         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 13, 2005

              STATE OF TENNESSEE v. MICHAEL W. BELCHER

                     Appeal from the Criminal Court for Sullivan County
                           No. S44,889   Phyllis H. Miller, Judge



                     No. E2005-00532-CCA-R3-CD - Filed March 30, 2006


The defendant, Michael W. Belcher, was convicted by a Sullivan County jury of two counts of
aggravated assault by reckless conduct, for which he received an effective 24-year sentence as a
career offender. Aggrieved of his convictions, the defendant brings the instant appeal challenging
the sufficiency of the evidence to support his two convictions. After a thorough review of the record
and applicable law, we hold that the evidence is sufficient to support the convictions and accordingly
affirm the judgments of the lower court.

             Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Gene Scott, Jr., Johnson City, Tennessee, for the Appellant, Michael W. Belcher.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                We summarize the evidence presented at trial. On March 27, 2000, the defendant was
employed as a bellman at the Garden Plaza Hotel in Johnson City, Tennessee. One of his duties as
bellman was to transport guests of the hotel to and from the airport via the hotel’s shuttle van.
Doctor Mohammed Shouri, a guest of the hotel, had traveled to Johnson City to interview for a
pathology residency position at East Tennessee State University. After completing his interview and
returning to the hotel, Dr. Shouri requested transportation to the airport. The guest services manager
of the hotel, Patti Copeland, instructed the defendant to drive Dr. Shouri to the airport. During their
drive, Dr. Shouri asked the defendant several questions about Johnson City in an attempt to learn
more about his potential new job site. Doctor Shouri characterized the defendant’s responses to his
questions as slow and sluggish.
                 While traveling toward the airport on Highway 75, Dr. Shouri noticed that the shuttle
van had drifted into the lane of opposing traffic and that another vehicle was approaching the van.
Doctor Shouri then said to the defendant, “Hey, hey, hey, hey, watch, watch, watch,” which is the
last thing he recalled prior to the ensuing crash with a Toyota Corolla driven by Ramona Gouge. Ms.
Gouge testified that she saw the defendant’s vehicle approaching in her lane of traffic and therefore
decided to veer into the opposite lane of traffic, which was clear. When the defendant corrected his
error and returned to his lane of traffic, the two vehicles collided.

                After the accident, the occupants of both vehicles were transported to Johnson City
Medical Center.1 Lieutenant Richard Hurley was the state trooper who initially responded to the
accident.2 After he and other state troopers evaluated the crime scene, he drove to the hospital to
interview the individuals involved in the crash. The defendant agreed to give Lieutenant Hurley a
statement, which Lieutenant Hurley transcribed and the defendant reviewed. Ms. Copeland was also
present during this exchange, and she agreed to sign the defendant’s statement as a witness. In his
statement, the defendant recounted that he was fatigued while driving and must have fallen asleep
when he was awakened by Dr. Shouri’s alert. He then realized he had crossed into the wrong lane
of traffic and corrected his error but was unable to avoid Ms. Gouge’s vehicle, which had crossed
into his lane of traffic.

                After giving this statement, the defendant agreed to provide a blood sample for
forensic evaluation. Ms. Gretchen Kelsey, a hospital nurse, collected the blood sample pursuant to
Lieutenant Hurley’s request, and Lieutenant Hurley then mailed the sample to the Tennessee Bureau
of Investigation (TBI) Knoxville Crime Lab for a toxicology analysis. Upon receipt, TBI Special
Agent forensic scientist Stephanie Dotson performed an initial toxicology screen of the defendant’s
blood, and that test revealed the presence of cocaine and a cocaine metabolite, ecgonine methyl ester.
Cocaine is the parent drug of the metabolite ecgonine methyl ester, meaning that when the human
body ingests cocaine and attempts to break it down, the body transforms cocaine into ecgonine
methyl ester. Further testing confirmed the presence of 0.07 micrograms per milliliter of cocaine
and 0.05 micrograms per milliliter of ecgonine methyl ester.

               Doctor Kenneth Ferslew, who is the Chief Toxicologist at the East Tennessee State
University College of Medicine and who testified as the state’s expert witness, opined that the
defendant’s fatigued state prior to the accident was caused by an acute stage of cocaine toxicity.
Specifically, Dr. Ferslew explained that individuals who regularly ingest cocaine require larger and
larger amounts of the drug to maintain their “high.” After staying on this extended high for a period


         1
            Ramona Gouge’s mother, Vernita W inters, was a passenger in Ms. Gouge’s car. Ms. W inters died at the
accident scene. The defendant was charged with vehicular homicide, a charge that was tried jointly with the aggravated
assault charges now on appeal. The jury did not agree on a verdict on the vehicular homicide charge, and that charge
was accordingly mistried.

         2
            Mr. Hurley, whose title was state trooper at the time of the accident, had been promoted to the position of
lieutenant by the trial date.

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of time, their bodies “crash” when they come off the high, and they become very fatigued. Doctor
Ferslew opined that the presence of cocaine and ecgonine methyl ester in the defendant’s blood
indicate that the defendant’s fatigued state was caused by such a “crash.”

               Defense expert witness, Frederick Grim, a vehicular accident reconstructionist,
opined that the physical evidence indicated that Ms. Gouge caused the accident by entering the
defendant’s lane of traffic and that the accident occurred in the defendant’s lane of traffic, not Ms.
Gouge’s lane of traffic.

               As a result of the accident, the occupants of both vehicles sustained injuries. The
defendant broke his thumb and injured his leg; Dr. Shouri shattered his ankle, requiring several
corrective surgeries; Ms. Gouge broke both ankles, several ribs, a wrist, a heel, and a hip, rendering
her wheelchair-bound.3

                Based on this evidence, the jury convicted the defendant of the aggravated assaults
by reckless conduct of Dr. Shouri and Ms. Gouge. However, the defendant contends that the
evidence is insufficient to support his convictions. Our consideration of that claim is grounded in
legal bedrock. When an accused challenges the sufficiency of the evidence, an appellate court
inspects the evidentiary landscape, including the direct and circumstantial contours, from the vantage
point most agreeable to the prosecution. The reviewing court then decides whether the evidence and
the inferences that flow therefrom permit any rational fact finder to conclude beyond a reasonable
doubt that the defendant is guilty of the charged crime. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                 In determining sufficiency of the proof, the appellate court does not replay or reweigh
the evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness
credibility, the weight and value of the evidence, and factual disputes are entrusted to the finder of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State, 199 Tenn. 298, 305, 286
S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). Simply
stated, the reviewing court will not substitute its judgment for that of the trier of fact. Instead, the
court extends to the State of Tennessee the strongest legitimate view of the evidence contained in
the record as well as all reasonable and legitimate inferences that may be drawn from the evidence.
See Cabbage, 571 S.W.2d at 835.

                 With these principles in mind we must determine whether the evidence in this record
is sufficient to support the jury’s verdicts. We begin with the definition of the conviction offenses.


         3
           Ms. Gouge was primarily wheelchair-bound at the time of trial and could stand unassisted for no longer than
ten minutes at a time due to the injures she received in the instant accident. However, due to a lack of any medical expert
testimony, we are unable to discern whether Ms. Gouge’s wheelchair-reliance is a permanent condition or may improve
over time.

                                                           -3-
A person commits reckless aggravated assault who “[r]ecklessly causes an assault as defined in §
39-13-101(a)(1), and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly
weapon.” Tenn. Code Ann. § 39-13-102(a)(2) (2003); see § 39-13-101(a)(1) (defining assault as
“intentionally, knowingly or recklessly caus[ing] bodily injury to another”). In this context, the term
“reckless”:

       refers to a person who 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. § 39-11-302(c). “‘Serious bodily injury’ means bodily injury which involves . . . [e]xtreme
physical pain[, p]rotracted or obvious disfigurement[,] or [p]rotracted loss or substantial impairment
of a function of a bodily member, organ or mental faculty.” Id. § 39-11-106(a)(34).

                The defendant argues that the evidence introduced at trial was insufficient to support
his reckless aggravated assault convictions because the state merely proved that the defendant fell
asleep while driving and did not consciously drive into the wrong lane of traffic. The defendant cites
Potter v. State, 174 Tenn. 118, 124 S.W.2d 232 (1939), for the proposition that criminal liability
should not be extended to those who do not consciously drive in the wrong lane of traffic. The
defendant further argues that the evidence was insufficient to prove he was intoxicated at the time
of the accident because eyewitness testimony established that the defendant was lucid and did not
appear intoxicated to those observing him. The state responds that the defendant’s argument lacks
merit because the evidence establishes that the defendant ingested cocaine and consciously
disregarded a substantial and unjustifiable risk by driving under the influence of an intoxicant,
thereby causing serious bodily injury to Dr. Shouri and Ms. Gouge.

                We agree that the evidence, viewed in the light most favorable to the state, supports
the defendant’s two aggravated assault convictions. An analysis of the defendant’s blood revealed
the presence of 0.07 micrograms per milliliter of cocaine and 0.05 micrograms per milliliter of
ecgonine methyl ester, which according to the state’s expert witness indicates that the defendant was
“crashing” from his prolonged cocaine use, thus causing his fatigued and inattentive state. Because
the defendant, through his own statement, admitted that the accident resulted from his falling asleep
while operating the hotel’s shuttle van and because the evidence attributed his drowsiness to the
voluntary use of illegal narcotics, we hold that the jury could have reasonably concluded that the
defendant’s ingestion of cocaine was the proximate cause of the accident which resulted in the
convictions at issue. Specifically, a rational jury could have found that by ingesting cocaine and
operating a motor vehicle, the defendant acted recklessly by being aware but consciously
disregarding a substantial or unjustifiable risk. See Tenn. Code Ann. § 39-11-302(c) (2003); see also
State v. Samuel T. Cravens, No. M2004-01710-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App.,
Nashville, Aug. 25, 2005) (affirming sufficiency of the evidence to support the defendant’s vehicular


                                                 -4-
assault and assault convictions because a rational jury could have concluded that the defendant’s
undisputed alcohol intoxication was the proximate cause of the reckless operation of his vehicle,
swerving into the wrong lane of traffic, thereby causing the automobile accident and injuring three
people); cf. Potter, 124 S.W.2d at 236 (refusing to extend criminal liability when jury determined
that a driver who drifted into the wrong lane of traffic causing an automobile accident was not
intoxicated). Accordingly, we affirm the defendant’s aggravated assault convictions.



                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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