       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE

                        FEBRUARY SESSION, 1997
                                                    FILED
                                                       July 9, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

STATE OF TENNESSEE,              )    C.C.A. NO. 03C01-9604-CC-00151
                                 )
           Appellee,             )    COCKE COUNTY
                                 )
                                 )
V.                               )    HON. BEN W. HOOPER, II,
                                 )    JUDGE
CLINTON DARRELL TURNER,          )
                                 )    (DUI; DRIVING WHILE
           Appellant.            )    LICENSE SUSPENDED)




FOR THE APPELLANT:               FOR THE APPELLEE:

EDWARD CANTRELL MILLER           JOHN KNOX WALKUP
District Public Defender         Attorney General & Reporter

SUSANNA LAWS THOM AS             ELIZABETH T. RYAN
Assistant Public Defender        Assistant Attorney General
102 Mims Avenue                  450 James Robertson Parkway
Newport, TN 37821-3614           Nashville, TN 37243-0493

                                 ALFRED C. SCHMUTZER, JR.
                                 District Attorney General

                                 JAMES BRUCE DUNN
                                 Assistant District Attorney General
                                 339A East Main Street
                                 Newport, TN 37821




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                               OPINION

      The Defendant, Clinton Darrell Turner, appeals as of right his conviction

and sentence for DUI. Following a jury trial, the Defendant was convicted of

driving a motor vehicle while under the influence of an intoxicant and driving on

a revoked license in the Cocke County Circuit Court. The trial court sentenced

the Defendant to eleven (11) months and twenty-nine (29) days on the charge of

driving while under the influence and six months for the charge of driving on a

revoked license. The sentences were ordered to be served concurrently. The

trial court suspended the entire sentence for the conviction of driving on a

revoked license. On the DUI, the Defendant was ordered to serve seven days

in jail with the balance to be served on probation. In addition to challenging the

sufficiency of the evidence, Defendant also argues the trial court erred by

allowing an officer to testify as to field sobriety tests when the officer was not

trained to administer those tests. The last issue the Defendant raises is that the

trial court erred by sentencing him to serve seven days rather than the two (2)

day minimum provided by law. We affirm the judgment of the trial court.



                      SUFFICIENCY OF THE EVIDENCE



      Defendant first challenges the sufficiency of the evidence. When an

accused challenges the sufficiency of the convicting evidence, the standard is

whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319



                                       -2-
(1979). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all inferences therefrom . State v. Cabbage, 571 S.W .2d 832, 835

(Tenn. 1978). A jury verdict approved by the trial judge accredits the State’s

witnesses and resolves all conflicts in favor of the State. State v. Grace, 493

S.W .2d 474, 476 (Tenn. 1973).



      Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476. Any questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987).

Nor may this court reweigh or reevaluate the evidence. Cabbage, 571 S.W .2d

at 835.



      Officer Bennie Shelton of the Cocke County Sheriff’s Department was the

State’s only witness at trial. The Defendant presented no proof. Officer Shelton

testified that on July 15, 1994 at 1:30 a.m., he was on patrol and observed the

Defendant’s car traveling down Asheville Highway.            The Defendant’s car

headlights were not on, and, while the car was not a convertible, it had no top.

After Officer Shelton pulled behind the vehicle with his blue lights on, the

Defendant pulled over to the side of the road. He approached the driver’s side

and found the Defendant to have bloodshot eyes. When he asked Defendant for

his license, Officer Shelton noticed that his speech was som ewhat slurred in

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response. Defendant failed to produce his license. Shelton asked Defendant

to get out of his car, and the Defendant then told him he did not have a license.

W hen the Defendant exited his car, Shelton observed that he was walking off-

balance.     A computer check indicated that Defendant’s license had been

revoked.



        Officer Shelton administered three separate field sobriety tests, including

the horizontal gaze nystagmus, recitation of ABC’s, and the finger to nose tests.

W hile the Defendant did follow his directions, he was unable to completely follow

the pen during the horizontal gaze nystagmus test without moving his head.

During his recitation of the ABC’s, he left out some letters and his speech was

notably slurred. When the Defendant tried to perform the finger to nose test, he

was only able to touch his top lip. Defendant’s performance on these tests, in

addition to the sm ell of alcohol about the Defendant, his slurred speech,

bloodshot eyes, and driving with no headlights, indicated to Officer Shelton that

the Defendant was impaired by an intoxicant. Furthermore, the Officer observed

an empty liquor bottle in the Defendant’s car, and the Defendant stated that he

had just left a local bar, The Brown House, where he drank some alcoholic

beverages. Based upon all these observations, Officer Shelton determined that

Defendant was operating a motor vehicle while under the influence of intoxicants

and arrested him. Defendant subsequently refused to subm it to a breath alcohol

test.



        Officer Shelton admitted on cross-examination that he was not formally

trained in the administration of the horizontal gaze nystagmus test or the finger

to nose test. He had observed state troopers administer the horizontal gaze

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nystagmus test. He added that he was aware of what would be “norm al” in a

performance of the “recitation of ABC” test and the “finger to nose” test. Officer

Shelton also added that he had made m any prior arrests for DUI in the previous

seven years service as a law enforcement officer.



       Defendant was convicted of driving while under the influence of an

intoxicant. Tenn. Code Ann. § 55-10-401(a). At the time of the offense this

statute provided that, “It is unlawful for any person . . . to drive . . . any automobile

. . . on any of the public roads or highways of the state of Tennessee . . . while

under the influence of an intoxicant . . .” Tenn. Code Ann. § 55-10-401. The

record in this case demonstrates that the Defendant was driving his car on a

Tennessee highway while under the influence of an intoxicant. This is shown by

the Defendant’s slurred speech, unsteady gait, bloodshot eyes, smell of alcohol,

and driving without the use of his headlights at 1:30 a.m. on Asheville Highway.

In addition, the Defendant’s performance on the field sobriety tests indicated his

guilt. Defendant also admitted to the Officer that he had been drinking. Based

upon the standard of review for this Court, there was more than sufficient

evidence for a rational trier of fact to determine that Defendant was driving while

under the influence of alcohol. This Court has long held that circumstantial

evidence alone is sufficient to establish the elements necessary to sustain a

conviction for DUI. See, e.g. Hopson v. State, 201 Tenn. 337, 299 S.W .2d 11

(1957); Farmer v. State, 208 Tenn. 75, 343 S.W .2d 895 (1961); Hardin v. State,

210 Tenn. 116, 355 S.W .2d 105 (1962); State v. Gilbert, 751 S.W .2d 454, 459

(Tenn. Crim. App. 1988). While Defendant argues that the State should be

required to prove its case by more than Officer Shelton’s testimony, there is




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clearly no such requirement under Tennessee law. State v. Vasser, 870 S.W .2d

543, 544 (Tenn. Crim. App. 1993). There is no merit to this issue.



                      TESTIMONY OF OFFICER SHELTON



      Defendant argues that the trial court erred in allowing Officer Shelton to

testify regarding his opinion that the Defendant was impaired. At trial, Defendant

failed to timely object to Officer Shelton’s competence as a witness regarding

Defendant’s impairment and his subsequent opinion as to Defendant’s

intoxication. The trial court overruled Defendant’s later objection on that basis.

Failure to make a contemporaneous objection normally waives consideration by

this court of the issue on appeal. See T.R.A.P. 36(a); Teague v. State, 772

S.W .2d 915, 926 (Tenn. Crim. App. 1988), perm. to appeal denied, id. (Tenn.

1989); State v. Killebrew, 760 S.W .2d 228, 235 (Tenn. Crim. App.), perm. to

appeal denied, id. (Tenn. 1988). Defendant did object during cross-examination,

but then failed to make a motion to strike any of the testimony of Officer Shelton.

Such failure by the Defendant constitutes waiver of this evidentiary issue. See

State v. Pilkey, 776 S.W .2d 943, 952 (Tenn. 1989) cert. denied, 108 L.Ed. 646

(1990). In any event we are unaware of any case law that requires expert

testimony to establish proof regarding the field sobriety tests which are known as

the “finger to nose” and “recitation of ABC’s” tests. In fact, in State v. Gilbert, 751




                                          -6-
S.W.2d 454, 459 (Tenn. Crim. App. 1988) this court held that in general field

sobriety tests are not “scientific tests” and that the admissibility of the results of

such tests are not to be governed by rules pertaining to the admission of scientific

evidence.



      Notwithstanding the failure of Defendant’s counsel to object or move to

strike Officer Shelton’s testimony, any such error by the trial court was harmless

error. We agree that Officer Shelton should not have been permitted to testify

regarding the horizontal gaze nystagmus (HGN) test upon proper objection being

made. He testified that he lacked form al training in the HGN test. We feel the

horizontal gaze nystagmus test is scientific evidence, and, accordingly, the proof

regarding the test should be admitted with a sufficient foundation laid by expert

testimony. See State v. Cora Murphy, No. 01S01-9602-CC-00035, Davidson

County (Tenn. Crim. App., at Nashville, filed O ctober 6, 1995) perm. to appeal

granted (Tenn. 1996). We acknowledge other panels of this Court disagree with

this conclusion. This issue is presently pending in the Tennessee Supreme

Court. Regardless, there was more than sufficient evidence for a rational trier of

fact to find the Defendant guilty of driving a motor vehicle while under the

influence of alcohol even without the testimony regarding the HGN test. State v.

Ronnie Kirk, No. 02C01-9309-CC-00215, Chester County (Tenn. Crim. App., at

Jackson, filed October 12, 1994) (No Rule 11 application filed). Any error in

allowing any of that testimony was harmless beyond a reasonable doubt. This

issue is without merit.




                                         -7-
                                  SENTENCE



      Defendant argues that the trial court erred in sentencing him to serve

seven days in prison, rather than the two-day mandatory minimum sentence.

The misdemeanant, unlike a felon, is not entitled to the presumption of a

minimum sentence. State v. Creasy, 885 S.W .2d 829, 832 (Tenn. Crim. App.

1994). Under Tennessee Code Annotated section 55-10-403, a person convicted

of driving a motor vehicle while under the influence of an intoxicant must be

confined for not less than forty-eight (48) hours nor more than eleven (11) months

and twenty-nine (29) days.      This statute, in effect, mandates a maximum

sentence for DUI, with the trial court’s only function to determine what period

above the minimum period of incarceration established by statute, if any, is to be

suspended. State v. Kerry Combs, No. 03C01-9409-CR-00314, Greene County

(Tenn. Crim. App., at Knoxville, filed September 9, 1996), perm. to appeal denied

(Tenn. 1997).



       A challenge as to the length, range or manner of service of a sentence

requires this Court to conduct a de novo review with a presumption that the

determinations made by the trial court are correct so long as the record

demonstrates that the trial court properly considered relevant sentencing

principles. Tenn. Code Ann. § 40-35-401(d); State v. Ashby, 823 S.W .2d 166

(Tenn. 1991).    In conducting a de novo review this Court must weigh the

evidence received at trial and sentencing hearing, the pre-sentence report,

statutory principles for sentencing, counsel’s arguments regarding sentencing




                                       -8-
alternatives, the criminal conduct and its nature, mitigating and enhancing

factors, the defendant’s statement, and the defendant’s potential for rehabilitation

or treatment. Ashby, 823 S.W .2d at 169. The record reflects that the trial judge

failed to follow the sentencing principles of Ashby and, therefore, there is no

presumption of correctness. However, upon review of the record we find no

reversible error in the sentencing of Defendant.



      W hile no presentence report was completed, the Defendant asserts that

he had no prior criminal record and that there were no enhancem ent factors

applicable to his offense. The record fails to reflect that the trial judge found any

enhancement or mitigating factors.             The record does reflect that the

circumstances of the offense were serious in that the Defendant was driving

along a state highway without his lights on at 1:30 a.m. In his statement to the

trial court, Defendant admitted to having driven numerous times while his license

was revoked. Such acts were in knowing violation of the law. In consideration

of the above, we cannot conclude that the trial court erred in ordering a sentence

which was greater than the minimum forty-eight (48) hours mandated by the

statute. See State v. Warner D. Brannon, C.C.A. 03C01-9508-CR-00233, Knox

County (Tenn. Crim. App. at Knoxville, filed April 3, 1996), perm. to appeal

denied (Tenn. 1996).




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    The judgment of the trial court is therefore affirmed.




                              ____________________________________
                              THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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