         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 20, 2005 Session

                    STATE OF TENNESSEE v. DONTE COLLINS

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 2003-T-251 Monte Watkins, Judge



                   No. M2004-02564-CCA-R3-CD - Filed December 12, 2005



The Defendant, Donte Collins, was convicted of driving under the influence (“DUI”) and DUI per
se. The trial court found that the Defendant had three previous DUI convictions and sentenced him
for DUI, fourth offense, a Class E felony. The Defendant now appeals, contending that: (1) that the
evidence contained in the record is insufficient to sustain his convictions for DUI and DUI per se;
(2) the trial court erred when it allowed a police officer to testify about “clues” he gleaned from field
sobriety tests because that was improper scientific testimony; (3) the trial court erred when it allowed
the State to impeach the Defendant with his prior conviction for “a felony involving theft”; and (4)
the trial court erred when it instructed the jury that it could infer that the Defendant was intoxicated
based solely on his blood alcohol level. Finding no reversible error, we affirm the judgments of the
trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Jeffrey A. Devasher, Nashville, Tennessee (on appeal) and Richard Tennent, Nashville, Tennessee
(at trial) for the Appellant, Donte L. Collins.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Kristen Shea, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                                               I. Facts

      This case arises from the Defendant’s conviction for DUI and DUI per se. At the
Defendant’s trial, the following evidence was presented: Phillip Martin testified that he was driving
on Dickerson Road in Nashville during the evening of November 27, 2002, when he was struck from
behind by another car as he was slowing down approaching a red traffic light. Martin stated that the
Defendant rear-ended a car, causing it to rear-end Martin’s car. He said that the Defendant’s car
appeared to have swerved in an unsuccessful attempt to avoid rear-ending the car directly in front
of the Defendant’s car. Martin noted that the front end of the Defendant’s car was damaged, and that
the Defendant’s car had come to a stop on the sidewalk. He testified that the Defendant then got out
of his car and ran down the street, “with a bunch of beer in his hand,” without speaking to either of
the other drivers involved in the accident. Martin added that there was a young girl in the car with
the Defendant at the time of the incident, and she initially stayed in the car after the Defendant left
but eventually went down the street after him. He testified that the Defendant and the girl returned
after about five minutes, and the Defendant was no longer carrying the beer.

        On cross-examination, Martin testified that he did not observe the Defendant having trouble
walking or running at any point during the course of the incident. He further testified that, although
he recalled seeing the Defendant running down the street with a six-pack of beer, he was uncertain
whether he informed the police that the Defendant was carrying beer when Martin gave his statement
to the officer at the scene.

         Officer Michael Wilson of the Metro-Nashville Police Department testified that, when he
arrived at the scene of the accident, he smelled alcohol on the Defendant, and the Defendant admitted
drinking two beers earlier in the afternoon. Officer Wilson further stated that the Defendant’s eyes
were bloodshot and watery, leading him to believe that the Defendant may have been intoxicated.
Furthermore, Officer Wilson testified that the Defendant was “quiet,” which he attributed to the
Defendant not wanting to speak with him, because the Defendant may have been afraid that the
officer would smell alcohol on his breath. The officer also said that he administered a field sobriety
test, in which the Defendant was asked to walk in a straight line, touching his heel to his toe on each
step for a specified number of steps. According to Officer Wilson, the Defendant was able to walk
in a straight line and took the appropriate number of steps, but was unable to consistently touch his
heel to his toes.

        Officer Wilson testified that he administered a second field sobriety test in which he
instructed the Defendant to stand on one leg, with his other leg raised so that his foot was six inches
off the ground, while keeping his arms at his sides and counting to thirty. He stated that the
Defendant successfully counted to thirty and was able to keep his arms at his sides, but he was
unable to keep his raised foot from touching the ground. Officer Wilson said that he then placed the
Defendant under arrest for DUI, based upon the Defendant’s inability to pass the field sobriety tests.
Officer Wilson testified that he then brought the Defendant to the police station for booking and
called for a technician to administer a breath alcohol test (“BAT”).

        On cross-examination, Officer Wilson testified that his police report did not note that the
Defendant had blood-shot, watery eyes, or that the Defendant was quiet. Officer Wilson testified
that on his police report he marked a box labeled “slight” referring to the effect that the alcohol was
having upon the Defendant. The officer then testified that, although both of the other drivers


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involved in the incident mentioned seeing the Defendant leave the scene with a six-pack of beer
immediately following the accident, the officer neither marked this down in his police report nor did
he question the Defendant about the beer. The officer also stated that the Defendant was cooperative
during the incident.

        Veronica Mayes, a civilian employee with the Metro-Nashville Police Department, testified
that on November 27, 2002, she administered a BAT to the Defendant. Mayes stated that the test
showed that the Defendant had a blood alcohol level of .12.

         The Defendant testified on his own behalf, stating that, although he had consumed two beers
earlier in the afternoon on the day of this accident, between three-thirty and four p.m., he was in fact
sober at the time of the incident, which took place around five-thirty p.m. The Defendant further
testified that, in the afternoon, his sister called him and asked him to watch her daughter while she
went to her boyfriend’s house to pick up some personal property. The Defendant stated that, while
watching his niece, his sister called him, said she was arguing with her boyfriend, and asked the
Defendant to pick her up. The Defendant said that he brought his niece with him because she knew
how to get to the boyfriend’s house, and the Defendant did not. The Defendant testified that,
although he did leave the scene of the accident, he had no beer with him, and he left to call his
niece’s father because she was upset. The Defendant further stated that he was never confronted by
any of the witnesses or by Officer Wilson regarding the assertions that he had left his niece behind
at the scene of the accident and that he had left the scene with a six-pack of beer.

       Based on this evidence, the jury found the Defendant guilty of DUI and DUI per se.

                                             II. Analysis

         On appeal, the Defendant asserts that: (1) the evidence contained in the record was
insufficient to sustain his convictions of DUI and DUI per se; (2) the trial court erred when it allowed
a police officer to testify about “clues” he gleaned from field sobriety tests because that was
improper scientific testimony; (3) the trial court erred when it allowed the State to impeach the
Defendant with his prior conviction for “a felony involving theft”; and (4) the trial court erred when
it instructed the jury that it could infer that the Defendant was intoxicated based solely on his blood
alcohol level.

                                  A. Sufficiency of the Evidence

        The Defendant alleges that there is insufficient evidence in the record to support his DUI
conviction. When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering 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.
Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.


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Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859. This Court
must afford the State of Tennessee the strongest legitimate view of the evidence contained in the
record, as well as all reasonable inferences which may be drawn from the evidence. Goodwin, 143
S.W.3d at 775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt
against a defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally insufficient
to sustain a guilty verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

         Under Tennessee law, to support a conviction for DUI, the State is required to prove, beyond
a reasonable doubt, that the Defendant was driving or “in physical control of any automobile or other
motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys
. . . while . . . [u]nder the influence of any intoxicant . . . .” Tenn. Code Ann. § 55-10-401(a)(1)
(2004); State v. Butler, 108 S.W.3d 845 (Tenn. 2003). DUI per se is established when the State
proves beyond a reasonable doubt that the Defendant was driving or “in physical control of any
automobile or other motor driven vehicle on any of the public roads and highways of the state, or
on any streets or alleys . . . while . . . [t]he alcohol concentration in such person’s blood or breath is
eight-hundredths of one percent (.08 %) or more.” Tenn. Code Ann. § 55-10-401(a)(2). A criminal
offense may be established exclusively by circumstantial evidence. State v. Raines, 882 S.W.2d 376,
380 (Tenn. Crim. App. 1994) (citing State v. Hailey, 658 S.W.2d 547, 552 (Tenn. Crim. App.
1983)). However, before an accused can be convicted of a criminal offense based on circumstantial
evidence alone, the facts and circumstances “must be so strong and cogent as to exclude every other
reasonable hypothesis save the guilt of the defendant . . . .” Id. (citing State v. Crawford, 470 S.W.2d
610, 612 (Tenn. 1971)). In other words, “[a] web of guilt must be woven around the defendant from
which he cannot escape and from which facts and circumstances the jury could draw no other
reasonable inference save the guilt of the defendant beyond a reasonable doubt.” Id. (citing
Crawford, 470 S.W.2d at 613). We note that this Court has often found that an arresting officer’s
testimony alone is sufficient to support a defendant’s conviction for DUI. See, e.g. State v. Vasser,
870 S.W.2d 543, 544 (Tenn. Crim. App. 1993).

         In the case under submission, elements one and two, that the Defendant was driving a motor
vehicle, and on a public road, are uncontroverted. The Defendant contends in his brief that there was
insufficient evidence presented to prove element three, that he was under the influence of an
intoxicant. We disagree. Viewing the evidence in the light most favorable to the State, it established
that the police responded to an accident involving the Defendant, and upon arriving at the scene the
police questioned the Defendant, who smelled of alcohol and admitted that he had been drinking
earlier in the day. The police officer on the scene subsequently administered two separate field


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sobriety tests, neither of which the Defendant completed successfully. Thereafter, the Defendant was
placed under arrest and given a BAT, which BAT showed that his blood alcohol content was .12,
above the legal limit. We conclude that this evidence is sufficient for a rational trier of fact to find
the essential elements of DUI and DUI per se beyond a reasonable doubt.

                                    B. Expert Witness Testimony

        The Defendant next claims that the trial court erred when it allowed Officer Wilson to testify
about “clues” that he gleaned from the field sobriety tests that he administered to the Defendant.
Specifically, the Defendant asserts that Officer Wilson’s testimony about “clues” exceeded the
bounds of what a layperson may testify about and constituted improper expert testimony. The record
evinces that, at trial, the State called Officer Wilson to testify about his observations during the field
sobriety tests that he administered to the Defendant. His testimony included the following exchange:

        Prosecutor: Have you had a moment to look at [the DUI test report] and refresh your
        recollection?
        Officer Wilson: Yes, ma’am.
        Prosecutor: Okay. What kind of clues, if any, did you see when he performed that
        test?
        Officer Wilson: He missed touching his toe to his heel on the first nine steps, as well
        as the second nine steps. And he stepped off the line on both paths, both paths of
        travel, both forwards and back.
        Prosecutor: Okay. Let me ask you this question: Do you have to touch your heel to
        toe all nine times to do it correctly?
        Officer Wilson: Yes. That’s required.
        Prosecutor: Do you have to do it - - if you don’t touch your toes, one, two, three, four,
        five times on your first pass, how many clues is that?
        Officer Wilson: That’s one clue.
        Prosecutor: You don’t get a clue for every time you miss your heel to toe?
        Officer Wilson: No.
        Prosecutor: If you don’t touch your heel to toe on the second nine steps, no matter
        how many times you don’t do it, how many clues is that?
        Officer Wilson: That’s another clue. So, that would be clue two.
        Prosecutor: How may clues all together did you see - -

         At this point the Defendant objected to the testimony as being improper expert testimony.
The Defendant contended that allowing Officer Wilson to testify about the “clues” he saw gave the
jury the impression that the field sobriety tests were being “scored” and that the officer should only
be allowed to testify about what he observed. In pertinent part, defense counsel stated that “I thought
the proper thing was just to say what [the Defendant] did and leave it up to the jury to draw their
own conclusions. But, talking about clues sounds like we’re getting into him having a score, and
I think that’s not proper.” The trial court ruled that the officer could testify about his observations
but not to any scientific opinions or conclusions. When testimony resumed, the State continued to


                                                   -5-
probe Officer Wilson about the “clues” he gathered:

       Prosecutor: And based on his demonstration, or his exhibition of those clues, what
       then, in your training are you required to do?
       Officer Wilson: With those clues?
       Prosecutor: Yes.
       Officer Wilson: Well, with those, I place him under arrest, believing that he was
       under the influence of an intoxicant, namely alcohol.

         According to the Tennessee Rules of Evidence, if scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise. Tenn. R. Evid. 702. Evidence constitutes “scientific,
technical, or other specialized knowledge” if it concerns a matter that “the average juror would not
know, as a matter of course . . . .” State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996).

         With the exception of the horizontal gaze nystagmus (“HGN”) sobriety test, field sobriety
tests are not scientific tests requiring testimony of a qualified expert pursuant to Tennessee Rule of
Evidence 702. See State v. Murphy, 953 S.W.2d 200, 202-03 (Tenn. 1997); State v. Gilbert, 751
S.W.2d 454, 459 (Tenn. Crim. App. 1988) (holding that “field sobriety tests are not ‘scientific tests;,
and the admissibility of the results is not to be governed by rules pertaining to the admission of
scientific evidence”). In Murphy, the Tennessee Supreme Court addressed wither the HGN sobriety
test constitutes “scientific, technical, or other specialized knowledge” under evidentiary Rule 702.
Murphy, 953 S.W.2d at 202. The defendant in that case had been convicted based primarily on the
results of a HGN test, which were described to the jury by the arresting officer. Id. The trial court
held that the HGN test results did not constitute scientific results. Id. The Murphy Court reversed,
concluding that the “HGN test does differ fundamentally from other field sobriety tests because the
witness must necessarily explain the underlying scientific basis of the test in order for the testimony
to be meaningful to a jury.” Id. at 202. The Court went on to say in dicta that:

       Other tests, in marked contrast, carry no such requirement. For example, if a police
       officer testifies that the defendant was unable to walk a straight line or stand on one
       foot or count backwards, a jury needs no further explanation of why such testimony
       is relevant to or probative on the issue of the defendant’s condition. A juror can rely
       upon his or her personal experience or otherwise obtained knowledge of the effects
       of alcohol upon one’s motor and mental skills to evaluate and weigh the officer’s
       testimony.

Id. at 202-03.

        This Court addressed whether an officer’s testimony that the presence of three or more
“clues” indicates a blood alcohol content of .10% or higher crossed the line into scientific testimony
in State v. William Thomas Jankowski, No. 03C01-9503-CR-00100, 1995 WL 686121 (Tenn. Crim.


                                                 -6-
App., at Knoxville, Nov. 15, 1995), perm. app. denied (Tenn. Apr. 1, 1996). In Jankowski, two
police officers testified about “clues” gleaned from field sobriety tests and how those clues
contributed to a determination that the appellant’s blood alcohol content was .10 or higher. The
Court summarized the facts before it stating:

       Officer Lilley testified that on the first test, the Walk and Turn test, he looked for 13
       clues, that the presence of two or more clues indicates that the appellant’s blood
       alcohol content is .10 or higher, and that the appellant exhibited seven clues. He only
       described one of these clues: the appellant overstepped “on the turn-around place,”
       and the officer had to “grab” him. He further testified that the presence of three or
       more clues on the second test, the One Leg Stand, indicates a blood alcohol content
       of .10 or higher, and the appellant exhibited six clues.

Id. at *1. The Jankowski Court held, “When Officers Lilley and Ottinger went beyond observations
of the appellant’s performance and drew conclusions from their observations that the appellant’s
blood alcohol content was.10 or higher, this testimony took us into the area of scientific evidence.”
Id. at *2.

         Unlike Jankowski, the officer in this case did not testify that any specific number of “clues”
indicated the blood alcohol content of the Defendant, and, rather, his testimony was limited to the
“clues” that he observed while the Defendant was performing the field sobriety tests. We have found
multiple other cases where the facts indicated that a police officer testified about “clues” in the
context of a field sobriety test, see e.g., State v. Danny Joe Wright, No. W2003-01025-CCA-R3-CD,
2004 WL 1813220, at *1 (Tenn. Crim. App., at Jackson, Aug. 12, 2004), no Tenn. R. App. P. 11
application filed, and some cases that indicated that the National Highway Transportation & Safety
Administration has determined that a suspect who evinces two or more clues for either filed sobriety
test can be considered too intoxicated to lawfully drive, see e.g., State v. Zane Allen Davis, Jr., No.
M2000-00737-CCA-R3-CD, 2000WL 1879518, at * 2 (Tenn. Crim. App., at Nashville, Dec. 28,
2000), no. Tenn. R. App. P. 11 application filed. However, none of those cases addressed whether
this testimony was proper. In fact, we have found no case in this state that has addressed whether
testimony by an officer about “clues” alone takes us into the area of scientific evidence. Therefore,
as this is a case of first impression, we turn to decide whether Officer Wilson’s testimony about
“clues” was improper.

        The word “clue” is a layman’s term, and not a term of art with special significance in the
scientific community. To the contrary, Black’s Law Dictionary gives a very general and rather
equivocated definition of the word “clue,” defining it as “Suggestion or piece of evidence which may
or may not lead to solution of crime or puzzle.” BLACK ’S LAW DICTIONARY 256 (6th ed. 1990).
Nothing in our understanding of the word “clue” suggests to us that its unqualified use in a police
officer’s testimony will be seen as positing a scientific or technical explanation for what the officer
observed or how it may correlate with blood alcohol content. Accordingly, we conclude in this case
that Officer Wilson’s testimony did not put forth any scientific or quantitative analysis. Unlike the
testimony offered by the officers in Jankowski, Officer Wilson did not set a specific number of clues


                                                 -7-
required to determine intoxication, and additionally, he made no statement regarding the correlation
between the clues he observed and the Defendant’s blood alcohol level. The fact that Officer Wilson
used the word “clue” in describing the observed behavior does not make the testimony scientific in
nature. While it may be a better practice for an officer to refrain from using the word “clues” when
testifying about field sobriety tests, we hold that, in this case, Officer Wilson’s testimony did not
cross into the area of scientific evidence.

        Further, even if Officer Wilson’s testimony had been improper, review of this issue is
governed by Rule 52 of the Tennessee Rules of Criminal Procedure, which states that, “No judgment
of conviction shall be reversed on appeal except for errors which affirmatively appear to have
affected the result of the trial on the merits.” Further, Tennessee Rule of Appellate Procedure 36
provides, “(b) Effect of Error. A final judgment from which relief is available or otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a substantial
right more probably than not affected the judgment or would result in prejudice to the judicial
process.” Applying this standard and in light of the strength of the evidence presented against the
Defendant, we conclude that he suffered no prejudice from the officer’s testimony regarding “clues”
observed in the course of administering the field sobriety tests. Thus, the Defendant’s conviction
cannot be overturned on the ground that the trial court erred in allowing the State to portray a
prosecution witness as an expert in the interpretation of field sobriety tests.

                     C. Impeachment with a “Prior Felony Involving Theft”
                                1. Prior Felony Convictions

         The Defendant asserts that the trial court erred when it allowed the State to impeach him
using his prior conviction for aggravated robbery. Prior to trial, the Defendant filed a motion in
limine to prohibit the State from questioning him about his prior conviction. The trial court
considered the motion and held that because aggravated robbery is primarily a crime of violence, its
probative value is outweighed by its prejudicial effect. Before the Defendant testified, the State
asked the trial court to reconsider the matter, and the trial court, reversing its earlier decision, ruled
that the State could impeach the Defendant with his prior aggravated robbery conviction by referring
to that conviction as “a felony involving theft.” The Defendant asserts on appeal that this ruling by
the trial court constitutes reversible error.

        As a preliminary matter, we note that the admissibility of evidence is a question generally
within the trial court’s discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.
1992). “When arriving at a determination to admit or exclude even that evidence which is
considered relevant trial courts are generally accorded a wide degree of latitude and will only be
overturned on appeal where there is a showing of abuse of discretion.” Id. A trial court’s ruling
under Tennessee Rule of Evidence 609 will not be reversed absent an abuse of discretion. Johnson
v. State, 596 S.W.2d 97, 104 (Tenn. Crim. App. 1979). A trial court abuses its discretion in this
regard only when it “‘applie[s] an incorrect legal standard, or reache[s] a decision which is against
logic or reasoning that cause[s] an injustice to the party complaining.’” State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).


                                                   -8-
        Pursuant to Rule 609, Tennessee Rules of Evidence, the credibility of the defendant may be
attacked by presenting evidence of prior convictions if certain conditions are met. First, the State
must give reasonable pretrial notice of the impeaching convictions. Tenn. R. Evid. 609(a)(3).
Second, the convictions must be punishable by death or imprisonment over one year or must involve
a crime of dishonesty or a false statement. Tenn. R. Evid. 609(a)(2). Third, less than ten years must
have elapsed between the defendant’s release from confinement on the prior conviction and the
commencement of the instant prosecution. Tenn. R. Evid. 609(b). Finally, the impeaching
conviction’s probative value on credibility must outweigh its unfair prejudice. Tenn. R. Evid.
609(a)(3).

        In determining whether the probative value of a prior conviction on the issue of credibility
outweighs its unfair prejudicial effect on the substantive issues, a trial court should consider the
similarity between the crime in question and the underlying impeaching conviction, as well as the
relevance of the impeaching conviction with respect to credibility. State v. Waller, 118 S.W.3d 368,
371 (Tenn. 2003). The fact that a prior conviction involves the same or similar crime for which the
defendant is being tried does not automatically require its exclusion. State v. Baker, 956 S.W.2d 8,
15 (Tenn. Crim. App. 1997); State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim. App. 1987).
However, if “the prior conviction and instant offense are similar in nature the possible prejudicial
effect increases greatly and should be more carefully scrutinized.” Long v. State, 607 S.W.2d 482,
486 (Tenn. Crim. App. 1980). A trial court should first analyze whether the impeaching conviction
is relevant to the issue of credibility. Waller, 118 S.W.3d at 371. Rule 609 of the Tennessee Rules
of Evidence suggests that the commission of any felony is “generally probative” of a criminal
defendant’s credibility. Id. However, the Tennessee Supreme Court has rejected a per se rule that
permits impeachment by any and all felony convictions. State v. Mixon, 983 S.W.2d 661, 674
(Tenn. 1999). A prior felony conviction still must be analyzed to determine whether it is sufficiently
probative of credibility to outweigh any unfair prejudicial effect it may have on the substantive issues
of the case. Waller, 118 S.W.3d at 371. To determine how probative a felony conviction is to the
issue of credibility, the trial court must assess whether the felony offense involves dishonesty or a
false statement. Id.

        Robbery and theft offenses are crimes of dishonesty. See State v. Galmore, 994 S.W.2d 120,
122 (Tenn. 1999) (providing that robbery is a crime of dishonesty); Baker, 956 S.W.2d at 15
(providing that theft is a crime of dishonesty). Therefore, they are highly probative as to credibility.
State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993).

       In this case, the Defendant asserts that the trial court improperly allowed the State to impeach
him with an “unnamed” felony. This Court has previously held that the practice of allowing
impeachment via an unnamed felony conviction is unfairly prejudicial, because it allows the jury to
unnecessarily speculate as to the type of felony actually committed. See State v. Barnard, 899
S.W.2d 617, 622 (Tenn. Crim. App. 1994). Subsequently, the Tennessee Supreme Court has cited
Barnard approvingly, adding that “the proper application of the balancing test under Tennessee Rule
of Evidence 609(a)(3) requires identification of the prior conviction.” Galmore, 994 S.W.2d at 122.
The Galmore Court went on to state, “instructing the jury on an unnamed felony would provide


                                                  -9-
inadequate information for a jury to properly weigh the conviction’s probative value as impeaching
evidence.” Id.

        The State asserts that by referring to the aggravated robbery conviction as a “felony involving
theft,” any prejudice resulting from the jury speculating as to the nature of the crime was greatly
reduced. In support of this contention, the State argues that the case under submission is
distinguishable from State v. Taylor, 993 S.W.2d 33, 35 (Tenn. 1999), in which the trial court
allowed the State to impeach the defendant with a prior “felony involving dishonesty.” The Taylor
Court held that “[i]dentifying the nature of the prior conviction avoids confusion and speculation
on the part of the jury and permits the jury to properly evaluate the conviction’s probative value on
the issue of credibility.” (emphasis added). The Court concluded that “[t]he degree to which
impeaching conviction is probative of untruthfulness can vary with the nature of the offense, even
with felonies involving dishonesty” and went on to hold “that the offense must be identified to the
finder of fact when a prior conviction is used for impeachment purposes pursuant to Rule 609(a)(3).”
Id. at 35.

         We conclude that the case under submission is distinguishable from Taylor in that the trial
court required the State to refer to the Defendant’s prior conviction as a “felony involving theft.”
Aggravated robbery is a theft offense, and robbery is clearly probative of credibility. Galmore, 994
S.W.2d at 122. Further, a conviction for theft is clearly one that involves dishonesty and is highly
probative of credibility. Baker, 956 S.W.2d at 15. The trial court expressed its concern that the
aspect of violence of an aggravated robbery conviction might prejudice the jury against the
Defendant, and, to mitigate the prejudice, the trial court ordered the State to refer to the crime merely
as theft. We conclude that the trial court did not abuse its discretion in this regard. The Defendant
is, therefore, not entitled to relief on this issue.

                     2. Adequacy of the Trial Court’s Limiting Instruction

        The Defendant next contends that the trial court did not provide an adequate limiting
instruction about how the jury should consider his prior conviction. During the jury instructions, the
trial court failed to give a limiting instruction that a prior conviction could only be used to impeach
the Defendant and not as proof that he committed the crime in question. The Defendant contends
that the trial court committed reversible error by failing to provide the jury a limiting instruction.
The State counters that, although the trial court did not single out the issue of the Defendant’s prior
convictions in the instructions dealing with impeachment, the trial court did provide a general
impeachment instruction, and that the Defendant suffered no prejudice from the trial court’s failure
to give a limiting instruction specifically addressing the Defendant’s prior conviction. The State
further asserts that, because the Defendant did not request a specific limiting instruction and did not
raise this issue in his motion for a new trial, the issue is waived.

       Issues not raised before the trial court or in a motion for new trial are deemed waived. See
Tenn. R. App. P. 36(a). In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), the Tennessee Supreme
Court addressed the issue squarely before us. In that case, the defendant claimed that the trial court


                                                  -10-
did not adequately instruct the jury about how it could consider proof that the defendant had
committed other crimes. Id. at 254-55. The Court noted that the defendant failed to object to the
court’s omission of such instructions and failed to raise the issue in his motion for new trial. Id. It
went on to discuss the “fundamental error” rule set out in the previous decision of State v. Reece,
637 S.W.2d 858 (Tenn. 1982), stating:

                In State v. Reece, . . . this Court held that where the State’s case is weak and
       prior inconsistent statements admitted for impeachment are extremely damaging, the
       failure to give a limiting instruction that the statements are only to be considered on
       the issue of credibility may amount to fundamental error constituting grounds for
       reversal, even in the absence of a special request. Reece, 637 S.W.2d at 861. This
       holding, however, was “limited to those exceptional cases in which the impeaching
       testimony is extremely damaging, the need for a limiting instruction is apparent, and
       the failure to give it results in substantial prejudice to the rights of the accused.” Id.

Id. The Court continued:

               Our review of the record convinces us that the “fundamental error” rule of
       State v. Reece, . . . is not applicable to this case. See id. An important factor for the
       court in Reece, was the fact that the prior inconsistent statements used to impeach
       were so damaging that the failure to give a limiting instruction, in essence, allowed
       the jury to consider the impeachment evidence as substantive evidence, and thereby
       allowed inadmissible hearsay evidence to take precedence over testimony given
       under oath by the witness on the stand. In this case, the testimony about the
       defendant’s other crimes was relevant to his guilt, and no hearsay problems were
       involved.

       Accordingly, although there is a significant possibility of misuse with testimony
       about a defendant’s commission of other crimes, and limiting instructions are critical
       in preventing improper and prejudicial use of proof of other crimes, see, e.g., State
       v. Fisher, 670 S.W.2d 232, 237 (Tenn. Crim. App. 1983), we conclude that the trial
       court did not commit reversible error in failing to give limiting instructions with
       respect to the proof of other crimes.

Id. The Court then held that the defendant “waived this issue by not requesting a limiting instruction
and by not raising the issue in his motion for a new trial, Tenn. R. App. P. 3(e), and the failure to
give limiting instructions was neither fundamental nor prejudicial error.” Id. (citing State v. West,
767 S.W.2d 387, 396 (Tenn. 1989)). The Court determined that “the blame for the failure to give
limiting instructions ‘must be laid at the defendant’s feet.’” Id. (citing Laird v. State, 565 S.W.2d
38, 40 (Tenn. Crim. App. 1978)).

       In the case under submission, we conclude that “fundamental error” rule of Reece, is not
applicable. As noted by the Howell Court, an important factor in Reece was the fact that the


                                                 -11-
impeachment evidence was so damaging that the failure to give the instruction allowed the jury to
consider the evidence as substantive evidence. In this case, the Defendant was being tried for DUI
and DUI per se, and he chose to testify on his own behalf. The trial court ruled that his credibility
could be impeached with his prior conviction for a “felony involving theft.” The testimony about
the Defendant’s prior felony theft conviction was relevant to the issue of his credibility, and the
admission of this evidence did not, in essence, allow the jury to consider the evidence as substantive
evidence of the Defendant’s guilt of DUI and DUI per se. Accordingly, we conclude that the
“fundamental error” rule in Reece is inapplicable and that the Defendant waived this issue by not
requesting a limiting instruction or raising this issue in his motion for new trial. Further, we hold
that the failure to give a limiting instruction was neither fundamental nor prejudicial error. The
Defendant is, therefore, not entitled to relief on this issue.

                       D. Instruction Regarding Inference of Intoxication

         The Defendant next asserts that the trial court erred in instructing the jury that it could infer
that the Defendant was intoxicated based upon his breath alcohol level. It is the Defendant’s
contention that when the jury instructions for the Defendant’s DUI and DUI per se charges are read
as a whole, they create an unconstitutional mandatory inference of guilt and that the jury could not
have found the Defendant guilty of one charge without also finding the Defendant guilty of the other
charge. The State contends that the case law does not support the Defendant’s contention and that
the trial court’s instructions were entirely proper.

       In addressing circumstantial evidence of intoxication based on a .10 blood alcohol level,
(now .08) this Court has previously stated that:

        [W]e interpret this state’s per se DUI statute, Tennessee Code Annotated §
        55-10-401(a)(2) [2003], to mean that the subsequently obtained test results are
        presumptive evidence of the blood alcohol concentration at the time of driving
        without the necessity of extrapolation. Reliable test results obtained within a
        reasonable time after the accused motorist is stopped, reflecting a .10% blood alcohol
        level, standing alone, constitute circumstantial evidence upon which the fact finder
        may, but is not required to, convict of per se DUI.

State v. Wilmore Hatfield, No. M2002-00939-CCA-R3-CD, 2003 WL 535930, *7 (Tenn. Crim.
App. 2003), rev’d on other grounds State v. Hatfield, 130 S.W.3d 40 (Tenn. 2004). Thus, it is clear
that a jury may interpret a .10 blood alcohol level as proof of intoxication, however, it is also free
to conclude otherwise.

        In the case under submission, the trial court instructed the jury as follows:

                 If you find from the proof that the defendant was found by means of a blood
        test to have ten-hundredths of one percent, point one-o percent or more by weight of
        alcohol in the defendant’s blood, you, the jury, are permitted to infer that the


                                                  -12-
        defendant was under the influence of such intoxicant, and that the defendant’s ability
        to drive was therefore impaired sufficiently to constitute a violation of the law against
        driving under the influence of alcohol.

                However, you are never required to make this inference.

         The jury instruction was entirely in accord with this Court’s ruling in Hatfield, stating that
if the jury found the Defendant’s blood alcohol level to be .10, the jury was at liberty to find that the
Defendant was under the influence of an intoxicant, but that they were not required to do so.
Therefore, we conclude that the jury instructions were not erroneous.

        With regard to the Defendant’s contention that, pursuant to the instructions given, if the jury
convicted on one count they had no choice but to convict on the other, we note that DUI and DUI
per se contain different elements. See Tenn. Code Ann. § 55-10-401(a)(1) & 401(a)(2). This Court
has held that an acquittal of either would not necessarily mean that the state could not establish the
elements of the other. State v. Conway, 77 S.W.3d 213, 218 (Tenn. Crim. App. 2001).

        In Conway, the defendant was charged with DUI and DUI per se. Id. Ultimately, the jury
acquitted the defendant of DUI, while finding him guilty of DUI per se. Id. In the case under
submission, while it is true that the jury could have inferred that the Defendant was in fact
intoxicated, based on his .12 blood alcohol level, thus, satisfying the third element of DUI per se,
the jury could also have discredited the State’s evidence that the Defendant had a blood alcohol level
of .12 and still found the Defendant guilty of DUI based upon the testimony of Officer Wilson and
Phillip Martin. Alternatively, the jury could have found the State’s evidence that the Defendant had
a blood alcohol level of .12 credible and found him guilty of DUI per se, without finding that the
defendant was under the influence of the intoxicant and thus, could have found the Defendant not
guilty of DUI. As such, we conclude that the jury instructions did not create an unconstitutional
mandatory inference of guilt, and we affirm the Defendant’s convictions.

                                           III. Conclusion

      In accordance with the foregoing, we conclude that there exists no reversible error in the
judgments of the trial court. Therefore, the judgments of the trial court are affirmed.


                                                         ____________________________________
                                                         ROBERT W. WEDEMEYER, JUDGE




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