        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 1, 2015

           STATE OF TENNESSEE v. TABITHA LYNN HUGHES

                  Appeal from the Circuit Court for Tipton County
                     No. 7703 Joseph H. Walker, III, Judge


              No. W2014-01849-CCA-R3-CD - Filed January 15, 2016


The defendant, Tabitha Lynn Hughes, appeals her Tipton County Circuit Court jury
conviction of driving under the influence, claiming that the trial court erred by denying
her pretrial motion to dismiss based upon the State‟s failure to timely commence
prosecution and by admitting certain evidence at trial. Discerning no error, we affirm the
judgment of the trial court.

            Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROGER A.
PAGE and TIMOTHY L. EASTER, JJ., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tabitha Lynn Hughes.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and James Walter
Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

             In July 2013, the Tipton County Circuit Court grand jury charged the
defendant with one count of driving under the influence (“DUI”) of an intoxicant, a drug,
or both. The trial court conducted a jury trial in July 2014.

              The State‟s proof at trial showed that Gary Allen Rose was driving in the
Brighton area of Tipton County on May 9, 2012, and happened to be following a vehicle
that was being driven erratically. After following the vehicle for approximately one and
a half miles, Mr. Rose observed the motorist repeatedly cross the double-yellow lines and
veer off each side of the roadway, narrowly avoiding a head-on collision with a large
truck, before eventually driving into a ditch. Mr. Rose parked his vehicle and rushed to
the aid of the motorist, who was later identified as the defendant. Because the vehicle
was tightly wedged in the ditch, Mr. Rose was unable to extricate the defendant from the
vehicle and contacted 9-1-1. A law enforcement officer arrived on the scene a short time
later and assisted Mr. Rose in freeing the defendant from her vehicle. Mr. Rose observed
that the defendant was very emotional, was slurring her speech, and was “pretty much
incoherent.” Mr. Rose did not smell any alcohol on the defendant‟s breath, and he did
not hear the defendant mention any prescription medications.

               Lieutenant Kevin Williams with the Tennessee Highway Patrol arrived on
the scene of the accident at approximately 3:14 p.m. At that time, the defendant had been
loaded into an ambulance and was awaiting transport to the hospital. Lieutenant
Williams assessed the defendant‟s condition and noted that she “seemed confused” and
“seemed like she didn‟t know what was going on or why it was taking place.” In
response to questioning by Lieutenant Williams, the defendant provided a “list of
prescription drugs” that she “had been taking and had taken that day.” The defendant had
all of the prescription medications with her, and Lieutenant Williams recalled that the
defendant was taking oxycodone, oxaprozin, dilaudid, and oxycontin. The defendant told
Lieutenant Williams that she had been trying to locate a physician‟s office when the
accident occurred. While at the scene, Lieutenant Williams noticed that the defendant‟s
pupils were “very dilated” and that the defendant was “incoherent and just lethargic.” At
the hospital, the defendant signed the implied consent form and submitted to a blood test.

              Special Agent and forensic scientist Bethany McBride with the Tennessee
Bureau of Investigation (“TBI”) testified that she analyzed the blood sample obtained
from the defendant. The sample was negative for the presence of alcohol, but it did
reveal the presence of seven controlled substances, including an unspecified quantity of
dihydrocodeinone and 0.53 micrograms of oxycodone. Agent McBride forwarded the
blood sample to the TBI‟s Nashville crime laboratory for further testing.

              TBI Special Agent and forensic scientist April Bramlage testified that she
received the defendant‟s blood sample in the Nashville facility and conducted a more
detailed analysis of it. Her analysis revealed 194.3 nanograms of diazepam, commonly
known as Valium, and 32.8 nanograms of alprazolam, commonly known as Xanax.
Agent Bramlage explained that the amounts detected were within the therapeutic range
for their respective substances but that both have sedating effects that could impact an
individual‟s ability to operate a motor vehicle. Agent Bramlage testified that the 0.53
micrograms per milliliter of oxycodone found in the defendant‟s blood were also within
the therapeutic range for that substance but that the combination of taking this opiate with
the two depressants would have a “[s]ynergistic effect”:



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             Synergism means that it‟s not a one plus one. It‟s a one plus
             one is maybe four, an increased effect of both of them. . . .
             Those are central nervous system depressants all acting
             together, and they do have that synergism where a
             benzodiazepine and an opiate enhance the effect of each
             other.

Agent Bramlage opined that the combination of drugs in the defendant‟s system could
have impacted her ability to operate a motor vehicle.

              Through the testimony of Jodie Adams, custodian of medical records of
Baptist Hospital, the State introduced into evidence a copy of the defendant‟s medical
records from her emergency department visit on May 9, 2012. The records indicated that
the defendant had sustained injuries to her face and back and that the defendant was
“[s]lurring words,” “appear[ed] drugged,” and was “markedly inebriated/medicated.”

              With this evidence, the State rested. Following a motion for judgment of
acquittal and a Momon colloquy, the defendant elected to testify.

              The defendant, who has a doctorate in biology with concentrations in both
biochemistry and toxicology, testified that she suffered from numerous medical
conditions, including arachnoiditis, fibromyalgia, failed back syndrome, carpal tunnel
syndrome, and diabetes and that she had been taking anti-anxiety and pain medications
since June 2007. On May 9, 2012, she was driving from Memphis to Tipton County to
see a pain specialist to whom she was referred by her primary care physician. The
defendant stated that she took her medication exactly as prescribed at approximately 5:30
to 6:00 a.m. and that she ingested no other medication prior to her car accident that
afternoon.

              When the defendant arrived at the pain specialist‟s office for her 11:00 a.m.
appointment, she realized that she was out of insulin. She then learned that the physician
could not prescribe the pain medications that she was taking, and the defendant left.
Using her cellular telephone, the defendant attempted to find another “pain doctor” in the
area who could treat her. While she was searching for the physician‟s office, she “began
to feel sick” and her “head was kind of spinning and [she] couldn‟t see very well.”
Believing that an animal had jumped in front of her car, the defendant swerved to avoid it
and drove her vehicle off the road. The defendant explained that she “started bawling”
and “went a little hysterical” when Mr. Rose appeared next to her wrecked vehicle
because she was “really relieved” and was “in pain.” The defendant testified that she
took one Xanax pill in the ambulance on the way to the hospital because it was “time for

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[her] to take one” but that she took no other medication until after she was discharged
from the hospital later that evening.

             On cross-examination, the defendant admitted to being addicted to pain
medication and other drugs, stating that “[t]here‟s no way you could go through this
many years of being on pain medication and not be somewhat . . . physiologically
addicted to medication.” The defendant admitted that she never mentioned problems
with her blood sugar to Mr. Rose or law enforcement officers.

              Based on this evidence, the jury convicted the defendant as charged of DUI.
Following a sentencing hearing, the trial court imposed a sentence of 11 months and 29
days to be served as 60 hours‟ incarceration followed by probation.

              Following the denial of her timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the trial court erred
by refusing to dismiss the charge based upon the State‟s failure to timely commence
prosecution and by permitting Agent McBride to testify as an expert witness on the
pharmacological effects of medication. We will address both issues in turn.

                            I. Commencement of Prosecution

              The defendant contends that the trial court should have dismissed the
charge against her based upon the State‟s failure to commence prosecution within one
year of the commission of the offense. The State asserts that the timely issuance of an
arrest warrant tolled the statute of limitations. We agree with the State.

               The defendant was convicted of the misdemeanor offense of DUI, first
offense. See T.C.A. §§ 55-10-401, -402(a)(1)(A). Tennessee Code Annotated section
40-2-102 provides that “[e]xcept as provided in § 62-18-120(g) and subsection (b) of this
section, all prosecutions for misdemeanors shall be commenced within the twelve (12)
months after the offense has been committed.” T.C.A. § 40-2-102(a). The purpose of
this limitations period “is to protect a defendant against delay and the use of stale
evidence and to provide an incentive for efficient prosecutorial action in criminal cases.”
State v. Nielsen, 44 S.W.3d 496, 499 (Tenn. 2001). Statutes of limitation are construed
“liberally in favor of the criminally accused.” State v. Ferrante, 269 S.W.3d 908, 911
(Tenn. 2008).

           Tennessee Code Annotated section 40-2-104 provides that a prosecution is
commenced by the following:

              finding an indictment or presentment, the issuing of a
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              warrant, binding over the offender, by the filing of an
              information as provided for in chapter 3 of this title, or by
              making an appearance in person or through counsel in general
              sessions or any municipal court for the purpose of continuing
              the matter or any other appearance in either court for any
              purpose involving the offense.

T.C.A. § 40-2-104. This section “provides for the commencement of a prosecution by
several methods, „all deemed to provide the defendant with sufficient notice of the
crime.‟” Ferrante, 269 S.W.3d at 914 (quoting State v. Tait, 114 S.W.3d 518, 522 (Tenn.
2003)). “„A lawful accusation is an essential jurisdictional element of a criminal trial,
without which there can be no valid prosecution.‟” Ferrante, 269 S.W.3d at 914 (quoting
State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979)). Our supreme court
“has long recognized that, „prior to formal accusation, [a] defendant‟s rights are protected
by the statute of limitations.‟” Ferrante, 269 S.W.3d at 914 (quoting State v. Baker, 614
S.W.2d 352, 354 (Tenn. 1981)).

              Because the defendant was not indicted until July 2013, more than 12
months after the date of the offense, May 9, 2012, we must determine whether some other
event occurred before the filing of the indictment that was sufficient to commence the
prosecution in this case. Lieutenant Williams issued a uniform citation to the defendant
on May 9, 2012, and the Tipton County general sessions court issued an arrest warrant on
May 15, 2012. The plain language of Code section 40-2-104 provides five specific ways
by which a prosecution may be commenced, and the issuance of a warrant, which
occurred in the instant case, is among them. Following the issuance of the warrant, the
defendant‟s initial court appearance was scheduled for July 13, 2012. For reasons that
are not entirely clear from the record, the case was continued on at least four occasions
before ultimately being bound over to the grand jury on June 21, 2013.

              The defendant argues that the uniform citation issued on May 9 was an
invalid charging instrument because it was unsworn and included no specific facts;
however, the arrest warrant and not the uniform citation became the charging instrument
in this case. The arrest warrant was signed, sworn to, and contained specific facts
detailing the basis for the warrant. The defendant further argues that the arrest warrant
was never served on the defendant. This argument also misses the mark. Code section
40-2-104 does not require that the arrest warrant be served for the commencement of
prosecution, only that the warrant be issued.

            The issuance of the May 15 arrest warrant commenced the prosecution of
the defendant‟s DUI and was well within the one-year statute of limitations. In
consequence, the trial court properly denied the defendant‟s motion to dismiss the
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indictment.

                                   II. Expert Testimony

              The defendant next contends that the trial court erred by permitting Agent
McBride to testify as an expert witness regarding the pharmacological properties of
medication. Specifically, the defendant argues that Agent McBride did not possess
sufficient qualifications to permit her to testify about the dosage and effects of the
narcotics detected in the defendant‟s blood.

              The admissibility of expert testimony is governed by Rules 702 and 703 of
the Tennessee Rules of Evidence. See generally McDaniel v. CSX Transp., Inc., 955
S.W.2d 257 (Tenn. 1997). Rule 702 addresses the need for expert testimony and the
qualifications of the expert: “If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Rule
703 focuses on the reliability of expert opinion testimony. Generally, the admissibility of
expert testimony is a matter entrusted to the sound discretion of the trial court, and there
can be no reversal on appeal absent clear abuse of that discretion. See State v. Scott, 275
S.W.3d 395, 404 (Tenn. 2010); State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007).
“A trial court abuses its discretion when it applies incorrect legal standards, reaches an
illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the complaining party.” Scott, 275
S.W.3d at 404 (citing Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d 346, 358 (Tenn. 2008)).

               In the instant case, the trial court permitted Agent McBride to testify as a
“general” expert witness without specifying her area of expertise. During Agent
McBride‟s direct examination, the prosecutor asked her to explain the significance of the
amount of oxycodone detected in the defendant‟s blood. Defense counsel objected on the
basis that the question was outside the scope of the agent‟s expertise, and the trial court
allowed Agent McBride “to respond if she can.” Before Agent McBride could fully
answer the question, defense counsel again objected on the same basis, and the court
overruled the objection. Agent McBride then responded that the level of oxycodone
found in the defendant‟s blood was “a fairly good amount in what we normally see.”
Defense counsel then proceeded to conduct a thorough cross examination of Agent
McBride. Following Agent McBride‟s testimony, Agent Bramlage testified as an expert
witness, providing much more extensive testimony about the narcotics detected in the
defendant‟s blood and their likely impact on the defendant‟s ability to operate a motor
vehicle. Defense counsel accepted Agent Bramlage as an expert witness and lodged no
                                            -6-
objections to her testimony.

             We find no abuse of discretion in the trial court‟s decision to permit Agent
McBride to testify as an expert witness. Agent McBride testified that she possessed a
degree in chemistry and that she had spent 11 and a half years with the TBI analyzing
blood for the presence of alcohol and drugs. Agent McBride testified that she had
conducted 5,547 tests for alcohol analysis and “thousands” of tests for drug analysis.

               Moreover, even if the trial court erred by permitting Agent McBride to
testify as an expert without specifying the area of expertise and by allowing her to offer
an opinion as to the amount of oxycodone in the defendant‟s blood, such evidence was
admitted later through the testimony of Agent Bramlage, without objection. Thus, the
defendant is unable to show that any potential error “more probably than not affected the
judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).
The defendant is not entitled to relief on this issue.

                                       Conclusion

             For the foregoing reasons, we affirm the judgment of the trial court.

                                                 _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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