        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 21, 2010

          STATE OF TENNESSEE v. LEONARD EUGENE MYERS

                   Appeal from the Hamilton County Criminal Court
                         No. 264872 Don W. Poole, Judge


                  No. E2010-00762-CCA-R3-CD - Filed June 3, 2011




The Defendant, Leonard Eugene Myers, was convicted following a jury trial in the Hamilton
County Criminal Court of reckless aggravated assault, a Class D felony; vehicular assault,
a Class D felony; and driving under the influence (DUI), a Class A misdemeanor. See
T.C.A. §§ 39-13-102(2)(A) (2006) (amended 2009, 2010), 39-13-106(a) (2010), 55-10-401
(2008) (amended 2010). The trial court merged the reckless aggravated assault and DUI
convictions with the vehicular assault conviction and sentenced the Defendant to four years
as a Range I offender. On appeal, the Defendant contends that (1) the evidence is
insufficient to support his convictions; (2) the trial court erred in admitting blood analysis
evidence because the chain of custody was not properly established; (3) the trial court erred
in excluding evidence of the victim’s civil judgment against the Defendant; and (4) the trial
court erred in sentencing the Defendant based upon enhancement factors that were not found
beyond a reasonable doubt by the jury. We affirm the convictions, but we vacate the
judgments and remand the case to the trial court for entry of one judgment reflecting that the
reckless aggravated assault and DUI convictions are merged with the vehicular assault
conviction.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
                            Vacated; Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee, Assistant District
Public Defender, for the appellant, Leonard Eugene Myers.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; R.
Steve Bebb, District Attorney General Pro Tempore; and Brooklyn Martin and Paul Moyle,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                           OPINION

        This case arose when the car the Defendant was driving struck Eric Shrader’s
motorcycle and Mr. Shrader was seriously injured. At the trial, Mr. Shrader testified that on
February 7, 2007, he left work in downtown Chattanooga on his motorcycle. He said he
wore a helmet and a padded jacket. He said his next memory was of “leaning” on pavement
and someone telling him not to move and that an ambulance was coming. He said his next
memory was from three or four weeks later, after he awoke from a medically induced coma.
He said he received the following injuries from the collision: a fractured C-2 vertebra, a
broken sternum, a punctured lung that was secondary to broken ribs, chipped vertebrae
throughout his back, an open pelvic fracture, loss of twenty-nine units of blood, broken
femurs, a “snapped” ankle, and a broken thumb. He identified photographs of himself in the
hospital and of his injuries. He said that he was placed on a respirator and a feeding tube and
that he was hospitalized for four weeks, was in an inpatient rehabilitation program for two
weeks, and was in outpatient rehabilitation for three to four months. He said that he was
confined to a wheelchair for several months, that he later used a walker and a cane, and that
he had to learn to walk again. He said he lost over $20,000 in wages due to his injuries. He
stated that he took pain medication for a period of time but that after “several years,” he was
no longer in pain. His medical records were received as an exhibit.

       On cross-examination, Mr. Shrader acknowledged that he declined to speak with
defense counsel before the trial. He also acknowledged that his medical bills totaled over
three million dollars. He said that he did not see the driver of the car that hit him and that he
was knocked unconscious in the wreck.

        Arthur “J.R.” Potter, Jr., testified that he drove on Bonny Oaks Drive with his son on
February 7, 2007. He said a motorcycle passed him on the right side of the road and traveled
in front of him. He said that after they topped a hill and returned to level ground, a car came
into his lane of traffic and hit the motorcycle. He said the motorcycle’s driver was thrown
into the air a distance that “looked like it was high as a telephone pole,” although the distance
might not have been that high.

        J.R. Potter testified that he got out of his truck but did not see the victim. He said that
his son found the victim under the front of his truck and that had he been traveling two or
three miles an hour faster, he would have run over the victim. He said his son tried to keep
the victim on the ground while he checked on the driver of the car that struck the motorcycle.

                                                -2-
       Brian Potter testified that on February 7, 2007, he was a passenger in his father’s
truck. He said they were traveling in the northbound lane when the victim passed them on
the right side at a red light. He said that one to two hundred yards after they topped a hill,
the Defendant came into their lane of travel and struck the victim, throwing the victim into
the truck.

        Brian Potter testified that he checked on the victim first and then the Defendant. He
said that the Defendant appeared to be intoxicated and that the Defendant asked if he could
get his girlfriend because the car was hers and he did not have a driver’s license or insurance.
He identified the Defendant as the person he saw that night.

       On cross-examination, Brian Potter admitted that he did not smell alcohol when he
checked on the Defendant. He said he was not sure whether the Defendant was “drunk” but
noted that the Defendant had slurred speech and would not look him in the eye. He denied
he ever said that the odor of alcohol was so strong that he could become intoxicated from the
smell. He said the windshield of the car the Defendant drove was broken.

        Chattanooga Police Detective Justin Kilgore testified that he had been on duty on the
night of February 7, 2007, and was on his way home when he heard a radio call about a
motorcycle wreck involving injuries. He said he went to the scene and found a crowd of
people standing around a person lying on the ground who was wearing a helmet. He said that
either an ambulance or the fire department had just arrived and were attending to the victim.
He said that after another patrol officer arrived, he surveyed the scene and saw a car facing
south with a person standing beside it. He said he thought the car was blue. He admitted he
never saw the Defendant in the car.

        Chattanooga Police Officer David Allen testified that he was working on February 7,
2007, and received a dispatch call to respond to the scene of a traffic accident involving
injuries. He said that when he arrived, he saw a red Chevrolet Blazer in the northbound lane
and a blue Chevrolet Corsica on the sidewalk. He identified photographs of these vehicles.
He identified a photograph of the motorcycle taken at an impound lot and noted that the front
end was destroyed and had blue paint on one of the tires. He said the motorcycle appeared
in the photograph as it did at the scene. He identified a diagram of the scene prepared using
a top controller station. He said a top controller station used a laser to measure points at the
scene to diagram the scene accurately.

       Officer Allen testified that the Defendant had a large bump on his forehead that
appeared to be from the wreck and that the Defendant was standing near his car with another
officer when he arrived at the scene. He said that the Defendant admitted he was the driver
and that this statement was filmed by equipment on the officer’s patrol car. He said,

                                              -3-
however, that the recording had not been preserved by the police department due to computer
storage limitations when no one requested preservation. He said that due to the bump on the
Defendant’s head and the possibility of a concussion, he did not request that the Defendant
perform field sobriety tests. He said that he did not see anyone other than the Defendant and
a police officer near the blue car and that no other person at the scene claimed to have been
the driver. He said another officer transported the Defendant to the “blood room” at the
police station while he investigated the paint on the vehicles involved in the wreck and
gathered information from the vehicles. He said he went to the “blood room” and watched
a nurse draw blood from the Defendant and seal the vials in a blood kit. He said he filled out
the paperwork in the blood kit, took custody of the kit, and walked next door to the property
intake area with it. He identified a copy of the form he completed and said it reflected that
the blood was drawn on February 7, 2007, at 10:10 p.m. He said another officer took the
Defendant to the hospital after the blood was drawn.

        Officer Allen testified that the blood kit required the signatures of the requesting
officer and the nurse who collected the blood. He described the kit as having two vials used
for collecting blood and on which a suspect’s name was written, bubble wrap with a tape
closure, a Ziploc bag for the vials sealed in bubble wrap, and a box that was sealed after the
Ziploc bag was placed inside. He said that in this case, before he accepted the sealed kit, he
witnessed the blood going into the vials and the kit’s being sealed.

        On cross-examination, Officer Allen testified that he arrived at the scene of the
collision at 9:08 p.m. and that he thought the wreck took place at 9:00 p.m. He said that the
people were already out of the vehicles “[w]ith the exception of [the victim, who] was on the
ground.” He said the Defendant stated he drank one beer.

       Officer Allen testified that the nurse typically wrote a defendant’s name on the vials
but admitted he did not specifically recall watching her do so in this case. He said he “may
have turned around.” He claimed he was “pretty sure” he wrote his name and the name and
address of the police department on the box. He said he did not recall when it became
standard procedure to write a defendant’s complaint number on the blood kit box but
acknowledged it was possible that someone wrote the Defendant’s number on the
Defendant’s kit.

       Officer Allen testified that the video recordings from the patrol cars were used to
preserve evidence. He said the server had been expanded recently to accommodate more
recordings as cameras were added to additional cars. He did not recall how long after the
crime he obtained the indictment but agreed it was probably within six months. He said he
might have failed to request the video when the case went to the grand jury.



                                             -4-
       Officer Allen testified that there was damage across the entire windshield of the blue
Corsica. Viewing a photograph of the Corsica, he said he believed there was a hole on the
driver’s side of the windshield. He said he did not recall any cuts on the Defendant’s head
but agreed he was concerned about the bump on the Defendant’s head. On redirect
examination, Officer Allen identified the Defendant.

        Smith Cutter, a property technician with the Chattanooga Police Department, testified
that he did not recall receiving blood sample kit 7-0513 in a drop box on February 7, 2007.
He said he researched the item and found that he received the kit from Officer Allen. He said
that he would have inspected the kit to ensure it had the proper information regarding the
officer’s name and address and that the two seals on the box were in place. He said he did
not accept kits without the proper information on the box. He said the seals on kit 7-0513
were in place. He said he put the kit on the top shelf of Refrigerator 1 or 2 and entered
information about the case into a database used for blood kits that are to be sent to the
Tennessee Bureau of Investigation (TBI). He said his supervisor took the kits to the TBI
laboratory in Nashville every two weeks.

        Chattanooga Police Sergeant Craig Johnson testified that he was the supervisor of the
property and evidence room. He said that he was not the only person who transported
samples to laboratories but that he did most of it. He said he took a blood kit and toxicology
request to the TBI in late February 2007. He said the kit was submitted to the property room
on February 7 and stored in a refrigerator in the property room until February 22. He said
that they received a request on February 22 from the case officer, that the kit was “signed
out,” and that he took it to the TBI laboratory in Nashville and left it in a locked and secured
drop box. He said that he inspected the box before taking it to the laboratory and that it was
sealed properly. He said that if someone tampered with a box or if a box were not properly
sealed, he would not submit it to the TBI laboratory and that he would contact the case
officer and probably the internal affairs department, as well. He said he followed standard
procedure with respect to this kit.

        Mary Ann Carlson testified that she was a forensic technician in the toxicology unit
of the TBI laboratory in Nashville. She said her job duties included receiving blood kits and
handling the preliminary toxicology results. She said the laboratory received a kit from the
Chattanooga Police Department on February 22, 2007. She said she was the person who took
it from the drop box, although she admitted she did not specifically recall doing so. She said
the drop box was accessible only from inside the department. She said there were only three
people with keys to the drop box: herself, the evidence receiving supervisor, and the director
of the laboratory. She said her notes reflected that the box was properly sealed, that she
verified the contents, and that she entered information into the database. She said she put
bar-coded labels on the two tubes with the numeric identifier. Her written request identified

                                              -5-
the laboratory number as 071003127 and the requesting agency case number as 07122262.
She said that her usual procedure was to transfer the tubes to a scientist for alcohol testing
but that in this case, “I actually had to transfer the tubes to my manager because I think there
was a lapse of my attendants and scientist attendants. So somebody had to transfer them
from me to her.” She said this was the last contact she had with the evidence.

       On cross-examination, Ms. Carlson explained the “lapse.” She said that at the time
she completed the intake duties, the scientist to whom she was going to transfer the evidence
was not in the laboratory, and she transferred the evidence to her supervisor. She said that
her manager transferred the evidence to the scientist once the scientist was present and that
during the interim, the evidence was locked in a refrigerator.

       On redirect examination, Ms. Carlson agreed that it was common practice for
evidence to be locked in a refrigerator if the scientist was not present to receive it. She said
her supervisor was the only person in her unit able to access her locked, personal refrigerator.

        Special Agent Jennifer Hall, a forensic scientist in the TBI laboratory’s toxicology
unit, testified as an expert witness in toxicology. She said she received the blood samples
in this case from Special Agent Kelly Hopkins. She said alcohol testing was performed
before she received the evidence for drug testing.

       Agent Hall testified that her first procedure upon receiving a sample was to document
any deficiencies in quantity or less than ideal condition. She said there were no notations of
any deficiencies in the sample in this case. She said that her next step was to run
presumptive tests for five classes of drugs and then perform a “basic drug screen” for
approximately eighty-three drugs. She said the next step was to test for certain drugs such
as cocaine or THC that needed an additional analysis. She said she took these steps in
analyzing the blood sample in the present case. She identified the toxicology report she
prepared. The exhibit listed the laboratory case number as 071003127 and the requesting
agency case number as 0712262.

       Agent Hall testified that the blood sample tested positive for diazepam,
dihydrocodeine, nordiazepam, methadone, cocaine, alprazolam, and THC, a metabolite of
marijuana. She identified diazepam and nordiazepam as ingredients of the drug Valium, a
muscle relaxant and anti-anxiety medication that acted as a central nervous system depressant
and caused impaired coordination, drowsiness, dizziness, confusion, and “loss of your
reflexes.” She noted that the quantity of Valium in the blood sample was 0.10 micrograms
per milliliter and that the therapeutic range for Valium was 0.02 to 0.04. She stated that the
sample was “positive” for diazepam but did not quantify the result. Specifically as to the
nordiazepam, she said that the quantity in the blood sample was 0.10 micrograms per

                                              -6-
milliliter and that the therapeutic range was 0.02 to 1.8. She said dihydrocodeinone was also
known as hydrocodone or Lortab and was a pain medication. She did not quantify the
amount of the substance in the blood sample. She said that methadone was used for severe
pain and in drug treatment centers and that its effects were similar to those of Valium. She
said that the therapeutic level for methadone was 0.07 to 0.1 micrograms per milliliter and
that the blood sample contained less than 0.05 micrograms per milliliter. She said the blood
sample contained 0.07 micrograms per milliliter of cocaine. She said that cocaine had a
therapeutic range but did not quantify it. She noted that cocaine was classified as a stimulant,
but she said it caused either “a rush or a crash.” She said that alprazolam was also known
as Xanax and that its use could cause drowsiness, dizziness, confusion, and blurred vision.
She said the blood sample contained 0.11 micrograms per milliliter of alprazolam, which was
more than the therapeutic range for the drug of 0.03 to 0.10. She stated that she determined
that marijuana had been used sometime before the blood sample was drawn because THC,
an inactive metabolite of the drug, was present. She said the THC level was 37.2 centigrams
per milliliter. She said cocaine continued to break down in the blood after a sample was
drawn and noted that she tested the blood on March 10, 2007, after the sample was drawn
on February 7, 2007.

       Agent Hall testified that the combined effect of drugs varied by individual. She said
there were recommendations against combining some of the drugs she found in the blood
sample. She said that the drugs in question could cause impairment individually but that she
could not say how the effect would be multiplied from combining the drugs.

        On cross-examination, Agent Hall testified that other laboratory tests were done on
the blood sample before she received it. She acknowledged that a person could build up a
tolerance to some drugs, including methadone, and would require prescriptions of higher
quantities to obtain the desired effect. She admitted it was possible for a person to have
higher quantities of a drug in his system but not show the desired effects. She said her
scientific equipment limited her to stating only that Valium and Lortab were present in the
blood sample. She said that different drugs were metabolized by the body at different rates
and acknowledged that the nordiazepam in the blood sample was indicated as an active
metabolite that would still have effects but that the same could not be said of marijuana as
evidenced by the presence of THC. Agent Hall conceded that her testimony about
therapeutic levels of drugs were those that had been published and that the Defendant’s
therapeutic levels could be different.

       The Defendant did not present any proof. The jury found the Defendant guilty of
reckless aggravated assault, vehicular assault, and DUI. The State submitted certified copies
of the Defendant’s two prior DUI convictions as proof that this was the Defendant’s third



                                              -7-
DUI conviction. The State also submitted a certified copy of the Defendant’s driving history.
The jury found the Defendant guilty of DUI, third offense.

        At the sentencing hearing, the trial court received the presentence report as an exhibit.
It reflected that the forty-five-year-old Defendant did not make a statement to the presentence
officer. In addition to the two previous DUI convictions that were the basis of the conviction
in the present case, the Defendant had prior convictions for violation of the driver’s license
law; three counts of driving on a suspended, cancelled, or revoked license; two counts of
possession of a controlled substance; possession of glue for an unlawful purpose; and
reckless driving. He had additional convictions for two counts of driving on a suspended,
cancelled, or revoked license and one count of public intoxication that occurred after the
crimes in the present case.

       The Defendant told the presentence report preparer that he dropped out of eighth
grade, that he did not read or write well, and that his physical health was poor, including
injuries from a knife assault, a serious car accident in which four vertebrae were shattered,
and a previous diagnosis of Hepatitis C for which he was not presently receiving treatment.
The Defendant was admitted to a psychiatric hospital in 2009 after exhibiting bizarre
behaviors and hearing voices while he was confined to the workhouse. He admitted having
a long history of substance abuse. He said he began using marijuana at age sixteen and
smoked an average of two “joints” per day. He said he began using pills at age sixteen or
seventeen and used them “off and on” since then. He began drinking beer at age fifteen and
stated his daily average intake was one quart. The Defendant admitted that he was enrolled
in inpatient rehabilitation programs on three prior occasions and that he had attended
Alcoholics Anonymous and Narcotics Anonymous meetings a few times. He said that he had
worked as a roofer but that he had not worked for nine years because he was unable to
concentrate. His disability claims over several years were denied. Although he was the
father of three children, all were adopted by others because he and their mother were unable
to care for them.

        The victim testified that he had been married for fourteen months when the crime
occurred. He said his wife took one-and-one-half months’ leave from her employment in
order to stay with him at the hospital. He said that due to his physical disabilities that
required him to use a wheelchair and a walker, his wife and his mother drove him to medical
appointments. He said learning to walk again was painful. He said that friends rebuilt his
bathroom because it was not handicapped accessible and he could not take a shower in its
previous configuration. He said that he still had pain in his ankle upon getting out of bed and
that climate changes caused him hip pain. He said he had pain where his femurs were broken
and in his neck where his vertebrae were fused and a steel plate was placed. He said he had
frequent headaches that had not occurred until after the wreck. He said any athletic

                                               -8-
endeavors involving his legs were still painful. He said that he had been a recent college
graduate and that a week and a half before the crime, he began a new engineering career. He
said he was unable to work for four months and received no disability or other benefits
through his employer. He said he was able to return to work in mid to late June 2008. He
said that he and his wife lost over $20,000 of income due to his injuries and that their credit
had been good but that they were harassed by collections agents due to his medical expenses.
He said that the collection matters were eventually resolved and that there were no longer any
outstanding medical bills. He expressed his desire that the Defendant receive a maximum
sentence.

        On cross-examination, the victim testified that his medical bills were in excess of one
millon dollars and were paid by his private insurance. He admitted he did not have an exact
dollar amount. He said that his $20,000 lost wages claim was an estimate, that his weekly
pay at the time was $1000, and that the balance reflected his wife’s lost income. He said his
wife was a salaried employee and had to work reduced hours for a lower salary for about nine
months.

        On redirect examination, the victim acknowledged the letter he submitted that was
part of the presentence report. On questioning by the court, the victim stated that his own
lost wages ranged from over $12,000 to $15,000. On redirect examination, the victim stated
that his employment was terminated after nine weeks because he had no disability benefits
but that he was rehired in June 2008.

        The Defendant submitted a sentencing memorandum as an exhibit. It stated the
following: The Defendant had a short attention span that caused him academic difficulties.
He could not read or write well and quit school in the eighth grade. He began drinking at age
fifteen and liked alcohol because it slowed his racing thoughts. He used various drugs
beginning at age sixteen and preferred Xanax and marijuana because they helped him focus.
He began working as a roofer despite his struggles with addiction. The Defendant was badly
injured in an assault in 1987, and he was in a wreck in 2000 in which he was ejected from
his car and received long-term injuries. His back was damaged, and he had to learn to walk
again after this wreck, although he was never able to return to work. He had no insurance.
In 2004, he received steroid treatments and pain medications for his back injury, but he was
unable to continue treatment after about a year because he lost his insurance. The Defendant
claimed he used drugs that were not prescribed to him to treat his continued back pain. The
Defendant’s last substance abuse treatment was in 1997. The Defendant was hospitalized
in 2006, and he was noted to have anxiety, panic attacks, bipolar disorder, and Hepatitis C.
His only psychiatric hospitalization was in 2009, when he presented with delirium from
substance abuse withdrawal, antisocial personality, and borderline intellect. He was given
medication and continued treatment after his release. The Defendant wanted to continue

                                              -9-
mental health treatment and had not realized he could receive treatment without insurance.
The Defendant’s family would assist him after his release.

        After receiving the proof, the trial court found that the Defendant had a prior history
of criminal convictions or behavior, that the victim’s personal injuries were particularly great,
and that the Defendant had no hesitation about committing a crime when the risk to human
life was high. See T.C.A. § 40-35-114(1), (6), (10) (2006) (amended 2007, 2008). The court
rejected the Defendant’s proffered mitigating factors that he was remorseful for pain caused
to others; that he had a long-standing, untreated substance abuse problem; that he had
debilitating back pain but was uninsured; that he could not read and did not write well but
would like to obtain his GED; that he suffered untreated mental illness for a long time for
which he did not know he could receive treatment even though he was uninsured; and that
he had the support of a loving family. See id., § 40-35-113(13) (2010).

        The court found that the Defendant’s prospects for rehabilitation were poor, that
society needed to be protected from the Defendant’s future conduct, that measures other than
confinement had frequently or recently been applied to the Defendant without success, and
that a sentence of probation would depreciate the seriousness of the offense. See id., § 40-
35-103(1) (2010). The court imposed a Range I sentence of four years to be served in the
Department of Correction for reckless aggravated assault, four years for vehicular assault,
and eleven months and twenty-nine days to be served at 100 percent for DUI, third offense.
The court revoked the Defendant’s driver’s license for five years. It also merged the reckless
aggravated assault and DUI convictions with the vehicular assault conviction. This appeal
followed.

                                                I

        The Defendant contends that the evidence is insufficient to support his convictions.
He argues that there is not sufficient proof that he was intoxicated, that his intoxication
caused the wreck, or that he recklessly caused bodily injury to another. The State responds
that the proof supports the convictions. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



                                              -10-
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997).

        Regarding the vehicular assault conviction, the offense required the State to establish
that the Defendant was intoxicated, that the Defendant recklessly caused serious bodily injury
to another person by operating a motor vehicle, and that the intoxication was the proximate
cause of the injury. See T.C.A. §§ 39-13-101(a)(1) (2010) (assault), 39-13-106(a) (vehicular
assault), 55-10-401 (intoxication, DUI).

              “Reckless” means that a person acts recklessly with respect to
              circumstances surrounding the conduct or the result of the
              conduct when the person is aware of, but consciously disregards
              a substantial and unjustifiable risk that the circumstances exist
              or the result will occur. The risk must be of such a nature and
              degree that its disregard constitutes a gross deviation from the
              standard of care that an ordinary person would exercise under all
              the circumstances as viewed from the accused person’s
              standpoint[.]

Id., § 39-11-106(31) (2006).

        In the light most favorable to the State, the evidence reflects that the Defendant
exhibited signs of intoxication at the scene, that he admitting drinking one beer, and that his
blood contained diazepam, dihydrocodeine, nordiazepam, methadone, cocaine, alprazolam,
and THC. There was proof that these drugs could impair a person’s ability to drive and that
the combination of some of them could cause greater effects. The proof is undisputed that
the victim suffered serious bodily injury . The Defendant’s recklessness was established by
the proof he drove into oncoming traffic and hit the victim’s motorcycle. The proof shows
that the Defendant’s actions and condition were the proximate cause of the victim’s serious
bodily injury. The evidence is sufficient to support the vehicular assault conviction.

        Turning to the reckless aggravated assault conviction, the State was required to show
that the Defendant recklessly committed an assault and that it caused serious bodily injury
to another. See id., § 39-13-102(2)(A) (reckless aggravated assault). As noted above, the
record establishes that the Defendant engaged in reckless conduct by driving on the wrong
side of the road, that he struck the victim’s motorcycle head-on, and that the victim suffered
serious bodily injury.

       Finally, we consider the Defendant’s conviction for DUI, third offense. The State was
required to show that the Defendant drove on a roadway frequented by the public at large

                                             -11-
while under the influence of an intoxicant, including drugs, that impaired his ability to
operate his car safely. See id., § 55-10-401. In order for the Defendant to receive enhanced
punishment, the State was also required to establish that the offense was the Defendant’s
third DUI offense. See id., § 55-10-403(a)(1)(A)(v) (Supp. 2006) (amended 2007, 2008,
2009, 2010). The proof in the light most favorable to the State established that the Defendant
drove on a public road under the influence of drugs and that his ability to drive safely was
impaired by the drugs. Certified copies of the Defendant’s two prior DUI convictions were
received as evidence. The evidence is sufficient to support the conviction.

        In so holding, we have considered the Defendant’s argument that no field sobriety
tests were given and that Brian Potter did not smell the odor of alcohol at the scene. The
Defendant’s argument overlooks the proof that intoxication can result from drug use, as well
as that of alcohol, and that he had multiple intoxicating drugs in his blood.

       As part of our consideration of the sufficiency of the evidence, we have considered
and rejected the Defendant’s argument that the evidence is insufficient because the blood
sample evidence was not properly admitted. We note that a review of the sufficiency of the
evidence necessarily includes all the evidence. The use of improperly admitted evidence
would only result in a reversal of the conviction, not an acquittal. State v. Longstreet, 619
S.W.2d 97, 100-01 (Tenn. 1981). For the reasons noted above, the evidence, viewed in the
light most favorable to the State, was sufficient to support the convictions. The question of
whether the trial court properly admitted the blood sample evidence is addressed in section
II below. The Defendant is not entitled to relief.

                                              II

       The Defendant contends that the trial court erred in admitting the evidence about the
blood sample because the State did not establish an unbroken chain of custody for the
sample. He relies on the fact that the State did not present the testimony of the TBI agent
who accepted the blood sample from Ms. Carlson, tested it, and transferred it to Agent Hall
for additional testing. The State argues that the trial court did not abuse its discretion in
admitting the evidence. We agree with the State.

        The Tennessee Rules of Evidence provide, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
the court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Tenn. R. Evid. 901(a). If the facts and circumstances regarding the
evidence “reasonably establish the identity and integrity of the evidence,” it should be
admitted. State v. Cannon, 254 S.W.3d 287 (Tenn. 2008). If the State’s proof of the chain
of custody is lacking, then the evidence should not be admitted unless other appropriate

                                             -12-
means demonstrate the identity and integrity of the evidence. Id. In establishing the chain
of custody, the State is not required to call as a witness every person who handled the
evidence, or establish the identity of the evidence beyond all possibility of doubt, or to
exclude every possibility of tampering. Id. On appeal, a trial court’s ruling regarding the
adequacy of the chain of custody is reviewed for abuse of discretion. Id. at 295.

       Before ruling that the State had adequately shown the chain of custody and allowing
the proof, the trial court heard the testimony of Agent Hall outside the presence of the jury
regarding the laboratory’s standard operating procedures. Agent Hall testified that after a
blood sample was received, a laboratory technician checked it in, after which a forensic
scientist checked it out for testing. She said a sample always went to the “alcohol room” first
unless there was a sufficient quantity of blood for both alcohol and drug screens to be
performed and a drug screen was requested. She said each person had his or her own locked
refrigerator in a vault for securing evidence. She said that when two tubes of blood were
submitted, policy required that the tubes stay together. She admitted she had no personal
knowledge of what happened after the blood sample was transferred from Ms. Carlson to the
scientist who tested it for alcohol, but she said she was familiar with the standard operating
procedure and had no reason to believe it was not followed in the present case. She said that
after the alcohol analysis was completed, the case was transferred to her. She said she
retrieved the vials of blood and the case folder from Agent Hopkins, the person who did the
testing. She said, “We did the chain of custody. That is done through our BLIMS system.”
She said she verified the identifying information on the vials as being the same as that stated
on the toxicology request form and noted that she verified the information by initialing the
form. She said the identifying information she verified included the name of the subject, the
agency case number, and the laboratory case number. She said that the numbers on the vials
matched to the Defendant’s name.

       The trial proof established that Officer Allen witnessed a nurse draw the victim’s
blood into vials and seal them into an evidence kit. Officer Allen took the evidence to the
property room, where Mr. Cutter received it and placed it in a secure refrigerator. It
remained in the refrigerator until Sgt. Johnson took it to the TBI laboratory and left it in a
secure drop box. Ms. Carlson retrieved it from the lock box, prepared the necessary
paperwork, entered information into a database, transferred custody of the sample to her
supervisor, and placed the sample into a secure refrigerator. Ms. Carlson’s supervisor later
removed the sample from the secure refrigerator and transferred its custody to an agent for
alcohol testing. Agent Hall received the sample from the agent who did the alcohol testing
and performed drug testing on it. The laboratory identification number and the requesting
agency identification number for the sample were the same on the intake paperwork prepared
by Ms. Carlson and the toxicology report prepared by Agent Hall. Both Ms. Carlson and



                                             -13-
Agent Hall testified about the standard procedures used at the laboratory to maintain the
security of blood samples and stated that the procedures were followed in this case.

       Upon review, we hold that the Defendant has not demonstrated that the State did not
adequately establish the chain of custody for the blood sample. Agent Hall testified in a jury-
out hearing about the standard procedures and security measures followed in the laboratory.
Ms. Carlson testified that she placed identifying information on the blood vials, that she
completed identifying paperwork, that she transferred the evidence to her supervisor and
placed it in a locked refrigerator, and that her supervisor removed the evidence and
transferred it to a forensic scientist for alcohol testing. Agent Hall testified that she received
the vials from the scientist who did the alcohol testing, that she verified the identifying
information, and that the information matched the case numbers assigned to the Defendant.
There was no proof to suggest that the evidence had been tampered with or handled
incorrectly.

        The State was not required to call every witness who handled the evidence within the
laboratory in order to establish a proper chain of custody. See Cannon, 254 S.W.3d 287. The
trial court did not abuse its discretion in finding that the State sufficiently established a
proper chain of custody. The blood sample evidence was properly admitted. The Defendant
is not entitled to relief.

                                               III

       In his next issue, the Defendant contends that the trial court erred in sustaining the
State’s objection to cross-examination of the victim as to whether the victim obtained a civil
judgment against the Defendant. He argues that this evidence was relevant to show the
victim’s bias against him. The State counters that the trial court did not abuse its discretion.
We agree with the State.

        On cross-examination of the victim, Defense counsel asked whether the victim had
a civil judgment against the Defendant. The State objected without identifying a basis for
the objection, and the trial court sustained the objection. Later in the trial, the defense made
an offer of proof of the civil judgment, which the trial court accepted. The court stated,
however, that evidence of the judgment was not relevant to the trial.

        The Defendant cites Tennessee Rule of Evidence 616, which permits a party to “offer
evidence by cross-examination, extrinsic evidence, or both, that a witness is biased in favor
of or prejudiced against a party or another witness,” and Rules 401 and 402 defining relevant
evidence and establishing that relevant evidence is admissible but evidence that is not
relevant is not admissible. We note that a criminal defendant should be afforded wide

                                              -14-
latitude to cross-examine a victim about civil litigation arising from the crime. See, e.g.,
State v. Horne, 652 S.W.2d 916, 919 (Tenn. Crim. App. 1993); State v. Taurys K. Walls, No.
02C01-9601-CR-00019, Shelby County (Tenn. Crim. App. Oct. 14, 1998). “Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.

        In the present case, the evidence of the civil judgment was relevant impeachment
evidence that the victim might have harbored prejudice toward the Defendant due to the
wreck and its aftermath. The trial court erred in ruling the evidence was not relevant.
“However, in the final analysis improper admission or rejection of evidence is not grounds
for reversal unless it shall affirmatively appear that the alleged error affected the result of the
trial.” Horne, 652 S.W.2d at 918 (citing McBee v. State, 372 S.W.2d 173 (Tenn. 1963)); see
T.R.A.P. 36(b). The record reflects that other proof suggested the victim’s prejudice against
the Defendant. The victim testified at length during his direct examination about his
numerous injuries, his extended hospitalization, the pain he suffered, his disabilities and
rehabilitation, and his lost wages. The victim acknowledged on cross-examination that he
refused to speak with defense counsel before the trial. Having considered all of the proof,
we conclude that the exclusion of the impeachment evidence did not affect the result of the
trial. The Defendant is not entitled to relief.

                                                IV

       The Defendant contends that the trial court erred by sentencing him based upon
enhancement factors not found by the jury beyond a reasonable doubt. The State argues that
the Defendant was properly sentenced under the 2005 amendments to the Sentencing Reform
Act. We agree with the State.

       We begin by noting the Tennessee Supreme Court’s decision in State v. Gomez, 239
S.W.3d 733 (Tenn. 2007), and the rulings of the United States Supreme Court in
Cunningham v. California, 549 U.S. 270 (2007); Blakely v. Washington, 542 U.S. 296
(2004); and Apprendi v. New Jersey, 530 U.S. 466 (2000). These cases addressed the
infirmity of sentences in which a defendant’s sentence was judicially enhanced by facts other
than prior convictions that were not found by a jury to exist beyond a reasonable doubt. We
note that the Defendant was sentenced, however, under the law as it existed after the 2005
amendments to the Sentencing Act, which removed presumptive sentences and which
complies with the requirements of the Sixth Amendment. See State v. Banks, 271 S.W.3d
90, 144-45 (Tenn. 2008).



                                               -15-
        The Defendant acknowledges the present law, but he argues that the 2005
amendments and the case law upholding the 2005 Act remain contrary to Blakely. As an
intermediate appellate court, this court is bound by the authority of our supreme court or the
United States Supreme Court. See, e.g., Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976);
Rudd v. State, 497 S.W.2d 746, 747 (Tenn. Crim. App. 1973). The Defendant is not entitled
to relief.

       We notice, however, as a matter of plain error that the trial court entered separate
judgments for each of the three convictions, even though it merged the reckless aggravated
assault and DUI convictions with the vehicular assault conviction. We vacate the judgments
and remand the case to the trial court for entry of a vehicular assault judgment reflecting that
the reckless aggravated assault and DUI, third offense convictions are merged with the
vehicular assault conviction.

      In consideration of the foregoing and the record as a whole, we affirm the convictions,
but we vacate the judgments and remand the case to the trial court for entry of a single
judgment consistent with this opinion.


                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -16-
