        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE          FILED
                     SEPTEMBER, 1997 SESSION
                                                November 21, 1997

                                                Cecil W. Crowson
                                               Appellate Court Clerk
STATE OF TENNESSEE,    )
                       )        No. 01C01-9611-CC-00461
    Appellee,          )
                       )        Maury County
vs.                    )
                       )        Hon. James L. W eatherford, Judge
ANTHONY PAUL ALDERSON, )
                       )        (DUI)
    Appellant.         )



FOR THE APPELLANT:              FOR THE APPELLEE:

GARY M. HOWELL                  JOHN KNOX WALKUP
P.O. Box 442                    Attorney General & Reporter
Columbia, TN 38402
                                GEORGIA BLYTHE FELNER
                                Counsel for the State
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                MIKE BOTTOMS
                                District Attorney General
                                P.O. Box 459
                                Lawrenceburg, TN 38464-0459



OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION



               The defendant, Anthony Paul Alderson, appeals pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure from his judgment of conviction

in the Maury County Criminal Court for driving under the influence of an

intoxicant. After a bench trial, he was sentenced to serve eleven months and

twenty-nine days on probation after serving 48 hours in the county jail.



               In this appeal, the defendant contends that the trial court erred in

allowing the state to reopen its proof after the defendant moved for a judgment

of acquittal. After a careful review of the record, we affirm the judgment of the

trial court.



               The trial judge found the defendant guilty of driving while under the

influence of an intoxicant pursuant to Tennessee Code Annotated section

Section 55-10-401 on June 20, 1996. No transcript of the trial is included in the

record. However, the defendant prepared a Statement of the Evidence which

the trial court has certified. From this statement we derive the following facts.

Officer Tim Potts, the state’s only witness, testified that on July 1, 1995, he

observed a vehicle traveling north on Highway 7 in Maury County. When the

vehicle swerved twice across the center line, he radioed ahead to Officer Tommy

Goetz to stop the vehicle. When Officer Potts arrived, he found the defendant

and three other individuals standing around the car talking with a third officer.

Officer Potts noticed the odor of an alcoholic beverage coming from the

defendant and asked him if he had been drinking. The defendant admitted that

he had. The officer administered two field sobriety tests. Based on these tests

and his other observations, he concluded that the defendant was under the

influence and placed him under arrest. The results of the defendant’s blood

alcohol test were .16% alcohol content. This concluded the state’s proof.




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              The defense then moved for a judgment of acquittal in that there

was no proof that the defendant was either driving or in physical control of the

vehicle. See Tenn. Code Ann. § 55-10-401 (a) (Supp. 1996). The trial court,

over the defendant’s objection, allowed the state to reopen its proof. Officer

Potts again took the stand and testified that as he approached the scene of the

stop he saw the defendant get out of the car from the driver’s door. The state

rested again and the defense put on no proof.



              Upon these facts, the trial judge found the defendant guilty and

sentenced him to eleven months and twenty-nine days of probation after serving

48 hours.



              The defendant now contends that the rules of criminal procedure

require that the trial court grant a defendant’s motion for a judgment of acquittal

“of one or more offenses charged in the indictment or information after the

evidence on either side is closed if the evidence is insufficient to sustain a

conviction for such offense or offenses.” Tenn. R. Crim. P. 29(a). The

defendant concedes that a trial judge has broad discretion in allowing the

reopening of proof. He argues, however, that, since the adoption of the

Tennessee Rules of Criminal Procedure in 1978, the motion to reopen is

appropriate only when the state has failed to establish venue and not when the

state fails to establish an essential element of the offense. We respectfully

disagree.

              In Tennessee, the law is well-settled that the decision to allow a

party to reopen its proof after resting is within the discretion of the trial court.

Boone v. Citizen’s Bank & Trust, 154 Tenn. 241, 244-45, 290 S.W. 39, 40

(1927); State v. Tuttle, 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995); Clariday

v. State, 552 S.W.2d 759, 770 (Tenn. Crim. App. 1976). Nothing in the rules or

in case law indicates that Rule 29 restricts the trial court’s discretion to grant or




                                            3
deny a motion to reopen. The rule states, in pertinent part:

              . . . The court on motion of a defendant or of its own
              motion shall order the entry of judgment of acquittal of
              one or more offenses charged in the indictment or
              information after the evidence on either side is closed
              if the evidence is insufficient to sustain a conviction of
              such offense or offenses. If a defendant’s motion for
              judgment of acquittal at the close of the evidence
              offered by the State is not granted, the defendant
              may offer evidence without having reserved the right.

Tenn. R. Crim. P. 29(a).    Moreover, comments to the rule states that the new

rule “is substantially the same as the federal rule.” Id. committee comments. As

the defendant concedes in his brief, federal law permits parties to reopen the

proof under a variety of circumstances. See 10 David Raybin, Tennessee

Criminal Practice and Procedure, § 26.113 (1985 and Supp. 1997).



              Although a motion to reopen has perhaps most often been granted

to permit the state to establish venue, its use has never been limited to that

particular situation. For example, in State v. John Michael Armitage, this court

reversed a conviction for second degree murder and remanded the case for new

trial because the trial court refused to reopen the proof and allow the defendant

to present the testimony of a newly found witness that tended to impeach one of

the state’s most important witnesses. State v. John Michael Armitage, No. 1241,

slip op. at 8 (Tenn. Crim. App., Knoxville, July 10, 1990). In another case, the

trial court granted the state’s motion to reopen so that the prosecution could

prove that the defendant was in possession of an automobile involved in a

burglary, and we affirmed. State v. Tuttle, 914 S.W.2d 926, 930 (Tenn. Crim.

App. 1995).1 We have found nothing in Tennessee law that would cause us to




       1
        See also State v. Ricky Ogan, No. 01C01-9406-CC-00213, slip op. at 6
(Tenn. Crim. App., Nashville, April 30, 1997)(defendant’s identity); State v.
Tommy Crisp, No. 167, slip op. at 4,5 (Tenn. Crim. App., Knoxville, July 19,
1989)(proof that connected defendant with stolen property); State v. Alex Biles,
No. 86-104-II, slip op. at 5 (Tenn. Crim. App., Nashville, July 10, 1987)(evidence
to prove dates of prior convictions); State v. Furman Calvin Schrader and Larry
Clark Schrader, No number in original, slip op. at 10-11 (Tenn. Crim. App.,
Knoxville, August 28, 1985); State v. Ricky Wayne Cooper, No. 71, slip op. at 5
(Tenn. Crim. App., Jackson, April 17, 1985) (testimony corroborating accomplice
testimony).

                                          4
conclude that, once the defense has moved for a judgment of acquittal, the

state may reopen its case only to offer proof of venue. The decision to grant or

deny a motion to reopen is within the discretion of the trial court.



              In the absence of an injustice, a trial court’s decision to permit the

introduction of further evidence after a party has rested must be upheld.

Simpson v. Frontier Community Credit Union, 810 S.W. 2d 147 (Tenn. 1991);

Clariday v. State, 552 S.W.2d 759, 771 (Tenn. Crim. App. 1976). The mere fact

that the evidence presented after the reopening of the case produced a different

result is not determinative as long as there is no surprise or unfair advantage.

Don McBay v. Charles Lesley Cooper, No. 01A01-9205-CV-00202, slip op. at 4

(Tenn. App., Nashville, Aug. 26, 1992). This court has previously noted with

approval the rule stated in United States v. Thetford, 676 F.2d 170 (5th Cir.

1982):

              A motion to reopen is clearly within the discretion of
              the trial court. In exercising its discretion, the court
              must consider the timeliness of the motion, the
              character of the testimony, and the effect of granting
              of the motion. The party moving to reopen should
              provide a reasonable explanation for failure to
              present the evidence in its case-in-chief. The
              evidence proffered should be relevant, admissible,
              technically adequate, and helpful to the jury in
              ascertaining the guilt or innocence of the accused.
              The belated receipt of such testimony should not
              “imbue the evidence with distorted importance,
              prejudice the opposing party’s case, or preclude an
              adversary from having an adequate opportunity to
              meet the additional evidence offered.” (Citations to
              other cases omitted.)

State v, John Michael Armitage , No. 1241, slip op. at 7 (Tenn. Crim. App.,

Knoxville, July 10, 1990).



              In this instance, no court reporter transcribed the trial, and the

Statement of the Evidence contains the following remark, “[a]fter some

discussion the Court, over the defendant’s objection, allowed the State to re-

open its proof.” From such a record, we have no way of determining what

reasons the state gave for its request to reopen or what findings the trial court


                                          5
may have made. The appellant has the responsibility to present a record

containing “such parts of the evidence or proceedings as is necessary to convey

a fair, accurate and complete account of what transpired with respect to those

issues that are bases of appeal.” Tenn. R. App. P. 24(b); State v. Jones, 733

S.W.2d 517, 522 (Tenn. Crim. App. 1987). Lacking such a record, this court

must presume that the trial court’s ruling was adequately supported by the

evidence. State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987).



              Moreover, we cannot say that any injustice resulted from the

admission of Officer Potts’s testimony even though the new evidence addressed

the issue upon which the defendant had based his motion for acquittal. As this

court wrote in State v. Tommy Crisp, No. 167 (Tenn. Crim. App., Knoxville, July

19, 1989), “[t]he only reason for allowing any party to reopen their proof is to

correct some deficiency. Otherwise, there would be no reason for the rule and

no party could ever reopen.” Slip op. 5. The defendant has not demonstrated

that the opportunity to present the additional testimony gave the state the benefit

of any surprise or unfair advantage, that either party or the court was seriously

inconvenienced, or that the defendant had no fair opportunity for rebuttal. Don

McBay v. Charles Lesley Cooper, No. 01A01-9205-CV-00202, slip op. at 4

(Tenn. App., Nashville, Aug. 26, 1992).



              Officer Potts’s additional testimony was relevant, admissible, and

helpful to the determination of the defendant’s innocence or guilt. See State v,

John Michael Armitage, No. 1241, slip op. at 7 (Tenn. Crim. App., Knoxville, July

10, 1990). The trial court is entitled to and should have the benefit of all

available evidence for its assistance in arriving at a just determination. Don




                                          6
McBay v. Charles Lesley Cooper, slip op. at 4. The trial court did not abuse its

discretion in permitting the state to reopen its case after the defendant had

moved for a judgment of acquittal.



             We affirm the judgment of the trial court.



                                                __________________________
                                                CURWOOD W ITT, Judge



______________________________
GARY R. WADE, Judge



______________________________
THOMAS T. W OODALL, Judge




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