       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 8, 2016

            STATE OF TENNESSEE v. ERIC DWAYNE WILSON

                 Appeal from the Circuit Court for Warren County
                  No. 15-CR-581      Larry B. Stanley, Jr., Judge
                     ___________________________________

                No. M2016-00822-CCA-R3-CD – Filed May 25, 2017
                     ___________________________________

Defendant, Eric Dwayne Wilson, in a jury trial, was convicted of third offense driving
under the influence of an intoxicant (DUI), and of violating the implied consent law
following a bench trial. Defendant pleaded nolo contendere to failure to stop at a stop
sign and failure to have each required lamp and stoplight in operating condition.
Defendant received a sentence of eleven months, twenty-nine days, with three hundred
days of confinement in the county jail and the remainder of the sentence on supervised
probation. He was also ordered to pay a $5,000 fine, and his license was revoked for six
years. Concerning the implied consent violation, the judgment form indicates that
Defendant’s driver’s license was revoked for one year “consecutive to any revocation or
suspension currently in effect.” Defendant was also sentenced to thirty days each for
failure to stop at a stop sign and failure to have each required lamp and stoplight in
operating condition to be served concurrently with the DUI charge. On appeal, Defendant
contends that the evidence was insufficient to support his conviction for DUI and that
there was no proof relating to the implied consent form and the search warrant. After a
thorough review of the record, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT W. WEDEMEYER, JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Eric Dwayne Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel,
Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Darrell
Julian, Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

Background

      State’s Proof

        At approximately 9:00 p.m. on April 5, 2014, Deputy Eddie Colwell of the Warren
County Sheriff’s Department was parked on “the little private drive on Crisp Springs
Road” next to a market, watching traffic at the intersection of Old Shelbyville Road and
Crisp Springs Road. While sitting there, Deputy Colwell saw a Honda car run past the
stop sign at the intersection without stopping. The car was traveling on Crisp Springs
Road and made a left turn onto Old Shelbyville Road and was headed toward
McMinnville. Deputy Colwell also noticed that the driver’s side rear brake light of the
car was broken. Deputy Colwell activated his blue lights and pulled the vehicle over. He
walked up to the car and attempted to tell the driver, whom he said was Defendant, who
he was and why he had pulled Defendant over. Deputy Colwell testified that Defendant
began “yelling vulgar words as in, f[- -]k you, Jason Walker and saying that [Deputy
Colwell] was Jason Walker . . .” Deputy Colwell attempted to calm Defendant, and he
told Defendant multiple times that he was not Jason Walker. Jason Walker was a
Sergeant with the Warren County Sheriff’s Department and was Deputy Colwell’s
supervisor at the time. Defendant again said, “f[- -]k you, you’re profiling me[.]” He
also told Deputy Colwell that if the deputy did not have a gun, Defendant would “kick
[his] f [- -]king ass.” Deputy Colwell testified that Defendant’s speech was slurred, and
“his eyes appeared to be constricted and bloodshot.”

        Other officers arrived on the scene, and Deputy Colwell asked Defendant to exit
his vehicle and perform some field sobriety tests. Deputy Colwell testified that
Defendant at that point thought everything “was a big joke,” and he was laughing.
Deputy Colwell testified that the first test given was the horizontal gaze nystagmus
(HGN), the second test was the walk-and-turn test, and the third test was the one-leg-
stand. Deputy Colwell explained the tests to Defendant, and Defendant indicated that he
understood them. Since the HGN is a scientific test, Deputy Colwell did not testify
concerning the results of that test. He said that on the walk-and-turn test, Defendant
could not keep his balance during the instructional stage. Deputy Colwell further
testified: “[A]lso on the walking down and turn around and coming back he st[e]pped off
the line and raised his arms for balance going down and coming back.” Deputy Colwell
determined that Defendant showed “clues of impairment” on the test.

       Deputy Colwell then administered the one-leg-stand test to Defendant. As Deputy
Colwell demonstrated the test to Defendant, Defendant “was making smart alec remarks,
acting like everything was a joke and it was funny to him.” When Defendant attempted
to perform the test, “[h]e showed clues by putting his foot down three times and he also
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raised his arms for balance.” Deputy Colwell testified that he asked Defendant about
medications or alcohol, and Defendant indicated that he had not consumed anything.
Defendant did not mention any physical infirmities or injuries from fighting. Deputy
Colwell also noted that Sergeant Jason Walker later arrived at the scene, and Defendant
finally realized that Deputy Colwell was not Sergeant Walker.

        Deputy Colwell testified that he asked Defendant to perform some additional
“tasks.” On the “[f]inger dexterity,” Defendant “miscounted several times by jumping
around on numbers from say 4 to 1 or 2 to 4. [Defendant] couldn’t do his numbers
correctly.” Deputy Colwell next asked Defendant to start with the letter E of the alphabet
and stop at the letter S. Defendant could not complete the task because he skipped letters.
At that point Deputy Colwell felt that Defendant could not safely operate a vehicle, and
he placed Defendant under arrest. Defendant “started cussing and yelling saying this was
f[- - ]kin’ bullshit,” and he was “argumentative about the arrest.” Deputy Colwell asked
for a blood sample, and Defendant refused. He then read Defendant the “Tennessee
Implied Consent Form.” Defendant still refused to give a blood sample. Deputy Colwell
advised Defendant of his Miranda rights and transported him to the Warren County
Sheriff’s Office. As they drove past the National Guard Armory, Defendant said that
there were people outside the armory who were cheering for him because he was a
mixed-martial-arts (MMA) fighter, and he had gotten arrested. However, no one was
actually outside of the armory at the time.

       Deputy Colwell obtained a search warrant for a sample of Defendant’s blood after
they arrived at the sheriff’s office. Thereafter, Defendant was transported to the River
Park Hospital to have his blood drawn. Deputy Colwell testified that Defendant was
“very friendly” and kind to the nurses “because he was talking about how pretty and stuff
they were, the things that he would like to do.” Deputy Colwell testified that he was
present when Defendant’s blood was drawn and that it was placed into vials, labeled,
sealed, “and placed into evidence at the sheriff’s department” until it was sent to the
Tennessee Bureau of Investigation (TBI) Crime Lab to be tested for drugs or alcohol.

      Special Agent Holly Carrell is a Forensic Scientist in the toxicology section of the
TBI Crime Lab and an expert in the field of forensic toxicology. She analyzed the blood
samples in the present case and found that the sample contained methamphetamine at
“.16 micrograms per milliliter and amphetamine was found at less than .05 micrograms
per milliliter.” Special Agent Carrell testified that .16 micrograms per milliliter of
methamphetamine is above the therapeutic level. She further explained:

        Therapeutic level is what if you were to be prescribed the drug it’s the
        range in which a doctor would want you to be so that you were receiving
        the desired effects of the drug. In this case methamphetamine had a
        therapeutic level range of .01 to .05 micrograms per milliliter.
                                           -3-
       Special Agent Carrell considered the amount of methamphetamine in the sample
to be a “significant amount.” Concerning the effects of that amount of methamphetamine
on an individual, she testified:

        So methamphetamine is a central nervous system stimulant which means
        that it travels to your central nervous system and has a stimulating effect
        on the brain. So that can include effects such as euphoria, you know,
        feeling really, really good and excited about everything. It can make you
        also aggressive. It can also cause hallucinations or delusions, psychosis,
        hyperactivity or being fidgety and nervous, agitation, increased risk
        taking and yes, so things like those type of effects are typical with
        methamphetamine.

Special Agent Carrell testified that the level of methamphetamine in the sample could
also adversely impact the ability to safely operate a motor vehicle.

       Special Agent Carrell testified that Defendant’s blood also contained amphetamine
which is a metabolite of methamphetamine. She said, “Amphetamine does have its own
effects and also amphetamine can be prescribed on its own.” Special Agent Carrell
explained:

        Amphetamine is also a central nervous system stimulant and it has
        similar effect to methamphetamine. So aggressive behaviors,
        restlessness. You can experience hallucinations or delusions,
        nervousness, things like that.

She testified that methamphetamine and amphetamine taken together or separately have
effects on “divided attention tasks.” They also impair judgment, visual perception, and
reaction times. The parties stipulated at trial that the blood sample did not contain ethyl
alcohol.

       On cross-examination, Special Agent Carrell agreed that the National Highway
Traffic Safety Administration level of methamphetamine for normal recreational usage is
from .01 to .25 milligrams per liter with a median of .6.

       Defendant’s Proof

       Faye Wilson, Defendant’s mother, testified that Defendant worked on the family
farm from approximately 6:30 a.m. until 8:00 p.m. on April 5, 2014, riding a tractor and
disking fields. She saw Defendant when he came in to eat lunch and when he stopped by
her house at 8:00 p.m. Mrs. Wilson testified Defendant was covered in dust when he
                                           -4-
stopped by, and his eyes were red. She said that Defendant told her that he was going
home to “clean up” and then going to Taco Bell to get something to eat. He also
mentioned that it was his birthday. Ms. Wilson testified that Defendant seemed fine at
the time.

        Ms. Wilson testified that Defendant called her between 8:30 and 9:00 p.m. from
his cell phone to tell her that he had been pulled over on Crisp Springs Road and that he
was being charged with DUI. He told her that Sergeant Jason Walker and someone
named “Griffith” were on the scene. Mrs. Wilson noted that Defendant and Sergeant
Walker had attended school together beginning in the third grade, and the two always had
problems with one another. She described them as “oil and vinegar.” Mrs. Wilson
testified that Defendant told her, “I’m going up there and I’m going to take that test and
he said, I’m going to show them assholes that I am sober.” Mrs. Wilson noted that
Defendant cursed when he was anxious or upset, and he slurred his words.

      Mrs. Wilson testified that Defendant called her a second time from the Warren
County Jail and said that the prosecutor had walked in and served him with a warrant for
a blood test. Mrs. Wilson testified that she could hear the prosecutor tell Defendant to
cooperate. She said that Defendant told her that he did not take the test earlier because he
was taken to jail rather than the hospital.

        Mrs. Wilson testified that Defendant was a boxer for ten years and that he was
very clumsy. She also noted that he had seizures when he was “about nine or ten.” Mrs.
Wilson testified that Defendant had been punched in the head during his boxing career,
and he had been knocked out one time. She thought that the boxing affected Defendant’s
speech and balance. Mrs. Wilson testified that Defendant’s “concentration level” was
bad, and he did not follow tasks very well. She noted that he could sometimes be
embarrassing because of his behavior. Mrs. Wilson testified that Defendant had an older
brother who had been a passenger in the backseat of a car driven by an impaired driver in
1998. She said that Defendant’s brother has numerous difficulties due to the accident and
that “[b]asically he exists.” Therefore, she would not allow Defendant to drive a vehicle
if she thought that he was impaired, and he would never have left her house if she thought
that he was impaired.

       On cross examination, Mrs. Wilson testified that she had lunch with Defendant on
April 5, 2014, and her husband took fuel to him one time while he was disking that day.
When asked if Defendant was “constantly in her surveillance that entire time,” Mrs.
Wilson replied: “Pretty much so because I was outside in my garden most of the time.”
She said that she could see anything he was doing, and no one else “stepped foot on the
property that day.”


                                           -5-
       Mrs. Wilson agreed that Defendant was familiar with the intersection of Crisp
Springs Road and Old Shelbyville Road and that he would know that there was a stop
sign at the intersection. Mrs. Wilson testified that “most people don’t stop, they just
come on out.” However, she also testified that she had not been through the intersection
since moving from Jacksboro. Mrs. Wilson agreed that it was a “dangerous road” and
that running a stop sign is also dangerous.

       Mrs. Wilson testified that when Defendant called her from his cell phone, he told
her that Deputy Colwell was arresting him and that Sergeant Walker, “a Griffith,” and
other officers were there. Mrs. Wilson did not know what Defendant did from the time
that he left her house until he was pulled over. Mrs. Wilson testified that Defendant did
not take any medication for his boxing injuries, and he had no medical records
concerning any alleged injuries. Mrs. Wilson testified that Defendant would have no
problem recognizing Sergeant Walker, and she agreed that Deputy Colwell in no way
resembled Sergeant Walker. Mrs. Wilson testified that she could “guarantee” that
Defendant could distinguish the two officers.         She thought that the level of
methamphetamine in Defendant’s blood sample was “no more than what you would have
in your system if you took a cold tablet.” Mrs. Wilson did not believe that Defendant
used methamphetamine because of his appearance compared to the appearance of her
nieces who were addicted to methamphetamine.

        Morris Wilson, Defendant’s father, testified that he took fuel to Defendant on
April 5, 2014, in the field where Defendant was working. He talked to Defendant as he
filled the tractor with diesel, and Defendant seemed fine. Mr. Wilson also testified that
Defendant was a boxer and that he had taken a lot of “head licks.” He thought that
Defendant was slower and off balance from boxing. Mr. Wilson testified that Defendant
was difficult to understand when he got excited. He agreed that Defendant could be a jerk
and “just a little bit aggravating.” Mr. Wilson did not believe that Defendant was capable
of taking ten steps walking “toe-to-toe.” On cross-examination, Mr. Wilson admitted that
Defendant was capable of operating “extensive” machinery and disking a field despite
any boxing injuries.

Analysis

   I.      Sufficiency of the Evidence

       Defendant contends that the evidence was insufficient to support his conviction for
driving under the influence of an intoxicant (DUI). More specifically, he argues that the
proof failed to establish his identity as the driver of the vehicle and that there was
insufficient evidence of his intoxication. Defendant also challenges the credibility of
Deputy Colwell. We disagree and conclude that the evidence is sufficient beyond a
reasonable doubt to support the conviction.
                                          -6-
        When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the
evidence as well as all factual issues raised by the evidence. State v. Tuttle 914 S.W.2d
926, 932 (Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all inferences therefrom. Id.
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). “[D]irect and circumstantial evidence should
be treated the same when weighing the sufficiency of [the] evidence.” State v. Dorantes,
331 S.W.3d 370, 381 (Tenn. 2011).

       Pursuant to the DUI statute,

        It is unlawful for any person to drive or to be in physical control of any
        automobile or other motor driven vehicle on any of the public roads and
        highways of the state, or on any streets or alleys, or while on the
        premises of any shopping center, trailer park or apartment house
        complex, or any other premises that is generally frequented by the public
        at large, while . . . [u]nder the influence of any intoxicant, marijuana,
        controlled substance, controlled substance analogue, drug, substance
        affecting the central nervous system, or 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[.]

Tenn. Code Ann. § 55-10-401(a)(1)(2012).

       Viewed in the light most favorable to the State, the proof in this case is sufficient
to show Defendant’s identity as the driver of the vehicle. Identity is an essential element
of any crime. See generally White v. State, 533 S.W.2d 735, 744 (Tenn. Crim. App.
1975). Our law provides that identification of the perpetrator of a crime may be
accomplished by either direct or circumstantial evidence, or both. State v. Thompson,
519 S.W.2d 789, 793 (Tenn. 1975). The determination of identity is a question of fact for
the jury after consideration of all competent evidence. See Biggers v. State, 219 Tenn.
553, 411 S.W.2d 696, 697 (1967); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451
                                           -7-
(1958); State v. Crawford, 635 S.W.2d 704 (Tenn. Crim. App. 1982). In this case,
Defendant’s identity was established by Deputy Colwell’s testimony in which he
repeatedly referred to the driver of the car as “Mr. Wilson,” and when asked if “the same
Mr. Wilson” was seated beside Defendant’s trial counsel, Deputy Colwell replied, “Yes,
sir.” He also testified that no one else was in the vehicle with Defendant at the time of
the stop. Mrs. Wilson also testified that Defendant called her between 8:30 and 9:00 p.m.
on April 5, 2014, and told her that he had been pulled over on Crisp Springs Road and
that he was being charged with DUI. She also said that he told her that Deputy Colwell
was arresting him and that Sergeant Jason Walker was on the scene. Therefore, the proof
establishes Defendant’s identity as the perpetrator of the offense.

        Likewise, the proof is sufficient to establish Defendant’s intoxication at the time
of the offense. Deputy Colwell testified that Defendant exhibited several “clues” of
intoxication during the field sobriety tests. Defendant also slurred his speech, had red
eyes, his pupils were constricted, and his behavior was belligerent and irrational. Special
Agent Carrell testified that the level of methamphetamine in Defendant’s blood sample
was “.16 micrograms per milliliter and amphetamine was found at less than .05
micrograms per milliliter.” Special Agent Carrell testified that .16 micrograms per
milliliter of methamphetamine is three times in excess of therapeutic levels. Special
Agent Carrell considered the amount of methamphetamine in the sample to be a
“significant amount.” Concerning the effects of that amount of methamphetamine on an
individual, she testified:

        So methamphetamine is a central nervous system stimulant which means
        that it travels to your central nervous system and has a stimulating effect
        on the brain. So that can include effects such as euphoria, you know,
        feeling really, really good and excited about everything. It can make you
        also aggressive. It can also cause hallucinations or delusions, psychosis,
        hyperactivity or being fidgety and nervous, agitation, increased risk
        taking and yes, so things like those type of effects are typical with
        methamphetamine.

Special Agent Carrell testified that the level of methamphetamine in the sample could
also adversely impact the ability to safely operate a motor vehicle.

      Additionally, Special Agent Carrell testified:

        Amphetamine is a metabolite of methamphetamine, which means that if
        you have methamphetamine in your system, your body converts it to
        amphetamine as it prepares to excrete it from your body. Amphetamine
        does have its own effects and also amphetamine can be prescribed on its
        own.
                                           -8-
Special Agent Carrell also explained:

        Amphetamine is also a central nervous system stimulant and it has
        similar effect to methamphetamine.      So aggressive behaviors,
        restlessness.    You can experience hallucinations or delusions,
        nervousness, things like that.

She testified that methamphetamine and amphetamine taken together or separately have
effects on “divided attention tasks.” They also impair judgment, visual perception, and
reaction times. Special Agent Carrell noted that the two drugs acting together “could
produce an increased effect.”

        Defendant’s behavior in this case was similar to those effects described by Special
Agent Carrell. Defendant showed signs of aggression, confusion, irrational behavior,
paranoia, and delusions. Despite being corrected several times, Defendant continued to
confuse Deputy Colwell with Sergeant Walker. He repeatedly cursed at the officers and
laughed throughout the field sobriety tests. He also threatened to kick Deputy Colwell’s
“f[- - ]king ass.” Defendant had hallucinations or delusions of people standing in front of
the National Guard Armory cheering him when absolutely no one was there. The
evidence was sufficient to establish Defendant’s intoxication.

       Defendant also challenges Deputy Colwell’s credibility. Issues of credibility and
identity are questions reserved for the jury. The jury had the opportunity to assess the
credibility of the State’s witnesses at trial. The jury, by its verdict, obviously accredited
the testimony of the State’s witness as was their prerogative. See State v. Millsaps, 30
S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “the weight and credibility of the
witnesses’ testimony are matters entrusted exclusively to the jury as the trier[ ] of fact”).
In our view, the evidence was sufficient for a rational trier of fact to have found beyond a
reasonable doubt that Defendant was the driver of the car and that he committed the
offense of DUI. Defendant is not entitled to relief on this issue.

       B.      Failure to Present Search Warrant

       Defendant argues that “there was no presentation of the search warrant that was
used to obtain the defendant’s blood draw.” Defendant further asserts that “[t]here is no
evidence that this search warrant was presented to the defendant nor has it been made
part of the record in this case.” However, this issue is raised for the first time on appeal.
Additionally as pointed out by the State, Defendant did not file a motion to suppress the
blood draw nor did he challenge the admission of the blood test at trial.

       Rule 36(a) of the Tennessee Rules of Appellate Procedure states that “[n]othing in
this rule shall be construed as requiring relief be granted to a party responsible for an
                                           -9-
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.” The failure to make a contemporaneous objection
constitutes waiver of an issue on appeal. State v. Gilley, 297 S.W.3d 739, 762 (Tenn.
Crim. App. 2008). A motion to suppress evidence must be raised prior to trial. Tenn. R.
Crim. P. 12(b)(2)(C); See also State v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim. App.
1998). Failure to raise the suppression issue before trial results in a waiver of such issue.
Tenn. R. Crim. P. 12(f)(1). Furthermore, “[I]n all cases tried by a jury, no issue
presented for review shall be predicated upon . . . misconduct of . . . counsel, or other
action committed or occurring during the trial of the case, or other ground upon which a
new trial is sought, unless the same was specifically stated in a motion for new trial;
otherwise such issues will be treated as waived. Tenn. R. App. P. 3(e). Since Defendant
raised the issue of the search warrant for the first time on appeal, it is waived. See State
v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994)(“[T]he failure to include an issue
in a motion for new trial results in waiver of all issues which, if found to be meritorious,
would result in the granting of a new trial.”). Defendant is not entitled to relief on this
issue.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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