       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE           FILED
                          MARCH 1998 SESSION           April 2, 1998

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk



STATE OF TENNESSEE,          )
                             ) C.C.A. No. 03C01-9704-CR-00153
      Appellee,              )
                             ) Washington County
V.                           )
                             ) Honorable Arden L. Hill, Judge
KELVIN WADE CLOYD,           )
                             ) (Vehicular Homicide - 2 counts;
      Appellant.             ) Possession of a Controlled Substance)




FOR THE APPELLANT:              FOR THE APPELLEE:

H. Randolph Fallin              John Knox Walkup
Attorney at Law                 Attorney General & Reporter
303 West Main Street
Mountain City, TN 37683         Clinton J. Morgan
                                Counsel for the State
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493

                                David E. Crockett
                                District Attorney General

                                Joe C. Crumley and
                                Michael LaGuardia
                                Assistant District Attorneys General
                                P.O. Box 38
                                Jonesborough, TN 37659




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                            OPINION
         Kelvin Wade Cloyd, the appellant, was convicted of two counts of

vehicular homicide and possession of a controlled substance in the Washington

County Criminal Court. The issue on appeal is whether the evidence is

sufficient to sustain the jury’s verdict on the homicide counts. The judgment of

the trial court is affirmed.



         On October 8, 1995, the appellant was involved in a head-on collision with

the victims, Paul Lehew and Charles Garland. The collision occurred on Old

State Route 34 in Washington County shortly after midnight. Lehew and

Garland were killed instantly.



         For the appellant to be found guilty of vehicular homicide, the state had to

prove beyond a reasonable doubt that (1) the appellant was intoxicated when he

struck the victims’ vehicle, and (2) the deaths of the victims were the proximate

result of the appellant’s intoxication. Tenn. Code Ann. § 39-13-213(a)(2) (Supp.

1995).



         The proof showed that, on October 7th, the appellant and Randy Loyd

went to Ray’s Market (Ray’s), a beer store and drinking establishment. They

drank beer. Later, the appellant, Loyd, and an employee of Ray’s, Glenda Sue

Sams, went to a restaurant to eat dinner. They ate dinner and had beer or

mixed drinks. They returned to Ray’s at approximately 11 p.m. The victims,

Lehew and Garland, were at Ray’s drinking beer.



         Loyd left Ray’s before the appellant. Loyd testified that he tried to

convince the appellant not to drive because the appellant was not “in good

enough shape to drive.” Loyd testified that Ms. Sams and the proprietor of

Ray’s, Laura Prescott, also tried to convince the appellant not to drive. Loyd

rode with Lehew and Garland to the appellant’s house so that Loyd could get his



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vehicle. Lehew and Garland were supposed to meet Loyd at Loyd’s house to go

to a party together. Lehew and Garland never made it.



       The appellant plowed head-on into the vehicle occupied by Lehew and

Garland. The appellant was driving a pickup truck. Lehew was driving a Mazda

car. Lehew’s lower body was pinned inside the car. Garland’s body was thrown

approximately twenty feet from the car. The appellant’s truck turned on its side.

He suffered minor injuries.



       Although there were no eyewitnesses to the wreck, a neighbor who lived

nearby heard the collision and called 911. Officer Derek Patton of the

Washington County Sheriff’s Department was the first to arrive on the scene. He

was joined by Dexter Lunceford and Jeff Anderson of the Tennessee Highway

Patrol, Officer Todd Davis of the Washington County Sheriff’s Department, and

paramedic Christopher Hitechew. Garland and Lehew were pronounced dead.

The appellant was placed in the back of a patrol car. A plastic bag containing

forty-two blue Valium tablets was found in the appellant’s pocket. The accident

scene was secured and investigated. The appellant did not remember anything

about the accident.



       The primary issues at trial were whether the appellant was intoxicated,

and, if so, whether his intoxicated state was the proximate cause of the deaths of

the victims. Dr. Kenneth Ferslew, a forensic toxicologist, testified to the

laboratory reports of the appellant and Lehew, the driver of the Mazda car. The

appellant’s blood-alcohol level when he was tested after the accident was .06.

Dr. Ferslew testified that the appellant’s blood-alcohol level at the time of the

accident was between .097 and .108. The appellant also had a blood-level

concentration of diazepam or Valium in his system. Dr. Ferslew testified that the

concentration of diazepam in the appellant’s blood was in the therapeutic range

as opposed to a toxic range. The therapeutic effects of diazepam include



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reduced anxiety, muscle relaxation and sedation. He further testified that mixing

alcohol with diazepam would have increased the effects of both drugs on the

appellant, causing a greater impairment than either substance alone would have

caused. Dr. Ferslew testified that, in his opinion, the appellant would have been

impaired from the alcohol and diazepam at the time of the collision.



       Paramedic Hitechew testified that he smelled alcohol on the appellant,

but that the appellant’s demeanor was “normal.” Officer Davis testified that the

he did not smell a strong odor of alcohol on the appellant, but that the appellant

did appear to be under the influence of something. Officer Davis testified that

the appellant appeared dazed and confused, that his speech was slow and

slurred, and that he was sluggish and slightly unsteady on his feet. Trooper

Lunceford testified that he detected a slight odor of alcohol on the appellant, and

the appellant appeared to be under the influence of something. Trooper

Lunceford testified that the appellant’s eyes were glassy and that his speech was

somewhat slurred. Trooper Anderson testified that he thought that the appellant

was in an intoxicated state.



      Lehew’s blood-alcohol level was .03. Lehew’s blood drug screen was

positive for marijuana, cocaine, and a therapeutic level of diazepam. Marijuana

was found in Lehew’s possession.



      The state produced evidence to establish that the appellant’s truck

crossed the center line on the highway, entered the victims’ lane, and collided

head-on with the car. The state’s reconstruction of the accident was based

primarily on gouge marks and scratches in the pavement, the damage to both

vehicles, the location of the damage to the vehicles, and debris left at the scene.

The defense presented expert testimony to establish that the state’s theory was

flawed. The expert testified that in his opinion there was no way to tell which

vehicle crossed the center line.



                                        -4-
       The parties stipulated that the headlights on one side of the Lehew

vehicle were not operating at the time of the collision. The defense presented

evidence from which the jury could have concluded that none of the headlights

on the Lehew vehicle were operating. There was evidence that the appellant

was speeding at the time of the collision.



       When an accused challenges the sufficiency of the convicting evidence,

we must review the evidence in the light most favorable to the prosecution in

determining whether "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 (1979). We do not reweigh or re-evaluate the evidence and are

required to afford the state the strongest legitimate view of the proof contained in

the record as well as all reasonable and legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact, not this Court. Id. A guilty verdict rendered by the

jury and approved by the trial judge accredits the testimony of the witnesses for

the state, and a presumption of guilt replaces the presumption of innocence.

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). It is the appellant’s burden

to illustrate to this Court that the evidence preponderates against the guilty

verdict in favor of his or her innocence. Id.



       The appellant essentially argues that the evidence is insufficient to

establish that he was intoxicated, and, that even if he were intoxicated, his

intoxication was not the proximate cause of the deaths of the victims. He points

to the testimony of the proprietor of Ray’s, Laura Prescott, and Ms. Sams who

both testified that the appellant did not appear intoxicated at the time in question.

The appellant argues that the jury should have believed his expert’s opinion that



                                         -5-
there was no way to determine which vehicle crossed the center line. The

appellant points out that the state’s expert was not certified as an accident

reconstructionist until after the collision. He argues that the credentials of his

expert are better than the credentials of the state’s reconstructionist. The

appellant also points to the intoxicants found in Lehew’s system and the

evidence that none of the headlights on the Lehew vehicle were operative.



       We reviewed this record thoroughly, paying close attention to the

evidence of how the collision occurred. Both the defense attorney and the

assistant district attorney did an excellent job of presenting the proof to the jury in

this tragic case. It was the jury’s duty to decide which witnesses were credible.

It was the their duty to determine how much weight to place on particular

evidence. There was competent evidence in the record from which the jury

could have found that the appellant was intoxicated at the time of the collision,

and, that the appellant’s intoxication was the proximate cause of the victims’

deaths.



       The judgment of the trial court is affirmed.




                                                __________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOHN H. PEAY, Judge




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______________________________
CORNELIA A. CLARK, Special Judge




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