State v. Wayne Leroy Evans

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
February 10, 2000
JANUARY 2000 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. E1999-00384-CCA-R3-CD
)
) Sullivan County
v. )
) Honorable Phyllis H. Miller, Judge
)
WAYNE LEROY EVANS, ) (Driving under the influence of an intoxicant,
) second offense)
)
Appellant. )
For the Appellant: For the Appellee:
Stephen M. Wallace Paul G. Summers
District Public Defender Attorney General of Tennessee
and and
William A. Kennedy R. Stephen Jobe
Assistant Public Defender Assistant Attorney General of Tennessee
Post Office Box 839 425 Fifth Avenue North
Blountville, TN 37617-0839 Nashville, TN 37243
(AT TRIAL)
H. Greeley Wells, Jr.
Julie A. Rice District Attorney General
Post Office Box 426 and
Knoxville, TN 37901-0426 Gregory A. Newman
(ON APPEAL) Assistant District Attorney General
Post Office Box 526
Blountville, TN 37617-0526
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, W ayne Leroy Evans, appeals as of right from his
conviction by a jury in the Sullivan County Criminal Court for driving under the influence
of an intoxicant (DUI), second offense. He was sentenced to eleven months, twenty-
nine days, with one hundred twenty days in the county jail and the remainder to be
served on probation. He was given credit for time served and was immediately
released on probation. The defendant contends that the evidence is insufficient to
support his conviction. We affirm the conviction.
At trial, Nancy Cline testified that on June 19, 1997, she was riding as a
passenger in a friend’s car on John B. Dennis Highway when she noticed a van driving
in the opposite direction. She said she saw the van hit a bridge, bounce, hit the bridge
again, then travel across the median and hit a guard rail. She said she looked into the
van and saw the defendant with blood on his head. She said the rescue squad and
police arrived a short time later.
Kingsport Police Officer Nelson Quillen testified that he arrived at the
scene around 9:00 p.m. He said the defendant had already been taken to Holston
Valley Hospital. He said the sky was clear that day and the asphalt was dry. Officer
Quillen said he went to the hospital and requested that blood be drawn from the
defendant. He said the defendant was unconscious and smelled strongly of alcohol.
Dr. Kenneth Ferslew, a professor of Pharmacology and Toxicology at the
James H. Quillen College of Medicine at East Tennessee State University, testified that
he reviewed the defendant’s toxicology report from Holston Valley Hospital. He said the
defendant’s plasma alcohol level was tested and revealed a level of .24 percent. He
said a plasma alcohol level of .24 percent equals a blood alcohol level of .19 percent.
He said the defendant’s urine drug screen tested positive for opiates and
benzodiazepines.
Rita Lockhart testified that she is the defendant’s ex-wife but that she and
the defendant were married at the time of the offense. She said the defendant was
home intermittently during the day of June 19. She said that she did not see the
defendant consume alcohol that day and that the defendant exhibited no signs of
intoxication. She said that the defendant’s van was in poor condition and that the
wheels had come off a few weeks earlier.
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Greg Alvis, the defendant’s neighbor, testified that on June 19, he saw the
defendant at 9:00 a.m., 2:00 p.m., and 8:30 p.m. He said the defendant never
appeared intoxicated. He said that around 8:30 p.m., he was in his yard when he saw
the defendant walk to his mailbox. Mr. Alvis said that although he was thirty feet from
the defendant and could not smell his breath, the defendant did not appear to be
intoxicated.
The defendant testified that he did not remember much about the day of
the incident other than that he did not drink alcohol that day. He said the left rear wheel
of his van had come off previously, causing brake fluid to spill on the brake shoes. He
said that he washed the brake shoes but that the van “grabbed” a few times after that.
He said he thought this might be what caused the wreck. He said he did not know why
he had a blood alcohol level of .19 percent but that it might be from cough syrup, mouth
wash or eye drops.
Rose Parmer testified that she was working as a nurse at the Holston
Valley Hospital emergency room when the defendant was admitted. She said that
before she draws blood, she uses alcohol to clean the skin. She said that when a “legal
blood” analysis is requested, however, the blood is drawn by laboratory technicians who
use betadine to clean the skin. Ms. Parmer stated that she did not know whether she
or a laboratory technician drew the defendant’s blood but noted that she did not draw
“legal blood.”
Robert Spiegle testified that he is a chemist who owns an analytical
laboratory. He said that one should never use alcohol to cleanse the skin before
performing a blood alcohol test. Upon the foregoing proof, the jury convicted the
defendant of DUI.
The defendant contends that the evidence is insufficient to establish that
he was under the influence of an intoxicant. He argues that (1) the blood alcohol
sample is unreliable because the defendant’s skin may have been cleansed with
alcohol before the test was administered, (2) the state did not show the reliability of the
testing procedures used to determine the defendant’s blood alcohol level, and (3) the
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“physical” indicators of intoxication were insufficient. The state contends that the
evidence is sufficient to support the conviction.
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). This means that 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).
It is unlawful for any person to drive a motor vehicle on the public roads
and highways of the state while under the influence of an intoxicant or narcotic drug.
Tenn. Code Ann. § 55-10-401(a)(1). The evidence shows that the defendant had a
blood alcohol level of .19 percent, tested positive for opiates and benzodiazepines,
smelled of alcohol, and was incoherent after the accident. The defendant argues that
the blood alcohol results are unreliable because of potential contamination; however he
makes no showing that any contamination actually occurred. His contention that his
skin may have been cleansed with alcohol before testing is unsupported by the
evidence. Officer Quillen testified that he requested a “legal blood” test, and Ms.
Parmer testified that although she could not remember who drew the defendant’s blood,
she does not draw blood for “legal blood” tests.
The defendant contends that the state failed to prove that the testing
procedures were reliable. He argues that the state called no witnesses regarding the
drawing and subsequent testing of the blood. However, the record shows that the
defendant stipulated to the admissibility of his hospital records, which included the
results of his blood test. The defendant’s arguments regarding the reliability of the
testing procedures go to the weight and value of the evidence, a determination not for
this court but for the jury. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
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Ohio App. 1987). The same is true for the defendant’s argument that the other indicators of
intoxication, i.e., Officer Quillen’s testimony that the defendant smelled of alcohol and
Ms. Parmer’s testimony that the defendant was incoherent, are insufficient to show
intoxication. We hold that the evidence is sufficient to support the conviction.
In consideration of the foregoing and the record as a whole, we affirm the
judgment of conviction.
________________________________
Joseph M. Tipton, Judge
CONCUR:
_____________________________
James Curwood W itt, Jr., Judge
_____________________________
Norma McGee Ogle, Judge
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