         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                            FILED
                          AT KNOXVILLE                     July 20, 1999

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




STATE OF TENNESSEE,             )
                                )
            Appellee,           )   C.C.A. No. 03C01-9707-CR-00270
                                )
vs.                             )   Blount County
                                )
ALBERT L. NORTON,               )   Hon. D. Kelly Thomas, Jr., Judge
                                )
            Appellant.          )   (DUI 2nd Offense)
                                )



FOR THE APPELLANT:                  FOR THE APPELLEE:

GEORGE H. WATERS                    PAUL G. SUMMERS
Asst. Public Defender               Attorney General & Reporter
419 High Street
Maryville, TN 37804                 ERIK W. DAAB
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    PHILIP MORTON
                                    Asst. District Attorney General
                                    Blount County Courthouse
                                    363 Court Street
                                    Maryville, TN 37804




OPINION FILED: _____________


AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION



              The defendant, Albert L. Norton, appeals his Blount County Circuit

Court jury conviction of second-offense DUI, a class A misdemeanor. He does not

challenge his jail sentence of eleven months, 29 days at 90 percent, to be probated

after serving 90 days, a $2,500 fine, and a two-year license revocation. Rather, he

challenges his conviction by raising the following issues:

                     1.     The evidence was insufficient to support his

              conviction.

                     2. The trial court erred by allowing evidence of the

              defendant’s blood test result despite the failure to establish a

              proper chain of custody of the blood sample.

                     3. The trial court erred in allowing evidence of drugs

              being present in the defendant’s blood sample.

                     4. The trial court erred by admitting testimony that the

              defendant failed to pass a horizontal gaze nystagmus field

              sobriety test.

After a review of the record, the briefs of the parties, and the applicable law, we

affirm the judgment of the trial court.



              Sergeant Mark Taylor of the Maryville Police Department arrested the

defendant for DUI on March 7, 1995, after watching the defendant swerve his car

across the street centerline on two or three occasions and make a wide left turn

during which he appeared to strike a curb. Taylor stopped the defendant, who had

blood-shot eyes, smelled of alcohol, fumbled with his wallet when trying to extract

his drivers license, and staggered upon getting out of the car. The defendant told

Taylor he had a couple of beers earlier in the day and that he was on three types

of medication, including a pain medicine and a muscle relaxant.                  Taylor

administered three field sobriety tests -- the horizontal gaze nystagmus (HGN) test,

the one-leg stand, and the walk and turn test. After explaining that the HGN test

                                          2
involved an assessment of the effects of intoxicants on the muscles in the eyes,

Taylor testified that the defendant tested “positive” on all six “clues” for which the

testing officer looks. On the one-leg stand, the defendant dropped his foot a few

times while counting and finally put his foot down and said he could not finish the

test. During the walk and turn test, he stepped off the line twice, used his arms to

keep his balance, missed connecting heel to toe three times, and incorrectly

executed the turn.



              Michael J. Lyttle, a forensic scientist with the Tennessee Bureau of

Investigation (TBI), analyzed the defendant’s blood sample for the presence of

drugs. He found the presence of 1.1 micrograms per milliliter of carisoprodol, a

muscle relaxant, and testified that the therapeutic range 1 for carisoprodol is ten to

40 micrograms per milliliter. He found the presence of 9.2 micrograms per milliliter

of meprobamate, which is a metabolite of carisoprodol. The therapeutic range for

meprobamate is 3.0 to 26 micrograms per milliliter. He found the presence of

dihydrocodeinone, a narcotic analgesic, for which the therapeutic range is .002 to

.024 micrograms per milliliter. The concentration of dihydrocodeinone was below

the level of .1 micrograms per milliliter, and by policy, the TBI lab does not

“quantitate” concentrations below this level. It simply refers to the result as being

“less than” .1 micrograms per milliliter. Nevertheless, Lyttle assessed the

dihydrocodeinone level in order to determine if it exceeded the .1 level and found

the level to be .05, which is less than .1 but about twice .024, the upper limit of the

therapeutic range. Lyttle testified that all of these drugs are depressants that in

general have a sedative effect.2




       1
       Lyttle testified that “therapeutic range” refers to “the range that you would
expect to see when that drug is having its prescribed effect on the body.”
       2
         Although not mentioned by Lyttle in his testimony, the TBI lab report
showed the following additional substances were present in the blood sample:
cocaine, “less than .1 UG/ML”; cocaethylene, “less than .1 UG/ML”;
“benzoylecgonine (cocaine metabolite) 1456 NG/ML.” At a jury-out hearing, the
trial court excluded from Lyttle’s proposed testimony evidence of the cocaine and
cocaine-related substances.

                                          3
              Jerry Main, another forensic specialist with the TBI, testified that he

conducted the analysis of the defendant’s blood sample for the purpose of

ascertaining the presence of alcohol.          Specifically, he found an alcohol

concentration of .006 percent. The TBI considers results of .01 percent or less to

be “negative.”



              At a jury-out hearing to determine the nature of her expertise and the

scope of her testimony, Jean Ezell, the director of the pharmacy at Blount Memorial

Hospital, testified that drug level data could not be used to determine the actual

effect that a given drug level would have on a specific individual, but that she could

opine generally as to the effects of drug dosages. She reviewed the TBI drug

screen report and opined that the meprobamate and dihydrocodeinone were at

levels significant enough to cause some impairment, especially when one considers

the likelihood of an “additive” or “synergistic” effect of combining the two drugs.

Before the jury, Ezell confirmed that the three substances mentioned by Lyttle were

depressants and that if she were filling prescriptions for these prescription-only

drugs, she would affix labels warning the consumer of the effects of sedation and

dizziness. The dihydrocodeinone was present in the defendant’s blood sample at

a level double the “normal peak.” The carisoprodol was present at a level below the

therapeutic range, but Ezell explained that it metabolizes into meprobamate and

that, when drugs metabolize into other active drugs such as meprobamate, the

metabolite itself may have more effect than the “original” drug. Furthermore, she

testified that the TBI report revealed the presence of cocaine,3 a central nervous

system stimulant, in the defendant’s blood sample at a level less than .1

micrograms per milliliter. She explained generally the increased potency that could

be expected because of the additive and synergistic effects of combining the drugs

found in the defendant’s blood, but she stressed that she could not opine as to the




       3
        Based upon Ezell’s knowledge of the effects of cocaine which was
revealed through her proffered testimony, the trial court allowed Ezell to testify
before the jury about the cocaine and cocaine-related substances mentioned in
the TBI lab report.

                                          4
specific effect of any of these drugs on the defendant. Because there are

“extensions of the effect of the drug, . . . it can vary from patient to patient. So, I

think it would be difficult to say, you know, a certain level always causes a certain

effect.” Consequently, she admitted, it would be possible that the defendant would

be able to operate a motor vehicle, despite the drugs revealed by the drug screen.



              The defendant did not testify. The only proof offered by the defendant

was the testimony of Thomas Ned Lee, Jr. The defendant visited Lee on the

evening of March 7, 1995. Lee was working on the bathroom in his house, and the

defendant was with him in that confined space. Lee did not smell alcohol on the

defendant and did not detect the defendant acting “funny.” He said the defendant

rarely drank, and on that evening he appeared normal.



              Based upon the evidence as summarized above, the jury convicted

the defendant of DUI.



                           1. Sufficiency of the Evidence

              It is well established that a jury verdict, approved by the trial judge,

accredits the testimony of the witnesses for the state and resolves all conflicts in

favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.

1978); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the

state is entitled to the strongest legitimate view of the evidence and all reasonable

or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 836 (Tenn. 1978).



              Moreover, a verdict against the defendant removes the presumption

of innocence and raises a presumption of guilt on appeal, State v. Grace, 493 S.W.

2d 474, 476 (Tenn. 1973); Anglin v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App.

1977), which the defendant has the burden of overcoming. State v. Brown, 551

S.W.2d 329, 331 (Tenn. 1977).



                                          5
              Most significantly, where the sufficiency of the evidence is challenged,

the relevant question for an appellate court is whether, 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, 99 S.Ct. 2781, 2782 (1979); Tenn R. App. P. 13. See also,

State v. Williams, 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings based

on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842

(Tenn. Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict

one of a crime. State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).



              In reviewing the sufficiency of the convicting evidence, we consider all

of the evidence, including any evidence which we may conclude was inadmissible.

State v Bernard T. Anderson, No. 02C01-9710-CR-00394, slip op. at 22 (Tenn.

Crim. App., Jackson, Apr. 23, 1999); State v. Longstreet, 619 S.W. 2d 97, 100-01

(Tenn. 1981).



              Driving under the influence of a drug or intoxicant is proscribed by

Tennessee Code Annotated section 55-10-401 which provides:

              It is unlawful for any person to drive . . . any . . . motor driven
              vehicle on any of the public roads and highways . . . or streets . . .
              while . . . [u]nder the influence of any intoxicant, marijuana, narcotic
              drug, or drug producing stimulating effects on the central nervous
              system.

Tenn. Code Ann. § 50-10-401(a) (1998). It is no defense to a charge of driving

while under the influence that the offender is a lawful user of the active drugs. Tenn.

Code Ann. § 50-10-402 (1998).



              The evidence in the light most favorable to the state shows that the

defendant drove erratically, had blood-shot eyes, smelled of alcohol, fumbled with

his wallet, staggered, and failed to pass three field sobriety tests. He admitted to

drinking beer and to taking prescription medications. The presence of prescription

medications was confirmed by blood analysis, and the testimony showed that the



                                          6
defendant’s drug levels, especially when the drugs were combined, could impair

the defendant as a motor vehicle operator. We realize that the blood-alcohol test

result could have served as a basis for impugning the testimony of Sgt. Taylor, but

the jury had the prerogative to accept or reject Taylor’s testimony. The verdict

suggests that they accredited his testimony, and this court is neither permitted to

substitute our judgment on credibility issues for that of the trier of fact nor to reweigh

the evidence.



               This court has previously found sufficient evidence of DUI when that

evidence was remarkably similar to the evidence now before us. In State v.

Kenneth Lee Abbott, No. 02C01-9311-CC-00263 (Tenn. Crim. App., Jackson, July

19, 1995), perm. app. denied (Tenn. 1995), the police officer witnessed the

defendant driving erratically by weaving back and forth, crossing the centerline, and

making a wide turn. The defendant had blood-shot eyes and slurred speech. He

failed two field sobriety tests. Kenneth Lee Abbott, slip op. at 2. A blood test

revealed the presence of two tranquilizer drugs. Id. A pharmacist testified as to the

effects of the drugs. Id. One was within the therapeutic range, although the level

of the other was well above the therapeutic range. Id. He admitted that he could

not opine as to the effects of the drugs on the defendant. Id. Abbott offered proof

that he appeared normal prior to the arrest. Id. This court held that evidence was

sufficient based upon the officer’s testimony about the defendant’s condition and

the expert’s testimony, including the testimony about the drugs’ “usual effects.” Id.




              Driving under the influence may be shown by circumstantial evidence.

State v. Lawrence, 849 S.W.2d 761, 763 (Tenn. 1993); State v. Corder, 854 S.

W.2d 653, 654 (Tenn. Crim. App. 1992). The proof in the present case was

sufficient to allow a rational jury to conclude beyond a reasonable doubt, based

upon circumstantial evidence, that the defendant was driving under the influence.




                                            7
            2. Failure to Establish Chain of Custody of Blood Sample

              Sergeant Taylor obtained the samples from the nurse who drew the

blood   from the defendant in Taylor’s presence at the hospital.        Taylor then

delivered the samples to the police department’s evidence custodian. Although the

defendant objected when Taylor testified that the samples were sent to the TBI

laboratory, the trial court allowed Taylor to testify that the custodian sends the

samples to the lab. The evidence custodian did not testify, and no one testified that

the samples brought in by Taylor were the same ones sent to and received from the

lab. Nevertheless, the defendant failed to object when the lab analysis reports were

admitted into evidence. The defendant asks that the failure to require the state to

establish a chain of custody be reviewed as plain error. See Tenn. R. App. P. 36(a);

Tenn. R. Crim. P. 52(b).



              However, the state has correctly pointed out that this issue was not

raised in the defendant’s motion for new trial. Tennessee Rule of Appellate

Procedure 3(e) requires that in a case tried by a jury such issues must be included

in the motion for new trial, “otherwise such issues will be treated as waived.” Tenn.

R. App. P. 3(e). Under all of the circumstances, this is a proper case in which to

hold that the issue is waived under Rule 3(e), and we so hold.



        3. The Trial Court Erred in Allowing Evidence of the Presence of

                     Drugs in the Defendant’s Blood Sample

              In this issue the defendant claims that the trial court erred (1) in

admitting the TBI drug-screen report and testimony concerning the presence of

drugs in the defendant’s blood and (2) in allowing testimony about the drugs without

interpretation of the data and about the import of the drugs.



              First, we address the issue of admitting the report and Lyttle’s

testimony which showed the presence of various drugs. Essentially the defendant

argues that such evidence was irrelevant, was prejudicial, and did not meet the



                                         8
applicable test for the admissibility of scientific or technical evidence.          The

defendant maintains that in the absence of testimony about “the significance of the

drug levels, the evidence of drugs in the lab report was more prejudicial than

probative.” By “significance of the drug levels,” the defendant refers to the effect

of the drugs “on Defendant’s or any other person’s ability to perform physical tasks.”

He also complains that the evidence of the presence of dihydrocodeinone and the

cocaine substances was not supported as scientific evidence because the levels of

these drugs were too low to be quantified.



              Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Tenn. R. Evid. 401. Irrelevant

evidence is inadmissible. Tenn. R. Evid. 402. “Although relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

Tenn. R. Evid. 403. The issue of allowing expert evidence is related to the question

of relevance. An expert may testify and give his or her opinion on facts in issue if

(1) the expert is “qualified by knowledge, skill, experience, training, or education”

and (2) the expert’s “scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to determine a fact

in issue.” Tenn. R. Evid. 702.



              After jury-out hearings, the trial court accepted both Lyttle and Ezell

as expert witnesses. It is within the trial court’s discretion to allow expert testimony.

State v. Williams, 675 S.W.2d 405, 411-412 (Tenn. 1983). Lyttle testified to the

levels of the various drugs in the defendant’s blood and what the general effects on

the central nervous system were. He testified that carisoprodol was present at a

level that fell well within the therapeutic range and that dihydrocodenione was

present at a level that was twice the maximum therapeutic dosage. He testified



                                           9
without contradiction that he was qualified to perform and did perform the tests to

determine the drug levels. We conclude that the proof of the drug levels as

presented through the report and the oral testimony of Lyttle was properly admitted.

It was relevant, not unduly prejudicial, and was properly offered as expert testimony

under evidence rule 702.



              Next, we review the defendant’s complaint that the testimony about

the import of the drugs and the fact that the drug levels, although scientific or

technical in nature, were not interpreted for the jury. First we consider testimony

about   the   three   prescription   drugs,   carispodrodal,   meprobamate,       and

dihydrocodeinone, and then we will consider the non-prescription, but illicit, cocaine

substances, cocaine and benzoylecogonine.



              In Kenneth Lee Abbott, this court considered the expert testimony of

the “usual effects” of the drugs found in Abbott’s blood in determining that all the

evidence was sufficient to support his DUI conviction. Kenneth Lee Abbott, slip op.

at 2.   Even though the Kenneth Lee Abbott court was not dealing with an

admissibility issue, its review of the “usual effects” evidence in assessing the

sufficiency of the proof belied no concern for the probative value of testimony about

the general effects of drug levels on normal persons, the “usual effects.” In the

present case, the state offered ample evidence of the usual effects of the drugs.

This evidence made it more probable “than it would be without the evidence” that

the defendant was under the influence of substances enumerated in code section

50-10-401. See Tenn. R. Evid. 401. The relevance of the evidence was not

outweighed by any unfair prejudice or any other factor listed in Rule 403. Moreover,

Lyttle and Ezell were expert witnesses by reason of knowledge, experience,

training, and education, and they were qualified to give their testimony, including

opinions, regarding their scientific or specialized knowledge about the usual effects

of the drugs. See Tenn. R. Evid. 702. Ezell gave cogent testimony about the

effects of which prescription drugs were within and which exceeded the therapeutic



                                         10
range. She testified about the likelihood of additive or synergistic effects of

combining the drugs.      We agree with the trial court that this evidence was

admissible.



              The defendant argues that this court’s holding in State v. Jim Smith,

No. 03C01-9312-CR-00398 (Tenn. Crim. App., Knoxville, July 11, 1994), perm. app.

denied (Tenn. 1994) requires reversal of these evidentiary rulings of the trial court.

In Jim Smith, the defendant was on trial for murder and wished to show that the

victim’s urine tested positive for cocaine metabolites in order to support the

defendant’s mutual combat defense. The trial court rejected Smith’s proffer of the

cocaine evidence because the pathologist who performed the drug screen testified

that the screen was performed for treatment purposes and would “always be sent

off for a confirmatory study before it was ever reported as positive.”           The

confirmatory study was not performed. Id. at 3. The pathologist testified that

confirmation is “always required” because of the possibility that “other medications

could cross-react with the screening test and yield false positive results.” Id. The

trial court excluded the test results on the basis of unreliability. In affirming the

exclusion of this evidence, this court commented that the record lacked any

evidence to indicate “when the drug was ingested or when the individual may have

been under the drug’s influence” and that “a trace of cocaine may be irrelevant and

thus inadmissible.” The Smith court cited two Florida cases, State v. McClain, 525

So. 2d 420 (Fla. 1988), and West v. State, 553 So. 2d 254 (Fla. Dist. Ct. App.

1989), which turned upon the exclusion of evidence of “trace” amounts of cocaine

in the blood of the defendants who were being tried for substance-related vehicular

homicides.



              Smith is distinguishable from the case at bar in two respects. First,

the testimony about two of the prescription drugs, meprobamate and

dihydrocodonione, showed that these substances were present in significant

amounts. We have found no holding of this court which requires expert proof about



                                         11
the timing of drug ingestion as related to the drug’s influence and the driving of a

vehicle where the drugs were present in significant amounts according to expert

testimony. Second, unlike the evidence proffered by the defendant in Smith, the

admissibility of evidence in the present case is mandated by statute. See Tenn.

Code Ann. § 55-10-410(d) (1997) (“The certification [attested by the TBI] . . . shall

. . . be admissible in any court, in any criminal proceeding, as evidence of the facts

therein stated, and of the results of such tests. . . . “).



               The defendant’s argument based on Smith concerning the evidence

of cocaine is more in point. After hearing the jury-out proffer of Lyttle’s testimony,

the trial court initially excluded any reference to the cocaine substances until “some

additional testimony comes out on it.” However, in the jury-out proffer of Ezell’s

testimony she testified that although she was not an expert on “illicit substances,”

she was familiar with the effects of cocaine, based upon her educational training

and her knowledge of the “effects of cocaine after ingestion in the human body or

the central nervous system.”           She opined that the cocaine metabolite,

benzoylecgonine, was present at a level to have some effect on a person. The test

level of 1456 nanograms per milliliter exceeded the peak therapeutic level of 923

nanograms per milliliter. The trial court overruled the defendant’s objection to

disallow Ezell’s testimony and determined that she could testify about the finding of

cocaine and a cocaine metabolite, benzolecgonine, in the lab report. Before the

jury, Ezell testified that cocaine is a central nervous system stimulant that can block

nerve impulses and constrict blood vessels with a typical result of stimulation and

hyperactivity. She acknowledged that the TBI lab report showed that cocaine was

present at a level of less than .1 micrograms per milliliter and that it did not specify

the precise amount of cocaine. Beyond these statements, no other proof was

offered before the jury about either the cocaine or the level of cocaine metabolite.



               The proffer showed that the level of cocaine was less than .1 MG/ML

and that the exact level was not determined. We agree with the defendant that this



                                           12
information alone would have been an insufficient basis for an expert concluding

that the presence of cocaine was meaningful in this DUI case. However, a cocaine

metabolite, benzolecgonine, was present at a meaningful level and makes the

chemical findings as to both substances relevant. The trial court did not abuse its

discretion in allowing testimony about these two substances. The presence of the

cocaine in combined form with a significant level of metabolite made it more

probable that the defendant was driving under the influence. See Tenn. R. Evid.

401. Although cocaine was the only illicit drug found in the lab report, the prejudice

that may have resulted from the reference to cocaine was properly viewed as not

outweighing the probative value. See Tenn. R. Evid. 403.



              Of course, Ezell’s testimony before the jury did not track her proffered

testimony. Before the jury, the state failed to elicit some of the specific information

on the level and the effect of the cocaine metabolite that Ezell imparted during her

proffer. The result was the jury heard only that the report showed the presence of

cocaine at a level of “less than” .1 micrograms per milliliter, without the auxiliary

information of the metabolite level which boosted the relevancy value of the

unquantified level of unmetabolized cocaine. It may have been error to allow this

testimony in this incomplete form; however, the defendant did not object, move to

strike or for a mistrial, nor ask for curative instructions. “[R]elief may not be granted

in contravention of the trier of fact.” Tenn. R. App. P. 36(a). To the extent that the

defendant’s claim of error is addressed to the actual testimony of Ezell, the claim

has been waived. Furthermore, we view as harmless any error in allowing Ezell’s

testimony to be received without curative action. See Tenn. R. App. P. 36(b); Tenn.

R. Crim. P. 52(a). Had the cocaine at less than .1 microgram per milliliter been the

only cocaine substance found, the evidence of it might well have been irrelevant

under evidence Rule 401 or prohibitively prejudicial under Rule 403, and yet, this

is essentially the only evidence about the level of cocaine that the jury heard. The

irony is that the full story about the cocaine -- the level of the metabolite which we

have deemed admissible -- was more cogent, specific and damaging to the



                                           13
defendant than the evidence of unmetabolized cocaine about which Ezell testified.

Indeed, given the irony, the defendant may well have decided not to object or seek

curative instructions for fear that testimony about the 1456 nanograms per milliliter

of cocaine metabolite would emerge. Moreover, any retrial of the case would only

result in admitting cocaine evidence that would be more damaging than what was

admitted below. Under these circumstances, any error that can be ascribed to the

use of Ezell’s testimony was harmless.



                      4. Horizontal Gaze Nystagmus Evidence

              The state concedes that it did not properly qualify Sgt. Taylor as an

expert on the HGN test and that the HGN test results were inadmissible in light of

our supreme court’s holding in State v. Murphy, 953 S.W.2d 200 (Tenn. 1997).

However, the state argues that the error was harmless. See Tenn. R. App. P. 36(b).



              This court has upheld DUI convictions despite the use of inadmissible

evidence when the admissible evidence overwhelmingly supported a finding of guilt.

See e.g., State v. Mark Bateman, No. 01C01-9608-CC-00377, slip op. at 6 (Tenn.

Crim. App., Nashville, Dec. 17, 1997) (trial judge in bench trial affirmatively found

that evidence independent of the Sensing-deficient intoximeter results supported

DUI conviction); State v. Greene, 929 S.W.2d 376, 380 (Tenn. Crim. App. 1996)

(“any arguable” error in admitting HGN proof harmless in light of other proof,

including .22 percent blood alcohol test result).      But see State v. James Dale

Grindstaff, No. 03C01-9704-CR-00139 (Tenn. Crim. App., Knoxville, Mar. 23, 1998).

In the present case, the other proof of driving while under the influence was cogent

and consisted of two field sobriety test results, the observations of a trained officer,

and the results of chemical tests. Given the overwhelming nature of the total

evidence, we hold that the erroneous use of the HGN test results was harmless.



              In reaching this conclusion, we have reviewed James Dale Grindstaff,

a case in which this court reversed a DUI conviction because, in part, Murphy-



                                          14
deficient evidence of the results of the HGN test was admitted. James Dale

Grindstaff, slip op. at 7. However, in addition to the Murphy error, the trial court in

James Dale Grindstaff also erroneously admitted evidence in violation of the State

v. Sensing, 843 S.W.2d 412 (Tenn. 1992), requirement that a DUI arrestee must be

observed for twenty minutes prior to an intoximeter test as a prerequisite for making

the intoximeter test results admissible. James Dale Grindstaff, slip op. at 5-6. Even

though the arresting officer testified that Grindstaff had blood-shot eyes, slurred

speech, an alcohol odor, and “performed poorly on . . . two field sobriety tests

besides” the HGN test, there was evidence that Grindstaff’s speech impediment, a

leg injury, fatigue, and limited education may have contributed to some of the field

observations and test results. James Dale Grindstaff, slip op. at 6. Significantly, the

officer did not observe Grindstaff’s vehicle “weaving, crossing a line,” or otherwise

being driven erratically. Id. Given the “fairly balanced” evidence on the issue of

intoxication without the HGN and intoximeter test results, this court held that the

“cumulative effect” of the errors in admitting the HGN and intoximeter tests results

more probably than not affected the outcome of the trial. Id.



              James Dale Grindstaff is distinguishable from the present case. Here,

the officer witnessed the defendant driving erratically, and the state presented

substantial proof that the defendant was under the influence of prescription

medications. Furthermore, we have found no other operable error which, when

combined with the HGN error, would yield a cumulative effect. These factors,

combined with the results of two field sobriety tests other than the HGN test and the

officer’s testimony about palpable indicators of intoxication observed in the

defendant’s behavior, support our conclusion that the erroneous use of the HGN

test results was harmless.



                                   5. Conclusion

              We conclude that no reversible error was committed below. The

judgment of the trial court is affirmed.



                                           15
                                  _______________________________
                                  JAMES CURWOOD WITT, JR., JUDGE

CONCUR:




______________________________
JOHN EVERETT WILLIAMS, JUDGE


______________________________
ALAN E. GLENN, JUDGE




                                 16
