        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                     JANUARY SESSION, 1999                May 27, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,         )                  Appellate Court Clerk
                                C.C.A. NO. 01C01-9804-CC-00182
                            )
      Appellee,             )
                            )
                            )   WILLIAMSON COUNTY
VS.                         )
                            )   HON. HENRY DENMARK BELL
JOEL GUILDS,                )   JUDGE
                            )
      Appe llant.           )   (Direct Ap peal - D UI)




FOR THE APPELLANT:              FOR THE APPELLEE:

DAVID H. KING                   JOHN KNOX WALKUP
KING, TURNBOW & BRISBY          Attorney General and Reporter
203 T hird Aven ue Sou th
Franklin, TN 37064              TIMOTHY BEHAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                JOE D. BAUGH, JR.
                                District Attorney General

                                JEFF BURKS
                                Assistant District Attorney
                                P. O. Box 937
                                Franklin, TN 37065-0937



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On April 14, 19 97, the Williamson County Grand Jury indicted Appellant

Joel P. Gu ilds for d riving un der the influence of an intoxicant, second offense,

and for driving on a re voked license. On October 15, 1997, Appellant filed a

motion to have th e two ch arges tried separa tely. The trial court initially denied

the motion, bu t after Appellant’s trial began on Octob er 29, 1997, the trial court

granted the mo tion to sever. Later that sam e day, a W illiamson Cou nty jury

convicted Appellant of driving under the influence of an intoxica nt. On Febru ary

13, 1998, the trial court imposed a sentence of eleven months and twenty-nine

days. Appellant challenges his conviction, raising the following issues:

       1) whether Appellant was prejudiced by the late severance of the charges;
       2) whether the trial court abused its discretion when it allowed a witness
       to testify w ho ha d not b een d isclose d to Ap pellan t until the day of tr ial;
       3) whether the evidence was sufficient to support Appellant’s conviction;
       and
       4) whether a comment by the prosecutor during closing argument
       constituted prosecutorial misconduct that deprived Appellant of a fair trial;

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



                                      I. FACTS




       Officer Daniel Aloy of the Franklin, Tennessee Police Department testified

that while he was responding to a call in downtown Franklin on February 13,

1997, he heard a loud crash. Aloy then turned around and saw that a car had

struck a large flowerpot and a light pole a short distance away. When Alo y

arrived at the scene, he saw that Appellant was in the driver’s seat and was the

only person in the car. Aloy then made contact with Appellant and observed that



                                           -2-
Appellant had slurred speech, appeared to be only semi-conscious, and had

difficulty answ ering qu estions.



      Officer Frank Soto of the Franklin Police Department testified that he

arrived at the acc ident soo n after it occu rred and he “took over the s cene.”

Shor tly after Soto approached Appellant, Soto recognized him because Soto had

known Appellant for approximately five or six years. Soto smelled the odor of

alcohol coming from both the inside of the car and from Appe llant’s person and

he saw a beer can on the floor of th e car. So to also observed that Appellant had

slurred speech and glassy, red eyes.           Soto further observed that Appellant

appeared to have a head injury and that the windshield of Appellant’s car had

been b roken b y what S oto gue ssed w as prob ably App ellant’s hea d.



       Soto testified that shortly after he arrived at the scene, Appellant was

transported to the hospital by some paramedics.            Soto subsequently met

Appe llant at the hos pital and a sked h im to take a blood a lcohol tes t. W h en

Appellant refused, Soto asked him whether he had been drinking. Appellant then

responded, “You know me.” Appellant then stated that he ha d fallen aslee p while

he was driving his vehicle.



       Soto testified that he did not ask Appellant to take a breath test for alcohol

because the breathalyser was at the Williamson Coun ty Jail and Appe llant co uld

not be transported there because of his medical condition. Soto also testified that

he did not have A ppellant perform any field so briety tests because Appellant was

injured. Soto ad mitted tha t he could not be su re wheth er App ellant’s slurred

speec h and b ehavior w ere due to intoxication or to injury.

                                         -3-
      Nancy Steagal testified that she was one of the paramedics who treated

Appellant at the s cene of the a ccident.         Wh en Stea gal ma de con tact with

Appellant, he complained of pain in his back, neck, wrist, and knee. Steagal

observed that Appellant’s words were not plain and sounded “sluggish.” Steagal

also noticed that an odor of alcohol was coming from the car and the odor

became stronge r when s he app roache d Appe llant. Steag al also testified that

Appellant was awake, alert, and oriented; he denied drinking alcohol and stated

that he ha d fallen as leep at the wheel.



      Doctor Paul H agan te stified that he was the emergency room physician

who treated Appe llant when Ap pellant was bro ught to the hos pital. Whe n Dr.

Hagan made contact with Appellant, Appellant complained of pain in his cheek,

jaw, left knee, and right arm. Other than the pain in his cheek and jaw, Appellant

made no other complaint of any head injury. Dr. Hagan observed that Appellant

had a strong odor of alcohol on his person and had slu rred speech and other

sympto ms of into xication su ch as ny stagm us of the e yes.



      Dr. Hagan testified that the radiology report indicated that Appellant had

suffered an injury to the head. Dr. Hagan then acknowledged that nystagmus

could be caused by a head injury, but he stated that he had never seen the type

of nystagmus that Appellant had in a head injury ca se. Dr . Hag an sta ted tha t in

his opinion, a patient with nystagmus similar to that o f Appe llant wo uld us ually be

uncon scious.




                                            -4-
                                         II. SEVERANCE




        Appellant contends tha t he was prejud iced by the late severance of the

charge for driving under the influence from the charge for driving on a revoked

license. We find otherwise.



        The record indicates that after the trial court informed the jury about the

nature of the case, a jury-out hearing was conducted. During this hearing, the

court granted Ap pellant’s motion to s ever the two ch arges.                         W hen the jury

returned, the court instructed th e jury that this case on ly involved a charge for

driving under the influence. The court further instructed the jury that they sh ould

disrega rd the se cond c harge.



        W e conclude that Appellant has failed to show that he was prejudiced by

the late severance of the charges. The record indicates that the charges were

severed before any evidence was introduced about the charge of driving on a

revoked license. Further, the trial cou rt clearly instructed the jury that it shou ld

only be concerned with the charge o f driving un der the influen ce an d it sho uld

disregard the other charge . “It is well-establish ed that juro rs are pre sume d to

follow the instructions given by the trial judge.” State v. Cribbs, 967 S.W.2d 773,

784 (Tenn. 1998). See also State v. Math is, 969 S.W.2d 418, 422 (Tenn. Crim.

App. 19 97). Th is issue ha s no m erit. 1




        1
           However, we do caution trial courts that motions to sever offenses for trial should be resolved
prior to the com me nce me nt of tr ial and the im pan elling o f the ju ry.

                                                   -5-
                           III. UNDISCLOSED WITNESS




       Appellant contends that the trial cou rt abus ed its d iscretio n whe n it allowed

a witness to testify who had not been disclosed to the defense until the day of

trial. We again must disagree.



       The record indicates that the State failed to include Nancy Steagal’s name

on the indictment as required by Tennessee Code Annotated section 40-17-106,

which provides:

       It is the duty of the district attorney general to endorse on each indictment
       or presentment, at the term at which the same is found, the names of such
       witnesses as the district attorn ey gen eral inte nds s hall be sum mon ed in
       the cause, and sign such indictment or presentment name thereto.

Tenn. Code Ann. 40-17-106 (1997). However, it is well-established that the du ty

created by this statute is mere ly directory, not mand atory. State v. Harris , 839

S.W.2d 54, 69 (Ten n. 1992 ); State v. Kendricks, 947 S.W.2d 875, 947 (Tenn.

Crim. App. 1996).       The State’s failure to include a witness’ name on the

indictment will not a utom atically disqualify the witness fro m testifying . Harris , 839

S.W.2d at 69; Kendricks, 947 S.W .2d at 947 . Rather, a defendant will be entitled

to relief for non disclosu re only if he o r she can demo nstrate prejudice, bad faith,

or undue advanta ge. Harris , 839 S.W .2d at 69; Kendricks, 947 S.W.2d at 947.

The determination of whether to allow the witness to testify is left to the sound

discretion of the trial cou rt. Kendricks, 947 S.W .2d at 947 ; State v. Underwood,

669 S.W .2d 700 , 703 (T enn. C rim. App . 1984).



       Here, Appellant has not even alleged that the State acted in bad faith or

had an undue advantage because of the failu re to dis close Steag al’s iden tity until


                                           -6-
the da y of trial. Indeed, neither of these allegations would be supported by the

record. Further, a lthough Appellant complains that he was “completely surprised”

by Steagal’s presence as a witness, he has failed to indicate how he was

prejudiced by that surprise. Indeed, the record indicates that wh en Ap pellan t’s

counsel informed the trial court that he had not previously been notified that

Steagal would be a w itness, the court gave him an opportunity to interview

Steagal before she testified and he took advanta ge of that oppo rtunity. Further,

Appe llant’s counsel subsequently conducted a very able cross-examination of

Steag al. In this case , Appellant has simply failed to indicate anything that he

could or wou ld have done differen tly if he had known abou t Steag al earlie r. This

issue ha s no m erit.



                        IV. SUFFICIENCY OF THE EVIDENCE




      Appellant contends that the evidence was insufficient to supp ort his

conviction for driving under the influence of an intoxicant. We disagree.



      When an a ppellant challenges the sufficiency of the evidence , this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and re place s it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to

demo nstrate the insufficie ncy of the convicting eviden ce. Id. On appeal, “the

                                         -7-
[S]tate is entitled to th e strong est legitimate view of the evid ence as we ll as all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is wh ether an y rational trier o f fact could have found the

accused guilty of every element of the offense beyond a reason able do ubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). In conducting our evaluation of the convicting evidenc e, this C ourt is

precluded from rew eighing o r recons idering the evidenc e. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996).               Moreover, this Court may not

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

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure

provides, “finding s of gu ilt in criminal actions wheth er by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       In order to establish that Appellant had committed the offense at issue

here, the Sta te was require d to pro ve that A ppella nt drov e his ve hicle o n a pu blic

street while he w as “[u]nd er the influe nce of an y intoxicant, marijuana, narco tic

drug, or drug producing stimulating effects on the central nervous system.” Tenn.

Code Ann. § 55-10-401(a)(1) (1998). Appellant concedes that the State proved

that he operated his vehicle on a public street. However, Appellant contends that

the State did not prove that he was under the influence of an intoxicant (alcoh ol)

when he did so.




                                            -8-
      Appellant basically argues th at because the case is circum stantial, the jury

could not have found that the facts presented excluded eve ry other re ason able

theory or hypothesis except that of guilt. Specifically, Appellant argues that the

jury could have a ccepted his the ory that his slurred spe ech and n ystagmus were

actually caused by his head injury rather than intoxication. It is true that where

the eviden ce is en tirely circumstan tial, the eviden ce mu st allow the jury to

exclude every othe r reason able theo ry or hypo thesis exc ept that of g uilt. State

v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). Of course, “[l]ike all other

fact ques tions, th e dete rmina tion of w hethe r all reas onab le theo ries or

hypothese s are excluded by the evidence is primarily a jury question.” Id.



      W e conclude that the evidence, when viewed in the light most fav orable to

the State, was sufficient for a rationa l jury to exclude Appellant’s theory and find

beyond a reas onab le doubt that Appellant had committed the offense of driving

under the influence of an intoxicant. The evidence showed that Appellant was

involved in a single vehicle accident in which he drove his car off the road and

into a flowerpot and light pole. Further, Soto testified that he found a beer can

in Appella nt’s car. Soto and Steagal both testified that there was an odor of

alcohol comin g from A ppellant’s car. Soto, Steagal, and Hagan all testified that

they could smell alcohol on Appellant’s person. Aloy, Soto, Hagan, and Steagal

all described Appellant’s speech as either slurred or sluggish and Aloy testified

that Appellant was only sem i-conscio us and had difficu lty answering questions.

Soto testified that Appellant had red, gla ssy eyes.       Dr. Hagan testified that

Appellant had nystagmus of the eyes, which was consistent with intoxication.

Although Dr. Hagan testified that nystagmus could be caused by a head injury,

he also testified that Appellant’s head injuries did not appear to be serious and

                                         -9-
further, he had never seen Appellant’s type of nystagmus in a head injury case.

Dr. Hagan also stated that someone with Appellant’s type of nys tagm us wo uld

usua lly be unconscious. When Soto asked Appellant to take a blood alc ohol test,

Appellant refused. Finally, when Soto asked Appellant whether he had been

drinking, A ppellant re spond ed, “You know m e.”



      In this cas e, App ellant e ssen tially asks us to reconsider the evidence and

substitute a verdict of n ot guilty in exc hange for the verdict found by the jury.

That is not our function. Instead, we conclude that a rational jury could have

found beyond a re asonable doubt that Appellant had committed the offense of

driving unde r the influ ence of an in toxicant. See Tenn. R . App. P . 13(e) . This

issue ha s no m erit.



                        V. PROSECUTORIAL MISCONDUCT




      Appellant conte nds th at he w as de nied a fair trial when the prosecutor

referred to him as a “clown” during his closing argument. We disagree.



       The record indicates that during his closing argument, the prosecutor made

the followin g com ment:

       Now we ca n talk a ll day ab out wh at evide nce is c ircum stantia l and w hat’s
       direct. I s ubm it that there is a great deal of direct evidence. T he officers
       saw the accid ent. They’re standing right across the street fro m it wh en this
       clown, driving and saying that he went to sleep, drives right into a lamp
       post at 1:30 or so in the morning and then states, although everyone who
       testified smelled alcohol, that he hadn’t been drinking. And he refuses a
       test.




                                         -10-
W hile we agree w ith Appellant that the re ference to him as a “clown” was

undoubta bly improper, we conclude that Appellant is not entitled to a new trial

becau se of it.



       “Wh ere argument is found to be improper the established test for

determining whether there is reversible error is whether the improper conduct

could have affected the verdict to the prejudice o f the defendan t.” State v.

Cauthern , 967 S.W.2d 726, 737 (Tenn. 1998) (citation and internal quotations

omitted). There are five factors th at mu st be e xamin ed in o rder to mak e this

determination: 1) the con duct com plained o f, viewed in ligh t of the facts and

circumstances of the case; 2) the curative measures und ertaken by the c ourt

and the prosecution; 3) the intent of the prosecutor in making the im proper

statem ent; 4) the cumulative effect of the imprope r conduct an d any other erro rs

in the record; and 5) the relative strength or weakn ess of the case. Id. (citations

omitted).



       Initially, we note that Appellant waived this issue by filing to make a

contemporaneous objection at trial. State v. Keen, 926 S.W.2d 727, 736 (Tenn.

1994); State v. Green, 947 S.W .2d 186, 188 (Tenn. Crim. App. 19 97); State v.

Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). How ever, we conclude that

Appellant is not entitled to relief even on the merits.         First, the conduct

complained of, when viewed in light of the facts and circumstances of the case,

indicates that the jury w ould no t have been prejudiced b y the use of the term

“clown.” The prosecutor’s use of the term “clown” was only an isolated incident

and it was far less inflamm atory than other co mm ents that the Tennessee

Supreme Court has found to be harmless error. See Cauthern , 967 S.W.2d at

                                        -11-
736–38 (prosecutor’s refere nce to defen dant as “the evil one” was harmless

error); State v. Bates, 804 S.W.2d 868, 881 (Tenn. 1991) (prosecutor’s two

references to d efendant as a “rabid dog” we re harmless errors); State v. Miller,

771 S.W.2d 401, 405 (Tenn. 1989) (prosecutor’s reference to defendant as

“perverted” was harm less error). Second, although no curative mea sures were

taken by the trial court or the prosecution, this was primarily because the defense

failed to object. Third, it appears that the intent of the prosecutor was to point out

the inconsistencies between the defense theory of the case and the evidence that

was presented at trial. Fourth, the cumulative effect of this error and any other

errors was not sufficient to deny Appellant a fair trial. Fifth, the State’s case was

fairly strong. Under these circumstances, we conclude that th e pros ecuto r’s

improper comment did not affect the verdict to the prejudice of the defe ndant.

This issu e has n o merit.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




                                         -12-
