### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 13, 200 5

STA TE OF TEN NES SEE v. VIC TORL. PO WELL

Direc t Appeal from the Circ uit Court for Madison Cou nty

No. 03-590 Roge r A. P age, Judge

No. W2004-02375-C CA-R 3-CD - F iled Dece m ber 13, 2005

Th e de fe nd a nt, Vi c tor

Pow e ll, wa s c on vic te d of tw o c ou nts of

ve hic ula r h omi c ide (b y

re c kle ssn e ss and by intox ication), thre e counts of ve hicular a ssault, and two counts of driving unde r the influenc e. The c onviction for vehic ular homicide by rec klessness was me rg ed into the conviction for vehicular homicide by

intox ication. I n addition, both convictions for driving under the influence wer e mer g ed into the conviction for ve hicular homicide by intox ication. The tria l court i m p osed conse cutive
sentenc es of twe lve y ear s for ve hicular homicide and four y ear s for e ach ve hicu la

r a s s a u lt c onviction. I n this appeal, the de fenda nt asserts that the evidenc e wa s insufficient and that the trial court e rre d by ref using to g rant a

second me ntal evaluation. The judg ments of the trial c ourt are aff irmed.

Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which D AVI D G. H AYES and T H O M A S T. W O O D A LL , J J ., joined.

Clay ton F. May o (at trial) ; and David H. Crichton, Assistant Public Def ender (on appe al), Jackson, Te nn e sse e , f

or the app e lla nt, Vi c tor

L . Po we ll.

Paul G. Sum me rs , A tto rn e y Ge ne ra l & Re po rt e r; Jenn if e r L . B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; Jame s G . Wo od a ll, Di stric t A tto rn e y Ge ne ra l; an d J a so n White , Ass ist a nt Dis tr ic t A tto rn e y Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

On the eve ning of

April 23, 2003, twelve members of the Vilonia United Methodist Church left Vilonia, Arkansas t o attend the I cthus Christian Music Fe stival in Kentucky . The g roup, which

wa s tr a ve lin g in t wo se pa

rate ve hic le s, a

GM C Y uk on a nd a c hu rc h van, sto pp e d b ri e fl y in M e mph is befor e continuing ea s t on Interstate 40. N ear J ackson at mile marker 71, a trailer pulled by

the Yukon, the sec ond in the car avan, was struck by the defe ndant' s vehicle. Marc Townsend, the driver of the Yukon lost control and the vehicle flipped four times be fore coming to r est on the westbound side of the inter stat e. S ev er al passeng ers we re e jected and one later

died. The de fenda nt was-2-

arr ested for

his role in the ac cident. The defe n dant was c harg ed with three counts of vehic ular

a ssa ult fo r the inj urie s to Ma

rc To wn se nd , Ch arles Hi mm ler , a ndSc ott Cor do va . H e wa s a lso char ged wi th ve hic ula

r h omi c ide by

re c kle ssn e ss andby

int oxic a tio n f

or the de a th o f K e ith Townsend a nd with two separate counts of driving unde r the influenc e.

At trial, Charles Coker , a member of the c hurch, te stified that the y outh gr oup had planne d the trip to I cthus for se vera l months. C oker te stified that the other a dults attending the festival we re L isa J ohnson, who was the y outh director, and Marc Townsend a nd that the teena g ers making the trip were J essica, Sar a, and K atie Coker, A ddie W ells, Erica Wy att, Scott Cordova, Kay ley J ohnson, Keith Townsend, and Charles Himmler. C o k er re called that the g roup left the c hurch at approximately

8:00 p.m. on the evening of t he accident. Be cause the music festival wa s a ca mping event, the g roup pac ked all their c amping g ear onto a fourte en-f

oot, si n gl e- ax l e trailer that was

a tta c he d to the Yu ko n. Ac c or din g to C ok e r, Eric a W y att , Add ie Wel ls, a ndthe thr e e Cok e r g ir ls

wer e riding in the churc h van while Ms. J o h n s o n an d the re maining te enag ers we re w ith Marc Townsend in the Yukon.

Coker testified that the g roup st opped approx imately forty minutes prior to t he ac cident for
g as, snac ks, and a restroom bre ak bef ore c ontinuing ea stbound on I nterstate 40. H e stated tha t the Yukon was in the le ad and that the van followe d approximately one hundre d fe et behind. Coker

rec alled that somewhe re ne ar mile mar ker 70, a blue or blac k sedan pa ssed his vehicle in the le ft lane, drifted towar d the Yukon, and the n struck the l eft re ar of the trailer . Coker testified that the

c ar the n " je rk e d b a c k to the le ft

re a l ha rd ." He state d th a t w hen th e car st ruck the tr a ile r, " it j us t knocked it sideway s." Acc ording to Coker, the Yukon t hen swerved and rolled over three or four times before coming to rest in the westbound lane s of the int erstate

. Coker re lated that he dir ecte d his daug hter to use he r ce l l u l ar telephone to ca ll 911, gr abbed a flashlig ht, and found the tra iler, which had c ome unhitched, a s well as Himmler a nd Kay ley J oh n son in the median strip. Coker de sc ri be d bo th Hi mml e r a nd Kay le y John so n a s inj ur e d bu t c on sc iou s. He re c a lle d that Keith Townsend, who w as ly ing in the middle of the roa dway , was c onscio us but not cohere nt. Coker

r e me mb e r e d th a t a f

te r h e ar in g M s

. Jo h n s o n s h o u t th a t s h e c o u ld n o t f in d Co rdova or

Marc Townsend, he found t h e b ad ly injured Mar c Townse nd was tra pped inside the Yukon. Coker

rec alled that Mar c Townsend' s scalp had been e ssentially peele d awa y

from his skull. He stated that Cordova, who wa s some forty fee t away

from the ve hicle, had " massive fa cial injuries."

Cok e r te sti fi e d th a t w he n th e a mbu la nc e arrive d, he dir e c te d E MS w or ke rs to K e ith To wn se ndfi rs t be c a us e he " did n' t thi nk Ma rc ha d a c ha nc e " a nd that de sp ite the e ff orts of the EM S

work e r s , K e ith T o w n s e n d d ie d a t th e s c e n e

. Co k e r s tate d th a t a f

te r b e in g f r e e d f r o m th e vehicle, Marc Townsend wa s transpor t ed b y helicopter to the near est hospital while the others we re transporte d by ambulance

. Coker rec alled that he saw the defe ndant afte r the ac cident but did not
sp e ak to him

.

L isa J ohnson, the y outh director, te stified that Marc Townsend wa s driving the Yukon and that she wa s in the front passe ng er se at. She re called that Keith Townsend wa s just behind her

se a te d n e xt to Ch arlie H imm le r andthat he r d a ug hte r, Kay le y , w a s in the ba c k s e a t w ith Sc ott-3-

Cordova. She re membere d that at m idnight, every one sang "H appy Birthda y " to Ke ith Townsend, ate ice cre am, and then se ttled down to sleep. Ms. J ohnson testified t h at ap proxi mately fiftee n minutes later, she f

elt a " hug e jolt" that f

elt like they

had bee n struck by a "s em i
, " t he tra iler fishtailed, and then Marc Townsend lost control of the vehicle. A ccor ding to Ms. Johnson, t he Yukon flipped at lea st f

our times be fore coming to r est on the other side of the intersta te. She re membere d that Marc Townsend, who ha d been thrown over the console onto her leg
, was very badly injured and that the other oc cupants ha d been thr own from the ve hicle.

Ms. John so n r e c a lle d c ra wl ing ou t of the wi nd ow a ndfi nd ing he r daug hte r an d H imm le r i n the median. She r elated that Keith Townsend, who later died at t he scene, was ly ing in the roadway

a ndthat Co rd ov a , w ho se fa c e ha d b e e n " mut ilate d, " wa s lying c los e r to the ve hic le

. Ac c or din g to L isa J ohnson, she saw the defe ndant and a companion at the sc ene and later sa w the def endant at the ho sp ita l. S he de sc ri be d th e de fe nd a nt, wh o w a s in ha nd c uf fs , a s b e lli g e re nt.

Marc Townsend testified that he has no rec ollection of the acc ident or the month following it. He stated that he re ceive d sever e injuries in the ac cident, including a traumatic hea d injury and a broke n hand. Ac cording to Townsend, the head injury had residual eff ects on his memory , speec h, and movement. He rec alled that he was hospitaliz ed for approximately two months, that he require d phy sical thera

py for f ive wee ks, that he had a perma nent l oss of hearing
, and that he had to learn how
to s pe ak a ndwa lk a g a in a ft e r the a c c ide nt.

Six teen- y ear -old Charlie Himmler testified that he wa s near ly aslee p in the Yukon when he "w as jarr ed very

violently ." H e stated that he re m em b er ed l i t tle about the ac cident but knew he

su ff e re d a c on c us sio n, a

br ok e n c oll ar b on e , a ndnu me ro us la c e ratio ns a ndabr a sio ns

.

Scott Cordova, also six teen y ear s of ag e, testified that he could not reme mber a ny thing a bout the ac cident. He stated that he suf fer ed five broken bone s in his fac e, a " blown orbit," a closed he ad injury
, and two broken arms. Cordova testified that he rec eived home- schooling for the r emainder of the y ear

.

Sc ott Sa nd e rs , p aramedic fo r the Jac ks on Me dic a l Ce nte r E MS, te sti fi e d th a t he a ndhis partne r, Tommy

Parchma n, who wer e the f irst to arrive on the scene , found "de bris scatter ed all over the we stb ou ndla ne s o f I -4 0. " He re c a lle d th a t a by sta nd e r w a ive d th e m ov e r t o e xami ne Ke ith To wn se nd , w ho too k h is l a st br e a th a s the y ro lle d him ov e r on to his ba c k. Un able to r e viv e Ke ith T ownsend, Sande rs and Par chman moved to Ma rc Tow nsend, who wa s trapped inside the Yukon and blee ding f

rom a massive he ad i n

j u ry

. Sanders r elated that they pushed Mar c Townse nd back int o the Yu ko n, pla c e d a

c oll ar a ro un d h is n e c k to sta

bil ize his sp ine , a ndapp lie d d ir e c t pr e ssu re to the " sc a lpi ng " wo un d o n h is h e a d. Sa nd e rs c on fi rm e d that the "ja ws of lif e " we re us e d to fr e e him fr om the ve hic le be fo re he wa s tr a ns po rt e d b y he lic op te r t o th e ho sp ita l.

Dr . Joh n Ca mpb e ll, a ne ur os ur g e on , te sti fi e d th a t Ma rc To wn se ndha d " mul tip le inj ur ie s to his fa c e , a

larg e sc a lp l a c e ratio n .

. . [an d] se ve re fa c ia l sw e lli ng ." A CT scan revea le d " mul tip le fac ial fra cture s" a s well as " bruising on the left fr ontal portion of hi s brain, and

. . . a collec tion of-4-

blood betwee n the cove ring over the brain and the brain itself." Dr. Campbell stated that Townse nd
was g iven a sedative and admitted into the intensive car e unit, whe re he stay ed for nine day s befor e be ing tr a ns fe rr e d to B apti st H os pit a l in L itt le Roc k, Ar ka ns a s.

Dr. Jim mie W. Kee, a plas t i c and re constructive sur g eon who e x amined Cordova in the inte n s i v e ca re unit t estified that Cordova ha d "f airly sever e" abra sions and g oug es over his entire fac e. He stated that "[b]oth of [C ordova' s] ey es wer e complete ly swollen." Acc ording to Dr. Ke e, Cordova suff

ere d a displace d fra cture of hi s nose and a "blow- out" f

rac ture of the left orbit bone, which could a ffe ct his ability"to move his e y e prope rly ."

Dr . D a vidRob e rt s, a n a ssist ant medi c a l e xami ne r w ho e xami ne d th e bo dy of Ke ith Townsend testified that the cause of death was "multiple bl unt trauma to [t he] abdomen and c hest," "se condary

to [ a] motor vehicle ac cident." He state d that no autopsy was pe rformed.

Clau d e Ca in o f th e T e n n e s s e e H ig h w a y Patr o l, w h o w a s th e f ir s t T r o o p e r to arrive on the

sc e ne , te sti fi e d th a t bo th the e a stb ou nda ndwe stb ou ndla ne s o f the int e rs ta te we re blo c ked wi th debris fr om the acc ident. Trooper Cain rec alled that the defenda nt admitted being the driver of the 1993 BMW but was unable to produce a driver l icense or reg istration for the ve hicle. The office r te sti fi e d th a t wh e n he no tic e d a n od or of a lc oh ol o n th e de fe nd a nt andob se rv e d a sma ll, br ow n b ott le of liquor in the floorboa

rd of the driver' s side, he plac ed him in the b ac k s ea t of the patrol c ar. Acc ording to T rooper Cain, the rig ht f ront fende r of the def

endant' s vehicle w as seve rely damag ed, the windshield on the passe ng er' s side was shatter ed, and the driver' s side airba g had deploy ed. He
te sti fi e d th a t w he n he re turne d to his pa tr ol c ar, he no tic e d a str on g od or of a lc oh ol. Tr oo pe r C a in de sc ri be d th e de fe nd a nt a s " arr og a nt" a ndc on fi rm e d th a t he refu sed to su bmi t to a blo odte st. Trooper Cain stated that he plac ed the de fenda nt under a rre st for vehic ular homicide a nd transporte d him to the ho sp ita l so that bl oo d c ou ld b e dr a wn

. Ac c or din g to the of fi c e r, the de fe nd a nt b e c a me comb a ti v e w h e n th e y

r e a c h e d th e h o s p it a l at a p p r o xim a te ly

3 :0 0 a

. m. a n d r e f

u s e d to c oopera te. Restraints wer e used to immobil ize the defendant while blood was drawn. Trooper Cain testified th at h e wi tn ess ed t he d rawi ng, l abel ed t he b lo od , an d, on th e fol lo wi ng day , tran sp ort ed i t t o t he T BI la bo ratory in M e mph is.

Wil ma Ta y l o r, a p h l eb o t o m i s tat J ac k s o n Ge n er al Ho s p i t al
, t es t i fi ed t h at s h e drew blood from the def endant at the reque st of Trooper Cain. She confirme d that she g ave the blood directly to the office r. Robert Mar shall, a fore nsic scientist w ith the TBI
, tested the sample and dete rmined that the defe ndant' s blood alcohol content wa s .1066 %.

Mo lly Gr e e r, a n e mpl oy e e of

Wilh ite ' s T ru c k Sto p, te sti fi e d that the de fe nd a nt, wh o w a s a reg ular c ustomer at t h e t ru ck s t o p , came into the store on the eve ning of the ac cident to pick up a
money order

. She described the defe ndant as loud, a ppearing drunk, and smelling of alc ohol. She testified that the def

endant showe d her hi s d ri v er l icense when he cashe d his chec k and that she fo rg ot t o r e turn it

.-5-

Trooper Ba rry Waldrop, an expert in a ccide nt r econstruc tion, testified that he took seve ral photogr aphs of the sc ene and marke d the ar ea w ith orang e fluore scent pa int so that he could return during the day to take mea surements. He rec alled that the Yukon w as seve rely damag ed and that the defe ndant' s BMW had dama g e to t h e rig ht front fe nder a rea . Trooper

Waldrop stated that he observe d a " skid mark emanating f rom the rig ht front tire [of the B MW] that l ed b ac k wa rds back do wn the e a stb ou ndla ne " a nd a g ou g e mark c a us e d b y

the de fl a te d ti re . H e te sti fi e d th a t he wa s a ble to f indthe " c omm on po int " wh e re the tw o v e hic le s c oll ide d, wh ic h w a s in the e a stb ou ndla ne s. Troope r Waldrop determined that the distance from the c ommon point t o the location whe re the BMW came to rest was more than f i v e h u n dred f

eet. Tr ooper Waldrop, who w ent to the hospital wher e the defe ndant and the vic tims had been take n, testified that he took photog raphs of Cordova and Himmler but wa s unable to photog raph Ma rc Tow nsend due t o t h e ex t en t of his injuries. He

s tated that whe n he attempted to photog raph the defe ndant, the def endant " lashed out" at him and "be came phy sical and started fig hting, twisting , turning his head, . . . try ing to . . . ke ep his fac e fr om being photogr aphed." Acc ording to Troop er W al d rop, the odor of alcohol in the room whe re the de fe nd a nt w a s b e ing he ld w a s " ve ry pu ng e nt. " He de sc ri be d th e de fe nd a nt' s d e me a no r a s " e xtre me ly loud and boisterous" and remembere d the defendant "scr eaming that his rights we re be ing violate d, his constituti onal rig hts, his civil rights wer e being violated."

Trooper Waldrop, who returned to the sce ne of the acc ident wi t h T rooper Max Anderson in or der to c ontinue his inve stigation, testified that he took me asure ments, cre ated a topog raphic al
map of the scene , and then went to the wre cker y ard to e x amine the two vehicles. Trooper Waldrop stated that he discovere d a 50 milli liter bottle of Godiva Cappucc ino liquor and an e mpty bottle of Sky e B lue Malt L iquor in the def endant' s BMW. He testified that Marc T ownsend' s wife, De bbie,
g ave him permission t o remove the airba g module from the Yukon t o as s i s t in the investigation. Trooper Waldrop, who used a c omputer prog ram fr om the manufa cture r of the module to download the inf orma tio n, state d th a t a lth ou g h th e a ir ba g on the Yu ko n d id n ot d e ploy du ri ng the a c c ide nt, "the re w as a se vere enoug h jolt, [ that] i t woke the module up and it started storing data." He r elated that the data f

rom the module indicate d that during the five seconds befor e the cra sh, the Yukon wa s tr a ve lin g a t a spe e d of sixty -thr e e mil e s p e r h ou r andthat Ma rc To wn se ndwa s w e ari ng his se a tbe lt.

Trooper Waldrop testified that afte r examining a ll of the information he ha d obtained during his in v e stigation, he conclude d that the post-impact spee d of the de fenda nt's ve hicle wa s seventy -one miles per hour. H e also determined that the point of impact betwee n the def endant' s vehicle a nd the Yukon' s trailer oc curr ed in the rig ht la ne of the eastbound side of the inter state. Troope r Waldrop

wa s a ble to a sc e rt a in that th e rp m sp e e d o f the Yu ko n ju st b e fo re the a c c ide nt w a s c on sis te nt w ith the vehicle being on cruise control. He explained that be cause the post-impact speed of the Yukon

was seve nty -one miles per hour, he w as able to determine tha t the defe ndant' s vehicle w ould have had to have been tr aveling at least e ighty -four miles per hour at the time of impact i n order to have incre ased the speed of the Yukon by eig ht miles per hour. I t was Troope r Waldrop' s opinion that the defe ndant' s vehicle struc k the Yukon as the Yukon trave led in its own lane.

Dr. Ke nneth E. F erslew , a for ensic toxi cologi s t an d an expert in tox icolog y and alc ohol

conce ntration, testified that whe n alcohol is inge sted, it follows the "body water " into all the tissues-6-

and eventua lly crosse s the blood br ain barrier. Acc ording to D r. Fe rslew, wh en t h e c ross-over

occur s, the body

identifies the alc ohol as a for eig n substance and immediately beg ins the proce ss of

e l i m inatio n b y

e xha lin g , me ta

bo lizin g , a ndurinatin g . D r. F e rs le w e xpla ine d th a t th e e lim inatio n r a te of alc ohol is "17 milligra ms per dec iliter from our blood per hour." Acc ording to Dr. Ferslew , the defe ndant' s blood alcohol conc entration at the t ime of t he crash was .145 %. He testified that even if the defendant consumed the alcoholic bever ag es t hat were found in his car afte r the a ccide nt, that

wo u l d n o th av e e x p l ai n ed a b l o o d al co h o l co n ce n tra t i o n am o u n to f . 1 0 6 6 % a tt h e t i m e o f t es t i n g.

Dr . F e rs le w t est if

ied that a t a

blo oda lc oh ol c on c e ntr a tio n o f . 14 5% , th e de fe nd a nt w ou ld have de monstrated a loss of c oordination, a loss of hand-ey e control, a loss of sensibiliti es, a loss of

a tte nti on sp a n, a nda n a lte ratio n of his jud g me nt. I t w a s h is o pin ion that th e de fe nd a nt' s a bil ity to operate a motor vehicle w ould have be en impaire d. Dr. F erslew stated, howe ver, that he could not de te rm ine wi th c e rt a int y

the pr e c ise de g re e of

the de fe nd a nt' s impa ir me nt.

T h e d e f e n d a n t t e s t i f

i e d t h a ti n t h e d a ys p r i o r

t o t h e a c c i d e n th e h a d b e e n i n M o n t g o m e r y, Alabama , and had r eturne d to the west Tenne ssee are a for his c ousin's we dding. H e stated tha t after driving in from Alabama
, he rested at his g randmother ' s house in Humboldt. The def endant c laimed that on the af

ternoon be fore the ac cident, he ha d picked up his cous i n , J arvis Ty son, and re turned to his g randmother ' s house t o "c ounsel" Ty son. He contended that when he discovere d that Ty son had broug ht liquor with him , he poured out the l iquor and tol d Ty son he would have to leave. In a bizarre a ccount of

the eve nts leading to the acc ident, the def endant claimed that he plac ed Ty son under " citizen's a

rre st" be cause Ty son was wa nted by the police. The defe ndant, who asse rted that he was a mi li ta

r y p o li c e o f

f ic e r , e xp lain e d th a t h e in it ia ll y tu r n e d T y s o n in to la w e n f o r c ement office rs at the Rama da I nn befor e eve ntually deciding to handle the matter himself. He c laimed that the airba g on his BMW deploy ed wh en T y s o n tried to steal his ca r while they

wer e stopped a t Wil hite' s Truck Stop and the defe n d an t "sw itch[ed] on" his " device ." H e testified that he asked a

m ec h an i c a tW i l h i t e's t o re p l ac e t h e a i rb ag.

Th e de fe nd a nt d e nie d a ny inv olv e me nt i n th e a c c ide nt andc la imed th at bec a us e of his medical training
, he was prese nt at the scene to he lp the acc ident victims. He explained that he and his vehicle we re taken ther e by a tow truck driver beca

use "the y " wer e redoing the tanks and ne eded to clear the truck stop of all vehic les. The de fenda nt claimed that ther e wa s a trac tor-tra iler ac cident on the ra mp leading to Wil hite' s Truck Stop and that the t ruck "ha d seepe d out fumes." He insisted that t he to w truc k d ri ve r t rans po rt e d h im a ndhis c ar t o th e sc e ne of the Yu ko n a c c ide nt b e c a us e "[t]he onlything [his] car

had to do was stay

elevated to wher e the . . . a ir compensation, y ou know, could t urn around and surmis e it self to wher e it could, . . . g et all the combustion and bubbles f rom out of the tire."

During cross-e x amination, the def endant a sserted that the rea son his blood test was positive for a lco h ol was bec ause the phlebotomist "turned a round and stuck the thing up [his] butt." He contende d that his car w as dama g ed in the tra ctor-tr ailer a ccide nt on the ramp near W ilhite's Tr uck Stop.-7- I I n this appeal, the d efendant first asse rts that the evidenc e wa s insufficient to support the convictions. He contends that there was insufficient proof that he was impaired a t the time of the

acc ident. On appe al, of c ourse, the state is entitled to the s trong est leg itimate view of the evidenc e and all re asonable infere nces which might be draw n there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978) . The credibility of t he witnesses, the weight to be given their testimony , and the

rec onciliation of conflicts in the proof are matters entrusted to the jury as the trier of fac t. B yrg e v. Sta te, 57 5 S .W .2d 2 92 , 2 95 (T e nn . Crim. Ap p. 19 78 ). Whe n th e su ff ic ie nc y of the e vid e nc e is

c ha lle ng e d, the re le va nt q ue sti on is w he the r, a ft e r r e vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the state, any

rational trier

of fa ct could have found the e ssential elements of the crime bey ond a

rea so n able doubt. Te nn. R. App. P. 13(e); State v. Will iams, 657 S.W .2d 405, 410 (Tenn. 1983)

. B e c a us e a ve rd ic t of

g uil t r e mov e s th e pr e su mpt ionof inn oc e nc e a ndraise s a pr e su mpt ion of g uil t, the c on vic te d c ri min a l de fe nd a nt b e ars the bu rd e n o f s ho wi ng that th e e vid e nc e wa s le g a lly insufficient to sustain a g uiltyverdic t. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

"V ehicular

homicide is the rec kless killing of another by the operation of an automobile . . . [a] s the proxim ate r esult of the drive r' s intox ication as set f orth in § 55-10-401." Tenn. Code Ann. § 39-13-213( a)( 2) (2003). "A person commits ve hicular assault who, as the proxi mate result of the person' s intox ication as set forth in § 55-10-401, re cklessly cause s serious bodily

injury to another person by the oper ation of a motor ve hicle." Tenn. Code Ann. § 39- 13-106(a ) (2003)

.

I n th is i ns ta nc e , th e e vid e nc e e sta bli sh e d th a t the B MW drive n b y the de fe nd a nt dri ft e d in to the lane of trave l of the Yukon and cra shed into the trailer. The trailer fish-tailed, caus i n g Marc Townsend t o lose control of the vehicle. Witnesses testified that the ve hicle flipped at least four tim e s b e fo re c omi ng to r e st on the op po sit e sid e of the int e rs ta te . K e ith To wn se nddie d a s a re su lt of his inj urie s. Ma

rc To wn se ndwa s se ve re ly inj ur e d, su ff

eri ng pe rm a ne nt p ro ble ms w ith his hearing, spe ech, and memory

. Himmler and C ordova, who were ejec ted from the ve hicle, re quired leng thy hospital stay s and experienc ed the c ontinuing ef fec ts of t h ei r i njuries. It was Troope r Waldrop' s opinion that the defendant's ve hicl e wa s trave ling at least eig hty -four miles per hour at the time of the cra sh, some twenty -four miles over the posted spe ed limit. The airbag module of the Yukon indicated that it was traveling a stea dy six ty -three miles per hour at impact. There was proof that the def

endant smelled of

alcohol and was bellige rent afte r the acc ident. A witness who had se en the def endant shortly

befor e the ac ci dent said he a ppear ed to be dr

unk. His blood alcohol

conce ntration at the time of testing was .1066%, above the statutory threshold, and a s high a s .145% at the time of t h e ac ci d en t

. An expert conc luded that a blood alc ohol conce ntration at that leve l

wo uldc a us e a

los s o f c oo rd inatio n, dif

fi c ult y with han d a nde y e c on tr ol, a ndimp a ir e d ju dg me nt. Although the defe ndant claimed that he did not c onsume any alcohol on the evening of the a ccide nt and conte nded that he was not e ven involved in the acc ident, the jury was fr ee to r ejec t the theory of fe re d b y the de fe nd a nt and fu lly a c c re dit the e vid e nc e of fe re d by the state

. Se e Sta te v. Sum me ra ll, 92 6 S. W.2 d 2 72 , 2 75 (T e nn . Crim. Ap p. 19 95 ). Th e jury wa s p ro pe rl y

ins truct ed on pr oximate

ca u s e. Under

these c ircumstance s, it is our view that the evidenc e wa s sufficient to support the

c on vic tio ns fo r v e hic ula

r h omi c ide a ndve hic ula

r a ssa ult

.-8- II The de fenda nt also co n t en ds that the trial court erre d by ref using to g rant his re quest for a second me ntal evaluation. The state submits that because the def endant ha d alre ady

been de clar ed competent, the trial court did not err by ref using to g rant a

second me ntal evaluation.

I n Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court rule d that a def endant is c o mp e te n t if h e h a s s u f f ic ie n t ab il it y to c o n s u lt w ith h is la w y e r w ith a r e a s o n able de g ree of rational unde rstanding and if he has a r easona ble and f actua l understanding of the proc eeding s. I d. at 402. The D usky

standard ha s been adopted in T ennesse e. See State v. B lack, 815 S.W.2d 166, 174 (Tenn. 1991); State v. Be nton, 759 S.W .2d 427, 429 (Tenn. Crim. App. 1988) ; Macke y v. State, 537 S.W .2d 704, 707 (Tenn. Crim. App. 1975) . I n Macke y , this court determined that the def endant

mu st be abl e to u nd e rs ta ndthe natur e a ndob je c t of the pr oc e e din g s a g a ins t hi m, mus t be able to consult with counsel, and must be a ble to assist in the preparation of his defe nse. 537 S.W.2d at 707.

T h e b u r d e n i s o n t h e d e f e n d a n tt o e s t ab l i s h h i s i n c o m p e t e n c y t o s t a n d t r i a l b y a preponde ranc e of the evidenc e. State v. Oody
, 823 S.W .2d 554, 559 (Tenn. Crim. App. 1991). The determination of competenc y is within the s ound discretion of the t rial court. State v. Caug hron, 855 S.W .2d 526, 538 (Tenn. 1993) ; State v. Howar d, 926 S.W .2d 579 (Tenn. Crim. App. 1996) . Where the tr ia l ju dg e faile d to c on du c t a n e vid e nti ary inq uiry , the qu e sti on on app e a l is wh e the r h e sh ou ld have e x perie nced doubt with respect to the defendant' s competenc y to stand trial. Be rndt v. State, 733 S.W .2d 119,122 (Tenn. Crim. App. 1987)

.

He re , t h e t ri al co u rt gra n t ed t h e d ef en d an t 's fi rs tre q u es t fo r a m en t al ev al u at i o n

. Al t h o u gh the re port of the f

orensic e valuation was not made a part of t he record for thi s appea l, the t rial court ref err ed to the conc lusions reac hed in the re port at the he aring on the motion for a se cond eva luation. The doc tor who per formed the evaluation appare ntly determined that the defe ndant was c ompetent to stand trial. The trial judg e, satisfied w ith the conclusions in the initial re p o rt, ruled that the defe ndant was competent and had failed to establish any basis for a second e valuation. At trial, the defe ndant expressed a n understanding of t he charg es aga inst him and an aw are ness that he wa s not require d to testify

at trial. When asked by

the trial court if he wa nted to testify on his own beha lf, the def endant indicated his desire to do so because it was his opinion that his testi mony would not make things any

worse. While his answer s were often lac king in log ic, nothing indicated that the de fe nd a nt d id n ot h a ve a re a so na ble a ndfa c tua l und ers tan di ng of thepr oc e e din g s. B e c a us e it

app e ars that th e de fe nd a nt u nd e rs too d th e " natur e a ndob je c t of the pr oc e e din g s" a nd c ou ld a ssi st i n the pre paration of a def

ense, it is our vi ew that the t rial court did not err by ref using to g rant a

second mental eva luation.

Acc ording ly , the judg ments of the trial c ourt areaff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE