            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON

              STATE OF TENNESSEE v. EVERETT D. ROBINSON

                        Appeal from the Circuit Court for Henry County
                             No. 12876    Julian P. Guinn, Judge



                    No. W1999-01348-CCA-RE-CD - Decided April 7, 2000


        The Defendant, Everett Dale Robinson, appeals as of right from his conviction pursuant to
a jury verdict of fourth offense driving under the influence (DUI). On appeal, he challenges only the
sufficiency of the evidence. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

WELLES, J., delivered the opinion of the court, in which TIPTON, J. and LAFFERTY, SR.J., joined.

Guy T. Wilkinson, Camden, Tennessee, for the appellant, Everett D. Robinson.

Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle, Assistant Attorney General,
Robert “Gus” Radford, District Attorney General, for the appellee, State of Tennessee.


                                              OPINION

        The Defendant was indicted by the Henry County Grand Jury for (1) driving under the
influence (fourth offense); (2) driving while license is cancelled, suspended, or revoked; (3) violation
of the “light law”; and (4) failure to appear. He pleaded guilty to driving while license is cancelled,
suspended, or revoked and to violation of the “light law.”1 He was then tried on the remaining
offenses, found guilty of DUI, and acquitted of failure to appear.



       1
         The “light law” with which the Defendant was charged and subsequently convicted pursuant
to his guilty plea makes it unlawful for a vehicle, other than a motor vehicle, to travel upon the
roadways of this state without a light attached to the upper left side of such vehicle from one-half
hour after sunset until one-half hour before sunrise. See Tenn. Code Ann. § 55-9-401(a). However,
we note as a matter of law that a violation of this section is a Class C misdemeanor. See id. § 55-9-
401(d). Because the judgment reflects that the Defendant was convicted of a Class A misdemeanor
instead of a Class C misdemeanor, we must remand the case for clarification or correction of the
judgment.
        At trial, Deputy Shawn R. Watson of the Henry County Sheriff’s Department testified that
around 9:00 p.m. on October 25, 1998, he was checking radar on Highway 641 South from
Manleyville Road in Henry County. He was parked at a stop sign on Manleyville Road when the
Defendant’s vehicle approached him from behind. The Defendant passed Deputy Watson, and
Deputy Watson noticed that the Defendant had a rear taillight out. Deputy Watson followed the
Defendant for about a mile and observed the Defendant “crossing the centerline when he was cutting
his corners.” Deputy Watson said that the Defendant did this four or five times. He activated his
blue lights, and the Defendant stopped about half a mile further.

        Deputy Watson said that he approached the Defendant’s vehicle and asked to see a driver’s
license. The Defendant could not produce a driver’s license, so Deputy Watson obtained the
Defendant's name and social security number instead. Deputy Watson testified that he noticed an
odor of alcohol about the vehicle, and the Defendant had slurred speech and bloodshot eyes. There
were also several beer cans strewn throughout the vehicle, most of which were empty.

        Deputy Watson had the Defendant perform three field sobriety tests: the finger count, the
one-legged stance, and the nine-step walk and turn. He testified that the Defendant performed
“relatively well” on the finger count test but performed “poorly” on the other two tests. He
explained that the one-legged stance requires a person to stand on one leg, maintain balance, and
count at the same time. Normally, the person is asked to count from 1001 to 1030. He said that the
Defendant lost his balance at “two” and “three” and then quit the test. For the walk and turn test,
the person is asked to walk nine steps heel to toe with his or her hands down at the side, make a
three-step pivot turn, and then walk nine steps back heel to toe. Deputy Watson said that the
Defendant stepped off the line at steps seven and eight, that he did only two steps on the turn, and
that he stepped off the line at steps four and five on the way back. He said that he asked the
Defendant before administering the tests if the Defendant had any disabilities which would impede
his performance, and the Defendant stated that he had a back problem, but he would attempt to
perform the tests. On cross-examination, Deputy Watson was questioned about his training in
administering field sobriety tests. He said that he had not been to DUI school, but he had received
five and a half hours of DUI training at the Tennessee Law Enforcement Training Academy.

         Deputy Watson placed the Defendant under arrest and transported him to the Henry County
jail, where the Defendant attempted to perform a breathalyser test. The Defendant agreed to take the
test, but the test did not register any results. Deputy Watson explained that the person must blow
into the machine as hard as he or she can for about four seconds. He said that he explained this
procedure to the Defendant, but the Defendant did not follow his instructions. Instead of blowing
constantly for about four seconds, the Defendant stopped blowing and then blew again. Deputy
Watson gave the Defendant the opportunity six times to blow into the machine but never got a
sufficient breath sample to get any results. After the test failed to register results, the Defendant was
charged with DUI.

       The Defendant testified on his own behalf. He stated that he and a friend, Vince Mathis,
went to Big Sandy that day to check on a house that was for rent, and then they went to Mr. Mathis’s


                                                  -2-
girlfriend’s house. They arrived at the girlfriend’s house around 6:00 p.m. There, they each had two
Zimas, which are alcoholic beverages similar to wine coolers. Ms. Collier, Mr. Mathis’s girlfriend,
cooked hamburgers and french fries, and they all ate dinner there. Around 9:00 that evening, the
Defendant left to go to his son’s house. He said that he was not impaired that evening and that he
was able to operate the vehicle. He passed Deputy Watson and continued on toward his son’s house.
He saw Deputy Watson turn on the blue lights, so he stopped after he drove around a curve and
found a “straight-a-way.” He said that he told the officer his license was suspended and that he had
drunk two Zimas that evening. He tried to perform the field sobriety tests and said that he thought
he did “all right” on the walk and turn test. He said he told Deputy Watson that he had been in a car
accident and had back problems as a result. When asked if his back problems could have affected
his ability to perform the tests, the Defendant stated, “Well, maybe a little bit.”

       With respect to the breathalyser test, the Defendant stated that he tried to blow into the
machine correctly but he had never blown on one before. On cross-examination, he was questioned
about whether he had blown into a breathalyser machine in Benton County on April 10, 1989, in
Carroll County on August 10, 1989, in Shelby County on November 21, 1992, and in Davidson
County on October 30, 1995. The Defendant stated that he did not blow into a breathalyser machine
on those dates.

       Vince Mathis, the Defendant’s friend, testified that on October 25, 1998, he and the
Defendant were at his girlfriend’s house. They arrived after 6:00, they each had two Zimas, and they
ate hamburgers and french fries. Shortly after 9:00 that evening, the Defendant left to go to his son’s
house. Mr. Mathis stated that the Defendant was not impaired or unable to drive a vehicle that
evening.

        The Defendant first challenges the sufficiency of the convicting evidence. Tennessee Rule
of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier
of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). Evidence is sufficient if, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307 (1979). In addition, because conviction by a trier of fact destroys the presumption of
innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of
showing that the evidence was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see
also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977)); State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982); Holt v. State, 357 S.W.2d 57, 61 (Tenn. 1962).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978)). The court may not “re-weigh or re-evaluate the evidence” in the record below. Evans, 838
S.W.2d at 191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court find


                                                   -3-
particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or
trial court judgment. Tuggle, 639 S.W.2d at 914.

      The Defendant was convicted of driving under the influence. The relevant statute, Tennessee
Code Annotated § 55-10-401(a), provides as follows:
      It is unlawful for any person to drive or to be in physical control of any automobile
      or other motor driven vehicle on any of the public roads and highways of the state .
      . . while:
               (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug
      producing stimulating effects on the central nervous system; or
               (2) The alcohol concentration in such person's blood or breath is ten-
      hundredths of one percent (.10%) or more.

The evidence in this case is sufficient to support the Defendant's conviction for driving under the
influence because a rational juror could have concluded beyond a reasonable doubt that the
Defendant drove an automobile while under the influence of alcohol. Deputy Watson testified that
he observed the Defendant "cut his corners" four or five times, that he smelled an odor of alcohol
about the Defendant's vehicle, that the Defendant's speech was slurred and his eyes were bloodshot,
and that the Defendant performed "poorly" on two field sobriety tests.

        Nevertheless, the Defendant argues that the evidence is insufficient because the arresting
officer was not qualified to administer field sobriety tests, because a breathalyser reading was not
obtained and because the jury was informed of the Defendant's prior DUI convictions. We first note
that, with the exception of the breathalyser reading, the Defendant is actually challenging the
admission of evidence rather than the sufficiency of the evidence. We also note that the Defendant
did not object at trial to the officer's testimony regarding the field sobriety tests or to the questions
relating to the Defendant's previous exposure to breathalyzer tests. Failure to make a
contemporaneous objection waives consideration by this court of the issue on appeal. See Tenn.
R.App. P. 36(a); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). Nevertheless,
we conclude that the Defendant's contentions are meritless.

         With the exception of the horizontal gaze nystagmus 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). Thus, police officers generally do not need to be qualified as expert
witnesses in order to testify about their administration and interpretation of field sobriety tests. See
id.; State v. Christopher R. Hicks, C.C.A. No. 03C01-9602-CC-00064, 1997 WL 260069, at *1 n.1
(Tenn. Crim. App., Knoxville, May 13, 1997). In State v. Michael B. Propes, C.C.A. No. 03C01-
9211-CR-00376, 1993 WL 263062 (Tenn. Crim. App., Knoxville, July 13, 1993), we found that a
police officer who was trained in giving field sobriety tests by the police academy was properly
allowed to testify about those tests. Id. at *2. Here, Deputy Watson testified that he received five
and a half hours of DUI training at the police academy, although he had not been to DUI school. He
also explained the purposes of the field sobriety tests that he asked the Defendant to perform, and


                                                   -4-
he informed the jury about the things the officers look for in the performance of those tests.
Accordingly, Deputy Watson was properly allowed to testify about his administration and
interpretation of the field sobriety tests performed by the Defendant.

        Next, the Defendant contends that the evidence is insufficient because a breathalyser reading
could not be determined. However, a defendant may be convicted of DUI based on either evidence
of intoxication or evidence showing that the defendant had a blood-alcohol concentration of .10%
or more. See Tenn. Code Ann. § 55-10-401(a). Because the Defendant's conviction was based on
factors other than proof of his blood-alcohol content, the failure to obtain a breathalyser reading is
simply one of the factors to be considered by the jury in its evaluation of the evidence.

        Finally, the Defendant argues that he was convicted because the jury was “able to know”
about his prior DUI convictions. During direct examination, the Defendant testified that he had
never blown into a breathalyser machine before. After a bench conference during which the
Defendant did not voice any objections, the State was permitted to ask the Defendant whether he had
blown into such a machine in Benton County on April 10, 1989, in Carroll County on August 10,
1989, in Shelby County on November 21, 1992, and in Davidson County on October 30, 1995. The
Defendant denied blowing into a machine on these dates. The Defendant now asserts that "[f]or all
practical purposes, the jury knew he had previous DUI charges and more than likely thought he had
convictions." The Defendant argues that his conviction was based on the evidence of the prior DUI
convictions and not on the evidence of his intoxication on the date in question. We disagree.

        Pursuant to Tennessee Rule of Evidence 608(b), specific instances of conduct of a witness
for the purpose of attacking or supporting the witness's credibility may not be proved by extrinsic
evidence, but they may be inquired into on cross-examination concerning the witness's character for
truthfulness or untruthfulness if probative of that truthfulness or untruthfulness. See Tenn. R. Evid.
608(b). In a similar factual situation, we held that this rule permitted the prosecutor to question the
defendant about whether he had taken a breathalyser test on a specific occasion because the
defendant denied having ever taken a breathalyser test. State v. Mark Summers, C.C.A. No. 03C01-
9606-CR-00235, 1997 WL 785677, at *2 (Tenn. Crim. App., Knoxville, Dec. 4, 1997). We stated,
"The questions posed to Appellant constitutes [sic] permissible impeachment within the scope of
Tenn. R. Evid. 608(b) since the State merely asked a question of Appellant concerning a prior
specific instance of conduct highly relevant to his credibility." Id. Like in Summers, we hold here
that the questions asked of the Defendant were permissible impeachment because they concerned
prior specific instances of conduct highly relevant to his credibility. While the questions posed to
the Defendant likely affected the jury's determination of the Defendant's credibility, there is no
evidence that they served as the basis for the Defendant's conviction. The Defendant's argument is
without merit.

        The judgment of the trial court is affirmed. However, the case is remanded for correction
or clarification of the judgment convicting the Defendant, pursuant to his guilty plea, of violation
of the "light law."



                                                 -5-
