IN THE COURT OF CRIMINAL APPEALS OF TENNESSEEAT KNOXVILLEJanuary 25, 2005 SessionSTATE OF TENNESSEE v. CHARLES DRAKE Appeal from the Criminal Court for Knox CountyNo. 72795 Ray L. Jenkins, JudgeNo. E2004-00247-CCA-R3-CD - Filed June 6, 2005The defendant, Charles Drake, stands convicted of aggravated assault with a deadly weapon andDUI. For the aggravated assault conviction, the trial court sentenced the defendant to four years,split confinement with supervised probation after service of six months’ confinement. For the DUIconviction, the trial court imposed a sentence of 11 months and 29 days with a release eligibility at75 percent. On appeal, the defendant asserts (1) that the evidence is insufficient to support hisconviction of aggravated assault; (2) that the trial court committed reversible error in prohibiting thedefense from presenting to the jury an animation of the automobile collision giving rise to thecharges against the defendant; (3) that the trial court committed reversible error in admitting theresults of a blood toxicology test; and (4) that his sentence is excessive. After thoroughly reviewingthe record and applicable authorities, we find sufficient evidence to support the conviction, no errorin the admission or exclusion of evidence at trial, and appropriate sentencing. We, therefore, affirmthe convictions and sentences.Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed.JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,and NORMA MCGEE OGLE, J., joined.Patrick T. Phillips, Knoxville, Tennessee; and Tommy Hindman, Knoxville, Tennessee, for theAppellant, Charles Drake.Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District AttorneyGeneral, for the Appellee, State of Tennessee.OPINION-2-A tragic two-car automobile accident gives rise to this appeal. The head-oncollision occurred shortly after 1:30 a.m. on August 17, 2000, in Knox County. The accidentscene was on Pleasant Ridge Road, near the intersection of Deerfield Subdivision. PatriciaBurke, who was driving a 1989 Chevrolet Astro minivan, died as a result of the accident. Thepassenger in Ms. Burke’s vehicle, Gordon Wright, sustained several cracked ribs, torn ligamentson his right shoulder, a broken nose and finger, and multiple lacerations; this 63-year-old victimwas hospitalized for 18 days and had been unable to work since the accident. The 21-year-olddefendant was operating a Toyota pickup truck, and he sustained internal injuries, facial cutsrequiring suturing, and a broken collar bone and nose for which he was hospitalized seven toeights days.The defendant, who testified at trial, admitted that he had been drinking earlier inthe evening, and he agreed that tests showed his blood alcohol level to be .19 percent. Thetheory of defense was that the defendant’s intoxication did not cause the wreck; rather, at thepoint of collision, both vehicles were in the middle of the road and not in their designated lanesof traffic. The defense called two expert witnesses to corroborate the theory of defense. FBISpecial Agent David Goldkoph, who was an officer and accident investigator with the KnoxvillePolice Department at the time of the accident, opined that each vehicle was in the wrong lane oftraffic and that the point of impact was approximately the center of the roadway. Motor vehicleaccident reconstructionist, Bobby Jones, who serves as a part-time Assistant Chief Deputy withthe Knox County Sheriff’s Department, independently verified Agent Goldkoph’s conclusionsand so testified.The defendant went to trial facing seven charges: vehicular homicide byintoxication involving Ms. Burke’s death (Count 1); vehicular homicide by reckless conductinvolving Ms. Burke’s death (Count 2); vehicular assault involving Mr. Wright (Count 3);aggravated assault causing bodily injury to Mr. Wright (Count 4); aggravated assault by deadlyweapon against Mr. Wright (Count 5); DUI per se (Count 6); and DUI by intoxication (Count 7).The jury returned not-guilty verdicts on Counts 1 and 2, which charged vehicular homicide ofMs. Burke, and it found the defendant guilty of the remaining offenses. The trial court mergedthe convictions on Counts 3, 4, and 5 into a single conviction count for Class D aggravatedassault and sentenced the defendant to a term of four years as a standard, Range I offender. OnCounts 6 and 7, the court ordered service of 11 months and 29 days at 75 percent. As to themerged aggravated assault sentence, the court imposed split confinement, with six monthsservice in custody and the remainder of the term on probation.At the outset, we note that our appellate review has been facilitated greatly by theparties’ skillful and professional advocacy at trial and by the thoughtful presentations andarguments on appeal.I. Sufficiency of the Evidence-3-Inasmuch as the defendant assails the sufficiency of the convicting evidence, webegin with an overview of the testimony and evidence at trial, taken in the light most favorableto the state. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). .The injured passenger, Gordon Wright, was the state’s lead witness. Mr. Wrightexplained that he and the deceased driver, Ms. Burke, had been living together for six years.They resided at 4713 Miller Road, approximately one mile from Pleasant Ridge Road. Mr.Wright had never been licensed to drive because of eye problems related to corneal implants thathe received when he was much younger. As a result, Mr. Wright depended on Ms. Burke toprovide transportation to and from his place of employment at Kerns Bakery.Mr. Wright testified that he worked the early morning shift, and on the day of theaccident, he and Ms. Burke left their residence around 1:00 a.m. Along the way, the pair stoppedat a convenience store, the Bread Box, on Pleasant Ridge Road, where Mr. Wright bought a packof cigarettes. Mr. Wright estimated that the Bread Box was a quarter of a mile from the accidentscene. After the stop, they re-entered Pleasant Ridge Road and encountered no other traffic atthe time. Mr. Wright said that he saw a light as they approached the intersection at DeerfieldSubdivision, where the road narrowed to two lanes. Mr. Wright gave varying descriptions of thelight. On direct examination, he maintained that he
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