IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE V. JOHN R. FARNER, JR.

Direct Appeal from the Criminal Court for Sullivan County

No. S40,003 R. Jerry Beck, Judge

No. E1999-00491-CCA-R3-CD - Decided June 30, 2000

The defendant, John R Farner, Jr., appeals his convictions by a jury for two counts of criminally

negligent homicide, two counts of reckless endangerment with a deadly weapon, drag racing, and

leaving the scene of an accident involving death or injury for which he received an effective eightyear sentence. The defendant contends that the presentment did not put him on notice that he would

be defending against a theory of criminal responsibility, that he is not criminally responsible for the

actions of the deceased victims, that the officer was not qualified to testify as an accident

reconstruction expert, that the computer-generated videotape of the accident was inadmissible, that

the trial court should not have instructed the jury on flight, and that the trial court erred in

sentencing. We hold that the presentment sufficiently notified the defendant of the charges and that

the defendant was directly responsible for the death of the other driver. We conclude that the

defendant was properly held criminally responsible for the death of the passenger and the other

victims’ injuries, but we merge the two reckless endangerment convictions pursuant to the Double

Jeopardy Clause. We hold that the officer was qualified to testify as an expert in accident

reconstruction. We hold that the computer-generated videotape illustrating the officer’s opinion is

inadmissible but that its admission was harmless error. We hold that the evidence supports the

instruction on flight and that the length and manner of service of the sentences are proper.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part,

Modified in Part 

TIPTON, J., delivered the opinion of the court, in which WADE, P.J., and OGLE, J., joined.

R. Wayne Culbertson and Richard A. Spivey, Kingsport, Tennessee, for the appellant, John R.

Farner, Jr.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION
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The defendant, John R. Farner, Jr., appeals as of right from his convictions by a jury in the

Sullivan County Criminal Court of two counts of criminally negligent homicide, a Class E felony;

two counts of reckless endangerment with a deadly weapon, a Class E felony; drag racing, a Class

B misdemeanor; and leaving the scene of an accident involving death or injury, a Class A

misdemeanor. The trial court sentenced the defendant as a Range I, standard offender to consecutive

two-year sentences for each of the felonies, to a concurrent six-month sentence for drag racing, and

to a concurrent eleven months and twenty-nine days for leaving the scene. The defendant received

a three-thousand-dollar fine for each of the felonies and a five-hundred-dollar fine for each of the

misdemeanors for a total of thirteen thousand dollars. He contends that :

(1) the presentment did not give notice that he would be required to defend against

a theory of criminal responsibility;

(2) he is not criminally responsible for the deaths of Landon Baker and Chris

Bostrum or for the injuries sustained by Teresa Gilliam and Priscilla Redwine

because Mr. Baker’s car caused the accident;

(3) Officer Dale Farmer was not qualified to testify as an expert in accident

reconstruction;

(4) the computer-generated visualization videotape was not admissible because it was

based upon information, opinions and assumptions by Officer Farmer and upon

information not in the record;

(5) the trial court should not have instructed the jury on flight based upon the

defendant’s absence from the accident scene; and

(6) the trial court erred in sentencing by improperly applying enhancement factors

(2) and (6), imposing consecutive sentences, and denying a sentence alternative to

confinement. 

We affirm the judgments of conviction for the two counts of criminally negligent homicide and the

single counts of drag racing and leaving the scene of an accident involving death or injury. We

merge the two counts of felony reckless endangerment into a single judgment of conviction and

modify the effective sentence accordingly to a total of six-years confinement and ten thousand

dollars in fines.

The defendant’s convictions arise from a drag race between the defendant’s red Camaro

Supersport and a white Mitsubishi 3000 GT driven by Landon Baker. Mr. Baker lost control of his

Mitsubishi in a curve and collided with Ms. Teresa Gilliam’s gold Chrysler Town and Country 

Minivan and Ms. Priscilla Redwine’s green Volvo. Ms. Gilliam and Ms. Redwine were injured, and

Mr. Baker and his passenger, Christopher Bostrum, died as a result of the collision.
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At trial, Holly Denell Harris testified as follows: On the evening of March 20, 1997, she was

in her Camaro with her sister, Nikki Harris; Mr. Bostrum’s sister, Nikki Larkins; and her friend,

April Conkin. They had received a page from Mr. Bostrum and drove her Camaro to the Coastal

Mart on the corner of Colonial Heights Road and Fort Henry Drive to use the telephone. The

defendant and Steven Moore arrived in the defendant’s Camaro. She talked to the defendant, whom

she had met two weeks earlier, while Mr. Moore was using the telephone at the Coastal Mart. The

defendant asked her when they were going to race, to which she replied, “Yeah, right.” Mr. Baker

and Mr. Bostrum arrived shortly thereafter in Mr. Baker’s Mitsubishi and parked beside the

defendant. Ms. Harris overheard the defendant ask Mr. Baker when he wanted to “run them.” She

saw Mr. Baker shake his head from side to side. She said she thought that Mr. Baker was not really

paying attention to the defendant. Mr. Bostrum came over and told her that he was going to ride

with Mr. Baker to drop off a videotape, and he would meet them at her sister’s house. 

Ms. Harris testified that Mr. Bostrum went back to Mr. Baker’s car and that Mr. Moore had

since returned to the defendant’s car. She said that she started to leave her parking space but drove

back into her spot when the defendant started leaving, revving his engine and squealing his tires.

The defendant took the rear exit out of the parking lot onto Colonial Heights Road then stopped and

revved his engine. Mr. Baker drove to the front exit leading out of the parking lot onto Colonial

Heights Road and waited for the defendant to get to the traffic light at the intersection of Fort Henry

Drive. The defendant did not move. Mr. Baker turned onto Colonial Heights Road and stopped at

the traffic light. The defendant followed him. Ms. Harris said that she then turned in the opposite

direction onto Colonial Heights Road to go home.

Ms. Harris testified that she learned of the accident later that evening. She said that the

defendant paged her around 3:00 a.m. and that she asked the defendant if he and Mr. Baker had been

racing. She said that he replied, “No, not really” and “He took off and left me before I got to the

Texaco.” She said that she asked the defendant if he saw the wreck and that he said he only saw

objects in the road. She said that he told her that he did not stop because he was too scared and that

he had just learned of the deaths.

Tracy Shipley testified that between 9:00 and 10:00 p.m. on March 20, 1997, he was driving

toward Kingsport on Fort Henry Drive, a four-lane divided highway. He was traveling in the left

lane at forty to forty-five miles per hour, and a Toyota pickup truck was two car-lengths ahead of

him in the right lane. As he approached the green light at the intersection with Colonial Heights

Road, he saw a white car turn right from Colonial Heights Road into the right lane of Fort Henry

Drive. He said that a red Camaro with tinted side windows followed it without stopping for the red

light. He said that the Toyota pickup swerved into the left lane to avoid hitting the Camaro. He

stated that the two cars went about one hundred feet then accelerated and that he lost sight of them.

He said that when he rounded the curve, he saw the cars going across the railroad trestle side by side.

He said that he believed that the Camaro was in the left lane and the Mitsubishi in the right 

lane. He estimated that the cars were traveling in excess of seventy miles per hour based upon his

previous experience in law enforcement. He said that he did not see brake lights on either car.
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Mr. Shipley testified that as he turned into the Roadrunner Market, he heard a noise, which

he thought was the ladder in the back of his truck. He said he spent only two or three minutes in the

Market, buying a pack of cigarettes, then continued down Fort Henry Drive for approximately three

minutes. He saw the accident scene once he got to the railroad trestle. He saw a woman lying on

the road and a bystander administering first aid. He saw part of the white car against the guardrail

and the front of the white car further down the road. He said that he saw a red Camaro coming back

toward Johnson City astride the center line. He said someone jumped into the passenger side of the

Camaro, which made a U-turn and drove toward Kingsport at high speed. He admitted that he could

not say that it was the same red Camaro he saw earlier. He said that he left to call for help, but when

he heard sirens, he did not return to the accident site.

J. L. Light testified that between 9:30 and 10:00 p.m. on March 20, 1997, he was at his son’s

Exxon service station on the corner of Colonial Heights Road and Fort Henry Drive. He said that

he heard the sound of someone pulling out louder than normal, which caused him to look out the

window. He said he saw a red car and a white car going toward Kingsport.

Elizabeth Reynolds testified that in March 1997, she worked at the Texaco service station

and convenience market at the corner of Fort Henry Drive and Moreland Drive. She said that she

was at the gas pumps a little before 10:00 p.m. on the evening of the accident when she heard the

roar of cars coming from Colonial Heights and headed toward Kingsport. She said she looked up

and saw a red car in the left lane and a white car in the right lane. She said that she could not tell

what kind of cars they were because they were going too fast. She estimated that they were traveling

at one hundred miles per hour or more. She said that she saw the cars go through the traffic light and

saw their taillights going around the curve. She stated that she did not see brake lights on either car.

She said that she heard a loud boom and called the police.

Kregg Klingman testified that in the late evening of March 20,1997, he and his wife were

driving southbound on Fort Henry Drive toward Johnson City. They passed through the Moreland

Drive intersection and were just past the Texaco when he heard loud revving engines. He said that

he saw two cars, side by side, going toward Kingsport at about eighty miles per hour. He said that

he could not tell the make or color of the cars. He said that looking in his rearview mirror, he saw

the cars make it through the Moreland Drive intersection and saw their taillights disappear. He did

not recall if he saw brake lights on either car.

Tony Bowman testified that between 9:30 and 10:00 p.m. on March 20, 1997, he was driving

south in the left lane on Fort Henry Drive toward Johnson City. He said that he was stopped at the

traffic light at the intersection of Fort Henry Drive and Moreland Drive, when he heard the revving

of engines coming toward Kingsport. He said that he looked up and saw two cars, side by side,

traveling at least seventy to seventy-five miles per hour. He said that the car in the left lane was red.

Michael Taylor testified that after 9:00 p.m. on March 20, 1997, he left Wal-Mart and drove

south in the left lane of Fort Henry Drive toward Colonial Heights. He said that he planned to turn

left at the Moreland Drive intersection but about two hundred feet from the traffic light, he hesitated

before entering the turn lane because he saw two cars coming toward him at a high speed. He said
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that the car in the left lane looked like a white Ford Probe and the car in the right lane appeared to

be a red Camaro. He said that he veered to the right because he did not know where the cars were

going. He said that as the cars passed him, their draft shook his van. He said that he looked in his

rearview mirror and saw sparks and brake lights on both cars before they went onto the bridge. He

said he thought that they would not make the curve. He said that he had his window down and heard

a loud pop. He said that he turned left and dialed 9-1-1 on his cellular telephone.

Mr. Taylor testified that as he pulled up beside a minivan, he saw a woman crawling through

the windshield. The woman was on the pavement when he got to her, and he tried to assist her. He

saw another car on the side of the road and what was left of the white car, but the red car had gone.

He called 9-1-1 again, told them to send more help because others were involved in the accident and

advised them to be looking for a red car. He said that he was one-hundred-percent sure that the red

car was in the right lane.

Officer Brian Bishop of the Kingsport Police Department testified that shortly before 10:00

p.m. on March 20, 1997, he was parked in a gravel lot at the intersection of Fort Henry Drive and

Moreland Drive, talking with two other officers from the Second Judicial Drug Task Force. He said

that he heard the sound of cars approaching at high speed from Colonial Heights going toward

Kingsport. He said that he could not see the cars because foliage blocked his view. He stated that

almost immediately after the cars passed, he heard tires skidding and a very loud collision. He dialed

9-1-1, pulled onto Moreland Drive, and turned onto Fort Henry Drive toward Kingsport to see what

had happened. In the southbound lanes, he saw three heavily damaged vehicles: a minivan, a Volvo,

and a white Mitsubishi.

Stanley Keith Hodges, a detective with the Sullivan County Sheriff’s Office, testified that

on March 20, 1997, he was working on the Second Judicial Drug Task Force. He said that he was

parked in a dirt lot on Moreland Drive just before the intersection with Fort Henry Drive at 9:45 or

9:50 p.m.. He said that he had his car windows down and that he heard the sound of engines with

the RPM’s rising, which caused him to look to the intersection. He said that he saw a red car pass

through the intersection and that as the car continued out of sight, he heard the RPM’s continue to

rise. He estimated that the red car was going eighty-five miles per hour. He said that he thought that

the cars would have significant trouble making the curve and that a few seconds later, he heard a

loud collision. He said that he called Central Dispatch to report a possible accident and followed

Officer Bishop to the accident scene. He said as he arrived, a green Volvo was coming to a stop in

the emergency lane. He said that he saw the front end of a white car flipped over on Fort Henry

Drive with its passenger compartment on the guardrail. He said that he saw a minivan in the road

with a female lying nearby. He stated that he and Officer Bishop searched the area for the red car,

looking over the guardrail with a flashlight. He said he directed traffic at the accident scene for two

hours and did not see the red car. He said that his initial concern was for injured persons and that

he did not notice significant traffic congestion until the emergency vehicles arrived. He agreed that

it would have been difficult for the red car to return to the scene due to the subsequent congestion

but that it would have been able to return within the first five minutes of his arrival.

Teresa Gilliam testified that late on the evening of March 20, 1997, she was returning to
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Colonial Heights from the Wal-Mart on Fort Henry Drive in her gold Chrysler Town and Country

Minivan. She said that she remembered driving south on Fort Henry Drive toward Hammond Bridge

and that she next remembers being in an ambulance. In the accident, Ms. Gilliam broke her left

femur, her lower left leg in three places, three toes on her left foot, and her left arm at the elbow;

crushed her right femur and right foot; and suffered a gash on her forehead. She spent three weeks

in the hospital following the accident and received physical therapy in her home for two months

thereafter. At the time of trial, she was still using a crutch and undergoing physical therapy. She

reported that her doctor was uncertain about whether her right leg would need further treatment. 

 

 Priscilla Abbott Redwine testified that she is a resident of Colonial Heights and a nurse at

Holston Valley Hospital. She said that on the evening of March 20, 1997, she was traveling south

on Fort Henry Drive toward Colonial Heights in her dark green Volvo. She said that she had crossed

Hammond Bridge when something distracted her on the left. She said that the last thing she

remembered was seeing what appeared to be a white bullet. She said that her airbag deployed and

that she had blood and glass all over her. She said that she noticed an unusual smell and thought that

she should get out of the car quickly. She said that she moved into the back seat and slid out the

back door, which was partially blocked by the guardrail. She said that she had cuts on her head and

left arm, bruising on her arm and leg, glass in her hand, and burns on her face from the airbag. She

said that she now has scars on her hand.

Ralph Cline, a detective with the Kingsport Police Department, testified that on March 27,

1997, he was called from home to assist with an accident on Fort Henry Drive. He said that he spent

the rest of that night and the early morning of March 21 looking for the defendant, Mr. Moore, and

the red Camaro. He said that they were not at either of their parents’ homes. He said that he drove

around Colonial Heights for two hours but did not find them. He said that he did not know that Mr.

Moore called the police station at 1:00 a.m. on the 21st.

Officer Robert Dale Farmer of the Kingsport Police Department testified as an expert in

accident reconstruction. He said that on the night of March 20, 1997, he was called to an accident

on Fort Henry Drive. He said that 9-1-1 received a call about the accident around 9:50 p.m. and that

he arrived around 10:16 p.m. He said that as he approached the railroad bridge, he saw a green

Volvo with extensive front-end damage against the guardrail on the southbound shoulder. He said

that he saw a gold Chrysler Town and Country Minivan resting crosswise in the southbound lanes

facing the guardrail on the southbound shoulder. He said that he saw a white Mitsubishi on the

southbound shoulder against the guardrail. He said that the driver, Mr. Baker, and the passenger,

Mr. Bostrum, were still in the Mitsubishi when he arrived. He said that Mr. Bostrum was dead but

that paramedics were still working with Mr. Baker, who subsequently died.

Officer Farmer testified that he was in charge of the investigation and that he began to search

for the cause of the accident. He said that it was 6.5 tenths of a mile from the Coastal Mart parking

lot to the point of impact in the accident. He stated that a railroad track runs underneath Fort Henry

Drive north of the Moreland Drive intersection and that the accident occurred north of the railroad

bridge or trestle. He identified a photograph showing that Fort Henry Drive curves to the left at the

railroad bridge. He said that yaw marks on the pavement beginning on the far side of the railroad
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bridge show that the Mitsubishi traveled from the right northbound lane of Fort Henry Drive into

the southbound lanes, a distance of five hundred and forty-four feet. He said that yaw marks are

caused by a car sliding sideways while the wheels continue to rotate forward. He said that the

Mitsubishi collided with the minivan in the left southbound lane and that the undercarriage of the

minivan caused a gouge mark in the pavement upon impact. Photographs revealed that the minivan

sustained front-end damage. Officer Farmer testified that the driver’s door could not be opened and

the window was broken. He stated that the impact pushed the minivan’s dashboard to within six

inches of the backrest on the driver’s seat and that the steering wheel came to rest six inches from

the seat. He said that the minivan’s driver, Ms. Gilliam, was already out of the minivan when he got

there, and he had determined that she crawled through the driver’s window.

Officer Farmer testified that after hitting the minivan, the Mitsubishi became airborne and

hit the Volvo. He said that he determined from the white paint on the Volvo and parts of the

Mitsubishi’s muffler hanging across the Volvo’s front bumper that the Mitsubishi initially struck the

Volvo with its left rear undercarriage. He said that the Volvo sustained extensive front end damage,

that its driver’s door could not be opened, and that its hood was up. He said that the Mitsubishi’s

front wheels and engine compartment split from the rest of the car and came to rest upside down in

the left southbound lane. He said that the rest of the Mitsubishi landed on the southbound guardrail

behind the Volvo.

Officer Farmer testified that the critical speed of a curve is the maximum speed that a vehicle

of any make, model, or year can travel the curve in a particular lane. He said that when a car enters

a curve at greater than the critical speed, the centrifugal force keeps the tires in contact with the road,

leaving yaw marks. He said that he calculated the critical speed of the right lane of the curve in

which the Mitsubishi lost control by first determining the circumference of the circle that contained

the yaw marks. He said that in order to calculate the circumference, he first measured the chord,

which is a straight line between the two ends of the yaw mark, and then calculated the middle

ordinate, which is the distance from the center of the chord to the end of the yaw mark. He used the

middle ordinate to calculate the circumference. He said that he also calculated the coefficient of

friction or the drag factor of the road with an instrument called a drag sled. He said from this

information, he calculated the critical speed of the right northbound lane to be 73.88 miles per hour.

Officer Farmer testified that as a car travels a curve at a speed lower than the critical speed,

the rear tires track inside the front tires as the car goes around the curve. He stated that to determine

the speed of the Mitsubishi when it first started to yaw, he looked for the crossover, the point at

which the rear tires began tracking to the outside of the front tires, and that this was where the car

began to rotate. He said that he determined the radius of that point of the yaw. He said that to

determine the speed of the center mass of the car, he subtracted half of the track width of the car

from the radius. He said that he entered these calculations along with the drag factor into the speed

formula. He said that he found that the Mitsubishi was going 95.45 miles per hour when it started

to yaw. He stated that he followed the same procedure for the point of impact and determined that

the Mitsubishi was going 64.11 miles per hour when it hit the minivan. He said that a true critical

speed yaw causes a car to decrease speed. He said that he saw no indication that any of the cars

involved had applied their brakes. He said that he gave a copy of his accident report and 
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photographs of the area and the accident scene to Professor Neil Owen, who created a computergenerated visualization of the accident.

Officer Farmer testified that on the evening of the accident, he directed officers to look for

the defendant, Mr. Moore, and a red Chevrolet Camaro Supersport. He said that the defendant’s

attorney contacted the police the morning of March 21and that officers found the defendant, Mr.

Moore, and the Camaro at the attorney’s office around 5:30 p.m. that day. He said that the Camaro

was undamaged.

On cross-examination, Officer Farmer testified that he determined the critical speed for only

the right northbound lane on Fort Henry Drive. He said that the critical speed for the left northbound

lane would not vary much from that of the right lane, but he admitted that it would be different. He

said that no evidence from which he could calculate the critical speed of the left lane existed at the

scene. He admitted that he found no skid marks, yaw marks, or red paint from the defendant’s car

at the scene. He said that the Mitsubishi was out of control for five hundred and forty-four feet. He

said that his investigation revealed nothing to indicate that the race between the Mitsubishi and the

Camaro was not consensual. He said that he knew that Mr. Moore gave a statement to Officer

Ferguson over the telephone and that he got a copy of the statement on the evening after the accident.

He admitted that he did not give Mr. Moore’s statement to Professor Owen to use in creating the

visualization of the accident.

Professor Robert Neal Owen, director of the Advanced Visualization Laboratory at East

Tennessee State University, testified as an expert in computer visualization. He described computer

visualization as a form of storytelling in which he creates a “copy of reality” with a computer. He

said that a visualization is based upon information from an expert whereas a simulation or

reconstruction uses the laws of physics to recreate exactly what happened physically. He stated that

this was the first visualization of a car accident created by his laboratory. He said that in order to

create the videotape, he used information on the vehicles involved, including the speeds at which

they were traveling; the physical characteristics of the road such as the size, shape and slope; and

the locations of the vehicles after the accident. 

Professor Owen testified that he based the depiction of the actions of the Camaro on

information from Officer Farmer. He said that Officer Farmer’s accident report stated that the

Camaro and the Mitsubishi were side by side at the beginning of the railroad bridge. He said that

the Camaro had to be in front of the Mitsubishi at the beginning of the videotape in order for it to

be beside the Mitsubishi at the railroad bridge because it was going slower than the Mitsubishi as

it entered the curve. He said that Officer Farmer told him that the Camaro traveled the curve at or

below the critical speed of the curve, which was 73.88 miles per hour. He said that he did not know

that Officer Farmer calculated the critical speed for the right lane only, but if the critical speeds for

the two lanes varied by only one or two miles per hour, then the difference in speeds would not make

any significant difference in the visualization. He admitted that if the difference were fifteen miles

per hour, then it would affect the visualization.

The state played the visualization for the jury. The visualization shows the accident from
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five viewpoints: from an overview, the Mitsubishi, the Camaro, the minivan, and the Volvo. Each

viewpoint is shown at three speeds: full speed, one-half speed, and one-quarter speed. The

visualization shows the accident as follows: the Camaro, which is in the northbound left lane, is

traveling in front of the Mitsubishi, which is in the right lane. The Mitsubishi accelerates, pulls

beside the Camaro at the start of the railroad bridge, then begins to yaw near the end of the bridge,

which causes it to turn sideways facing the southbound guardrail. The Camaro continues through

the curve in the left lane and accelerates out of the curve just before the Mitsubishi yaws into the left

lane. The Mitsubishi yaws across the northbound left lane into the southbound left lane. The

passenger side of the Mitsubishi hits the front of the minivan in the southbound left lane. The

Mitsubishi rotates through the air, and the rear of the Mitsubishi hits the Volvo, which is in the

southbound right lane. The Camaro continues traveling in the northbound left lane and the accident

occurs behind it. 

I. INSUFFICIENT PRESENTMENT

The defendant contends that the presentment did not give him notice that he would have to

defend against a theory of criminal responsibility for the deaths of Mr. Baker and Mr. Bostrum and

the injuries of Ms. Gilliam and Ms. Redwine. He argues that he defended the case by showing that

his car was not involved in the accident and, therefore, that he was not the direct and proximate

cause of the deaths and injuries. He claims that the computer visualization implies that the accident

resulted in part from Mr. Baker’s and Mr. Bostrum’s conduct and in part from his conduct because

it portrays his car as menacing the minivan and Volvo as it rounded the curve at close to the critical

speed. Thus, he contends that the presentment permitted the jury to convict him of the charges

without distinguishing between the different causes. The state contends that it was not required to

include the theory of criminal responsibility in the presentment.

Count one of the presentment charges in pertinent part that the defendant:

on or about March 20, 1997 . . . did unlawfully, feloniously, knowingly, and

recklessly and as the proximate result of the operation of a motor vehicle in a manner

creating a substantial risk of death and serious bodily injury, kill Landon D. Baker

. . . .

Count two contains identical language with the exception that the victim is Christopher A. Bostrum,

Mr. Baker’s passenger. Count three alleges that the defendant:

on or about March 20, 1997 . . . did unlawfully, feloniously, and knowingly, cause

serious bodily injury to another, Teresa W. Gilliam, by the display and use of a

deadly weapon, to-wit: a motor vehicle . . . .

Count four contains identical language with respect to victim Priscilla A. Redwine. 

Criminal responsibility is not a crime but a theory upon which the state may prove a

defendant is liable for an offense committed by someone else. State v. Lemacks, 996 S.W.2d 166,
1

Tenn. Code Ann. § 39-11-401 provides:

(a) A person is criminally responsible as a party to an offense if the offense is committed by

the person’s own conduct, by the conduct of another for which the person is criminally

responsible, or by both.

(b) Each party to an offense may be charged with commission of the offense.

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173 (Tenn. 1999). An indictment or presentment charging the defendant with an offense necessarily

includes the defendant’s criminal responsibility for the offense. Id. Furthermore, Tenn. Code Ann.

§ 39-11-4011 puts every defendant on notice that his or her responsibility for another’s conduct is

covered by an indictment alleging that he or she committed a crime. Thus, the state did not have to

charge criminal responsibility in the presentment. See Lemacks, 996 S.W.2d at 173. 

The defendant relies upon State v. Barnes, 954 S.W.2d 760 (Tenn. Crim. App.1997), to argue

that the state should have charged that it was imputing the conduct of Mr. Baker and Mr. Bostrum

to him. In Barnes, the defendant hit, burned, and bit her estranged husband; the husband pinned the

defendant to the floor; and the defendant’s friend, hearing her cries for help, hit the husband with a

baseball bat. The jury convicted the defendant of a single count of aggravated assault based upon

her own conduct and that of her friend. A panel of this court acknowledged that the state does not

have to include its theory of the defendant’s responsibility for the crime in the indictment. Id. at 764.

However, the court held that under the specific facts of that case, which involved two assaults by two

separate assailants, the indictment charging a single aggravated assault failed to give the defendant

notice of which assault the state was attributing to her. Id. 

We question whether the limited exception described in Barnes is valid in light of Tenn.

Code Ann. § 39-11-401. We note that the pre-1989 statute also provided that aiders and abettors

were deemed “principal offenders.” Tenn. Code Ann. § 39-1-303 (1982) (repealed 1989). Under

the former law, it was well-settled that nothing more need be alleged in a charging instrument against

an aider and abettor than is needed for the principal. See, e.g., Calvert v. State, 158 Tenn. 531, 538-

39, 14 S.W.2d 735, 738 (1929). Due process notice rights are not violated by such allegations in an

aiding and abetting case. State v. Lequire, 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981).

Furthermore, if a defendant requires more information than that contained in such an indictment,

then he or she should seek a bill of particulars. See State v. Hensley, 656 S.W.2d 410, 413 (Tenn.

Crim. App. 1983). Nevertheless, this case is factually distinct. Barnes emphasizes that the case

involved two assaults to a single victim and the indictment charged only one. Here a single accident

resulted in two deaths and two victims with injuries. The presentment charges two vehicular

homicides and two aggravated assaults. The presentment is not ambiguous. 

Furthermore, the fact that the jury could have convicted the defendant based upon his

criminal responsibility for the actions of Mr. Baker or by finding that he directly caused the accident

is of no consequence. In State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999), the indictment charged

a single count of DUI arising out of a one-car accident. The defendant’s car, which contained the

defendant and three friends, plunged into a ditch. The proof conflicted on whether the defendant or
-11-

another occupant was driving. Both were intoxicated. Our supreme court noted that the defendant

could have been convicted for committing the offense himself or due to his criminal responsibility

for his friend’s commission of the offense. Id. at 168. It held that when “the State seeks to prove

one crime arising from one event, we may presume that the jury’s general verdict was unanimous”

even though the conviction could have been based upon either criminal responsibility or the

defendant’s own conduct. Id. at 171. This is equally true in the present case in which the

presentment charges only a single crime relating to each separate victim. The presentment is

sufficient.

 

II. CRIMINAL RESPONSIBILITY

The defendant contends that he is not criminally responsible for the deaths of Mr. Baker and

Mr. Bostrum or the injuries to Ms. Gilliam and Ms. Redwine because he was not involved in the

accident. He also argues that Mr. Baker and Mr. Bostrum as principals did not commit criminally

negligent homicide upon themselves and that, therefore, he cannot be criminally responsible for their

deaths. The state contends that the defendant is criminally responsible for any other crime

committed by the principal offender in pursuit of or as a natural or probable consequence of the

crime aided and abetted by the defendant. It argues that the defendant and Mr. Baker were drag

racing in concert and that the accident, which resulted in the deaths of Mr. Baker and Mr. Bostrum

and the injuries to Ms. Gilliam and Ms. Redwine, was the natural and probable consequence of the

drag race. 

One is criminally responsible for another’s actions if:

(1) Acting with the culpability required for the offense, the person causes or aids an

innocent or irresponsible person to engage in conduct prohibited by the definition of

the offense;

(2) Acting with intent to promote or assist in the commission of the offense, or to

benefit in the proceeds or the results of the offense, the person solicits, directs, aids

or attempts to aid another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to prevent the

commission of the offense and acting with intent to benefit in the proceeds or results

of the offense, or to promote or assist in its commission, the person fails to make a

reasonable effort to prevent commission of the offense.

Tenn. Code Ann. § 39-11-402. To be criminally responsible for the acts of another, a defendant

must “‘in some way associate himself with the venture, act with knowledge that an offense is to be

committed, and share in the criminal intent of the principal in the first degree.’” State v. Maxey, 898

S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree v. State, 546 S.W.2d 235, 239 (Tenn.

Crim. App. 1976)). In other words, the defendant must “‘knowingly, voluntarily and with common

intent unite with the principal . . . in the commission of the crime.’” Maxey, 898 S.W.2d at 757

(quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). The requisite criminal

intent may be inferred from the defendant’s “presence, companionship, and conduct before and after

the offense . . . .” State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982). A defendant
-12-

is also held criminally responsible for any other crime committed by the principal offender in

pursuance of the common purpose or as a natural and probable consequence of the crime originally

aided and abetted by the defendant. State v. Carson, 950 S.W.2d 951, 955-56 (Tenn. 1997). 

In its order denying the defendant’s motion for a new trial, the trial court found:

The total proof clearly established beyond a reasonable doubt standard that

Farner [defendant] and Baker [deceased] were involved in a high speed race just prior

to and during the events that brought about the death of the two young men and

caused serious bodily injury to two innocent users of a public highway.

(Brackets in original). It found that the jury properly convicted the defendant for the death of Mr.

Bostrum and the injuries to Ms. Gilliam and Ms. Redwine on a theory of his criminal responsibility

for the actions of Mr. Baker. It found that notwithstanding Mr. Baker’s status as a co-perpetrator

of the drag race, the defendant was criminally responsible for Mr. Baker’s death because it was a

natural and probable consequence of the drag race. It also found that the defendant was directly

responsible for Mr. Baker’s death:

The killing of Baker had a close relation to the drag race and as a result the

killing of Baker could not be considered as just collateral to the drag race. It was the

going out of control by Baker during the drag race between Farner and Baker that

resulted in the death of Baker.

Baker’s acts, although contributory to his own death,wouldnotrelieve Farner

of his own criminal responsibility in the death of Baker. Drag racing is malum in

se and contributory negligence constitutes no defense.

(Citations omitted). 

A. Criminally Negligent Homicide

One is guilty of criminally negligent homicide if he or she engages in criminally negligent

conduct which results in death. Tenn. Code Ann. 39-13-212(a). The death of the victim must be the

direct and proximate result of the defendant’s criminal negligence. State v. Adam, 916 S.W.2d 471,

474 (Tenn. Crim. App. 1995). Tenn. Code Ann. § 39-11-302(d) defines criminal negligence:

“Criminal negligence” refers to a person who acts with criminal negligence with

respect to the circumstances surrounding the person’s conduct or the result of that

conduct when the person ought to be aware of a substantial and unjustifiable risk that

the circumstances exist or the result will occur. The risk must be of such a nature and

degree that the failure to perceive it constitutes a gross deviation from the standard

of care that an ordinary person would exercise under all the circumstances as viewed

from the accused person’s standpoint.

The defendant contends that in order for him to be criminally responsible for a criminally negligent
2Anyone who participates in a drag race on a public highway commits a Class B

misdemeanor. Tenn. Code Ann. § 55-10-502. Tenn. Code Ann. § 55-10-501(1) defines drag racing

in pertinent part as:

(C) The use of any one (1) or more motor vehicles for the purpose of comparing the

relative speeds of such vehicle or vehicles, or for comparing the relative speeds of

such vehicle or vehicles within a certain distance or within a certain time limit;

(D) The use of (1) or more motor vehicles in an attempt to outgain, outdistance or to

arrive at a given destination simultaneous with or prior to that of any other motor

vehicle; or

(E) The use of any motor vehicle for the purpose of the accepting of, or the carrying

out of any challenge, made orally, in writing, or otherwise, made or received with

reference to the performance abilities of one (1) or more motor vehicles[.]

A participant in a drag race is one who:

operate[s] any motor vehicle or motor vehicles upon the public highways . . . for the

purpose of “drag racing” as herein defined, and also any person or persons who

arrange for, supervise, or in any way and manner set in motion any such “drag

racing” as herein defined, regardless of whether or not such person or persons may

be the operator of, or be a passenger in, any motor vehicle participating in such “drag

racing[.]”

Tenn. Code Ann. § 55-10-501(2).

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homicide, he must have been aiding or attempting to aid someone who committed a criminally

negligent homicide. The principal must be guilty of the crime before an aider and abettor can be

found guilty of the crime. Pierce v. State, 130 Tenn. 24, 46, 168 S.W. 851, 856 (1914); Givens v.

State, 103 Tenn. 648, 661, 55 S.W. 1107, 1110 (1899); Self v. State, 65 Tenn. 244, 246 (1873); see,

e.g., Hudgens v. State, 166 Tenn. 231, 236, 60 S.W.2d 153, 155 (1933).

 

The proof at trial revealed that the defendant and Mr. Baker were drag racing2

 on a public

road. In addition to his involvement in the drag race as a principal, the defendant is also criminally

responsible for any crime that is the natural and probable consequence of Mr. Baker’s participation

in the drag race. See Carson, 950 S.W.2d at 955 (holding that “an aider and abettor should be

criminally responsible for the criminal harms they have naturally, probably and foreseeably put in

motion”). No proof exists that Mr. Bostrum, Mr. Baker’s passenger, was a participant in the drag

race in the sense that he arranged the race, supervised it or set it in motion. See Tenn. Code Ann.

§ 55-10-501(2). Mr. Baker engaged in criminally negligent conduct, the drag race, which resulted

in Mr. Bostrum’s death. The defendant is criminally responsible for the criminally negligent

homicide of Mr. Bostrum committed by Mr. Baker.
-14-

The defendant emphasizes the fact that his Camaro had no contact with any of the vehicles

involved in the collision that resulted in the deaths and injuries. Our supreme court has held that a

participant in a drag race who is not involved in a collision between another racer and a nonparticipant remains responsible for the non-participant’s death as an aider and abettor. Stallard v.

State, 209 Tenn. 13, 17, 348 S.W.2d 489, 490 (1961). In Stallard, Green arranged for Bennett to

drag race with Stallard and then rode with Stallard during the race. Stallard’s car collided with

another car killing a passenger, while Bennett’s car had no contact with the accident. Bennett

contended that the evidence was insufficient to support his conviction for second degree murder.

The court observed that by driving one of the racing cars, “Mr. Bennett directly participated in that

unlawful act which resulted in the death of Mrs. Dampier.” Id. The court held that Bennett’s

participation in the race justified his conviction as an aider and abettor despite the fact that he did

not collide with the victim. Id. The same is true for the defendant in the present case with respect

to Mr. Bostrum’s death.

Turning to the defendant’s conviction for the criminally negligent homicide of Mr. Baker,

the defendant claims that he cannot be convicted based upon his criminal responsibility when the

principal has not committed a crime. We believe that the defendant is directly rather than

collaterally responsible for Mr. Baker’s death because he and Mr. Baker were drag racing in concert,

and Mr. Baker’s death was a proximate and foreseeable result of the race. Although no Tennessee

case addresses the issue of whether a participant in a drag race is criminally liable for a coparticipant’s death, other jurisdictions have grappled with this question. In Goldring v. State, 654

A.2d 939 (Md. Ct. Spec. App. 1995), the defendant and Hall engaged in a drag race. Hall lost

control of his car in a curve and collided with parked vehicles on the opposite side of the road, which

resulted in the deaths of Hall and two bystanders. The defendant was convicted of three counts of

involuntary manslaughter by a motor vehicle. The court held that the defendant’s participation in

the drag race “bore a sufficiently direct causal connection” to his co-participant’s death to support

the conviction. Id. at 944; see State v. Melcher, 487 P.2d 3, 8 (Ariz. Ct. App. 1971) (holding the

defendant responsible for the other racer’s death because they were jointly engaged in the race and

the act of racing was the proximate cause of the death); State v. McFadden, 320 N.W.2d 608, 613,

617 (Iowa 1982) (noting that the requirements of foreseeability and recklessness prevented an unjust

result for a defendant convicted of the involuntary manslaughter of another racer); see also State v.

Escobar, 633 P.2d 100, 104 (Wash. Ct. App. 1981) (holding that the defendant’s racing was the

proximate cause of the co-participant’s collision and death under Washington’s negligent homicide

statute which specifies the “driving of any vehicle by any person”). The court reasoned that a coparticipant’s reckless conduct did not relieve the defendant of his responsibility for his own

recklessness. Goldring, 654 A.2d at 944; see McFadden, 320 N.W.2d at 611 (holding that the

victim’s voluntary and reckless participation in the drag race did not prevent the defendant’s

conviction for involuntary manslaughter).

 

In State v. Plaspohl, 157 N.E.2d 579 (Ind. 1959), the defendant’s passenger, who had planned

and started the drag race, died when the defendant lost control of his car in the race. The trial court

directed a verdict for the defendant on the charge of reckless homicide, finding that by actively

participating in the race, the victim assumed the risk of his resulting death. The Supreme Court of

Indiana held that:
-15-

“Contributory negligence is not available as a defense or an excuse in a criminal

prosecution; this doctrine has no place in criminal law, and it cannot in any degree

purge an act which otherwise constitutes a public offense of its criminal character.

Accordingly the contributory negligence of a person injured or killed by the criminal

negligence of another does not relieve the latter of criminal responsibility.”

Id. at 580 (quoting 22 C.J.S. Criminal Law § 52, at 116-17). The court reasoned that reckless

homicide is a crime against the state and that the victim’s active participation in the drag race did

not bar the defendant’s conviction for his crime against the state. Id. at 581.

We note that some jurisdictions have held that the deceased racer’s participation in the race

supervenes the defendant’s participation as the proximate cause of death. Velazquez v. State, 561

So.2d 347, 354 (Fla. Dist. Ct. App. 1990) (holding that the victim killed himself by voluntarily and

recklessly participating in the drag race); Thacker v. State, 117 S.E.2d 913, 915 (Ga. Ct. App. 1961)

(distinguishing the proximate cause of death from the cause of a condition which presents the

opportunity for death by another); State v. Uhler, 402 N.E.2d 556, 559 (Ohio Ct. Com. Pl. 1979)

(acquitting the defendant upon determining the deceased racer’s actions proximately caused his own

death); see Commonwealth v. Root, 170 A.2d 310, 311, 313 (Pa. 1961) (refusing to apply the tort

concept of proximate cause to criminal law but noting that even if it were applied, the victim’s

participation in the race would be a supervening cause of death). These cases emphasize the fact that

the defendant and the victim were competitors both assuming the risk of racing and downplay the

fact that their joint enterprise was a drag race, which is highly dangerous to both the participants and

the public and can foreseeably result in death. See Velazquez, 561 So.2d at 354 (determining that

it is unfair to hold the defendant liable when the deceased effectively killed himself);Root, 170 A.2d

at 314 (noting that the deceased was aware of the danger created by the defendant’s racing but

nonetheless chose to attempt to pass the defendant); see also State v. Petersen, 526 P.2d 1008, 1009

(Or. 1974) (adopting the reasoning of the dissenting intermediate appellate judge that public policy

opposes placing responsibility for a participant’s death on the surviving racer when the survivor’s

only link to the death is participating in the mutually agreed upon race); State v. Petersen, 522 P.2d

912, 921 (Or. App. 1974) (Schwab, C.J. dissenting) (listing professional racetrack drivers, skydivers,

deep sea divers, and even fishermen who put to sea in the face of a predicted storm as examples and

opposing a survivor’s manslaughter conviction if all the participants joined in the reckless conduct

knowingly and voluntarily). 

We believe that the better reasoned result is to hold those who drag race in concert directly

responsible for the proximate and foreseeable results of the drag race. Our statute defining drag

racing clearly contemplates sanctioning participants acting in concert because it specifies the “use

of one (1) or more motor vehicles” and the “performance abilities of one (1) or more motor

vehicles[.]” Tenn. Code Ann. § 55-10-501(1)(C), (D), (E). Furthermore, this court has held the

crime of drag racing to be malum in se. Cole v. State, 512 S.W.2d 598, 602 (Tenn. Crim. App.

1974). Mr. Baker’s participation in the drag race does not relieve the defendant of his liability for

his participation in the offense. Thus, the defendant should face the consequences stemming from

his own participation in the drag race. 
-16-

In this case, Holly Harris testified that while they were at the Coastal Market, the defendant

asked Mr. Baker when they would “run” their cars. Witnesses saw the defendant’s Camaro and Mr.

Baker’s Mitsubishi travel north on Fort Henry Drive side by side at a high rate of speed. Tracy

Shipley saw the two cars together on the railroad bridge which precedes the curve. The yaw marks

on the road revealed that Mr. Baker lost control of his vehicle as he entered the curve. Mr. Baker

died from the injuries he sustained when his car collided with a minivan and a Volvo. The proof

supports the trial court’s finding that the defendant and Mr. Baker were drag racing in concert, and

Mr. Baker’s death was proximately caused by the drag race.

The defendant also contends that he, Mr. Baker, and Mr. Bostrum were co-perpetrators in

the drag race. He analogizes his case to that of State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim.

App. 1988), in which this court held that the defendant could not be convicted of felony murder for

the death of the co-perpetrator at the hands of the robbery victim because the death was not in

furtherance of the felony. He maintains that the deaths of Mr. Baker and Mr. Bostrum were not in

furtherance of the crime of drag racing but in direct contravention of the purpose of the race. In

Severs, we held that “to sustain a conviction of first-degree felony-murder, the killing must have

been in pursuance of, rather than collateral to,” the underlying felony. Id. “In pursuance of” or “in

furtherance of” necessarily indicates result oriented behavior. An analysis of whether Mr. Baker’s

and Mr. Bostrum’s deaths were “in furtherance of” the drag race is completely unrelated to the crime

of criminally negligent homicide, in which the perpetrator acts negligently rather than intends a

result. This issue is without merit. 

B. Reckless Endangerment

The defendant also contends that he is not criminally responsible for the injuries to Ms.

Gilliam and Ms. Redwine, which resulted in his reckless endangerment convictions, because his car

had no contact with the accident. As discussed above, Stallard holds to the contrary. 209 Tenn. at

17, 348 S.W.2d at 490. Furthermore, the defendant’s own actions in participating in the drag race

recklessly endangered Ms. Gilliam and Ms. Redwine. Reckless endangerment is defined as

recklessly engaging “in conduct which places or may place another person in imminent danger of

death or serious bodily injury.” Tenn. Code Ann. § 39-13-103(a). Reckless endangerment with a

deadly weapon is a Class E felony. Tenn. Code Ann. § 39-13-103(b). The defendant drove his

Camaro on a public road at a speed estimated to be between seventy and one hundred miles per hour.

The speed limit on this road is forty-five miles per hour. The proof reveals that a number of people

were traveling on Fort Henry Drive at the time of the drag race. The jury properly found the

defendant guilty of reckless endangerment.

Although the defendant’s brief did not challenge the fact that he received two reckless

endangerment convictions arising out of one episode of driving, we believe that his convictions for

two counts of reckless endangerment constitute plain error under the circumstances of this case. See

Tenn. R. Crim. P. 52(b). In State v. Ramsey, we held that the statute defining reckless endangerment

prohibits a course of conduct as opposed to an individual act or result and, therefore, that a single

period of reckless driving typically constitutes a single offense even though the driver endangered

more than one person. 903 S.W.2d 709, 713 (Tenn. Crim. App. 1995). In Ramsey, the defendant
-17-

was speeding, swerved into the opposite lane in front of the Tripletts’ pickup truck, which contained

four people. The defendant swerved back into his own lane, swerved into the opposite lane again,

and collided with Mr. Story’s pickup truck, causing him to suffer bruising and soreness. We

observed:

The evidence indicates that the defendant’s loss of control of his vehicle, combined

with the speed at which he was driving, were responsible for both his swerving in

front of the Tripletts and hitting the Story vehicle. Due to the very short distance

between the two trucks and the very short amount of time that passed between

swerving into the oncoming lane of traffic in front of the Tripletts and the crash with

Mr. Story, the reckless conduct engaged in by the defendant was one continuous act,

a single course of conduct, and therefore supports only one conviction for that act.

Id. Although here Mr. Baker’s Mitsubishi struck both the minivan and the Volvo and both Ms.

Gilliam and Ms. Redwine received injuries, Mr. Baker encountered both vehicles within a very short

time and distance once he lost control of his car. We note that Ramsey did not create a “blanket rule

that provides that a defendant’s continuous operation of a vehicle may only result in one act of

reckless endangerment under the statute.” Id. (emphasis in original). Nevertheless, we believe that

this case is sufficiently similar to Ramsey to warrant the same result. Therefore, we hold that the

dual convictions violate the Double Jeopardy Clause and that the finding of guilt for the reckless

endangerment of Ms. Redwine, count four, merges into the conviction for the reckless endangerment

of Ms. Gilliam, count three. The judgment of conviction for count four is vacated. 

III. EXPERT WITNESS

The defendant contends that Officer Dale Farmer was not qualified to testify as an expert in

accident reconstruction and that he was prejudiced by Officer Farmer’s testimony. He argues that

Officer Farmer did not have the knowledge of science and engineering needed to provide helpful or

trustworthy expert testimony in the field of accident reconstruction. He also claims that Officer

Farmer did not explain the underlying scientific basis for the formula he used to calculate speed. 

The state contends that Officer Farmer has specialized skill, knowledge and expertise gained

through his training in accident reconstruction, which qualifies him to give expert testimony in this

area.

Regarding his qualifications as an expert in accident reconstruction, Officer Farmer testified

that he had worked as a patrolman for the Kingsport Police Department (KPD) for seven years. He

said that before joining the KPD, he had been a Hawkins County Sheriff’s Department deputy for

four or five years and an officer in the Church Hill Police Department for five years. He said that

he had been an accident reconstructionist for almost two years and had testified as an expert in City

Court and Sullivan County General Sessions Court. He said that he had investigated approximately

fifty traffic fatalities and performed a full reconstruction on twenty to twenty-five of those. 

Officer Farmer testified that his training in accident reconstruction consisted of three eightyhour courses in Johnson City, Tennessee on basic accident investigation, advanced accident
-18-

investigation, and accident reconstruction and a forty-five-hour DUI and vehicular homicide course

in Nashville, Tennessee. He stated that he also attended training courses on DUI, interviewing and

interrogation, evidence, and railroad grade crossing and commercial vehicle accident investigation.

He said that the Police Officer Standards and Training (POST) Commission in Nashville certified

him to teach the basic accident school. He said that he had instructed eight officers in accident

investigation, which includes reconstruction. 

 

Officer Farmer testified that as an accident reconstructionist, he was trained to inspect

vehicles involved in an accident and to determine the speeds of the vehicles, their position on the

road, the direction in which they were traveling, the position of the occupants, whether the head and

taillights were in use, and whether mechanical or human error contributed to the accident. He said

that he determines the point of impact in the accident by examining debris and fluids from the

vehicles, the end of or an angle in the skid marks, scrape or gouge marks on the road, and eyewitness

accounts. He said that he determines how the vehicles collided by looking at the evidence from the

road, the angles of impact on the vehicles, the positions of the vehicles, the direction in which the

vehicles were traveling, and which vehicle had the right of way.

Officer Farmer testified that one way to determine a vehicle’s speed was by using a critical

speed yaw. He said that in making this calculation, he first determines the circumference of the

circle containing the yaw mark by measuring a chord, which is the distance of a straight line between

the ends of the yaw mark. He then takes the middle ordinate, which is the distance from the center

of the chord to one end. He uses these measurements to arrive at the radius of the circle. He said

he adjusts the radius with the center mass of the vehicle by subtracting one-half of the vehicle’s track

width. He said that he uses a drag sled to find the coefficient of friction or the drag factor of the

road. He said that he then puts the adjusted radius and the drag factor into the speed formula to get

the vehicle’s speed. He testified that as a part of his training, he calculated the speed of test cars

based upon the physical markings on the road and then checked his results against radar

measurements of the actual speed of the test car. He stated that the speed formula he uses is from

the Institute of Police Technology in Florida, appears in many accident reconstruction training

manuals, and is in common use throughout the United States. 

On cross-examination, Officer Farmer testified that he was a high school graduate and had

some college credits. He stated that he did not take a physics course in high school and that he

studied geometry as part of his general mathematics class. He agreed that the scientific analysis

performed by reconstructionist was complicated and required a good knowledge of physics. He

stated that in his accident investigation courses, he learned how Newton’s Laws applied to the

mathematics and physics of a collision. He admitted that he had no training in metallurgy.

The trial court found that Officer Farmer’s testimony was relevant to the speed of the cars,

that he possessed a specialized knowledge, and that his testimony would substantially assist the jury

in determining the facts at issue in this case. It further found that Officer Farmer had sufficient

knowledge, background, skill, experience and training to testify in the field of accident

reconstruction. The court found that the probative value of Officer Farmer’s testimony would

substantially outweigh any potential prejudice to the defendant. Over the defendant’s objection, the
-19-

trial court allowed Officer Farmer to testify as an expert in the field of accident reconstruction.

Whether a witness is qualified to testify as an expert is governed by Rule 702, Tenn. R.

Evid.:

If 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, experience, training, or education may

testify in the form of an opinion or otherwise.

“To give expert testimony, one must be particularly skilled, learned or experienced in a science, art,

trade, business, profession or vocation, a thorough knowledge of which is not within the scope of

the common knowledge and experience of the average person.” Kinley v. Tennessee State Mut. Ins.

Co., 620 S.W.2d 79, 81 (Tenn. 1981). The witness may gain expertise through formal education or

through life experiences. Neil P. Cohen et al., Tennessee Law of Evidence § 702.3, at 460 (3rd ed.

1995). The decision to admit expert testimony is reserved to the discretion of the trial court and will

not be disturbed on appeal absent an abuse of such discretion. State v. Hall, 958 S.W.2d 679, 689

(Tenn. 1997). In fact, the defendant will only gain relief on appeal for an abuse of discretion that

was prejudicial. State v. Tizard, 897 S.W.2d 732, 748 (Tenn. Crim. App. 1994).

The defendant challenges the officer’s qualifications generally arguing that he did not have

the educational background needed to give helpful or trustworthy testimony in accident

reconstruction. To support his contention, the defendant relies upon Johnson v. Attkisson, 722

S.W.2d 390 (Tenn. Ct. App. 1986). In Johnson, the officer had attended training courses on accident

reconstruction, investigated numerous accidents, and previously testified as an expert in the field.

Nevertheless, the appellate court held that the trial court should not have permitted the officer to

testify about the speed of the defendant’s truck just before the accident because he failed to show that

his training taught him to estimate speed based upon the skid marks at the accident scene. Id. at 392.

This is not the case here as Officer Farmer testified that his training in accident reconstruction

included instruction on calculating speed. The Johnson court also held that the officer had failed to

testify about the facts upon which his opinion regarding the truck’s speed was based, such as the

weight of the vehicle, the tire type or air pressure, and the type and condition of the road’s surface.

Id. We note that this is also not the case here as Officer Farmer testified about the various factors

that went into the speed calculation such as the drag factor of the road and the radius of the yaw

mark. We believe that the trial court did not abuse its discretion in finding Officer Farmer qualified

to testify generally as an accident reconstruction expert.

However, we note that an individual’s qualification to testify as an expert in a certain field

does not give him or her leave to testify to the results of a scientific test without establishing the

reliability of the underlying test. In this regard, the defendant now seeks to challenge Officer

Farmer’s expertise for determining speed, arguing that although Officer Farmer explained how he

obtained the numbers that he applied to the speed formula, he did not explain the scientific basis for

the formula itself. In the context of breath tests revealing blood alcohol content pre-State v. Sensing,
3We note that the supreme court has relieved this requirement for blood alcohol testing due

to the demonstrated reliability of the machine performing the tests. Sensing, 843 S.W.2d at 416. 

-20-

843 S.W.2d 412 (Tenn. 1992), our supreme court held that in order for a witness to testify about the

results of a scientific test, the witness must be able to explain the scientific theory underlying the

test:

To trust to the procedure of simply following instructions and getting a

correct reading without any understanding of the theory that makes the reading

accurate would be to approve pure hearsay evidence of intoxication.

It is our conclusion, then, that even though the person who operates the

testing device may be shown to know adequately the steps in handling the machine,

he must further have knowledge of the reasons for such operation and the scientific

principle that reflects the results as an accurate reading of blood alcohol content.

Pruitt v. State, 216 Tenn. 686, 695, 393 S.W.2d 747, 752 (1965) (citations omitted); Fortune v. State,

197 Tenn. 691, 700, 277 S.W.2d 381, 385 (1955).3 Similarly, an expert witness is not qualified to

give an opinion about the speed of a car based upon physical markings left at the accident scene if

he or she has no familiarity with the theory behind the formula used to calculate the speed. See

Walters v. Glidwell, 572 S.W.2d 657, 658-59 (Tenn. Ct. App. 1978) (holding that an officer who

merely plugged his measurements of skid marks into a template and arrived at a speed but knew

nothing of the theory or mathematics behind the template was not an expert); State v. Jerome D.

Upman, No. 03C01-9402-CR-00052, Hamblen County, slip op. at 8 (Tenn. Crim. App Aug. 2, 1994)

(holding that the trooper properly testified as an accident reconstruction expert because he “testified

to his familiarity with the applicable mathematical equations, his background and training in those

equations, and their use in ascertaining the estimated speed of this defendant’s vehicle”); State v.

Carol H. Dougherty, No. 827, Sullivan County (Tenn. Crim. App. Jan. 9, 1989) (determining no 

abuse of discretion in permitting the expert testimony of a trooper who adequately explained the

scientific theories behind the tests he performed at the accident scene).

We acknowledge that although Officer Farmer testified that he understood the physics behind

a collision, he did not explain the scientific theory behind the speed formula that he used to calculate

the critical speed of the curve and the speed of the Mitsubishi when it lost control and upon impact.

We also observe that the defendant only made a general objection to Officer Farmer’s qualifications

at trial. The defendant did not specifically question the reliability of any speed formula or Officer

Farmer’s understanding of the scientific theories behind the formula until this appeal. Neither party

asked Officer Farmer to explain the scientific basis for the formula. We note, though, that Officer

Farmer’s testimony that the speed formula is from the Institute of Police Technology in Florida,

appears in many accident reconstruction training manuals, and is in common use throughout the

nation is probative on the formula’s reliability. His testimony that he checked his calculations made

with the speed formula against radar measurements of actual speed also suggests that the formula

is reliable. As stated earlier, the record supports the trial court’s finding Officer Farmer to be an

accident reconstruction expert. Absent specific objection by the defendant at trial, we will not fault
-21-

the trial court for the admission into evidence of Officer Farmer’s opinions about the speed of the

Mitsubishi.

 In any event, we believe that the defendant was not prejudiced by Officer Farmer’s opinion

on speed. The critical speed of the curve and the precise speed of the Mitsubishi as it entered the

curve and upon impact are far from critical because several eyewitnesses testified that the Mitsubishi

and the Camaro were speeding side by side down Fort Henry Drive, establishing that the cars were

drag racing. The defendant’s convictions stem from his participation in the drag race. Any error

would be harmless.

IV. ADMISSIBILITY OF THE COMPUTER-GENERATED VISUALIZATION

The defendant contends that the trial court should not have admitted the computerized

visualization of the accident because it was unduly prejudicial, it served no non-cumulative

evidentiary purpose, it was based upon the unqualified expert opinion of Officer Farmer, and it’s

depiction of the Camaro was purely speculative. The state contends that the trial court properly

admitted the videotape as demonstrative evidence because it accurately depicted Officer Farmer’s

testimony, it’s portrayal of the Camaro was based upon eyewitness testimony and physical evidence,

and it was not unduly prejudicial.

The admissibility of a computer-generated depiction of a witness’s testimony is an issue of

first impression in this state. Generally, to be admissible, videotapes, like photographs, must be both

relevant and a true and accurate portrayal of the recorded event or scene. Cohen, § 401.12 , at 112;

see Tenn. R. Evid. 401, 901(a). Although authentic and relevant, the videotape may still be excluded

if its probative value is substantially outweighed by its potential to prejudice the defendant unfairly

or to confuse or mislead the jury. See Tenn. R. Evid. 403. The admissibility of a relevant and

authentic videotape depicting a crime scene is within the trial court’s sound discretion and will only

be reversed based upon an abuse of that discretion. State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.

1993).

A videotaped live-action reenactment “is illustrative evidence and is valid for consideration

only to the extent that it illustrates facts otherwise shown by sworn testimony.” Clark v. St. Thomas

Hosp., 676 S.W.2d 347, 349 (Tenn. Ct. App. 1984). In Clark, the appellate court affirmed the trial

court’s admission of a videotape in which a hospital technician reenacted with a third party her

testimony that she lowered the plaintiff to the floor when his knees buckled. The court noted that

witnesses often reenact their testimony in front of the jury at trial, that the witness’s sworn testimony

remains the fundamental evidence for the jury’s consideration, and that the plaintiff was able to

cross-examine the technician. Id. at 349-50. However, we also note that due to its vivid realism,

a videotape presenting one party’s staged version of the facts presents the particular danger that the

jury will confuse the reenactment with reality and that trial court will not be able to limit its effect

with instructions. 2 John W. Strong, McCormick on Evidence § 214, at 19-20 (5th ed. 1999).

Other jurisdictions addressing the admissibility of a computer-generated videotape differ in

their analysis based upon whether they view the videotape to be demonstrative evidence or a
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scientific experiment or test. Courts and commentators make the distinction between a computergenerated animation, which illustrates a witness’s testimony and is demonstrative evidence, and a

computer simulation, in which one enters scientific or physical principles and data into a computer

program and the program analyzes the data and draws a conclusion from it. Clark v. Cantrell, No.

25088, 2000 WL 282457, at *5 n.2 (S.C. Mar. 13, 2000); see Constans, et al., v. Choctaw Transport,

Inc., et al., 712 So.2d 885, 901 (La. Ct. App. 1997) (distinguishing between an animation and a

simulation). “In a simulation the computer functions in a sense as an expert itself, rendering its own

opinion based on internal calculations of how the accident would have occurred.” Constans, 712

So.2d at 901. Thus, courts “require proof of the validity of the scientific principles and data before

admitting a simulation as evidence.” Clark, No. 25088, 2000 WL 282457, at *5; see e.g.,

Commercial Union Ins. Co., et al., v. Boston Edison Co., 591 N.E.2d 165, 168 (Mass. 1992)

(holding computer simulations to be admissible under the same standards as scientific tests);

Richardson v. State Highway & Trans. Comm’n, 863 S.W.2d 876, 882 (Mo. 1993) (holding that the

rules for the admissibility of experiments governs the admissibility of a Simulation Model of an

Automobile Collision); Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 617 (Neb. 1994) (applying the

three Commercial Union factors to a computer-generated videotape of a single-car accident); State

v. Clark, 655 N.E.2d 795, 813 (Ohio Ct. App. 1995) (holding that the methodology underlying the

expert’s testimony regarding the computer-generated reconstruction of the shooting was sufficiently

reliable based upon the three Commercial Union factors); Deffinbaugh v. Ohio Turnpike Comm’n,

588 N.E.2d 189, 193-94 (Ohio Ct. App. 1990) (using the standard for newly applied scientific

principles for a computer simulation illustrating mechanical engineer’s testimony that the tractor

trailer jackknifed two hundred yards before striking a guardrail); 1 Michael H. Graham, Handbook

of Federal Evidence § 401.7, at 224 (4th ed. 1996) (observing that in federal cases, computergenerated evidence going beyond illustration into experiment raises concerns about the reliability

of the explanatory theory used); see also Bledsoe v. Salt River Valley Water Users Ass’n, 880 P.2d

689, 692 (Ariz. Ct. App. 1994) (analyzing a computer simulation of the plaintiff’s bicycle colliding

with a cable gate and holding that at a minimum, a simulation’s proponent must show that the

simulation is a fair and accurate depiction of what it represents and that the opponent had an

opportunity to cross-examine and may also have to show the threeCommercial Union factors). But

see Pino v. Gauthier, 633 So.2d 638, 652 (La. Ct. App. 1993) (holding that computer-generated

simulations are admissible on a case-by-case basis if they accurately depict what they claim to show;

establish a fact of a party’s case; aid in the jury’s understanding; and do not unfairly prejudice,

confuse, or mislead). 

 In Commercial Union Ins. Co., et al., v. Boston Edison Co., 591 N.E.2d 165 (Mass. 1992),

the court examined the admissibility of a computer-generated simulation that calculated the amount

of steam used by the plaintiffs over a five-year-period. It held that computer-generated simulations,

like other scientific tests, are admissible if:

(1) the computer is functioning properly; 

(2) the input and underlying equations are sufficiently complete and accurate (and

disclosed to the opposing party, so that they may challenge them); and

(3) the program is generally accepted by the appropriate community of scientists.
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Id. at 168. The Supreme Court of Nebraska applied the Commercial Union factors in affirming the

trial court’s admission of a computer-generated simulation of a car’s path during an accident.

Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 617 (Neb. 1994). In Kudlacek, the expert entered the

underlying data into the computer program, which created simulations of the accident. The expert

then compared the simulations to the physical evidence from the accident scene, the speed of the car,

and testimony from witnesses to arrive at the simulation which best matched the available physical

evidence. Id. at 618. The Ohio Court of Appeals applied the Commercial Union factors in affirming

the admission of a reconstruction of a shooting based upon a computer-assisted drafting program.

State v. Clark, 655 N.E.2d 795, 812-13 (Ohio Ct. App. 1995). In Clark, the expert used a computer

program to recreate the bathroom where the shooting occurred, then used the program to determine

the location of the victim based upon the location of the gun at the time of the shooting. By

manipulating the positions of the victim and the gun, the expert was able to exclude the defendant’s

version of the events. Id. at 810. Thus, the expert used the computer program to recreate the crime

scene so that he could test certain scenarios within it. In both of these cases, the experts used the

computer programs to arrive at the reconstruction rather than to illustrate a reconstruction they had

already performed.

In Pino v. Gauthier, 633 So.2d 638 (La. Ct. App. 1993), the Louisiana Court of Appeals

parts company with the other jurisdictions treating computer simulations as novel scientific

evidence. The court analyzed a computer-generated simulation, in which a specialized program

created four possible scenarios of how the defendant lost control of his vehicle while changing lanes.

The court did not require proof on the reliability of the underlying computer program but instead

applied the same standards of admissibility applied to videotapes generally in that jurisdiction. Id.

at 652. Although it found that the simulation was relevant, the court affirmed the trial court’s

exclusion of the simulation as unduly prejudicial because it limited the opposing party’s opportunity

to present different scenarios based upon variables other than those depicted. Id. The court

determined that it was “proper to avoid the impact of the jury viewing the specially created tape,

containing only favorable outcomes.” Id. In McDaniel v. CSX Transport., Inc., 955 S.W.2d 257,

265 (Tenn. 1997), our supreme court held that Rules 702 and 703, Tenn. R. Evid., require proof that

novel scientific evidence is reliable. “Simply put, unless the scientific evidence is valid, it will not

substantially assist the trier of fact, nor will its underlying facts and data appear to be trustworthy

. . . .” Id. Without deciding the admissibility of a videotape in which the computer created, rather

than merely illustrated, the reconstruction, we believe at the very least that McDaniel would require

proof of the reliability of the computer program in addition to showing relevance and probativeness

that outweighs the potential prejudice.

Jurisdictions viewing the computer-generated videotape as merely illustrating the expert

witness’s testimony require only that the animation meet the rules of admissibility for demonstrative

evidence and do not delve into the reliability of the underlying computer program. See Pierce v.

State, 718 So.2d 806, 809 (Fla. Dist. Ct. App. 1997) (holding that to be admissible as demonstrative

evidence, a computer-generated animation must depict the opinion of a qualified expert relying upon

facts reasonably relied upon by experts in that field and must be a fair and accurate representation

of what it purports to be); Cleveland v. Bryant, et al., 512 S.E.2d 360, 362 (Ga. Ct. App. 1999)

(holding that a computer-generated animation illustrating an accident reconstructionist’s opinion of
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how the accident occurred is admissible if it fairly and accurately represents the scene it seeks to

depict); Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 890 (Iowa 1994) (affirming

the exclusion of a computer-generated depiction of a closed-head injury’s effect on the brain because

the authenticating expert did not see the accident or know the speeds or forces involved and,

therefore, could not testify that the videotape correctly portrayed the plaintiff’s injuries); State v.

Harvey, 649 So.2d 783, 788 (La. Ct. App. 1995) (holding that computer-generated still animations

of the shooting and the placement of the victim’s body were probative as a visual demonstration of

the pathologist’s testimony); Constans, et al., v. Choctaw Transport, Inc., et al., 712 So.2d 885, 901

(La. Ct. App. 1997) (holding that a computer animation illustrating the accident reconstruction

expert’s opinion on the placement of the vehicles during the accident was not unduly prejudicial);

People v. McHugh, 476 N.Y.S.2d 721, 722-23 (N.Y. Sup. Ct. 1984) (holding that a computer

reenactment of a fatal car crash is admissible in a criminal trial if it is relevant to a possible defense,

a fair and accurate reflection of the oral testimony, and aids the jury’s understanding of an issue);

Clark v. Cantrell, No. 25088, 2000 WL 282457, at *7-8 (S.C. Mar. 13, 2000) (holding that a

computer-generated videotaped animation is admissible if authentic; relevant; a fair and accurate

portrayal of the evidence to which it relates; and substantially more probative than prejudicial,

confusing or misleading); Mintun v. State, 966 P.2d 954, 959 (Wyo. 1998) (holding that the state’s

computer-generated videotaped animation of a car accident was admissible because it was authentic,

relevant, and not excluded by another rule); 1 Michael H. Graham, Handbook of Federal Evidence

§ 401.7, at 224 (4th ed. 1996) (noting that in federal cases, computer “animations are admissible

provided a foundation of sufficient similarity is presented, subject to Rule 403"); see, e.g., Tillis

Trucking Co. v. Moses, et al., 748 So.2d 874, 882 (Ala. 1999) (holding that a computer-generated

animation of an accident used as a demonstrative aid did not conflict with the testimony at trial).

Butsee Sommervold v. Grevlos, 518 N.W.2d 733, 738 (S.D. 1994) (applying a South Dakota statute

requiring the party offering computer-generated evidence to describe the program used and show that

it produced an accurate result to a computer animation illustrating an accident reconstructionist’s

testimony).

In this case, Professor Owen testified that the computer visualization depicted Officer

Farmer’s reconstruction of how the accident occurred. He explained that a computer simulation or

reconstruction uses the laws of physics to recreate the exact event whereas a computer visualization

converts an expert witness’s testimony into something the jury can see. The defendant objected to

the introduction of the videotape. The trial court stated that it would have to view the demonstrative

evidence, meaning the videotape, out of the jury’s presence. It overruled the objection, finding that

the videotape was relevant, substantially helpful to the jury, sufficiently trustworthy to be admitted,

and that its potential for prejudice did not outweigh its probative value. Before the jury watched the

videotape, the court instructed:

I caution you, this . . . would be taken like opinion evidence. In other words . . .,

there was not a movie made at the time. You need to understand that this is

something an expert has prepared and it would be considered, what you see will be

in the nature of an opinion . . . .

Professor Owen testified that he created the visualization using photographs, measurements, and
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calculations given to him by Officer Farmer; measurements of the road made by his team, which

confirmed those made by Officer Farmer; and specifications on the vehicles involved obtained from

contacts in the movie industry. He explained that he received all of the numbers regarding the

speeds of the vehicles from Officer Farmer and did not make any computations himself. Thus,

Professor Owen used the computer as a means to illustrate Officer Farmer’s reconstruction of the

accident and not to reconstruct the accident itself. We believe that the videotape is demonstrative

evidence illustrating the testimony of Officer Farmer.

However, the trial court should not have admitted the visualization because it fails to meet

the foundational requirement that it be a true and accurate portrayal of the accident it seeks to depict.

See Tenn. R. Evid. 901(a). The visualization’s depiction of the defendant’s Camaro is speculative

because Officer Farmer testified that he could not calculate the Camaro’s speed because it left no

yaw marks or skid marks at the scene. In fact, other than the photographs showing the Camaro was

not damaged on the day after the accident, no evidence exists regarding the Camaro’s path during

the accident. 

The state argues that the videotape’s portrayal of the Camaro positioned in the left lane is

supported by the testimony of three eyewitnesses who saw the cars racing down Fort Henry Drive

and by the yaw marks left by the Mitsubishi, which begin on the railroad bridge in the right lane.

It contends that the relative speed of the two cars is supported by eyewitness testimony that the cars

were traveling side by side and by Officer Farmer’s calculation of the critical speed of the curve.

Finally, it claims that the Camaro’s position entering the curve is supported by the absence of any

skid marks from the Camaro and the fact that the Camaro made it through the curve unscathed as

revealed by photographs of the car taken the next day. 

On cross-examination, Professor Owen testified that based on the fact that the undamaged

Camaro could not have occupied the same space as the Mitsubishi or the minivan at the same time,

the accident had to have happened either behind the Camaro as depicted in the visualization or in

front of the Camaro. The fact that these two possibilities exist coupled with the lack of physical

evidence from the Camaro at the scene and witnesses to the accident itself make the visualization’s

portrayal of the Camaro’s actions speculative. The trial court erred in admitting the visualization

because no evidence exists that its portrayal of the actions of the Camaro are a true and accurate

depiction of the events in question, although it shows the Camaro going at a particular rate of speed.

We turn again to the warning regarding videotapes showing one party’s staged reproduction of the

disputed facts that:

the extreme vividness and verisimilitude of pictorial evidence is truly a two-edged

sword. For not only is the danger that the jury may confuse art with reality

particularly great, but the impressions generated by the evidence may prove

particularly difficult to limit . . . by judicial instruction.

McCormick, § 214, at 19-20. The speculative nature of the visualization, coupled with the particular

dangers of the videotape medium, cause the dangers of unfair prejudice to the defendant and of

misleading the jury to outweigh the videotape’s probative value. See Tenn R. Evid. 403.
4

The defendant raises the sufficiency of the evidence in the section of his brief entitled Issues

Presented for Review, but no portion of his Law and Argument section is devoted to this issue.

“Issues which are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.” Tenn. R. Crim. P. 10(b). We decline to guess

whether the defendant meant to segue into the sufficiency of the evidence for each of his convictions

by contending that the computer visualization was circumstantial evidence. In any event, he still

fails to explain how the evidence is insufficient. 

-26-

Nevertheless, we believe that the admission of the videotape was harmless because,

considering the record as a whole, we cannot conclude that the error more probably than not affected

the judgment. T.R.A.P. 36 (b). Eyewitness testimony established that the defendant was drag racing

with Mr. Baker on Fort Henry Drive to the railroad bridge immediately preceding the curve where

the accident occurred. The defendant’s responsibility for the deaths of Mr. Baker and Mr. Bostrum

and the injuries to Ms. Gilliam and Ms. Redwine stems from his participation in the drag race with

Mr. Baker. The precise speeds of the Camaro and the Mitsubishi in the curve, as well as the position

of the Camaro relative to the accident in the time frame covered by the videotape, are largely

irrelevant. 

Presumably to show that he was prejudiced by the visualization’s depiction of the Camaro,

the defendant contends that the visualization is but one piece of circumstantial evidence. The

defendant notes that when a conviction is based exclusively upon circumstantial evidence, the

evidence must exclude every other reasonable hypothesis except that of the defendant’s guilt. See

State v. Adams, 916 S.W.2d 471, 476 (Tenn. Crim. App. 1995). He argues that the state failed to

meet its burden of proof for convictions based upon circumstantial evidence because it has not

excluded every other reasonable hypothesis such as that of the Camaro substantially reducing its

speed as it went into the curve. Although we believe this argument to be more akin to a claim that

the evidence is insufficient,4 it is nonetheless without merit because the defendant’s convictions are

not based exclusively upon circumstantial evidence.

V. INSTRUCTION ON FLIGHT

The defendant contends that the trial court erred by instructing the jury on flight. He argues

that the evidence shows only that he left the scene of the accident, a circumstance which is 

insufficient to support a flight instruction. The state contends that the trial court properly instructed

the jury on flight as follows:

The flight of a person accused of a crime is a circumstance which, when

considered with all the facts of the case, may justify an inference of guilt. Flight is

the voluntary withdrawal of oneself for the purpose of evading arrest or prosecution

for the crime charged. Whether the evidence presented proves beyond a reasonable

doubt that the defendant fled is a question for your determination.

The law makes no precise definition as to the manner or method of flight; it

may be open, or it may be a hurried or concealed departure, or it may be a
-27-

concealment within the jurisdiction. However, it takes both a leaving the scene of

the difficultyand a subsequent hiding out, evasion, or concealment in the community,

or a leaving of the community for parts unknown, to constitute flight.

If flight is proved, . . . the fact of flight alone does not allow you to find that

the defendant is guilty of the crime alleged. However, since flight by a defendant

may be caused by a consciousness of guilt, you may consider the fact of flight, if the

flight is so proven, together with all of the other evidence when you decide the guilt

or innocence of the defendant. On the other hand, an entirely innocent person may

take flight and such flight may be explained by proof offered, or by the facts and

circumstances of the case.

Whether there was flight by the defendant, the reasons for it, and the weight

to be given to it, are questions for you to determine.

It is well-settled that the fact that a defendant fled “from the vicinity where the crime was

committed, with knowledge that he was likely to be arrested for the crime or charged with its

commission, may be shown as a circumstance tending to indicate guilt.” State v. Williams, 638

S.W.2d 417, 421 (Tenn. Crim. App. 1982). However, in State v. Whittenmeir, 725 S.W.2d 686, 688

(Tenn. Crim. App. 1986), the court held that it is improper to instruct a jury on flight if no evidence

exists to support it other than the fact that the defendant left the scene. The court held that flight

requires both a leaving of the scene and a subsequent hiding out, evasion, concealment in the

community, or leaving of the community. 

The defendant contends that the instruction on flight was not warranted because the evidence

shows only that he left the scene after the accident and that no evidence existed that he hid out or

otherwise tried to evade the police. He further argues that he surrendered to the police. At trial,

Tracy Shipley testified that he came upon the accident almost immediately after it occurred and saw

a red Camaro return to the crash scene. He saw someone jump out of the Camaro and jump back

inside. The Camaro then turned around and drove away from the accident at a high rate of speed.

Detective Ralph Kline testified that he spent the rest of the night of March 20 and the early morning

of March 2l unsuccessfully trying to locate the defendant, including checking the defendant’s

residence. We hold that these facts support an instruction on flight. The fact that the defendant later

surrendered does not diminish the fact that he earlier left the scene and concealed himself such that

he could not be found by the authorities.

VI. SENTENCING

The defendant contends that the trial court erred in sentencing. Specifically, he argues that

it erred by applying certain enhancement factors, by imposing consecutive sentences, and by denying

a sentence alternative to straight incarceration. The state contends that the trial court properly

sentenced the defendant. 

Appellate review of sentencing is de novo on the record with a presumption that the trial

court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
-28-

Commission Comments to this section note, the burden is now on the defendant to show that the

sentence is improper. This means that if the trial court followed the statutory sentencing procedure,

made findings of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court's action is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate review, 

the trial court must place on the record its reasons for arriving at the final sentencing

decision, identify the mitigating and enhancement factors found, state the specific

facts supporting each enhancement factor found, and articulate how the mitigating

and enhancement factors have been evaluated and balanced in determining the

sentence. T.C.A. § 40-35-210(f) (1990). 

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evidence, if any, received at

the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and

arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,

(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on

his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,

-103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986). 

The sentence to be imposed by the trial court for a Class E felony is presumptively the

minimum in the range when there are no enhancement or mitigating factors present. Tenn. Code

Ann. § 40-35-210(c). Procedurally, the trial court is to increase the sentence within the range based

upon the existence of enhancement factors and then reduce the sentence as appropriate for any

mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing

factor is left to the trial court's discretion so long as it complies with the purposes and principles of

the 1989 Sentencing Act and its findings are adequately supported by the record. Tenn. Code Ann.

§ 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; seeAshby, 823 S.W.2d

at 169. The law provides no presumptive minimum for misdemeanor sentencing. See e.g., State v.

Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in misdemeanor sentencing, the

trial court must consider the purposes and principles of the Criminal Sentencing Reform Act of 1989.

Tenn. Code Ann. § 40-35-302(d).
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At the sentencing hearing, the state introduced a certified copy of a conviction the defendant

received in Virginia for driving while intoxicated. The offense occurred on May 13, 1997, and the

conviction was entered on July 18, 1997. The state also introduced into evidence the defendant’s

convictions in Tennessee for the October 1997 offenses of underage consumption, driving on a

revoked license, and possession of a schedule IV narcotic. The affidavit of complaint regarding the

October offenses was read into evidence. In the affidavit, an officer reported seeing the defendant

drive erratically and pull into the path of another vehicle, narrowly avoiding collision. When the

defendant stopped at a convenience store, the officer noticed an odor of alcohol on his person. The

officer patted down the defendant for safety and found a prescription bottle, which the defendant 

tried to hide. The defendant removed the bottle from his pocket and threw it against the store.

Testing of the contents of the bottle revealed schedule IV narcotics.

 

A presentence report was introduced into evidence. The report shows that the defendant was

twenty-one years old at the time of sentencing. It reflects the previously mentioned convictions, as

well as two 1995 convictions for speeding. The report reflects that in the ninth grade, the defendant

was placed in an alternative school for disciplinary problems but was suspended from the alternative

school after two weeks. The defendant then became a homebound student but quit school due to a

lack of interest. The defendant has since worked for his father’s shoe repair business. The defendant

reported good physical health. He stated that he began drinking alcohol socially at age seventeen.

He said that he drank heavily between March and October 1997 but that he has since been spending

time with friends who do not drink. He admitted using Xanax and marijuana in the past and reported

his last drug use to be in October 1997. The defendant’s mother reported that the defendant has been

attending informal counseling with his pastor every week. The presentence report also reflects

statements from the deceased victims’ families explaining the devastating impact of the victims’

deaths on their lives.

The trial court sentenced the defendant as a Range I, standard offender to two years for each

conviction. It applied enhancement factors (1) and (2), that the defendant has a previous history of

criminal convictions or behavior in addition to those necessary to establish the range and that he was

a leader in the commission of an offense involving two or more criminal actors, to all offenses.

Tenn. Code Ann. § 40-35-114(1), (2). For the reckless endangerment convictions, the trial court

applied factor (6), that the personal injuries inflicted upon or the amount of damage to property

sustained by or taken from the victims was particularly great. Tenn. Code Ann. § 40-35-114(6). In

mitigation, the trial court refused to consider the defendant’s youth at the time of the offense under

mitigating factor (6) due to his exposure to the juvenile justice system but did consider the

defendant’s youth under mitigating factor (13), giving it little weight. Tenn. Code Ann. § 40-35-

113(6), (13). The trial court ordered the defendant’s sentences to run consecutively, finding that the

defendant is a dangerous offender whose behavior indicates little or no regard for human life and

who has no hesitation about committing a crime when the risk to human life is high. Tenn. Code

Ann. § 40-35-115(b)(4). In denying an alternative sentence, the trial court considered the

circumstances of the offense, the defendant’s drug use and social history, and his criminal record.

Tenn. Code Ann. § 40-35-103(1)(A). The trial court also considered the defendant’s “pattern of

abuse of an automobile on the public highways of this state and other states,” and determined that
-30-

an alternative sentence would not be in the best interest of the public and would diminish the

seriousness of the offenses. Tenn. Code Ann. § 40-35-103(1)(B).

A. Enhancement Factors

The defendant contends that the trial court erred by applying enhancement factors (2) and (6).

With respect to factor (2), that the defendant was a leader in an offense involving two or more

criminal actors, the defendant contends that the trial court erred because he was the only convicted

criminal actor. The state contends that the factor does not require that the other criminal actors be

charged, much less convicted. It argues that the factor merely requires that there be other criminal

actors and that the defendant be a leader.

Factor (2) provides for enhancement when the defendant is “a leader in the commission of

an offense involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-114(2). With

respect to the criminally negligent homicide of Mr. Bostrum, Mr. Baker was a criminal actor in that

he engaged in criminally negligent conduct which resulted in Mr. Bostrum’s death. By inviting Mr.

Baker to join him in the conduct that eventually resulted in that death, the defendant was a leader in

the commission of the criminally negligent homicide of Mr. Bostrum. We do not believe, however,

that Mr. Baker was a criminal actor with respect to his own death. In this respect, we cannot say that

factor (2) applies to the defendant’s conviction for the criminally negligent homicide of Mr. Baker.

Nevertheless, we do not believe that the trial court’s misapplication of this factor justifies a reduced

sentence, considering the other enhancement factors. 

We believe that the trial court properly applied factor (2) to both reckless endangerment

convictions. Mr. Baker was a criminal actor by engaging in conduct that placed Ms. Gilliam and Ms.

Redwine in danger of imminent death or serious bodily injury. By orchestrating the events, the

defendant was the leader of that conduct. The fact that the defendant was the only person convicted

does not render the factor inapplicable, as the plain language of the statute requires only another

criminal actor. The evidence is sufficient to support the trial court’s finding that the defendant was

a leader in an offense involving two or more criminal actors. 

The defendant contends that the trial court erred by applying factor (6), that the victims

sustained particularly great personal injuries or property damage, to hisfelonyrecklessendangerment

convictions. He argues that this factor is inapplicable because his car never made contact with the

Gilliam and Redwine vehicles. The state contends that the trial court properly applied the

enhancement factor. We agree. The defendant’s reckless endangerment convictions are the result

of his engaging in drag racing, conduct “which places or may place another person in imminent

danger of death or serious bodily injury.” Tenn. Code Ann. § 39-13-103(a). Thus, reckless

endangerment can occur although no contact is made and no one suffers injury. SeeState v. Ramsey,

903 S.W.2d 709, 712 (Tenn. Crim. App. 1995). As a result of the defendant’s reckless conduct, Ms.

Gilliam and Ms. Redwine suffered particularly great personal injuries and property damage. Ms.

Gilliam suffered a broken left leg, a crushed right leg, broken toes, a broken foot, and a broken

elbow. She was hospitalized for three weeks. Ms. Redwine suffered glass lacerations on her head,
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hand, and left arm. She suffered burns on her chin and face and was bruised on her left side. Both

vehicles were severely damaged. Because the defendant engaged in conduct that placed the victims

in imminent danger of death or serious bodily injury, the victims’ resulting injuries are attributable,

at least in part, to him, regardless of whether their cars made contact.

B. Consecutive Sentences

The defendant contends that the trial court erred by imposing consecutive sentences. He

argues that the evidence does not support a finding that he is a dangerous offender from whom

society needs protection. He argues that his youth and his current life and work history support

concurrent sentencing. The state contends that the record supports the trial court’s finding that the

defendant is essentially a menace to society when he is driving. 

A trial court may impose consecutive sentences when “[t]he defendant is a dangerous

offender whose behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(4). In

addition, “consecutive sentences cannot be imposed unless the terms reasonably relate to the severity

of the offenses committed and are necessary in order to protect the public from further serious

criminal conduct by the defendant.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

In finding the defendant to be a dangerous offender, the trial court considered the defendant’s

speeding tickets before the offense, the circumstances of the offense, and the defendant’s conduct

after the offense. The trial court determined that the defendant’s conduct, demonstrating a pattern

of irresponsible operation of a vehicle, warranted a dangerous offender finding. It determined that

the sentences reasonably related to the severity of the offenses and that a long period of incarceration

was necessary to protect the public.

The defendant has not shown that the trial court’s imposition of consecutive sentences was

improper. As the trial court determined, the defendant, although young, has displayed a pattern of

irresponsible and reckless driving showing his disregard for the driving laws of this state before,

during, and after the commission of the present offenses. Of particular concern is the defendant’s

apparent inability to recognize the seriousness of his conduct. After the present offenses, the

defendant continued his dangerous and reckless behavior by driving while intoxicated and driving

on a revoked license after illegally consuming alcohol. The record supports the trial court’s findings

that the defendant is a dangerous offender and that consecutive sentences reasonably relate to the

severity of the offenses and are necessary to protect the public.

C. Alternative Sentencing

In his statement of the issues, the defendant contends that the trial court erred by denying a

sentence alternative to straight confinement. However, in the argument section of his brief, the

defendant merely states that he is presumed to be a favorable candidate for alternative sentencing.
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See Tenn. Code Ann. § 40-35-102(6) (defendants convicted of Class E felonies are presumed to be

favorable candidates for alternative sentencing absent evidence to the contrary). The defendant does

not explain how the trial court erred and makes no citation to the record or to authority. Under these

circumstances, we view the issue to be waived. See T.R.A.P. 27(a)(7). Nevertheless, we have

reviewed the record and conclude that the trial court properly denied alternative sentencing based

upon the circumstances of the offense, the defendant’s criminal record, his drug use, his social

history, and his “pattern of abuse of an automobile on the public highways of this state and other

states[.]” The record supports the trial court’s determination that an alternative sentence would not

be in the best interest of the public and would diminish the seriousness of the offense. Tenn. Code

Ann. § 40-35-103(1)(A), (B).

CONCLUSION

Based upon the foregoing and the record as a whole, we affirm the defendant’s convictions

of criminally negligent homicide, drag racing, and leaving the scene of an accident involving death

or injury. We merge the finding of guilt for the reckless endangerment of Ms. Redwine, count four,

into the conviction for the reckless endangerment of Ms. Gilliam, count three. The judgment of 

conviction for count four is vacated, and the defendant’s effective sentence is modified to six years

in the Department of Correction and fines totaling ten thousand dollars.