State v. Norton
| Decision Date | 20 July 1999 |
| Docket Number | 9707-CR-00270 |
| Parties | STATE OF TENNESSEE, Appellee, vs. ALBERT L. NORTON, Appellant. C.C.A.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE MAY 1999 SESSION OPINION FILED: |
| Court | Tennessee Court of Criminal Appeals |
Blount County
(DUI 2nd Offense)
The defendant, Albert L. Norton, appeals his Blount County Circuit Court jury conviction of second-offense DUI, a class A misdemeanor. He does not challenge his jail sentence of eleven months, 29 days at 90 percent, to be probated after serving 90 days, a $2,500 fine, and a two-year license revocation. Rather, he challenges his conviction by raising the following issues:
1. The evidence was insufficient to support his conviction.
2. The trial court erred by allowing evidence of the defendant's blood test result despite the failure to establish a proper chain of custody of the blood sample.
3. The trial court erred in allowing evidence of drugs being present in the defendant's blood sample.
4. The trial court erred by admitting testimony that the defendant failed to pass a horizontal gaze nystagmus field sobriety test.
After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.
PAUL G. SUMMERS, Attorney General & Reporter, ERIK W. DAAB, Assistant Attorney General, Criminal Justice Division, 425 Fifth Avenue North, Nashville, TN 37243
PHILIP MORTON, Asst. District Attorney General, Blount County Courthouse, 363 Court Street, Maryville, TN 37804
AFFIRMED
Sergeant Mark Taylor of the Maryville Police Department arrested the defendant for DUI on March 7, 1995, after watching the defendant swerve his car across the street centerline on two or three occasions and make a wide left turn during which he appeared to strike a curb. Taylor stopped the defendant, who had blood-shot eyes, smelled of alcohol, fumbled with his wallet when trying to extract his drivers license, and staggered upon getting out of the car. The defendant told Taylor he had a couple of beers earlier in the day and that he was on three types of medication, including a pain medicine and a muscle relaxant. Taylor administered three field sobriety tests -- the horizontal gaze nystagmus (HGN) test, the one-leg stand, and the walk and turn test. After explaining that the HGN test involved an assessment of the effects of intoxicants on the muscles in the eyes, Taylor testified that the defendant tested "positive" on all six "clues" for which the testing officer looks. On the one-leg stand, the defendant dropped his foot a few times while counting and finally put his foot down and said he could not finish the test. During the walk and turn test, he stepped off the line twice, used his arms to keep his balance, missed connecting heel to toe three times, and incorrectly executed the turn.
Michael J. Lyttle, a forensic scientist with the Tennessee Bureau of Investigation (TBI), analyzed the defendant's blood sample for the presence of drugs. He found the presence of 1.1 micrograms per milliliter of carisoprodol, a muscle relaxant, and testified that the therapeutic range1 for carisoprodol is ten to 40 micrograms per milliliter. He found the presence of 9.2 micrograms per milliliter of meprobamate, which is a metabolite of carisoprodol. The therapeutic range for meprobamate is 3.0 to 26 micrograms per milliliter. He found the presence of dihydrocodeinone, a narcotic analgesic, for which the therapeutic range is .002 to .024 micrograms per milliliter. The concentration of dihydrocodeinone was below the level of .1 micrograms per milliliter, and by policy, the TBI lab does not "quantitate" concentrations below this level. It simply refers to the result as being "less than" .1 micrograms per milliliter. Nevertheless, Lyttle assessed the dihydrocodeinone level in order to determine if it exceeded the .1 level and found the level to be .05, which is less than .1 but about twice .024, the upper limit of the therapeutic range. Lyttle testified that all of these drugs are depressants that in general have a sedative effect.2
Jerry Main, another forensic specialist with the TBI, testified that he conducted the analysis of the defendant's blood sample for the purpose of ascertaining the presence of alcohol. Specifically, he found an alcohol concentration of .006 percent. The TBI considers results of .01 percent or less to be "negative."
At a jury-out hearing to determine the nature of her expertise and the scope of her testimony, Jean Ezell, the director of the pharmacy at Blount Memorial Hospital, testified that drug level data could not be used to determine the actual effect that a given drug level would have on a specific individual, but that she could opine generally as to the effects of drug dosages. She reviewed the TBI drug screen report and opined that the meprobamate and dihydrocodeinone were at levels significant enough to cause some impairment, especially when one considers the likelihood of an "additive" or "synergistic" effect of combining the two drugs. Before the jury, Ezell confirmed that the three substances mentioned by Lyttle were depressants and that if she were filling prescriptions for these prescription-only drugs, she would affix labels warning the consumer of the effects of sedation and dizziness. The dihydrocodeinone was present in the defendant's blood sample at a level double the "normal peak." The carisoprodol was present at a level below the therapeutic range, but Ezell explained that it metabolizes into meprobamate and that, when drugs metabolize into other active drugs such as meprobamate, the metabolite itself may have more effect than the "original" drug. Furthermore, she testified that the TBI report revealed the presence of cocaine,3 a central nervous system stimulant, in the defendant's blood sample at a level less than .1 micrograms per milliliter. She explained generally the increased potency that could be expected because of the additive and synergistic effects of combining the drugs found in the defendant's blood, but she stressed that she could not opine as to the specific effect of any of these drugs on the defendant. Because there are Consequently, she admitted, it would be possible that the defendant would be able to operate a motor vehicle, despite the drugs revealed by the drug screen.
The defendant did not testify. The only proof offered by the defendant was the testimony of Thomas Ned Lee, Jr. The defendant visited Lee on the evening of March 7, 1995. Lee was working on the bathroom in his house, and the defendant was with him in that confined space. Lee did not smell alcohol on the defendant and did not detect the defendant acting "funny." He said the defendant rarely drank, and on that evening he appeared normal.
Based upon the evidence as summarized above, the jury convicted the defendant of DUI.
It is well established that a jury verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and resolves all conflicts in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978).
Moreover, a verdict against the defendant removes the presumption of innocence and raises a presumption of guilt on appeal, State v. Grace, 493 S.W. 2d 474, 476 (Tenn. 1973); Anglin v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App. 1977), which the defendant has the burden of overcoming. State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
Most significantly, where the sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, after reviewing 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, 99 S.Ct. 2781, 2782 (1979); Tenn R. App. P. 13. See also, State v. Williams, 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings based on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842 (Tenn. Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict one of a crime. State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).
In reviewing the sufficiency of the convicting evidence, we consider all of the evidence, including any evidence which we may conclude was inadmissible. State v Bernard T. Anderson, No. 02C01-9710-CR-00394, slip op. at 22 (Tenn. Crim. App., Jackson, Apr. 23, 1999); State v. Longstreet, 619 S.W. 2d 97, 100-01 (Tenn. 1981).
Driving under the influence of a drug or intoxicant is proscribed by Tennessee Code Annotated section 55-10-401 which provides:
It is unlawful for any person to drive . . . any . . . motor driven vehicle on any of the public roads and highways . . . or streets . . . while . . . [u]nder the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system. Tenn. Code Tenn. § 50-10-401(a) (1998). It is no defense to a charge of driving while under the influence that the offender is a lawful user of the active drugs. Tenn. Code Ann. § 50-10-402 (1998).
The evidence in the light most favorable to the state shows that the defendant drove erratically, had blood-shot eyes, smelled of alcohol, fumbled with his wallet, staggered, and failed to pass three field sobriety tests. He admitted to...
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