         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    January 25, 2005 Session

                   STATE OF TENNESSEE v. CHARLES DRAKE

                       Appeal from the Criminal Court for Knox County
                             No. 72795    Ray L. Jenkins, Judge



                       No. E2004-00247-CCA-R3-CD - Filed June 6, 2005


The defendant, Charles Drake, stands convicted of aggravated assault with a deadly weapon and
DUI. For the aggravated assault conviction, the trial court sentenced the defendant to four years,
split confinement with supervised probation after service of six months’ confinement. For the DUI
conviction, the trial court imposed a sentence of 11 months and 29 days with a release eligibility at
75 percent. On appeal, the defendant asserts (1) that the evidence is insufficient to support his
conviction of aggravated assault; (2) that the trial court committed reversible error in prohibiting the
defense from presenting to the jury an animation of the automobile collision giving rise to the
charges against the defendant; (3) that the trial court committed reversible error in admitting the
results of a blood toxicology test; and (4) that his sentence is excessive. After thoroughly reviewing
the record and applicable authorities, we find sufficient evidence to support the conviction, no error
in the admission or exclusion of evidence at trial, and appropriate sentencing. We, therefore, affirm
the convictions and sentences.

             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 GARY R. WADE, P.J.,
and NORMA MCGEE OGLE, J., joined.

Patrick T. Phillips, Knoxville, Tennessee; and Tommy Hindman, Knoxville, Tennessee, for the
Appellant, Charles Drake.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney
General, for the Appellee, State of Tennessee.




                                              OPINION
               A tragic two-car automobile accident gives rise to this appeal. The head-on
collision occurred shortly after 1:30 a.m. on August 17, 2000, in Knox County. The accident
scene was on Pleasant Ridge Road, near the intersection of Deerfield Subdivision. Patricia
Burke, who was driving a 1989 Chevrolet Astro minivan, died as a result of the accident. The
passenger in Ms. Burke’s vehicle, Gordon Wright, sustained several cracked ribs, torn ligaments
on his right shoulder, a broken nose and finger, and multiple lacerations; this 63-year-old victim
was hospitalized for 18 days and had been unable to work since the accident. The 21-year-old
defendant was operating a Toyota pickup truck, and he sustained internal injuries, facial cuts
requiring suturing, and a broken collar bone and nose for which he was hospitalized seven to
eights days.

                The defendant, who testified at trial, admitted that he had been drinking earlier in
the evening, and he agreed that tests showed his blood alcohol level to be .19 percent. The
theory of defense was that the defendant’s intoxication did not cause the wreck; rather, at the
point of collision, both vehicles were in the middle of the road and not in their designated lanes
of traffic. The defense called two expert witnesses to corroborate the theory of defense. FBI
Special Agent David Goldkoph, who was an officer and accident investigator with the Knoxville
Police Department at the time of the accident, opined that each vehicle was in the wrong lane of
traffic and that the point of impact was approximately the center of the roadway. Motor vehicle
accident reconstructionist, Bobby Jones, who serves as a part-time Assistant Chief Deputy with
the Knox County Sheriff’s Department, independently verified Agent Goldkoph’s conclusions
and so testified.

                The defendant went to trial facing seven charges: vehicular homicide by
intoxication involving Ms. Burke’s death (Count 1); vehicular homicide by reckless conduct
involving Ms. Burke’s death (Count 2); vehicular assault involving Mr. Wright (Count 3);
aggravated assault causing bodily injury to Mr. Wright (Count 4); aggravated assault by deadly
weapon against Mr. Wright (Count 5); DUI per se (Count 6); and DUI by intoxication (Count 7).
The jury returned not-guilty verdicts on Counts 1 and 2, which charged vehicular homicide of
Ms. Burke, and it found the defendant guilty of the remaining offenses. The trial court merged
the convictions on Counts 3, 4, and 5 into a single conviction count for Class D aggravated
assault and sentenced the defendant to a term of four years as a standard, Range I offender. On
Counts 6 and 7, the court ordered service of 11 months and 29 days at 75 percent. As to the
merged aggravated assault sentence, the court imposed split confinement, with six months
service in custody and the remainder of the term on probation.

                At the outset, we note that our appellate review has been facilitated greatly by the
parties’ skillful and professional advocacy at trial and by the thoughtful presentations and
arguments on appeal.



                                 I. Sufficiency of the Evidence



                                                -2-
               Inasmuch as the defendant assails the sufficiency of the convicting evidence, we
begin with an overview of the testimony and evidence at trial, taken in the light most favorable
to the state. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).                .

               The injured passenger, Gordon Wright, was the state’s lead witness. Mr. Wright
explained that he and the deceased driver, Ms. Burke, had been living together for six years.
They resided at 4713 Miller Road, approximately one mile from Pleasant Ridge Road. Mr.
Wright had never been licensed to drive because of eye problems related to corneal implants that
he received when he was much younger. As a result, Mr. Wright depended on Ms. Burke to
provide transportation to and from his place of employment at Kerns Bakery.

               Mr. Wright testified that he worked the early morning shift, and on the day of the
accident, he and Ms. Burke left their residence around 1:00 a.m. Along the way, the pair stopped
at a convenience store, the Bread Box, on Pleasant Ridge Road, where Mr. Wright bought a pack
of cigarettes. Mr. Wright estimated that the Bread Box was a quarter of a mile from the accident
scene. After the stop, they re-entered Pleasant Ridge Road and encountered no other traffic at
the time. Mr. Wright said that he saw a light as they approached the intersection at Deerfield
Subdivision, where the road narrowed to two lanes. Mr. Wright gave varying descriptions of the
light. On direct examination, he maintained that he could not distinctly identify the type of light.
He could tell that the light was heading toward him, and he stated, “It was flashing back – like it
was flashing back and forth, and I didn’t know whether it was a caution light or what.” He
added that he thought the light was related to the Deerfield Park Subdivision. Later, in his direct
examination testimony, Mr. Wright said that “it looked to [him] like [an oncoming vehicle] was
– he was in the ditch line [on the van’s side of the road] coming to [them].”

               Mr. Wright recalled the impact occurring at the subdivision intersection, after
which he remembered little else other than attempting to remove Ms. Burke from the van and
being transported to the hospital by ambulance. He insisted that he and Ms. Burke were in their
proper lane of traffic when the two vehicles collided, and he estimated their speed to be between
30 to 35 miles per hour.

                On cross-examination, Mr. Wright agreed that Pleasant Ridge Road is slightly
inclined where it approaches the Deerfield Park Subdivision and that drivers traveling in both
directions would encounter a “blind hill” at that location. Mr. Wright denied, however, telling
the defense investigator that what he saw was “regular flashing lights,” and he disclaimed
saying” that the lights indicated to him that road work was ongoing. He also denied telling an
insurance agent, who was investigating the collision, that the van in which he was riding was “all
the way up against the curb when the cars hit head-on.” Regarding his vision problems, Mr.
Wright testified that it takes his eyes longer to adjust and recover when lights shine in his eyes.
He conceded that the lights from an oncoming vehicle about to collide head-on with the van
would have blinded him, but he thought that the lights could have been hitting the van without
hitting him directly in his eyes.
                The first Knoxville police officer dispatched to the accident scene was Jeff
Damewood. An emergency medical team was at the scene when he arrived, and the roadway
was blocked by two vehicles. He testified that the location of the van was near the fog line on

                                                -3-
the northbound side near the grass, and the truck sat perpendicular to the roadway in the
intersection where Deercreek Park Road intersected Pleasant Ridge Road. Officer Damewood
related that he first checked on the medical condition of all involved motorists. He then obtained
driver’s licenses and found out to which hospital the motorists would be transported.

               Officer Damewood testified that he stayed near the defendant and his truck
because he could smell “a strong odor of alcohol.” After the defendant left the scene by
ambulance, Officer Damewood then remained briefly to ensure that other officers who had
arrived would have the damaged vehicles towed and would clean up the roadway. Officer
Damewood then drove to the hospital and inquired of hospital staff about the medical condition
of the motorists. He learned that Ms. Burke died during surgery and that Mr. Wright had been
taken to surgery. He located the defendant lying on a gurney in the emergency room hallway.

               Officer Damewood explained that upon learning of Ms. Burke’s death, he called
his supervisor to report the fatality so that the supervisor could designate a fatal accident
investigator reconstructionist to head up the investigation. The supervisor designated Officer
David Goldkoph, who was on duty and had stopped by the scene earlier to observe what had
happened, although he did not “work the accident.”

               After contacting his supervisor, Officer Damewood remained at the hospital and
began filling out an accident report. He notified hospital personnel that he would need blood
drawn from the defendant. The blood was drawn at approximately 4:00 a.m., and the blood vial
was turned over to Officer Damewood who inserted it into a blood kit developed specifically by
the TBI for law enforcement requests to test blood samples. Officer Damewood stayed with the
defendant until the defendant was removed from the hallway and taken for treatment. Officer
Damewood described the defendant as being either asleep or passed out while in the hallway,
and at one point, the defendant vomited on the hallway floor. Officer Damewood testified that
the vomitus had a strong smell of alcohol.

                On cross-examination, defense counsel reviewed the accident report with the
officer. The report inaccurately stated that the officer took statements from the driver and
passenger of the van. The officer did agree, as reflected in his report, that the defendant told him
that he was in his own lane of travel going northbound. In reviewing photographs of the
accident scene, Officer Damewood, who was not an accident reconstructionist, admitted that the
final resting place of the vehicles did not reveal the position of the vehicles on the roadway at the
time of collision.

               The defense called eight witnesses, including the defendant and two character
witnesses. The testimony of character witnesses, Mike Friend and Craig Rigel, was brief. Both
men said that the defendant had a good reputation and was entitled to be believed under oath.

               The defendant took the stand and testified that he was 21-years old at the time of
the accident, and he was beginning his fall semester at the University of Tennessee, where he
later graduated with a degree in horticulture and landscape design. Leading up to the accident,
the defendant related that he left his house, near Pleasant Ridge Road, late in the evening of

                                                -4-
August 17, to meet friends at O’Charley’s restaurant on the “strip.” He drank while at the
restaurant and stayed approximately one and one-half to two hours. When he left, he took back
roads to get home because of construction on the interstate.

               The defendant admitted to the jury that he had been drinking before the accident,
and he expressed remorse and feeling “horrible” about what had happened. In terms of what he
remembered about the drive, the defendant recalled driving down Pleasant Ridge Road because
he wanted to buy gas at the Bread Box before he went to work in the morning. He saw an
approaching vehicle, and as it crested the hill, the defendant realized that it was in his lane of
travel. Everything happened quickly, and the defendant said that he did “anything [he] could to
slam on the brakes to avoid the accident.”

                On cross-examination, the defendant estimated that he drank five or six beers at
O’Charley’s. He denied choosing a back-road way home to decrease his chances of being
stopped. The defendant explained that “the last thing [he] remember[ed] before the crash was
seeing the oncoming headlights in [his] lane and then [trying] to make an evasive maneuver to
get out of the way, slammed on the brakes, and was unsuccessful.” Regarding his speed, the
defendant believed that he was somewhat over the speed limit, but he also considered himself to
be in control of his vehicle.

               Mike Burchett, an insurance adjuster with Appalachian Claims Service, testified
that his company – the defendant’s insurer – instructed him to investigate the accident. Mr.
Burchett interviewed Mr. Wright at the hospital. Mr. Wright related that when he first saw the
defendant’s vehicle, it appeared to be “sideways.” Mr. Wright was uncertain at the time about
which lane the defendant’s vehicle was in, but Mr. Wright thought his vehicle was “up against
the curb” in the proper traffic lane at the time of impact. Mr. Burchett said that Mr. Wright
estimated that Ms. Burke was driving at a high rate of speed.

                Kim Knight, a private investigator hired by the defense, testified that he also
spoke with Mr. Wright and recorded the interview. Mr. Wright told Mr. Knight that he believed
the flashing lights indicated the presence of road construction. Mr. Wright first identified the
lights as being yellow but then changed his mind and expressed uncertainty. On cross-
examination, the state referred Mr. Knight to other portions of the transcribed interview wherein
Mr. Wright said that what he saw was regular flashing headlights coming at him. Mr. Knight
responded that over the course of the interview, Mr. Wright provided multiple scenarios of what
he saw and what happened.

               Through Lieutenant Vincent Ayub, the Knoxville Police Department Records
Supervisor, the defense introduced for identification the accident reconstruction report and
investigation materials relating to the collision. The defense then called former Knoxville Police
Officer David Goldkoph, who at the time of trial was a Special Agent with the Federal Bureau of
Investigation.

              Agent Goldkoph testified that he was not dispatched to the accident scene. He
heard about the accident on the police radio and responded on his own initiative. Later that

                                               -5-
morning, after Ms. Burke died, he was assigned to head up the investigation as the accident
reconstructionist. He closed off the road and took measurements of the roadway and other
physical evidence, such as surface scrapes and skid marks. He also reviewed photographs taken
at the scene showing the final resting place of the vehicles. Ms. Burke’s van came to rest facing
southbound in the northbound lane of traffic; the defendant’s truck was facing east across the
northbound lane of traffic. From the evidence, Agent Goldkoph concluded that “both vehicles
were coming from the wrong side of the road, that being the van heading south in the northbound
lane of traffic, and the pickup truck heading north in the southbound lane of traffic, at which
time they struck nearly head-on approximately in the center of the roadway.”

                The most lengthy and detailed testimony came from Bobby Jones, Jr., an accident
reconstruction expert hired by the defense. The state made no objections to the witness’s
qualifications, which included: (a) training and certification as an accident investigator by the
National Highway Traffic Safety Administration, (b) employment by the United States
Department of Transportation in the National Accident Sampling System program, (c)
accreditation by the Accident Reconstruction Commission, (d) teaching accident reconstruction
throughout the United States, (e) a teaching position at Auburn University College of
Engineering, (f) certification as a computer integrated drafting technician and in the area of
computer animation, and (g) training forensic scientists and crime scene technicians about laser
mapping. At the time of his testimony, Mr. Jones also served as a part-time Assistant Chief
Deputy with the Knox County Sheriff’s Department.

               As part of his investigation, Mr. Jones reviewed all of the police photographs and
physical measurements at the scene. He testified that he relied upon the physical measurements
taken by Agent Goldkoph and, additionally, verified for himself the information. Mr. Jones
explained that he was able to do so because the gouge marks shown in the police photographs
were still evident at the accident scene. Mr. Jones testified that he was not initially privy to
Agent Goldkoph’s conclusions; only after Mr. Jones reached his own, independent conclusions
did the defense provide him with a copy of Agent Goldkoph’s reconstruction summary.

               Mr. Jones explained that he visited the accident site both during daylight and
night time hours. He took measurements and photographs and located the gouge marks. At
night, he collected three-dimensional data, such as the lay of the land and the hill crest near the
accident site. Night time photographs showed a slight upgrade in the road and a hill crest in the
defendant’s path of travel; the roadway also curved to the right. In Ms. Burke’s path of travel,
the roadway curved to the left as it rose to the hill crest.

               Mr. Jones next imported photographs of the vehicles into a computer program to
scale the vehicles, measure the direct contact damage, and determine the damage patterns on
both vehicles to determine how the vehicles collided. He concluded that the vehicles hit
passenger side to passenger side in a head-on type collision. The 16-foot skid mark at the
accident scene came from the right front tire on the defendant’s truck, and given the center of
mass of the truck and its final resting place, Mr. Jones believed that there was some “steering
input” maneuver before the truck brakes were engaged. He found no evidence that the van made
any last-minute maneuvers or that the driver applied the brakes before impact.

                                               -6-
                From available information and applying accepted formulas relating to the co-
efficient of friction and conservation of momentum, Mr. Jones was also able to calculate the
speed of the vehicles just before impact. He testified that the pre-impact speed of Ms. Burke’s
van was 27 miles per hour, and the pre-impact speed of the defendant’s truck, after laying down
a 16-foot skid mark, was 46 miles per hour. The posted speed limit on Pleasant Ridge Road was
40 miles per hour. Finally, Mr. Jones testified that his analysis revealed that at the time of
collision, both vehicles were in the center of the road.

                After hearing this evidence, the jury convicted the defendant of five counts, which
the trial court merged to reflect one aggravated assault conviction and one DUI conviction. The
defendant challenges the sufficiency of the evidence introduced at trial to support these two
merged convictions.

               Our evidence-sufficiency review is conducted pursuant to well-settled principles.
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 and
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.

               The defendant challenges his aggravated assault conviction on the basis that the
evidence does not show beyond a reasonable doubt that his actions were the proximate cause of
Mr. Wright’s injuries. In support of this contention, the defendant points to the jury’s not-guilty
verdicts on the vehicular homicide charges involving Ms. Burke’s death. He also insists that the
physical evidence is inconsistent with Mr. Wright’s account and that Mr. Wright’s testimony,
therefore, should be disregarded. From that premise, the defendant argues that he was faced
with a sudden emergency and took reasonable and evasive action under the circumstances.

              Regarding the not-guilty verdicts, “[t]he rendering of inconsistent verdicts has
always been an exclusive privilege and prerogative of the jury, and it is not [a reviewing court’=s]
duty to unravel the ratiocinations of the jury’s collective logic.” Jackson v. State, 477 S.W.2d

                                                -7-
213, 216 (Tenn. Crim. App. 1971). As the supreme court explained in Wiggins v. State, 498
S.W.2d 92 (Tenn. 1973),

               Consistency in verdicts for multiple count indictments is
               unnecessary as each count is a separate indictment. Therein lies
               the essential reasoning. An acquittal on one count cannot be
               considered res judicata to another count even though both counts
               stem from the same criminal transaction. This Court will not upset
               a seemingly inconsistent verdict by speculating as to the jury’s
               reasoning if we are satisfied that the evidence establishes guilt of
               the offense upon which the conviction was returned.

Id. at 93-94. The defendant’s argument, consequently, gains no momentum on that basis.

               As for disregarding Mr. Wright’s testimony, we are not persuaded that this case
merits application of the “physical facts rule.” The “physical facts rule” has been variously
explained as: “the accepted proposition that in cases where the testimony of a witness is entirely
irreconcilable with the physical evidence, the testimony can be disregarded,” State v. Hornsby,
858 S.W.2d 892, 894 (Tenn. 1993); when “the testimony of a witness >cannot possibly be true, is
inherently unbelievable, or is opposed to natural laws,’ courts can declare the testimony
incredible as a matter of law and decline to consider it,” id. (quoting United States v. Narciso,
446 F. Supp. 252, 282 (E.D. Mich. 1977)); and when “‘undisputed physical facts are entirely
inconsistent with and opposed to testimony . . . the physical facts must control,’” id. (quoting
Wood v. United States, 342 F.2d 708, 713 (8th Cir. 1965)). A high threshold, however, must
first be surmounted to apply the rule. “We caution,” wrote the supreme court in Hornsby, “that
the power to disregard oral testimony because of its inherent lack of believability is one that
should be used sparingly.” The court continued,

               Only when the testimony is inherently improbable and impossible
               of belief should courts intervene to declare it incredible as a matter
               of law. When the testimony is capable of different interpretations,
               the matter should be left for the jury to decide as the sole arbiter of
               credibility. Deciding whether there are inconsistencies in
               testimony, reconciling conflicts in testimony, and how this might
               affect a witness’s credibility, are all within the province of the
               jury. As the court observed in Smith v. Steele, 44 Tenn. App. 238,
               313 S.W.2d 495 (1956), “[t]he improbability of the truth of the
               testimony, which justifies rejection under the physical facts rule,
               cannot rest upon any theory involving the consideration of the
               comparative credibility of the witnesses.” Smith at 508.

Hornsby, 858 S.W.2d at 895-96 (citations omitted).

               The facts in Hornsby serve as an apt example why we should be loath to invoke
the rule in this case. In that case, there were two eyewitness motorists to an accident that

                                                -8-
occurred in an intersection. Both witnesses said that the defendant was driving north on Airways
Boulevard and that the victim was driving east on Winchester Road. Id. at 896. The defendant
ran a red light at the intersection and struck the victim’s car. Id. Contrary to the witnesses’
testimony, a police officer who responded to the accident scene concluded, based on gouge
marks in the pavement and the damage to the vehicles, that the defendant, not the victim, was
traveling east on Winchester and that the victim, not the defendant, approached the intersection
on Airways while traveling north. Id.

                The supreme court declined, under those circumstances, to apply the physical
facts rule. The court emphasized that it could “hardly be said that the testimony of the two
eyewitnesses [was] so improbable as to amount to facts or events that the witnesses physically
could not have observed or events that could not have occurred under the laws of nature.” Id. at
897; see also State v. Radley, 29 S.W.3d 532, 535 n.4 (Tenn. Crim. App. 1999) (declining to
apply physical facts “because its application would be dependent upon assumptions or
calculations in the determination of distance”).

                In this case, the defendant testified that as the van came over the hill, he saw that
it was in his lane. He maintained that “the last thing [he] remember[ed] before the crash was
seeing the oncoming headlights in [his] lane.” Mr. Wright testified that as he and Ms. Burke
approached the Deerfield Subdivision, he could see a light flashing or waving back and forth,
coming toward them in an erratic fashion. He insisted that the vehicle was swerving and
approaching them head-on in their lane. Agent Goldkoph testified that the accident versions he
obtained from the defendant and Mr. Wright were consistent with that testimony. Agent
Goldkoph saw nothing at the accident scene that directly contradicted or supported Mr. Wright’s
statements.

                 The defendant points out that both Agent Goldkoph and Mr. Jones determined
that the place of impact was in the center of the roadway and that both vehicles were outside of
the assigned lanes of travel. As a result, the defendant argues that Mr. Wright’s testimony
conflicts with the physical facts. We disagree. Mr. Wright’s belief – mistaken as it may have
been – that the van was “up against the curb” in the proper traffic lane at the time of impact is
not dispositive of how the vehicles were being driven before the impact. The defendant asserts
that the record is devoid of evidence that the defendant’s actions preceding the collision were “in
any manner unreasonable or negligent much less criminal.” This assertion overlooks the
evidence in the record that the defendant was operating his truck in excess of the posted speed
limit, in violation of Code section 55-8-153(e), that he was operating a motor vehicle while the
alcohol concentration in his blood was greater than .10 percent, in violation of Code section 55-
10-401(a)(2), that he was operating a motor vehicle while under the influence of an intoxicant, in
violation of Code section 55-10-401(a)(1), see Tenn. Code Ann. §§ 55-8-153(e), -10-401(a)(1), -
10-401(a)(2) (1997), and that Mr. Wright testified to seeing a light flashing or waving back and
forth, coming toward them in an erratic fashion before the impact.

                It was the jury’s province to determine which parts of the testimony and evidence
to credit, inasmuch as there is no requirement that a jury must wholly accept or reject a witness’s
account of events. See State v. Bolin, 922 S.W.2d 870, 876 (Tenn. 1996). It was up to the jury

                                                -9-
to determine the believability of the defendant’s testimony that as the van came over the hill, it
was in his lane of travel as opposed to Mr. Wright’s testimony that the defendant’s vehicle was
swerving and traveling in the van’s lane. It was also up to the jury to evaluate the effect of the
defendant’s admitted intoxication, .19 percent, and his excessive rate of speed on his ability to
operate his vehicle. In our view, a rational jury could logically conclude that instead of being a
victim faced with a sudden emergency, the defendant’s intoxication and excessive speed
precipitated the emergency leading to the vehicles colliding in the center of the road. Thus, we
decline to apply the physical facts rule to Mr. Wright’s testimony.

                Last, we address the defendant’s argument that the evidence is insufficient to
prove beyond a reasonable doubt that the defendant’s actions were the proximate cause of Mr.
Wright’s injuries. It is settled that “a wrongdoer cannot escape liability for a criminal act just
because the criminal act of another contributed to produce the prohibited consequence.” State v.
Baggett, 836 S.W.2d 593, 595 (Tenn. Crim. App. 1992). “Thus, one whose wrongdoing is a
concurrent proximate cause of an injury may be criminally liable the same as if his wrongdoing
[was] the sole proximate cause of the injury.” Id; see State v. Farner, 66 S.W.3d 188, 204
(Tenn. 2001) (concluding that causation in criminal cases is generally a question of fact for the
jury, that a victim’s contributory negligence is not a complete defense but may be considered as
it relates to whether a defendant’s conduct was a proximate cause, and that a jury’s
determination of causation will be reviewed under traditional sufficiency of the evidence
standard).

               In our opinion, a rational jury could conclude from the evidence that the victim
was driving southbound on Pleasant Ridge Road, well under the posted speed limit, and the
defendant was driving northbound on Pleasant Ridge Road, traveling 46 miles per hour in a 40-
miles-per-hour zone while under the influence of alcohol. Even if the jury believed that both
vehicles were outside their designated lanes of travel as they crested the hill and navigated the
curve in the road, Ms. Burke’s conduct does not exonerate the defendant but instead constitutes a
concurrent proximate cause.

               Accordingly, for the foregoing reasons, we reject the defendant’s evidence
insufficiency claim.



                   II. Computer Visualization of the Automobile Collision

                In his next issue, the defendant complains that the trial court erroneously
excluded computer generated evidence that Mr. Jones had created regarding the collision. At the
outset we note that the parties seem to dispute the basis for the trial court’s ruling. The
defendant seeks to limit the evidentiary ruling to the issue whether the evidence was redundant
or cumulative. The state quotes the trial court’s statement that the evidence had “great potential
to mislead the jury.”



                                              -10-
                Our review of the record reveals that after Mr. Jones’s detailed testimony, the
defense moved to allow the witness to play a video animation relative to how the collision
occurred and offered to lay a foundation before introducing the video. The state interjected, “I
just think it’s redundant. I think that he’s explained his conclusions.” The defense responded
that the material was not redundant and solicited the trial court to “indulge” the defense even if
the material was somewhat redundant.

                The trial court excused the jury, and the defense argued that the video would only
take about five minutes to play and that it would assist the jury. Pointing out that the law
conditions admissibility on the evidence being a fair and accurate depiction of the event that it
portrays, the state argued that “all this expert has been able to tell us is . . . the point of impact,”
that “this animation goes far beyond that,” and that “there is nothing to lay the foundation for
what happened before that point of impact.” The defense responded in general terms that once
the video was played, Mr. Jones would provide additional testimony to explain the animation.1
The state raised the additional concern of the effect of the video in terms of danger that the jurors
might accept it as an actual event.

               Pursuant to the defense request for an opportunity to establish the admissibility of
the video, the court allowed the defense to question Mr. Jones outside the presence of the jury.
Mr. Jones testified that he had been trained and instructed others in the use of “video animation
software,” which allows the user to input information, such as speed, road surface, and distances
traveled to generate images. Regarding accuracy, he said that he used the information that he
derived from his calculations and the measurements taken at the accident scene.

                The state’s examination of Mr. Jones was more revealing. When asked if
anything appeared on the animation about which he had not already testified, Mr. Jones
responded affirmatively that the animation included the “pre-impact paths of travel” going back
approximately 250 feet for each vehicle. When asked the source of the information used, Mr.
Jones responded in general terms that “the information is calculated, based upon the pre-impact
movement through physics.” The state pressed, “So you created this – all you really know is the
point of impact and the speed at impact; is that right?” Mr. Jones replied, “We know the point of
impact, the speed of impact that is calculated. Yes. sir.” Thereafter the trial court sustained the
state’s objection to admitting the evidence, ruling that “it ha[d] a great potential to mislead the
jury.”

              We note that when Mr. Jones resumed testifying before the jury, the state’s cross-
examination further clarified his opinions. Mr. Jones agreed with the state that at the time of
impact the defendant’s truck was further over in the wrong lane of travel than was the van. He
          1
           According to the discussion between the parties, as appears in the transcript, the animation consists of three accident
scenarios. The first scenario illustrated the path of travel of the vehicles from impact to final resting place. The second scenario
projected how the collision would have happened if Ms. Burke had been driving the van in the defendant’s lane of travel prior to
impact. The last scenario then projected how the accident would have occurred if the van had been in its proper lane of travel. The
appellate record contains a DVD-R disc, marked Exhibit 19 for Identification, which corresponds to the computer-generated
animation offered by the defense. Unfortunately, we have been unable to review the exhibit because the disc was cracked when this
panel received the record. Even so, we believe that the appellate record is otherwise adequate to consider and rule upon the
defendant’s assertion of evidentiary error.

                                                               -11-
also agreed that from the evidence at the scene, the defendant was not obeying all posted traffic
laws. Finally, Mr. Jones conceded that he did not know what precipitated the vehicles colliding
in the center of the road.

               The leading case on computer generated evidence is Farner. In that case, the
court distinguished a computer “animation” from a computer “simulation.”

              If the purpose of the computer evidence is to illustrate and explain
              a witness’s testimony, courts usually refer to the evidence as an
              animation. . . . In contrast, a simulation is based on scientific or
              physical principles and data entered into a computer, which is
              programmed to analyze the data and draw a conclusion from it,
              and courts generally require proof to show the validity of the
              science before the simulation evidence is admitted.

Id. at 208.

               In the computer animation context, the proponent must “establish that the
computer animation is a fair and accurate depiction of the event it purports to portray.” Id. at
209. “Because the jury may be so persuaded by [the animation’s] life-like nature that it becomes
unable to visualize an opposing or differing version of the event, the requirement that the
animation fairly and accurately portray the event is particularly important when the evidence at
issue is a computer animated recreation of an event.” Id.

               Furthermore, as with all evidence, the material is subject to exclusion if “its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” See Tenn. R. Evid. 403. As the Farner court explained,

              If a computer animated portrayal is inaccurate, its probative value
              decreases and the likelihood that it will be subject to exclusion
              under Rule 403 increases. Like other evidence, the admissibility
              of computer animations generally rests within the sound discretion
              of the trial court, with the rules of evidence governing the exercise
              of the trial court’s discretion.

66 S.W.3d at 209.

              In this case, we are not prepared to condemn the trial court’s exclusion of the
computer visualization evidence as an abuse of discretion. We are troubled by Mr. Jones’s jury-
out explanation that the animation included the “pre-impact paths of travel” going back
approximately 250 feet for each vehicle, when he later conceded that he did not know what
caused the collision and could accurately determine only the point of impact and the speed at
impact. By the testimony of the defendant’s own expert, the computer visualization, if an
animation, does not qualify as a fair and accurate depiction of the event it purports to portray.

                                              -12-
See id. at 209-10 (pointing out critical deficiencies in the accuracy of the animation; although
officer was unable to make a speed determination for defendant’s vehicle, the animation
depicted the vehicle at various speeds throughout the animation).

               Another troubling aspect about the computer visualization involves the different
accident scenarios projecting how the collision would have happened if Ms. Burke had been
driving the van in the defendant’s lane of travel prior to impact and how the collision would have
occurred if the van had been in its proper lane of travel. These prediction-based scenarios strike
us as more akin to a computer “simulation,” and the defense in its appellate brief even refers to
parts of the computer visualization as capable of being characterized as a simulation. A
simulation, however, requires much more specific foundational proof “to show the validity of the
science before the simulation evidence is admitted.” Id. at 208. No such foundation was laid in
this case. Although the defense claims that it was not afforded the opportunity to establish such
a foundation, we note that the trial court conducted a jury-out hearing for the defense to offer
whatever it deemed appropriate to support admissibility of Mr. Jones’s computer visualization.

               In summary, we find no abuse of discretion in the exclusion of the computer
visualization in this case, and we regard the trial court’s concerns that the evidence had great
potential to mislead the jury as well founded.

                      III. Admissibility of Blood Toxicology Test Results

                In his next issue, the defendant contends that the trial court erred in admitting test
results derived from a blood sample taken after he was transported to the hospital. To support
this claim, the defendant challenges the adequacy of the chain of custody, the hearsay nature of
the evidence, and the Confrontation Clause implications of admitting the evidence. This issue
was litigated pretrial and raised in the defendant’s motion for new trial. In his brief, the
defendant also encourages this court to “use it[s] interpretive power to read in a rational and
implicit exclusionary rule” into Code section 55-10-406(a)(1) when the state fails to prove the
professional credentials of the individual who drew the blood.

              The evidence at the pretrial suppression hearing showed that Officer Damewood
asked the hospital staff to draw blood from the defendant. Officer Damewood was present and
watched the sample as it was drawn by Rick Stewart, a hospital employee. Officer Damewood
did not personally know Mr. Stewart, and the officer could not recall the specific details of how
the blood was drawn. Mr. Stewart gave the blood vial to Officer Damewood who secured Mr.
Stewart’s signature on the toxicology report that accompanied the standard TBI toxicology kit.
Mr. Stewart did not testify at the suppression hearing or at trial.

                Officer Damewood, the proof showed, placed his paperwork and the blood vial in
the toxicology kit, sealed the box, and delivered the box to the Knoxville Police Department
Evidence Lab. Because the kit was being deposited outside normal business hours, Officer
Damewood explained that the procedure was to insert the kit through a small opening on the
front of a locked and sealed refrigerated cooler and to note on a log sheet when the specimen was
placed in the cooler.

                                                -13-
               The specimen was later removed from the cooler and logged in by a property unit
employee who also checked the specimen, assigned it a bar code, and transported it to the
laboratory. As of August 17, 2000, the property unit employee would have been Officer
Whitson. Officer Whitson did not testify at the hearing or at trial, but the state offered the
testimony of Officer Kelvin Reed, the present property unit officer. Officer Reed identified and
offered as a business record the master log of refrigeration showing that Officer Whitson
checked the blood specimen out of evidence on August 18 when he delivered it to the TBI
laboratory in Knoxville.

                Dora Stalains, a forensic technician with the TBI, received the blood specimen
from Officer Whitson on August 18. She testified that she knew Officer Whitson personally and
that the kit she received from him was in a sealed condition. Ms. Stalains recorded the date and
time of receipt and placed the kit in a refrigerator in a sealed vault in the laboratory. Melena
Jenkins, another TBI forensic technician, retrieved the sealed kit from the vault, assigned a
laboratory number to the blood tube, filled out the required paperwork, placed the tube in the
“blood rack”, and returned the specimen to the vault for later analysis. The next person in the
chain of custody was the chemist who analyzed the specimen, and the state explained at the
hearing that the chemist was testifying in another case and was unavailable at that time. At trial,
TBI Special Agent Dave Ferguson, who analyzed the specimen, did testify and reported the .19
percent test results.

                                      A. Chain of Custody

               Preliminarily, we point out that the defendant does not attack the chain of custody
of the blood sample as a means of excluding the blood sample from evidence; rather, he seeks to
suppress the toxicology report that was based upon the blood sample. With that in mind, we
examine the chain of custody issue.

              The defendant targets the absence of Mr. Stewart, who drew the blood, and of
Officer Whitson, who delivered the blood to the TBI laboratory, as fatal to the state’s chain of
custody. As we shall explain, we disagree.

                Evidence Rule 901(a) requires that evidence be authenticated or identified as a
condition precedent to its admissibility. Tenn. R. Evid. 901(a). For tangible evidence, “a
witness must be able to identify the evidence or establish an unbroken chain of custody.” State
v. Kilpatrick, 52 S.W.3d 81, 87 (Tenn. Crim. App. 2000). The purpose of this requirement is to
“demonstrate that there has been no tampering, loss, substitution, or mistake with respect to the
evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). Absolute certainty
of identification is not required, however. See Kilpatrick, 52 S.W.3d at 87. “Reasonable
assurance, rather than absolute assurance, is the prerequisite for admission.” Id. The issue
addresses itself to the sound discretion of the trial judge, whose ruling will not be disturbed
absent a clear abuse of that discretion. See id.; State v. Beech, 744 S.W.2d 585, 587 (Tenn.
Crim. App. 1987); State v. Johnson, 705 S.W.2d 681, 684 (Tenn. Crim. App. 1985); Wade v.
State, 529 S.W.2d 739, 742 (Tenn. Crim. App. 1975).


                                               -14-
                In terms of chain of custody, the facts of this case are similar to those in State v.
Dean, 76 S.W.3d 352 (Tenn. Crim. App. 2001). That case involved blood samples subjected to
DNA analysis. The blood samples were obtained, pursuant to a search warrant, and the
defendant’s blood was drawn by an employee with the Memphis Sexual Assault Resource
Center. Id. at 366. As in this case, the person who drew the blood did not testify. A police
sergeant who was present when the blood was drawn did, however, testify, as did a forensic
nurse examiner at the resource center. Id. at 366-69. Testifying from resource center records,
the nurse examiner identified the employee, since retired, who drew the blood and who delivered
it to another resource center employee. The nurse examiner also explained the procedures for
labeling, handling, and storage of the sample. Id. at 366-67. From the resource center, the
sample traveled to the TBI laboratory in Jackson and then to the Nashville TBI laboratory. The
TBI individuals in Jackson and Nashville who handled the sample testified in support of the
chain of custody. Id. at 367.

               The court rejected Dean’s chain of custody objection.

               [B]ased upon the proof presented, we conclude that the
               “circumstances surrounding the evidence reasonably establish the
               identity of the evidence and its integrity.” Although the defendant
               stressed at trial and on appeal possibilities of tampering and
               contamination, there was no showing that this occurred. Rather,
               the State presented minimal but adequate “proof that the evidence
               was handled according to normal procedures and that there [was]
               no indicia of tampering.”

Id. at 370 (citations omitted).

               In the case before us, we are likewise convinced that the state submitted adequate
chain of custody proof and that the trial court did not abuse its discretion in admitting the
evidence. We consider it significant that Officer Damewood, who witnessed the sample being
taken and who directly received it from Mr. Stewart, did testify. Admittedly, Officer Whitson,
who transported the sample from the Knoxville Police Department Evidence Lab to the TBI
laboratory, did not testify; Officer Reed explained during his testimony that Officer Whitson was
retired and had some serious medical problem. Nonetheless, the TBI forensic technician who
received the sample did testify. Ms. Stalains knew Officer Whitson and identified him as the
individual from whom she received the sample. Her testimony was unequivocal that the kit she
received was sealed. See State v. Charles Raymond Sanders, No. M2000-03083-CCA-R3-CD,
slip op. at 15-16 (Tenn. Crim. App., Nashville, Aug. 30, 2002) (chain of custody established
when samples from victim were stored in cooler in the autopsy suite, access to building was
controlled, and seal on tubes showed no signs of tampering; chain of custody also shown for
defendant’s blood sample that was stored overnight in detective’s refrigerator at home because
even though detective did not guard refrigerator, he was present the entire time, refrigerator was
located inside private residence, and sample appeared intact with no signs of tampering).



                                                -15-
               We have considered the defendant’s argument that Officer Reed could not state
with absolute certainty that the evidence handling procedures used in August 2000 were identical
to those he used, but that uncertainty in our opinion, without more, does not undermine the
sufficiency of the chain of custody. See State v. Goad, 692 S.W.2d 32, 36 (Tenn. Crim. App.
1985) (failure of police property room custodian to testify did not interrupt chain of custody or
render evidence inadmissible); State v. Coury, 697 S.W.2d 373, 378 (Tenn. Crim. App. 1985)
(defendant’s clothing admissible even though testimony unclear regarding which officer placed
the evidence in the suitcase). Under these circumstances, we find that the integrity of the
evidence was adequately shown.

                                            B. Hearsay

               Next, the defendant assails the admissibility of the refrigerator log sheet bearing
Officer Whitson’s name and the date, August 18, when he removed the evidence to transport it to
the TBI laboratory. He argues that no proper foundation was established to admit the log sheet
as a business record because Officer Reed lacked personal knowledge of the property unit
procedures in August 2000 and because the state failed to show that the log sheet was made at or
near the time of the event recorded.

               How this issue arose pretrial and how it was handled by the defense during trial
are significant matters in our opinion. The defense did not prevail on its pretrial attempt to
suppress the results of the blood toxicology testing. During the pretrial hearing, the state
presented its chain-of-custody witnesses, with the exception of Agent Ferguson, who analyzed
the blood sample. Agent Ferguson did not appear at the pretrial hearing because he was engaged
in testifying in another case, and we discern that the defense did not object to his absence
inasmuch as he was the undisputed last link in the chain of custody.

               For reasons not evident from the record, when the case went to trial, the state did
not develop its chain of custody as it had during the pretrial hearing. Rather, the state elicited (a)
Officer Damewood’s testimony that he requested that the hospital draw the defendant’s blood
and that he received the blood sample and (b) Agent Ferguson’s testimony regarding the results
of the blood alcohol analysis that he performed. Owing to the lack of defense objection at trial,
we can only surmise that subsequent to the pretrial hearing, the defense and the state struck an
agreement for the state to abbreviate its chain of custody proof at trial.

                Having received a clear and definitive ruling pretrial that the blood toxicology
results would be admitted, we do not believe that the defendant’s failure to object at trial
necessarily waived the issue for appellate review. See Tenn. R. Evid. 103(a)(2) (“Once the court
makes a definitive ruling on the record admitting to or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof to preserve a claim of error for
appeal.”). Nevertheless, waiver becomes a consideration, in our opinion, because of the
affirmative actions taken by the defense at trial. Specifically, during the state’s direct
examination of Agent Ferguson, the following exchange occurred:



                                                -16-
             Q      Okay. Did you perform a test on a vial of blood that was
             submitted to you from the Knoxville Police Department on this
             case?

             A       I performed the analysis on one tube of blood.        The
             subject’s name was Charles Drake.

             Q      Okay. What is that you were testing that blood for?

             A      I was – I performed a blood alcohol analysis.

             [By Defense Counsel]: General, I have no objection to the
             introduction of the summary of his report showing that he
             registered a .19.

             Q      Would you tell us the result of that test?

             A      It was ethyl alcohol content of 0.19.

             Q      And you prepared a report to that effect?

             A      Yes.

                 Thereafter, when the defendant took the stand, the following testimony was
elicited at the beginning of direct examination:

             Q      First of all, let’s get one thing out of the way. You were
             driving your vehicle on Pleasant Ridge Road; is that correct?

             A      Yes, sir.

             Q      And earlier that evening you had been drinking?

             A      Yes, sir.

             Q       And it has been stipulated that your blood alcohol content
             was a .19; is that correct?

             A      Yes, sir.

             Q      And you don’t deny that in any way, do you?

             A      No, sir.



                                             -17-
                 Q       How do you feel about that, as you sit here today and look
                 at these jurors?

                 A       I feel horrible about it. It’s the worst decision I ever made
                 in my life. And I wish I could take it back, but I can’t.

               It is obvious from the record that having lost the suppression issue, the defense
pursued a trial strategy that the defendant’s intoxication did not contribute to or cause the
collision. We discern that the defense was attempting to “gain credibility” with the jury by not
denying the defendant’s intoxication and focusing, instead, on causation. Such a strategy is
certainly sound, but it can be fraught with danger in terms of preserving issues for appeal. As
explained in State v. Milburn Greene, No. 317 (Tenn. Crim. App., Knoxville, Nov. 7, 1990),

                 When the trial court ruled that the prior conviction could be used
                 to impeach the appellant, counsel found himself on the proverbial
                 horns of a dilemma. He had to make the choice of (a) eliciting the
                 prior conviction from the appellant during direct-examination or
                 (b) requir[ing] the State to elicit the conviction during
                 cross-examination.       Eliciting a prior conviction during
                 direct-examination is a well-known and used defense tactic. It
                 serves two basic purposes: (a) it diffuses the impact of the
                 conviction upon the jury and (b) bolsters the credibility of the
                 defendant since he is admitting an unfavorable part of his life.
                 However, when, as here, defense counsel elects to elicit the
                 conviction during direct-examination, he waives all issues relating
                 to the admissibility of the conviction. This is the price that an
                 accused must pay when defense counsel invokes this strategy.

Id., slip op. at 6.

                In the instant case, the defense sponsored at trial the results of the test that it
earlier sought to suppress. First, the defense unnecessarily interrupted the state in the midst of
its examination of Agent Ferguson to announce that it did not object to the report showing .19
percent test result. Second, in his sworn testimony, the defendant affirmed that his blood alcohol
content was .19 percent and that he did not “deny that in any way.” Accordingly, we believe that
the defendant has waived consideration of this issue. See Jordan v. State, 467 S.W.2d 840, 841
(Tenn. Crim. App. 1971) (“[W]hen a defendant goes upon the stand and admits the truth of
evidence the admissibility of which he has challenged, he waives his objection.”).

               Even if waiver does not defeat the defendant’s claim, no inadmissible hearsay
was admitted or considered. Inasmuch as the defendant opted to litigate the admissibility of the
TBI test results pretrial, the trial court was authorized to consider hearsay in making its ruling.
Evidence Rule 104(a) specifically provides that “[p]reliminary questions concerning . . . the
admissibility of evidence shall be determined by the court . . . . In making its determination the


                                                 -18-
court is not bound by the rules of evidence except those with respect to privileges.” Tenn. R.
Evid. 104(a).2

               Last, assuming for the sake of analysis that the admissibility of the TBI blood test
report rests upon proof of a chain of custody that is established, in part, by hearsay evidence, we
have no difficulty in discerning that the refrigeration log met the requirements of the exception
to the hearsay rule for records of regularly conducted activity. See Tenn. R. Evid. 803(6). This
exception provides,

                  A memorandum, report, record, or data compilation, in any form,
                  of acts, events, conditions, opinions, or diagnoses made at or near
                  the time by or from information transmitted by a person with
                  knowledge and a business duty to record or transmit if kept in the
                  course of a regularly conducted business activity and if it was the
                  regular practice of that business activity to make the memorandum,
                  report, record or data compilation, all as shown by the testimony of
                  the custodian or other qualified witness or by certification that
                  complies with Rule 902(11) or a statute permitting certification,
                  unless the source of information or the method or circumstances of
                  preparation indicate lack of trustworthiness. The term “business”
                  as used in this paragraph includes business, institution, profession,
                  occupation, and calling of every kind, whether or not conducted
                  for profit.

Id. The propinquity of time of the refrigeration event and the log entry is assured by the fatal
accident occurring on August 17 and Ms. Stalains’ receipt of the evidence from Officer Whitson
the next day, August 18. Ms. Stalains’ testimony that she received the specimen from Officer
Whitson, combined with other evidence that Officer Whitson served as the evidence officer
during the relevant time frame, suggests the accuracy of the log’s entries for the specimen in
question on August 17 and 18. Thus, in our view, the chain of custody was not established in
violation of the hearsay rule.

                                                  C. Confrontation

               As we understand the defendant’s constitutional argument, he maintains that the
admission of the blood toxicology report violated his confrontation rights because he was unable
to examine Mr. Stewart, who drew the blood, and Officer Whitson, who delivered the blood to
the TBI laboratory. The defendant relies primarily on the supreme court’s opinion in State v.
Henderson, 554 S.W.2d 117 (Tenn. 1997), involving the criteria that must be demonstrated to


         2
           The Advisory Commission Comments to Rule 104 are even clearer: “Part (a) governs the fact questions to
be resolved by trial courts in deciding whether a sufficient foundation has been laid. . . . This preliminary determination
can be based on hearsay, because the judge should be able to separate reliable from unreliable proof.” Tenn. R. Evid.
104, Advisory Comm’n Cmts.

                                                          -19-
satisfy the confrontation clause when the results of laboratory testing is admitted through hearsay
testimony.

                 In our opinion, the defendant miscasts his argument. At trial, the blood
toxicology report was admitted in connection with the testimony of TBI Special Agent Dave
Ferguson. Agent Ferguson was the individual who analyzed the defendant’s blood, and he
testified that the test result was an ethyl alcohol content of .19 percent. Thereafter, he identified
the report he prepared, and it was introduced as an exhibit to his testimony.

                In contrast to how the blood toxicology report was introduced in this case, in
Henderson drug toxicology reports were introduced through a witness other than the laboratory
assistants who actually conducted the tests. In addressing the matter, the supreme court ruled
that the state “cannot prove an essential element of a criminal offense by test results introduced
through a witness other than the one who conducted the tests,” and that “otherwise, the person
charged with the offense would be denied his constitutional right to confront witnesses against
him.” Id. at 122.

                Accordingly, we fail to discern how the confrontation concerns expressed in
Henderson apply in this case to the introduction of the blood toxicology report by the very
person who performed the test and prepared the report. See State v. Hughes, 713 S.W.2d 58, 62
(Tenn. 1986) (by enacting Code section 55-10-410, the legislature intended to avoid any
confrontation violation by providing that admissibility of test results are dependent on presence
of laboratory technician who performed tests). Agent Ferguson was present at trial and testified;
he was available for the full spectrum of confrontation by the defendant. Moreover, to the extent
that the defendant is attempting to claim confrontation problems regarding Stewart and Whitson,
that argument also fails. Stewart and Whitson played no role in analyzing the blood or preparing
the report to which the defendant objects. Indeed, on the facts in the record, we find no hearsay
statements attributable to Stewart or Whitson that raise any confrontation concerns.




                             D. Violation of Code Section 55-10-406

               The defendant’s final complaint is in the nature of a request for this court to adopt
a rule that absent satisfaction of all the statutory prerequisites of Code section 55-10-406(a)(1),
blood evidence should be excluded. That section provides,

               Any person who drives any motor vehicle in the state is deemed to
               have given consent to a test for the purpose of determining the
               alcoholic or drug content of that person’s blood; provided, that
               such test is administered at the direction of a law enforcement
               officer having reasonable grounds to believe such person was
               driving while under the influence of an intoxicant or drug, as
               defined in § 55-10-405. Any physician, registered nurse, licensed

                                                -20-
               practical nurse, clinical laboratory technician, licensed paramedic
               or, notwithstanding any other provision of law to the contrary,
               licensed emergency medical technician approved to establish
               intravenous catheters, or technologist, or certified and/or nationally
               registered phlebotomist who, acting at the written request of a law
               enforcement officer, withdraws blood from a person for the
               purpose of making such test, shall not incur any civil or criminal
               liability as a result of the withdrawing of such blood, except for
               any damages that may result from the negligence of the person so
               withdrawing. Neither shall the hospital nor other employer of the
               previously listed health care professionals incur, except for
               negligence, any civil or criminal liability as a result of the act of
               withdrawing blood from any person.

Tenn. Code Ann. § 55-10-406(a)(1) (2004).

               In terms of the facts of his case, the defendant claims that the state failed to prove
compliance with the provisions that specify who is authorized to withdraw blood at the request
of a law enforcement officer. The defendant points to Officer Damewood’s inability to specify
the professional credentials of Mr. Stewart who drew the defendant’s blood.

               We decline the defendant’s invitation to superimpose an exclusionary rule feature
on section 55-10-406(a)(1). The state is not required to prove compliance with the statute as a
prerequisite to admissibility. See State v. Huskins, 989 S.W.2d 735, 738 (Tenn. Crim. App.
1998) (statute’s purpose not to carve out a rule of exclusion when the provisions of subsection
(a)(2) have not been followed; officer’s non-compliance with license suspension warning
requirement does not warrant suppression of the defendant’s blood alcohol test results); State v.
Gilbert, 751 S.W.2d 454, 460 (Tenn. Crim. App. 1988) (state not required to prove blood sample
drawn in compliance with § 55-10-406(a)(1)).



                                          IV. Sentencing

                For his last issue, the defendant complains that he was improperly sentenced to
four years as a Range I standard offender to be served in split confinement with six months in
custody and the balance of the term on supervised probation. He challenges the application of
enhancement and mitigating factors, the trial court=s failure to grant full probation, and the
rejection of his application for diversion. We will address each contention in turn.

                When there is a challenge to the length, range, or manner of service of a sentence,
it is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003).
This presumption is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances. State v. Ashby,

                                                -21-
823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper is upon
the defendant. Id. In the event the record fails to demonstrate the required consideration by the
trial court, review of the sentence is purely de novo. Id. If appellate review reflects that the trial
court properly considered all relevant factors and its findings of fact are adequately supported by
the record, this court must affirm the sentence, “even if we would have preferred a different
result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The defendant’=s Range I, four-year sentence for his merged aggravated assault
conviction is a maximum sentence, exceeding the two-year presumptive sentence by two years.
See Tenn. Code Ann. §§ 39-13-102(a)(2), (d)(1) (aggravated assault under subdivision (a)(2) is
Class D felony), 40-35-112(a)(4) (2003) (establishing Range I, Class D felony sentences at two
to four years). We have reviewed the transcript of the sentencing hearing in this case. The trial
court’s sentencing remarks were brief, quite truncated, and fail to reflect the required sentencing
considerations. Accordingly, we shall proceed with a de novo review without a presumption of
correctness.

               At the sentencing hearing, the state had advocated application of two
enhancement factors: (11) “[t]he defendant had no hesitation about committing a crime when
the risk to human life was high,” and (17) “[t]he crime was committed under circumstances
under which the potential for bodily injury to a victim was great.” Tenn. Code Ann. § 40-35-
114(11), (17) (2003). On appeal, the state concedes that enhancement factor (17) is inapplicable
pursuant to State v. Imfeld, 70 S.W.3d 698 (Tenn. 2002). Nevertheless, the state insists that
enhancement factor (11) is “squarely applicable and supports the four-year sentence.”

               A case-by-case approach should be undertaken to determine whether an
enhancement factor is applicable. Id. at 704; State v. Winfield, 23 S.W.3d 279, 283 (Tenn.
2000). By statute, an enhancement factor must be appropriate for the offense and not an
essential element of the offense. Tenn. Code Ann. § 40-35-114 (2003).

                Enhancement factor (11) may be applied when the defendant creates a high risk to
the life of a person other than the victim. State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim.
App. 1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). The
victim, for sentencing purposes in this case, was Mr. Wright, but the defendant’s conduct clearly
placed Ms. Burke at risk. Even though the jury acquitted the defendant on the vehicular
homicide charges naming Ms. Burke as a victim, a sentencing court may properly apply an
enhancement factor based on facts underlying an offense for which a defendant has been
acquitted, so long as the facts have been established in the record by a preponderance of the
evidence. See Winfield, 23 S.W.3d at 283.

                The defendant argues that enhancement factor (11) cannot be applied when, as in
this case, the conviction offense is aggravated assault with a deadly weapon. The defendant cites
to State v. Hill, 885 S.W.2d 357 (Tenn. Crim. App. 1994), for that proposition. Hill, however,
does not create such a hard-and-fast rule. Hill provides in relevant part:



                                                -22-
               The trial court should not have considered factor [11], i.e., the
               [defendant] had no hesitation about committing a crime when the
               risk to human life was high. This factor is inherent in the offense
               of aggravated assault. As this Court said in State v. Kevin L.
               Gaskill, 1991 Tenn. Crim. App. LEXIS 529, Bradley County No.
               285 (Tenn. Crim. App., Knoxville, June 26, 1991): “It is difficult
               to discern a situation in which an offense committed with a deadly
               weapon would not necessarily entail a risk to human life.” Slip op.
               at 11. In addition, [the defendant’s] wrath and vindictiveness was
               directed solely at Johnson. The record is void of any evidence that
               individuals in close proximity were in danger of being injured.

885 S.W.2d at 363 (citation omitted) (emphasis added); see State v. Matthew DeLoss Larsen,
No. M2000-01675-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Nashville, Oct. 12, 2001)
(“[E]ven when the facts proving factor [11] likewise establishes an element of the offense, it
may still be applied where the defendant creates a high risk to the life of a person other than the
victim.”); State v. William Lewis Houston, No. M1999-01430-CCA-R3-CD, slip op. at 12 (Tenn.
Crim. App., Nashville, Dec. 7, 2000).

               Accordingly, we reject the defendant’s argument that enhancement factor (11) is
not applicable to his merged aggravated assault conviction.

                Regarding mitigating sentencing factors, the defendant insists that “[s]ubstantial
grounds exist tending to excuse or justify the defendant’s criminal conduct, though failing to
establish a defense,” Tenn. Code Ann. § 40-35-113(3) (2003); that “[t]he defendant, although
guilty of the crime, committed the offense under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the criminal conduct,” id. § 40-35-113(11);
and that his lack of criminal record, remorse, and youthful age are mitigating factors, id. ' 40-
35-113(13). In our opinion, nothing in the record supports the application of the first two
mitigating factors. No grounds have been shown to excuse or justify the defendant’s operation
of his motor vehicle at an unlawful rate of speed on a two-lane section of road while in a highly
inebriated condition. Nor are the circumstances of this case particularly unusual; the defendant
chose to leave his residence, meet with friends, consume alcoholic beverages, and drive home.
Furthermore, to the extent these factors may have some mitigation value, we believe that the
leniency that the jury extended the defendant in connection with the charges involving Ms.
Burke’s death exhausts the efficacy of the factors. See State v. Sanford L. Wilson, No. 01C01-
9708-CR-00319, slip op. at 4 (Tenn. Crim. App., Nashville, Sept. 29, 1998) (no per se
prohibition against “double mitigation” of a sentence by applying a mitigating factor even
though jury has extended leniency on the same basis; however, Adouble mitigation@ inappropriate
if additional consideration of the relevant facts is not merited); State v. Michael D. Frazier, No.
03C01-9602-CR-00084, slip op. at 6-8 (Tenn. Crim. App., Knoxville, June 4, 1997).

               On balance, we believe that sentencing enhancement factor (11) is entitled to
significant weight in this case and that the defendant’s remorse, age, and lack of criminal record,
although shown, supply marginal mitigating weight. A four-year sentence in this case is

                                               -23-
appropriate and justly deserved. See State v. Michael T. Gilliam, No. E1999-01112-CCA-R3-
CD, slip op. at 5 (Tenn. Crim. App., Knoxville, Apr. 12, 2000) (application of a mitigating factor
does not guarantee the imposition of a less-than-maximum sentence, especially when the
sentencing range is only one year); State v. Samuel D. Braden, No. 01C01-9610-CC-00457, slip
op. at 14 (Tenn. Crim. App., Nashville, Feb. 18, 1998) (enhancement factors may be sufficient
“to firmly embed the sentence in the ceiling,” so as to resist the pull of a mitigating factor to
reduce the sentence to a level less than the maximum).

                 The defendant further complains that he should have received full probation
instead of split confinement. We disagree. To be sure, he was eligible for full probation. See
Tenn. Code Ann. § 40-35-303(a) (2003). The determination of entitlement to full probation,
however, necessarily requires a separate inquiry from that of determining whether a defendant is
entitled to a less beneficent alternative sentence. See Bingham, 910 S.W.2d at 455. A defendant
is required to establish his “suitability for full probation as distinguished from his favorable
candidacy for alternative sentencing in general.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn.
Crim. App. 1999); see State v. Jimmy Ray Dockery, No. E2004-00696-CCA-R3-CD, slip op. at 2
(Tenn. Crim. App., Nov. 30, 2004). A defendant seeking full probation bears the burden of
showing that probation will “subserve the ends of justice and the best interest of both the public
and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

               The defendant in this case has not shouldered his burden of demonstrating how
probation will subserve the ends of justice and the best interests of both the public and the
defendant. Rather, he assigns as error the trial court’s statement that confinement was necessary
to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B)
(2003). With regard to suitability for full probation, it is appropriate, however, to consider the
circumstances of the offense, the defendant’s potential or lack of potential for rehabilitation,
whether full probation will unduly depreciate the seriousness of the offense, and whether a
sentence other than full probation would provide an effective deterrent to others likely to commit
similar crimes. See State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

                In summary, the split-confinement sentence imposed showed proper respect for
the presumption that the defendant was a favorable candidate for alternative sentencing options
in the absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6) (2003). We,
thus, decline to disturb the sentence imposed.

              The defendant’s last sentencing complaint is that the trial court improperly and
summarily dismissed his application for judicial diversion, see Tenn. Code Ann. § 40-35-313
(Supp. 2004), in connection with his aggravated assault conviction.3 The defendant’s motion
seeking such relief was filed subsequent to sentencing and the entry of his judgments of
conviction.

         3
                   As the defendant has correctly acknowledged, his DUI conviction is not eligible, as a matter of law,
for diversionary treatment. See Tenn. Code Ann. § 55-10-403(b)(1) (2004).



                                                        -24-
                We need not address the substantive merits of this claim because procedurally the
trial court was not authorized to consider the application. That is, in State v. Turco, 108 S.W.3d
244 (Tenn. 2003), the supreme court, interpreting the terms of the judicial diversion statute,
ruled that a trial court does “not have statutory authority for ordering judicial diversion after an
adjudication of guilt or imposition of sentence.” Id. at 248. Consequently, we reject this claim.4

               Before concluding our discussion and rulings concerning the defendant’s
sentence, we feel obligated to note that on April 15, 2005, the Tennessee Supreme Court released
its opinion in State v. Edwin Gomez & Jonathan S. Londono, ___ S.W.3d ___, No. M2002-
01209-SC-R11-CD (Tenn., Nashville, Apr. 15, 2005), petitions for reh’g denied, (May 18,
2005). In that decision, our supreme court held that Tennessee’s sentencing scheme does not
violate the Sixth Amendment right to trial by jury, as expounded by the United States Supreme
Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Blakely v. Washington,
542 U.S. ___, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005). Pursuant to Edwin Gomez, the defendant’s sentencing is not infirm on Sixth Amendment
grounds.

                                                   CONCLUSION

                 Summarizing, we hold that the convicting evidence is sufficient to support the
jury’s verdict of guilt on the charge of aggravated assault, that no evidentiary error resulted from
the trial court’s exclusion of the defendant’s computer visualization, that the results of the blood
toxicology test were properly admitted, and that the defendant’s sentence is not excessive.
Accordingly, the judgment of the trial court is hereby affirmed.




         4
                   In Turco, the trial court had granted the defendant’s Rule 35(b) motion to change his one-year
suspended sentence to judicial diversion. See Tenn. R. Crim. P. 35(b) (“The trial court may reduce a sentence upon
application filed within 120 days after the date the sentence is imposed or probation is revoked. . . . A modification can
only be as to any sentence the court could have originally imposed.”). The supreme court first ruled that the trial court
lacked authority to act because judicial diversion is not a sentence and, therefore, not a “sentence the court could have
originally imposed,” as required by Rule 35. Id. (emphasis added). Second, the supreme court ruled that judicial
diversion was not available because there had been a prior adjudication of guilt, entry of judgment of conviction, and
sentence of incarceration, whereas, by statute, judicial diversion is granted “without entering a judgment of guilty.”
Tenn. Code Ann. § 40-35-313(a)(1)(A) (Supp. 2004).

           Pursuant to Turco, the previously existing judgment of conviction in the present case precluded consideration
of the defendant’s later-filed motion for judicial diversion. Furthermore, even though the judgment of conviction was
not final at the time the defendant filed his motion, he neither cited nor pleaded any procedural avenue or statute
authorizing the trial court to vacate the existing judgment to permit consideration of his bid for diversion. Unlike a trial
court’s authority to amend a judgment during the time that it retains jurisdiction, see generally State v. Pendergrass, 937
S.W .2d 834, 837 (Tenn. 1996), the authority to vacate a judgment is narrowly prescribed, see Turco, 108 S.W .3d at 248
& n.8 (noting that Rule 36(b) does not authorize vacating a judgment of conviction; further noting that a judgment may
be vacated under Rule 33 in connection with granting a new trial, under Rule 32(f) in connection with withdrawal of
guilty plea, under the post-conviction statutes in connection with granting relief, and under habeas corpus and/or error
coram nobis rules in connection with granting relief).

                                                           -25-
       ___________________________________
       JAMES CURWOOD WITT, JR., JUDGE




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