                                                                                        04/06/2020



        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               January 28, 2020 Session

          STATE OF TENNESSEE V BENJAMIN SCOTT BREWER

                Appeal from the Criminal Court for Hamilton County
                          No. 295881 Don W. Poole, Judge
                     ___________________________________

                           No. E2019-00355-CCA-R3-CD
                       ___________________________________


Benjamin Scott Brewer, Defendant, was convicted after a jury trial of six counts of
vehicular homicide by intoxication, four counts of reckless aggravated assault, driving
under the influence, violation of motor carrier regulations, and speeding. As a result,
Defendant was sentenced to an effective sentence of 55 years in incarceration. Defendant
appeals his convictions and sentences, arguing on appeal that the State violated Brady v.
Maryland, 373 U.S. 83, 87 (1963); that the trial court improperly certified a witness as a
drug recognition expert; that the evidence was insufficient to show intoxication; and that
the trial court improperly sentenced Defendant to consecutive sentences. Following our
review, the judgments of the trial court are affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Raymond T. Faller, District Public Defender; Mike A. Little, Jay Underwood, and Erinn
Rene O’Leary, Assistant District Public Defenders, for the appellant, Benjamin Scott
Brewer.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Crystle Carrion,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                              OPINION

       At approximately 7:09 p.m. on June 25, 2015, Defendant was driving a Peterbilt
semi-truck on I-75 in a construction zone near Chattanooga when he crashed into
multiple cars from the rear. The semi-truck’s speed was approximately seventy-eight to
eighty-two miles per hour. The entire crash scene was 453 feet long. As a result of the
horrific crash, six people were killed and four people were injured. Defendant was
indicted by the Hamilton County Grand Jury for six counts of vehicular homicide by
intoxication, four counts of reckless aggravated assault, driving under the influence,
violation of motor carrier regulations,1 and speeding.

        On the day of the crash, Curtis Caulder, a commercial driver for Old Dominion
Freightliners, was driving his personal vehicle on I-75 from Atlanta toward Chattanooga
when he saw Defendant driving in his “big pretty purple Peterbilt.” Mr. Caulder
described Defendant’s driving as “reckless” and noted that he was “speeding.” Mr.
Caulder followed Defendant and “tried to catch him” so that he could “call his company
and let them know how he was driving.” Mr. Caulder saw Defendant “tailgating people
and driving way over the posted speed limit.” Mr. Caulder estimated that Defendant was
driving “way over 80 [miles per hour]” and did not see Defendant use his brakes before
hitting multiple vehicles that were either slowed or stopped in the construction zone. Mr.
Caulder witnessed what he described as “the worst crash scene [he had] ever seen in [his]
whole life.” He saw one car “blow up.” One of the cars “attached to [Defendant’s] front
bumper and went past the crash scene probably 400 feet or so past where he hit the first
vehicle.” Mr. Caulder pulled off the exit closest to the crash site, called 911, and tried to
help some of the injured people. He was afraid for his own life because there were cars
on fire and fluid on the roadway.

        Tina Marie Close, her husband, and their two children were traveling in their truck
near mile marker eleven on I-75 on the day of the crash. The family was on the first leg
of their summer vacation when the navigation system gave them a warning about slowing
traffic ahead. One of their children was asleep in the back seat and the other child was
watching a movie while wearing headphones. There was a road sign notifying drivers of
a left lane closure for construction. Mr. Close moved their vehicle to the center lane and
continued to advance in traffic until he was eventually forced to stop because of the
construction.


        1
          Defendant filed a motion to sever this count from the remaining counts at trial. The trial court
granted the motion.
                                                    2
        Mrs. Close heard “an explosion or implosion” and turned to look out the rear
window of their truck in the direction from which the noise originated. She saw
Defendant’s semi-truck coming toward them “very fast, it was not appearing to slow
down” and she saw cars “going everywhere.” Mrs. Close yelled to warn her husband
because she was afraid that they were about to be killed. Their truck was hit from the
rear by Defendant’s semi-truck; the impact destroyed their truck bed. All four members
of the family were able to get out of the vehicle. They saw a “group of vehicles behind
[them] on fire.” Mr. and Mrs. Close were both treated for whiplash as well as other
injuries. The experience was so traumatic that Mr. and Mrs. Close received counseling
after the wreck.

       Nancy Stanley was riding in a 2007 Chevy Uplander van with her husband, John
Stanley, on I-75 on the day of the crash. They were headed to Gatlinburg when they saw
signs announcing that there was construction ahead on the roadway. Traffic was moving
at a “creepy crawl” pace. Mr. Stanley saw the construction zone and the slowing traffic
from the “top of a hill.” When they reached the “zone,” traffic was just about at a
“complete stop.” He “heard a racket” and looked in the mirror on the left door of his van
and saw cars coming toward them. He told Mrs. Stanley that they were about to be hit.
Their van was hit “so hard it broke the seats and [they] both fell back.” Mr. Stanley saw
fire and told Mrs. Stanley to get out of the van. They were both injured – Mrs. Stanley
sustained bruising on her right side and has a permanent knot on her side, and Mr.
Stanley received an injury to his lower back, his shins, and bruising on his lower
extremities. He still felt pain in his legs a year after the crash.

        Ryan Humphries also received injuries in the crash. He was driving his Ford F-
150 truck on I-75 when he noticed overhead signs announcing construction. Mr.
Humphries also saw construction trucks and saw that traffic was “getting backed up
because of construction.” Mr. Humphries did not recall the actual crash; his first memory
after the crash is in an ambulance. Mr. Humphries sustained a cut on the back of his head
that needed a total of six to ten staples. He also suffered from a shattered elbow and
detached bicep from the crash. It took almost a year to regain the use of his arm. Mr.
Humphries had surgery to insert pins and a rod into his arm. Additionally, he sustained
severe burns on his heel that necessitated a double skin graft. It took nearly two years for
him to regain the ability to walk normally.

      Justin Knox, the driver of a Cadillac CTS-V, was driving from Atlanta to
Knoxville when his car was hit during the crash. He did not recall the accident. He woke
up in the hospital. As a result of the crash, he suffered a brain bleed and a severe
concussion. It took him several months to regain his memory and start functioning
                                             3
normally. At the time of trial, Mr. Knox still had difficulty doing his job and had anxiety
when he drove.

        Robert Delay witnessed the accident. He was driving home on I-75 when he saw
traffic slow because of construction. He looked behind his vehicle and could see
Defendant driving his truck in the left lane, where cars were slowed because of the
construction. Mr. Delay opined that Defendant could have moved his truck over to the
right to avoid hitting cars but Defendant did not do so. Mr. Delay did not see Defendant
hit the brakes prior to the crash and estimated that Defendant’s truck was traveling
approximately seventy miles per hour when it struck the first car. Mr. Delay could see
cars “going everywhere.” Mr. Delay saw Tiffany Watts get ejected from her car; her
body landed in front of his truck. Mr. Delay got out of his car to check on Ms. Watts but
she was already deceased. Another car, driven by Jason Ramos, was “[s]quashed . . . like
an accordion” against the front of Defendant’s semi-truck. By the time Mr. Delay got to
this car, Mr. Ramos was also already deceased. Mr. Delay saw Defendant get out of the
cab of his truck, look at the front of his truck, and get back into the truck. Defendant did
not check on any of the people in the vehicles that he hit with his truck.

       Tennessee Highway Patrol Trooper Gray Gibson was the first officer to arrive on
the scene. He was parked north of the accident on I-75, providing protection for the
construction zone when a construction worker told him that there was a lot of smoke in
the area. Trooper Gibson drove southbound in the northbound lane toward the direction
of the smoke. He estimated that it took him thirty seconds to arrive on the scene of what
he described as the “worst traffic crash” he had seen in his 20 years on the job. As he
surveyed the “chaotic” scene, he saw a “tractor-trailer . . . , up against the barrier wall.”
Defendant was seated in the passenger seat of his semi-truck. He told Trooper Gibson
that he hit his head and did not remember anything. There were “burning cars and just
cars everywhere.” People were running from a nearby motel with fire extinguishers to
assist with the crash scene. Trooper Gibson placed Defendant in the right rear seat of the
police car and set about locating witnesses to the crash. Trooper Gibson described
Defendant as cooperative in the report he submitted after the crash. Trooper Gibson “did
not indicate” that Defendant displayed any signs of intoxication on his report.

        Lisa Martin, a phlebotomist, worked as an independent contractor for law
enforcement agencies in the Chattanooga area. She routinely travelled to accident sites or
hospitals to obtain blood samples for law enforcement agencies after accidents involving
fatalities and/or driving under the influence. Her husband, a Chattanooga police officer,
woke her up on the night of the accident to inform her that she was needed at an accident
scene. On her arrival, she witnessed “[h]orrific devastation.” She saw “a vehicle, . . . ,
                                             4
that had slammed into a wall, and there was a fatality in that vehicle.” She saw another
“vehicle that had been burnt” with “burnt corpses” inside and a “fatality laying [on] the
side of the road.” She described the scene as gruesome−“you could smell burnt flesh,
diesel fuel, almost like a metallic smell” and there was “debris everywhere; car parts, fire
extinguishers, bandages, blood, glass, tires.”

       Mrs. Martin reached Trooper Gibson’s vehicle and placed her medical bag on his
trunk. She saw Defendant sitting in the trooper’s vehicle but did not immediately
identify him as the driver because “his demeanor did not match [the] scenario.” She
introduced herself. Defendant consented to the blood draw so she put on her gloves and
prepared to draw Defendant’s blood by applying a tourniquet and wiping his arm off with
a wipe. Defendant did not appear to be injured. He told Mrs. Martin, “What’s done’s
done, I can’t undo it, I don’t understand why I’m here, they won’t let me go home, can I
go home after the blood draw?” Defendant held his breath during the blood draw. Mrs.
Martin described this as behavior that indicated someone was trying to pass out
intentionally in order to avoid the blood draw. When she completed the blood draw, she
wrote Defendant’s name on both vials of the blood, did “everything that’s required in that
TBI [Tennessee Bureau of Investigation] kit, sealed it up and gave it to [Officer Thomas]
Seiter.”

        Officer Seiter was part of the traffic division and motorcycle unit of the
Chattanooga Police Department. He and his partner Officer Casey Cleveland responded
to a dispatch call about a “multiple vehicle, possible multiple fatalit[y]” crash. They
stopped to get the Total Station, “survey equipment for surveying a scene.” When he
arrived, he encountered Defendant, who “was a little agitated.” He asked Defendant if he
would give a written statement, and Defendant told Officer Seiter that he could not see
without his glasses. Officer Seiter climbed into the cab of Defendant’s semi-truck,
retrieved Defendant’s glasses, and gave them to him. Defendant gave the following
written statement: “I seen brake lights tried to stop + couldn’t hit brakes + couldn’t stop.”
In a later recorded statement, Defendant explained that he started his delivery on Monday
in London, Kentucky. He made that delivery on Wednesday and started to head back
home. Defendant explained as he was driving near Chattanooga, he “[s]een the brake
lights” and tried to engage his brakes but that they did not work. Defendant claimed that
he had some problems with the brakes leaking air but he thought that the issue had been
fixed.

       Officer Joe Warren, an accident reconstructionist, examined the crash scene. In
his opinion, Defendant would have had about one mile of visibility prior to the crash site.
There were no observable skid marks prior to the first impact between Defendant’s semi-
                                             5
truck and a Toyota Prius. The Prius was travelling at five miles per hour when it was hit
by the semi-truck traveling between 78 and 82 miles per hour. Officer Warren opined
that the semi-truck knocked the Prius into a Toyota Scion and then into a LeafGuard van.
The Prius was moved approximately 200 feet from the initial impact point. Ms. Watts,
the driver of the Scion, was ejected from the vehicle and landed about 200 feet north of
the collision site despite wearing her seatbelt. A Mazda Tribute ended up sideways
against the hood of Defendant’s semi-truck and continued to collide with other vehicles
while stuck to the front of Defendant’s semi-truck. The Mazda was completely crushed
and went from being about six feet wide to about two feet wide.

        The posted regular speed limit in the area of the crash was 65 for passenger
vehicles and 55 for trucks. An inspection of Defendant’s semi-truck revealed that the
brakes were working properly and that the brake shoes were properly adjusted. The
tractor protection valve was not working, but this did not contribute to the crash because
the tractor and the trailer were not disconnected from each other. There were no visible
skid marks at the scene that indicated the emergency braking system engaged after the air
brakes failed.

       Autopsies of the six victims, including two children ages nine and eleven, revealed
that they died of multiple blunt force injuries caused by a motor vehicle collision.
Several of the victims sustained extensive burns in addition to their other injuries.

        Chief Brian Hickman of the Collegedale Police Department was certified as a
Drug Recognition Expert (“DRE”) in the area of drug recognition evaluation over the
objection of counsel for Defendant. Chief Hickman explained that a DRE rules out
medical issues and alcohol as reasons for impairment and uses certain tests to determine
“which drug or drug categories that [the person is] under the influence of.” He went
through training in order to get certified as a DRE that included two days of school, a
test, seven more days of school, a second test, twelve supervised evaluations, and a final
knowledge exam. Chief Hickman was required to get recertified every two years.

       Chief Hickman explained the “12-step process” for his evaluation of an individual.
First, alcohol should be ruled out as the impairment. Second, a “preliminary
examination” should be performed by talking to the individual to determine if there are
“any medical issues.” Chief Hickman explained that the individual may be asked “when
did you sleep, when did you eat, have you taken any medications, do you take any drugs,
those sort of things. . . .” Then, the individual’s eyes are examined for “certain clues.”
The test advances to the “divided attention tests” before assessing “vital signs” like pulse,
blood pressure, and body temperature. The next step is a “dark room exam” of the eyes
                                             6
under different lighting conditions. The individual should be examined for injection
and/or ingestion sites for drugs. Additionally, the individual should be informed of the
results of the evaluation and asked “if they confirm anything or add anything to it.”

       Chief Hickman evaluated Defendant at the Collegedale Police Department.
Defendant arrived by patrol car. Defendant was quiet. Defendant’s breath test was a
“zero zero.” The results of the blood test were not available at the time of the evaluation.
Defendant informed Chief Hickman that Defendant had a bump on his head but
Defendant denied that he needed medical care or an ambulance. Chief Hickman
observed the “abrasion” on Defendant’s forehead.

        Chief Hickman administered four divided-attention tests: the modified Romberg
balance test, the walk-and-turn, the finger-to-nose, and the one-leg stand. The modified
Romberg balance test requires an individual to “stand with their feet together, their arms
down to their side, they slightly tilt their head back, close their eyes, and then they
estimate the passage of 30 seconds.” At the end of the 30 seconds, the individual tilts
their head back to the forward position and tells the test administrator to stop. Chief
Hickman looked for any type of swaying, tremors, and the accuracy of the estimation of
time. Defendant performed this test, stopping at 27 seconds. During the test, Chief
Hickman saw both eyelid and body tremors. Chief Hickman next asked Defendant to
perform the walk-and-turn. Chief Hickman demonstrated the proper technique of
walking “heel-to-toe” to the end of the line. Defendant was wearing sandals and stepped
out of balance during the instruction stage. He took off his sandals, got back into the
instruction stage position, and still could not maintain balance. According to Chief
Hickman’s notes, Defendant raised his arms three times and missed heel-to-toe on the
first nine steps. At the turn, Defendant “completely stepped off the line, went to the side,
turned around, came back around and then got back in position to continue the test”
against the instructions. On the second set of steps, Defendant “raised his arms and
missed the heel-to-toe again.”

       Next, Defendant was asked to perform the one-legged stand. He was instructed to
stand on his left leg first, raise his right leg six inches off the ground, keep his arms to his
side, keep both of his legs straight, look down at his foot and count “one thousand one,
one thousand two,” etc. until he was told to stop. Defendant “did not follow . . .
instructions, especially on counting.” Defendant swayed for balance, used his arms for
balance, and put his foot down three times during the test.

       Defendant was then asked to perform the finger-to-nose test. Defendant was
instructed to “stand with feet together, arms down to [his] side” and to extend his arms
                                               7
“just a little bit, close all fingers [ex]cept [his] index finger, and . . . tilt [his] head back
slightly, [and] close [his] eyes.” Defendant was then asked to take the tip of his finger
and alternatively touch his nose with each finger. Defendant missed the tip of his nose on
several tries and used the pad of his finger rather than the tip of his finger. Defendant’s
pulse rate was measured as high, in the range of 108 to 110 beats per minute.
Defendant’s blood pressure was also high, at 174/130 compared to a normal reading of
120/70 to 140/90.

       As a result of Defendant’s performance on the tests and the visual observations,
Chief Hickman surmised that Defendant was impaired. Based on his observations, Chief
Hickman opined that Defendant was likely under the influence of both a depressant and a
stimulant. Chief Hickman acknowledged that the results of Defendant’s blood test
indicated that Defendant was positive for methamphetamine, a stimulant, but did not
indicate the presence of a depressant.

        On cross-examination, Chief Hickman admitted that the DRE test was
standardized and that the steps needed to be done in the same way and in the same order
each time they are administered. He admitted that he failed to interview the arresting
officer but acknowledged that Defendant was not in custody at the time he started the
test. Additionally, Chief Hickman talked to the officer but noted that “there was nothing
that [the officer] gave [him] to put in the report that would be valuable for it.” According
to Chief Hickman, field studies estimated the accuracy of the DRE test as 50% reliable
for predicting stimulants and 33% reliable for predicting depressants. However, he
explained that the field studies did not validate the tests with people who had been
involved in an accident.

       Special Agent Melinda Quinn of the TBI was certified as an expert in the field of
forensic toxicology. She tested Defendant’s blood. The test reflected that the blood
sample was positive for methamphetamine at .08 micrograms per milliliter and
amphetamine at less than .05 micrograms per milliliter. She explained that the
amphetamine was likely a metabolite2 of methamphetamine and that the
methamphetamine exceeded the therapeutic range. At the levels found in Defendant’s
blood, methamphetamine caused jitteriness and restlessness, impaired spatial judgment,
led to increased risk taking, and made it more difficult to perform “divided attention
tasks” like driving a vehicle.



2
    A drug metabolite is formed as the result of the body breaking down a drug.
                                                           8
       On cross-examination, Special Agent Quinn explained the testing procedure. Part
of the procedure involved the use of a solvent named ammonium hydroxide to adjust the
pH of a sample. For each blood test, tests are run with the actual sample and with quality
control samples. According to Special Agent Quinn, the solvent used by the TBI in
running Defendant’s test “was contaminated with naphthalene.” On the printout from the
chromatogram for Defendant’s sample there was “naphthalene peak.” She explained that
the naphthalene was not in “the blood sample, and [she] can show that because it shows
up in all of [her] quality control samples. It was in the ammonium hydroxide that we
used to help extract the blood.” She further explained that naphthalene was “a byproduct
that’s familiar to most people in terms of mothballs.” It also appears in diesel fuel.
Special Agent Quinn admitted that she did not make any notes regarding naphthalene in
the report about Defendant’s sample but that it was “something that we noticed in our
laboratory.” She further explained that the napthalene “did not prevent [the TBI] from
being able to detect drugs that were present in the sample.” Special Agent Quinn did not
recall making any notes on the report of Defendant’s blood sample.

        Todd Fortune, a semi-truck driver, testified on behalf of the defense at trial. He
witnessed the crash. Mr. Fortune followed Defendant for about five or six miles prior to
the accident, going about 64 miles per hour. Mr. Fortune’s semi-truck had a governor on
it to regulate speed. He acknowledged that the area prior to the wreck was downhill and
that Mr. Fortune’s semi-truck was probably traveling closer to 70 miles per hour. Mr.
Fortune saw Defendant’s “brake lights c[o]me on.” Mr. Fortune described that
Defendant “was bailing out [toward the exit ramp] and he caught that car [sitting in the
pie shaped area near the exit ramp] with the right-hand side of his bumper.” This was
followed by “a violent explosion” where flames shot 25 feet into the air. Defendant then
“jerked the wheel back to the left.” Mr. Fortune stopped his truck and turned on his
flashers.

        Dr. Robert Belloto, Jr., testified for the defense as an expert in pharmacology. He
criticized the TBI test. He testified that the substances identified in Defendant’s blood
were likely not methamphetamine or amphetamine.                    He explained “the way
chromatography works” and that the goal is to try to quantitate a substance by looking at
the “mass spectrum” to see if you have a match for a drug like methamphetamine. The
software used to perform the test gives “what percentage of a match that is, it’s based
upon some mathematics.” In Defendant’s sample, “[n]aphthalene was a better match.”
He explained naphthalene was a component of diesel fuel and diesel exhaust. He further
explained that the software “gives you an idea of what’s there” in a mass spectrum, and
“you now have to interpret that mass spectrum” to determine what organic compounds
make the “peaks” on the results. Dr. Belloto explained that if he were performing the test
                                            9
on Defendant’s sample and he saw the spike come up at naphthalene he would “keep
digging” and further interpret the results. He interpreted Defendant’s results to have “an
overlap of other compounds that are coming off approximately the same time, with the
same ions.” While you “can‘t separate” every molecule in drug analysis, Dr. Belloto
expressed concern that the results did not “all line up . . . [f]or it to be
methamphetamine.” Dr. Belloto opined that the TBI should have disclosed the
contamination and started over with a fresh sample but acknowledged that it would not be
entirely unusual to find naphthalene in the blood sample of a truck driver. Dr. Belloto
took issue with the TBI’s failure to differentiate between L and D methamphetamine. Dr.
Belloto admitted that he always testified for the defense and that he did not review the
DRE evaluation or law enforcement investigative file prior to his testimony. Dr. Belloto
informed the defense that the blood was contaminated with naphthalene. Dr. Belloto did
not think the TBI test was reliable because the sample was contaminated, and he did not
think the results showed the presence of methamphetamine.

        At the conclusion of the jury trial, Defendant was found guilty of all charges. The
trial court sentenced Defendant to an effective sentence of 55 years.

                                                        Analysis

                                                   Brady Violation

       On appeal, Defendant complains that the State committed a Brady violation by
failing to disclose to the defense prior to trial that Defendant’s blood sample was
contaminated at the TBI lab with naphthalene. The State disagrees, arguing that
Defendant knew that there was naphthalene in the blood sample prior to trial, that
knowledge of the naphthalene in the blood sample was not exculpatory, and that the
information would not have changed the outcome of the trial had Defendant had the
information prior to trial.

       According to the record, at least five months before trial, the defense became
aware that in addition to the TBI blood testing, a federal agency tested Defendant’s blood
sample for illegal substances.3 As a result of this discovery, counsel for Defendant took
the deposition of Dr. Russell Lewis, Ph.D., an employee of the Federal Aviation
Administration at the Civil Aerospace Medical Institute (“CAMI”) in Oklahoma City,
Oklahoma via videoconference on September 29, 2017. Dr. Lewis acknowledged he
tested Defendant’s blood in September of 2015 at the request of the TBI. He utilized an

3
    It is not entirely clear from the record why this blood test was ordered.
                                                             10
“immunosassay test” and found both methamphetamine and amphetamine in Defendant’s
blood. The test result was confirmed by “gas chromatograph with mass spectrometry.”
The test results confirmed that there were 45 nanograms per milliliter of
methamphetamine and 22 nanograms per milliliter of amphetamine in Defendant’s
blood.4 His report concluded that the quantity of methamphetamine and amphetamine
found in Defendant’s blood sample was within therapeutic limits because it fell between
the range of 10 nanogram per milliliter and 50 nanogram per milliliter. Neither the
deposition of Dr. Lewis nor the test results from CAMI were introduced at trial.

       At trial, during the cross-examination of Special Agent Quinn, she revealed that
Defendant’s blood sample contained naphthalene because the solvent used during the
testing process on Defendant’s blood was contaminated with naphthalene. Special Agent
Quinn insisted that the contamination did not prevent the TBI from running the tests on
Defendant’s blood sample. Dr. Belloto, the defense expert, testified that the correct way
to deal with a contaminant in a blood sample was to “start over” with a “fresh sample.”
Dr. Belloto explained there “was nothing in the notes” from the TBI to disclose the
contamination. In fact, he “was the one who actually informed [the defense] what it was”
when reviewing the test results from the TBI. Dr. Belloto testified that he did not initially
become concerned that the blood sample was contaminated because “it’s not unexpected
that [naphthalene] might be there” because Defendant was a truck driver and could have
been inhaling the chemical.

       At the close of the State’s proof, counsel for Defendant argued to the trial court
that a Brady violation had been committed by the State. Counsel for Defendant agreed
that they received the TBI blood sample package, including raw data and computer files,
as part of discovery but insisted that there was no mention of a contaminant in the blood
sample. Counsel for Defendant argued that the information regarding the contaminant
was exculpatory and, had the defense known about it prior to trial, they may have
changed their strategy by moving to admit the CAMI test and/or the deposition of Dr.
Lewis as proof at trial that levels of methamphetamine and amphetamine were within
therapeutic levels in Defendant’s blood. The trial court asked counsel for Defendant how
they knew “to ask about [the contamination on cross-examination]” of Special Agent
Quinn. Counsel for Defendant admitted that they had researched the matter and were
aware that contamination could occur but claimed that they were not aware of actual
contamination in Defendant’s case. Defense counsel asked the trial court to strike the lab
test and the testimony of Special Agent Quinn and also requested the trial court give a
curative instruction to the jury. The trial court recalled that counsel for Defendant

4
    This converts to .05 and .02 micrograms, respectively.
                                                             11
extensively cross-examined Special Agent Quinn, who explained the source of the
contamination and testified that the contamination of the sample did not change her
conclusion that methamphetamine was present in Defendant’s blood. The trial court
concluded that there was nothing exculpatory about the evidence and that the “defense
went into it thoroughly.”

       Counsel for Defendant renewed the issue at a hearing on the motion for new trial
and a motion for specific discovery filed after the jury trial. In the motion for specific
discovery, counsel for Defendant sought all correspondence between the TBI and the
Hamilton County District Attorney’s Office with regard to Defendant’s blood sample,
test, contamination of the blood sample, all documents concerning the contaminated
ammonium hydroxide and a copy of the TBI quality assurance protocol. At the hearing
on the motion, counsel for Defendant agreed that they received raw testing data in
materials from the State prior to trial and that the defense expert Dr. Belloto examined the
raw data prior to trial but that the defense was not aware of the contamination until cross-
examination of Special Agent Quinn.

        At the hearing on the motion for new trial, counsel for Defendant submitted
affidavits in which counsel explained that they learned of the CAMI test just prior to trial
and hired Dr. Belloto to reexamine the test results. Dr. Belloto’s assessment that the lab
results were a better match for naphthalene than methamphetamine led counsel to believe
they could demonstrate that the TBI result showed naphthalene rather than
methamphetamine at trial. Further, trial counsel explained that because they were
unaware that the sample was contaminated with naphthalene, they had no reason to use
the CAMI test results at trial even though the CAMI test showed methamphetamine was
within therapeutic levels. Counsel claimed that had he known of the contamination prior
to trial he would have utilized both the CAMI test results and the deposition testimony of
Dr. Lewis during trial to discredit the TBI test results.

        The trial court concluded that proof of the blood sample’s contamination was not
exculpatory. The trial court again determined that the defense thoroughly cross-
examined Agent Quinn and that her testimony was credible. The trial court further noted
that the defense expert opined that Defendant did not have methamphetamine in his blood
at all. As a result, the trial court determined that there was no Brady violation.
Defendant insists on appeal that the trial court’s conclusion was incorrect.

      “Every criminal defendant is guaranteed the right to a fair trial under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and the
“Law of the Land” Clause of Article I, section 8 of the Tennessee Constitution.” Johnson
                                            12
v. State, 38 S.W.3d 52, 55 (Tenn. 2001). In the landmark case of Brady v. Maryland, the
United States Supreme Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. The duty to disclose extends to all “favorable information”
regardless of whether the evidence is admissible at trial. Johnson, 38 S.W.3d at 56.
Additionally, “the prosecutor is responsible for ‘any favorable evidence known to the
others acting on the government’s behalf in the case, including the police.’” Strickler v.
Greene, 527 U.S. 263, 275 n.12 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 437
(1995)). However, the State is not required to disclose evidence that the accused already
possesses or is otherwise able to obtain. State v. Marshall, 845 S.W.2d 228, 233 (Tenn.
Crim. App. 1992).

        There are four prerequisites a defendant must demonstrate in order to establish a
due process violation under Brady: (1) the defendant requested the information (unless
the evidence is obviously exculpatory, in which case the State is required to disclose the
evidence); (2) the State suppressed the information; (3) the information was favorable to
the accused; and (4) the information was material. State v. Edgin, 902 S.W.2d 387, 389
(Tenn. 1995). Moreover, the defendant has the burden of proving a constitutional
violation by a preponderance of the evidence. State v. Spurlock, 874 S.W.2d 602, 610
(Tenn. Crim. App. 1993). The key to proving a constitutional violation is to show that
the omission is of such significance as to deny the defendant the right to a fair trial.
United States v. Agurs, 427 U.S. 97, 108 (1976). Whether a petitioner is entitled to a new
trial based upon a Brady violation “presents a mixed question of law and fact.” Cauthern
v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004).

      The lower court’s findings of fact, such as whether the defendant requested
      the information or whether the [S]tate withheld the information, are
      reviewed on appeal de novo with a presumption that the findings are correct
      unless the evidence preponderates otherwise.           The lower court’s
      conclusions of law, however, such as whether the information was
      favorable or material, are reviewed under a purely de novo standard with no
      presumption of correctness.

Id. We shall discuss each element in turn.

                               1. Request for the Evidence



                                             13
        First, we must determine whether trial counsel requested the evidence or whether
it was obviously exculpatory, thereby triggering the State’s duty to disclose it. We
decline to determine that the evidence was obviously exculpatory, necessitating the
State’s disclosure of the evidence because the presence of napthlalene in Defendant’s
blood does not negate the finding of methamphetamine above therapeutic levels in
Defendant’s blood. Special Agent Quinn and defense expert Dr. Belloto both testified
that Defendant’s blood sample contained methamphetamine in a quantity that was not
therapeutic. Defendant requested and received all information related to the blood test,
including the raw data. There is no question that Defendant received those results. The
existence of naphthalene in the blood sample does not mitigate the fact that Defendant’s
blood contained methamphetamine. Thus, the evidence does not preponderate against the
trial court’s determination that the evidence was not exculpatory and/or that counsel
made a request for the evidence.

                              2. Suppression of the Evidence

        Next, we must determine whether the State suppressed the evidence. The State is
not required to “disclose information that the accused already possesses or is able to
obtain.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). Here, the
record reflects that Defendant received the TBI test results and raw data prior to trial.
Moreover, Defendant knew about the CAMI test and deposed Dr. Lewis prior to trial and
chose not to introduce this proof at trial. Defense expert Dr. Belloto testified that he
informed the defense of the presence of naphthalene in the blood sample while reviewing
the materials from the TBI prior to trial. In other words, Defendant knew about the
naphthalene in Defendant’s blood sample prior to trial. Counsel for Defendant
questioned Special Agent Quinn about the contamination on cross-examination. While
Defendant arguably did not definitively learn of the source of the contamination of the
sample until the testimony of Special Agent Quinn, Defendant nonetheless knew that the
blood sample contained naphthalene. Even if the source of the contamination could be
somehow be construed as evidence that the State suppressed, this Court has previously
stated that “[i]f previously undisclosed evidence is disclosed during trial, then no [Brady]
violation occurs unless prejudice results from the delayed disclosure.” State v. Jim
Inman, No. 03C01-9201-CR-00020, 1993 WL 483321, at *9 (Tenn. Crim. App. Nov. 23,
1993) (citing United States v. Word, 806 F.2d 658, 665 (6th Cir.1986)), perm. app.
denied (Tenn. Apr. 4, 1994). The trial court determined that Defendant “knew about it
sufficiently in advance to appropriately prepare for [trial].” The evidence does not
preponderate against the trial court’s conclusion.

                             3. Favorability of the Evidence
                                            14
        “Evidence ‘favorable to an accused’ includes evidence deemed to be exculpatory
in nature and evidence that could be used to impeach the state’s witnesses.” Johnson, 38
S.W.3d at 55-56. Favorable evidence includes evidence that “provides some significant
aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story,
calls into question a material, although not indispensable, element of the prosecution’s
version of events, or challenges the credibility of a key prosecution witness.” Id. at 56-
57. Favorable evidence also includes “‘information that would have enabled defense
counsel to conduct further and possibly fruitful investigation.’” Id. at 56 (quoting
Marshall, 845 S.W.2d at 233).

       The trial court determined that the information was not obviously exculpatory.
We agree. Thus, it could only be considered favorable if it challenges the credibility of a
State’s witness or piece of evidence. The trial court determined that Defendant “did a
good job in cross-examining” Special Agent Quinn about the effect of the contaminant on
the blood test. Indeed, Special Agent Quinn readily admitted that her testing method did
not introduce the contaminant into the blood sample and that the naphthalene did not
compromise the efficacy of the test. We acknowledge that Dr. Belloto’s testimony
contradicted Special Agent Quinn’s. In particular, he questioned the validity of the test
on the basis that the sample was contaminated. In this case, Defendant actually used the
evidence to question the credibility of Special Agent Quinn on cross-examination and
through the introduction of Dr. Belloto’s testimony. The jury heard all this and rendered
a verdict that accredited the testimony of Special Agent Quinn and her findings. This
was certainly the jury’s prerogative. In our view, the evidence was not favorable to the
defense in the sense required by Brady.

                               4. Materiality of the Evidence

        Evidence is considered material “only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the results of the proceeding would have been
different.” Bagley, 473 U.S. at 682. The defendant does not need to prove that
disclosure of the evidence would have resulted in an acquittal. See Kyles, 514 U.S. at
434. “Nor is the test of materiality equivalent to that of evidentiary sufficiency, such that
we may affirm a conviction or sentence when, ‘after discounting the inculpatory evidence
in light of the undisclosed evidence, the remaining evidence is sufficient to support the
jury’s conclusions.’” Johnson, 38 S.W.3d at 58 (quoting Strickler, 527 U.S. at 275).
Rather, the question is whether in the absence of the evidence, the defendant received a
fair trial, “understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514
U.S. at 434. The defendant must show that “the favorable evidence could reasonably be
                                             15
taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998) (citing Edgin, 902
S.W.2d at 390). A reviewing court should evaluate the evidence “‘in light of the totality
of the circumstances and with an awareness of the difficulty of reconstructing in a post-
trial proceeding the course that the defense and the trial would have taken had the
defense’ been made aware of the favorable information.” Spurlock, 874 S.W.2d at 619
(quoting Bagley, 473 U.S. at 683). In other words, “the materiality of the suppressed
evidence must be evaluated within the context of the entire record.” Jordan v. State, 343
S.W.3d 84, 97 (Tenn. Crim. App. 2011).

        The trial court found that nothing “else could have been done to change the
outcome of the trial if [the defense] had known about this at any particular time.” The
trial court continued, determining Defendant “knew about it sufficiently in advance to
appropriately prepare for that information.” We agree. Even if the knowledge of the
blood sample contamination would have caused the jury to completely discount the test
results, it would not have cast “the whole case in such a different light as to undermine
confidence in the verdict.” Irick, 973 S.W.2d at 657. There was other evidence
introduced at trial to establish Defendant’s intoxication. Defendant has not established
all four prerequisites to establish a Brady violation. Consequently, he is not entitled to
relief on this issue.

                       Trial Court Erred in Admitting DRE Expert

       Defendant next complains that the trial court abused its discretion by admitting
Chief Hickman as a DRE expert “because his knowledge and procedures failed to satisfy
McDaniels[v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997)], factors.”
Specifically, Defendant complains that Chief Hickman “misapplied the test and its
methods to an individual who had been involved in an auto accident mere hours before
the test was administered.” Moreover, Defendant complains that the DRE testing and
results “lacked trustworthiness and w[ere] not reliable.” The State argues that the trial
court did not abuse its discretion.

       At a pre-trial hearing, the trial court heard testimony from Chief Hickman about
his DRE training and qualifications. Chief Hickman explained that he attended a two-day
pre-school and seven-day post-school as well as taking a series of twelve evaluations and
a knowledge exam prior to gaining certification as a DRE. He was required to recertify
every two years. Chief Hickman has been certified as a DRE since 2004 and kept logs of
every evaluation he has performed. Chief Hickman explained the twelve steps involved
in the DRE evaluation and that the steps should be performed in the same order and
                                           16
manner each time. Chief Hickman recalled learning about field validation studies that
were conducted on almost 200 people who were arrested in Los Angeles after the
development of DRE tests. During these tests, subjects were given certain drugs or
placebos and tests were then performed on each subject. He explained that the field
studies were 50% accurate regarding the presence of depressants and 33% accurate
regarding the presence of stimulants. The field studies correctly predicted high doses of
d-amphetamine 98% of the time but low doses only 17.5% of the time. Chief Hickman
was not aware of any tests validating DRE testing with persons involved in automobile
crashes.

       After hearing the testimony, the trial court denied the motion to suppress the DRE
testimony and set forth the twelve-step test for DRE testing:

   1. obtain a breath alcohol test to rule out alcohol;
   2. interview the arresting officer;
   3. question the suspect about history, including medication and drug use
   4. examine the suspect’s eyes, including light sensitivity and horizontal-gaze
      nystagmus;
   5. administer a divided-attention test;
   6. take vital signs
   7. check muscle tone of suspect
   8. check for injection sites indicating drug use
   9. talk to the suspect
   10. ask about result
   11. render an opinion on impairment
   12. get a toxicology screen

The trial court noted the accuracy of the field tests and the methods and data used during
the development of the field tests. He described the field studies as “appropriate and
exhaustive” and commented that Johns Hopkins University followed the development of
the DRE field test with “extensive studies.” The trial court acknowledged that the field
studies did not involve subjects who were in auto accidents but noted that Defendant was
not injured in the accident. The trial court determined that Chief Hickman followed the
DRE procedure and that his training, education, background, certification, and experience
all made him qualified to testify as an expert. Further, the trial court concluded that the
evidence would substantially assist the trier of fact as required by Tennessee Rule of
Evidence 702 and 703 and should be admitted at trial as expert testimony. At trial,
Defendant again objected to the introduction of the DRE testimony.

                                            17
       The admissibility of expert testimony is governed by Rule 702 of the Tennessee
Rules of Evidence. “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. Our
supreme court has further defined the role of the trial court in assessing the propriety of
expert testimony:

       Trial courts act as gatekeepers when it comes to the admissibility of expert
       testimony. Their role is to ensure that an expert, whether basing testimony
       upon professional studies or personal experience, employs in the courtroom
       the same level of intellectual rigor that characterizes the practice of an
       expert in the relevant field. A court must assure itself that the expert’s
       opinions are based on relevant scientific methods, processes, and data, and
       not upon an expert’s mere speculation. The court’s reliability analysis has
       four general inter-related components: (1) qualifications assessment, (2)
       analytical cohesion, (3) methodological reliability, and (4) foundational
       reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation
marks omitted).

       Rule 703 of the Tennessee Rules of Evidence provides that:

       The facts or data in the particular case upon which an expert bases an
       opinion or inference may be those perceived by or made known to the
       expert at or before the hearing. If of a type reasonably relied upon by
       experts in the particular field in forming opinions or inferences upon the
       subject, the facts or data need not be admissible in evidence. The court
       shall disallow testimony in the form of an opinion or inference if the
       underlying facts or data indicate lack of trustworthiness.

       Trial courts are vested with broad discretion in resolving questions regarding the
admissibility of expert testimony. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007).
On appellate review, we will not disturb a trial court’s decision regarding the admission
or exclusion of expert testimony absent an abuse of discretion. Scott, 275 S.W.3d at 404.
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. State v. Ruiz, 204
                                            18
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)). At trial, the burden rests on the party proffering the expert witness to establish
that the evidence “rests upon ‘good grounds.’” Scott, 275 S.W.3d at 404.

        Defendant claims that this is a case of first impression because “no case law exists
in Tennessee regarding the Rule 702 admissibility of DRE evidence,” and therefore
insists that the McDaniels factors must be considered. In McDaniel, the Tennessee
Supreme Court identified five nonexclusive factors courts are to consider in assessing the
reliability of expert testimony:

       (1) whether scientific evidence has been tested and the methodology with
       which it has been tested; (2) whether the evidence has been subjected to
       peer review or publication; (3) whether the potential rate of error is known;
       (4) whether . . . the evidence is generally accepted in the scientific
       community; and (5) whether the expert’s research in the field has been
       conducted independent of litigation.

McDaniel, 955 S.W.2d at 265. “These factors are not requirements for admissibility but
may be considered by the trial judge when weighing the reliability of the expert
testimony and forensic evidence.” State v. Davidson, 509 S.W.3d 156, 208 (Tenn. 2016).
A court “must assure itself that the [expert’s] opinions are based on relevant scientific
methods, processes, and data, and not upon an expert's mere speculation.” Id. (quoting
McDaniel, 955 S.W.2d at 265). A rigid application of the McDaniel factors is not
required, their application in assessing reliability depends upon several considerations
including the nature of the issue, the witness’s particular expertise, and the subject of the
expert’s testimony. Id. (citing Brown v. Crown Equip. Corp., 181 S.W.3d 268, 277
(Tenn. 2005) (citing State v. Stevens, 78 S.W.3d 817, 833 (Tenn. 2002); Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 150 (1999)); Scott, 275 S.W.3d at 402).

        We were unable to locate any cases in this State examining the admissibility of
DRE testimony as expert testimony. We were, however, able to locate two cases from
this Court that reference DRE testimony. See, e.g. State v. Thomas Huey Liles, Jr., No.
E2018-00384-CCA-R3-CD, 2019 WL 494774, at *3 (Tenn. Crim. App. Feb. 8, 2019)
(admitting testimony of officer as a drug recognition expert at trial), no perm. app. filed;
State v. Thomas J. Privett, No. M2017-00539-CCA-R3-CD, 2018 WL 557924, at *
(Tenn. Crim. App. Nov. 14, 2017) (admitting testimony of drug recognition expert at a
sentencing hearing to testify about driving while impaired by methamphetamine), no
perm. app. filed. In addition, many other courts have considered this issue and concluded
that testimony based on the DRE protocol is admissible as evidence. See, e.g., Mace v.
                                             19
State, 944 S.W.2d 839 (Ark. 1997); State v. Daly, 775 N.W.2d 47, 58-59 (Neb. 2009)
(citing U.S. v. Everett, 972 F. Supp, 1313 (D. Nev. 1997)); Williams v. State, 710 So. 2d
24 (Fla. App. 1998); State v. Kanamu, 112 P.3d 754 (Haw. App. 2005); State v.
Klawitter, 518 N.W.2d 577 (Minn. 1994); State v. Aleman, 194 P.3d 110 (N.M. App.
2008); People v. Hazard, No. 341544, 2019 WL 131179, at *7 (Mich. Ct. App. Mar. 26,
2019); State v. Sampson, 6 P.3d 543 (Or. App. 2000); Wooten v. State, 267 S.W.3d 289
(Tex. App. 2008); State v. Baity, 991 P.2d 1151 (Wash. 2000); State v. Chitwood, 879
N.W.2d 786, 799 (Wis. Ct. App. 2016).

        In this case, the trial court held a hearing on the proposed expert testimony. The
trial court complied with both Tennessee Rule of Evidence 702 and 703 and concluded
that the testimony was admissible. While not explicitly naming the McDaniel factors, the
trial court aptly considered the development of the test and its reliability when
determining whether to admit the testimony. The trial court noted the field tests, testing
the methodology; the review of the methodology by Johns Hopkins, the rate of error, the
number of experts certified in the State of Tennessee. Finally, the trial court put all its
findings and conclusions in a well-developed, well-reasoned, six-page written order. In
our assessment, the trial court did not abuse its discretion. “[T]he weight to be given
[expert testimony] is a question for the jury under careful instruction of the trial judge.”
Mullendore v. State, 191 S.W.2d 149, 152 (Tenn. 1945); see also State v. Sparks, 891
S.W.2d 607, 616 (Tenn. 1995); State v. Anderson, 880 S.W.2d 720, 732 (Tenn. Crim.
App. 1994). Defendant is not entitled to relief on this issue.

                                Sufficiency of the Evidence

        Defendant next argues that the evidence was insufficient to convict Defendant of
“being intoxicated beyond a reasonable doubt.” Specifically, Defendant insists that only
Chief Hickman and Special Agent Quinn gave testimony about Defendant’s intoxication
at trial. Defendant questions the validity of Chief Hickman’s DRE evaluation and the
blood test performed by Special Agent Quinn. The State, on the other hand, argues that
the proof, in a light most favorable to the State, revealed that Defendant’s blood test was
positive for both methamphetamine and amphetamine and that the DRE evaluation
revealed Defendant was under the influence of a stimulant.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal
to demonstrate why the evidence is insufficient to support the conviction. State v.
                                            20
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court
must answer is whether any rational trier of fact could have found the accused guilty of
every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences
that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions
concerning the credibility of the witnesses and the weight and value to be given to
evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
“The standard of review ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       Vehicular homicide is the reckless killing of another by the operation of a motor
vehicle, as the proximate result of the driver’s intoxication. T.C.A. § 39-13-213(a)(2).
Intoxication occurs when a driver is under the influence of any intoxicant or controlled
substance that impairs his ability to safely operate a motor vehicle by depriving him of
the clearness of mind and control of himself that he would otherwise possess. T.C.A. §
55-10-401.

       Here, Special Agent Quinn testified that Defendant’s blood test was positive for
both methamphetamine and amphetamine and the methamphetamine was in an amount
that was higher than therapeutic. In Special Agent Quinn’s expert opinion, the amount of
methamphetamine and amphetamine in Defendant’s blood would result in restlessness,
impaired spatial judgment, increased risk taking, and making it difficult to perform
divided-attention tasks, like driving. Chief Hickman testified that he evaluated
Defendant using the DRE protocol and determined that Defendant was impaired by a
stimulant. Chief Hickman explained that Defendant’s poor performance on several of the
tasks and the entirety of the DRE evaluation led him to believe that Defendant was
unsafely operating a motor vehicle while under the influence of an intoxicant. There was
also testimony that Defendant failed to even attempt to stop prior to the crash. Defendant
himself admitted that he “couldn’t, hit brakes and couldn’t stop.” Defendant’s main
complaint on appeal goes to the weight and credibility of the evidence. These tasks are

                                             21
for the jury to determine. The evidence was sufficient to establish intoxication and,
consequently, vehicular homicide. Defendant is not entitled to relief on this issue.5

                                                     Sentencing

       Lastly, Defendant complains that the trial court erred by ordering consecutive
sentencing. Specifically, Defendant takes issue with the fact that the trial court deemed
him a “dangerous offender” for sentencing purposes, considering only the number of
people he killed rather than the danger he posed to those other people on the road that
day. The State insists that the trial court properly considered the factors set forth in State
v. Wilkerson, 905 S.W.2d 933, 935 (Tenn. 1995).

       Where a defendant is convicted of one or more offenses, the trial court has
discretion to decide whether the sentences shall be served concurrently or consecutively.
T.C.A. § 40-35-115(a). The Tennessee Supreme Court has held, “the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to consecutive
sentencing determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). A trial
court may order multiple offenses to be served consecutively if it finds by a
preponderance of the evidence that a defendant fits into at least one of the seven
categories in Tennessee Code Annotated section 40-35-115(b). This Court must give
“deference to the trial court’s exercise of its discretionary authority to impose consecutive
sentences if it has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b).” Pollard, 432
S.W.3d at 861. An order of consecutive sentencing must be “justly deserved in relation
to the seriousness of the offense.” T.C.A. § 40-35-102(1); see State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). In addition, the length of a consecutive sentence must be “no
greater than that deserved for the offense committed.” T.C.A. § 40-35-103(2); see Imfeld,
70 S.W.3d at 708. When imposing consecutive sentences pursuant to the dangerous
offender classification, the trial court must conclude that the proof establishes that the
aggregate sentence is “reasonably related to the severity of the offenses” and “necessary
in order to protect the public from further criminal acts.” Id. (quoting Wilkerson, 905
S.W.2d at 938).

       At the sentencing hearing, the trial court thoroughly discussed the Sentencing Act
prior to pronouncing Defendant’s sentence. The trial court explicitly went through the
Wilkerson factors on the record. The trial court determined Defendant’s behavior
indicated little or no regard for human life and no hesitation for committing a crime when

5
    Defendant does not challenge the sufficiency of his remaining convictions.
                                                          22
the risk to human life was high. The trial court reviewed the facts from trial that showed
Defendant plowed into nearly standstill traffic at around 80 miles per hour, killing six
people and wounding several others. The trial court noted that Defendant’s reckless
disregard for the lives of others could have led to even more deaths, because there were
many cars stopped in construction traffic that evening. The trial court determined two of
the consecutive sentencing factors pertained to Defendant: (1) that the sentence was
necessary to protect the public from further serious criminal conduct; and (2) that it
reasonably related to the severity of the offenses committed. In our assessment, the trial
court’s determinations are supported by the record, and it did not err in sentencing
Defendant to an effective sentence of 55 years at thirty percent.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.


                                            ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




                                           23
