo f as to what the witne ss’ testimony wo uld have

been . W hen a n app ellant c laims he rec eived in effective assista nce o f coun sel,

the burden is upon him to show that 1) his counsel’s performance fell below

the objective standard of reasonableness and 2) that the deficiency prejudiced

the app ellant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed. 2d 674 (1984). In order to establish prejudice, the appellant

mus t show that the re is a re ason able p robab ility that, bu t for cou nsel's

deficient p erforma nce, the re sult of the p roceed ing wou ld have b een differe nt.

Strickland, 466 U .S. at 69 4, 104 S.Ct. a t 2068 . A reas onab le prob ability is

one su fficient to und ermine confiden ce in the o utcom e. Id. (See also State v.

Seay, 945 S.W .2d 755 (Te nn. Crim. Ap p. 1996) perm. to appeal denied (Tenn.

1996). Appellant has presented nothing to this Court (or to the trial court at the

hearing on the motion for a ne w trial where App ellant was repres ented by a

lawyer other than the one whose competence he attacks) to indicate what the

testimony of this witness would have been. Appellant has not met his burden

                                            -7-
of establishing that he was prejudiced by trial counsel’s decision to continue

without the appea rance o f Mr. Opilac ki. This issu e is withou t merit.



      For the reaso ns disc usse d abo ve, the ju dgm ent of th e trial co urt is

affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
WILLIAM M. BARKER, JUDGE




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