           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                              AT KNOXVILLE                          August 17, 1999

                                                                Cecil Crowson, Jr.
                             JUNE 1999 SESSION                 Appellate C ourt
                                                                   Clerk




STATE OF TENNESSEE,                )
                                   )    C.C.A. NO. 03C01-9810-CR-00370
           Appellee,               )
                                   )    HAMILTON COUNTY
VS.                                )
                                   )    HON. DOUGLAS A. MEYER,
DANNY RAY DAVIS,                   )    JUDGE
                                   )
           Appellant.              )    (Driving Under the Influence)



FOR THE APPELLANT:                      FOR THE APPELLEE:


JOHNNY D. HOUSTON, JR.                  PAUL G. SUMMERS
Flatiron Bldg., Suite 402               Attorney General & Reporter
707 Georgia Ave.
Chattanooga, TN 37402-2048              ERIK W. DAAB
                                        Asst. Attorney General
                                        John Sevier Bldg.
                                        425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        WILLIAM H. COX
                                        District Attorney General

                                        PARKE MASTERSON
                                        Asst. District Attorney General
                                        600 Market St.
                                        Chattanooga, TN 37402




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              A jury convicted the defendant of driving under the influence (DUI), third

offense, and the defendant received an eleven month, twenty-nine day workhouse

sentence. He now appeals, arguing that the jury’s verdict is contrary to the weight of the

evidence and that the trial court denied his due process rights by not allowing him to

recall a State witness. Finding no merit to the defendant’s arguments, we affirm his

conviction.



              At trial, the State presented two witnesses, Officer Ezra Harris, the

investigating police officer, and Denise Lawson, a paramedic. Officer Harris testified he

responded to a dispatch of a motor vehicle accident in the early morning hours of

September 21, 1996. He testified that when he arrived at the scene, he saw a Toyota

Corolla registered in the defendant’s name that had crashed head-on into a tree.

According to Officer Harris, the windshield in front of the driver’s seat was stained with

blood and looked as if a person’s head had smashed against it. Officer Harris testified

that no individuals were at the scene, but he located the defendant and his brother-in-law,

James Carney, at a nearby house. According to Officer Harris, the defendant admitted

he was driving, and both he and Carney denied that anyone else was involved in the

accident. Upon Officer Harris’ request, the defendant gave him the car keys.



              A photograph of the defendant taken shortly after the accident reflects cuts

and wounds to his forehead and nose, and Officer Harris testified that the defendant had

blood on his face. According to Officer Harris, however, the defendant refused medical

treatment. Because the defendant smelled of alcohol, Officer Harris arrested him for DUI.

In Officer Harris’ opinion, the defendant was too intoxicated to drive, and a later breath

test revealed a blood alcohol content of .19%. On cross-examination, Officer Harris

testified that he had been trained to determine from a seat belt’s appearance whether it

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had been used during an accident and that in this case, it did not appear the defendant

was wearing his seatbelt. Officer Harris testified that even so, the defendant did not

appear to have any chest injuries caused by hitting the steering wheel.



              Denise Lawson, a paramedic, testified that she responded to the accident

scene. She testified that both the defendant and Carney claimed they were the only

individuals involved in the accident, but both also denied driving. According to Lawson,

the defendant indicated to her he had been drinking. Lawson confirmed that the

defendant refused medical treatment, but from talking with him, it did not appear to her

that he had any chest injuries. She also testified, however, that it was not unusual for

drunk drivers to escape injury in an accident because “their response is a little slower and

they don’t tend to brace themselves for the accident.”



              Several defense witnesses testified that during the hours prior to the

accident, the defendant had spent time with a friend, Steve Webb. The defendant

testified that Webb had been driving him and Carney from a Krystal fast-food restaurant

when they crashed. According to the defendant, he was sleeping in the back seat and

Carney was riding in the front passenger seat at the time of the crash. He testified that

because of a head injury, he did not remember any of the events surrounding the

accident, but he was certain that Webb was driving. He also claimed not to have had the

car keys. He admitted drinking approximately fourteen beers in the hours preceding the

crash. Carney’s testimony substantially corroborated the defendant’s, in that Carney

testified that Webb was driving, that the defendant was in the back seat, and that he was

in the front passenger seat. According to Carney, the impact hurled the defendant

forward, causing the defendant to land on top of him in the front passenger seat.



              The defendant argues that because the weight of the evidence

preponderates against the jury’s verdict, this Court should reverse his conviction. While

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a trial court has the authority to reverse a jury’s verdict when it determines that the verdict

is contrary to the weight of the evidence, see Tenn. R. Crim. P. 33(f), this Court may not

reweigh the evidence on appeal, see, e.g., State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Thus, to the extent the defendant argues the jury’s verdict is against the

weight of the evidence, his argument must fail.



              While a defendant may not challenge on appeal the weight of the convicting

evidence, he or she may challenge the sufficiency of the convicting evidence. To the

extent that the defendant’s argument may be construed as a challenge to the sufficiency

of the evidence, his argument still fails. The record reflects that the defendant admitted

driving on a public road after drinking approximately fourteen beers. Although the

defense presented evidence that the defendant was not driving at the time of the

accident, the jury was within its province to disregard that evidence in favor of the State’s

evidence that the defendant was driving. See Cabbage, 571 S.W.2d 832, 835. In short,

the evidence, construed in the light most favorable to the State, would allow any rational

trier of fact to find the essential elements of DUI beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979).



              The defendant also argues that the trial court denied his due process rights

by not allowing him to recall Officer Harris to the stand in order to attempt to impeach him.

According to the defendant, Officer Harris’ testimony was key to his conviction and if he

had been allowed to attempt to impeach his credibility, the jury would have acquitted him.



              On cross-examination, Officer Harris testified that he had taken

photographs of the Corolla at the crime scene, but that they were of poor quality and that

he did not bring them to trial. Defense counsel began to question Officer Harris using

photographs taken by the defendant, but Officer Harris could not positively identify the

car in the photographs. The State objected to defense counsel’s questioning unless the

                                              4
photographs could be properly authenticated, and the trial court conducted a jury-out

hearing to determine whether Officer Harris could authenticate the photographs. When

Officer Harris could not recognize the car in the photographs as the defendant’s car,

defense counsel requested that Officer Harris retrieve his photographs, even though he

admittedly did not subpoena them. Defense counsel argued that the State should have

supplied him with the photographs pursuant to his request for discovery, but the State

insisted it opened its file to defense counsel and defense counsel had access to

everything it had. Officer Harris again stated that the pictures were “very poor quality”

because dim lighting prevented anything from being recognizable. Defense counsel

maintained that even so, he wanted to see the pictures. The trial court ruled that defense

counsel could have access to the photographs after trial.



              Later, after several defense witnesses, defense counsel attempted to recall

Officer Harris to the stand. Defense counsel represented to the trial court that he had

been reviewing the accident report and noticed that on the report, Officer Harris indicated

he did not take any photographs of the scene. Defense counsel stated he wanted to

recall Officer Harris for the sole purpose of attempting to impeach his prior testimony that

he did take photographs. The trial court denied defense counsel’s request to recall

Officer Harris, stating that he had had his opportunity to cross-examine him. The record

shows that defense counsel had the accident report in his possession when he cross-

examined Officer Harris and in fact had attempted to impeach his trial testimony on other

grounds by using the accident report.



              The decision to allow the recall of a witness rests within the trial court’s

discretion. See State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993). Here, the only

reason defense counsel wished to recall Officer Harris was to attempt to impeach his

previous testimony by using the accident report. As the defendant admits, however, the

defense had a copy of the accident report during Officer Harris’ testimony and defense

                                             5
counsel even attempted to impeach his testimony in other regards using the accident

report. Thus, because defense counsel had ample opportunity to attempt to impeach

Officer Harris during cross-examination, the trial court did not abuse its discretion by not

allowing the defendant to recall Officer Harris.



              Even assuming the trial court abused its discretion, any resulting error is

harmless. During the hearing on the defendant’s motion for new trial, Officer Harris

testified he indicated on the accident report that no photographs were taken because he

did not have any photographs “of substantial quality.” We must assume that if he had

been asked to explain to the jury the seeming discrepancy between his trial testimony

and the accident report, Officer Harris would have replied similarly. Moreover, defense

counsel cross-examined Officer Harris about other apparent discrepancies between his

trial testimony and what he recorded on the accident report. Specifically, Officer Harris

testified during trial that the car keys the defendant had given him were bent and that

there had been blood on the car windshield, but he did not note either of these details in

the accident report because, as he maintained, he had noted only important details on

the accident report. Given that Officer Harris had an explanation for indicating on the

accident report that no photographs were taken and that defense counsel had attempted

to impeach Officer Harris’ trial testimony on two other points by using the accident report,

we cannot conclude that the jury’s verdict was affected by the trial court not allowing

defense counsel to recall Officer Harris for the sole purpose of attempting to impeach his

credibility further with the accident report. See Tenn. R. Crim. P. 52(a) (error is harmless

unless it affirmatively appears to have affected the result of the trial on the merits).



              The defendant also suggests that he was deprived of his due process rights

when the State failed to produce Officer Harris’ photographs despite his motion for

discovery requesting, inter alia, photographs of the crime scene. The defendant claims

the photographs “could have . . . shown Officer Harris to be untruthful” and “may well

                                             6
have shown” that the driver did not hit the windshield as Officer Harris testified. The

defendant fails to cite any authority supporting his position, thus waiving this argument.

Rules of the Court of Criminal Appeals of Tennessee 10(b). Moreover, nothing in the

record shows that the photographs were exculpatory or otherwise supports the notion that

the State violated the rules of discovery. Accordingly, this argument will not afford the

defendant relief.



              Finding no merit to the defendant’s arguments, the trial court’s judgment is

affirmed.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge

CONCUR:




______________________________
DAVID G. HAYES, Judge



______________________________
JOHN EVERETT W ILLIAMS, Judge




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