# FILED May 12, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9804- CC-00191 ) Appellee, ) ) WILLIAMSON COUNTY V. ) ) ) HON. DONA LD P. HARRI S, JU DGE KELLY A.HANCOCK, ) ) Appe llant. ) (DUI, FIRS T OFF ENSE )

FOR THE APPELLANT : FOR THE APPELLEE : ERIC L. DA

VIS JOHN KNOX WALKUP 317 M ain Stree t Attorney General& Reporter Franklin, TN 37064 KIM R. HEL PER Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 RONALD L. DAVIS Distri ct Attor ney General SHARON E. TYLER Assistant Distri ct Attor ney General 481 East Main Stre et Hohenwald, TN 38462

OPINION FILED ________________________ REVERSED AND REMANDE D THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Def enda nt, Kel ly A. Ha ncoc k, a ppea ls as o f r igh t f rom h e r convic tion in the Williamson County Ci rcuit Cour t. Defend ant w as indicted for t he Class A misdemea nor offense of DUI, fir

st offens e, committed on Febr uary 20, 199 7
. Defendant fi led a motion to suppress the r esults of the State’ s ethyl al cohol test of Defe ndan t’s blood procured on February 21, 1997. The trial court denied the moti on followi ng a hearing. Defendant was found guil ty fol lowing ajury trial. In her ap peal, the Defendant presents the foll owing issues: 1) Whether the trial court e rred in de nying D efenda nt’s motio n to suppress the ethyl alcoholtest results of Def enda nt’s blood based upon the State’s failur e to com ply with the re quirem ents of Tennessee Code Annotated secti on 55-10-406; 2) Whether the tri al court err ed in all owing the State to q uestion its forens ic toxicol ogist regar ding the di spositi on of Defendant’ s blood sample to Quest Diagnost ic Laboratories for i ndependent test ing; 3) Wh etherthe tri al court er red in permit ting the State t o cross examine the De fenda nt con cernin g the D efend ant’s Motion to Pres erve Blood Sample for testing f iled on Apri l 30, 1997; and 4) Whether the evidence at trial faile d to es tablish the De fenda nt’s guilt beyon d a reas onable doubt. For the reaso ns sta ted be low, we revers e and rema nd for a new tria l.
At the hearing on Defendant’s moti on to suppress, the Defendant testifi ed that she was in volved in an automob ile accident on H illsboro Road in W illiamson Cou nty, Tennessee. Defendant was driving home when another car crossed t he center li ne and struck her van. As a resul t of theaccident, Defendant’s ai r bag infl ated and her driver’s side door w as jam med . A pas sing m otorist s toppe d at the scen e and told Defendant he had notif ied the pol ice. Defendant telephoned Randy Wilker son, her date that eveni ng, to adv ise him of her accident and ask

ed him to come to the-3-

scene. She stated she was al so concerned abo u t he r f our (4) chi ldr

en at home alone.

After

the poli ce arrived, she explai ned to them that she had been hit by t he othervehicle. Mo st of the po lice officers w ent to the other vehicle dr iven by Mabel Garrett. Because she was inj ured Def end ant went to an ambulance which had arrived at the sce ne. How ever, she refused to go to the hospi tal in the ambulance because she thought she was alright and had already call ed Mr. Wilkerson to pick her up. The police questioned Defenda nt regardi ng her consumption of alcohol and she initi ally r

esponded that she had not been drink ing but had been to a co ncert in downtown Nashvill e. Defendant then admi tted that she had consumed one (1) beer during dinner and t

wo (2) beers whi le at the conc ert. She agreed to submit to a battery of field sobriety tests, includi ng standing on one ( 1) leg and th e nose to fi nger tests. Corporal Larry Willi ams then asked Defendant if she woul d submit to a bl ood test. Defendant asked Deputy Mar sha Brolsma what woul d happen if she refused to sub mi t to the tes t. Dep uty Bro lsma respo nded that sh e cou ld lose her driv er’s license for s ix (6) months, so Defendant agreed to submit to t he test. Defendant recalled that theofficers did not read a n Implied Co nsent form to her, but did prov ide it for her signature. She was left, unhandcuffed, by the poli ce to stand by herself at her van.

After Randy Wilkerson arrived at thescene , they left the sc ene in Wilk erson ’s truck to go to th e hos pital. W hile en route to t he hospital , they had to stop as they did not know the way to the hospital. Deput y Brolsma was fol lowing them, and she agreed to lead them to the hospital . As Def endant was unable to walk when she arrived, she was assisted into the emergenc

y room. Defendant’ s blood was drawn-4-

first, then a brace was pl aced on her arm and her leg. Her arm was sprained, her leg was frac tured, and she suffered additi onal burns to her arm and face f rom the deplosion of the airbag . Wilke rson left thehos pital a nd we nt to Defenda nt’ s ho me to check o n the child ren. W hile she w as at the h ospital, D efend ant telephon ed Wilkerson several t imes. Defendant al so called her secretary and a cousin. Af ter calli ng Wilkerson a fi nal time to ask him to pic k her up from thehospital , Dep u ty Bro lsm a informed Defendant that she was not going home but thatshe was under arrest for DUI. The D efenda nt first believed the dep uty was jo king. Defendant was, howe ver, tak en to ja il.
According to Wilk erson ’s testimony, Defendant call ed on February 20, 1997, and informed hi m that she had been involved in an accident. Defendant did not say anything over t he tele phone to l ead him to b elieve she wa s under arre st for DU I, howevershe was screaming and hysteri cal. After he arri ved at the acc ident scene, Wilkerson found Defendant st anding at her van wi th no police officers . She to ld him t hat he r foot was hur

ting, so he asked Deputy Brol sma if he could t ake Defendant to the hos pital. After conf err ing wit h Corporal Wi ll iams , Br ols ma responded that he could transport

her to the hospi tal and th at she (Brolsma) woul d follow. Wilkerson assumed the officers were goi ng to the hosp ital only because t here had been a majoracciden t. Realizing th at he di d not know the way t o the hospital, Wilkerson pulled over along t he way and motioned to Brolsma to stop . D eput y Brols ma advised Wilkerson to fol low her to t he ho spital. A fter arrivin g at the hosp ital, Wilkerson lef t to go to Defendant’ s home and check on her chil dren. Defendant called him several times while he was at her home, and the last time she call ed she told him she had been arrested.-5- On cross-e xamina tion, W ilkerson recounted t heir alco holic bever age consumption on February 20, 1997. Wilkerson admit ted that t he Defendant had consumed th r ee (3) beers t hat evening. The Defendant dropped hi m off foll owing the ir dat e at 10: 00 p. m.
Depu ty Marsh a Brolsm a also tes tified at t h e hearin g on the motion to suppress. Brol sma had been with the Williamson County Sheriff ’s Department for 1.5 years, receiving thre e (3) days acc ident investigation training a nd two (2) days DUI investi gation tr

aining a t the Tenne ssee Law Enforcem ent Training A cadem y. This wa s Deputy Brolsma’ s first accident i nvestigat ion and her f irst DUI i nvestigat ion
. On February 20, 1997, she was o n duty and was di spatched to t he scene of an accidenton Hillsboro Road. After ar rivi ng at the scene at approxim ately 11:2 2 p.m., Bro lsm a e ncounter ed the Defendant. While tryi ng to retrieve her l icense and registr ation, Brolsm a iden tified a s trong o dor of a lc ohol abou t the D efend ant’s person. The Defendant admitted thatshe h ad co nsum ed on e (1) Z ima, a n alco holic be verage, but was noti ceably stagg ering and argumentat ive. Brol sma o bserve d Corporal Williams administer some field sobri ety tests, during whic h the Defendant continued to swagger and argue with the off icers.
Depu ty Brol sma rea d thecont ent of th e Impl ied Co nsen t form to t he Defen dant, including the beg inning portion of the fo rm which states, “You are under arrest.” Brolsma then i nquired whether the Defen d ant understood everythi ng that
was read to her fr

om the form. The Defendant responded affi rmativel y and agreed to subm it to a blood test . Corporal Williams also si gned the form as a wi tness, and Bro lsm a then left

the area to continue her i nvestigat i on upon the assumption that Corporal Williams would take charge of the Defendant . Upon return ing to that area,-6-

Bro lsm a found the Defendan t in Randy Wilkers on’s pickup t ruck. After inquiring from her supervisi ng Sergeant as to why the Defendant was in Wilker son’s tru ck, the Sergeant informed her that he had gi ven permission for theDefendant to r ide to the hospital with Wilkerson.
Upon cros s-examinat ion, Brol sma exp lai ned t hat Co rpora l Wil li ams administeredthe field sob riety tests to theDef enda nt a s Brols ma had never effected
a DUI arrest, or anyother arr est, and had not at t hat time at tended the Tennessee Law EnforcementTraining Academy. This was her fi rst acci dent investi gation. She admitted that she migh t have made mistakes such as not handcuffi ng the Defendant
or placing her

in her patr

ol car when shewas arrested. Brolsma state d that she equated her rea ding th e Implied Consent Form to the Defendant with plac ing her under arrest. Because she misunderstood h er supe rvi sor ’s instr uct ion s, B rol sma failed to handcuff t he Defendant or place her in the pat rol car. While Brolsma did not know Defen dant ha d called W ilkerson to pick her up f rom the hosp ital, Bro lsma did not recall that the Defendant was surpri sed when she w as arre sted a t the ho spital.
Corporal Larry Willi ams also testi fied at t he h e aring on the Motio n to Suppress. Upon arriving at t he acc ident scene and en counte ring the D efenda nt, Williams described her as argumentative, irr itated, with sl urred speech and havi ng an odor of alcohol about her person. Defendant inf ormed him that she had one (1) Zima to drink, and he found another unopened bottl e of Zima in t he Defendant’s v an. As she wa s com plaining o f a nk le pain, Williams had a paramedic examine Defendant prior to administer ing any field sobriety tests. Because of the obv ious extentof her injurie s, W illiams thou ght De fendant was making an unwise choice when she refused medicalas s istance. After aski ng the Defendant to perform the-7-

finger to nose test

two (2) times with each hand and her failing i t all four (4) times, William s stated th at in his opin ion the D efenda nt was d runk.

Williams obse rved D eputy Brolsm a read the Im pli ed Consent form to t he Defendant and then wit nessed Defenda nt sign theform. Sp eci fi cal ly , Wil li ams recalled hearing Brol sma notify Defenda nt that she was under arrest for DUI prior to reading the form to her. Williams stated that he told Brolsma to handcuff the Defendant and place her i n the patrolcar, but s he faile d to do so. W illiams then left and we nt to the se cond c ar involved in the acc ident to do technica l work. W h e n Williams returned to fi nd the Defendant abse nt from the scene, Sergea nt Oscar Davidson explained that he l et the Defendant go to the hospital as he did not know she wa s unde r arrest.

At trial, Deputy Brolsm a testif ied to substantially the same recurr ence of events on February 20 and 21, 1997. Additi onal test imony included her recollec tion thatDefendant was unable to touch her nose every time she attempted the fi nger to
nose test, was

“wobbly” on her feet and was confused as to how to perform the test. W hile at the hospital hav ing Defendant’s b l ood drawn, Brol sma recalled t hat Defendant stated, “They’d b etter hope there was e noug h alco hol in her system,” and b ecam e ve ry aggressi ve. Brols ma took possession of the blood sample and checked it in to evidence at the W illi amson County Sheriff’s Department l ater that day. On cross-examinat ion, Brol sma admitte d that ther e were some factual inconsistencies within her Ten nessee U niform Accide nt Rep ort. Brolsma admitted she had no knowledge that Defendant had a fr

actured leg, a sprained wri st, or injuri es from the airbag . She d id ackn owled ge the Defe ndan t was in jured a nd visib ly-8-

shaken at the accid ent scen e. Brolsm a adm itted that D efenda nt was left unrestra ined for ne arly fifty (50) min utes at the scene following h er arrest.

The State’s se cond trialwitness was Corpor al Larry Williams who has had extensive training and experi ence in DUI in vestiga tions. W illiams a dded to his testimony

fro m the motion to suppr ess that whi le he beli eved the Defendant was drunk, he left it u p to De puty B rolsm a to de termin e whe ther the Defe ndan t shou ld be arrested.
Special Agent Michael Littl e, a forensic to xicologi st with t he Tennessee Bureau of Investi gation, testifi ed thathe performed an ethy l alcoholanalysis of the Defe ndan t’s blood. Defendant’s bl ood was found to contain 0.16 grams percent of ethyl alcohol. Littl e also descri bed that he perf ormed such testi ng using procedur es to confirm th e accu racy of the test r esults. When asked if he destroyed the blood
sam ple followi ng the test ing, Lit tle expl ained that he had g iven the blood sam ple to
a repres entative of Quest Diagnost ic Laborator y to perform an independent examination of the amou nt o f ethyl al cohol in Defendant’s blood. On crossexamination, Agent L ittle conced ed that he perform ed two (2 ) tests of the Defenda nt’s blood sam ple. The first test registered 0.1620 gram s percent of ethyl alcohol and w as taken o n March 13, 1997, and the second test of May 6, 1997 register ed 0.166 7 gram s perc ent of e thyl a lcoho l. L itt le ex plai ned that theTBI routine ly drops the fi nal two di gits asstanda rd opera ting proce dure, the refore bo th test results resulte d in a 0.16 per centage. Accord ing to hi s studies wi th the Tennessee Highway Patroland the TBI, Li ttle con cluded that a 125 pound female, standing five (5) fe et, one (1) inch es tall, would have to consume seven ( 7) to nine (9) dri nks to regi ster an ethy l alcohollevel of 0.16.-9- Ron Perry testif ied as a character wi tness for the Defendant. He stated that th e Defendant overs ees his fi rm’s benefi ts department, supervisi ng fifteen (15) employees. Wh ile Perry had seen t he Defendant consume alcohol ic beverages on occasion, he had never seen h er dr unk or

intoxi cate d. Th e day fo llowing the accident of February 20, 1997, Defendant was una ble to come to wor k due t o he r injuries.
Joy Sulliv

an, cousin and co- employee with t he Def enda nt, stated that the Defendant missed approxi mately one (1) month of work fo llowing this accident. The Defendant was, in her opinion, a “ve ry trut hful, honest and upstandi ng member of the com munity.”
Randy W ilkerso n testif ied again at the tri al. Wilkerson had known th e Defendant for fi fteen (15) years, but the evening of

February 20, 1997, was the i r second date. They met i n the Green Hill s area that nigh t after wor k. The Defendant drove them to dinner on 2nd Avenue wher e they ate oy

sters and drank two (2) be ers each. The y walk ed to a co ncert at the nearby N ashville Are na, whe re they bo th consumed two (2) additio nal beers. After t he concert concl uded around 10:00 p .m., the Defendant drove Wilkerson to his truc k and he returned to his home in Madi son. The remaining portion of his testimony was substanti ally t he same as his test imony from the hearing on the motion to suppress. However, he did add th at no o ne co uld have judged the Defendant’s state of sobriety at t he scene of the accident because she was “scared to death,” sc reaming, and cry ing.

The Defendant concluded t he testi mony at trial . In addi tion to a recollec

tion of the events si milar to what she previousl y testi fied to at the hearing on the motion-10-

to suppress, Defendant testif ied to theevents p recedin g the acc ident. On Feb ruary 20, 1997, sh e left work a t approxim ately 4:30 p.m. Afte r retu rni ng home, she prepared dinner and consumed one (1)Zima prior to leaving. She thre w the em pty Zima bottle in t he back of her car, then drove to a friend’s home to pick u p Ra ndy W ilkerso n. She drove Wilkerson to the Nashvil le Arena and parked, then they walked to Joe’s Crab House wher e she consumed one (1) beer and ate oyster s and shrimp. Defend ant spe cifically stated that W ilkerson w as mista ken wh en he described t hat they each consumed two (2) beers at dinner. While she was at the
conce rt, Defe ndan t did co nsum e two (2 ) additio nal b eers. Sh e believed s he was sober a nd fine to d rive her ca r.

Defendant also stated that she be came u pset at th e scene of the acc ident because the police officers were ac cus ing her of d ri nki ng an d dr iv ing . Sh e became further irri tated when, upon entering the hospital, she was required t o give a blo od samp le before they wou ld exam ine her inju ries.

On cross-examinat ion, Defendant denied any know ledge of her b lood s amp le being sent to t he Quest Diagnosti c Laborat ory for i ndependent test ing. She surmis ed that he r previous attorney m ight have reques ted the tes t.

The State ca lled Eun etta Crea de, Dep uty Clerk w ith the W illiamson Coun ty Circu it Court, as a r

ebuttal wi tness. Over objecti on by the Defendant , Creade read into the record the Defendant’s “Mot ion to Preser ve Blood Sample for

Testing”which
was filed be fore the trial. Creade also read i ts companion Order est ablishi ng permission to preserve the Defendant’ s blood sample for independent analysis.-11- I. M OTION TO S UPPRESS

Defendant argues that the tri al court er red in denyi ng hermotion to suppress the results of her

ethyl al cohol test

performed by Agent MichaelLittl e because the State failed to com ply with the r equirements of

Tennessee Code Annotated secti on 55-10-4 06. Ten nesse e Cod e Anno tated sec tion 55-1 0-406(a ) provides that: Any person who drives any motor vehicle i n the st ate is deem ed to have given consent

to a test

for the purpose of determi ning the alcoh olic or drug content of thatperson’s blood; provi ded, that such test is admini ster ed at the di rection of a law enforcement officer having reaso nable grounds to b elieve such person to have been driving w hile under the influen ce of an intoxicant or drug, as def ined in § 55- 10-405.

. . . (3) If s uch person havi ng been placed under ar rest and ther eafter having been re queste d by a law enforce ment o fficer to subm it to such test and advised of

the consequences for ref using to do so, refuses to subm it, the test shall not be given and such per son shall be c harged with violating this subs ection . . . The Defendant asserts that because shewas not properly arrest ed, a necessary statutory prereq uis ite was not met for a law enforcement officer to request and obtain a blood sample. Ther efore, Defend ant argues that the blood sample was obtained when Defendant was not un der val id “arrest” and the resul ts of such sample are, t herefore, inadmissibl e.
Following the hearing on the motion to s uppress, the trialcourt found that there was no quest ion ofwhethe r the police officers ha d proba ble caus e to arrest. W hile the tri al court di d not findthat the Defendant was in pol ice custody , the Defendant was no tified that she was un der arrest and agreed to t he terms of th e Implied Consent form. The miscommunica t ion between th e police of ficers di d not mak e her c onse nt illega l. The tr ial cou rt spec ifically noted tha t under th e autho rity of State v. E vetts , 670 S.W.2d 640 (Tenn. Cri m. App. 1984), a defendant does not-12-

have to be in act ual physical custody fora valid waiver bythe defendant under the terms of the I mplied Consent statute.

“The party p revailing in the tria l court is entitled to the strongestlegiti mate view of the evidence adduced at the suppression heari ng as well as al l reasonabl e and l egitimate inferences that m ay be drawn from that eviden ce.” State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996) . The findi ngs of the trialcourt shal l be upheld so l ong as the grea ter weigh t of the evide nce su pports th ose findin gs. Id
. Unless the evidence preponde ra tes otherwi se, the trial court’s fi ndings of fact in t he suppression hearing will be upheld. Furthe rm or e, this court may consi der the enti re record, includi ng the evidence submitted bot h at the suppression heari ng and at trial, in
ev aluatingthe co rrectn ess o f the trial c ourt’s ru ling on Defe ndan t’s pretria l motio n to suppress the results of her ethyl al coh ol blood a nalysis. State v. Henning , 975 S.W .2d 290 , 297 (T enn. 19 98).

Both during the s uppression hear ing and the t rial, Deput y Bro lsma and Corporal Williams testif ied that t he Defendant was noti fied that she was under arrest forDUI. S pecific all y, Defend ant was tol d, “You are under arrest. ” While the Defendant testif ies that she was never notified of t he arrest until she was preparin g to leave the hosp ital on Feb ruary 21, 1 997, all oth er testimo ny is contra ry. The trial court’s finding s of fact must be upheld so l ong as the evi dence does not prepon derate otherwis e. Odom , 928 S.W.2d at 23. All rea sonab le and leg itimate inferences

from the testim ony i nd icate, u nder the str ongest legi timate vi ew of the evidence, t hat the Defendant was notified t hat she was under arrest either prior to the reading of t he Implied Consent form or duri ng the reading of the Impli ed Consent form.-13- In additio n, even if there is a some validi ty to t he dispute re garding the status of her arrest, the purpose of the statute “is not to carve out

a rule of exclusion when the provisions
. . . have not bee n followed.” See State v. Jerry Huski ns , No. 01C01- 9707-CR-00253, slip op. at 7, Putnam County (Tenn. Crim. App. , at Nashvi lle, S eptember 29 , 1998), perm . to appeal denied (Tenn. 1999). An officer’s noncompliance with the req uireme nts of Tennessee Code Annotated sec tion 55-10-406 does not warrant

suppression of

the Defe ndan t’s bloo d alco hol tes t results at trial. Id
.

II. A DMISSIBI LITY OF E VIDENCE

The Defen dant arg ues tha t the trial court e rred in allow ing the S tate to introduce testim ony co ncern in g the d isposit ion of Defendant’s blood sample for independenttesting. Over objecti on by the Defendant , Special Agent Michael Little
was perm itted to te stify that h e gave Defe ndan t’s bloo d sam ple to a representative of Quest Diagnosti c Laboratory on May 6, 1997, to perform an indepe nden t bloo d alcohol analysis

of that s ample. The State argue s that any i mpropriety in this line of questioning is h armless erro r.

Tennessee Code Annotated provi des that any per son tes t ed in accordance with section 55- 10-410 “sha ll b e entitl ed to have an addi tional s ample of blood or urine procure d and th e resulting test per formed by any medicallaborator y of that perso n’s own choosing and at that per son’s own expense; provided, that the medi cal laboratory is licensed pursua nt to Title 68, Chap ter 29.” Tenn. Code Ann. § 55-10- 410(e). This court has recognized thedefendant’s right to have an independent test of her bloo d sam ple cond ucted for its et hyl alcoholcontent under the authori ty of-14-

Rule 16(a)(1)(C ) of the Te nness ee Ru les of Crim inal Proc edure. State v. Gilbert , 751 S.W .2d 454, 460 (Tenn. Crim . App. 1988 ) (citations omitted).

It is inappr

opriate f

or a prosecutor

to questi on a defendan t regard ing the defen dant’s independenttesting of a blo od sa mple if the defen dant ch ooses not to introduce the result

s of the test in h er defe nse pro of. State v. Gregg , 874 S.W.2d 643, 645 (Tenn. Crim. App. 1993). While the court found t he error to be harmless forthe defendant

in Gregg , we cannot find thi s questioni ng as harmless for Defendant in the case sub judice . In Gregg , the court observed that pri or to the questionsregardin g indep enden t testing, the proof presen ted to the jury demonst rate d that two (2) vial s of blood were drawn during t he testi ng, one (1) of which was given to the defend ant. Id . at645. Furthermore, the court noted that the defendantherself “

volunteer

ed thatthe vialin her possessi on was at the hospi tal for testing but was not i nitial ly tested because hername w as misspe lled. Thus, the jury
was well aware of the fac t that there was an other vi al of blood th at had been availab le fortesting.” Id . In the cas e of this De fendan t, no other evi dence had been presented to the jury reg arding any i ndependent test ing of theDefendant’s bl ood.

In additio n, Defendant al so contends that any cross-examination of her by the S tate regarding an earlier “Motion to Pre serve Blood Samp le for Testing” wa s permitted in error by th e trial court. While Defendant denied any knowledge of

such motion during her

cross-e xamina tion, the D eputy Court Clerk was later cal led as a rebuttalwitness b y the State and pe rmitted to read the cont ents of th e motion and the companion order al lowing the preservati on of the blood sample for independent testing. While Defendantdoes have a ri ght to obta in an a ddition al sam ple or o btain the existi ng sample o f blood for an inde penden t ethyl alcohol anal ysis, whatever the-15-

defendantchooses to do with the s ample is her preroga tive. Gregg , 874 S.W.2d at 645. The prosecutor shoul d not hav e been al lowed to quest ion Defendant concerning the testresults or to present rebuttal test imony from the court clerk si nce Defendant chose not to use independenttest results in her proof. T he on ly poss ible rational e forthis line of questioning w as to create a n egative inference for the jury. Id

. In addit ion, asDefe ndan t could not be prope rly impeache d by a mo tion or court ordershe did not have kn owledge o f, such test results we re inadmissibl e absent an approp riate evide n tiary found ation. Id . There was no objec tion to t his li ne of questioni ng of the De fendan t. Howeve r, the State conceded during oralargument in this cour t that it was er ror to allow th is line of que stioning. Particul arly i n light of the error regar

ding the quest ioning of AgentMichael Li ttle about independent testing of the blood samp le, we can not find this e rror to be harmless. The cumulative effect of the ques tionin g affec ted the subs tantial rig hts of th e acc used , and re sulted in prejudice to the ju dicial pr oces s. Ten n. R. C rim
. P. 52(b); Ten n. R. App. P. 3 6(b).

III. S UFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence i ntroduced at t rial f ailed to establi sh the Defe ndan t’s guilt beyond a reasonabledoubt. She was conv icted of one (1) count of driving w hile under the in fluence wi th a blood or breath alcohol levelat or above .10 percent. Tenn. Code Ann. § 55-10-401 (a)(2). Specifically, Defendant argues thatthe evidence was tainted d ue to some forei gn material in the blood sample test tube.
When an accused challenges the suffi ciency of the convict ing evidence , the standard is

whether, af

terreviewi ng the evidence in the l ight most favorable to the-16-

prosecution , any rati onal tri er offact coul d have found theessentialelements of t he crime b eyond a reason able do ubt. Jack son v. V irginia , 443 U.S. 30 7, 319 (1979 ). On appea l, the State is entitled to the stronge st legitima te viewof the evi dence and all inference s therefro m. State v. Cabbage , 571 S.W.2d 832 , 835 (Te nn. 1978). Because a verdict

of guil t removes the pr esumption of

innoc ence and re place s it with
a presumption of

guilt, the accused has the burden i n this cour t of il lustrat ing why the evidence is insufficient to suppo rt the verdict re turned b y the trier of fac t. S tate v. Tug gle , 63 9 S. W.2 d 913, 9 14 (Te nn. 198 2); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions conce rning the credibility of the witnesses, the weigh t and valu e to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Papp as , 754 S.W.2d 620, 623 (T enn. Crim. A pp.), perm . to appeal denied , id . (Tenn. 1987). Nor may this cou r t reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W.2d at 476.

F irst, we observe that both Brolsma and Williamson, the policeofficer s investi gating the accident scene, testif ied that t he Defendant had the odo r of alcoho l about her pe rson, w as arg ume ntative and w as sta ggerin g follow in g th e accide nt. Defe ndan t was a lso un able to succe ssfully complete any of the field sobriety tests which were ad ministeredto her at th e scene. By her own admission, Defendant had been drinkingand drivi ng that eveni ng. Her companion that night, Randy Wilkerson, also testif ied that

Defendanthad cons umed at l east (3) alcohol ic bev era ges. A Zi ma bottle was found in D efenda nt’s car by th e police.-17- Regarding the test tub e sam ple, TB I Agent M ichael Littl e test ified t hat he tested the Defendant’ s blood sample twi ce. He also described routi ne procedures by which his testing of Defendant’s bl ood was monitored and confirmed to manifest
accura te results. Wh ile there was a slight va riance in the results of t he two (2) tests, Little expl aine d that suc h varianc e was d ue to a slig ht variability in the instrum ent. As the State points ou t within its brief, an y sugge stion that a foreign substance was in the tes t tube is mere ly specu lation by the Defen dant. Any questions concerning the credibili ty of the wit nesses and the weight and value to be given t he evidence
was determine d by the trier of f act. We will not reweigh t he evidence. In t h e strongest legitimate view of the e vidence , there is m ore th an sufficient evidence whereby the tri er of fact could have foun d Def endant guil ty of dr iving under the influence . This issu e is withou t merit.

C ONCLUSION

T h e Defendant’s i ssues challeng ing the suf ficien cy of the ev idence and the admis sibility of the blood tests p erformed b y the TBI are w ithout merit. How ever, finding reversi ble error regarding Defendant’s ot her two iss ues, we rever se the judgm ent and reman d this cas e for a ne w trial.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________-18-

JOHN H. PEAY, Judge

___________________________________ JERRY L. SMITH, Judge