IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MAY SESSION, 1999 October 28, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9811-CR-00446 )
Appellee, )
)
) WILSON COUNTY
VS. )
) HON. J. O. BOND
WANDA E. DAVIS, ) JUDGE )
Appe llant. ) (Direct Ap peal - D .U.I.)
FOR THE APPELLANT: FOR THE APPELLEE:
HUGH GREEN PAUL G. SUMMERS 100 Pub lic Square Attorney General & Reporter Lebanon, TN 37087 ELIZABETH B. MARNEY
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
TOM P. THOMPSON, JR.
District Attorney General
JERRY HUNT
Assistant District Attorney 119 S. C ollege S t.
Lebanon, TN 37087
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
The appellant, W anda E. D avis, was convicted by a W ilson County jury of one (1) count of driving under the influence, second offense. She was fined $600, and th e trial court sentenced her to eleven (11) months and twenty-nine (29) days in jail; all but 45 days of the sentence was s uspe nded . On ap peal, the appellant raised the following issues for this Court’s review:
(1) whether the trial cou rt erred by failing to dismiss the case becau se of alleg ed defe cts in the ind ictmen t;
(2) whethe r the trial court erre d in adm itting the testim ony of a state’s witness when the appellant was not provided with pretrial discovery information relating to the witness;
(3) whether the trial cou rt erred b y restric ting the appe llant’s cross examination of Trooper Vaughn;
(4) whethe r the trial cou rt erred by re fusing to a dmit testimony concerning a statement made by Trooper Vaughn to the appellan t;
(5) whether the trial court erred in denying a mistrial after the state condu cted imp roper qu estioning of the app ellant;
(6) whether the state’s closing argument constituted prosecutorial misconduct which warranted a mistrial; and
(7) whethe r the evide nce is su fficient to sup port the app ellant’s conviction.
After a thorough re view of the rec ord, we conc lude th at there is no re versible error and , therefore , affirm the ju dgme nt of the trial co urt.
FACTS
In the early morning of Janua ry 23, 199 7, Hen ry Kerr wa s traveling o n Mt.
Juliet Road when he noticed a vehicle in a ditch. When Kerr stopped to assist
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the motorist, the appellant got out of the vehicle and asked Ke rr if he would push her vehicle from the ditch. K err refuse d the ap pellant’s re quest b ut offered to call a wrecker once he arrived at his home. Immediately upon arriving hom e, Kerr contac ted Oc o Ham blen, wh o owne d a wrec ker service .
Once Hamblen arrived at the scene, he hooked his wrecker to the appellan t’s vehicle and pulled it from the ditch. Hamblen then asked the appellant to get in the veh icle and e ither push down o n the bra kes or sh ift into park. Instead, the appellant shifted the vehicle into gear, allowing it to roll back into the ditch. After Ham blen p ulled th e vehic le from the ditch a second time, the appellant got out of her vehicle and began to complain that Hamblen had dama ged he r vehicle. H amble n respo nded b y calling the police.
State Trooper Jack Vaughn arrived on the scene about 12:25 a.m. The appellant informed him that she was driving on Interstate 40 when she took the wrong exit and, while trying to make a U-turn, drove her vehicle into the ditch. Vaughn noticed an open beer can in the vehicle and asked the appellant if she had been d rinking. T he app ellant ack nowled ged that she had consumed a coup le of beers that eve ning. V augh n adm inistere d three field sobrie ty tests, a ll of which the appellant performed unsatisfactorily. Based on his observations, Vaughn concluded that the appellant was under the influence of an intoxicant and placed her under a rrest. He th en ask ed her to subm it to a blood alcohol te st, and the appellan t consen ted. The blood alc ohol test re sults revea led that the appellan t’s blood a lcohol leve l was 0.21 %.
The appellant was indicted in a three-count indictment charging alterna tive counts of driving under the influence of an intoxicant, driving under the influence of an intoxicant, second offense, and driving with a blood alcohol content above .10. At trial, the appellant testified that she had not been driving her car that
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night, but had m et a ma n nam ed “Allen ” at a local bar w hom s he had allowed to drive her autom obile. They we re driving on Mt. Juliet Road when they attempted to turn aro und in a residen tial driveway , and the c ar beca me stu ck. “Allen” left to seek a ssistanc e, but nev er returne d to the sc ene.
The jury returned a verdict of guilty for driving under the influence of an intoxicant, second offense. The trial court sen tenced the app ellant to eleven (11) months and twenty-nine (29) days, with all but 45 days suspended. From her convic tion, the appe llant no w bring s this ap peal.
ALLEGED INDICTMENT DEFECTS
The appellant claims that the indictment contained deficiencies which were undu ly prejud icial. First, she asserts that the indictment was defective because Count Two of the indictment, charging her with DUI “second offense” could not be taken into the jury room during deliberations. She further contends that the indictment was defective because she could not be convicted of driving under the influence of an intoxicant in Count One and driving with a blood alcohol content above the legal limit in Count Three because such counts are duplicitous.
Appellant ha s failed to provide this cou rt with authority in support of her argum ent. Wh en an app ellant fails to cite appropriate au thority in support of his or her issue on app eal, that issu e is waived . Tenn. C t. Crim . App. 10 (b); State v. Alvarado, 961 S.W .2d 136, 148 (Tenn. Crim . App. 1996 ).
Furthermore, defects in the indictment must be rais ed prio r to trial, or will be dee med w aived. Te nn. R. C rim. P. 12 (b)(2); State v. Kennedy, 649 S.W.2d 275, 279 (Tenn. Crim. App. 1982). Appellant failed to raise the issue of the indictm ent’s sufficiency prior to trial. Although this Court “may notice at any time
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during the pendency of the proceedings the defen se that the indictme nt fails to show jurisdiction o r fails to charge an offense,” see Ruff v. Sta te, 978 S.W.2d 95, 96 (Tenn. 1998), the appellant does not challenge the trial court’s jurisdiction or com plain that the indictm ent fails to charge an offense. As a result, the appellant has w aived th e issue on this basis a s well.
This issu e is withou t merit.
PRETRIAL DISCOVERY
In her next iss ue, the ap pellant co ntends that the tria l court erred by admitting the testimony of Norman Kerr when the state failed, during pretrial discovery, to provide the defense with Kerr’s address and Kerr’s hand-written notes regarding the incident. The appellant claims that as a result of being denied access to the requested information, she was unfairly prejud iced b y Kerr’s testimony and was denied a full and fair cross-examination of the witness.
W ith regard to the state’s failure to provid e the d efens e with K err’s address, the state provided the defense with the na mes a nd add resses of its witnesses during pretrial discovery. The state listed Kerr as a witness, but did not provide his address because the state did not have that information at that time. The state was, however, able to obtain his address approxim ately one month prior to trial when a subpoena requiring Kerr’s presence at trial was issued.
The state is not required to furnish th e app ellant w ith inform ation e asily obtain able by exe rcising reasonable d iligence. See State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993 ). The defen se wa s provid ed with Kerr’s name during pretrial discovery. Once a name has been acquired, the address of the individual is usually obtainable with reasonable diligence. The appellant
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has failed to show that sh e made any effort in addition to the p retrial discovery motion to ob tain the addres s of Mr. Kerr.
In any event, the appellant has not established how she was prejudiced by the state’s failure to pro vide the w itness’ ad dress. Defense counsel conducted a vigorous cross-examination of Kerr and implied that Kerr would have reasons to be biased in favor of other state witnesses and against the appellant. After being placed u pon no tice that Ke rr might te stify, the defe nse wa s clearly ab le to prepare for the witness’ testimony. Therefore, there is not prejudice to the defense shown in this record.
The appellant also claims that she was unfairly prejudiced because the state failed to provide Kerr’s hand-written notes. Kerr drafted a summary of the events he witnessed the night of the a rrest to a id him during his testimony. The appellant claims that she has a righ t to pretrial discovery of these notes because she requested “written . . . summaries of state ments made by the de fendan t to any individual co ncernin g any rele vant asp ect of this case” and Kerr’s notes allege dly containe d statem ents made by the appellant on relevant aspects of the case. The trial court found that Kerr’s handwritten notes did not constitute a “statem ent,” and the appellant was entitled to review these notes only if the defens e reque sted them at the con clusion o f Kerr’s direc t testimon y.
It is arguable whether Kerr’s handwritten notes to aid in his testimony constitute a “statem ent.” 1 However, even if these notes could be considered a
1 A statement is defined as:
(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness; or
(2) A subs tantia lly verb atim recita l of an oral s tatem ent m ade by the witne ss th at is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mecha nical, electrical, or other recording or a transcription thereof.
Tenn . R. Crim . P. 26.2(g ); see also State v. Payton, 782 S.W .2d 490, 494 (Tenn. Crim . App. 1989).
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“statem ent,” the state was not required to produce s uch statem ent until after Kerr had testified on direct examination. According to Tenn. R . Crim. P. 16(a)(2 ), statem ents made by state witnesses are not subject to rules of disclosure. Under Tenn. R. Crim. P. 26.2, trial counsel may examine a witness’ statement after direct examination. See State v. Caughron, 855 S.W .2d 526, 535 (Tenn. 199 3). No obligation exists for the state to produce a witness’ statement until after direct examination of the witness. 2 Id.
This issu e has n o merit.
RESTRICTION ON CROSS EXAMINATION
The appe llant co ntend s that th e trial court erred by refusing her the opportu nity to fully and fairly cross examine State Trooper Jack Vaughn. The appellant claims th at the witne ss was biased d ue to pressures from an internal affairs investigation. Consequently, the appellant argues that she should have been afforded the opportunity to question this witness regarding his bias.
The appellant and Vaughn spoke on the day that her preliminary hearing was scheduled, and the appellant informed him that she had not been driving her vehicle on the night of the incident. She explained that a man she picked up from a bar (“Allen”) was the driver, but she did not tell the officer this information on the night of the incident because she was embarrassed. Vaughn told the appellant that her explanation was sincere and reasonable. Shortly after her
2 The appellant claims that the state was obligated to provide the notes prior to trial because she requested “written . . . summaries of statements made by the defendant to any individual concerning any relevant aspect of this case” in her pretrial discovery motion which was granted by the trial court. She argues that the no tes con tain statem ents m ade by the appellant o n relevan t aspec ts of the ca se. However, the record does not support this contention, as there is no indication as to what information the notes contain.
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conversation with Vaughn, the appellant informed her former boyfriend that she believed the charges against her would be dropped by the state.
Sometime later, the ap pellan t’s former boyfriend contacted the Tennessee Highway Patrol in an effort to gen erate an interna l affairs investigation, suggesting that the appellant and Vaughn were “going to conspire to fix the case.” Subseque ntly, Vaughn tes tified for the grand jury, and th e grand jury returned the pres ent indictm ent.
At trial, Vau ghn te stified o n cros s-exa mina tion tha t he be lieved the appe llant’s explana tion of the inc ident was sincere and seemed reasonable. When defense counsel attempted to question Va ughn abo ut the internal affairs investigation which may have affected the officer’s testimony before the grand jury, the state objected to the appellant’s questioning. After a jury out hearing, the trial court sustained the objection finding that the informa tion was irre levant.
“Because an assessment of whether a piece of evidence is relevant requires an unde rstand ing of th e cas e’s theory and other evidence as well as a familiarity with the evidence in questio n, appe llate courts give grea t deferen ce to a trial judge’s decision on relevance issue s.” State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995) (quoting N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence § 401.5 (2d ed. 1990)). For this reason the control of cross examination of witnesses is completely within the trial court’s discretion and will not be interfered with absent a clear showing of abuse of discretion. State v. Harris , 839 S.W .2d 54, 72 (T enn. 1992 ).
The trial court determined that testimony re garding the investig ation into Vaug hn’s action s whic h prec eded his grand jury testimony was irrelevant to the jury’s determination at trial. W e agre e. Clea rly, Office r Vau ghn h ad pro bable cause to arres t the ap pellant for driving und er the influe nce of an intoxicant,
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notwithstanding the appe llant’s subsequent self-serving statement that she was not driving on the night of her arrest. Further, the district attorney, not Officer Vaughn, made the deter mination to subm it the case to the gran d jury. The decision whether to prosecute rests entirely within the discretion of the district attorney. See State v. Sup erior O il, Inc., 875 S.W .2d 658, 660 (Tenn. 199 4); Quillen v. C rockett, 928 S.W .2d 47, 51 (Tenn . Crim. A pp. 199 5).
In addition, a lthough the app ellant insists that Vaughn was im prope rly influenced by the in ternal a ffairs inve stigatio n, the re cord d oes n ot sup port this contention. Vaughn testified in a pretrial hearing that he learned of the investigation after he testified before the grand jury. Furthermore, Vaughn denied giving the appellant any indication that he wo uld recom mend tha t the grand jury not return an indictm ent in this ca se.
The facts surrounding the internal affairs investigation into Vaughn’s actions was irrelevant to the jury’s determination of whether the appellant was driving under the influence of an intoxica nt in the early morn ing hours of Ja nuary 23. Moreover, the record does not su pport th e app ellant’s assertions that Officer Vaug hn’s testimony befo re the grand jury was improperly influenced and that the prosecution against her would have been dismissed had the investigation not occurred. Therefore, the trial court did not abuse its discretion in refusing to allow the appellant to cross-examine Vaughn regarding the investigation.
This issu e is withou t merit.
APPELLANT’S TESTIMONY REFUSED
The appellant asserts that the trial court erred by not allowing the appellant to testify as to whether Vaughn expressed that he believed that the appellant was
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not driving on the night of the incident. When the appellan t attemp ted to testify that Vaughn stated that he personally believed her, the state objected to the question, and the trial court sus tained the objection . However, ignoring the trial court’s ruling, the appellant stated, “he said he believed me.” The trial judge then gave curative instructions asking th e jury to disre gard the appellan t’s statem ent.
Initially, this Co urt note s that th is issue was not presented in the a ppella nt’s motion for new trial. If an alleged error is not properly raised in a motion for new trial, the issue is waived . Tenn. R. A pp. P. 3(e); State v. Caughron, 855 S.W.2d at 538. In any ev ent, the arrestin g officer’s personal belief concerning the truthfu lness of a sta teme nt ma de by th e acc used is irrelevant. The standard of review for a trial court’s determin ation of relevancy is an abuse of discretion standard. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). The trial court did not abuse its discretion in refusing to allow the testimony into evidence.
Moreover, the ap pellan t certain ly was n ot preju diced by the tr ial cou rt’s ruling. On cross-examination, Vaughn repeatedly testified that the appellant appeared sincere when she e xplaine d that s he wa s not d riving he r autom obile on the night o f her arres t and that h er story se emed reason able. Thus, the jury was allowed to hear tha t the officer believed that the appellant’s version of the events was sincere.
This issu e has n o merit.
IMPROPER QUESTIONING BY STATE
In appellant’s next issue, she asserts that the trial court should ha ve granted a mistrial when the prosecutor questioned the appellant as to why she did not inform Vaughn at the time of her arrest that she was not driving the
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vehicle. She claims that such que stioning was u nduly prejudicial, and the curative instruction provided by the trial court was insufficient to cure the prejudicia l effect.
During cross examination, the assistant district attorney asked the appellant why she failed to inform Vaughn that she was not driving the vehicle at the time of her arrest. Trial counsel requested a bench conference and moved for a mistrial ba sed up on the ina ppropria te questioning. The trial court denied the appe llant’s motion for a mistrial but instructed the jury as follows: “The defenda nt, upon being advised of constitutional rights has a right to rely upon those rights withou t any further question ing from the officer.”
The decision of whether to grant a mistrial rests within the sound discretion of the trial cour t. State v. S mith, 871 S.W .2d 667 , 672 (T enn. 19 94); State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will not disturb that decision absent a finding of abuse of discretion . State v. Adkins, 786 S.W.2d 642, 64 4 (Ten n. 1990 ); State v. Hall, 947 S.W.2d 181, 184 (Tenn. Crim. App. 1997). The burden of establishing the necessity for mistrial lies with the party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In making this determ ination , “no ab stract fo rmula shou ld be m echa nically applied, and all circumstances should be taken into acco unt.” State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993) (quoting Jones v. State, 403 S.W.2d 750, 753 (Tenn. 19 66)).
It is well established that a prosecutor’s comment on an accused’s exercise of his privilege ag ainst self-inc rimination violates bo th federa l and state constitutions. State v. Hale, 672 S.W .2d 201 , 202 (T enn. 19 84); State v. Thomas, 818 S.W.2d 350, 364 (Tenn. Crim. App. 1991). However, the appellant explained on direct e xamin ation th at she did no t tell the officer that she was not
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driving because she did not be lieve she shou ld talk to the officer after he had read her Miranda rights and placed her under arrest. She testified, “I mean, he read me my righ ts, and it said that I didn’t have to say anything else, so I was just -- I just didn’t say anything else.” Further, the questioning was limited, and the trial court instructed the jury that the appellant was not required to speak to the officer. In light of the lim ited natu re of the offending questioning and the trial court’s prompt cu rative instruction, the trial court did not a buse its discretion in refusing to gran t a mis trial. See State v. Dick, 872 S.W.2d 938, 944 (Tenn. Crim. App. 1993 ).
The appellant also challenges the sufficiency of the curativ e instruction given by the trial co urt. However, we conclude that the appellant has waived her right to appeal the issue of whether the trial judge ’s instruction was su fficient to prevent undue prejudice. “If a party fails to request a curative in structio n, or, if dissatisfied with the instruction given and does n ot reque st a mo re com plete instruc tion, the party e ffectively waives th e issue fo r appellate purposes .” State v. Griffis, 964 S .W .2d 57 7, 599 (Ten n. Crim App. 19 97); see also State v. Leach, 684 S.W .2d 655, 658 (Tenn. Crim . App. 1984 ). During trial the appellant failed to request a more complete instruction by the trial court. Therefore, because the appellant did not contest the sufficiency of the instructions during trial, the appellant has waived any complaints with regard to the trial court’s curative instruction.
This issu e is withou t merit.
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STATE’S CLOSING ARGUMENT
The appellant next alleges th at the trial cou rt erred by fa iling to gran t a mistrial upon the pro secutor m aking an improper remark during closing argum ent. During its rebuttal closing argument, the assistant district attorney made the following s tateme nt:
I do know that the o fficer wrote down h ere from he r testimony, her statement to him that night that she was driving the car. He believes that she wa s reaso nable a nd he b elieves sh e was te lling the truth that night.
The appellant objec ted, on the grou nds that there was n o proo f of this fact. The trial court overruled the objection stating, “[t]his is argument . . . . What you all say is not evidence.” The appellant claims that this remark was improper and constitute s prose cutorial m iscondu ct.
“Trial judge s are a ccord ed wid e discr etion in contro l of the argu ment.”
State v. Zirkle, 910 S.W.2d 874, 888 (Tenn . Crim. A pp. 199 5). Furthe rmore , both the state and the defense are affo rded w ide latitu de in arguing their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994 ); State v. Zirkle , 910 S.W.2d at 888. However, when the prosecution’s argument goes beyond that wide latitude a fforded , the tes t to dete rmine wheth er reve rsal is re quired is “whether the impropriety ‘affected the verdict to the prejudice of the defen dant.’” State v. Bigbee, 885 S.W.2d at 809 (quoting Harrington v. State, 215 Tenn. 338, 385 S.W .2d 758, 759 (1965)).
In reviewing a claim of prosecutorial misconduct during closing argum ent, we are guided by such factors as:
1. The conduct com plaine d of view ed in context and in light of the facts and circumstances of the case.
2. The curative m easure s unde rtaken b y the cou rt and the prosec ution.
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3. The intent of the prosec ution in m aking the improp er statem ent.
4. The cum ulative e ffect of th e imp roper cond uct an d any o ther er rors in the reco rd.
5. The relative strength or weakness of the case.
Judge v. State, 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 ).
W e do no t believe that the prose cutor’s remark was impro per. Certainly, it is a logical inference that the officer believed that the appellant was driving when he arrested her for driving under the influence. Additio nally, this remark was mad e in response to defense counsel’s argument that the officer instead believed the appellant’s other version of the events that “Allen” was driving the car.
In any event, after defense counsel objected to the remark, the trial court stated in the jury’s presence that closing argum ents are not evide nce. In addition, in its jury charge the trial court further instructed the jury that “what the attorneys say to you is not evide nce an d you ca nnot rely o n their state ments to you as evid ence .” The jury is pres ume d to ha ve follow ed the trial cou rt's instruction s. State v. Butler, 880 S.W .2d 395, 399 (Tenn. Crim . App. 1994 ).
This issu e has n o merit.
SUFFICIENCY OF THE EVIDENCE
Finally, the ap pellan t challe nges the su fficiency of the convicting evidence.
When an accused challenges the sufficiency of the evidence, this Court must review the rec ord to d eterm ine if the eviden ce ad duce d durin g the tria l was sufficient “to support the findings by the trier of fact of guilt b eyond a reas onab le doubt.” Tenn. R. App. P. 13(e). Th is rule is a pplica ble to fin dings of guilt
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predicated upon direct evidence, circumstantial evidence or a combination of direct and circu mstan tial evidenc e. State v. Brewer, 932 S.W .2d 1, 19 (T enn. Crim. App . 1996).
In determining the sufficiency of the evide nce, this Cou rt does not reweigh or reevalua te the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from c ircums tantial evide nce. Liakas v. S tate, 199 T enn. 2 98, 305, 286 S.W.2d 856, 859 (19 56). To the co ntrary, this Court is required to afford the state the strongest legitim ate view of the e videnc e con tained in the re cord a s well as all reason able an d legitima te inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (T enn. C rim. App . 1995). “A guilty verdict by the jury, 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 S tate.” State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence as we ll as all factu al issues raised by the evidence are resolved by the jury as the trier of fact. State v. Tuttle , 914 S.W.2d at 932.
Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this C ourt of illustrating why the eviden ce is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Te nn. 198 2); State v. Grace, 493 S.W.2d at 476.
In the present case, two individual witnesses testified that the appellant seemed to be under the influen ce of an in toxicant the night of the arrest. Vaughn observed that the appellant was unsteady exiting her vehicle, had bloodshot eyes and smelled of alcohol. A fter ques tioning the appellan t and findin g an em pty
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beer can in the vehicle, Vaughn administered sobriety tests, and the appellant performed poorly on each tes t. Vaughn asked her if she would submit to a blood test, and the appellan t consen ted. Testing revealed that the appellant had a blood a lcohol co ntent of 0.2 1%, ove r twice the le gal limit.
On the night of her arrest, the appellant informed Vaughn that she had been driving the vehicle, even though she subsequently denied driving the vehicle almost three months later while criminal charges were pending against her. Addition ally, the state presented testimony that the appellant backed her car onto Mt. Juliet Road after Hamblen extricated the automobile from the ditch.
After viewing the evidence in light most favorable to the state, we conclude that there is sufficient evidence for a rational trier of fact to determine that the appellant was driving under the influence of an intoxic ant. 3 This issue is without merit.
CONCLUSION
After a thorough review of the record before this Court, we conclude that there is no rever sible error in this case . Accordingly, the judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
3 The appellant does not contest the finding that she is a second offender of driving under the influence of an intox icant.
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CONCUR:
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DAVID G. HAYES, JUDGE
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NORMA MCGEE OGLE, JUDGE