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State v. Gwinn

Court of Criminal Appeals of Tennessee, Knoxville

April 26, 2017


          March 21, 2017 Session at Lincoln Memorial University [1]

          Appeal from the Criminal Court for Knox County No. 105996 G. Scott Green, Judge

         Defendant, 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.

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

          Mark 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 Douglas Gwinn.

          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.



          I. Procedural History and Factual Summary

         Defendant 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.

         The 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."

         Deputy 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.

         Defendant 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.

          After 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.

         Defendant 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.

         II. Analysis

         Defendant 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.

         A. Sufficiency of the Evidence

         Defendant 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 ...

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