State of Tennessee v. Johnny Morgan Dye

10/15/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 18, 2019 Session

STATE OF TENNESSEE v. JOHNNY MORGAN DYE

Appeal from the Circuit Court for Dickson County

No. 2015-CR-71 Larry J. Wallace, Judge

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No. M2018-01191-CCA-R3-CD

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A jury convicted the Defendant, Johnny Morgan Dye, of vehicular homicide through

intoxication and vehicular homicide through reckless conduct, and the Defendant

received an effective sentence of twelve years in confinement after the offenses were

merged. The Defendant appeals, challenging the sufficiency of the evidence with respect

to the vehicular homicide through intoxication conviction, arguing that the trial court

erred in allowing certain expert testimony, and asserting that the trial court committed

reversible error in the admission of evidence. After a thorough review of the record, we

conclude that the evidence is sufficient and that the trial court did not err in its

evidentiary decisions. The judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Olin J. Baker, Charlotte, Tennessee, for the appellant, Johnny Morgan Dye.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant

Attorney General; Wendell Ray Crouch, Jr., District Attorney General; and Jack T.

Arnold, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant’s truck crossed into oncoming traffic and caused a head-on

collision with a station wagon, resulting in serious injuries to the Defendant and in the

death of the victim, Mr. Jacob Akers. The State introduced evidence that the Defendant

had been travelling recklessly and at excessive speeds immediately prior to the accident,

that he had admitted using heroin, that there were syringes in the vehicle, and that he

tested positive for amphetamine and hydrocodone. The Defendant disputed the

admission of drug use and the significance of the blood test results, and he introduced an

alternative explanation for the presence of syringes.

At trial, Savannah Ladage, the victim’s fiancée, testified that she and the victim

had become engaged on July 4, 2014, and that the victim was preparing to attended

medical school in the fall. She last saw the victim at around 7:00 or 7:30 p.m. on the day

of the accident, July 7, 2014, when they met for dinner at Taco Bell.

The State presented numerous witnesses who testified to the circumstances

surrounding the collision. Mr. Ronnie Dale Tibbs was driving on Highway 49 when the

Defendant passed him at a rate of speed so high that it “rocked my truck like a semi truck

passed it.” Mr. Tibbs described himself as “a 20-year auto tech” who had experience

racing cars, and he estimated that the Defendant was travelling at 100 to 120 miles per

hour. The Defendant was passing Mr. Tibbs in a no-passing zone and returned to Mr.

Tibbs’s lane before completing the pass, causing Mr. Tibbs to slam on his brakes to avoid

a collision.

Approximately three miles down the road, Mr. Tibbs came upon the scene of the

accident. He approached the victim’s vehicle and observed that the victim was

unresponsive. He described the victim’s breathing as a “gurgling” “death rattle.” Mr.

Tibbs’ 911 call, including a statement that the Defendant had been travelling in excess of

100 miles per hour, was introduced into evidence. On cross-examination, Mr. Tibbs

acknowledged that the Defendant would have had to have slowed down prior to the

accident due to a series of “S” curves in the road which his vehicle would not have been

able to negotiate at 100 miles per hour or more.

Ms. Jill Pardue, a nurse, witnessed the collision. The Defendant’s vehicle passed

her immediately before the accident, but she could not estimate the Defendant’s speed,

noting that she was travelling under the speed limit because her children were screaming

in the back of the car. She stated that there was a rise in the road which obstructed any

view of oncoming traffic. The Defendant’s vehicle completed its pass of Ms. Pardue and

subsequently veered into the other lane, hitting the victim’s vehicle. Ms. Pardue had to

slam on her brakes to avoid becoming involved in the collision. She attempted to aid the

Defendant and the victim. After ascertaining that the Defendant was able to speak, Ms.

Pardue approached the victim, who, before losing consciousness, asked her to tell his

parents that he did not suffer.

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Ms. Cyndi Chester observed the collision from her yard with two teenagers, her

daughter and daughter’s friend. She testified that the truck nearly hit them and that they

were hit by debris. The truck was redirected when it hit a tree and came to rest by a

telephone pole. The collision happened while it was light outside and the conditions

were not wet. The Defendant was able to crawl out of his truck, and he was able to tell

her his name and age.

Ms. Anna Cummings, Ms. Chester’s daughter, confirmed her mother’s testimony.

She also stated that the Defendant was lying on the ground after exiting the truck, and a

woman came to “visit” him. Ms. Cummings saw the woman enter the truck. Ms. Nadia

Hambalek, Ms. Cummings’s friend, likewise confirmed that they saw a collision and fled

the careening truck and debris. Ms. Hambalek testified that the Defendant’s “girlfriend

or a wife or someone” came to the scene, and he asked the woman for a cigarette, which

she gave him. The woman entered the vehicle and went to the glove box. Ms. Hambalek

could not say whether she took anything from the vehicle, but “she did go in and came

right back out and then left and then came right back.” Ms. Hambalek testified that she

believed the woman was not retrieving a cigarette because the woman did not enter the

truck until after the Defendant had begun to smoke. Ms. Hambalek took the Defendant’s

cigarette away for his safety. Frantic emergency calls made by Ms. Chester and Ms.

Cummings were introduced into evidence.

Mr. Jason Reed, a registered nurse employed by Vanderbilt Lifeflight, testified

that he was called to the scene by other emergency personnel at 8:47 p.m. and that he

assisted in transporting the Defendant to the hospital after the collision. The Defendant

was given one hundred micrograms of fentanyl by emergency workers prior to Mr.

Reed’s arrival. Mr. Reed asked the Defendant about his current medications, and the

Defendant responded that he was taking oxycodone. The Defendant’s “neuro status,”

assessing “if [he could] answer questions [and] follow commands,” was fourteen out of

fifteen points, which was near normal. The Defendant’s femur was noticeably deformed,

and the Defendant was described as lethargic. On cross-examination, Mr. Reed

acknowledged that he could not testify regarding whether oxycodone was actually

present in the Defendant’s system.

The trial court held a jury-out hearing on the admissibility of the testimony of Ms.

Amanda Hawn, who was married to the Defendant at the time of the collision, regarding

a bag of syringes she discovered in the remains of the truck. Ms. Hawn testified that she

came upon the collision scene by happenstance after the Defendant refused to contact her

and she decided to drive around to find him. She retrieved the Defendant’s telephone

from the truck. She stated that in the days following the accident, the Defendant asked

her persistently to get his work bag from his truck, ostensibly because it contained the

vehicle title. With permission from the district attorney’s office, she visited the lot where

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the vehicle was kept and retrieved the bag. The bag contained no papers, only tools and

an open bag of unused syringes. Ms. Hawn stated she felt she had been “betrayed and set

up” and that she took photographs of the contents of the bag. She could not say why the

dates on the photographs showed that they were taken on July 6, 2013. Ms. Hawn at first

testified that the Defendant acknowledged heroin use to her, but she later stated that his

actual words were that he had “made a mistake.” She understood this statement to be a

reference to heroin use. The trial court excluded Ms. Hawn’s testimony that the

Defendant acknowledged heroin use and that she discovered burnt spoons in her garage,

but it ruled the testimony regarding the syringes admissible.

The trial court also evaluated the admissibility of the testimony of Ms. Hawn’s

mother, Ms. Patricia Arnold, who testified regarding the Defendant’s acknowledged drug

use. Ms. Arnold asserted that the Defendant had exchanged text messages with her

regarding his attempt to reform by selling his pain medication rather than using it.

During a subsequent telephone call, he told her he had used heroin either on the day of

the collision or the day before the collision. The trial court excluded the text messages as

prejudicial but concluded the Defendant’s statements about heroin were admissible.

Ms. Hawn subsequently testified before the jury that the Defendant continually

and persistently asked her to get the work bag from the pickup after the collision for the

purported reason that the title of the vehicle was inside. She stated that she felt around

inside the bag and could not feel paper, so she dumped out the contents. In addition to

work tools, she found a bag of insulin needles. The Defendant did not take insulin. Ms.

Hawn identified her photographs of the work bag and syringes and acknowledged that the

date stamps on the photographs were inaccurate but that she could not explain the

inaccuracies. She stated that the Defendant’s coworkers would not have had access to his

truck because all the workers would ride to a job site together in a company vehicle. Ms.

Hawn testified that she filed for divorce in September 2015 but later agreed she was

mistaken about the year and that she filed for divorce shortly after the collision.

Ms. Arnold testified that during a telephone conversation, the Defendant

acknowledged having made bad decisions. She stated that “the subject came up about

him using black tar heroin, and I asked him did he do it, and he said yes.” The Defendant

told her that he had used heroin either on the day of or the day before the accident, but

due to her shock over discovering his drug use, she could not remember which.

Trooper Fidencio Medina investigated the scene for the Tennessee Highway

Patrol. He determined that the Defendant’s truck had crossed into oncoming traffic and

hit the station wagon. He collected photographs and video evidence. Trooper Medina

also executed a search warrant on July 9, 2014, to obtain a blood sample which the

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hospital had taken as part of the Defendant’s treatment.1 Ms. Elisa Grady, assistant

manager in specimen receiving at Vanderbilt University Medical Center, confirmed that

she delivered the sample to Trooper Medina and stated that the identity of the donor is

verified by the laboratory prior to labeling the sample. Exhibits entered into evidence

reveal that the blood was collected at 9:37 p.m. on the day of the collision. Trooper

Medina delivered the sample to the Tennessee Bureau of Investigation (“TBI”).

Former Special Agent Holly Carrell, a forensic scientist in toxicology, tested the

Defendant’s blood sample for the TBI. Ms. Carrell testified that she had a master’s

degree in chemistry from Vanderbilt University, where she studied drug design and

development and “how [different drugs] act on the body.” Her TBI training included

studying how to test for drugs and the effects of these drugs on the human body. The

Defendant did not object to Ms. Carrell as an expert witness.

The gist of Ms. Carrell’s testimony was that she tested only the sample of the

Defendant’s blood that was available to her, which was less than the standard sample size

used by the machine in conducting analysis. Due to the insufficiency of the sample’s

size, the machine was unable to report a result reliably quantifying the amount of the

substances in the Defendant’s blood. The import of her testimony was that the result

obtained from the machine only allowed her to testify that the Defendant’s blood tested

positive for amphetamine and hydrocodone and that she could not testify to the

quantitative value of these substances in the Defendant’s blood. She could not testify

regarding whether, had she had a full sample size, the test results would have been above

or below the machine’s lowest calibrator of 0.05 mcg/ml. Neither could she testify

regarding whether the quantities of amphetamine and hydrocodone in the blood were

over the therapeutic threshold of 0.03 mcg/ml, at which the subject could experience side

effects, or below that threshold. Ms. Carrell could offer no testimony on whether or not

the Defendant was impaired. Ms. Carrell testified that the TBI does not conduct testing

for heroin but normally sends the sample to another laboratory, and the sample in this

case was not tested for heroin. In essence, she testified that, due to insufficient sample

size, the machine was only able to produce a positive or negative result for amphetamine

and hydrocodone in the Defendant’s blood, and the result was positive.

Ms. Carrell further testified regarding the effects of the drugs at issue. She stated

that amphetamine is a stimulant and that it can cause nervousness, jitteriness, increased

risk-taking, and hallucinations. Hydrocodone is an opiate and central nervous system

depressant. Its effects include sedation, dizziness, slurred speech, increased reaction

1

The record reveals that law enforcement conducted a separate blood draw from the Defendant

without a warrant after the collision, but the Defendant moved to suppress the blood evidence, and the

State only sought to introduce the blood obtained from the hospital pursuant to a warrant.

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time, decrease in critical judgment, and loss of balance. She stated that the two types of

drugs would not cancel each other out, and a person under the influence of both could

experience an increased risk-taking at the same time as an increase in reaction time and a

decrease in critical judgment. Over the Defendant’s objection to relevance, she testified

that the effects of heroin would be similar to the effects of hydrocodone. The Defendant

did not otherwise object to Ms. Carrell’s testimony regarding the effects of the drugs in

question. She acknowledged that she could not say how any individual person would be

affected by the drugs and that a person might not experience all or any side effects. Ms.

Carrell stated that hydrocodone is not the same as oxycodone, although the drugs have

similar effects.

Trooper Harold “Skip” Stewart, a member of the Critical Incident Response Team

with the Tennessee Highway Patrol, testified that he was able to use forensic mapping

tools to reconstruct the collision. The collision occurred in the victim’s lane of travel and

was an offset head-on collision which caused both vehicles to rotate. Trooper Stewart

could not determine the speeds of the vehicles but could determine that the Defendant’s

vehicle was traveling faster than the victim’s. He calculated that if, instead of colliding

with the victim, the Defendant had slammed on his brakes at the collision point and slid

to a stop at the truck’s final resting place, his initial speed would have been between 57

and 60 miles per hour, but this calculation did not include any speed loss that would

come from the collision with the victim or the tree. As far as Trooper Stewart could

determine, the collision’s cause was not mechanical.

Lieutenant Troy Human interviewed the Defendant at the Defendant’s home on

August 20, 2014, after his release from the hospital. The recorded interview was

introduced into evidence. The Defendant told Lieutenant Human that lack of sleep was

not a factor in the collision. Asked to describe the day, he stated that he went to work at

6:00 a.m., returned home at around 3:00 p.m., and received a telephone call from a

relative asking him to deliver some shoes to his father, who was in jail. On the way home

from the jail, he assisted a friend who had run out of gas. The Defendant could not recall

the circumstances around the collision. He told Lieutenant Human he had only acquired

the truck, which belonged to his father, the night before. The Defendant acknowledged

that on the day of the collision, he had taken oxycodone, which he took orally in fifteen

mg doses four times a day as prescribed. He believed he had taken two doses that day.

He also acknowledged that he had “snorted” Lortab in the past but denied blood testing

would reveal any drugs other than oxycodone. Lieutenant Human testified that the

Defendant only seemed remorseful at the end of the interview, and he acknowledged that

the Defendant was still in a wheelchair at the time of the interview.

Sergeant Craig Smith, of the Tennessee Highway Patrol criminal investigations

division, obtained a recording of a telephone conversation between the Defendant and his

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father through the Cheatham County Sheriff’s Department. Portions of the recording

were played for the jury. The Defendant agreed with his father that he had “f***ed up.”

The Defendant’s father asked, “F***ed up, wasn’t you?” The Defendant responded,

“Nah, I really wasn’t.” He explained that he was driving fast and was in the opposing

lane of traffic coming over the hill.

Dr. Feng Li, the Chief Medical Examiner for Davidson County, introduced the

autopsy findings. The victim died of multiple blunt force injuries on July 7, 2014, at

10:05 p.m. The victim’s injuries included fractures to the skull, lacerations to the brain,

subarachnoid hemorrhage, blunt force injuries to the torso, including rib and pelvic

fractures, an accumulation of blood in the chest cavity, and blunt force injuries to the

extremities, including fractures to both femurs. There were no drugs or alcohol in the

victim’s blood.

The Defendant’s mother, Ms. Connie Sue Butler, testified that the Defendant only

obtained the pickup truck a day or two before the collision. The pickup truck belonged to

the Defendant’s father, and he kept the title to the truck inside the vehicle. The

Defendant’s father used syringes for a medical condition. Ms. Butler testified that the

Defendant’s father’s medication, syringes, and other personal items were in the truck.

She acknowledged that she was found guilty of insurance fraud in 2015, but she testified

that she did not burn down a house to obtain the insurance. She agreed that she lied to

the court by saying she was guilty in order to get out of jail.

The Defendant’s sister, Ms. Brandy Danielle Ferrell, stated that the Defendant

stayed with her after he was released from the hospital. He was confined to bed and

needed help to speak on the phone. She testified that she would have overheard any

conversations between the Defendant and Ms. Arnold about heroin and that she did not

hear any such conversation.

The jury convicted the Defendant of vehicular homicide by intoxication, a Class B

felony, and of vehicular homicide by recklessness, a Class C felony. The offenses were

merged, and the Defendant was sentence to serve twelve years in prison for vehicular

homicide by intoxication.

The Defendant moved for a new trial, alleging that the evidence was insufficient to

support the verdict, that the trial court had erred in permitting Ms. Carrell to testify as an

expert witness or to testify about the general effects of opiates, and that the admission of

the syringes was error. The trial court denied the motion, and the Defendant appeals.

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ANALYSIS

The Defendant asserts on appeal that the evidence was insufficient to support the

element of intoxication in the vehicular homicide through intoxication conviction, that

the trial court erred in allowing expert testimony regarding the effects of the drugs found

in the Defendant’s system, that the trial court erred in admitting the testimony regarding

the syringes, and that the trial court erred in admitting the testimony regarding the

Defendant’s recent use of heroin.

I. Sufficiency of the Evidence

The Defendant contends that there was insufficient evidence supporting the

element of intoxication in his conviction for vehicular homicide by intoxication. We

conclude that, viewing the evidence in the light most favorable to the State, the evidence

is sufficient to support the verdict.

This court must set aside a finding of guilt if the evidence is insufficient to support

the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.

13(e). The question before the appellate court is whether, viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d 363, 368

(Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it may not

substitute its inferences drawn from circumstantial evidence for those drawn by the trier

of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty verdict,

approved by the trial judge, accredits the State’s witnesses and resolves all conflicts in

favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The trier of

fact is entrusted with determinations concerning witness credibility, factual findings, and

the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing the

sufficiency of the evidence, we afford the State the strongest legitimate view of the

evidence and the reasonable inferences that can be drawn from the evidence. State v.

Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the

presumption of innocence and replaces it with a presumption of guilt, and on appeal the

defendant has the burden of illustrating why the evidence is insufficient to support the

verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is

sufficient to support a conviction, and the circumstantial evidence need not exclude every

reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297

(Tenn. 2012). We note that the Defendant challenges the admission of certain evidence,

but “the sufficiency of the convicting evidence must be examined in light of all the

evidence presented to the jury, including that which may have been improperly

admitted.” State v. Gilley, 297 S.W.3d 739, 763 (Tenn. Crim. App. 2008).

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Vehicular homicide is defined as “the reckless killing of another by the operation

of an automobile, airplane, motorboat or other motor vehicle.” T.C.A. § 39-13-213(a).

When vehicular homicide is the proximate result of conduct creating a substantial risk of

death or serious bodily injury to a person, it is a Class C felony. T.C.A. § 39-13-

213(a)(1), (b)(1). When vehicular homicide is the proximate result of the driver’s

intoxication, it is a Class B felony. T.C.A. § 39-13-213(a)(2), (b)(2)(A). Intoxication

under the statute includes drug intoxication and is further defined, by reference to the

DUI statute, to include driving:

[u]nder the influence of any intoxicant, marijuana, controlled substance,

controlled substance analogue, drug, substance affecting the central nervous

system, or combination thereof that impairs the driver’s ability to safely

operate a motor vehicle by depriving the driver of the clearness of mind and

control of oneself that the driver would otherwise possess.

T.C.A. § 55-10-401(1); T.C.A. § 39-13-213(a)(2).

Here, the evidence established that the Defendant’s vehicle struck the victim’s

vehicle in the victim’s lane of traffic at the crest of a hill. Mr. Tibbs testified that, shortly

before causing the collision, the Defendant had been travelling at unsafe speeds in excess

of 100 miles per hour. Mr. Tibbs further stated that he narrowly avoided a collision with

the Defendant when the Defendant attempted to return to Mr. Tibbs’s lane of travel prior

to completely passing his vehicle. Ms. Pardue testified that she saw the Defendant veer

into the oncoming lane when he crested the hill and that the hill obstructed any view of

oncoming traffic. This testimony is sufficient to establish vehicular homicide through

conduct creating a substantial risk of death or serious bodily injury to a person, and the

Defendant does not challenge this conviction.

The Defendant contends that because the State could not establish the quantity of

hydrocodone and amphetamine in his system, the evidence was not sufficient to support

the conviction for vehicular homicide by intoxication. We note parenthetically that the

Defendant is incorrect in implying that the testing proved the drugs were present in

below-therapeutic levels or stating that testing showed the amounts were “insufficient,”

or “negative.”2 Agent Carrell’s testimony was instead simply that the drug test was

positive, meaning that drugs were present in the Defendant’s system. Because the blood

sample’s insufficient size made it impossible for her to fix the numeric quantity, the only

testimony she could offer was that the drugs at issue were present in the Defendant’s

system. She could not state whether the drugs were above or below the lower therapeutic

2

The Defendant is correct that they were “unquantifiable,” in that no numeric quantity could be

assigned to the amounts.

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boundary and could not testify regarding impairment. She also testified that the sample

was not tested for heroin. In sum, she stated that the testing she performed was, per

force, a positive/negative test and that the result was positive for amphetamine and

hydrocodone.

Addressing the sufficiency of the evidence and viewing it in the light most

favorable to the State, we observe that the Defendant’s driving demonstrated signs of

impairment, including passing where prohibited, failure to maintain his lane on two

occasions, veering into the oncoming lane where visibility was obscured by a hill, and

excessive speed. The evidence further established that the Defendant told both medical

personnel and Lieutenant Human that he had not consumed any medication other than his

prescribed oxycodone. However, these statements were belied by the presence of

amphetamine and hydrocodone in his system. Agent Carrell testified regarding the

effects of the drugs, which corresponded with the driving behaviors exhibited by the

Defendant, including excessive risk-taking and poor judgment. The lifeflight report

described the Defendant as lethargic. According to Ms. Arnold, the Defendant

acknowledged using heroin either the day of or the day before the collision, and testing

was not performed to either confirm or refute the presence of heroin in his blood.

Furthermore, the Defendant acted deceptively in instructing his wife to retrieve a bag

from his vehicle under the pretense that it contained papers when it in fact contained

hypodermic needles and tools.

Unlike the statute for a per se DUI violation, the statute at issue did not require the

State to establish the quantity of drugs present in the Defendant’s system, only that he

was under the influence of an intoxicant which impaired his ability to safely operate a

motor vehicle by depriving him of the clearness of mind and control of himself that he

would otherwise possess. See State v. Kevin Allen Fleming, No. E2016-01746-CCA-R3-

CD, 2018 WL 1433503, at *5-6, *26 (Tenn. Crim. App. Mar. 22, 2018), perm. app.

denied (Tenn. July 18, 2018) (concluding that the evidence of intoxication in a vehicular

homicide was sufficient when testing could not quantify the amount of hydrocodone and

cocaine in the defendant’s blood but only give a positive or negative and when his blood

alcohol level was 0.07 percent); State v. Moses, 701 S.W.2d 629, 631 (Tenn. Crim. App.

1985) (evidence was sufficient to support intoxication even absent testing when the

defendant had driven erratically before the accident, the accident took place in the center

of the roadway, and the defendant appeared intoxicated based on his walk, speech, and

belligerent manner, because testing “was but a factor for the jury to consider”); see also

State v. Travis Wilson, No. E2013-00371-CCA-R3-CD, 2014 WL 3817074, at *14 (Tenn.

Crim. App. Aug. 4, 2014) (upholding the conviction when the defendant performed

adequately on field sobriety tests, a TBI agent was able to testify only as to the presence

rather than the quantity of bath salts in the defendant’s system, the defendant’s behavior

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appeared intoxicated, he acknowledged ingesting bath salts, and he had alprazolam in an

amount slightly greater than a therapeutic amount in his system).

This court has previously upheld a finding of intoxication where there was

evidence of the use of an intoxicant and impairment but no evidence of the quantity of the

intoxicant. See State v. Michael James Amble, No. E2016-02495-CCA-R3-CD, 2018 WL

1989632, at *4 (Tenn. Crim. App. Apr. 27, 2018), perm. app. denied (Tenn. Sept. 13,

2018) (officer’s testimony that the defendant smelled of alcohol, that his speech was

slurred, that his eyes were bloodshot, and that he performed poorly on field sobriety tests

was sufficient to support conviction); State v. Johnathan Christopher Carey, No. M2014-

02373-CCA-R3-CD, 2015 WL 8482746, at *11 (Tenn. Crim. App. Dec. 10, 2015) (the

smell of alcohol and the defendant’s erratic driving, slurred speech, and confusion

sufficiently supported the conviction when the defendant intentionally blew improperly

into the breathalyzer). Viewing the evidence in the light most favorable to the State, the

evidence established that the Defendant had consumed heroin, hydrocodone, and

amphetamine, and moreover that he attempted to conceal his consumption of these

substances by not acknowledging their use to medical personnel or law enforcement and

by attempting to secrete the syringes. The Defendant proceeded to drive erratically and

caused a collision by swerving into oncoming traffic. A rational trier of fact could have

inferred that the Defendant’s driving was impaired by the substances he had consumed.

Accordingly, while the proof of intoxication is certainly not overwhelming, we conclude

it is sufficient to uphold the conviction.

II. Expert Testimony Regarding General Effects of Drugs

The Defendant challenges Ms. Carrell’s expert testimony regarding the general

effects of the drugs found in his system and the general effects of heroin. The State

correctly notes that the Defendant failed to object to the testimony and asserts he is not

entitled to plain error relief. We agree that the Defendant has not established that he is

entitled to plain error relief.

At trial, the State presented Ms. Carrell’s qualifications and asked that she be

permitted to give expert testimony. Ms. Carrell holds a master’s degree in chemistry

from Vanderbilt University, where her studies included the effects of different drugs on

the human body. Furthermore, her TBI training included both training regarding

performing drug tests and training regarding the effects of these particular drugs on

human physiognomy. Defense counsel was given the opportunity to question Ms. Carrell

after she affirmed that she was trained regarding the effects of certain drugs on the human

body, but he declined to do so, affirmatively stating he had no objections to her being

qualified as an expert. Neither did he object to her testimony about the general effects of

amphetamine and hydrocodone on the human body, instead lodging only a limited

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objection to the relevance of her testimony regarding the effects of heroin. Accordingly,

this issue is waived. See Tenn. R. App. P. 36(a).

For an error to constitute plain error sufficient to merit relief, the following factors

must be present: (a) the record must clearly establish what occurred in the trial court; (b)

a clear and unequivocal rule of law must have been breached; (c) a substantial right of the

accused must have been adversely affected; (d) the accused did not waive the issue for

tactical reasons; and (e) consideration of the error is necessary to do substantial justice.

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Additionally, “‘the

plain error must be of such a great magnitude that it probably changed the outcome of the

trial.’” State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (quoting Adkisson, 899 S.W.2d

at 642). A court need not consider all the factors if it is clear that the defendant will fail

to establish at least one. State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010). We conclude

that the Defendant has failed to establish that the issue was not waived for tactical

reasons or that the trial court breached a clear and unequivocal rule of law.

In general, “[w]hen a party does not object to the admissibility of evidence, … the

evidence becomes admissible notwithstanding any other Rule of Evidence to the

contrary, and the jury may consider that evidence for its ‘natural probative effects as if it

were in law admissible.’” State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (quoting

State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981)). The rationale behind this rule is

that an objection may allow the opposing party to remedy any issues and make the

evidence competent; otherwise, a party could withhold an objection until appeal, to its

advantage. Welch v. Bd. of Prof’l Responsibility for the Sup. Ct. of Tenn., 193 S.W.3d

457, 464 (Tenn. 2006). Here, absent any objection from the defense, the State did not

present further evidence bolstering Ms. Carrell’s expertise regarding the clinical side

effects of the drugs associated with the Defendant through blood testing and testimony.

Accordingly, there may have been a tactical advantage in delaying a challenge to the

testimony, and it is not clear that this issue was not waived for tactical purposes.

Moreover, the Defendant has not established that admitting the testimony

breached a clear and unequivocal rule of law. A trial court has broad discretion regarding

the admissibility of expert testimony. State v. Ballard, 855 S.W.2d 557, 562 (Tenn.

1993). The appellate court will find an abuse of discretion when the trial court has

applied an incorrect legal standard, reached an illogical conclusion, based its decision on

a clearly erroneous assessment of the evidence, or employed reasoning that caused an

injustice to the party complaining. State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2009).

Under Tennessee Rule of Evidence 702, “[i]f 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,

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experience, training, or education may testify in the form of an opinion or otherwise.”

Evidence requires expert testimony if it concerns a matter that “‘the average juror would

not know, as a matter of course....’” State v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997)

(quoting State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)). The trial court, however, is

required to exclude the expert testimony “if the underlying facts or data indicate a lack of

trustworthiness.” Tenn. R. Evid. 703. The trial court’s gatekeeping function is meant “to

ensure that ‘an expert, whether basing testimony upon professional studies or personal

experience, employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.’” Brown v. Crown Equip.

Corp., 181 S.W.3d 268, 275 (Tenn. 2005) (quoting Kumho Tire Co. v. Carmichael, 526

U.S. 137, 152 (1999)).

The Defendant asserts that the trial court erred in allowing testimony regarding the

general effects of the drugs without explicitly evaluating the following factors:

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

which it has been tested; (2) whether the evidence has been subjected to

peer review or publication; (3) whether a potential rate of error is known;

(4) whether, as formerly required by Frye, the evidence is generally

accepted in the scientific community; and (5) whether the expert’s research

in the field has been conducted independent of litigation.

State v. Ferrell, 277 S.W.3d 372, 378 (Tenn. 2009) (quoting McDaniel v. CSX Transp.,

Inc., 955 S.W.2d 257, 265 (Tenn. 1997)).

We observe that expert testimony must be relevant and reliable, as measured by

any of the McDaniel factors that are applicable, by the expert’s qualifications, and by the

straightforward connection between the expert’s knowledge and the basis for the opinion.

State v. Stevens, 78 S.W.3d 817, 834-35 (Tenn. 2002). Expert testimony may take the

form of scientific theory or methodology, or may simply be “specialized knowledge.” Id.

at 832. Depending on the nature of the testimony, “the McDaniel factors may apply,

subject to the discretion of the trial court, ‘as reasonable measures of the reliability’ of all

expert testimony described in Rule 702.” Id. at 834 (quoting Kumho Tire Co., 526 U.S.

at 152). Accordingly, the trial court was not required to specifically consider each factor;

instead, its role was to ensure that the witness was qualified to give expert testimony as

gauged by any reasonable measures of the reliability of the testimony, including whether

there was a “straightforward connection between the expert’s knowledge and the basis for

the opinion.” Id. at 835. “[T]he court may make a finding of reliability if the expert’s

conclusions are sufficiently straightforward and supported by ‘a rational explanation

which reasonable [persons] could accept as more correct than not correct.’” Id. at 834

(quoting Wood v. Stihl, 705 F.2d 1101, 1107-08 (9th Cir. 1983)). Here, Ms. Carrell

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testified that she had studied the effects of the drugs at issue both through her graduate

coursework at Vanderbilt and as part of her general training at TBI and then testified

regarding the effects of the drugs. The admission of this testimony did not breach a clear

and unequivocal rule of law. See Travis Wilson, 2014 WL 3817074, at *10-11

(concluding that the trial court did not err in permitting one TBI agent to testify to the

general effects of alprazolam when he testified he had studied the effects of drugs on

humans and did not err in permitting another TBI agent to testify regarding the general

stimulant effects of bath salts despite the fact that the data had not been subjected to

controlled dosage study because the substance was too dangerous to ingest). We

conclude that the Defendant is not entitled to plain error relief.

III. Admission of Testimony Regarding Heroin and Syringes

The Defendant next asserts that the admission of Ms. Arnold’s testimony

regarding his use of heroin and the admission of Ms. Hawn’s testimony regarding the

syringes constitutes reversible error. Defense counsel objected to Ms. Arnold’s

testimony at the time but did not raise the issue in his motion for a new trial. He

acknowledges that it must be reviewed under the standard for plain error. We conclude

that the trial court did not abuse its discretion in admitting the testimony and that the

Defendant is not entitled to plain error relief.

The Defendant asserts that the testimony regarding his use of heroin was

unreliable because it was not corroborated and that the prejudicial impact substantially

outweighed the probative value. He also asserts, without further elucidation, that it is not

relevant. Although the trial court excluded certain text messages in which the Defendant

acknowledged selling his pills after the accident, the trial court allowed Ms. Arnold to

testify that, in discussing the collision, the Defendant admitted that he had made a

mistake and also admitted that he had used heroin either on the day of the crash or on the

day before.

Here, the Defendant has not established that a clear and unequivocal rule of law

was breached or that consideration of any error is necessary for substantial justice. See

Adkisson, 899 S.W.2d at 641-42. A trial court’s decisions regarding the admissibility of

evidence are generally reviewed for abuse of discretion. State v. Parker, 350 S.W.3d

883, 896-97 (Tenn. 2011). A trial court abuses its discretion when it applies an incorrect

legal standard, reaches an illogical conclusion, bases its decision on a clearly erroneous

assessment of the evidence, or employs reasoning that causes an injustice to the party

complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015).

In order to be admissible, evidence must first be relevant. Tenn. R. Evid. 402.

Relevant evidence is “evidence having any tendency to make the existence of any fact

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that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Tenn. R. Evid. 401. Even relevant evidence may

be excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice.” Tenn. R. Evid. 403. “‘Prejudice becomes unfair when the primary purpose

of the evidence at issue is to elicit emotions of bias, sympathy, hatred, contempt,

retribution, or horror.’” State v. Young, 196 S.W.3d 85, 106 (Tenn. 2006) (quoting State

v. Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quotation omitted)). Like other

decisions regarding the admissibility of evidence, decisions regarding the relevance of

evidence are reviewed for abuse of discretion. State v. Watson, 227 S.W.3d 622, 649

(Tenn. Crim. App. 2006); State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003).

Ms. Arnold’s testimony that the Defendant acknowledged using heroin on the day

of the collision or the day before the collision has a tendency to make the existence of his

intoxication at the time of the collision more probable. We conclude that the trial court

did not err in finding the testimony relevant. Neither did it abuse its discretion in

balancing the probative and prejudicial value of the testimony. The evidence did not tend

to inflame the jury’s passions or appeal to its biases or sympathies but was probative on

the issue of whether or not the Defendant was intoxicated. Accordingly, we conclude

that it was properly admitted. Furthermore, the Defendant cites no authority for the

proposition that Ms. Arnold’s testimony regarding her conversation with the Defendant

had to be corroborated, and we are aware of none. See, e.g., State v. Bonds, 189 S.W.3d

249, 256 (Tenn. Crim. App. 2005) (rejecting contention that corroboration was required

for victim’s testimony); State v. Ball, 987 S.W.2d 859, 861 (Tenn. Crim. App. 1998).

The Defendant also asserts that the trial court should not have permitted Ms. Hawn

to testify regarding the syringes found in the vehicle. In addition, the Defendant argues

that the testimony and photographs should have been excluded because the State did not

authenticate them or establish a proper chain of custody. The State responds that a chain

of custody was not required and that the evidence was properly admitted.

Tennessee Rule of Evidence 901 discusses the requirement of authentication prior

to admissibility. Evidence should not be admitted if its identity and integrity cannot be

demonstrated by chain of custody or other appropriate means. State v. Scott, 33 S.W.3d

746, 760 (Tenn. 2000). However, the requirement that evidence be authenticated is

limited to tangible evidence. See State v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008)

(noting that a condition precedent to the introduction of tangible evidence is the witness’s

ability to identify it or establish a chain of custody); State v. Jeremy McMillon, No.

E2010-01091-CCA-R3-CD, 2011 WL 4424732, at *8 (Tenn. Crim. App. Sept. 22, 2011)

(“In the case herein, the bullet at issue was never actually entered into evidence ….

Therefore, the bullet itself is not tangible evidence …, and there was no need for

authentication.”). The requirement of authentication “is satisfied by evidence sufficient

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to the court to support a finding by the trier of fact that the matter in question is what its

proponent claims.” Tenn. R. Evid. 901(a). Such evidence can include the testimony of a

witness establishing the identity of the item offered into evidence. Tenn. R. Evid.

901(b)(1). Ms. Hawn was able to authenticate the photographs by identifying them as the

ones she took and stating that they accurately portrayed what she found in the bag after

she retrieved it from the wrecked truck. See State v. Williams, 913 S.W.2d 462, 465

(Tenn. 1996) (photographs were sufficiently authenticated by a witness who testified that

they fairly and accurately portrayed the scene). The Defendant questioned her regarding

the discrepancies in the dates printed on the photographs in order to raise doubts about

her testimony. We conclude that Ms. Hawn’s testimony sufficiently authenticated the

photographs. See Tenn. R. Evid. 901(a), (b)(1). There is no merit to the Defendant’s

argument regarding the chain of custody of the syringes themselves, because they were

not introduced into evidence and the State accordingly did not have to establish a chain of

custody. Cannon, 254 S.W.3d at 296.

The Defendant also challenges the evidence regarding the syringes on the basis of

relevance. The trial court held a jury-out hearing and determined that Ms. Hawn could

give evidence regarding the syringes in the vehicle but could not testify regarding burnt

spoons she found in her garage. Ms. Hawn testified that the Defendant continually and

persistently asked her to retrieve his work bag from the vehicle, ostensibly to obtain the

vehicle’s title. Ms. Hawn had to ask permission from the district attorney and ultimately

accessed the impounded vehicle to retrieve the bag. She discovered that the bag did not

contain any papers related to the vehicle. Instead, it contained the Defendant’s tools and

a bag of opened but unused syringes. Ms. Hawn testified that she photographed the items

immediately, concerned that she had been misled into removing evidence from the truck.

She also, however, disposed of them. The Defendant exhibited signs of impairment

while driving and his blood tested positive for amphetamine and for hydrocodone. He

did not have prescriptions for these medications and had denied taking any medication

other than oxycodone prior to the collision. He did not have a medical condition

requiring the use of syringes. On the other hand, he acknowledged using heroin shortly

before the collision. The Defendant cross-examined Ms. Hawn about the dates on the

photographs which appeared to show that the photographs were taken a year prior to the

collision. He also offered evidence that the syringes belonged to his father, who had been

driving the truck in the days prior to the collision. The presence of the syringes with the

Defendant’s tools inside his work bag tended to make the Defendant’s intoxication more

probable than it would otherwise be, particularly in light of his acknowledgement of

heroin use. Based on the evidence before it, the jury could have inferred that the

Defendant was attempting to conceal evidence related to the intravenous use of drugs.

We also conclude that the trial court did not abuse its discretion in weighing the probative

value against the potential prejudice. Like the testimony about heroin, the testimony

regarding the syringes and the accompanying photographs were not particularly

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inflammatory but had probative value on the question of intoxication. The Defendant is

not entitled to relief.

CONCLUSION

Based on the foregoing reasoning, we affirm the trial court’s judgments.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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