         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs October 26, 2005

               STATE OF TENNESSEE v. TYLER STOUT SMITH

                 Direct Appeal from the Criminal Court for Putnam County
                           No. 03-0356    Lillie Ann Sells, Judge


                   No. M2004-03048-CCA-R3-CD - Filed February 16, 2006


Following a jury trial, Defendant, Tyler Stout Smith, was convicted of vehicular homicide by
recklessness. Defendant was ordered to pay a fine of ten thousand ($10,000) dollars and was
sentenced to four (4) years in the Department of Correction. On appeal, Defendant argues that (1)
the evidence presented was insufficient to establish the element of recklessness beyond a reasonable
doubt; (2) Defendant's due process rights were violated when the trial court did not allow him to
present evidence that the victim was influenced by an intoxicant which may have influenced her
ability to avoid the collision; and (3) the trial court improperly increased the Defendant's sentence
from three years to four years. We affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.
and ROBERT W. WEDEMEYER , JJ., joined.

Edwin G. Sadler, attorney for appellant, Tyler Stout Smith.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
William Edward Gibson, District Attorney General; and David A. Patterson, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                            OPINION

         On November 25, 2002, at approximately 7:00 a.m., Lori Taylor, a Jackson County resident,
was taking her children to daycare and commuting to work in Putnam County via Highway 290,
commonly known as Gainesboro Grade Road. Ms. Taylor was traveling on Highway 56 when she
initially saw Defendant sitting at a stop sign on Flynn's Creek Road. As she moved into the turn lane
to turn left east bound onto Gainesboro Grade Road, Ms. Taylor immediately noticed Defendant's
truck behind her SUV. She stated that “[Defendant] came upon me really fast and I thought he was
going to ram me.” Ms. Taylor said that after this first encounter, she “kind of watched [Defendant's]
reaction and what he was doing from that point on.”
        Defendant turned left onto Gainesboro Grade Road behind Ms. Taylor. She turned to look
at Defendant and saw that when he turned left, he continued left and swerved into the westbound
lane. There was no oncoming traffic present at the time. Defendant then drove his truck back into
the lane behind Ms. Taylor, and the two cars proceeded eastbound on Gainesboro Grade. Ms. Taylor
eventually encountered another truck traveling eastbound at a much slower rate of speed which
forced both she and Defendant to slow their own cars. Defendant attempted to pass both Ms. Taylor
and the truck, but oncoming traffic prohibited him from passing. She could not remember if the
attempt occurred in an area that permitted passing, but she recalled that she moved her SUV into the
emergency lane because she thought Defendant was going to collide with the oncoming traffic.

        When they reached the intersection of County Farm Road, which runs north and south from
Gainesboro Grade Road, Defendant moved into the emergency lane to the right of Ms. Taylor and
proceeded through the intersection in this manner. She was then prompted to speed up when she
noticed that the front end of Defendant's truck was even with her car at the point where her two-year
old daughter was riding in the backseat. As they continued east, Defendant again moved into the
westbound lane and tried to pass Ms. Taylor despite the road having a double yellow line prohibiting
passing. Ms. Taylor made the decision that she was going to call 9-1-1 because she felt that
Defendant was “not going to make it” once they entered into four lanes of traffic. She used her cell
phone to dial 9-1-1 while continuing to observe Defendant in her rearview mirror. Ms. Taylor
recalled that as she dialed 9-1-1, she saw a red car and then a white car in the westbound lane, and
then Defendant crossed over the double line again into the oncoming traffic. When his truck crossed
into the westbound lane, Defendant collided with a red Saturn convertible, killing the driver, Tammy
D. Goodwin.

         Jennifer Salinge, an employee of the Tennessee Tech University Police Department, also
testified as to her observations on the day of the accident. When the accident occurred, Ms. Salinge
was driving immediately behind Defendant on her way to take her children to school and herself to
work. She stated that she was concerned with Defendant’s driving that morning because she had
witnessed Defendant trying to pass Ms. Taylor both in the emergency lane and the westbound lane
of traffic in areas where there were double yellow lines. Defendant’s erratic driving prompted Ms.
Salinge to slow the speed of her own car in order to remain a safe distance from his truck.

         Ms. Salinge clearly saw the wreck occur. Approximately fifty to one hundred yards from
where Gainesville Grade Road becomes a four-lane highway, she saw Defendant cross over double
yellow lines into oncoming traffic and collide with the victim’s car. Ms. Salinge stated that when
Defendant’s truck collided with that of the victim’s, over half of his truck was in the oncoming lane
of traffic. She explained that the driver’s side of Defendant’s truck was completely in the westbound
lane and hit the oncoming car, driving up and over the top of the victim’s car, and flipping
Defendant’s truck. Ms. Salinge swerved to avoid the wreck, then parked her car and used her work
radio to call in the accident to the Cookeville Police Department.

       Pam Holt testified that she was driving in the westbound lane immediately behind the victim
when the two cars collided. Based upon her own speed, Ms. Holt did not believe the victim was


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speeding. She testified that she followed the victim’s car into a curve in the road and then saw
Defendant’s truck move into the westbound lane of traffic. Defendant’s truck drove over the top of
the victim’s car, the truck went airborne, and the victim’s car spun out of control coming to rest at
a stop sign. Ms. Holt swerved and avoided being hit by either car. When Ms. Holt stopped her car,
she called 9-1-1, but the dispatcher informed her that they had already been contacted about the
wreck.

        Sgt. Mike Lee, with the Cookeville Police Department Traffic Enforcement Section, testified
that he investigated the accident involving Defendant and the victim on November 25, 2002. Upon
his arrival, Sgt. Lee took photographs of the scene and observed the condition of the victim and
Defendant. He said that there was no indication from the scene that the victim’s vehicle had any
fault in the incident. On cross-examination, he stated that in his opinion, Defendant’s vehicle
crossed over into the victim’s lane of traffic, hitting the victim’s car and killing her.

         Trooper David Roark with the Tennessee Highway Patrol Critical Incident Response Team,
testified as an expert witness in accident reconstruction. Based on measurements, photographs, and
diagrams constructed of the accident site, Trooper Roark testified that the accident was an opposite
direction collision, meaning less that fifty percent frontal impact on both cars. He explained that the
evidence from the scene indicated Defendant’s truck crossed over into the victim’s lane of traffic
prior to colliding with the victim’s car. Trooper Roark stated that, in his opinion, the victim was not
at fault in any way.

         Officer Randy Brown, an officer with the Cookeville Police Department Traffic Enforcement
Section, testified that he was the primary officer assigned to collect evidence and investigate the
scene of the accident on November 25, 2002. He arrived at the scene at 9:01 a.m.. He explained that
seven-thirty in the morning is the busiest time of day for the area where the accident occurred
because it is during the morning school hours when people are taking their children to school and
commuting to work. Officer Brown verified that the accident occurred in an area with double yellow
lines. At the scene, Officer Brown identified Defendant as the driver of the truck, but the victim had
been removed prior to his arrival. He took statements from Defendant and the other witnesses. The
statements taken from Ms. Taylor, Ms. Salinge, and Ms. Holt were consistent with their testimony
at trial. Defendant did not hesitate to cooperate with Officer Brown on any matter. Defendant told
Officer Brown that he could not remember what had happened. He said that he was coming into
town on Gainesboro Grade Road and he looked down to change the radio station and must have
crossed the center line and struck the oncoming vehicle.

        Defendant was given every opportunity to discuss what happened with Officer Brown. He
did not mention anyone putting their brakes on or the need to avoid the car in front of him.
Defendant admitted to Officer Brown they he had taken a trip to Tunica, Mississippi, over the
weekend to celebrate a friend’s twenty-first birthday. He told Officer Brown that during the course
of the weekend he used Oxycodone, Xanax, and about a quarter gram of cocaine. Defendant also
admitted to drinking beer while on the trip. As is customary in accidents involving fatalities,
Defendant submitted to a blood and urine test. The blood test was negative for any type of drugs or


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alcohol. The urine test however, was positive for Cocaine, Ecgonine methyl ester--a metabolite of
Cocaine, Oxycodone, and Dihydrocodeinone. The urine test also showed traces of a cough
suppressant and antihistamine. Defendant told Officer Brown that he left Tunica at approximately
2:00 p.m. on Sunday afternoon and arrived home in Jackson County at around 10:00 p.m. Sunday
night. He said that he got up about 6:20 a.m. on Monday, the day of the accident, and got ready to
come into town. Officer Brown said the weather was clear and dry on the day of the accident. He
also said that during questioning the morning of the accident, Defendant did not appear to be under
the influence of drugs or alcohol. Officer Brown also verified that the victim’s death certificate
identified the cause of death as multiple trauma from a motor vehicle accident.

       Bonnie Smith, the victim’s mother, testified that the victim was living with her on
Gainesboro Grade at the time of the accident. Ms. Smith owned the red Saturn convertible that the
victim was driving when she was killed. She stated that the victim had taken her daughter, Amanda,
to school and her other child, a son, had stayed at home with Ms. Smith.

        Defendant testified that on the weekend preceding the accident, he went to Tunica with some
friends to celebrate his best friend’s twenty-first birthday. He said that he planned on drinking and
gambling, but he had not intended on using drugs, nor did he take any drugs to Tunica with him.
Defendant acquired the drugs that he used from someone he met in Tunica. He said the last time he
recalled using drugs was around 3:00 p.m. on Saturday, November 23, 2002. After partying Friday
and Saturday night, Defendant went to bed around 2:30-3:00 a.m. Sunday morning and slept for
about nine hours.

         Defendant left Tunica around 1:00 p.m. on Sunday, November 24, 2002, and after driving
a girlfriend home, met his parents around 10:00 p.m. at a restaurant in Columbia, Tennessee.
Defendant rode home with his mother in her car, and Defendant’s father drove Defendant’s truck
home. Defendant testified that they arrived at their home around 12:30 a.m., Monday morning. At
trial, both of Defendant’s parents testified to his history of drug abuse and his prior experience in a
drug rehabilitation center. They explained that they drove to Columbia to meet their son because
they knew he would be tired and need help driving after such a long weekend. Both parents also
conceded that they were worried, and they had concerns that Defendant may have relapsed and used
drugs during his trip to Tunica.

        On the morning of the accident, Monday, November 25, Defendant woke up around 6:00
a.m., ate breakfast, and left his parent’s house around 7:00 a.m. to do community service work at the
recycling center. Defendant said that the drugs he had used over the weekend had no actual bodily
effect on his ability to drive Monday morning. He admitted that he pulled out to pass Ms. Taylor
and the slow-moving truck, but denied any knowledge that he swerved when turning onto
Gainesboro Grade from Hwy 56. He further denied any recollection of trying to pass Ms. Taylor in
areas prohibiting passing, and he denied having attempted to pass in the right hand emergency lane.
Defendant admitted that he never said Ms. Taylor put on her brakes immediately preceding the
accident and that he did not believe she did. Defendant claimed that he was not driving recklessly
on the day of the accident.


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        Dr. Opless Walker, Director of Pharmacy at the Cookeville Regional Medical Center,
provided expert testimony that the drugs found in Defendant’s urine did not affect his ability to drive
the morning of the accident. Dr.Walker testified that he analyzed each of the drugs found in
Defendant’s urine according to the pharmacology, or behavior, known about the drug. He stated that
in his opinion, on November 25, 2002, at 7:32 a.m., Defendant was not under the influence of an
intoxicant. Dr. Walker explained that there was no evidence of drugs in Defendant’s blood, and
because blood dictates the actions of the human body, the drugs Defendant consumed could not have
affected his actions the morning of the accident because there was no evidence of the drugs in
Defendant’s blood.

I. Sufficiency of the Evidence

        Defendant first argues that the evidence presented at trial was insufficient to establish the
element of recklessness beyond a reasonable doubt. When an accused challenges the sufficiency of
the evidence, this Court's standard of review is whether, after considering the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d
771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both
direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Questions concerning the credibility of the witnesses, the weight and value of the evidence,
and all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). In determining the sufficiency of the evidence, this
Court does not re-weigh or reevaluate the evidence and may not substitute its inferences for those
drawn by the trier of fact from circumstantial evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978); Liakas, 199 Tenn. at 305, 286 S.W.2d at 859. This Court must afford the State the
strongest legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Herrod, 754 S.W.2d 627, 632
(Tenn. Crim. App. 1988). 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 court of illustrating why
the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        Defendant was convicted of vehicular homicide by recklessness. “Vehicular homicide is the
reckless killing of another by the operation of an automobile . . .[a]s the proximate result of conduct
creating a substantial risk of death or serious bodily injury to a person.” T.C.A. § 39-13-213(a)(1)
(2003). “‘Reckless’ refers to a person who acts recklessly with respect to circumstances surrounding
the conduct or the result of the conduct when the person is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result will occur.” T.C.A. § 39-
11-106(a)(31) (2003). “The risk must be of such a nature and degree that its disregard constitutes
a gross deviation from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the accused person’s standpoint.” Id.



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         The evidence established that on November 25, 2002, at approximately 7:30 a.m., Defendant
was driving his truck when it collided with a red Saturn convertible, killing the driver. Witnesses
testified that in the minutes preceding the collision, Defendant was swerving erratically, driving in
the emergency lane, and attempting to pass in the oncoming lane of traffic without regard for the
double yellow line. There was testimony that one witness was so concerned prior to the collision
that she pulled out her phone to call 9-1-1. The witnesses also testified that at the moment of the
accident, Defendant crossed over a double yellow line into the victim’s lane of traffic and ran over
the top of her car before going airborne in his truck and landing upside down.

        The investigation conducted by the Cookeville Police Department and the Tennessee
Highway Patrol confirmed the witnesses’ accounts of the accident. The investigation also
established that the victim was in no way at fault for the accident, and that Defendant did cross into
the victim’s lane of traffic immediately preceding the collision. Defendant argues that he looked
away from the road only to operate his car radio, and in that moment he drifted over the double
yellow line and collided with the victim. He contends that operating a car radio does not rise to the
level of recklessness contemplated by the vehicular homicide statute. The jury was free to accept
Defendant’s theory and his account of the events leading up to the accident. See State v. Summerall,
926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). Likewise, the jury was free to fully accredit the
theory presented by the State and disregard Defendant’s assertions. Id. As evidenced by it’s verdict,
the jury chose to accredit the theory of the prosecution. We find the evidence sufficient to support
the jury’s determination. Defendant is not entitled to relief on this issue.

II. Due Process Violation

        Defendant next argues that his due process rights were violated because he was not allowed
to present evidence that the victim may have been influenced by an intoxicant which hindered her
ability to avoid the accident. The State filed a Motion in Limine to preclude Defendant from
introducing evidence which revealed that the victim had controlled substances in her body at the time
of the accident. The trial court granted the State’s motion. Defendant argues that the granting of this
motion violated his due process rights under the federal and state constitutions because he was
unable to present a defense that might have negated the State’s theory of recklessness.

         In the record submitted on appeal, Defendant failed to include a transcript of the hearing on
the Motion in Limine. The defendant has the obligation to ensure that the record on appeal is
sufficient to allow meaningful review. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).
Thus, the failure to include the transcript of the Motion in Limine hearing generally constitutes a
waiver of the issue. See Tenn. R. App. P. 24(b); Thompson v. State, 958 S.W.2d. 156, 172 (Tenn.
Crim. App. 1997). When no transcript is included in the record, this Court must presume that the
ruling of the trial court is correct. See Ballard, 855 S.W.2d at 560-61; State v. Taylor, 669 S.W.2d
694, 699 (Tenn. Crim. App. 1983). Because the record on appeal does not contain a transcript of the
Motion in Limine hearing, Defendant has waived this issue on appeal and therefore is not entitled
to relief.



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III. Sentencing

       Finally, Defendant asserts that the trial court erred in sentencing him to serve four years for
his conviction of vehicular homicide by recklessness, a Class C felony. Defendant argues that he
should have received the minimum sentence for a Range I, standard offender because there were no
enhancement factors applicable to his offense. Specifically, Defendant argues that the trial court
improperly found that his previous driving record contained offenses constituting a criminal history.
He asserts that speeding tickets, and tickets for improper turns do not constitute criminal behavior.

        When a defendant challenges the length, range, or manner of service of his sentence, this
Court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d) (2003). This presumption of correctness is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999). If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and the trial court’s findings of fact are
adequately supported by the record, the presumption is applicable and we may not modify the
sentence even if we would have preferred a different result. See State v. Fletcher, 805 S.W.2d 785,
789 (Tenn. Crim. App. 1991). We will uphold the sentence imposed by the trial court if (1) the
sentence complies with the purposes and principles of the 1989 Sentencing Act, and (2) the trial
court’s findings are adequately supported by the record. See State v. Arnett, 49 S.W.3d 250, 257
(Tenn. 2001). However, if the record shows that the trial court failed to consider the sentencing
principles and all relevant facts and circumstances, then review of the challenged sentence is purely
de novo without the presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
On appeal, the defendant has the burden of showing that the sentence imposed by the trial court is
improper. T.C.A. § 40-35-401(d), Sentencing Commission Comments.

        We find that the trial court properly considered the sentencing principles, therefore our
review is de novo with a presumption of correctness. As stated, Defendant was convicted of the
Class C felony of vehicular homicide by recklessness and sentenced as a Range I, standard offender.
Pursuant to Tennessee Code Annotated section 40-35-112(a)(3) (2003), Defendant may be sentenced
to serve “not less than three (3) nor more than six (6) years” for this conviction. The presumptive
sentence for a Class C felony is three (3) years provided there are no enhancement or mitigating
factors. See T.C.A. § 40-35-210(c)(1) (2003). If the trial court finds that there are enhancement
factors, and mitigating factors, “[t]he sentence length within the range should be adjusted, as
appropriate.” T.C.A. § 40-35-210(c)(2).

        The trial court applied only enhancement factor number two under Tennessee Code
Annotated section 40-35-114 (2003). Enhancement factor number two is concerned with whether
the defendant has a “previous history of criminal convictions or criminal behavior, in addition to
those necessary to establish the appropriate range.” T.C.A. § 40-35-114(2). Defendant had four
prior speeding tickets, one ticket for improper turn, he was ordered to attend a defensive driving


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course in January 2002, and he was on pretrial diversion for another offense at the time the accident
occurred. Defendant also admitted to the use of narcotics on the weekend immediately preceding
the Monday morning accident. Not surprisingly, the trial court found it important that after the
accident on November 25, 2002, Defendant received two more tickets, and although they were both
dismissed after a trial, he received one such ticket the day after a night of drinking. The court stated,
“I do consider that criminal behavior and . . . [t]hat kind of driving history in this particular kind of
case, I do give it a lot of weight, quite a bit of weight.” The trial court did find Defendant’s age to
be a mitigating factor, but did not give it much weight in light of his extensive driving history.

        We find that it was within the trial court’s discretion to consider Defendant’s driving history
as criminal behavior in determining the length of his sentence. We agree with this determination,
and we will not overturn the trial court’s decision. It is our conclusion that a four year sentence of
confinement in this case is consistent with the sentencing principles and supported by relevant facts
and circumstances. Accordingly, the trial court did not err in sentencing Defendant to serve four
years for his conviction of vehicular homicide by recklessness. Defendant is not entitled to relief
on this issue.

                                           CONCLUSION

        For the foregoing reasons, the judgment of the trial court is affirmed.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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