         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE          FILED
                           MAY 1998 SESSION         June 10, 1998

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )    NO. 03C01-9709-CC-00400
      Appellee,                   )
                                  )    BLOUNT COUNTY
VS.                               )
                                  )    HON. D. KELLY THOMAS, JR.,
FRED NUCHOLS,                     )    JUDGE
                                  )
      Appellant.                  )    (DUI, Revoked License)



FOR THE APPELLANT:                     FOR THE APPELLEE:

C. MICHAEL ROBBINS                     JOHN KNOX WALKUP
3074 East Street                       Attorney General and Reporter
Memphis, TN 38128
(On Appeal)                            CLINTON J. MORGAN
                                       Assistant Attorney General
RAYMOND MACK GARNER                    Cordell Hull Building, 2nd Floor
District Public Defender               425 Fifth Avenue North
419 High Street                        Nashville, TN 37243-0493
Maryville, TN 37804-4912
(At Trial)                             MICHAEL L. FLYNN
                                       District Attorney General

                                       PHILIP H. MORTON
                                       Assistant District Attorney General
                                       363 Court Street
                                       Maryville, TN 37804-5906




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Fred Nuchols, appeals his Blount County jury convictions

for driving under the influence of an intoxicant, third offense, and driving on a

revoked license, third offense. The sole issue presented for review is whether

the trial court erred in permitting the state to recall a witness in rebuttal. The

judgment of the trial court is affirmed.



                                       FACTS



       Deputy Rusty Borden of the Blount County Sheriff’s Department testified

that he observed the defendant’s van straddling the white line on the right side of

the highway. The van was traveling approximately twenty-five (25) to thirty (30)

miles per hour, which was below the posted limit. When the van passed the

deputy, the defendant had a “glazed look.”



       Based on the van’s travel on the outside line, its slow rate of speed, and

the appearance of the driver, the deputy decided to stop the vehicle to

investigate whether the driver was under the influence of an intoxicant. The van

pulled into the parking lot of an adjacent store. Before the deputy could

approach the defendant, the defendant went inside. When the defendant

reemerged, he got into the backseat of the van, and another person drove the

van.



       Deputy Borden subsequently stopped the van. The defendant was sitting

in the backseat at this time. The deputy testified that the defendant had the odor

of alcohol on his breath, slurred speech, bloodshot eyes, and was unsteady on

his feet. The defendant explained to the officer that they switched drivers

because he “had a little too much to drink.” The defendant declined to perform

field sobriety tests or take a blood alcohol test. After running a check of the



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defendant’s license, the deputy discovered it had been revoked in Tennessee.

The defendant produced an expired Georgia license.



       The defendant testified that he had two (2) beers with breakfast and was

not driving the van at any time that morning. He also denied ever having his

Tennessee driver’s license revoked. The essence of his testimony was that the

deputy was “the lyingest (phonetically) human I ever seen in my life.”



       In response to the defendant’s testimony the state recalled Deputy

Borden to ask whether he was able to form an opinion as to whether the

defendant was intoxicated. The deputy stated his opinion was that the

defendant was intoxicated when he was arrested.



                            REBUTTAL TESTIMONY



       The defendant contends he was unfairly prejudiced by the state

presenting the rebuttal testimony of Deputy Borden. He alleges this testimony

was not proper rebuttal testimony, but rather was a restatement of the deputy’s

former testimony.



       Rebuttal evidence is that which tends to explain or controvert evidence

produced by an adverse party. Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn.

1979). Whether to permit rebuttal testimony is within the sound discretion of the

trial court. State v. Brown, 795 S.W.2d 689, 695 (Tenn. Crim. App. 1990). The

trial court’s decision in this regard will only be reversed on appeal upon a

showing of a clear abuse of discretion. State v. Scott, 735 S.W.2d 825, 828

(Tenn. Crim App. 1987).



       In the instant case we find no abuse of discretion by the trial court. The

defendant in his testimony had specifically denied being intoxicated. Allowing



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the deputy to contradict this testimony in rebuttal, even if the deputy had briefly

testified to the same thing during the state’s case-in-chief, was not an abuse of

discretion. This issue is without merit.



       Accordingly, the judgment of the trial court is affirmed.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE


CONCUR:



_________________________
JOSEPH M. TIPTON, JUDGE




_________________________
CURWOOD WITT, JUDGE




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