        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 29, 2010

                STATE OF TENNESSEE v. TERRI K. TEASTER

                 Appeal from the Criminal Court for Greene County
                    No. 07CR182      John F. Dugger, Jr., Judge




              No. E2010-00413-CCA-R3-CD - Filed September 27, 2010


A Greene County Criminal Court jury convicted the defendant, Terri K. Teaster, of vehicular
assault, and the trial court imposed a sentence of four years’ incarceration. In this appeal,
the defendant contends that the evidence was insufficient to support her conviction, that the
State improperly remarked on the defendant’s right not to testify, and that the four-year,
fully-incarcerative sentence is excessive. Discerning no error, we affirm the judgment of the
trial court.

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

J AMES C URWOOD W ITT, J R., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Brent Hensley, Greeneville, Tennessee (on appeal); and Francis X. Santore, Jr., Greeneville,
Tennessee (at trial and on appeal), for the appellant, Terri K. Teaster.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and John Chalmers Thompson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              The defendant’s vehicular assault conviction relates to a June 29, 2005 vehicle
collision between the Pontiac Firebird being driven by the defendant and a van being driven
by the 85-year-old victim on Blue Springs Parkway in Greene County.

              At trial, Greene County Sheriff’s Deputy Chuck Humphries testified that he
was on patrol on June 29, 2005, when he was dispatched to a vehicle crash “on Blue Springs
Parkway, just past the Jetway Market.” Deputy Humphries described the roadway at that
location as “straight,” with “[u]nlimited visibility both directions.” He added that on the day
of the collision, the roadway was dry and the weather was clear. He determined the victim
to be the driver of a van and the defendant to be the driver of a maroon Pontiac Firebird.

               Deputy Humphries recalled that after the defendant was taken from the scene
by ambulance, he conducted an inventory search of her vehicle before it was removed from
the scene and found two prescription pill bottles, “[t]wo small straws, a set of scales, and a
knife.” He also found scales that are commonly used to weigh marijuana. He then went to
the hospital to interview the defendant, who, he said, “appeared . . . to be under the influence
of alcohol or drugs.” It was Deputy Humphries’ opinion that “she was intoxicated.” Upon
a request by the deputy, the defendant agreed to take a blood test to determine whether she
was under the influence of alcohol or other drugs. Deputy Humphries testified that the
defendant’s blood was drawn approximately one hour after the crash and that he immediately
sent the sample to the Tennessee Bureau of Investigation for testing. Testing established the
presence of Nordiazepam, Diazepam, Carisoprodol, and Meprobamate, which are
prescription narcotics, and marijuana in the defendant’s blood.

              Deputy Humphries testified that he interviewed the defendant in April of 2006
and that she provided a written statement about the accident. He said,

              She wrote me a statement that she had gotten up that morning;
              brushed her teeth; combed her hair; talked to Ray’s cousin for a
              few minutes; called Ray; and was going to Jetway to get
              cigarettes and two liter Pepsi; got in the car; left; pulled to a stop
              sign at Don Smith’s; and can’t remember after that.

He stated that “Don Smith’s” was “west of the wreck scene, approximately three to four
hundred yards.”

              During cross-examination, Deputy Humphries testified that he found no drug
residue on the straws or the knife found in the defendant’s car. He conceded that the
toxicology report indicated that there was no alcohol in the defendant’s system.

               Joanne Bowman, daughter of the 85-year-old victim, testified that on June 29,
2005, she and her two youngest grandchildren spent the afternoon with the victim and
followed her to a repair shop on Asheville Highway in Greeneville. Ms. Bowman said the
victim had no problems driving and that she was in good health. After the victim’s car was
examined at the garage, they left to return to their home in Mosheim. Ms. Bowman testified
that she “intended to pull out directly behind” the victim when they left the garage, but she

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was unable to do so because of the heavy traffic. Ms. Bowman testified that as she
approached the Jetway convenience store on Blue Springs Highway, she saw that the victim’s
vehicle had been hit “head-on” by another vehicle. Ms. Bowman said that her mother “was
bleeding from the left side of her head, and there was blood all over the airbag, and she was
just unresponsive at the time.” Ms. Bowman stated that she went over to the other vehicle
and asked the driver “was she all right.” She testified that the defendant, Terri Teaster, was
the only person in the vehicle.

               Following the accident, the victim was taken to Laughlin Hospital by
ambulance, and Ms. Bowman followed in a car driven by Tammy Morgan. Because the
physicians at Laughlin Hospital were not prepared to deal with injuries as extensive as those
suffered by the victim, she was transported by helicopter to Johnson City Medical Center,
where she remained for 31 days. Ms. Bowman testified that the victim spent an additional
two weeks at Northside Hospital and one month in a rehabilitation facility. The victim spent
the bulk of her time in the Johnson City Medical Center confined to the Intensive Care Unit.
Ms. Bowman described the victim’s injuries, “She had a neck fracture. She had eight broken
ribs. Hip, broken hip and pelvis. She had a severe cut on her left arm and her elbow. And
a broken right leg.” Ms. Bowman stated that her mother eventually required a total knee
replacement that caused another two-week hospital stay.

               During cross-examination, Ms. Bowman testified that the victim had previously
broken her wrist and ankle, but she had had no major surgeries or other health problems. She
said the victim took Coumadin, blood pressure medicine, and thyroid medicine and that the
victim had been taking these medications for “years and years.” She stated that the victim
took her car to the garage because it “was like making a little noise or something.” Ms.
Bowman denied that the victim had trouble with her eyesight or driving ability. She stated
that she did not make a habit of following the victim every time she drove but was doing so
on the day of the collision because they happened to be together.

                Doug Brown testified that on the day of the wreck, he was following a maroon,
two-door Pontiac for several hundred yards and noticed that the car “wasn’t in the lane.” He
testified that the car swerved off the shoulder of the road and across the center line. At the
time the maroon car made impact with a van, the maroon car was across the center line. Mr.
Brown stated that just before the crash he was worried the car would cause an accident.
Following the collision, he “pulled over and just sat there.”

               The victim testified that she lived on Blue Springs Parkway in Mosheim and
that on the day of the crash she “had been up to the car garage and was going back home”
so that she could “go to church.” She said she had no problems driving to the garage or back
home until the collision occurred. She did not remember the collision itself. The victim

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testified that as a result of the wreck, she “spent thirty-one days in Memorial Hospital in
Johnson City, and then . . . three other places” before she was sent home. She stated that she
“had to learn to walk and everything all over again.” She recalled that “about every bone in
[her] body was broken” and stated that she “can’t do anything hardly” since the wreck.

              Doctor Julie Dunn, a general surgeon and trauma surgeon who treated the
victim during her stay at Johnson City Medical Center, described the victim’s injuries:

                              She had a closed head injury, which was
              consistent with blood in the brain.
                              She had a C spine fracture, specifically it was
              odontoid fracture; it is sort of a pedicle that your head turns on
              to turn – it sits on to turn, and that was cracked.
                              She had multiple rib fractures.
                              She had bleeding into the chest that did require
              further surgery.
                              She had a laceration to her spleen.
                              She had acute blood loss anemia from all of her
              injuries.
                              She had an acetabular fracture; that is the joint that
              the femur bone sits in. It’s sort of a ball and socket. And she
              also had a tibial plateau fracture and that is the top of the tubular
              where the knee – the femur sits on top of that where the knee
              moves back and forth.

Doctor Dunn testified that most of the victim’s fractures would have required eight to 12
weeks’ healing time. She also stated that the victim’s injuries would have been very painful
and would have prevented her from resuming her daily activities for that period of time. The
head injury, she said, could have lead to headaches and short- and long-term memory loss.
She added, “At a woman at her age, with her medical condition, these are potentially lethal
injuries.”

               Doctor Kenneth Ferslew, a pharmacologist and forensic toxicologist employed
at East Tennessee State University’s James H. Quillen College of Medicine, testified that he
had reviewed the defendant’s toxicology report along with her medical records from the day
of the collision in order to determine whether the defendant was impaired by drugs or alcohol
on the day of the crash. He stated that his analysis began with an examination of the
defendant’s negative blood alcohol level, which indicated that the defendant was either not
drinking at or near the time of the accident or had been able to eliminate any alcohol in her
system before the test was taken. In any event, Doctor Ferslew stated that he did not believe

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that alcohol was an issue in this case because of the negative result, lack of the smell of
alcohol on the defendant’s person, and the fact that there was no alcohol in the defendant’s
car.

              Doctor Ferslew then examined the other substances that were present in the
defendant’s system, and he described them for the jury in turn. He explained,

              Meprobamate is a skeletal muscle relaxant. It is a carbamate.
              It is sold under two trade names, Miltown or Equanil. It is an
              active metabolite of Carisoprodol. And Carisoprodol is a drug
              commonly known as Soma. It is a skeletal muscle relaxant. It
              is an analgesic. It is a central nervous system depressant. Some
              physicians, we use it as a sedative hypnotic. It is under the class
              carbamates. And it is used for headaches. It is used for muscle
              tension, muscle pain, and to calm people because it is a
              depressant.

He stated that “[w]hen the body metabolizes Carisoprodol, it produces Meprobamate.” In
this case, the defendant had both Carisoprodol and Meprobamate in her system, which, he
said, “based on the prescribing patterns that occur,” indicated that the defendant was “most
likely . . . taking Soma and metabolizing it to Meprobamate.” Doctor Ferslew testified that
both drugs come with a warning that they will “impair your psychomotor performance or
your ability to operate a motor vehicle or your ability to operate machinery. And that is
because it is a central nervous system depressant.”

               Doctor Ferslew said that the level of Meprobamate in the defendant’s blood
was “in a therapeutic window” and that it would have been producing the desired effect of
“C.N.S. depression and the muscle relaxation of a carbamate.” He noted that even at a
therapeutic level, the effects of Meprobamate “can be deleterious to your operating a
vehicle.” The level of Carisoprodol was “sub-therapeutic.” Doctor Ferslew testified that the
ratio of Meprobamate to Carisoprodol indicated that the defendant was “taking this drug
chronically. In other words, repeated prior to this point in time.” He added that chronically
taking the drug does not necessarily mean that it was prescribed, it “goes back to just how
often you are taking it.” He stated that her total carbamate level was 19.7 and “[a]nytime the
total carbamate is greater than 10, we know forensically, toxicologically, that this has been
correlated with psychomotor impairment, misoperation of a vehicle, crashes.” He said,
“[T]herapeutic is what is desired. That does not mean that that concentration cannot have
adverse effects. Because you were warned when you take many drugs that produce central
nervous system depression, that even at therapeutic concentration, these drugs can impair
you.”

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               Doctor Ferslew testified that the defendant also tested positive for the use of
“Diazepam, which is a generic name for Valium. It’s a benzodiazepine. It is also a muscle
relaxant. . . . They can be anti-epileptics, they can be minor tranquilizers, they can be
axiolytics or drugs that calm people who have anxiety attacks.” He stated that Diazepam is
“metabolized to Nordiazepam.” Again, he explained that the ratio of the drug and its
metabolite indicated that the defendant “had been taking this stuff for a longer period of time
prior.” The benzodiazepines, like the carbamates, were within therapeutic levels. He stated
that the defendant was “combining the drugs for an additive dissynergistic effect.”

               Doctor Ferslew testified that the defendant’s medical records indicated that she
suffered “no obvious head trauma” during the crash. Given the fact that the defendant
crossed the center line, that she showed outward signs of intoxication, and that she had two
different central nervous system depressants in her system, Doctor Ferslew concluded that
the defendant “did show signs of impairment or intoxication in the misoperation of that
vehicle.” He added that the toxicology report also indicated that the defendant had used
marijuana prior to the wreck, but he could not tell when she had done so. As a result, he
could not say that the defendant was under the influence of marijuana at the time of the crash.

               Based upon this evidence, the jury convicted the defendant of vehicular assault.
The trial court imposed a sentence of four years’s incarceration. The defendant filed a timely
motion for new trial and a timely notice of appeal.

              In this appeal, the defendant contends that the evidence is insufficient to
support her conviction, that the State improperly commented on her failure to testify during
closing argument, and that the sentence is excessive.

                                I. Sufficiency of the Evidence

                The defendant asserts that the evidence was insufficient to support her
conviction of vehicular assault because the State failed to establish that she was intoxicated
at the time of the collision. The State asserts that the evidence adduced at trial fully supports
the defendant’s conviction. We agree with the State.

                We review the defendant’s claim mindful that our standard of review is
whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. Winters, 137 S.W.3d at 654.

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               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               Tennessee Code Annotated section 39-13-106 defines vehicular assault as
follows:

               A person commits vehicular assault who, as the proximate result
               of the person’s intoxication as set forth in § 55-10-401,
               recklessly causes serious bodily injury to another person by the
               operation of a motor vehicle. For the purposes of this section,
               “intoxication” includes alcohol intoxication as defined by §
               55-10-408, drug intoxication, or both.

T.C.A. § 39-13-106(a) (2006). “‘Serious bodily injury’ means bodily injury that involves .
. . [a] substantial risk of death; . . . [p]rotracted unconsciousness; . . . [e]treme physical pain;
. . . [p]rotracted or obvious disfigurement; . . . [p]rotracted loss or substantial impairment of
a function of a bodily member, organ or mental faculty; or . . . [a] broken bone of a child who
is eight (8) years of age or less.” Id. § 39-11-106(34).

               The evidence adduced at trial established that on the day the defendant caused
a head-on collision with the victim’s vehicle, the defendant was under the influence of at
least two central nervous system depressants. Doctor Ferslew testified that the effects of
these medications, even at therapeutic levels, would have impaired the defendant’s operation
of her vehicle. He also stated that the overall level of each medication in the defendant’s
system established that the impairment caused by the medications contributed to her
“misoperation” of her vehicle that day. Mr. Brown testified that the defendant was operating
her vehicle in an erratic manner just before the collision. This evidence clearly supports the
defendant’s conviction of vehicular assault.

                                II. Improper Closing Argument

                The defendant next contends that during his closing argument, the prosecutor
made an improper reference to the defendant’s failure to testify or offer other evidence at
trial and that the error cannot be classified as harmless given the “absence of proof” of the

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defendant’s guilt. The State argues that the prosecutor’s remark was not improper and asserts
in the alternative that any error was unintentional and that it was rendered harmless by the
trial court’s immediate curative instruction, and we agree.

                During his closing argument, the prosecutor made the following remarks:
“You have not heard one piece of evidence that says she wasn’t intoxicated or under the
influence. You’ve heard not one thing that says that she was being conscientious or careful.”
Defense counsel objected, and the trial court sustained the objection, stating, “Don’t make
any implications about her not testifying. She does not have to testify. The defendant is
presumed innocent and does not have to present any proof.” Later, during its general charge
to the jury, the trial court provided the following instruction:

                             A person accused of a crime is presumed to be
              innocent. This means that you must start with the presumption
              that the defendant is innocent. This presumption continues
              throughout the trial and entitles the defendant to a verdict of not
              guilty unless you are satisfied beyond a reasonable doubt that
              she is guilty.

                             The defendant is not required to prove her
              innocence or to do anything. . . . The State must prove each
              element of the crime beyond a reasonable doubt. If you find the
              State has not proven every element beyond a reasonable doubt,
              then you must find the defendant not guilty.

                            ....

                             The defendant has not taken the stand to testify as
              a witness but you shall place no significance on this fact. The
              defendant is presumed innocent and the burden is on the State
              to prove her guilt beyond a reasonable doubt. She is not
              required to take the stand in her own behalf, and her election not
              to do so cannot be considered for any purpose against her, nor
              can any inference be drawn from such fact.

               Trial courts have substantial discretionary authority in determining the
propriety of final argument, but the trial court must restrict any improper argument. Sparks
v. State, 563 S.W.2d 564, 569-70 (Tenn. Crim. App. 1978). Most restrictions during final
argument are placed upon the State, based in great measure upon the role of the prosecutor
in the criminal justice system:

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                             [The prosecutor] is the representative not of an
              ordinary party to a controversy, but of a sovereignty whose
              obligation to govern impartially is as compelling as its
              obligation to govern at all; and whose interest, therefore, in a
              criminal prosecution is not that it shall win a case, but that
              justice shall be done. As such, he is in a peculiar and very
              definite sense the servant of the law, the twofold aim of which
              is that guilt shall not escape or innocence suffer. He may
              prosecute with earnestness and vigor – indeed, he should do so.
              But, while he may strike hard blows, he is not at liberty to strike
              foul ones. It is as much his duty to refrain from improper
              methods calculated to produce a wrongful conviction as it is to
              use every legitimate means to bring about a just one.

                            It is fair to say that the average jury, in a greater or
              less degree, has confidence that these obligations, which so
              plainly rest upon the prosecuting attorney, will be faithfully
              observed. Consequently, improper suggestions, insinuations
              and, especially, assertions of personal knowledge are apt to
              carry much weight against the accused when they should
              properly carry none. . . .

Berger v. United States, 295 U.S. 78, 88 (1935). The State must refrain from argument
designed to inflame the jury and should restrict its commentary to matters in evidence or
issues at trial. More specifically, the prosecution is not permitted to reflect unfavorably upon
defense counsel or the trial tactics employed during the course of the trial. See Dupree v.
State, 410 S.W.2d 890, 891-92 (Tenn. 1967); Moore v. State, 159 Tenn. 112, 124, 17 S.W.2d
30, 35 (1929); Watkins v. State, 203 S.W. 344, 346 (Tenn. 1918); McCracken v. State, 489
S.W.2d 48, 50 (Tenn. Crim. App. 1972). Furthermore, “[a] prosecutor is strictly prohibited
from commenting on the defendant’s decision not to testify.” State v. Thacker, 164 S.W.3d
208, 244 (Tenn. 2005) (citing State v. Reid, 91 S.W.3d 247, 297 (Tenn. 2002); Coker v. State,
911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)).

               To be sure, closing argument for both parties “must be temperate, must be
predicated on evidence introduced during the trial of the case, and must be pertinent to the
issues being tried.” State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). To merit a new trial,
however, the argument must be so inflammatory or improper as to affect the verdict.
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). When determining the propriety of
closing argument, this court considers the following factors:



                                               -9-
              (1) The conduct complained of viewed in the context and in
              light of the facts and circumstances of the case[;]
              (2) [t]he curative measures undertaken by the court and the
              prosecution[;]
              (3) [t]he intent of the prosecutor in making the improper
              statements[;]
              (4) [t]he cumulative effect of the improper conduct and any
              other errors in the record [; and]
              (5) [t]he relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

              Even if the prosecutor’s remarks can be classified as a comment on the
defendant’s failure to testify or offer other evidence of her innocence, the record establishes
that defense counsel offered a contemporaneous objection, that the trial court sustained the
objection, and that the trial court specifically and immediately instructed the jury that the
defendant was under no duty to prove her innocence. The trial court followed its curative
instruction with a general charge that repeatedly emphasized the State’s burden of proving
the defendant’s guilt beyond a reasonable doubt and that clearly directed the jury to make no
inference from the defendant’s failure to testify or offer proof. Under these circumstances,
we cannot say that the very brief remarks had any effect on the jury’s verdict. In
consequence, the defendant is not entitled to relief on this issue.

                                       III. Sentencing

               In her final claim, the defendant challenges both the length and the manner of
service of her sentence, arguing, “Because of the appellant’s physical condition, she should
have been sentenced to the minimum in her range – two years at 30% RED as a standard,
Range I, offender – and, likewise, alternative forms of sentencing, such as house arrest,
should have been implemented.” The State asserts that because the defendant failed to make
the transcript of the sentencing hearing a part of the record on appeal, this court must
presume that the sentencing decision of the trial court was correct. We agree with the State.

               The appellant bears the burden of preparing an adequate record on appeal, see
State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have
prepared a transcript of such part of the evidence or proceedings as is necessary to convey
a fair, accurate and complete account of what transpired with respect to those issues that are
the bases of appeal,” Tenn. R. App. P. 24(b). If the appellant fails to file an adequate record,
this court must presume the trial court’s ruling was correct. See State v. Richardson, 875
S.W.2d 671, 674 (Tenn. Crim. App. 1993). In the absence of the transcript of the sentencing

                                              -10-
hearing, a de novo review of the defendant’s sentence is impossible. See T.C.A. §
40-35-401(d) (2006) (requiring that appellate court conduct a de novo review of the
sentencing decision of the trial court with a presumption that the determinations made by the
trial court are correct). In consequence, we must presume that the sentencing decision of the
trial court was correct.

                                      IV. Conclusion

              Because we discern no infirmity in either the conviction or sentence imposed,
we affirm the judgment of the trial court.




                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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