         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 12, 2002 Session

                   STATE OF TENNESSEE v. ROBERT S. NEAL

                     Appeal from the Criminal Court for Putnam County
                           No. 99-0307   Leon Burns, Jr., Judge



                  No. M2001-00441-CCA-R3-CD - Filed December 19, 2002


The defendant, Robert S. Neal, appeals as of right his convictions by a Putnam County jury of
vehicular homicide, reckless endangerment, and child endangerment. He contends (1) that the
evidence is insufficient to sustain his convictions, (2) that the trial court erroneously admitted
laboratory test results regarding the presence of cocaine in his body, (3) that a Tennessee Bureau of
Investigation (TBI) forensic scientist was not qualified to testify about the metabolism of cocaine,
and (4) that his sentence is excessive. We merge the two child endangerment convictions pursuant
to the Double Jeopardy Clause and affirm the judgments of conviction in all other respects.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ. joined.

Michael R. Giaimo and J. Steve Daniels (at trial), Livingston, Tennessee, for the appellant, Robert
S. Neal.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William Edward Gibson, District Attorney General; and Benjamin W. Fann and John A. Moore,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

        This case arises from a wreck on May 15, 1999, in which the defendant’s van crossed the
center line of Highway 62 and struck a pickup truck, killing the victim, Jimmy Allen Morgan. The
nine- and five-year-old sons of the defendant’s girlfriend were riding with the defendant and
sustained minor injuries. The jury convicted the defendant of vehicular homicide by intoxication,
a Class B felony, for the death of the victim. It convicted him of reckless endangerment, a Class E
felony, with regard to the nine-year-old boy and two counts of child endangerment, a Class A
misdemeanor, for both children in the van. The trial court sentenced him as a Range I standard
offender to concurrent sentences of nine years for the vehicular homicide conviction, one year for
the felony reckless endangerment conviction, and eleven months twenty-nine days for each count
of child endangerment to be served in incarceration. The defendant also received $1,000 fines for
the child endangerment convictions.

        Tonya Lynn Morgan, the victim’s wife, testified that on May 15, 1999, the victim was
twenty-nine years old and had no physical problems that would have impaired his driving. She said
that the victim went to work that morning.

         Janet Leigh Guillory, a nurse, testified that on May 15, 1999, she was driving east on
Highway 62 behind a pickup truck. She was going around fifty-five miles per hour when suddenly
the truck exploded. A van twirled around twice then came in front of her in the ditch beside the
road. She almost hit the van but was able to stop. She said that the wreck occurred in the eastbound
lane and that the truck never left its lane. She ran over to the van but could not open the front
passenger-side door. She opened the rear door and saw an eight- or nine-year-old boy and an
unconscious man. She said the boy was crying and saying “My brother.” She saw another little boy
lying in the floorboard. She said that she did not pay attention to whether the van’s occupants were
wearing seatbelts but that she believed the second boy was not wearing one because of his location
in the floorboard. She ran to the pickup truck but its occupant was not moving and did not respond
to her calls so she returned to the van. A couple in a blue truck arrived on the scene, and she asked
the man to call an ambulance. She thought that the Emergency Medical Technicians (EMTs) arrived
before the police. She agreed that it became chaotic due to the number of people at the scene.

        Tommy Joe Swafford testified that between 1:00 and 1:30 p.m. on May 15, 1999, he was
traveling west on Highway 62. Three or four miles past the intersection of Highway 127 and
Highway 62, a bluish-gray van going fairly fast passed him on a double yellow line. He said that he
was going fifty to fifty-five miles per hour and that the van was going sixty-five to seventy miles per
hour. He acknowledged that when the van passed him, it did not make him swerve. He said that he
noticed nothing erratic about the van’s movements other than its passing him in the no-passing zone
and its excessive speed. As the van passed him, he saw a little boy in the front seat. The van’s
window was down, the wind was catching the boy’s hair, and the boy had his arms up on the door.
He said that the little boy was not reaching outside the window and that the little boy did not have
a significant portion of his torso outside of the window. He said that he could not tell if the van’s
occupants were wearing seatbelts. He saw the van pass two other vehicles ahead of him, but he
could not tell if the van was in a no-passing zone at that time. He said that this part of the road was
straight but contained hills and dips. He agreed that the van did not nearly hit these other vehicles
or make them swerve.

        Mr. Swafford testified that about ten minutes after the van passed him, he came upon the van
at the scene of a collision. He ran to the van and then to a pickup truck. He said that the person in
the pickup was trapped and that there was nothing he could do for him. He said that he returned to
the van and tried to remove the little boy from the front seat but that the door was jammed. He
opened the back door and a second little boy, who was not hurt, got out. He said that if the second


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boy had been wearing a seatbelt, he had already removed it when Mr. Swafford opened the door.
He said that he leaned the front seat back and pulled the first little boy over the seat and out of the
van. He said that he did not remember whether the first boy was wearing a seatbelt.

         Betsy Pauline Spurlock, a paramedic with Putnam County Emergency Medical Services,
testified that at 2:35 p.m. on May 15, 1999, she and her partner Millard Deberry were dispatched to
a wreck with injuries on Highway 62. When she arrived, she saw a truck and a van both with
damage. The defendant’s lower extremities were pinned under the van’s pedals. Two boys, ages
five and nine, were conscious and on the side of the road when she approached the van. She gave
emergency treatment to the defendant, who was complaining of pain in his left leg, his upper right
chest, and his right arm. She asked if he took illegal drugs or alcohol, and she said that the defendant
told her that he had smoked crack cocaine about three hours before the accident. She said that the
defendant denied using alcohol, that she saw no alcohol containers in the van, and that she did not
smell any intoxicating substance when she spoke with the defendant. She characterized the
defendant as awake, fairly alert, and in a lot of pain from a fractured femur. She said that he did not
remember what had happened in the wreck and that he was irritable and cursing because they were
hurting him as they tried to help him. She said that it was not unusual for people with serious
injuries to be irritable. She said that his pupils were very noticeably constricted. She agreed that
constricted pupils can result from numerous causes, including blunt trauma.

        Trooper Michael Lee Hamilton of the Tennessee Highway Patrol testified that on May 15,
1999, he was at a convenience mart when a man drove up and told him of a serious wreck on
Highway 62. While en route to the wreck, the dispatcher also advised him of it. He arrived on the
scene at 2:43 p.m. and saw paramedic Betsy Spurlock and other paramedics working on the people
in a van. Ms. Spurlock told him that the victim in the pickup truck was dead. He saw a partially
consumed soft drink between the victim’s legs. He watched Dr. Sullivan Smith draw a blood sample
from the victim’s heart, and he took custody of the victim’s blood sample. He said that when he
arrived, the children were out of the van and that the younger child was lying on the ground and his
face was bloody. He said that the older child was fairly calm and no one was attending to him. He
spoke briefly with the defendant, who had been driving the van, but he was not able to determine the
defendant’s mental condition because he did not want to interfere with the paramedics’ extracting
the defendant from the van. He said that he was about four feet away from the defendant but that
he was not close enough to determine whether the defendant had alcohol on his breath. He
acknowledged that he saw no alcohol containers in the van.

        Trooper Hamilton, who had been trained in accident scene investigation, testified that he
assisted Trooper Barnwell with some of the measurements at the scene. He said that the pickup
truck had been coming down a hill in the eastbound lane, which is on the south side of the highway.
He said that the van came to rest at the top of the hill on the same side of the highway as the truck.
He saw a gouge mark in the eastbound lane two feet from the white fogline and close to the truck.
Based upon his training, he said that the gouge mark showed that the collision occurred on the
eastbound side of the highway next to the fogline and that the impact caused significant downward
force on the truck, creating the gouge mark. The road bore skid marks in a swirling pattern from the


                                                  -3-
point of impact to the van, which came to rest in the ditch on the south side of the highway. The
major point of impact on the van was just behind the front wheel and most of the damage was on the
front and the driver’s side. He said that the van’s seatbelts had not been torn.

        Trooper Blaine Edward Barnwell of the Tennessee Highway Patrol testified as a certified
accident reconstructionist. He said that around 2:45 p.m. on May 15, 1999, he arrived at the scene
of a wreck on Highway 62. Two vehicles, a 1994 Chevrolet pickup truck and a 1994 Mazda van,
were involved in the collision. He said that the pickup had been traveling east and the van west on
Highway 62. He said that from the angle of the impact, he determined that the van had crossed into
the eastbound lane and struck the left front portion of the pickup. He saw no gouge or skid marks
in the westbound lane. He said that the pickup truck had left the road in an attempt to avoid the van.
He stated that upon impact, the left front tire of the pickup made a gouge mark in the eastbound lane
and that the pickup traveled backward one and one-half feet and swivelled to the side. He said that
the van created no skid marks while traveling to the point of impact and that upon impact, it careened
off the pickup and traveled 121 feet and 4 inches. He said that the van’s left front wheel had extreme
damage.

       Trooper Barnwell testified that he could not determine the reason that the van crossed over
the double yellow line into the eastbound lane. He said that in investigating accidents, he had
learned of drivers crossing into oncoming traffic and striking another vehicle because the drivers
were intoxicated, had spilled coffee or food, dropped a cigarette, had a flat tire, had a wheel run off
the road, or fallen asleep. He stated that no lawful reason existed for the defendant to be in the
eastbound lane at the time of the collision and that vehicles could not pass at that point on the road.
He stated that the absence of skid marks from the van before the impact could mean that the
defendant was so drunk that he could not respond, that he did not realize that he was about to hit
another vehicle, or that he was asleep and did not have control over the van.

        Dr. Sullivan Smith, Putnam County Medical Examiner, testified that on May 15, 1999, the
Tennessee Highway Patrol requested he respond to a traffic fatality. As he arrived, emergency
personnel were removing the defendant from a van onto a backboard. He knew the defendant from
working with him at the hospital and spoke with the defendant. The defendant was cursing but
settled down after Dr. Smith told him that the emergency personnel were trying to help him. Dr.
Smith said that he was concerned that the defendant was under the influence of something based
upon the way that the defendant was reacting to his environment. He said that he noticed the odor
of alcohol at one point but that he did not know if it came from the defendant. He said that he did
not examine the defendant in detail because he did not want to delay the defendant’s trip to a trauma
center. Dr. Smith testified that the victim was dead when he arrived on the scene and that the victim
died from multiple injuries from the wreck.

       Dr. Smith testified that cocaine has varied effects on the central nervous system including
euphoria, delirium, paranoia, agitation, seizures, hallucinations, coma, rapid heart rate, high blood
pressure, and sweating. He said that the amount of time that cocaine remains in the body depends
upon the amount ingested and the history of the person ingesting it. He stated that one standard text


                                                 -4-
in emergency medicine stated that the effects of cocaine upon the average person begin within thirty
minutes of ingestion and last for one to three hours.

        Criminal Investigator Troy Human of the Tennessee Highway Patrol testified that on May
15, 1999, he was an off-duty state trooper and was traveling on Highway 62. He came upon the
scene of a wreck and offered to assist. He said that a metal tube containing a small metal screen
filter and residue was found on the ground about two feet from the driver’s side door of the
defendant’s van. He said that he believed the tube was an improvised crack pipe because it was
blackened. He took the tube to the TBI crime laboratory in Nashville. He said that he saw no
distinguishable fingerprints on the tube to lift and use for comparison purposes. He acknowledged
that he had no way of knowing to whom the tube belonged or when it was last used. He admitted
that several people were assisting the defendant in the area where he found the tube.

       Jonathan Dooley Jackson, a patient care technician at Erlanger Medical Center, identified his
signature on the defendant’s blood alcohol kit. Although he did not remember assisting with the
defendant, he said that his signature on the kit meant that he either drew the defendant’s blood or
watched a doctor draw it. He said the kit states the requesting officer was David McVey. Trooper
Charles David McVey of the Tennessee Highway Patrol testified that on May 15, 1999, he went to
Erlanger Medical Center to receive a blood sample from a subject being flown there by Life Force.
He received the blood sample, secured it in a box, and mailed it to the TBI crime laboratory in
Chattanooga.

        Edward Lewis Kuykendall, a forensic scientist for the TBI crime laboratory, testified that he
analyzes blood, body fluids, or tissue for the presence of alcohol, drugs, or poisons. He explained
that he tests samples using gas chromatography, which divides a mixture into its components and
allows him to identify the type and quantity of each of the components. With this type of testing,
he chemically extracts any drugs from a blood sample and then performs a screen to determine which
classes of drugs are present. He said that the victim’s blood sample was negative for all classes of
drugs.

        Mr. Kuykendall testified that he tested the defendant’s blood sample and found cocaine and
ecgonine methyl ester, a metabolite of cocaine. He testified that when the human body breaks down
cocaine, one of the components is ecgonine methyl ester. He said that he did not quantify the
amount of the ester, which is not an active metabolite, in the defendant’s blood sample. He said that
the defendant’s blood sample contained less than .05 micrograms per milliliter of cocaine. He said
that a microgram is one millionth of a gram. He stated that when cocaine is present at levels less
than .05 micrograms per milliliter, it is the policy of his laboratory not to attempt to determine the
exact amount of cocaine because of the immense amount of work involved. He explained that when
he arrives at a test result, he must be able to reproduce that number every time he tests that sample.
He said that once the level drops below .05 micrograms per milliliter, it becomes increasingly harder
to attain reproducible numbers in the test results. He said that the difference in the effects of .01 to
.04 micrograms per milliliter of cocaine on the body is negligible. He said that there was no



                                                  -5-
substantial reason to try to achieve an exact quantity below .05 micrograms per milliliter. He said
that the defendant’s blood sample was negative for other classes of drugs.

       On cross-examination, Mr. Kuykendall testified that according to his notes, the actual
quantity of cocaine in the defendant’s sample was .01 micrograms per milliliter. He agreed that the
potential for error was greater when dealing with numbers that small. He said that although humans
metabolize cocaine in the same way, the rate at which an individual metabolizes cocaine varies based
upon the amount of cocaine consumed and other factors.

        Mr. Kuykendall testified that he had received training on the rates at which cocaine dissipates
from the human body. He said that once consumed, cocaine begins to break down very quickly and
the person quickly reaches a high or euphoria depending upon the method in which the cocaine is
consumed. He stated that smoking cocaine is probably the fastest way to achieve a high. He said
that for the average person taking one dose of cocaine, the amount of cocaine in the body will be
reduced by half one hour after the cocaine reaches its peak effect. He said that one hour later, the
cocaine will have again reduced by half and that it will continue to reduce by half each hour until it
is gone. He agreed that the dissipation rate varies with the individual’s metabolism of the cocaine.
He acknowledged that traces of cocaine and cocaine metabolites could be found in the body, but not
necessarily the blood, of the average person using cocaine for three to five days after it was
consumed. He said that urine is the last location that cocaine can be detected before it dissipates
from the body. He said that he had personally observed traces of cocaine in urine samples one or
two days after consumption but that he had read about traces of cocaine in urine for up to five days
after consumption.

        Mr. Kuykendall testified that he did not consider an amount of cocaine quantified at less than
.05 micrograms per milliliter to be a trace amount. He said that he characterized a trace of cocaine
as an amount too small to have an effect on the person. He said that levels of cocaine from .05 to
.01 micrograms per milliliter can still have an effect on the human body and could impair driving.
He agreed that the effect that cocaine has on a person varies with the individual and that a level
higher than .05 micrograms per milliliter might not impair driving. He said that although the
defendant’s blood sample was drawn on May 15, 1999, it was not tested until August 10, 1999. He
said that the cocaine in the defendant’s blood sample continued to break down until it was tested and
that the level of cocaine would have been much higher at the time the sample was drawn. He stated
that he had no doubt that the defendant’s blood sample contained cocaine.

         Glenn Everett, a forensic scientist for the TBI crime laboratory, testified that a pipe found
at the scene of the wreck involving the defendant contained cocaine. He said that although the pipe
had been used to smoke cocaine, he could not tell the last time it had been used or to whom it
belonged.

       Anna Davis, a health information manager at Erlanger Medical Center, testified that a
laboratory report contained in the defendant’s file revealed that a drug screen was conducted on the
defendant at 5:40 p.m. on May 15, 1999. She stated that the report shows that the test was positive


                                                 -6-
for cocaine but negative for other drugs. She acknowledged that she could not interpret the
laboratory report, tell how much cocaine was in the defendant’s system at the time of the wreck, or
describe the effects that cocaine would have on the defendant.

        Agent Frankie Floyd of the Criminal Investigations Division of the Tennessee Department
of Safety, testified that on May 19, 1999, he met with the defendant in his hospital room at Erlanger
Medical Center in Chattanooga, Tennessee. He said that he identified himself to the defendant and
his grandmother and told the defendant that he did not have to talk with him and that he was not
under arrest. He said the defendant agreed to talk with him, saying that he had nothing to hide. He
said that the defendant told him the following about the events surrounding the wreck: The
defendant and his girlfriend had a drug problem, it cost them as much as $900 per day, and it had
ruined the defendant’s life. The defendant said that he had not used any drugs or alcohol on the day
of the wreck but that he had smoked a lot of cocaine late Tuesday night or early Wednesday morning
during the week of the wreck. On Wednesday morning, the defendant was required to take a surprise
drug test at work and he tested positive for cocaine. The defendant and his girlfriend had lost their
house in Cookeville and were moving to Jamestown. The defendant said that before the wreck, he
and his girlfriend’s sons had gone to Jamestown looking for a U-Haul truck in which they could
move their possessions. No U-Haul trucks were available, so they went to the defendant’s
grandmother’s house and then to the school that the boys would attend in the fall. The defendant
said that he did not remember passing anyone on the way home or anything about the wreck. The
next thing the defendant remembered was the pain he felt while in an ambulance en route to the
helicopter. The defendant said that he had not slept in twenty-four to thirty-six hours at the time of
the wreck because he was distraught that he had lost everything. The defendant said that he believed
that he had fallen asleep just before the collision. The defendant said that the pipe found near his
van was his, that he had misplaced it, and that it had been knocked out of the van as a result of the
wreck.

         The defendant testified that he worked as an x-ray technologist for Dr. Doug Smith and that
before that he worked as a mobile technologist taking offsite x-rays for Cookeville Regional Medical
Center. He said that in January 1999, he was around the wrong crowd and began smoking cocaine.
He said that he would use cocaine every third or fourth day and that it would cost between $50 and
$200 per use. He stated that when he smoked cocaine, he would get an instant feeling of being
without problems that would last for fifteen to twenty minutes. Then he would have a down period
of fifteen minutes to an hour.

         The defendant testified that he last used cocaine on May 12, 1999, before 1:00 a.m. He said
that he and his girlfriend, Mary Jo Bunch, were doing cocaine but that the cocaine did not have an
effect on him at that time. He said that they decided to give up cocaine together. He said that he was
in terrible financial shape as a result of his drug use, that he worried about it all of the time, and that
he could not sleep. He said that he went to sleep one and one-half hours after they decided to quit
using cocaine and awoke on that Wednesday morning at 6:00 or 6:30 a.m. He said that he did not
go to work that day. He called his grandmother, Ruth Owens, and they made the decision that he,
Ms. Bunch, and Ms. Bunch’s four children would move from Cookeville to get away from that


                                                   -7-
environment. He decided to move to Jamestown to be near his grandmother who had raised him.
Wednesday evening, he went to Jamestown to talk with his grandmother, who agreed to help with
the move. He said that he spent the night at his grandmother’s house, went to bed around 10:30
p.m., and got up around 6:30 a.m. He said that he returned to Cookeville on Thursday afternoon and
that Ms. Bunch had already started packing. He said that they packed on Thursday and Friday, going
to bed around 11:30 p.m. or midnight and awakening between 6:30 and 7:00 a.m. He denied
smoking any cocaine or having any money with which to buy cocaine on Wednesday through
Saturday, the day of the collision.

        The defendant testified that between 10:30 and 11:00 a.m. on Saturday, May 15, 1999, he left
for Jamestown to rent a U-Haul truck. He said that Ms. Bunch’s sons, Justin Vanatta and Richard
Bunch, went with him. He said they arrived in Jamestown around 11:00 or 11:15 a.m. but that no
U-Hauls were available. He said that they went to his grandmother’s house, ate lunch, and talked
about the move. He said that around 1:15 or 1:30, they went to the elementary school that the boys
would attend in the fall and looked around. He said that they left for Cookeville at 2:15 p.m., that
Richard was riding in the front passenger seat, and that both boys had on their seatbelts. He said that
he had not smoked any cocaine that day and that he did not have any with him. He said that he
stopped at a market to get a snack for the boys who waited in the car for him. He said that he turned
onto Highway 62 and that the next thing he remembered was excruciating pain in his left leg. He
said that he did not remember Richard leaning or waiving out the window. He said that Richard
would have been able to put his arms out of the window although his seatbelt was fastened.

        The defendant testified that after the wreck, Justin was shaking him and calling his name.
He could move very little, was confused, and recalled hearing a multitude of voices. He said that
he could reach over and touch the top of Richard’s head. He said that the emergency personnel
nipped his leg when they cut him out of the van. He recalled being asked if he had used any drugs
and that he had responded that he had used drugs three days ago. He said that he was taken by
ambulance to a helicopter. He said that he was not feeling the effects of cocaine that day but was
feeling tired and worried about the move and his finances. He said he did not know if the pipe found
at the scene was his but that he had lost a pipe.

        On cross-examination, the defendant testified that although he went to bed on the nights
before the wreck, he did not sleep well. He said that he was fired from his job at Cookeville General
Hospital on the Friday before the wreck but that he already had another job lined up in Jamestown.

        Mary Jo Bunch testified that she had been the defendant’s girlfriend for almost three years
and that the defendant had been like a father to her four children. She said that at one point, she and
the defendant had a cocaine habit. She said that they had gotten in bad financial shape and felt like
the cocaine was ruining their lives. She said that they had used cocaine thirty minutes to one hour
before 1:00 a.m. on May 12, 1999. She said that they discussed their cocaine use at that time and
decided they were “ready to straighten up.” She said that the next day, the defendant’s grandmother
agreed to help them including providing a place for them to live if they moved to Fentress County.
She said that the defendant returned from his grandmother’s house on Thursday evening and that


                                                 -8-
they began packing for the move. She said they went to bed around 11:30 p.m. or midnight, awoke
at 7:00 or 7:30 a.m., and packed all day Friday until 11:30 p.m. or midnight. She said that on
Saturday, the defendant took her two sons with him to get a U-Haul truck. She recalled the
defendant telling the boys to buckle their seatbelts like he always did. She said that except for the
time the defendant was in Jamestown with his grandmother, he was with her from 1:00 a.m. on
Wednesday until he left on Saturday morning and that he did not use cocaine during this time.

       On cross-examination, Ms. Bunch testified that she and the defendant had used cocaine
almost daily. She said that she did not carry a pipe with her nor keep one in the van. She said that
she had never seen a crack pipe in the van and that she had never smoked cocaine while riding in the
van but had always smoked it at home. She said that she and the defendant had talked about quitting
cocaine a lot before the 12th but had continued to smoke until that day. She admitted that she did
not know if the defendant had smoked cocaine after he left her on the 15th but said that she did not
think he would.

         Justin Vanatta testified that he was ten years old, that Mary Jo Bunch was his mother, and
that he had lived with the defendant. He said that on the day of the accident, he and his brother
Richard went with the defendant to Jamestown to rent a U-Haul truck. The defendant allowed him
to ride in the front passenger seat on the way there and Richard to ride in the front on the way back.
He said that they wore their seatbelts on the way there. No U-Hauls were available, and they went
to visit the defendant’s grandmother who gave them doughnuts and milk. Then they went to see the
school that he would be attending. After an one and one-half hours, they fastened their seatbelts and
left to go back to Cookeville. They stopped at a store and got something to eat and drink. Justin
testified that on the way home, the defendant drove safely and did not speed. He said that he became
sleepy and that the defendant told him to lie down. He said that he lay down in the backseat with
his seatbelt still fastened. He said that he woke up just before the accident. He said that the
defendant was asleep with his head against the driver’s side door and was snoring. He said that the
steering wheel started spinning, they began turning, and he yelled the defendant’s name. He said that
upon impact, his seat flipped over on top of him. He said that he hurt his shoulder and bruised his
knee but needed only first aid treatment. He said that he unbuckled his seatbelt after the accident.
He said that his brother must have slid underneath his seatbelt because he found his brother in the
floorboard. He said that he did not remember telling a police officer at the hospital that he was not
wearing a seatbelt at the time of the wreck.

        Ruth Owens, the defendant’s grandmother, testified that she was a registered nurse and had
raised the defendant who was like a son to her. She said that before the accident the defendant asked
for her help financially and emotionally. She said that she did not know the defendant had a cocaine
problem until this time and that she had never noticed him acting peculiar around her. She brought
him to her house on Wednesday afternoon and agreed to help him and to give him a place to live if
he would move to Jamestown. She said that she took the defendant back to Cookeville the next day
and spoke with him every two or three hours after that. She saw the defendant and Ms. Bunch’s two
sons on Saturday between 12:30 and 1:00 p.m. The defendant told her that there were no U-Haul
trucks available in Jamestown, and she offered to help him rent a U-Haul in Cookeville the next day.


                                                 -9-
They had lunch and then took the boys to see the school they would attend in the fall. She said that
she followed the defendant to the school and that he observed all stop signs. She said that the
defendant’s demeanor on that Wednesday, Thursday, and Saturday was normal. She said that she
had never seen the defendant or Ms. Bunch when she thought they were using cocaine.

        James Woodford, a chemist performing research on drug and alcohol testing, testified for the
defense. He had reviewed the laboratory report from the TBI, which tested the defendant’s blood
sample for cocaine and a cocaine metabolite using gas chromatology mass spectrometry. He said
that this type of test measured the presence of trace amounts of drugs and was not conducted to
quantify the amount of cocaine in a person’s system. He said that this type of testing is affected by
the precision with which the components are measured and by temperature fluctuations. He said that
the TBI laboratory report did not tell how much cocaine was in the defendant’s blood. He said that
the urine test also did not reveal the amount of cocaine in the defendant’s blood. He said that neither
of these tests revealed whether the subject was under the influence of cocaine or correlated to effect
on behavior or ability.

        Mr. Woodford testified that he was trained regarding the metabolism of cocaine and the way
it leaves the body. He said that based upon his research, if someone had smoked cocaine four to five
hours before a blood sample was drawn, he would expect a result substantially greater than .05
micrograms per milliliter. He said that the effects of cocaine vary widely as does the metabolism
of cocaine, which can be influenced by the subject’s gender, age, race, nationality, liver and blood
condition, and background. He said that trace tests can detect cocaine in the body for more than
three and one-half days and sometimes for up to thirty days after use. He said that cocaine can be
detected in urine for much longer than three and one-half days. He said that the test used by the TBI
could detect a tiny amount of cocaine in a person’s system three and one-half days after ingestion.

        Mr. Woodford disputed the statement that the cocaine in the defendant’s blood sample would
have been much greater at the time it was drawn than at the time of testing. He said that when
cocaine enters the blood, a portion of it binds with the pigmented parts of the blood while the cocaine
in the clear part of the blood breaks down. He said that over several months, the cocaine linked to
the pigmented part breaks off and can be detected in testing. He concluded that at some point the
amount of cocaine in the blood sample was greater than at the time of testing but that he could not
say when.

        Millard Deberry, an emergency medical technician, testified for the state in rebuttal that on
May 15, 1999, he accompanied Betsy Spurlock to the scene of a wreck on Highway 62. When he
arrived, the defendant’s legs were twisted and pinned under the pedals of his van. He said that he
was close to the defendant as they were assisting him but did not detect the odor of an intoxicant on
the defendant’s breath. He said that although the defendant was irritable, he saw nothing out of the
ordinary about the way in which the defendant was dealing with his pain. He said that when they
were in the back of the ambulance, the defendant told them he had smoked crack cocaine. He did
not recall the defendant saying when he had smoked it.



                                                 -10-
                             I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his convictions for
vehicular homicide and child endangerment because the state failed to prove that he was intoxicated
at the time of the wreck. He also argues that the evidence does not support his reckless
endangerment conviction because the state failed to establish that he placed anyone in actual danger
before the collision. Finally, he argues that the trial court failed to perform its duty as the thirteenth
juror and, instead, deferred to the jury’s findings. The state contends that the evidence is sufficient
to support the defendant’s convictions and that the trial court properly acted as the thirteenth juror.
We agree with the state.

        Our standard of review when the sufficiency of the evidence is questioned on appeal is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but
presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the credibility of the
witnesses were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

        Vehicular homicide by intoxication is “the reckless killing of another by the operation of an
automobile . . . [a]s the proximate result of the driver’s intoxication as set forth in § 55-10-401.”
Tenn. Code Ann. § 39-13-213(a)(2). Section 55-10-401 prohibits, in pertinent part, a person from
driving on the public roads and highways while under “the influence of any intoxicant, marijuana,
narcotic drug, or drug producing stimulating effects on the central nervous system.” Id. § 55-10-
401(a)(1); see also § 39-13-213(a)(2) (providing that intoxication for purposes of the vehicular
homicide statute includes both alcohol and drug intoxication). One commits Class A misdemeanor
child endangerment by violating § 55-10-401 while accompanied by a child under age thirteen. Id.
§ 55-10-414(1).

        In the present case, the evidence reveals that the victim was killed when the defendant’s van
crossed the center line and struck the victim’s pickup truck. The defendant’s girlfriend’s sons, nine-
year-old Justin Vanatta and five-year-old Richard Bunch, were in the van with the defendant at the
time of the collision. Viewing the evidence in the light most favorable to the state, the evidence
shows that the defendant was intoxicated at the time of the collision. The defendant inexplicably
crossed out of his lane of travel and into the opposing lane. Nothing in the record suggests that he
was attempting to avoid something on the roadway or that his driving was affected by adverse
weather conditions. The defendant admitted that he had a cocaine problem. Paramedic Betsy
Spurlock testified that the defendant told her that he had smoked cocaine three hours before the
wreck. Dr. Sullivan Smith testified that the effects of cocaine could last for three hours in the
average person. He also said that he was concerned that the defendant was intoxicated based upon
his behavior at the scene of the wreck. Samples of the defendant’s blood and urine taken on the day
of the collision tested positive for cocaine. Edward Lewis Kuykendall, a TBI forensic scientist,


                                                  -11-
testified that the defendant’s blood sample contained .01 micrograms per milliliter of cocaine, an
amount that could impair a person’s driving. Finally, although Mary Jo Bunch testified that she and
the defendant did not keep cocaine pipes in the van, an improvised pipe containing cocaine residue
was found just outside the driver’s side door of the defendant’s van after the wreck. The defendant
told Agent Frankie Floyd that the pipe was his. This evidence supports the jury’s finding that the
defendant was intoxicated at the time of the collision. The evidence is sufficient to sustain his
convictions for vehicular homicide by intoxication and child endangerment.

        Although the defendant does not challenge the fact that he received two child endangerment
convictions arising out of the same period of driving, we believe that his convictions for two counts
of child endangerment constitute plain error under the circumstances of this case. See Tenn. R.
Crim. P. 52(b). In State v. Ramsey, we held that the statute defining reckless endangerment prohibits
a course of conduct as opposed to an individual act or result and, therefore, that a single period of
reckless driving typically constitutes a single offense even though the driver endangered more than
one person. 903 S.W.2d 709, 713 (Tenn. Crim. App. 1995). Similarly, the child endangerment
statute prohibits a course of conduct–that of driving while intoxicated and accompanied by a child
under age thirteen. See Tenn. Code Ann. § 55-10-414; see also State v. Rhodes, 917 S.W.2d 708,
713 (Tenn. Crim. App. 1995) (holding that driving while under the influence of an intoxicant (DUI)
is a continuing offense).

       In Ramsey, we focused on the fact that although five people were endangered by the
defendant’s driving, the driving that endangered the victims was a continuous act:

               The evidence indicates that the defendant’s loss of control of his
               vehicle, combined with the speed at which he was driving, were
               responsible for both his swerving in front of the Tripletts and hitting
               the Story vehicle. Due to the very short distance between the two
               trucks and the very short amount of time that passed between
               swerving into the oncoming lane of traffic in front of the Tripletts and
               the crash with Mr. Story, the reckless conduct engaged in by the
               defendant was one continuous act, a single course of conduct, and
               therefore supports only one conviction for that act.

903 S.W.2d at 713. We note that Ramsey did not create a “blanket rule that provides that a
defendant’s continuous operation of a vehicle may only result in one act of reckless endangerment
under the statute.” Id. (emphasis in original). Nevertheless, we believe that this case is sufficiently
similar to Ramsey to warrant the same result. The defendant endangered Richard Bunch and Justin
Vanatta simultaneously as they were both in the van with him. Therefore, we hold that the dual
convictions violate the Double Jeopardy Clause and that the finding of guilt for the child
endangerment of Justin Vanatta, count six, merges into the conviction for the child endangerment
of Richard Bunch, count five. The judgment of conviction for count six is vacated.




                                                 -12-
       Class E felony reckless endangerment is recklessly engaging in “conduct which places or may
place another in imminent danger of death or serious bodily injury” and is committed with a deadly
weapon. Tenn. Code Ann. § 39-13-103(a)-(b).

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

 Id. § 39-11-106(a)(31). A deadly weapon is anything that “in the manner of its use or intended use
is capable of causing death or serious bodily injury.” Id. § 39-11-106(a)(5)(B). An automobile can
be a deadly weapon. State v. Tate, 912 S.W.2d 785, 787 (Tenn. Crim. App. 1995). The defendant
was indicted with two counts of felony reckless endangerment relating to Justin Vanatta and Richard
Bunch. The jury convicted the defendant of both counts, which the trial court merged at the
sentencing hearing. The judgment for the felony reckless endangerment of Richard Bunch states that
this count was “Dismissed/Nolle Prosequi.”

        The defendant contends that the state failed to prove that his driving up to the point at which
he crossed the center line and collided with the victim placed anyone in danger of death or serious
bodily injury. He argues that the testimony of Tommy Joe Swafford, the only witness to testify about
his driving before the collision, did not establish that he was driving recklessly. The state contends
that the evidence supports the conviction in that Mr. Swafford testified that the defendant traveled
at an excessive speed, passed him in a no-passing zone, and then passed two other cars. It argues
that the defendant acted recklessly in doing these things while under the influence of cocaine. It also
points to Jane Guillory’s testimony that the defendant’s van almost hit her after the defendant had
hit the victim. Noting the hilly condition of the road as Mr. Swafford testified, we agree with the
state that the evidence that the defendant was traveling at an excessive speed and passing other
vehicles while intoxicated would be reckless conduct placing Justin Vanatta in imminent danger of
death or serious bodily injury. See State v. Lewis, 978 S.W.2d 558, 565 (Tenn. Crim. App. 1997)
(holding that the defendant engaged in reckless conduct by approaching a blind curve at an excessive
speed at night after having a couple of drinks); see, e.g., Ramsey, 903 S.W.2d at 712 (concluding that
the sober defendant who was speeding despite the hilly and curvy condition of the road acted
recklessly). Thus, the evidence is sufficient to support the defendant’s conviction for felony reckless
endangerment.

        The defendant also contends that the trial court abdicated its duty to reweigh the evidence
as the thirteenth juror by deferring completely to the jury’s determinations on the credibility of the
witnesses. Rule 33(f), Tenn. R. Crim. P., reinstated the thirteenth juror rule, which requires the trial
judge to insure that a jury verdict is based upon satisfactory evidence, including that it be presented


                                                 -13-
through sufficiently credible witnesses. State v. Nail, 963 S.W.2d 761, 765 (Tenn. Crim. App.
1997). This assessment by the trial judge is a prerequisite to the entry of a valid judgment. Id.; see
State v. Burlison, 868 S.W.2d 713, 718 (Tenn. Crim. App. 1993). Absent the proper approval of the
verdict by the trial court, a new trial must be granted. Nail, 963 S.W.2d at 765; see State v. Moats,
906 S.W.2d 431, 432, 435-36 (Tenn. 1995). The trial court does not have to state explicitly its
approval of the verdict as the thirteenth juror. It may simply overrule the motion for a new trial,
thereby allowing the appellate court to presume its approval of the jury’s verdict. Moats, 906
S.W.2d at 434. On the other hand, this court may reverse the judgment if “the record contains
statements by the trial judge expressing dissatisfaction or disagreement with the weight of the
evidence or the jury’s verdict, or statements indicating that the trial court absolved itself of its
responsibility to act as the thirteenth juror.” State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995);
State v. Brown, 53 S.W.3d 264, 274 (Tenn. Crim. App. 2001).

         Before ruling on the evidence as the thirteenth juror at the hearing on the motion for new
trial, the trial court ruled that the laboratory reports showing the presence of cocaine in the
defendant’s blood and urine were properly before the jury and that sufficient evidence existed with
regard to the defendant’s intoxication:

                So I think that [the issue of the defendant’s intoxication] was a matter
                for the jury to sort out and the evidence that was presented was
                competent evidence and proper evidence in this Court’s opinion, and
                I see no reason to grant that motion for a new trial on those grounds.
                I think there was sufficient evidence to convict [for] the jury.

                        As the thirteenth juror, in weighing the evidence I believe it
                was a jury question, as I’ve said, and I would overrule the judgment
                of acquittal based on review as the thirteenth juror. That’s different
                than sufficient evidence, but I think there is sufficient evidence and
                that the evidence presented, in this Court’s opinion, a reasonable jury
                could find evidence of intoxication.

Although the trial court stated that the weighing of the evidence was a jury question, we believe this
to be an interjected reference to its previous discussion regarding the admissibility of the laboratory
reports and the sufficiency of the evidence of intoxication. In fact, the trial court’s next sentence
reveals that it recognized the difference between its determination as the thirteenth juror and its
ruling on the sufficiency of the evidence. None of the trial court’s comments reflect dissatisfaction
with the jury’s verdicts. We conclude that the trial court performed its duty as the thirteenth juror.

                       II. ADMISSIBILITY OF LABORATORY TESTS

        The defendant contends that the trial court erroneously admitted evidence of two laboratory
tests revealing that his blood and urine contained cocaine on the day of the wreck. He argues that
this evidence was irrelevant, unfairly prejudicial, failed to assist the jury substantially, and violated


                                                  -14-
his right to due process under the state and federal constitutions. The state contends that the trial
court properly admitted the evidence, which was authorized by statute, relevant and probative of the
defendant’s being under the influence of cocaine, and scientifically accurate and acceptable. We
agree with the state.

         The decision to admit evidence, including scientific evidence presented by a party’s expert
witness, is within the sound discretion of the trial court. Coe v. State, 17 S.W.3d 193, 226-27 (Tenn.
2000); State v. Tizard, 897 S.W.2d 732, 748 (Tenn. Crim. App. 1994). This court will not reverse
the trial court’s decision on appeal unless the trial court has abused its discretion. Coe, 17 S.W.3d
at 226-27; Tizard, 897 S.W.2d at 748.

                                A. Admissibility Pursuant to Statute

        We turn first to the state’s contention that the blood and urine tests conducted in the present
case were authorized by statute. Tenn. Code Ann. § 55-10-407(a) provides that “[u]pon the trial of
any person charged with a violation of this chapter, the results of any test made of the person so
charged shall be admissible in evidence in a criminal proceeding.” (Emphasis added). The state
correctly points out that the defendant was charged with two counts of child endangerment, § 55-10-
414, which are within the chapter referenced in § 55-10-407(a). Also, the statute proscribing
vehicular homicide by intoxication requires the state to prove that the victim’s death was “the
proximate result of the driver’s intoxication as set forth in § 55-10-401.” Id. § 39-13-213(a)(2).
Section 55-10-401(a)(1), which prohibits a person from driving on the public roads and highways
while under “the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating
effects on the central nervous system,” also falls within chapter ten of title fifty-five. Section 55-10-
406, which relates to implied consent and the consequences of refusing a blood test, states that the
provisions of that section do not affect the admissibility of lawfully obtained blood tests in vehicular
homicide cases. Id. § 55-10-406(e). We do not take this section to render § 55-10-407(a)
inapplicable to § 55-10-401 when it is charged as an element of vehicular homicide.

        The code defines test, as used within § 55-10-407(a), as “any chemical test designed to
determine the alcoholic or drug content of the blood” from a breath, blood, or urine specimen. Id.
§ 55-10-405(5). Although § 55-10-407(a) reveals the legislature’s intent that any chemical test be
admitted, the test must also be conducted by a qualified individual and “scientifically acceptable and
accurate for the purpose that it is being employed.” State v. Johnson, 717 S.W.2d 298, 303 (Tenn.
Crim. App. 1986) (citing Crawley v. State, 219 Tenn. 707, 715, 413 S.W.2d 370, 373 (Tenn. 1967)).
The state contends and the defendant does not contest that Mr. Kuykendall, a forensic toxicologist,
was qualified to conduct the gas chromatography test on the defendant’s blood sample. Indeed, the
record, which reveals that Mr. Kuykendall was trained and experienced in the field of forensic
toxicology, supports this conclusion. It is over the second requirement that the state and the
defendant diverge. The state argues that the purpose of the test was to detect the presence of certain
drugs in the defendant’s blood and that it was unquestionably scientifically accurate and acceptable
for that purpose. The defendant contends that the state sought to use the tests in question to prove
that he was intoxicated, a purpose contradicted by both parties’ expert testimony.


                                                  -15-
        Section 55-10-405(5) states that the chemical test must be “designed to determine the
alcoholic or drug content of the blood.” We derive what the legislature intended by “content” by
looking to the common and ordinary meaning of that word. See Ki v. State, 78 S.W.3d 876, 879
(Tenn. 2002). “Content,” as used in this context, means both “a part, element, or complex of parts”
and “the amount of specified material contained.” Merriam Webster’s Collegiate Dictionary 250
(10th ed. 1996). The state’s argued purpose fits within the first definition. The gas chromatography
test revealed that cocaine and a cocaine metabolite were a part of the defendant’s blood sample. This
definition also fits with this court’s statement in dictum that § 55-10-407 relates to chemical tests,
“which are performed to determine the amount of alcohol or presence of drugs contained in the
defendant’s blood.” State v. Gilbert, 751 S.W.2d 454, 459 (Tenn. Crim. App. 1988) (emphasis
added).

        Additionally, the test also revealed the amount of cocaine in the defendant’s blood sample.
Mr. Kuykendall testified that the gas chromatography test revealed that the defendant’s blood
contained less than .05 micrograms per milliliter of cocaine. He said that his notes reflect that the
sample actually contained .01 micrograms per milliliter of cocaine but that due to the rigor involved
in verifying numbers this small, it was the policy of the TBI laboratory to quantify this amount as
less than .05 micrograms per milliliter. Although the defendant characterizes this as Mr.
Kuykendall’s inability to arrive at an amount, we believe that he did quantify the cocaine in the
defendant’s blood sample.

        In any event, Tenn. Code Ann. § 55-10-405(5) establishes that the test does not have to show
the effect of alcohol or drugs on the individual, i.e., whether the person is intoxicated. Whether the
results of a particular test correlate with intoxication as opposed to drug or alcohol content in the
blood goes to the weight of the evidence and not its admissibility. See Johnson, 717 S.W.2d at 304
(observing that the medical profession’s lack of unanimity about whether breath tests can measure
intoxication goes to the weight of the evidence rather than its admissibility).

                                 B. Relevance and Unfair Prejudice

        The defendant contends that the laboratory reports address no fact of consequence to the case
because they do not show how much cocaine was present in his blood and urine or how a specific
amount of cocaine would have affected him in particular. In this respect, he argues that the evidence
is speculative in that it invites the jury to guess how much cocaine he had in his system and how it
affected his driving ability. He also argues that even if relevant, the little probative value the test
results may have is substantially outweighed by the danger of unfair prejudice stemming from asking
the jury to guess the amount of cocaine in his system and its effect on him. The state argues that the
test results combined with Mr. Kuykendall’s testimony that an amount as small as .01 micrograms
per milliliter could impair driving were probative of the defendant’s intoxication at the time of the
wreck.

       Relevant evidence is evidence that tends to make a material fact more or less probable. Tenn.
R. Evid. 401. “Although relevant, evidence may be excluded if its probative value is substantially


                                                 -16-
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Tenn. R. Evid. 403. The crimes of vehicular homicide by intoxication and child endangerment both
require the state to prove that the defendant was intoxicated. Tenn. Code Ann. §§ 39-13-213(a)(2),
55-10-414(a). Intoxicating substances include illegal drugs such as cocaine. Id. §§ 39-13-213(a)(2),
55-10-401(1); see also id. §§ 39-17-408(b)(4) (categorizing cocaine and its derivatives as a Schedule
II drug), 39-17-418 (possession of a controlled substance without a valid prescription is a criminal
offense). The fact that the defendant had cocaine and a cocaine metabolite in his blood at the time
of the collision is relevant to his intoxication.

         The defendant argues that this court has deemed test results revealing trace amounts of drugs
irrelevant to the conduct of the person tested. State v. West, 825 S.W.2d 695, 697 (Tenn. Crim. App.
1992); see also State v. Jim Smith, No. 03-C-01-9312-CR-00398, Knox County (Tenn. Crim. App.
July 11, 1994), app. denied (Tenn. Nov. 7, 1994). In West, the defendant sought to use evidence that
the deceased victim had .1 micrograms per milliliter of cocaine in his blood to support his claim that
the victim was acting in a way that compelled the defendant to shoot him. This court held the test
results inadmissible as merely speculative because the witness presenting the cocaine evidence could
not testify which of a variety of reactions the victim would have had. West, 825 S.W.2d at 697.

        In Smith, the trial court refused to let the defendant introduce evidence of a screen of the
deceased victim’s urine revealing a positive result for cocaine metabolites. The doctor who
performed the victim’s autopsy stated that the drug screening test was of questionable reliability
because no confirmation test was performed. He said that it was the hospital’s policy to conduct a
confirmation test before reporting a positive test result because of the possibility of other medications
cross-reacting with the screening test and giving a false positive result. This court noted that the
defendant did not ask the doctor if the test could reveal when the victim ingested cocaine or if the
victim was still under the affects of cocaine at the time of his death. We concluded that the trial
court did not abuse its discretion in finding the test unreliable under Rule 703, Tenn. R. Evid. Smith,
slip op. at 7-8. This court also noted that when the record is devoid of evidence relating to “when
the drug was ingested or when the individual may have been under the drug’s influence, a trace of
cocaine may be irrelevant and thus inadmissible.” Smith, slip op. at 7.

        Both of these cases are factually distinct from the present case. Here, the jury heard evidence
about when the defendant last ingested cocaine. Betsy Spurlock testified that the defendant said he
had last smoked cocaine three hours before the wreck. The jury also heard evidence that cocaine
could affect an individual for up to three hours and that the amount of cocaine in the defendant’s
blood could cause impaired driving. Although Mr. Kuykendall and Mr. Woodford testified that the
precise effect cocaine had on the defendant could not be discerned from the test results because
individuals respond differently to cocaine, this shortcoming does not appear to be related to this
particular test or the small quantity of cocaine in the defendant’s blood.

       The defendant also relies on State v. McClain, 525 So. 2d 420 (Fla. 1988), and State v. Albert
L. Norton, No. 03C01-9707-CR-00270, Blount County (Tenn. Crim. App. July 20, 1999), cases in


                                                  -17-
which the court ruled that test results revealing trace amounts of drugs were inadmissible against the
defendant. In McClain, the defendant was charged with vehicular manslaughter by intoxication, and
his blood test revealed a blood alcohol content of .14 percent and a trace amount of cocaine. A
chemist testified that the amount of cocaine was so small that the mass spectrometer could not detect
it. Additionally, the chemist could not say whether the presence of a trace of cocaine in the
defendant’s blood could have affected the defendant’s driving. The Florida Supreme Court held that
although the unquantifiable amount of cocaine in the defendant’s blood was relevant to the
defendant’s intoxication, its minimal probative value was substantially outweighed by the danger
of unfair prejudice. McClain, 525 So. 2d at 421-22.

         In Norton, the defendant was charged with second offense DUI. A hospital pharmacy
director testified that a laboratory report revealed the presence of less than .01 micrograms per
milliliter of cocaine in the defendant’s blood sample. The director testified that although the cocaine
would have an added effect when combined with the other drugs in the defendant’s system, she could
not testify to the specific effect of any of the drugs on the defendant. She testified that the effects
of the drugs varied from person to person and that a person could operate a car despite having the
drugs revealed by the laboratory test in the person’s system. In a jury-out hearing, the pharmacy
director had also testified that the defendant had 1456 nanograms per milliliter of a cocaine
metabolite and that this level was sufficient to have an effect on a person. This court held that
evidence of less than .01 micrograms per milliliter of cocaine was relevant and not substantially
outweighed by unfair prejudice when viewed in combination with the presence of a meaningful level
of a cocaine metabolite. Norton, slip op. at 13. Because the pharmacy director failed to testify
before the jury about the cocaine metabolite, this court questioned whether the trial court should have
admitted evidence of the presence of cocaine. Id., slip op. at 14. Holding that the defendant had
waived the issue by failing to object and that any error was harmless, the court noted that “had
cocaine at .1 microgram per milliliter been the only cocaine substance found, the evidence of it might
well have been irrelevant under evidence Rule 401 or prohibitively prejudicial under Rule 403.” Id.

        In the present case, the test results are not unfairly prejudicial or confusing to the jury.
Unlike in McClain, the amount of cocaine was quantified at less than .05 and specifically at .01
micrograms per milliliter, which according to Mr. Kuykendall was not a trace amount. Mr.
Kuykendall testified that a level of .01 could impair a person’s driving, and Dr. Smith testified that
cocaine can affect an individual for up to three hours after it is consumed. This testimony allowed
the jury to infer without speculation that the presence of cocaine in the defendant’s blood sample
supported a conclusion that he was driving while intoxicated.

         Furthermore, as opposed to Norton, Mr. Kuykendall testified that cocaine was present in the
defendant’s blood sample in a meaningful level, i.e., in an amount that could affect a person.
Although Mr. Kuykendall and Dr. Smith acknowledged that they could not know the precise effects
of this amount of cocaine on the defendant, Mr. Kuykendall’s testimony that .01 micrograms per
milliliter of cocaine could impair driving made the evidence relevant in this case. We also note that
a cocaine metabolite was present in the defendant’s blood sample, albeit in an unquantified amount.
As in Norton, the presence of a meaningful level of cocaine in the present defendant’s sample made


                                                 -18-
the unquantified amount of metabolite relevant. Finally, Agent Floyd, the defendant, the defendant’s
girlfriend, and the defendant’s grandmother all testified about the defendant’s cocaine addiction.
Trooper Human testified about the improvised cocaine pipe found at the scene. This testimony
decreased the potential for unfair prejudice from the test results because the jury was already
apprized of the possibility that the defendant had smoked cocaine on the day of the collision. Thus,
the trial court did not abuse its discretion in concluding that the probative value of the test results
were not substantially outweighed by the danger of unfair prejudice to the defendant.

                             C. Scientific Reliability of the Test Results

        The defendant also contends that the test results did not substantially assist the jury under
Rule 702, Tenn. R. Evid. He argues that the test results are not accepted in the scientific community
as reliable evidence of impairment because they do not show how much cocaine was in the
defendant’s system or how the cocaine would affect him individually. Although he concedes that
the test administered reliably indicates the presence of cocaine, he claims that the test was not a
reliable means of measuring what it intended to prove, i.e., his intoxication. The state contends the
test results were given by a qualified expert and substantially assisted the jury in determining the
defendant’s intoxication.

        “If scientific, technical, or other specialized knowledge will substantially assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.” Tenn. R. Evid. 702. The trial court must exclude expert testimony “in the form of an
opinion or inference if the underlying facts or data indicate lack of trustworthiness.” Tenn. R. Evid.
703. Determinations concerning the admissibility of expert testimony, including the basis of the
expert opinion, are within the discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562
(Tenn. 1993); see also State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997). However, the jury
determines the weight and credibility of the expert’s testimony. State v. Anderson, 880 S.W.2d 720,
732 (Tenn. Crim. App. 1994).

        As previously noted, the defendant does not contest and the evidence supports the conclusion
that Mr. Kuykendall was qualified by education, training, and experience to testify about the results
of the gas chromatography test. Instead, the defendant’s challenge focuses on whether the test results
substantially assisted the jury because he claims they were scientifically unreliable as proof of his
intoxication. Rules 702 and 703

               necessarily require a determination as to the scientific validity or
               reliability of the evidence. Simply put, unless the scientific evidence
               is valid, it will not substantially assist the trier of fact, nor will its
               underlying facts and data appear to be trustworthy, but there is no
               requirement . . . that it be generally accepted [in the scientific
               community].



                                                 -19-
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The trial court must “determine
whether the reasoning or methodology underlying the scientific evidence is sufficiently valid and
reliable, and whether it can properly be applied to the facts at issue.” Id. at 258. In making this
assessment, the trial court is not required to choose between “legitimate but conflicting scientific
views,” which is the province of the jury. Id. at 265. Instead, it must be satisfied that the expert
“opinions are based on relevant scientific methods, processes, and data, and not upon an expert’s
mere speculation.” Id. Our supreme court has suggested that the following factors are useful in
determining the reliability of scientific evidence:

                (1) whether scientific evidence has been tested and the methodology
                with which it has been tested;

                (2) whether scientific evidence has been subject to peer review or
                publication;

                (3) whether a potential rate of error is known;

                (4) whether . . . the evidence is generally accepted in the scientific
                community; and

                (5) whether an expert’s research in the field had been conducted
                independent of litigation.

Id.

        In the present case, the defendant challenged the admissibility of the laboratory test results
before trial, arguing that they would not substantially assist the jury in determining that he was
intoxicated and that they failed to meet the requirements of McDaniel. The trial court denied the
motion to suppress the results, finding that the defendant’s arguments went to the weight of the
evidence and not its admissibility.

         The defendant contends that the test results failed to give a specific amount of cocaine or its
metabolite that was present in his blood or urine samples. To the contrary, Mr. Kuykendall was able
to quantify the amount of cocaine in the defendant’s blood sample as being less than .05 micrograms
per milliliter. He explained that it was the TBI laboratory’s policy to report amounts below .05
micrograms per milliliter in this fashion rather than relating a precise number. Nevertheless, he
testified that he could discern a specific number from the test and that in this case, his notes reflected
that the actual amount was .01 micrograms per milliliter. The defendant is correct that the urine test
did not quantify the amount of cocaine or cocaine metabolite and that Mr. Kuykendall did not
quantify the amount of cocaine metabolite in the defendant’s blood sample. Although these amounts
were not quantified, we note that Mr. Kuykendall did not form an opinion about the defendant’s or
the average person’s intoxication based upon the urine test or the cocaine metabolite revealed in the
blood test.


                                                  -20-
         The state contends that the defendant’s reliance on McDaniel is misplaced because the
reliability of the scientific tests were not at issue. Instead, the defendant’s complaint centered on
whether the test results could be used to show that he was intoxicated at the time of the collision.
The defendant in his reply brief concedes “the efficacy of the cocaine screen tests as to their
reliability in testing for cocaine.” He contends that scientific tests must not only be internally
reliable but also be a reliable means of measuring what they intend to prove.

        Initially, we note that this court has approved the use of a gas chromatograph to test the
alcohol content of the blood. King v. State, 598 S.W.2d 834, 835-36 (Tenn. Crim. App. 1980).
Furthermore, the evidence supports the trial court’s ruling that the laboratory test was a reliable
measure of the cocaine content in the defendant’s blood. Mr. Kuykendall testified that the gas
chromatograph broke the blood sample into its component parts and told him how much of a
particular component existed. Based upon his training of the affects of drugs on the average person,
he concluded that the amount of cocaine in the defendant’s system could have impaired his driving.
Although Mr. Woodford testified that the test used by the TBI was used to detect the presence of
certain drugs in the blood rather than the quantity of the drugs, he also testified that he would have
expected the amount of cocaine in the defendant’s blood to be much higher than less than .05
micrograms per milliliter had the defendant smoked cocaine within five hours of the collision. This
testimony reveals that the gas chromatography test did reveal an amount and that amount was linked
to how recently the drug was consumed. This testimony does not suggest that the gas
chromatography test was an unreliable method for determining the amount of cocaine in the
defendant’s blood sample.

         We agree with the state that the test results relating to the presence of cocaine in the
defendant’s blood sample substantially assisted the jury. Whether the defendant was intoxicated at
the time of the collision was a fact in issue in the case. The presence of .01 micrograms per milliliter
of cocaine in the defendant’s blood in combination with Mr. Kuykendall’s testimony that this
amount of cocaine could impair a person’s driving substantially assisted the jury in determining
whether the defendant was intoxicated. The defendant faults the results for their inability to prove
that this amount of cocaine would impair him individually rather than an average person. This court
has held that a jury is substantially assisted by evidence that the average person would be impaired
by an amount of a drug. Norton, slip op. at 10-11; see also State v. Kenneth Lee Abbott, No. 02C01-
9311-CC-00263, Carroll County, slip op. at 5 (Tenn. Crim. App. Jan. 19, 1995), app. denied (Tenn.
Dec. 28, 1995) (holding that the officer’s observations along with expert testimony about the
presence of drugs in the defendant’s system and their usual effects justified the jury’s finding that
the defendant was driving while intoxicated). The trial court did not abuse its discretion in admitting
the test results.

                                           D. Due Process

        Finally, the defendant contends that even if the admission of the laboratory test results does
not offend the rules of evidence, it violated his right to the due process of law under the state and
federal constitutions. He argues that when the totality of the facts are considered, the introduction


                                                 -21-
of the non-specific and speculative test results was fundamentally unfair because he could not defend
against the unknown. We believe an examination of the totality of the circumstances reveals that
the contrary is true. First, the state’s expert testified that he did quantify the amount of cocaine in
the defendant’s blood sample. Second, the record reveals that the defendant thoroughly cross-
examined both Mr. Kuykendall and Dr. Smith about the correlation of the test results with actual
impairment. Also, he presented his own expert, Mr. Woodford, who listed potential problems with
the type of test used, reemphasized that cocaine affects individuals differently, and stated that the
amount of cocaine indicated in the test results suggested that the defendant had not ingested the
cocaine three hours before the collision. Thus, the defendant did defend against the test results. The
fact that the jury accredited the state’s evidence over that of the defendant does not mean that his
right to due process was violated. The defendant is not entitled to relief on this issue.

                                    III. EXPERT TESTIMONY

        The defendant contends that Mr. Kuykendall was not qualified to testify about the behavior
of cocaine and its metabolite or their effect on the human nervous system. He argues that this
testimony extended beyond the explanation of the laboratory report into principles of chemistry and
pharmacology. The state contends that the defendant’s cross-examination of Mr. Kuykendall about
cocaine metabolites and the body’s metabolism of cocaine opened the door for his testimony. It also
argues that he was qualified to testify on these matters under Rule 702, Tenn. R. Evid.

        Rule 702 requires that the witness be “qualified as an expert by knowledge, skill, experience,
training, or education.” “To give expert testimony, one must be particularly skilled, learned or
experienced in a science, art, trade, business, profession or vocation, a thorough knowledge of which
is not within the scope of the common knowledge and experience of the average person.” Kinley
v. Tennessee State Mut. Ins. Co., 620 S.W.2d 79, 81 (Tenn. 1981). The witness may gain expertise
through formal education or through life experiences. Neil P. Cohen et al., Tennessee Law of
Evidence § 702[4], at 7-21 (4th ed. 2000). The decision to admit expert testimony is reserved to the
discretion of the trial court and will not be disturbed on appeal absent an abuse of such discretion.
State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997). In fact, the defendant will only gain relief on
appeal for an abuse of discretion that was prejudicial. Tizard, 897 S.W.2d at 748.

         In the present case, Mr. Kuykendall testified that he had worked as a forensic toxicologist
for the TBI crime laboratory for a little over twelve years. In this capacity, he analyzed blood, body
fluids, or tissues for the presence of drugs, alcohol, or poisons and related his findings to the criminal
issues involved in the case. He stated that he had testified over three hundred times regarding the
identification of controlled substances in blood. When testifying about the results of the test he
conducted on the defendant’s blood sample, Mr. Kuykendall testified that the body breaks down
cocaine and that metabolites result from this process. The defendant objected that Mr. Kuykendall
was not qualified to testify about metabolites and how the body processes cocaine. The trial court
overruled this objection. Mr. Kuykendall testified that he did not know the schedule classification
of cocaine, explaining that “since this is inside the body, I’m more concerned with the metabolism,
the rate that it’s going to go away, how much it takes to get it, and that sort of thing.”


                                                  -22-
        On cross-examination, the defendant questioned Mr. Kuykendall about the fact that
individuals metabolize different substances differently. Mr. Kuykendall testified that although the
manner in which people metabolize cocaine is basically the same, the timing for metabolizing it
would vary. On redirect examination, Mr. Kuykendall was asked about the dissipation rate of
cocaine from the human body. The defendant objected that no foundation had been laid for him to
testify on this subject. Although the court noted that the witness had first addressed the issue on
cross-examination without objection, it observed that the witness’s testimony had gone “a little bit
afield” of the matters about which he was called to testify. The court directed the state to “establish
some foundation for his ability to testify” about the metabolism of cocaine.

         At this point, Mr. Kuykendall testified that he has a Bachelor of Science in chemistry with
a biochemistry specialty from Tennessee Technical University. He said that he had been trained by
the TBI in forensic toxicology and received annual training at the Federal Bureau of Investigation
Academy from prominent toxicologists. He stated that he was a board certified forensic toxicologist
and that in his twelve years of experience, he had performed around 30,000 analyses. He agreed that
his training and experience in forensic toxicology included the dissipation rates of cocaine from the
human body. He then proceeded to testify without further objection from the defense about how
cocaine breaks down in the human body, the relative times at which a person ingesting cocaine in
various ways begins to feel its effects, and the rate at which cocaine dissipates from the body. He
testified about the dissipation rates related in the scientific literature as well as those he had
personally observed, noting that cocaine

               doesn’t take that long to go away. It takes, typically speaking, when
               I have worked with police officers out in the field and we have taken
               subjects in who have had cocaine in them at that point in time and
               then we go and test them later, we see that the levels that they had
               were dropping relatively rapidly, and that’s because it has a short
               half-life.

        The witness stated both that he had been educated about the metabolism of cocaine in
humans and that he had experience based upon his own tests in this area. Furthermore, the witness
held a degree in chemistry with a concentration in biological chemistry. In light of this evidence,
we cannot say that the trial court abused its discretion in allowing Mr. Kuykendall to testify about
the metabolism of cocaine.

                                        IV. SENTENCING

        The defendant contends that his sentence is excessive because the trial court erroneously
applied enhancement factor (10), that he showed no hesitation about committing a crime when a high
risk to human life existed. See Tenn. Code Ann. § 40-35-114(10). He argues that no proof exists
that he endangered the life of anyone other than the victims named in the indictments. The state
asserts that the defendant drove at an excessive speed, passed cars on a double yellow line, and
nearly hit another person after he struck the victim’s pickup truck. It argues these actions posed a


                                                 -23-
risk to others aside from the victim and Ms. Bunch’s children. It contends that the trial court
properly sentenced the defendant.

        For the vehicular homicide conviction, the trial court applied the following enhancement
factors: (1) a previous history of criminal convictions or behavior beyond that necessary to establish
his range and (10) “no hesitation about committing a crime when the risk to human life was high.”
Tenn. Code Ann. § 40-35-114(1),(10). It applied mitigating factor (11), the defendant “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). The trial court imposed a nine-year
sentence. The trial court applied enhancement factor (1) to the felony reckless endangerment
conviction and imposed a one-year sentence. It sentenced the defendant to eleven months and
twenty-nine days for each of the child endangerment convictions. It ordered all of the sentences to
run concurrently and to be served in confinement, which it found necessary under § 40-35-103(1)(B),
“to avoid depreciating the seriousness of the offense or . . . particularly suited to provide effective
deterrence to others likely to commit similar offenses.”

       Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, the burden is now on the defendant to show that the
sentence is improper. This means that if the trial court followed the statutory sentencing procedure,
made findings of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        However, “the presumption of correctness which accompanies the trial court’s action 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, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,

               the trial court must place on the record its reasons for arriving at the
               final sentencing decision, identify the mitigating and enhancement
               factors found, state the specific facts supporting each enhancement
               factor found, and articulate how the mitigating and enhancement
               factors have been evaluated and balanced in determining the sentence.
               T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

        Also, in conducting a de novo review, we must consider (1) the evidence, if any, received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on


                                                 -24-
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

         The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B and Class E felony unless there are enhancement factors present. Tenn. Code Ann. §
40-35-210(c). Procedurally, the trial court is to increase the sentence within the range based upon
the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating
factors. Tenn. Code Ann. § 40-35-210(d)-(e). The weight to be afforded an existing factor is left
to the trial court’s discretion so long as it complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record. Tenn. Code Ann. §
40-35-210, Sentencing Commission Cmts.; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at
169. We note that the law provides no presumptive minimum for misdemeanor sentencing. See,
e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). In misdemeanor sentencing,
in determining the percentage, if any, of the sentence to be served in confinement, the court shall
consider the purposes of the Sentencing Act, the principles of sentencing, and the enhancement and
mitigating factors. See Tenn. Code Ann. § 40-35-302(d); State v. Troutman, 979 S.W.2d 271,
273-74 (Tenn. 1998). A Class A misdemeanant may be incarcerated for up to eleven months and
twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1).

        The defendant asserts that the application of enhancement factor (10) was crucial because
increasing the sentence above the minimum eight years made him ineligible for probation. See Tenn.
Code Ann. § 40-35-303(a). In this respect, the sentencing hearing consisted of numerous witnesses
who testified on behalf of the defendant. The evidence indicated that the defendant showed remorse
and had rehabilitation potential. The defendant also was shown to have a history of cocaine
dependence and had numerous bad check charges that resulted in diversion, restitution, and some
convictions.

        Relative to the application of enhancement factor (10), the defendant argues that the
commission of two misdemeanor offenses–speeding and passing on a double yellow line–is
insufficient to support its application. He argues that this is especially true in light of Mr. Tommy
Joe Swafford’s testimony that he was not driving erratically at the time. This court has held that
factor (10) may be applied to a vehicular homicide conviction when persons other than the victims
were at risk. State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995). The defendant
attempts to distinguish Williamson because the defendant in that case crossed into the opposing lane
twice before colliding with the victim and the offense occurred on Labor Day. In the present case,
the defendant nearly hit Ms. Guillory in the opposing lane after colliding with the victim. We
believe the trial court properly applied this factor. Our de novo review of the record supports the
length of the defendant’s sentences.

       Based upon the foregoing and the record as a whole, we affirm the judgments of conviction
for vehicular homicide, reckless endangerment, and one count of child endangerment. We merge
the conviction for child endangerment relating to Justin Vanatta into the conviction relating to



                                                -25-
Richard Bunch and vacate the judgment of conviction for the child endangerment count relating to
Justin Vanatta.



                                                    ___________________________________
                                                    JOSEPH M. TIPTON, JUDGE




                                             -26-
