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State v. Davis10/28/1999
The appellant, Wanda E. Davis, was convicted by a Wilson County jury of one (1) count of driving under the influence , second offense. She was fined $600, and the trial court sentenced her to eleven (11) months and twenty-nine (29) days in jail; all but 45 days of the sentence was suspended. On appeal, the appellant raised the following issues for this Court's review:
(1) whether the trial court erred by failing to dismiss the case because of alleged defects in the indictment;
(2) whether the trial court erred in admitting the testimony of a state's witness when the appellant was not provided with pretrial discovery information relating to the witness;
(3) whether the trial court erred by restricting the appellant's cross examination of Trooper Vaughn;
(4) whether the trial court erred by refusing to admit testimony concerning a statement made by Trooper Vaughn to the appellant;
(5) whether the trial court erred in denying a mistrial after the state conducted improper questioning of the appellant;
(6) whether the state's closing argument constituted prosecutorial misconduct which warranted a mistrial; and
(7) whether the evidence is sufficient to support the appellant's conviction.
After a thorough review of the record, we conclude that there is no reversible error and, therefore, affirm the judgment of the trial court.
FACTS
In the early morning of January 23, 1997, Henry Kerr was traveling on Mt. Juliet Road when he noticed a vehicle in a ditch. When Kerr stopped to assist the motorist, the appellant got out of the vehicle and asked Kerr if he would push her vehicle from the ditch. Kerr refused the appellant's request but offered to call a wrecker once he arrived at his home. Immediately upon arriving home, Kerr contacted Oco Hamblen, who owned a wrecker service.
Once Hamblen arrived at the scene, he hooked his wrecker to the appellant's vehicle and pulled it from the ditch. Hamblen then asked the appellant to get in the vehicle and either push down on the brakes or shift into park. Instead, the appellant shifted the vehicle into gear, allowing it to roll back into the ditch. After Hamblen pulled the vehicle from the ditch a second time, the appellant got out of her vehicle and began to complain that Hamblen had damaged her vehicle. Hamblen responded by 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 drinking. The appellant acknowledged that she had consumed a couple of beers that evening. Vaughn administered three field sobriety tests, all 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 arrest. He then asked her to submit to a blood alcohol test, and the appellant consented. The blood alcohol test results revealed that the appellant's blood alcohol level was 0.21%.
The appellant was indicted in a three-count indictment charging alternative 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 night, but had met a man named "Allen" at a local bar whom she had allowed to drive her automobile. They were driving on Mt. Juliet Road wh
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