         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                      DECEMBER 1997 SESSION
                                                             FILED
                                                                June 26, 1998

                                                             Cecil Crowson, Jr.
STATE OF TENNESSEE,                )                         Appellate C ourt Clerk
                                   )    NO. 02C01-9707-CC-00264
      Appellee,                    )
                                   )    McNAIRY COUNTY
VS.                                )
                                   )    HON. JON KERRY
                                   )    BLACKWOOD,
LILLY FRAN BAKER,                  )    JUDGE
(A.K.A. LILLIE F. HOLLOWAY),       )
                                   )
      Appellant.                   )    (DUI, 3d Offense)



FOR THE APPELLANT:                      FOR THE APPELLEE:

LLOYD R. TATUM                          JOHN KNOX WALKUP
124 E. Main Street                      Attorney General and Reporter
P.O. Box 293
Henderson, TN 38340                     ELIZABETH T. RYAN
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        ELIZABETH T. RICE
                                        District Attorney General

                                        ED NEAL McDANIEL
                                        Assistant District Attorney General
                                        300 Industrial Park Drive
                                        P.O. Box 473
                                        Selmer, TN 38375-0473




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                      OPINION



       The defendant, Lilly Fran Baker, appeals a jury conviction for driving

under the influence of an intoxicant, third offense. She was sentenced to eleven

(11) months and twenty-nine (29) days, all but 120 days suspended, and fined

$10,000. On appeal, the defendant raises the following issues for review:

       (1) whether the evidence was sufficient for the jury to find her guilty
       beyond a reasonable doubt;

       (2) whether the trial court erred in failing to declare a mistrial after
       mistakenly informing the jury that the defendant was also charged
       with driving while revoked and violating the implied consent law;
       and

       (3) whether the trial court’s instructions erroneously allowed the jury
       to consider intoxicants in addition to alcohol.


The judgment of the trial court is affirmed.



                                       FACTS



       Patrol Sergeant R.C. Pipkins of the Selmer Police Department testified

that he observed a pickup truck driven by the defendant make an improper turn.

The officer began following the defendant and noticed the vehicle “drifting” and

cross onto the shoulder. After a distance of approximately one-half (½) mile, the

officer activated his lights and the defendant pulled over.



       Sergeant Pipkins asked the defendant to exit the truck and meet him

between their vehicles. The officer testified that the defendant appeared

unsteady on her feet. Sergeant Pipkins also testified that he smelled an odor of

alcohol on the defendant’s breath, and her speech was slurred.         The defendant

informed the officer that she had lupus and was on medication, but did not

indicate that this would affect her ability to drive a motor vehicle or perform field

sobriety tests.




                                           2
       Sergeant Pipkins administered three (3) field sobriety tests to the

defendant. The defendant performed the “one leg stand,” the “walk and turn,”

and the “finger to nose” tests. The officer testified the defendant passed the

“one leg stand” test, but failed the other two. The defendant failed the “walk and

turn” test by failing to touch the heel of her shoe to the toe of the other shoe,

stepping off of the line, raising her arms, and making an improper turn. She

performed the “finger to nose” test unsatisfactorily by not following instructions

and by failing to touch her nose on any of the six (6) attempts to do so. After the

field sobriety tests were completed, the officer was of the opinion that the

defendant was under the influence of an intoxicant.



       After the defendant was arrested, Sergeant Pipkins found in the truck the

following: four (4) full, one (1) empty, and one (1) half-empty, 12 ounce cans of

Natural Light beer; two (2) full and one (1) half-empty 16 ounce cans of

Budweiser beer; and one (1) empty can of Busch beer. The defendant’s

boyfriend was a passenger in the vehicle.



       Subsequent to his search of the vehicle, the officer requested that the

defendant submit to a chemical test to determine the content of alcohol or drugs

in her blood. The defendant refused to submit to the test.



       At her trial, the defendant testified that she had consumed only one (1)

beer and a part of another at the time she was arrested. She denied being

under the influence. The defendant also presented testimony from a witness

who stated he observed the defendant approximately two (2) hours before her

arrest, and she did not appear to be under the influence of alcohol at that time.




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                        SUFFICIENCY OF THE EVIDENCE



       The defendant contends that no rational trier of fact, after weighing the

evidence presented at her trial, could conclude beyond a reasonable doubt that

she was driving under the influence of an intoxicant. In Tennessee, great weight

is given to the result reached by the jury in a criminal trial. A jury verdict

accredits the state's witnesses and resolves all conflicts in favor of the state.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn

therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover,

a guilty verdict removes the presumption of innocence which the appellant

enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this

presumption of guilt. Id.



       Where sufficiency of the evidence is challenged, the relevant question for

an appellate court is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.

App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The

weight and credibility of the witnesses' testimony are matters entrusted

exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542,

547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).



       Sergeant Pipkins testified that he observed the defendant make an

improper turn and deviate from the roadway. He further testified that the

defendant had a strong smell of alcohol on her person, was unsteady on her

feet, had slurred speech and was unable to satisfactorily perform two (2) of the



                                           4
three (3) field sobriety tests administered. The jury also heard testimony from

the officer that the defendant appeared to be under the influence of an

intoxicant. When viewed in a light most favorable to the state, there is sufficient

evidence in the record for the jury to have rendered a guilty verdict. This issue is

without merit.



                                       MISTRIAL



       The defendant’s second assignment of error is that the trial court abused

its discretion in overruling her motion for a mistrial. The defendant moved for a

mistrial at the conclusion of the trial court’s voir dire examination of the jury pool.

While informing the jury as to the issues they would be deciding, the trial court

mistakenly included the revoked license and implied consent charges which,

although in the same indictment, had been severed for the jury trial. The

defendant contends the mention of the other charges might have caused the jury

to infer she had previously been convicted of driving under the influence, thereby

unfairly prejudicing her.



       No contemporaneous objection was made at the time the trial court

relayed this information to the jury. An objection was made out of the presence

of the jury after the trial court completed its initial voir dire of the jury. The trial

court acknowledged its mistake and gave the following curative instruction to the

prospective jurors:

              Ladies and gentlemen, the Court may have mentioned ---
       The charge here today is Driving Under the Influence of an
       Intoxicant. The Court was in error in any other charges that the
       Court may have explained to you. But the only charge you’ll be
       dealing with here today is Driving Under the Influence of an
       Intoxicant.



       The determination of whether to grant a mistrial rests within the sound

discretion of the trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994).

The reviewing court should not overturn that decision absent an abuse of

                                             5
discretion. State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The

burden of establishing the necessity for mistrial lies with the party seeking it.

State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this

determination, no abstract formula should be mechanically applied, and all

circumstances should be taken into account. State v. Mounce, 859 S.W.2d 319,

322 (Tenn. 1993).



       The trial court gave a curative instruction to the jury concerning the

charges. The jury, absent evidence to the contrary, is presumed to have

followed the trial court’s curative instructions. State v. Smith, 893 S.W.2d 908,

914 (Tenn. 1994); State v. Williams, 929 S.W.2d at 388. The defendant’s

contention that she might have been prejudiced is not sufficient to overcome the

presumption. This issue is without merit.



                               JURY INSTRUCTIONS



       Finally, the defendant claims the trial court’s instruction on driving under

the influence of an intoxicant was prejudicial in that it included all intoxicants, yet

the state previously “elected” to prove alcohol as the means of the defendant’s

intoxication. The “election” was made by the state at the defendant’s request at

the conclusion of the state’s proof. Subsequently, the trial court’s jury charge

was as follows:

              Any person who commits the offense of driving under the
       influence of an intoxicant is guilty of a crime. For you to find the
       defendant guilty of this offense, the state must have proven beyond
       a reasonable doubt the existence of the following elements. That
       the defendant was driving an automobile or motor driven vehicle
       and that this act occurred on a public road or highway or a public
       street or alley, and that the defendant was under the influence of
       an intoxicant. The expression “under the influence of an intoxicant”
       covers not only -- covers not only all the well-known and easily
       recognized conditions and degrees of intoxication, but also any
       mental or physical condition which is the result of taking intoxicants,
       in any form, and which deprives one of that clearness of mind and
       control of herself which she would otherwise possess.




                                           6
       The defendant contends this instruction casts doubt on whether the jury’s

verdict was unanimous as to the type of intoxicant. The defendant complains the

wording of the instruction could have led some jurors to convict her of being

under the influence of an intoxicant other than alcohol.



       One of the leading cases in this state on the doctrine of election is

Burlison v. State, 501 S.W.2d 801 (Tenn. 1973). In that case, after the state

introduced proof of numerous incidents of sexual abuse over a period of time,

the Tennessee Supreme Court held the state was required to “elect” the

particular offense upon which it was seeking a conviction. Burlison, 501 S.W.2d

at 804. One of the reasons for requiring an election in that case was to ensure

the unanimity of the jury’s verdict, avoiding a situation where one juror convicted

for one occurrence and other jurors for another occurrence. Id. at 803. More

recently, our Supreme Court has ruled that the state must make an election

“when it is pursuing convictions for discrete crimes and proof of additional

discrete crimes has been introduced at trial.” State v. Hoxie, ___

S.W.2d___,___ (Tenn. 1998).



       The doctrine of election does not apply to a single offense of driving under

the influence. See State v. Ernest Seibers, C.C.A. No. 89-20-III, White County

(Tenn. Crim. App. filed June 29, 1989, at Nashville). The defendant was

charged with only one offense of driving under the influence. The proof showed

only one offense. Therefore, the state was not required to elect a particular type

of intoxicant.



       Regardless, the state only relied upon alcohol to have caused the

defendant’s impairment. The defendant was not prejudiced by the use of the

word “intoxicant” instead of the word “alcohol” in the jury charge. See Tenn. R.

App. P. 36(b). This issue is without merit.




                                         7
     The judgment of the trial court is AFFIRMED.




                                            _________________________
                                            JERRY L. SMITH, JUDGE



CONCUR:




______________________________
JOE B. JONES, JUDGE




_____________________________
CURWOOD WITT, JUDGE




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