### 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 f or two counts

of criminally negligent homicide, two coun

ts 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 no t put him on notice tha

t he would be defending against a theory of criminal responsibility, tha

t he is not criminally responsible for the actions of the decease

d vic t ims, that the officer was not qualified to testify as an accident reconstructionexpert, that the computer-generated videotape of the accident was inadmissible, that the trial court should not have instructe d the jury on flight,

and that the trial c

ourt 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 o f the other driver. We conclude that the defendant was properly held criminally responsible for the deat h of the passenger and the other victims’ injuries, but we merge the two reckless endangerment convictions pursuant to the Double Jeopardy Clause. We hold tha t the officer wa

s 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

T IPTON , J., delivered the opinion of the court, in which W ADE , P.J., and O GLE , J., joined.

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

. Farner, Jr.

Paul G. Summers, Attorney General& Reporter; Patric ia C. Kussmann, Assi

stant Attorney Ge

neral; H. Greeley Wells, Jr., District Attorney General; and Teresa Murra y-Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION-2-

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 negligenthomicide, 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 o r 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 re ceived

a three-thousa

nd-dol lar fine for each of the felonies and a five-hundred-dollar fine for ea ch of the misdemeanors for

a total of thirtee

n thousand dollars.

He contends that :

(1) the presentm

ent did not give notic

e that he would be r

equired to defen

d against a theory of criminal responsibility;

(2) he is not criminally responsible for the de aths of Landon Bak er and Chris B ostrum or for the injurie s sustained by Ter

esa Gilliam and Pri

scilla Redwin

e because Mr. Bake

r’s car caused

the accident;

(3) Officer Dale Fa

rmer was not quali

fied to testi

fy as an expert in accident reconstruction;

(4) the computer-genera

ted visualization video tape was not admissible because it was ba sed upon information, opinions and assumptions by Officer Farmer and upon information not in the record;

(5) the trial court sho uld not ha ve instructed the jury on flight based upon the defendant’s absence from the accident scene; and

(6) the trial court erred in sentenc ing 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 ra

cing and leaving th

e sc ene of

an accident involving death or injury. We merge the two counts of f elony reckless e

ndangerm ent into a single judgment of conviction and modify th e e ffective sentence accordingly to a total of six-years confinement and ten thousand dollars in fines.

The defendant’ s con victions 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.-3-

At trial, Holly Dene

ll Harris testified as follows: On the evening of March 20, 1997, she was in her Camaro with he

r sister, Nikki Har

ris; Mr. Bostr

um’ s sister, Nikki Larkins; and her friend, AprilConkin. They had re ceived a page f

rom 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 i n Mr. Ba ker’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 h

is head from side to

side. She said she thought that Mr. Baker wa

s not really paying attention to the defendant. Mr. Bostrum came over and tol d her th at 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 he r spot when the defendant sta rted leaving, re

vving his engine an

d squealing his tire

s. The defendant took th

e rear exit out of the parking l

ot onto Colonial Heig

hts 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 sai d 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 learne

d of the deaths.

Tracy Shipley testified that between 9:00 and 10:00 p.m. on March 20, 1997, he was driving towardKingsport on Fort H en ry Drive, a four-lane divided highway. He was traveling in the left lane at forty to forty-five miles per hou r, and a Toyota pickup truck was two car-lengths ahead of him in the right lane. A

s he approached

the green light at the intersection with Colonial Heights Road, he sa w a white car turn right from Colonial Heights Road into the right lane of For t Henr y Drive. He said that a red Camaro withtinted side windows followed it without stopping for the red light. He said tha t the Toyota pickup swerved into the left lane to avoid hitting the Camaro. He stated that the two cars went about one hundred feet thenaccelerated a

nd that he lost sight o

f 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 be

lieved that the Cam

aro was in the lef

t lane and the Mitsu

bishi in the right

lane. He estimated that the cars were traveling in excess of seve nty miles per hour b

ased upon his previous experience in law enforcement. He said that he did not see brake lights on either car.-4-

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 towardJohnson City astride the center line. Hesaid someone jumped into the passenger side of the Camaro, which made a U-turn and drove toward Kingsport a t high speed. He ad

mitted that he could
notsay 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 th e window. He said he

saw a red car a

nd a white car goi

ng toward Kingspor

t.

Elizabeth Reynolds testified that in March 1997, she wor ked at the Texaco service station and convenience market at the corner of Fort

Henry Drive and Moreland Drive. She said that she

was at t he 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 lan e and a white car in the right lane. Sh

e said that she cou

ld 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. Hesaid 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 th at between 9:30 a

nd 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 sid e, traveling at

least seventy to se

venty-five miles p

er hour. He said t

hat 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-5-

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 loo ked in his rearview mirror and saw sparks and brake lights onboth 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 aga

in, told them to

send more help because others were involved in the accident and advisedthem 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 MorelandDrive, talking with two other officers from the Second Judicial Drug Task Force. He said that he heard the soun

d of cars approa

ching at high spee

d from C olonial Hei ghts 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 Mitsubis

hi.

Stanley Kei th 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 c aused him to look to

the intersection. He said that he sa w 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 estimatedthat 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 l ater, he heard a loud collision. He said that he called Central Dispatch to report a possible accident an d followe d Officer Bishop to the accident scene. He said as he arrived, a green Volvo was coming to a stop in th e emergency lane. He said that he saw the front end of a white car flipped over on For t Henr y Drive with its passenger compartment on the guardrail. He said that he saw a minivan in the road witha female

lying nearby. He stated that he and Officer Bishop searched the area for the red car, looking over the guardr

ail with a flashligh

t. He said he directed traffic at the accident scene for two hours anddid 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 retu

rn within the first f

ive minutes of his ar

rival.

Teresa Gilliam testified th

at late on the eve

ning of March 20, 1 997, she was retur ning to-6-

Colonial Heights from the Wal-Mart on Fort Henry Drive in her gold Chrysler Town and Country Mi n ivan. She said that she remembered driving south on Fort Henry Drive toward Hammond Bridge and that she ne xt remembers being in an ambulance. In the accident, Ms. Gilliam broke her left femur, her low er lef

t 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 hom e for two months thereafter. At the time of trial, she was still using a crutch and undergoing p hysical therapy. She reported that her doctor was uncertain about whether her r ight leg would need further treatment.

Priscilla Abbott Red wine testified tha

t she is a resident o

f Colonial Heights

and a nurse at Holston Valley Hospital. She said that on the evening of Ma rch 20, 1997, she w

as 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. S he said t hat 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 g

lass all over her

. She said that she noticed an unusual smell and thought that she should get out of the

car quickly. She s

aid that she moved i

nto the back se

at 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 aroundColonial Heights for two hours but did not f

ind them. He said that he did not know that Mr. Moore called the police station at 1:00 a.m. on the 21 st

.
Officer Robert Da le Farmer of the Kingsport Pol ice Department t

estified as an ex

pert in accident reconstruction.

He said that on the

night of March 20,

1997, he was calle

d 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 approa ched the rai lroad bridge, he saw a green Volvo with extensive front-end damage against the guardrail on the southbound shoul

der. He said that he saw a gold Chrysler Town and Country Minivan resting crosswise in the southbound lanes facing the guardrail on t

h e southb ound shoulder. He said that he saw a white Mitsubishi on the southbound shoulder against the guardrail. He said that the driver, Mr. Baker, an d 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 theaccident. He said that it was 6.5 tenths of a mile from the Coastal Mart parking lotto 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-7-

bridge show that the Mitsubi shi traveled fro

m t he right northbound lane of Fort Henry Drive i

nto the southbound lanes, a distance of five hundred and forty-four feet. He said that yaw marks are caused by a ca r 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 stat ed that the impact p ushed the minivan’ s dashboard to with in 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 hi t the Vol vo. 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 op ened, and that its

hood was up. He said that the Mitsubishi’s front wheels and engine

compartment split f

rom the rest of the

car and came to r

est upside down in the left southbound lane. He said that the rest of the Mitsubishi landed on the southbound guardr ail behind the Volvo.

Officer Farmer testified that

the critical spee

d 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 sai d tha t he calculated t he critical spee

d of the right lane

of the curve in which the Mitsubishi lost

control by first determining the circumference of the circle that contained the ya w marks. He said that in order to calculate the circumference, he first measured the chor d, which is a straight line be tween the two end

s of the yaw ma

rk, and t hen calculated t he 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 t he road with an instru

ment called a dra

g sled. He said fr

om 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 tra

vels 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 Mitsub

ish i 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. H e sai d that he determin ed the radius of th

at point of the yaw . He said that to determine the speed of the center mass of the car, he subtracted half of the tra ck w idth 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 theMitsubishi 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 6 4.11 miles per hour

when it hit

the minivan. He said that a true critical

s peed 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-8-

photographs of the area and the accident scene to Professor Neil Owen, who created acomputergenerated visua

lization of the ac

cident.

Officer Farmer testified

that on the evening

of the accident,

he directed

officers to look for the defendant, Mr. M

oore, and a red C

hevrolet Camaro S

upersport. He sa

id th at the defendant’s attorney contacted the police the morning of March 21and that officers foun d the defen dant, Mr. Moore, and the Camaro at the attorney’s of

fice 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 f

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

northbound lane would notvary 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 sa

id 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 consensua l. He said that he k

new that Mr. Moore

gave a st atement to Off

icer Ferguson over the telephon e and that he got a

copy of the statement on the evening after th e accident. He admitted that he did not give Mr. Moore’s statement to Professor Owen to use in cre ating the visualization of th

e accident.

Professor Ro bert Neal Owen, director o f the Advanced V

isualization Labo

ratory at East Tennessee State University, testified as an expert in computer visualization. He described computer visualization as a form of storytelling in whichhe creates a “copy of reality” with a computer. He said that a visualization is based upon information f rom an expe rt whereas a simulation or reconstructionuses the laws of physics to recreate exactly what happened physically. He stated that this was the first visua

lization of a car

accident crea

ted by his laborato

ry. He said that in o

rder to

cr eate the videotape, he

used information o

n the vehicles invo

lved, including the

speeds at whic h they were traveling;

the physical char

acteristics of th

e road such as t

he size , shape and slope; and the locations of the vehicles after the accident.

Professor Owen testified tha

t he based the dep

icti o n of the actions of the Camaro on info rmation f

rom Officer Farmer. He said that Officer Farmer’s accident report stated tha t 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 theMitsubishi at the beginning of the videotape in or

der for it to be beside the Mitsubishi at the railroad bridge because it was going slower than the Mitsubishi as it entered the cur

ve. He said that Of

ficer Farmer tol

d him that the Camaro traveled thecurve 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 oneor two miles per hour, then the difference in speedswould 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 visu alization shows the accident from-9-

five viewpoints: from an overview, theMitsubishi, the Camaro, the minivan, and the Volvo. Each viewpoint is shown at three spee ds: fu ll speed, one-half speed, and one-quarter speed. The visualization shows the accident as follows: the Camaro, which is in the n orthbound lef t lane, is traveling in front of the Mitsu bishi, which is

in the right lane. The

Mitsubishi accele

rates, 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 thesouthbound 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 northbou nd le ft lane into the southbound left lane. The passenger side of the M itsubishi hits the front of the minivan in the southbound left lane. The Mitsu bishi rotates through th e air, and the re

ar of the Mitsubishi

hits the Volvo, whic

h is inth e 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 p

resentment did

not give him notice

that he would have

to defend against a theory of criminal responsibility for the dea ths 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 wa s not in volved in the acc ident and, theref

ore, that he was n

ot the direct and p

roximate

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

Mr. Baker’s an

d Mr. Bostrum’s co

nduct and in part f

rom his conduct bec

ause it portrays his car as menacing the minivan and Volvo as it rounded the cur

ve at close

to the critical speed. Thus, he contends that the presentme

nt permitted the jur

y to convict him of the charges withoutdistinguishing be tween the differ

ent causes. The state conten ds that it was not required

to include the theor

y of crimina

l responsibility

in the presentmen

t.
Count one of the pre

sentment charg

es in pertinent pa

rt that the defen

dant:

on or about March 20, 199 7 . . . did unlawfully, feloniously, knowingly , and recklessly and as the proximate result of the operation of a motor vehicle in a manner creatin g a substantial risk of death and serious bodi ly injury, kill Landon D. Ba ke r

. . . .

Counttwo contains identical language with the exception that the victim is Christopher A. Bostrum, Mr. Baker’s pa

ssenger. Count th

ree alleges th

at the defendan

t:

on or about March 20, 1997 . . . di d unlawfully, feloniously, and knowingly , cause serious bodily injury to an other, Tere sa 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 responsibili

ty is no t 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 crimina

lly 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 t he pe rson is criminally responsible, or by both. (b) Each party to an offense may be charged with commission of the offense.

-10- 173 (Tenn. 1999). An indictment or presentment cha

rging the def

endant with an off

ense necessar

ily includes the defendant’s criminal responsibility for the offense. Id. Furthermore, Tenn. Code Ann. § 39-11-401 1 puts every defendant on notice t hat his or her respons

ibility for a

nother’s conduc

t is covered by an indictment

alleging that he or she committed a crime. Thus, the state did not have t

o 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 convic

ted the defenda

nt 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 thespecific facts of that case, which involved two assaults by two separate assailant s, the indi ctment char ging a single aggr avated assault

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

We question whether the limited exception de scribed i n Barnes is valid in light of Tenn. Code Ann. § 39-11-401. We note that the pre-1989 statute a lso 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 inst

rument 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 aid ing and abet ting 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 indictmen t , 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 fact ually dist inct. Barnes emphasizes that the case involved two assaults to a single victim and the indictment charged only one. Here a single a ccident

resultedin two deaths a

nd two vic tims with injuries. The presentment charges two vehicular homicides and two aggravated assaults. The presentment is not ambiguous.

Furthermore, the fact that the j ury could ha ve convicte

d the defend ant 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 wa s 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 responsi bility 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 i s equally true in the present case in which the presentment

charges only a si ngle crime re lating to each separate victim. The p resentment is sufficient.

II. CRIMINAL RESP ONSIBILITY

The defendant contends that he is not criminally responsible for the deaths of Mr. Baker and Mr. Bostrum or the injuri es 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 n ot commit criminally negligent homi cide u pon themselves and that, therefore

, he cannot be cr

iminally responsibl

e for their deaths. The state conte nds tha t the defendant is criminally respon

sible for any othe

r crime committed by th e 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 de fendantand 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 off ense, 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) Hav ing a duty imposed by law or voluntarily

undertaken to pr

event th e commission of the offense and actingwith intent to benef it in the proceeds or

results of the offense, o

r to promote

or assist in

its commission, the person fails to make a reasonable effort to prevent commission of the offense.

T enn. Code Ann. § 39-11- 402. To be crimina

lly responsible fo

r the acts of anot

h er, a defendan t 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, th e defendant must

“‘knowingly, voluntarily and with common intentunite with the princ ipal . . . in th e commission of the crime.’” Maxey , 898 S.W.2d at 757 (quoting State v. Fost

er , 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). The requisite criminal intentmay 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 prin cipal offender in pursuance of the common purpo se or as a natura

l and probable co

nsequence 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 clea

rly established beyon

d a reasonable

doubt standard that Farner [defendant] and Baker [deceased] were involved in a highspeed race just prior
to and during the events that broug ht 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 convic

ted the defenda

nt for the death

of Mr. Bostrum and the injuries to Ms. Gilliam and Ms.

Redwine on a

theory of his crimi

nal responsibility for the actions of Mr. Baker. It found that notw ithstanding Mr. Baker’s status as a co-perpetrator of the drag race, the d e fendant was cri minally responsible

for Mr. Baker’s d

eath because it w

as a natural and probable consequence of the dra g rac e. It also found tha

t the defendant w

as 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 a

s just collateral to

the drag race. It was the going out of co ntrol by Bake r during the drag race between Farner and Baker that resulted in the death of Baker. Baker’s acts, although contributory to his own death, would not re lieve Farner of his own criminal re sponsibility in the death of Bak

er. Drag racin

g is malum in

se and contributory negligence constitutes no defense.

(Citations omitted).

A. Criminally Negli gent 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 negligen ce” refers to a person who ac ts with criminal neg

ligence with respect to the circumstances surrounding the person’s conduct or the result of t ha t conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances e

xist or the result w

ill occur. The risk must be of such a nature and degree that the f

ailure to perce

ive it constitutes a

gross deviation from

the standard of care that an ord

inary person woul

d exercise unde

r allthe circumstances as viewed from the accuse

d person’s standp

oint.

The defendant contends that in order for him to be crimin

ally responsible

for a criminally negligent2 Anyone who participates in a drag race o

n a public highway c

ommits a Class B misdemeanor. Tenn. Code Ann. § 55-10-502. Tenn. Code Ann. § 55-10-501(1) defines drag racing in pertinent part a

s:
(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 v

ehicles within a c

ertain distance

or within a certa

in time limit; (D) The use of (1) or

more motor vehicle

s 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
outof an y challenge , made orally, in w riting, or otherwi

se, made or rece

ived 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 her

e in defined, and also any person or persons who arrangefor, supervise, or in any way and manner set in motion any such “dra g 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).

-13- homicide, he must have been aiding or at tempting to aid someo ne who committed a c

riminally negligent homicide. The principal must be guilty of the crim e 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 tria

l reve aled that the defendant and Mr. Baker were drag racing 2 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 tha

t is the natural and

probable consequenceof Mr. Baker’s participation in the drag race. See Carson , 950 S.W.2d at 955 (hold ing that “an aider and abettor should be criminally

responsible for t

he criminal harms

they have naturally, probably and for eseeably 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 crimin

ally negligent conduct, the drag race, which resulted in Mr. Bostrum’s death. The defendant is criminally responsible for the c riminall y 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 thatresulted in the deaths and injuries. Our supreme court ha

s held that a participant

in a drag rac e who is not involved in a collision between another racer and a nonparticipant

remains responsi

ble for the non-participant’s death as an aider and abettor. Stallard v. State
, 209 Tenn. 13, 17, 348 S.W.2d489, 490 (1961). In Stallard , Green arrang ed for Bennett to drag race with Sta

llard and then rode with Stallard during the race.

Stallard’s car c

ollided with

an othercar killing a pass enger, while Ben

nett’s car had no

contact with the a

ccident. Bennett

co nt endedthat 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 w hich resulted in the death of Mrs. Dampier.” Id. The court held tha t Bennett ’ s participation in the race justified his conviction as an aider and abettor despite the fact that he did
notcollide 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 claim

s that he cannot be

convicted based

upon his criminal r

esponsib ility when the principal has not committed a c rime. We believe

that the defenda

nt is di rec tly rather than collaterally

responsible for M

r. Baker’s deat

h because he and

Mr. Baker were d

rag racing in

concert, and Mr. Baker’s dea

th was a proximate and for

eseeable resul

tof the race. Although no Tennessee

cas e 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. 199 5), 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 resultedin the deaths of Ha ll and two bystander

s. The defendant was convicted of three counts of involuntary manslaughter by a motor

vehicle. The cou

rt held that the de

fendant’s parti

cipation in the drag race “bore a sufficiently direct causal connect

ion” to his co-par

ticipant’s death t

o support the conviction. Id. at 944; see State v. Melcher , 487 P.2d 3, 8 (Ariz. Ct. App. 1971) (holding th e defendant responsible for the other

racer’s death because they were jointly engaged in the race and the act of racing was the proximate ca use of the death) ; State v. McFadden , 320 N.W.2d608, 613, 617 (Iowa 1982) (not

ing that the requir

eme nt s of foreseeabi

lity and reckless

ness prevented a

n unjust result for a defendant convicted of the involuntary mansla

ughter of anothe

r racer); see also State v. Escob ar , 633 P.2d 100, 104 (Wash. Ct. App. 1981) (holding that the defendant’s racing was th e proximate

cause of the co-participant’s collision and death under Washington’snegligent 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. Goldri ng , 654 A.2 d at 944; see McFadden , 320 N.W.2d at 611 (holding that the victim’s voluntary and reckless participation in the dr ag race did not prevent the defendant’s conviction for involuntary manslaughter).

In State v. Plaspohl , 157 N.E.2d 579 (Ind. 1959), the defendan t’s pass enger, 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, findi ng t hat by actively participating in the race, thevictim 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 crimina l prosecution; this doctrine has no place in criminal law, and it cannot

in any degree purge an act which othe

rwise constitutes

a public offense

of its crim inal 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. Cri minal Law § 52, at 116-17). T he court reason

ed that reckless homicide is a crime against the state and that the victim’s active participation in the drag r ace did not bar the defendant’s conviction for his crime against the state. Id. at 581.

We notethat some jurisdict ions have held

that the deceased racer’s participation in the race supervenes the defendant’s participation as t he proximate

cause of death. Velazquez v. Sta te , 561 So.2d 347, 354 (Fla. Dist. Ct. App. 1990) (holding thatthe 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 ca use of death from the cause of a condition which presents the opportunit

y for dea th 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 cau

se to criminal la

w 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 at354 (determining that it is unfair to hold the defend

ant liable when the deceased effectively killed himself); Root , 170 A.2d
at 314 (noting that the deceased was aware of the danger crea ted 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 th

e reasoning of the

dissenting interme

diate appellate judge t

hat 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) (Schw ab, C.J. dissenting)

(listing professio

nal racetrack

drivers, skydiv

ers , 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 particip

ants joined in the r

ecklessconduct knowingly and voluntarily).

We believe that the b

etter reasoned

result is to hold those who dra g race in concert direct

ly responsible

for the proximate and foreseeable results of the drag race. Our statute defining drag racing clearly contemp

lates sanctioning

participants

acting in concer

t because it specifies the “

use of one (1) or more motor vehicles” and the “performance abilities of on e ( 1) or more motor vehicles[.]” Tenn. Code Ann. § 55-10-501(1)(C), (D), (E). Furt hermore, t his 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 thedrag race does not relieve the defendant of his liability for his participation in the offense. Thus, thedefendant should face the consequences stemming from his own participation in the drag race.-16-

In this case, Holly Harris testifiedthat while they were at the Coastal Market, the defendant askedMr. Baker when they would “run” their cars. Witnesses saw the defendant’s Camaro and Mr. Ba ker’s Mitsubishi travel north on Fort Henry Drive side by side at a high rate of speed. Trac y Shipley saw the two cars together on the railroad bridge which precedes the curve. The yaw marks

on the road revea

led that Mr. Baker

lost control of his ve

hicle 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 defe ndant also conten ds that he, Mr. Bake

r, and Mr. Bostrum w

ere co-perpe

trators in the drag race. He analogizes his case to that of Statev. Severs , 759 S.W.2d 935, 938 (Te nn. 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 han ds of the robbery victim because th

e death was not in furtherance

of the felony. He maintains that the deaths of Mr. Baker and Mr. Bostrum were n

ot in furtherance

of the crime of drag racing but in direct contrave nti on of the purpose of the race. In Severs
, we h eld 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 complete

ly unrelated to the c

rime of criminally negligent ho micide, in which the perpet rator acts neglig

ently rather tha

n intends a result. This issue is without merit.

B. Reckless Endanger

ment

The defendant also c

ontends that he is no

t criminally respo

nsible for the injur

ies 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. Redwi ne. Reck less 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. CodeAnn. § 39-13-103(b). Th e defendant dro

ve his Camaro on a public road a t a speed estimate

d to be between se

ventyand one hundred miles per hour. The speed limit

on this road is forty-five miles per hour. The proof reveals th

at a number of peo

ple

were traveling on Fort Henry Drive at the time of the drag race. The jur y properly found the defendant guilty o

f reckless enda

ngerment.
Although the defendant’s brief did not challenge the fac t tha t he received tw

o reckless endangerment

convictions arising out of one e pisode of driving, w

e 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 opposedto an individual ac t or result and, the

refore, that a s

ingle periodof reckless driv

ing typically const

itutes 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. Sto ry’s pickup truck

, causing him t

o su ffer bruising and soreness. We observed:

The evidence indicates that the defendant’s loss of controlof his vehicle, combined withthe speed at which he wa s driving, we re responsible f or both his swervin

g in front of the Tripletts and hitting the Story veh icle. Due to the very short distance betweenthe two trucks and th e very short amount of time that passed between swerving into the oncoming lane of traffic in front of the Tripletts an

d the crash

with Mr. Story, the reckless conduct engaged in by the defendant

was one continuou

s act,

a single course of conduct
, and therefore s upports only one co

nviction for that a

ct.

Id. Although here Mr.

Baker’s Mitsubishi

struck both th

e minivan and the Volvo and both Ms

. Gilliam and Ms. Redwine re ceived 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 provi des that a defendant’s continuous operation of a vehicle may only result in one act o f reckless endangerment under the statute.” Id. (emphasis in original). Nevertheless, we believe that
t his case is sufficiently similar to Ramsey to warrant the same result. Therefore, we hold that the du al convictions violat

e the Double Jeopa

rdy Clause and tha

t the finding of guilt

for th e reckles s endangerment

of Ms. Redwine, count four, merge s 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 conte

nds that Officer

Dale Farmer was not qualified t

o testify as an exp

ert 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 reconstru ction. He also claims that Officer Farmer did not expl

ain the underlying

scientific basis f

or the formula he

used tocalculate

speed. The state contends th

at Offic er Farmer has specialized skill, knowledge and expertise gained through his training in acc ident reconstruc

tion, which qualifi

es him to give exper

t 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 Courtand Sullivan County G eneral Sessions Co

urt. He said that he had investigated a pproximately 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

Ci ty, Te nnessee on basic accident investigation, advanced accident-18-

investigation, and accident reconstruction and a forty-five-hour DUI and

vehicular homici

de 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 Na shville certified him to tea ch the basic accident school. He said that he had instructed eight officers in acciden t investigation, which includes reconstruction.

Officer Farmer testified that as an accident reconstructionist, he was traine d to inspect vehicles involved in an accident and to determine the speeds o f 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 hu

man error contr

ibuted to the acci

dent. He said that he determines the

point of impact in th

e acc ident 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 eyewi

tness 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 speedyaw. 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 cir

cle. He said he adjusts the radius

with the center ma

ss of the vehicle

by subtracting one

-half of the vehicle’s track width. H e 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 sp eed. He testifie d that as a part of

his training, he ca

lculated the spee

d of test c ar s basedupon the physical ma rkings on the road

and then checke

d his results against radar measurements of the actual speed of the test car. He statedthat the speed formula he uses is from the Institu te of Poli ce Technology in Florida, appears in many accident reconstruction training manuals, and is in common use throughout the United States.

On cross-examinat

ion, Officer Far

mer testified tha

t he was a high school graduate and had

some college credits. He state d that he did not take

a physics course

in high school and th

at h e studied geometry as part of his general mathematics class. He agreed that the s cientific analys

is performed

by reconstructio

nis t wa s complicated and required a good knowledge of physics. He stated that in his accident inve st igation 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 Far

mer’s testimony wa

s relevant to

the speed of the car

s, 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 traini ng to testify in the field of accident reconstruction. The court found th at the probative v

alue of Officer

Farme r’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 reconstruc tion.

Whether a witness is qualif

ied to testify as an expe

rt is governed by Ru

le 702, Tenn. R. Evid.:

If scientific, tech

nical, or other sp

ecialized knowl

edge will substanti

all y assist the trier of fact to unders

tand the evidenc

e or to determine

a fact in issue, a

witness qualifiedas an expert by knowledge, ski ll, experience, training, or education may testify in the form of an opinion or otherwise.

“To give expert testim

ony, one must

be particularly skilled, learned or experienced in a science, art, trade, business, profession or vocation, a thorough knowledg e of which is not within the scope of the common knowledge and experience of the average person.” Kinley v. Tenness ee 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 (3 rd ed. 1995). The decision to ad mit expert testimony

is reserved to the discretion of the trial court and will
notbe disturbed on appeal absent an abuse of such discretion. State v. Hall , 958 S.W.2d 679, 689 (Tenn. 1997). In fact, th

e 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 acciden t

reco nstruction. To support his contention, the defendant relies upon Johnson v. Attkisson
, 72 2 S.W.2d 390 (Tenn. Ct. App. 1986). In Johnson , the officer had attended training courseson accident reconstruction, investigated nume rous accidents, a

nd previously

testified as an expert in the field. Nevertheless,

the appellate court hel d that the t rial court should n ot 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 acciden t reconstructi

on 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 a

lso not the case

here as Officer Farmer testified about the various factors that went into the spee

d calculation suc

h as the drag fac

tor of the road an

d th e radius of the yaw mark. We believe that

the trial court did not abuse its discretion in finding Officer Farmer qualified to testify genera

lly as an acciden

t reconstruction

expert.

However, we note that an individual’s qualificationto testify as an expert in a certain fiel

d does not give him or her l eave to testify to

the resul ts of a scientific test without establishing the reliability of the underlying test. In this regard, the d efendant 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- Statev. Sensing
,3 We 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 theor y u nderlying the
test:

To trust to the proce dure of simply

follo wing instructions and getting a

co rrect reading without any understanding of the theory that makes the rea din g accurate would be to approve pure hearsay evidence of intoxication. It is our conclusion, then , that eve n though the person who operates the testing device may beshown 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 re

flects the result

s as an accurate

reading of blood a

lcohol content.

Pruitt v. State , 216 Tenn. 686, 695 , 393 S.W.2d 747, 752 (1965) (citation

s 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 theor y behind the fo rmula 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 measuremen ts of skid mar ks 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. Jer ome 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 ma

thematical equa

tions, his background and tr aining in those equations, and their use in as certaining the e

stimated speed of

this d efendant’s veh

icle”); State v. Carol H. Doughert

y , 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 al though Officer Fa rmer testified tha

t he understood the

physics b ehin d

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 speedof the Mitsubishi whe n it lost control and u

pon impact. We also observe that

the defendant only made a general objection to Officer Farmer’s qualifications
at trial. The defendant did not specifically que

stion the reliabilit

y of any speed formula or Officer Farmer’s understanding of the scientific theories behind the formula until this appeal. Neither party askedOfficer Farmer to explain the scientific basis for the formula. We note, though, that Officer Farme r’s testimony that the speed formula is from the Institute of Police Technology in F lorida
, 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 withthe speed formula against radar measurements of actual speed also suggests that the f

ormula is reliable. As stat

ed earli er, t he record supports the trial court’s finding Officer Farmer to be an accident reconstruction expert. Absent specific objection by the defendant at tri

al, we will not fau

lt-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 spee d of t he Mitsubishi as it entered the

curve and upon impact arefar from critic al 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 def

endant’s convic

tions stem from his participation i n the drag race. Any error would be harmless

.
IV. ADMISSIBILITY OF TH E COMPUTER-GENERATE D VISUALIZATION

The defendant conte

nds that the trial c

ourt should not have

admi tted the computerized visualization of the accident because it was unduly prej u dicial, it served no non-cumulative evidentiary purpose, it

was ba sed upon the unqualified expert opinion of Officer Farmer, and it’s depiction of the Camaro was purely speculat ive. The state conten

ds that the trial co

urt 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, videota

pes, like photogra

phs, must be both relevant and a true and accurate portrayal of the recorded event or sce ne. 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 i

s substantially outw

eighed by its

potential to prejud

ice the defenda

nt unfairly

or to confuse o r mislead the jury. See Tenn. R. Evid. 403. The admissibility of a relevant an d authentic videotape depicting a crime scene is within the trial cou

rt’s sound discre

tion 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 reenact ment “is illustrativ

e evidence and i

s 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 reen acted with a third party her testimony that she loweredthe 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 pla intiff was able to cross-examinethe technician. Id. at 349-50. Howeve r, we also note tha

t due to its v ivid 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 (5 th ed. 1999).

Other jurisdictions addr

essing the admissibi

lity of a computer-

generated vide

otape differ in their analysis based upon whether they view the video tape to be demonstrative evidence or a-22-

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 betwee n an animation and a simulation). “In a simulation the computer functio

ns ina sense as an expert itself, rendering its own opinion based on interna l 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 2824 57, 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 scienti fic tests); Richardson v. State Highway & Trans. Comm’n , 863 S.W.2d 876, 882 (Mo. 1993) (holding that the rules for the admissibility of e xperiments g overns the admissibility of a Simulation Model of an Automobile

Collision); Kudlacek v. Fiat S.p.A. , 50 9 N.W.2d 60 3, 617 (Neb. 1994) (applying the three Commercial Union factors to a comp uter-generate

d videotape of a s

ingle-car acc

ident); 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 o

f the shooting was s

ufficiently 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) (usin g the standard for

newly applied sci

entific principle s 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 Evid

ence § 401.7 , at 224 (4 th ed. 1996) (observing that in federal cases, computergenerated evidence going beyond illustration into experiment ra ises concerns ab

out the reliability of the explanatory t

heory 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 witha cable gate and holding that at a minimum, a simulation’s proponent must show that the simulation is a fair and accurate de piction of

what it represents and that the opponent had an opportunity

to cross-examine and may also have to show the three Commercial Union factors). But

see Pino v. Gauthier , 633 So.2d 638, 6 5 2 (La. Ct. App. 1993) (holding that computer-generated simulations are admissible on a case-by-ca

se basis if they acc

urately depict wh

at they claim to

show; establish a fact of a party’s case; aid in the jury’s understanding; an d 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 prop

erly; (2) the input and underlying equations are sufficiently complete and ac curat e (and disclosed to the opposing party, so that they may challenge them); and (3) the program i

s generally acc

epted by the appr

opriate community o

f scientists.-23-

Id. at 168. The Supreme Court of Nebraska applied the Commercial Union factors in affirming the
tr ial court’s admission of a comp uter-generate

d simulation of a ca

r’s path during an

accident. Kudlacek v. Fiat S.p.A.
, 509 N.W.2d 6 03, 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 witne sses to arrive at the simu

lation which best ma

tched the availa

ble 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. Statev. 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 v ic tim based upon the lo cation of the gun a

t the time of the shoo

ting. 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 c omputer program t

o recreate the

crime

scene so that he could test certain scenarios within it. In b oth 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 Loui siana Court o f Appeals parts company with the ot her jurisdictions t

reating computer

simulations as nove

l scienti fi c evidence. T he court analyzed a computer-generated simulation, in which a spe cialized pr ogram created four possible scenarios of how the defendant los t control of his veh

icle while chang

ing lanes. The court did not require proof on the reliability of the underlyi ng com puter program but instead applied the same standar

ds 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 prejudic ial because it

limited the opposing p

arty’s opportunit

y to pr esent different scenarios based upon variables other than those depicted. Id. The cour t determinedthat it was “proper to avoid the impact of the jury viewing the spec ially c reated tape, containing only favorable outcomes.” Id. In McDaniel v. CSX Transport., Inc. , 955 S.W.2d 257, 265 (Tenn. 1997), our

supreme court he

ld that Rules 702 and

703, Tenn. R. Evid., require proof that novel scientific evide

nce is reliable.

“Simply put, unless th

e scientific evid

ence is valid, it will not substantially

assist the trier of fact, nor will its underlying fac ts and data appear to be trustworthy . . . .” Id. Without deciding the admissibility of a videotape in which the computer created, rather than merely illustrate

d, the reconstruc

tion, we believe a

t 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 videot ape as merely illustrating the expert witness’s testimony require only that the animation meet the rules of admissibility for demonstrative evidence and do no t 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-gene rated animation mu

st 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 b

e); Cleveland v. Brya

nt, 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-24-

how the accident occ

urred is admissible

if it fairly and ac

curately repre

sents the scene it

seeks to depict); Hutchison v. Ameri can 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 beca

use the authenticating e

xpert did not see th

e accident or kn

ow the sp eed s or forces involved and, therefore, c ould not testify that the videotape corre

ctly portrayed th

e plaintiff’s inju

ries); 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 testi

mony); Constans, et al., v. Choctaw Transpor

t, Inc., et al. , 712 So.2d 885, 901 (La. Ct. App. 1997) (holding that a computer animation i llustrating the accident reconstruction expert’s opinion on the placement of the vehicles during the accident was not unduly prejudicial); P e oplev. McHugh , 476 N.Y.S.2d 721, 722-23 (N.Y. Sup. Ct. 1984) (holding that a computer
reenactment

of a fatal car c

rash is admissible i

n a criminal trial i

f 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. 250 88, 2000 WL 282457, at * 7-8 (S.C. Mar. 13, 2 000) (holding that a computer-generated

vide o taped animation is a dmissible if authen

tic; relevant; a f

air and accura

te portrayal of the evidence to which it relat es; and substantially mo

re probative tha

n 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 acciden

t was admissible

because it was authentic, relevant,and not excluded by another rule); 1 Michael H. Graham, Handbook of FederalEvidence § 401.7, at 224 (4 th ed. 1 996) (not ing that in federa l cases, computer

“animations are

admissible provided a foundation of su fficient similari

ty is presented, su

bject to Rule 403"); see , e.g. , Tilli s Trucking Co. v. Moses, et al. , 748 So.2d 874, 882 (Ala. 1999) (holding that a computer-generated animatio n of an accide nt used as a demonstrative aid did not conflict with the testimony at trial). But see Sommervold v. Grevlos , 518 N.W.2d 733, 738 (S.D. 1994) (applying a South Dakota stat ute requiring the party offering computer-genera ted evidence to descr

ibe the program used and show that it produced an acc

urate result to a c

omputer animation i

llustr ating an accident reconstructionist’s testimony).

In this case, Professor Owen testified that the co mputer visualization depicted Officer Farmer’s reconstruction of how the accident occurred. He explained that a computer simulation or reconstructionuses the laws of physics to recr eate the exact e

vent whereas a

computer visualization converts an expert witness’s testimony

into something the jury c an see. The defe

ndant objected to the introduction of the videotape. The trialcourt 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 re

levant, substantia

lly 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 . . ., th e re was not a movie mad e at the time. You ne

ed to understand th

at 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 tha

t he created the

visualization u sing photographs, measurements, and-25-

calc ulations given to him by Officer Farmer; measurements of the road made by his team , whic h confirmed

those made by Officer Farmer; and specifications on the vehicles involved obtained from
contacts in t he movie industry. He explained that he received all of the numbers regarding the speeds of the vehicles f

rom Officer Far

mer and did not make

any computations hi

mse lf. Thus, Professor Owen used the computer as a mea ns 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 p ortrayal of the a

ccident 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 t hat he co uld 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 tha

t the videotape’s

p o rtrayal of the Ca

maro positioned in th

e left lane is supported by the testimony of three eyewitnesses who saw the cars racing down Fort Henry Drive and by the yaw marks le

ft by the Mitsubishi, w

hich begin on the r

ailr oad 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,
t he accident had to h

ave happened e

ither behind the Ca

maro as depicted

in the visualizati

on or i n front of the Cama

ro. 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 portr ayal o f the Camaro’s actions speculative. The trial court erred in admitting the visualization because no evidence ex i sts that its portray al of the actions o

f the Camaro are

a true and accu

rate depiction of the events in que stion, 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 tha

t:

the extreme vividness and ver is imilitude of pictorial evidence is truly a two-edged sword. F or not only is the danger that the jury may confuse art with re alit y particularly

great, but the impr

essions g enerat ed 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 dange rs of the vide otape 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 Presentedfor Review, but no portion of hi s Law and Arg ument 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). W e 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 evide nce. In any event, he s till fails to explain how the evidence is insufficient.

-26- Nevertheless,

we believe that th

e admission of the v

ideotape was harmles s 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 withMr. Baker on Fort Henry Drive to the railroad br

idge 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 fromhis participation i n 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 cov ered by the video tape, are large

ly irrelevant.

Presumably

to show that he was prejudiced by the visualization’s depiction of the Camaro, the defendant con tends that the visualization is but one piece of circumstantial evidence. The de fend ant 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 guil

t. See Statev. 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 b

ase d upon circumstantial evidence because it has not excluded every other rea sonable hypothesi

s such as that of the

Camaro substantia

lly reducing it

s speedas it went into

the curve. Although we believe this argument to be more akin to a claim that the evidence is insuf

ficient, 4 it is nonetheless wi thout merit

because the defendant’s convictions are not based exclusively upon circumstantial evidence.

V. INSTRUCTION ON FLI GHT

The defendant contends that the trial court erred by instructing the jury on flight. He argues that the evidence

shows only tha

t he left the scen

e of the acciden

t, a circumstanc

e which is insufficient

to support a flight instruction. The state contends that the trial court properly instructed the jury on f

light as follows:

The flight of a person accused o f a crime is a circumstance which, when considered

with all the facts o

f th e case, may justify

an inference o

f guilt. Flight i

s 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 flig

ht; it may be open, or it may

be a hurrie

d or concealed departure, or it may be a-27-

concealment

withi n the j urisdiction. However, it takes both a leaving the scene of the difficul ty and a

sub seq uen t hi din g out , ev asi on, or co ncea lme nt i n th e com mun ity, or a leaving of

the community

for parts unknown

, to constitute flig

ht. If flight is proved, . . . the fact of flight alone does not allow you to find that the defendant is guilty of the crime alleged. Howeve r, since flight by a defenda nt may be caused by a consciousness of guilt, y ou may consider the fact of flight, if the flight is so proven, toge

ther with all of the

other evidence

when you de

cide the guilt

or innocence of the defendant. On the other hand, an entirely innocent person may take flightand such flight ma y be explaine

d by proof of

fered, or by

the facts an d 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 tha

t the fact that a d efendant fled “from the vicinity where the crime was committed, with knowledge that he was likely to be arrested for the crime

or charged wit

h its commission, may be shown as a circumstanc

e tending to in

d icate 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 i

t other than the fact that the defendant left the scene. The court held that flight

re quires bo th 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 on ly 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 pol ice. At trial, Tracy Shipley testif

ied that he came u

pon 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 accide

nt 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 thatthese 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 fou

nd by the aut

horities.

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 alter

native to straig

ht incarceratio

n. The state conte

nds that the trial c

ourt properly sentenced the defendant.

Appellate review of sente

ncing is de novo on the record wit h a presumption tha

t the t rial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing-28-

Com mission Comments to this section note, the burden is now on the defendant to show that th e 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 re cord, and gave

due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

notdisturb 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 accompani es the trial court' s action is conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles andall relevant fac ts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate revie w,

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 specifi

c facts supporti ng 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 se ntencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments

as to sentencing alternatives, (4) the nature and char

acteristics of th

e criminal conduc

t, (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 fel ony is presumptively the minimum in the range wh en th ere are no enhancement or mitigating factors present. Tenn. Code Ann. § 40-35-210(c).

Procedurally

, the trial court is

to increase the s

entence within

the range based upon the existence of enhancement factors and then reduce the sentence as appropria

te for any mitigating factors. Tenn. Cod e Ann. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to t he trial cou rt's discretion so long as it complies with the purposes and principles of the 1989 Sente ncing Act and its findi ngs are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sente

nc ing Commission Commen ts; Moss , 727 S.W.2d at 237; see Ashby , 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 (T enn. Crim. App. 1994) . However, i n misdemea nor sentenc ing, the trial court must consider the purposes and principles of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(d).-29-

At the sentencing hearing, the state introduced a certified copy of a conviction the defendant received in Virginia for drivingwhile intoxicated. The offense occurred on May 13, 1997, and the conviction was entered on July 18, 1997. The state also introduced into ev id ence the defendant’s convictions in Tennessee for the October 1997 o

ffenses of unde

rage consumptio

n, driv ing o n 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 office r reported seeing the defendant drive erratically and pull in to 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 defenda

nt for safety

and found a presc

ription bottle, whic

h the defendant tried to hide. The defendant removed the bottle fro m his p ocket and threw it against the store. Testing of the c

ontents of the bottle

revealed sche

dule IV narc

otics.

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 wellas two 1995 convictions for speeding. Thereport reflects that in the ninth grade, the defendant

was placed in an alternative school for disciplinary problems but was suspended from the alter native 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 beg an 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 admitt

ed using Xanax an

d marijuana in the

past and reported his last drug use to

be in October 1997. Thedefendant’s mother reported that the defendant has been attending informal counseling with his pastor every week. The presente nce report also ref

le cts statements

from the deceas

ed victims’ familie

s explaining the de

vastatin g impact of the victi ms’ deaths on their liv

es.

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 beh avior in addition to

those neces sary to establi sh the range and that he was

a leader in the commiss ion of an offense involving two or mo

re criminal acto

rs, to all offense

s. Tenn. Code Ann. § 40-35-114(1), (2 ). For the reckless endangerment convictions, the trial court applied factor (6), tha

t the personal inju

ries inflicted upo

n or the amount of da

mage to proper

ty sustained by

or taken from

the vi ctims was pa rticu larly gr eat. T enn. C ode An n. § 40 -35-1 14(6) . In mitigation, the trial court refused to consider the defendant’s youth at the time of the offense under mitig ating fa ctor (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 sen

tences to run consecutively, finding that the defendant is a dangerous offender w hose behavior indicates little or no regard for human life and who has no hesitation a

bout committing a c

rime when the risk

to human life is hig h. Tenn. Code Ann. § 40-35-115(b)(

4). In deny

ing an alternat

ive sentence, the

trial c ourt c onsidered the circumstances of the offense, thedefendant’s drug use and social history, and his criminal record. Tenn. Code Ann. § 40-3 5-103(1)( A). The trial court also considered the defendant’s “pattern of abuse of an autom

obile on the public h

ighways of

this state and other states,” and determined that-30-

an alternative sentence would not be in the best interest of the public a nd would diminish the seriousness of the offenses. Tenn. Code Ann. § 40-35-103(1)(B).

A. Enhancement Factors

The defendant contends that thetrial court erred by applying enhancement factors (2) and (6). With re spect to fac tor (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 t hat the factor me

rely requires that there be other criminal actors and that the defendant be a leader.

Factor (2) pro

vides for enhanc

ement when the de

fendant is “a leader in the commission of

an offense involving two (2) or more criminal ac tors.” Tenn. Code Ann. § 40-35-114(

2). With respect to the criminally n

egligent homic

ide of Mr. Bostru

m, Mr. Baker wa

s a criminal actor in that he engaged in criminally neglige ntconduct 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 misapplicationof this factor justifies a reduced sentence, considering the other enhancement factors.

We b elieve that the trial court properly applied factor (2) to both reckle ss endangerment convictions. Mr. Baker was a criminal actor by engaging in conduc t thatplaced Ms. Gilliam

and Ms. Redwine in danger of imminent death or serious bodily injury. B y orchestrat

ing the events, the defendant was the leader of that conduct. The fact that the defendant

was the only person convicted does not render the fa

cto r inappli cable, as the plain language of the statute requires only another criminal actor. The evidence is sufficient to support the trial court’s finding that thedefendant was a leader in an offense involving two or more criminal actors.

Th e defendan t contends that the trial court erre

d by apply

ing factor (6) , that the victims

sus tained particularly great personal injuries or property damage, to hi s felony reckless endangermen t convictions. He argues that this factor is inap

plicable becaus

e his car never made contact with the Gilliam and Redwine vehicles

. The state contends that the trial court properly applied the enhancement

factor. W

e agree. The defendant’s

reckless endan

germent convic

tions are the res

ult of his engaging

in drag racing

, conduct “which

places o r m ay place another person in imminent danger of death or

seriou s bodily injur

y.” Tenn. Co

de Ann. § 39-13-10

3(a). Thus, rec

kless endangerment

can occur although no contact is made and no one suffers injury

. See Statev. Ramsey
, 903 S.W.2d 709, 712 (Tenn. Crim. App. 1995). As a result of the defendant’s reckless conduc t, Ms. Gilliam and Ms. Redwine suffe red pa rticularly great persona

l injuries and prop

erty damag

e. Ms. Gilliam suffered a br o ken left leg, a crushed right leg, broken toes, a broken foot, and a br oken elbow. She was hospitalized for three weeks. Ms. Redwine suffered glass lacerations on her head,-31-

hand, and left arm. She suffered burns on her chin and face and was bruised on her

left side. Both vehicles were severely damaged. Be cause 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, regardles s of whether their cars made conta

ct.

B. Consecutive Sentences

The defe nd ant contends that the trial court erred by imposing consecutive sentence s. He argues that the evide nce 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 w ork 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 dange rous offender whose behavior indicates little or no regard for human life, an d no hesitation about committing a crime in which the risk to human life is hi gh.” T enn. C ode An n. § 40 -35-1 15(4) . In addition, “consecutive sentences cannot be imposed u nless the terms re asonably re

late to the sever

ity

of the offen ses committed and a re necessary

in order to protec

t the public from fu

rther serio

u s 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 of fender find ing. It determined that the sentences reasonably related to the severity of the offenses and that a long period of inca rceration 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 display ed a pattern of irresponsible

and reckless driving showing his disregard for the driving laws of t h is 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 pre sent offense s, the defendant continued his dangerous and reckless behavior by driving while intoxicated and driving

on a revoked license after illegally consuming alcohol. The rec

ord supports

the trial co urt’s find ings that the defendant is a

dangerous off

ender and that consecutive sentences reasonably re late to the severity of the offenses and are necessar y to protect the public.

C. Alternative Se

ntencing

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 m erely states th at he is pres umed to be a f avorable can didate for a lternativ e sentencin g.-32-

See Tenn. Code Ann. § 40-35-102(6) (d efendants convi

cted of Class

E felonies are presumed to be favorable candidates for alternative sentencing absent evidence to the contrary). The defendant does
notexplain how the trial court erred and makes nocitation to the record or t o authority.

Under these circumstances,

we view the issue to be waived. See T.R.A.P. 27(a)( 7). Nevertheless, we have

re view ed the record and conclude that the trial court properly denied a lternative sentencing based upon the circumstanc

es of the offense

, the defendant’ s crimi nal reco rd, his drug use, his social his tor y, and his “pattern of abuse of an a utomobile o n the public highways of this state and other states[.]” The record supports the trialcourt’s determinationthat an alternative sentence would not be in the best interest of the public and would dim inish 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 defe ndant’s convictions of criminally negligent homicide, drag racing , and leaving the scene

of an accident in

volving death

or injury. We merge thefinding 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 defenda nt’s effective s

entence is modifie

d to six years in the Department

of Correction an

d fines totaling ten

thousand dollars.