Court of Criminal Appeals of Tennessee, Knoxville
21, 2017 Session at Lincoln Memorial University 
from the Criminal Court for Knox County No. 105996 G. Scott
Jeffrey Douglas Gwinn, was convicted of driving under the
influence of an intoxicant ("DUI"). On appeal, he
argues: (1) the evidence was insufficient to support his
conviction; (2) the trial court erred by permitting the
arresting officer to testify about Defendant's fitness to
drive a motor vehicle and his performance on field sobriety
tests; and (3) the State committed prosecutorial misconduct
during its rebuttal closing argument. We conclude that the
evidence was sufficient and that the lay opinion testimony
was proper. We also conclude that remarks in the State's
rebuttal were improper, but we find the error to be harmless.
Accordingly, the judgment of the trial court is affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
E. Stephens, District Public Defender; Jonathan Harwell (on
appeal and at trial) and Denise M. Faili (at trial),
Assistant Public Defenders, for the appellant, Jeffrey
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Charme P.
Allen, District Attorney General; Joe Welker and Hayley
Scheer, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which John Everett Williams and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
Procedural History and Factual Summary
was indicted for DUI, a Class A misdemeanor. At trial, the
evidence showed that, on the morning of July 6, 2014, around
4:30 a.m., Deputy Mitchell Crowe of the Knox County
Sheriff's Office was on a routine patrol when he observed
an orange pickup truck stopped near the entrance ramp to
Interstate 40 at Exit 402 on Midway Road. According to Deputy
Crowe, that particular exit did not receive much traffic, and
it was unusual for a vehicle to be stopped there. There were
no business establishments at the exit. The shoulder of the
road was approximately four to six feet wide. Once the
shoulder ended, the road "just drop[ped] off, " and
there was gravel. In some places, there were cracks in the
asphalt of the shoulder. Because the exit did not receive
much traffic and was located near the outskirts of Knox
County, it was not well lit.
truck was running, and its lights were on. Deputy Crowe
pulled over behind the truck and turned on his spotlight and
takedown lights. He approached the truck and observed vomit
on the inside and outside of the truck's door. Defendant
was in the driver's seat, and there was also vomit on
Defendant. There was "a faint odor of alcoholic
beverage" coming from the vehicle, but Deputy Crowe
could not discern its origin. Deputy Crowe asked Defendant if
he needed an ambulance. Defendant said that he did not.
Defendant acted "cooperative but rather
lethargic-slow." Defendant admitted drinking alcohol
that night but could not recall how much. His speech was
"slurred, " and he appeared "confused."
Crowe then administered three field sobriety tests-the
horizontal gaze nystagmus ("HGN") test, the
walk-and-turn, and the one-legged-stand. The prosecutor did
not ask Deputy Crowe to elaborate on the results of the HGN
test. Deputy Crowe explained that the walk-and-turn requires
the subject to "walk heel to toe for nine steps the[n]
turn around and come back." The subject counts the steps
out loud while walking. The test is preceded by an
instructional phase in which the deputy explains the test and
gives a demonstration. The one-legged-stand requires the
subject to stand with his or her feet together with arms down
at the side. Then, the subject lifts either leg off the
ground approximately six inches and holds that position for
about thirty seconds. Defendant denied having any medical
conditions that would interfere with the tests.
did not have any difficulty exiting his truck, but Defendant
did not perform the walk-and-turn satisfactorily. He
completed the first nine steps successfully, but he
"lost his balance and didn't make the turn
correctly." Defendant also did not perform the
one-legged-stand satisfactorily. "He raised his arms for
balance and could not keep still. He was swaying from side to
side." However, Defendant was able to hold his leg off
the ground for the duration of the test. There was no
recording of the field sobriety tests because Deputy Crowe
did not have a dashboard camera in his vehicle.
the field sobriety tests, Deputy Crowe arrested Defendant.
Deputy Crowe explained the implied consent law to Defendant.
Defendant refused to submit to a blood draw and signed his
name on the implied consent form. Deputy Crowe decided to let
Defendant leave without being charged, if he could arrange
for someone to pick him up. Defendant called his wife, but
she was unable to help.
did not testify. The jury convicted him as charged, and
Defendant received a sentence of eleven months and
twenty-nine days, suspended to unsupervised probation after
forty-eight hours in the county jail. After being sentenced,
he filed a timely notice of appeal.
raises three issues on appeal: (1) whether the evidence was
sufficient to support his conviction; (2) whether the trial
court improperly allowed the deputy to offer opinion
testimony as to Defendant's ability to operate his
vehicle; and (3) whether the State committed prosecutorial
misconduct during closing argument.
Sufficiency of the Evidence
maintains that the State failed to prove beyond a reasonable
doubt that he was operating his vehicle while under the
influence of an intoxicant. The State argues that the