State of Tennessee v. Thomas Santelli

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 22, 2016 Session

STATE OF TENNESSEE v. THOMAS SANTELLI

Appeal from the Criminal Court for Knox County

No. 102700 Bobby R. McGee, Judge

No. E2015-01004-CCA-R3-CD – Filed June 22, 2016

_____________________________

Defendant, Thomas Santelli, was convicted of one count of driving under the influence

(DUI), one count of DUI second offense, and one count of violating the implied consent

law. Defendant received a sentence of eleven months and twenty-nine days suspended to

probation with all but 100 days to be served in periodic confinement pursuant to court

order. Defendant raises the following arguments on appeal: (1) the trial court erred in

excluding evidence of a prior traffic stop; (2) the trial court erred in allowing lay opinion

testimony of Defendant‟s impairment; (3) the prosecutor committed prosecutorial

misconduct during closing argument; (4) the evidence was insufficient to sustain his

conviction; and (5) there was a constructive amendment to the indictment and a fatal

variance between the indictment and the evidence presented at trial. Upon our review of

the record, we affirm the judgments of the trial court but remand for reconsideration of

the manner of service of Defendant‟s sentence.

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

Part, Reversed and Remanded in Part

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Mark E. Stephens, District Public Defender; Jonathan Harwell and Christy Murray,

Assistant Public Defenders (on appeal); and Lauren A. Carroll (at trial), Morristown,

Tennessee, for the appellant, Thomas Santelli.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Senior Counsel;

Charme Allen, District Attorney General; and Sarah Keith, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

This is Defendant‟s direct appeal from his conviction for DUI second offense. At

the May 2014 jury trial, Officer Adam Minner of the Knoxville Police Department

testified as to his training and experience in DUI detection and investigation. On

December 15, 2012, Officer Minner was on duty conducting DUI and traffic

enforcement. Around 2:00 a.m., Officer Minner was driving eastbound on Kingston Pike

when he noticed Defendant‟s vehicle. Officer Minner testified that Defendant‟s

“swerving behavior caught [his] eye,” so he began to follow Defendant‟s vehicle. Officer

Minner observed Defendant continue to swerve and almost strike a median. Officer

Minner decided to conduct a traffic stop and activated his blue lights, but Defendant did

not initially respond. Officer Minner twice “twerked my siren to give an audible

notification,” but Defendant still did not stop. Defendant finally stopped at a red light in

the left turn lane.

Officer Minner admitted that he was frustrated with Defendant and that he “had a

tone with him from the get-go” because he did not immediately pull over when Officer

Minner activated his blue lights. This made Officer Minner nervous because a driver

who refuses to stop could be reaching for a gun or hiding objects in the car. Officer

Minner was also “pretty frustrated” that Defendant stopped in a traffic lane after passing

several parking lots and other safe places where he could have pulled over to the right

side of the road.

Officer Minner approached Defendant‟s vehicle and immediately smelled an odor

of alcohol. Officer Minner asked Defendant why he did not stop, and Defendant

responded that he was looking for a “correct” place to stop. Officer Minner testified that

he noticed that Defendant had bloodshot eyes and that, during their conversation,

Defendant slurred his speech and had “kind of a thick tongue.” Officer Minner asked

Defendant where he was coming from, and Defendant told him that he was coming from

his job at a restaurant called Mulligan‟s. Defendant stated that he was a singer in a band

and that Officer Minner would recognize him from that. Defendant also stated that he

had been pulled over before and felt that he was being singled out. Officer Minner

testified that he did not recognize Defendant and was not aware of any of these previous

traffic stops. Defendant denied drinking and told Officer Minner that he suffered from

diabetes and vertigo and that he took medication for those conditions. Officer Minner

asked Defendant for his driver‟s license, and Defendant was slow in retrieving it.

Defendant also handed Officer Minner cards showing that he financially supported the

Police Benevolence Association (PBA) and the sheriff‟s office, but Officer Minner told

Defendant that he did not want those items.

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Officer Minner decided to conduct the field sobriety tests on the sidewalk, which

was level ground and out of the lane of traffic. Officer Minner turned his dashboard

camera to be able to capture the field sobriety tests. During the horizontal gaze

nystagmus (HGN) test, Defendant did not follow Officer Minner‟s instructions. Officer

Minner had to repeatedly tell Defendant to “look at my finger.” Defendant said that he

was following the officer‟s instructions, but Officer Minner testified that Defendant kept

looking at “the scenery around” them rather than at his finger. Officer Minner terminated

the HGN test because of Defendant‟s refusal to comply. Then, during the walk and turn

test, Defendant again refused to listen to the instructions. Defendant kept interrupting

Officer Minner to tell him about his vertigo and other conditions. Officer Minner raised

his voice and told Defendant to stop interrupting him. At that point, Defendant “decided

to use some language” and told Officer Minner to “get out of his F-ing face, you M-

effer.” Officer Minner described that Defendant “kind of bucked up to fight a little bit.”

Officer Minner terminated the field sobriety tests and attempted to place Defendant in

custody. Defendant did not comply until Officer Minner threatened him with a taser.

Officer Minner testified that after he placed Defendant in his patrol vehicle,

Defendant‟s mood was “[u]p and down.” Officer Minner described Defendant as being

“very frustrated with me and then another time, you know, I‟m his bro and I‟m a good

man, and then he‟s frustrated at me again and then I‟m not invited to his party anymore.”

Defendant asked the officer for favors and to tell the tow truck driver certain things about

his vehicle. Officer Minner read the implied consent form and asked Defendant to

submit to a blood test. Defendant refused, stating that he was a hemophiliac.

The State played a video recording of the traffic stop for the jury. Officer Minner

explained that until the dashboard camera is manually turned on or the vehicle‟s blue

lights are activated—which automatically turns on the camera—the camera only captures

one picture every second, which results in footage that looks “very jerky.” Officer

Minner pointed out Defendant‟s vehicle on the video and testified that he noticed

Defendant‟s vehicle “weaving in and out of a lane,” but explained that it was “tough to

tell on the video with it being so jerky.” Officer Minner pointed out the area where

Defendant almost struck the curb of the median. Officer Minner also pointed out where

the video shows that Defendant‟s vehicle was “hugging the white solid line, crossed over

it.” Officer Minner estimated that he observed Defendant cross the solid white line at

least three times.

When Officer Minner activated his blue lights, the camera began recording regular

video footage. The video shows that Defendant failed to stop when Officer Minner

activated his blue lights and siren. Defendant told Officer Minner that he did not initially

stop because he was looking for the “right spot,” but he could not explain how the left

turn lane was the right spot. Defendant told Officer Minner that he was coming from his

job at Mulligan‟s and denied having anything to drink. Defendant complained that he felt

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like he was being harassed because he had been pulled over twice previously. Defendant

claimed that Officer Minner might know him because he was the lead singer of the band

America. Defendant handed Officer Minner his driver‟s license but instead of his

insurance card, Defendant handed Officer Minner cards showing that he “supports you

guys” by contributing to the Sheriff‟s Office.

Before administering the field sobriety tests, Officer Minner turned the camera

toward the sidewalk. When he approached Defendant‟s vehicle, Defendant again tried to

hand Officer Minner a card from the PBA. Defendant again denied drinking and stated

that he was a diabetic. Officer Minner walked Defendant over to the sidewalk and asked

if he would be willing to perform field sobriety tests, to which Defendant agreed.

Defendant explained that he was a diabetic and had vertigo, for which he took

Dramamine four times a day. During the HGN test, Officer Minner had to repeatedly tell

Defendant to look at his finger. When Officer Minner began the instructions for the walk

and turn test, Defendant told him that he did not know if he could do that test because of

his vertigo but that he would be willing to submit to a blood test. When Officer Minner

raised his voice and told Defendant to “quit interrupting me,” Defendant responded,

“You‟ve been f---ing with me all night, f---er.” Officer Minner told Defendant to turn

around, and Defendant responded, “No, get the f--- out of my face.” Defendant finally

complied when Officer Minner placed his taser against Defendant‟s chest.

After Officer Minner placed Defendant in the back of the patrol vehicle,

Defendant can be heard calmly calling Officer Minner an “a--hole” several times.

Defendant then told Officer Minner, “Don‟t you ever treat me like that again in your

life.” Defendant complained multiple times throughout the video that he had been pulled

over several times in the previous few days or weeks. Then, Defendant called Officer

Minner “buddy,” and asked him to loosen his handcuffs, to tell the tow truck driver that

his car had to be started with a screwdriver, and to retrieve his vertigo medicine from the

car, without which “I can get really sick and possibly die.” Officer Minner read the

implied consent form aloud and asked Defendant if he wanted to give blood. Defendant

stated that he was refusing the blood test because he was “a hemophiliac so if you draw

my blood, I might not stop bleeding and I could bleed to death.” Defendant again asked

Officer Minner to tell the tow truck driver about his car; when Officer Minner said “no,”

Defendant called him an “a--hole” multiple times. Defendant then called Officer Minner

a “peanut head” and “insignificant.” Defendant then said “If you stun gun me, you better

kill me.” Defendant denied that he ran a red light and stated that Officer Minner did not

have the right to pull him over for swerving “under the statutes of 464 and 585.”

Defendant then stated, “Don‟t ever say you want to come to my Christmas party again.

I‟m not inviting you anymore.”

When Officer Minner resumed testifying, he gave his opinion that Defendant was

unsafe to drive. Officer Minner explained that he came to that conclusion due to the odor

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of alcohol, Defendant‟s bloodshot eyes and slurred speech, and Defendant‟s “irrational

state, his emotional up and downs.” Officer Minner testified that if a vehicle had not

been involved, he would have arrested Defendant for public intoxication.

On cross-examination, Officer Minner denied that he was specifically looking to

arrest someone for DUI but explained that he was conducting traffic enforcement “with

the goal of reducing DUI related accidents and fatalities.” Officer Minner admitted that

he did not switch his dashboard camera from “picture mode” to “live mode” when he

observed Defendant‟s swerving. Officer Minner testified that the Knoxville Police

Department stopped offering breath tests about five years ago and that the Tennessee

Bureau of Investigation (TBI) no longer comes out to certify their machines. On redirect,

Officer Minner explained that breath tests would not reveal the presence of drugs in a

person‟s system. He also testified that he had no doubt in his mind when he arrested

Defendant that Defendant was impaired.

Defendant testified that he was a professional musician that had performed with

America, Bruce Springsteen, and the Allman Brothers. Defendant stated that he also

performed for charity and that he was a youth drug and alcohol counselor. Defendant

testified that he had vertigo which affects his balance and speech and makes him

nauseated. Defendant testified that he took medication for that condition along with

medication for diabetes, cholesterol, and high blood pressure. Defendant admitted into

evidence his medical records from his visit to the hospital in 2012 when he was first

diagnosed with vertigo. Defendant testified that he was also a hemophiliac and that he

took his medications in pill form because he cannot use a needle.

Defendant testified that on December 15, 2012, he played his usual show at

Mulligan‟s, an Italian restaurant. Defendant testified that he had not eaten since noon and

that the only thing he had to drink was unsweet tea. Defendant was on his way to Taco

Bell to get something to eat when he was pulled over. Defendant testified that it was the

third time in the past two weeks that he had been pulled over in that same spot at that

same time of night. Defendant denied that he had been drinking and denied that he used

drugs because his medications make him “feel bad enough as it is.” Defendant explained

that he was not supposed to drink alcohol with the medications he took.

Defendant testified that he “was driving just fine.” Defendant claimed that Officer

Minner yelled at him to pull over before the stop but that Officer Minner “cut that out of

the tape.” Defendant denied that he was swerving or that he almost struck a barrier.

Defendant testified that he did not pull over to the right side of the road because there

was a truck next to him in the right lane. Defendant testified that he was scared of

Officer Minner and that “the only defense I had was my mouth.” Defendant explained

that Officer Minner‟s demeanor reminded him of his father, who used to yell at him and

beat him. Defendant thought he was following the officer‟s instructions during the HGN

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test but explained that diabetes can affect a person‟s eyes. Defendant believed that

“[t]here was nothing I could have done to please him.” Defendant tried to tell Officer

Minner about his medical conditions, but Officer Minner would not listen to him.

Defendant testified that he was willing to submit to a breath test but that Officer Minner

did not offer it to him. Defendant testified that he refused the blood test because of his

hemophilia. Defendant explained that if he ever gets a cut, he has to go to the hospital to

“have a tourniquet put on to stop [him] from bleeding.” Defendant explained that he

mentioned the Christmas party in an attempt to be funny.

On cross-examination, Defendant admitted that he cursed Officer Minner,

explaining that Officer Minner “was being a prick to me all night, yelling at me top of his

lungs.” With regard to the PBA card, Defendant testified that it was a “courtesy card . . .

like don‟t bother me card.” Defendant explained that the cards showed that he supported

the police and that they could be used to “get[] you out of a speeding ticket or . . . a

parking ticket.” Defendant testified that he did not know if the card would get him out of

a DUI charge because the officer did not take it. The prosecutor asked Defendant if he

had a tattoo, and Defendant initially said “no.” Defendant then admitted that he had one

tattoo on his left shoulder. Defendant stated that he found out he was a hemophiliac

when he got the tattoo because it would not stop bleeding until a tourniquet was placed

on his arm. The prosecutor had Defendant read from his box of motion sickness

medication, which warned that the medication can cause drowsiness and advised against

driving a motor vehicle and using the medication with alcohol. Defendant denied that he

was “mixing” alcohol and his medication. On redirect examination, Defendant explained

that the odor of alcohol that Officer Minner smelled could have been the hand sanitizer

that he keeps in the car to use after shaking hands of the people who see his show.

The jury convicted Defendant of DUI, and the trial court found Defendant in

violation of the implied consent law. Defendant pled guilty to second offense DUI, and

the jury affixed a fine of $1500. The trial court merged the two counts of DUI into a

single conviction for second offense DUI and sentenced Defendant to eleven months and

twenty-nine days with all but 100 days suspended to supervised probation. Defendant‟s

driving privileges were revoked for a period of two years.

On July 16, 2014, Defendant filed a pro se motion for new trial which included an

allegation of ineffective assistance of counsel.1 Trial counsel also filed a motion for new

trial on July 17, 2014, as well as a motion to withdraw. Subsequently, the trial court

found Defendant to be indigent and appointed the Public Defender to represent him on

appeal. Appellate counsel filed an amended motion for new trial on March 18, 2015.

1

The ineffective assistance of counsel claim was withdrawn at the hearing on Defendant‟s motion

for new trial.

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After a hearing on the motion and taking the matter under advisement, the trial court

denied the motion for new trial. Defendant filed a timely notice of appeal.

Analysis

On appeal, Defendant argues that the trial court erred in excluding evidence of a

prior traffic stop, that the trial court erred in allowing lay opinion testimony of

Defendant‟s impairment, that the prosecutor committed prosecutorial misconduct during

closing argument, that the evidence was insufficient to sustain his conviction, and that

there was a constructive amendment to the indictment and a fatal variance between the

indictment and the evidence presented at trial.

I. Excluded Evidence and Right to Present a Defense

Defendant argues that the trial court erred in precluding the defense from

presenting evidence regarding Defendant‟s prior encounter with a police officer in an

attempt to explain his refusal to take the blood test. Defendant contends that the

exclusion of this evidence violated his constitutional right to present a defense. The State

responds that evidence of what occurred on a prior occasion was irrelevant and would run

counter to Defendant‟s argument that he refused the blood test due to his hemophilia.

During opening statement, trial counsel noted that Defendant refused to submit to

a blood test due to his hemophilia. She continued:

[Defendant], on a prior occasion, is going to testify to when he was pulled

over he was actually taken to the hospital by an officer to have his blood

drawn but the officer just left him in the car and they never went in and had

the blood test done, so . . .

The prosecutor immediately objected that “something that‟s going on in another case”

was irrelevant. The trial court sustained the objection and gave a curative instruction to

the jury to disregard anything about what may have happened on a prior occasion.

Relevant evidence is “evidence having 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. Evidence must be

relevant to be admissible. Tenn. R. Evid. 402. Even if evidence is relevant, it “may be

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

prejudice, confusion of the issue, or misleading of the jury. . . .” Tenn. R. Evid. 403. On

appeal, this Court will review a trial court‟s ruling regarding the admission or exclusion

of evidence for an abuse of discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008);

State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

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In this case, the trial court did not abuse its discretion when it ruled that

Defendant‟s prior encounter with a police officer was irrelevant. Whether Defendant

agreed to a blood test that was never conducted during a different traffic stop would not

make it more or less probable that he was driving under the influence on the night of

December 15, 2012. Even if somewhat relevant to explain Defendant‟s refusal to the

blood test on this occasion, thereby negating the inference that his refusal was a sign of

guilt, the evidence would still be excluded under Rule 403. The probative value of this

evidence is substantially outweighed by the danger of confusing the issues and

misleading the jury. Additionally, evidence that Defendant previously agreed to a blood

test does not support the defense theory that Defendant could not agree to the blood test

in this case because of his hemophilia.

Defendant further contends that the trial court‟s exclusion of this evidence violated

his constitutional right to present a defense. See State v. Brown, 29 S.W.3d 427, 432

(Tenn. 2000) (noting that a criminal defendant‟s right to present a defense is protected by

both the Sixth and Fourteenth Amendments). “[A]n evidentiary ruling ordinarily does

not rise to the level of a constitutional violation.” State v. Rogers, 188 S.W.3d 593, 614

(Tenn. 2006) (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003)). In order to

determine whether a trial court‟s ruling regarding the exclusion of evidence violated a

defendant‟s right to present a defense, this Court must consider whether:

(1) the excluded evidence is critical to the defense; (2) the evidence bears

sufficient indicia of reliability; and (3) the interest supporting exclusion of

the evidence is substantially important.

Brown, 29 S.W.3d. at 433-34 (citing Chambers v. Mississippi, 410 U.S. 284, 298-301

(1973)).

None of the Brown factors listed above support admission of the evidence in

question. The evidence was not critical to the defense because, as explained above, the

defense theory was to rely on Defendant‟s various medical conditions to explain his

behavior. Defendant testified that he had hemophilia and was concerned that he could

bleed to death without serious medical intervention. Evidence that Defendant had agreed

to a blood test on a prior occasion was not critical to his overall defense theory.

Secondly, the evidence did not bear sufficient indicia of reliability. Defense counsel, in

opening statement, spoke to Defendant‟s characterization of this prior encounter: that he

agreed to the blood draw, was taken to the hospital, but the blood draw was never

conducted; however, Defendant did not make a proffer of the alleged evidence either

during trial or the motion for new trial hearing. The State, during the motion for new trial

hearing, argued that the arresting officer would have been called in rebuttal to testify that

the reason Defendant‟s blood was not drawn on that prior occasion was due to

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Defendant‟s belligerence and threats toward the officer, which was bolstered by a video

of that prior stop.2 Finally, the interests supporting exclusion of the evidence—relevance,

potential confusion for the jury, as well as potential prejudice to Defendant—are

substantially important and outweigh any slight probative value the evidence may have

had. Therefore, the trial court‟s ruling excluding this evidence did not violate

Defendant‟s right to present a defense.

II. Lay Opinion Testimony

Defendant argues that the trial court erred when it allowed Officer Minner to

testify to his opinion that Defendant was impaired and unsafe to drive. Defendant

concedes that he did not object to this testimony at trial; therefore, the argument is

waived unless Defendant can establish that the trial court committed plain error. See

Tenn. R. App. P. 36(a), (b). There are five factors that must be established before an

error may be recognized as plain:

(a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a

substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of

the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). The burden is on the accused to persuade the

appellate court that the trial court committed plain error and that the error was of “such a

great magnitude that it probably changed the outcome of the trial.” Id. at 283 (quoting

Adkisson, 899 S.W.2d at 642); see also Tenn. R. App. P. 36(b) (relief may be granted

when an “error involving a substantial right more probably than not affected the

judgment or would result in prejudice to the judicial process”). “[C]omplete

consideration of all the factors is not necessary when it is clear from the record that at

least one of the factors cannot be established.” Id.

In this case, Defendant cannot establish that a clear and unequivocal rule of law

has been breached. Under Tennessee Rule of Evidence 701, a lay witness may testify to

opinions or inferences that are rationally based on the perception of the witness and

helpful to a clear understanding of the witness‟s testimony or the determination of a fact

in issue. Opinion testimony which embraces an ultimate issue to be decided by the trier

of fact, if otherwise properly admitted, is not objectionable. See Tenn. R. Evid. 704.

“[A] lay witness may testify to his own physical condition or that of another person

2

We note that if the State had attempted to introduce this evidence during its case-in-chief, it

almost certainly would have been excluded under Tennessee Rule of Evidence 404(b).

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provided that the witness first states the detailed facts and then gives his opinion or

conclusion.” Simpson v. Satterfield, 564 S.W.2d 953, 955-56 (Tenn. 1978). Further,

“this Court has determined that a police officer‟s „opinion of intoxication as a lay witness

was clearly admissible based upon his perception of the [defendant] at the time of

arrest.‟” State v. Ernest Michael Turner, No. W2006-02661-CCA-R3-CD, 2008 WL

1700338, at *7 (Tenn. Crim. App. Apr. 4, 2008) (quoting State v. Johnnie Darrell Rice,

No. M2003-01294-CCA-R3-CD, 2004 WL 1857108, at *3 (Tenn. Crim. App. Aug. 17,

2004)); see also, e.g., State v. Dobbins, 265 S.W.3d 419, 420-21 (Tenn. Crim. App. 2007)

(affirming DUI conviction where officer testified that “he formed an opinion that the

defendant was too impaired to operate a motor vehicle”); State v. Lawrence, 995 S.W.2d

142, 144 (Tenn. Crim. App. 1998) (affirming DUI conviction where officer testified that

defendant “had been driving in an impaired state due to alcohol consumption”).

Officer Minner testified as to his experience investigating DUI cases and noted the

numerous signs of intoxication displayed by Defendant. His opinion that Defendant was

unsafe to drive was rationally based on his observations and was helpful to a

determination of a fact in issue—namely, whether Defendant was driving under the

influence of an intoxicant that impaired his ability to safely operate a motor vehicle. See

T.C.A. § 55-10-401(1). Defendant is not entitled to plain error relief.

III. Prosecutorial Misconduct in Closing Argument

Defendant contends that during closing argument, the prosecutor misstated the

evidence with regard to Defendant‟s vertigo medication and argued facts outside of the

record with regard to Defendant‟s hemophilia. However, Defendant failed to make a

contemporaneous objection to these statements at trial. Therefore, the issue is waived

unless Defendant can establish that the prosecutor‟s arguments constituted plain error.

Tenn. R. App. P. 36(a); see State v. Fusco, 404 S.W.3d 504, 519 (Tenn. Crim. App.

2012). As stated above, the burden is on the defendant to establish all five Adkisson

factors in order to persuade this Court that the trial court committed plain error. See State

v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

Closing argument is “a valuable privilege that should not be unduly restricted.”

Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d 411, 425

(Tenn. 2001); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). Closing arguments

“have special importance in the adversarial process,” allowing the parties “to present

their theory of the case and to point out the strengths and weaknesses in the evidence to

the jury.” State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008). Attorneys “should be given

great latitude in both the style and the substance of their arguments.” Id. at 131.

However, “a prosecutor‟s closing argument must be temperate, must be based on the

evidence introduced at trial, and must be pertinent to the issues in the case.” Id.

Although not exhaustive, this Court has recognized five general areas of potential

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prosecutorial misconduct during closing arguments: (1) intentionally misstating the

evidence or misleading the jury as to the inferences it may draw; (2) expressing personal

beliefs or opinions as to the truth or falsity of any testimony or evidence or the guilt of

the defendant; (3) inflaming or attempting to inflame the passions or prejudices of the

jury; (4) injecting issues broader than the guilt or innocence of the accused; (5) arguing or

referring to facts outside the record unless the facts are matters of common knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003). “A criminal conviction should

not be lightly overturned solely on the basis of the prosecutor‟s closing argument.”

Banks, 271 S.W.3d at 131. Instead, “an improper closing argument will not constitute

reversible error unless it is so inflammatory or improper that it affected the outcome of

the trial to the defendant‟s prejudice.” Id.

Defendant contends that the prosecutor misstated the evidence when she argued

that the vertigo medication warned against operating a motor vehicle. Specifically, the

prosecutor said:

And you have the boxes of that off-brand Dramamine, that anti-motion

sickness drug that says this is going to cause drowsiness, this is going to

cause you to use caution, you don‟t need to operate a motor vehicle or

heavy machinery. And why is that? Because it‟s impairing. It causes these

effects like alcohol does and alcohol can enhance those effects as well.

This argument was in direct reference to the box of medication brought by Defendant and

Defendant‟s admission that he had taken that medication. The box itself was admitted

into evidence and read aloud by Defendant, and the jury could have reviewed the warning

label to ensure that the prosecutor‟s interpretation matched their own. Defendant has not

shown that the prosecutor intentionally misstated the evidence or attempted to mislead

the jury and has not shown that the argument was so inflammatory that if affected the

outcome of the trial.

Defendant next argues that the prosecutor committed misconduct when relating

medical information to the jury regarding Defendant‟s hemophilia. Specifically,

Defendant takes issue with the prosecutor‟s statements that Defendant would have

discovered he had hemophilia long before he got his tattoo, that playing guitar would

cause a hemophiliac‟s hands to bleed, that people with diabetes must prick their fingers

which would be dangerous for a hemophiliac, and that a hemophiliac would be on some

type of anticoagulant to prevent bleeding. Defendant contends that these statements were

not entered into evidence by a qualified witness and that the prosecutor “served, in

essence, as her own expert witness.” However, it seems well within the realm of

common knowledge that hemophilia is a serious medical condition that could potentially

cause someone to bleed to death. The prosecutor in this case was questioning

Defendant‟s credibility by pointing to not only hypotheticals about childhood scrapes, but

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also to the medical records entered into evidence by Defendant that did not indicate any

concern about his blood or potential for bleeding. Defendant has not shown that the

prosecutor‟s statements breached a clear and unequivocal rule of law. Defendant is not

entitled to relief.

IV. Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. The relevant question is

whether any rational trier of fact could have found the accused guilty of every element of

the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,

443 U.S. 307, 319 (1979). The jury‟s verdict replaces the presumption of innocence with

one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence

introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d

247, 277 (Tenn. 2002). The prosecution is entitled to the “strongest legitimate view of

the evidence and to all reasonable and legitimate inferences that may be drawn

therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.

Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the

proof are matters entrusted to the jury as the trier of fact.” Wagner, 382 S.W.3d at 297

(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the

jury, approved by the trial court, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277

(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the role of this

Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for

those drawn from the evidence by the trier of fact. Id. The standard of review is the

same whether the conviction is based upon direct evidence, circumstantial evidence, or a

combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

It is unlawful for any person to drive a motor vehicle on any public roads of the

state while under the influence of any intoxicant, drug, substance affecting the central

nervous system, or a combination thereof that impairs the driver‟s ability to safely

operate a motor vehicle by depriving the driver of the clearness of mind and control of

oneself that the driver would otherwise possess. T.C.A. § 55-10-401(1).

In this case, the State presented the testimony of Officer Minner in addition to

the video of the traffic stop. Officer Minner testified that he noticed Defendant‟s

vehicle swerving and almost striking the curb of a median. Defendant was slow to

stop once Officer Minner activated both his lights and siren. When Officer Minner

approached Defendant, he noticed that Defendant had an odor of alcohol about his

person, bloodshot eyes, and slurred speech. Officer Minner attempted to conduct field

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sobriety tests, but Defendant would not follow instructions and continuously

interrupted Officer Minner. Officer Minner terminated the field sobriety tests when

Defendant became aggressive. Defendant then refused to submit to a blood test, from

which the jury may infer a consciousness of guilt. Based on both the video and

Officer Minner‟s testimony, any rational trier of fact could have found beyond a

reasonable doubt that Defendant was driving under the influence. Defendant is not

entitled to relief.

V. Variance and Constructive Amendment of the Indictment

Defendant argues that the indictment was constructively amended when the jury

was allowed to convict based on a theory that Defendant was under the influence of

medication where the original indictment charged Defendant with being under the

influence of an intoxicant. The State responds that the prosecutor‟s statement during

closing argument that Defendant may have been under the influence of medication was

not proof and, therefore, there was no constructive amendment of the indictment.

An accused has a constitutional right to be informed of the nature and cause of the

accusation against him or her. U.S. Const. amend. VI, XIV; Tenn. Const. art. I, § 9. An

indictment must provide notice of the offense charged, adequate grounds upon which a

proper judgment may be entered, and suitable protection against double jeopardy. T.C.A.

§ 40-13-202; State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). “[A] defendant cannot

legally be convicted of an offense which is not charged in the indictment or which is not

a lesser offense embraced in the indictment.” State v. Cleveland, 959 S.W.2d 548, 552

(Tenn. 1997) (citing State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996)).

As this Court observed in State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim.

App. 2001):

[C]ourts [must] distinguish between constructive amendments of the

indictment, which are reversible per se, and variances between indictment

and proof, which are evaluated under the harmless error doctrine. The

accepted test is that a constructive amendment of the indictment occurs

when the jury is permitted to convict the defendant upon a factual basis that

effectively modifies an essential element of the offense charged. . . . If, on

the other hand, the variation between proof and indictment does not

effectively modify an essential element of the offense charged, the trial

court‟s refusal to restrict the jury charge to the words of the indictment is

merely another of the flaws in trial that mar its perfection but do not

prejudice the defendant.

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Id. (quoting United States v. Adams, 778 F.2d 1117, 1123 (5th Cir.1985)). A variance

between an indictment and the evidence presented at trial “is not fatal unless it is both

material and prejudicial.” State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App.

2000) (citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984); State v. Ealey, 959

S.W.2d 605, 609 (Tenn. Crim. App. 1997)). A variance is not material when the

indictment and the proof substantially correspond, the defendant is not misled or

surprised at trial, and there is protection against a second prosecution of the same offense.

Moss, 662 S.W.2d at 592.

In this case, there was no constructive amendment of the indictment and no fatal

variance between the indictment and the proof adduced at trial. The trial court instructed

the jury with regard to the essential elements of driving under the influence as follows:

For you to find the defendant guilty of this offense, the State must have

proven beyond a reasonable doubt the existence of the following essential

elements:

(1) that the defendant was driving or was in physical control of an

automobile or motor driven vehicle;

and (2) that this act occurred on a public road or highway or public street or

alley;

and (3) that the defendant was under the influence of an intoxicant.

The expression “under the influence of an intoxicant” covers not only all

well-known and easily recognized conditions and degrees of intoxication,

but also any mental or physical condition which is the result of taking an

intoxicant in any form and which deprives one of that clearness of mind

and control of one‟s self which one would otherwise possess. In this

situation, it would not be necessary that the person be in such a condition as

would make him or her guilty of public drunkenness. The law merely

requires that the person be under the influence of an intoxicant. The degree

of intoxication must be such that it impairs to any extent the driver‟s ability

to operate a vehicle.

Even if we were to accept Defendant‟s argument that the term “intoxicant” does not

include drugs and medications—which has been soundly rejected by this Court, see State

v. Carolyn Nadine Killian, No. M2011-02591-CCA-R3-CD, 2012 WL 6171063, at *9

(Tenn. Crim. App. Dec. 11, 2012) (holding that the term “intoxicant” includes both

alcohol and drugs), no perm. app. filed—the trial court instructed the jury only with

regard to being under the influence of an intoxicant, the word used in the indictment. The

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State‟s theory at trial was that Defendant was driving under the influence of alcohol,

which is an intoxicant. See State v. Clark, 355 S.W.3d 590, 594 (Tenn. Crim. App.

2011). Any argument by the prosecutor that Defendant may have also been under the

influence of an over-the-counter anti-motion sickness medication was in direct response

to Defendant‟s testimony and was not evidence. See Cleveland, 959 S.W.2d at 555

(“[S]tatements of counsel during closing argument are not evidence.”). Furthermore,

Defendant cannot claim that he was misled or surprised by the prosecutor‟s arguments

when he introduced the evidence in the first place. See Moss, 662 S.W.2d at 592.

Defendant is not entitled to relief.

VI. Sentencing

Though not raised by either party, Defendant‟s sentence for second offense DUI is

illegal because it directly contravenes an applicable statute. The record before this Court

includes an order from the trial court allowing Defendant to serve the 100-day portion of

his sentence in periodic confinement due to his employment. Pursuant to statute,

Defendant is required to serve the mandatory minimum sentence of 45 days continuously

and is not eligible for probation until he has served at least that time. T.C.A. § 55-10-

402(a)(2)(A), -411(c). Furthermore, according to Defendant‟s affidavit of indigency for

the appointment of appellant counsel, he is no longer employed.3 Therefore, we remand

the case to the trial court for reconsideration of the manner of service of Defendant‟s

sentence.

Conclusion

Based on the foregoing, we affirm the judgments of the trial court with regard to

Defendant‟s convictions. We reverse the trial court‟s judgment with regard to the manner

of service of Defendant‟s sentence and remand the case for reconsideration.

_________________________________

TIMOTHY L. EASTER, JUDGE

3

The trial court entered an Order for Periodic Confinement on July 11, 2014. The Defendant‟s

sworn Uniformed Affidavit of Indigency was signed by Defendant on October 30, 2014.

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