# FILED
April 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF C RIMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 199

8 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9704- CR-00153 Appellee, ) ) Washington County V. ) ) Honorable Arden L. Hil l, Judge KELVIN WADE CLOYD, ) ) (Vehicular Homicide - 2 counts; Appellant. ) Possession of a Controll ed Substance)

FOR THE APPE LLANT: FOR THE APPELLEE: H. Randolph Fallin John Knox Walkup Attorney at Law Attorney General & Reporter 303 West Main Street Mountain City, TN 37683 Clinton J. Morgan Counsel for the State 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 David E. Crockett District Attorney General Joe C. Crumley and Michael LaGuardia Assistant District A

ttorneys General P.O. Box 38 Jonesborough, TN 37659

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- Kelvin Wade Cloyd, the appellant, w as convicted of two counts of vehicular homicide and pos session of a controlled substan ce in the Washington County Criminal Court. The issue on appeal is whether the evidence is sufficient to sustain the jury ’s verdict on the homici de counts. The judgment of the trial court is affirmed.
On October 8, 1995, the appellant w as involved in a head-

on collision with the victims, Paul Lehew and Charles Garland. The collision occurred on Old State Route 34 in Washington County shor tly after midnight. Lehew and Garland were killed instantly.
For the appellant to be found guil ty of vehicular homici de, the state had to prove beyond a reasonable doubt that (1) the appellant w as intoxicated when he struck the victims’

vehicle, and (2) the deaths of the victims were the proximate result of the appellant’s intox ication. Tenn. Code Ann. § 39-13- 213(a)(2) (Supp. 1995).
The proo f showed t hat, on O ctober 7t h, the ap pellant and Rand y Loyd went to Ray’s Mar

ket (Ray’s), a beer

store and drinking establishment. They drank beer. Later, the appell ant, Loyd, and an employee of Ray ’s, Glenda Sue Sams, went to a restaurant t o eat dinner. They ate dinner and had beer or mixed drinks. They returned to Ray’s at approximately 11 p.m. The victims, Lehew and Garland, wer e at Ray’s drinking

beer.
Loyd left Ray’s before the ap pellant. Loyd testified that he tried to convince the appellant not t o drive because the appella nt was not “in good enough shape to drive.” Loyd testified that Ms. Sams and the proprietor of Ray’s, Lau ra Presco tt, also t ried to co nvince the appellan t not to dr ive. Loyd rode with Lehew and Garland to the appellant’s house so that Loyd could get his-3- vehicle. Lehew and Garland were supp osed to meet L oyd at Loyd’s house to go to a party together. Lehe w and Garland never made it.
The appellant plowed head-on int o the vehicle occupied by Lehew and Garland. The appellant was driving a pickup tr uck. Lehew was dri

ving a Mazda car. Lehe w’s lower bod y was pinned inside th e car. Garl and’s bo dy was thrown approximately twenty feet from the car. The appellant’ s truck turned on its si de. He suffered minor injuries.
Although there were no ey ewitnesses to the wr

eck, a neighbor who l ived nearby heard the collis ion and called 911. Officer Der ek Patton of the Washington County Sheriff ’s Department was the first to arrive on the scene. He was joined by Dex

ter Lunceford and Jeff Anderson of the Tennessee Hi ghway Patrol, Officer Todd Davis of the Washington County Sheriff’s Department, and paramedic Christopher Hitechew. Garland and Lehew were pronounced dead. The appellant was placed in the back of a patrol car. A plas tic bag containing forty-two blue Valium tablets was found in the appell ant’s pocket. The accident scene was secured and inv estigated. The appellant did not remember anything about the accident.
The primary issues at tr ial were whether the appellant was intox icated, and, if so, whether his int oxicated state was the

proximate cause of the deaths of the victims. Dr. Kenne th Ferslew, a forensic toxicologist, test ified to the laboratory reports of the appellant and Lehew, the driv er of the Mazda car. The appellant’s blood-alcohol l evel when he was t ested after the accident was .06. Dr. Ferslew testi

fied that the appellant’s blood-al cohol level at the time of the accident was between . 097 and .108. The appellant also had a bl ood-level concentration of diazepam or Val ium in his system. Dr. Ferslew testified that the concentration of diazepam in the appellant ’s blood was in the th erapeutic range as opposed to a toxic rang e. The therapeutic effects of diazepam inc lude-4- reduced anxiety, muscl e relaxation and sedation. He further testified that mix ing alcohol with diazepa m would have increased the effects of both drugs on the appella nt, causi ng a greate r impairm ent than either su bstance alone wou ld have caused. Dr. Ferslew

testified that, in his opini on, the appellant would hav e been impaired from the alcohol and diaz epam at the time of the collision.

Paramedic Hitechew tes tified that he smelled alcohol on the appellant, but that the appellant’s demeanor w as “normal.” Officer Dav is testified that the he did not smell a strong od or of alcohol on the appellant, but that the appellant did appear to be under the influence o f something. Officer Davis testified that the appellant appeared dazed and c onfused, that his speech was s low and slurred, and that he was sluggish and slig htly unsteady on his feet. Trooper Lunceford testified that he detected a sl ight odor of alcohol on the appel lant, and the appellant appeared to be under the influence of something. Trooper Lunceford testified that the appellant’ s eyes were glas sy and that his speech w as somewhat slurred. Trooper Anderson testified that he thought that the appellant was in an intoxicat

ed state.

Lehew’s blood-alcohol l evel was .03. Lehew ’s blood drug screen w as positive for marijuana, c ocaine, and a therapeutic lev el of diazepam. Marijuana was found in Lehew’s poss ession.
The state produced evidence to establish that the ap pellant’s truck crossed the center line on the highway, entered the victims’ lane, and col lided head-on with the car. The s tate’s reconstruction of the ac cident was based primarily on goug e marks and scratches in the pavement, the damage to both vehicles, the location of the damage to the vehicles, and debris left at the scene. The defense presented expert testi mony to establish that the st ate’s theory was flawed. The expert testified that in his opinion there was no way to tell which vehicle crossed the center line.-5- The parties stipulated that the headlights on one side of the Lehew vehicle were not oper

ating at the time of the colli sion. The defense presented evidence from which the j ury could have concl uded that none of the headlights on the Lehew vehicle w ere operating. There wa s evidence that the appellant was speeding at the time of the collision.
When an accused challenges the sufficiency of the convicting evide nce, we must review the evidence in the light most favorable to the prosecution in determining whether "any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do n ot reweigh or re-evaluate the evidence and are required to afford the state the strongest legitimate view of the proof contained in the record as well as

all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).
Questions concerning the c redibility of witnesses, the weight and v alue to be given to the evidence, as well as factual issues raised by the evidence are resolved by the tri er of fact, not this Court. Id. A guilty ver dict rendered by the jury and approved by

the trial judge accre

dits the testimony of the w itnesses for the state, and a presumption of guil t replaces the presumption of innoc ence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). It is the appella nt’s burden to illustrate to this C

ourt that the evidence prepond erates against the guil ty verdict in favor of his

or her innocence. Id.
The appellant essentially a rgues that the evidence i s insufficient to establish that he was intoxicated, and, that even if he were intoxicated, his intoxication was not

the proximate cause of the deaths of the victims. He points to the testimony of the proprie tor of Ray’s, Laura Pres cott, and Ms. Sams who both testified that the appellant di d not appear intoxicated at the time in question. The appellant argues that the ju ry should have believ ed his expert’s opinion

that-6- there was no way to determine which vehi cle crossed the center li ne. The appellant points out that the stat e’s expert was not c

ertified as an accident reconstructionist until after the collision. He argues that the credentials of his expert are better than the c redentials of the state’s rec onstructionist. The appellant also points to the i ntoxicants found in Lehew’ s system and the evidence that none of the headlig hts on the Lehew vehicl e were operative.
We reviewed this record thoroug hly, paying clos e attention to the evidence of how the colli sion occurred. Both the defense at torney and the assistant district attorney did an excellent job of presenting the proof to the jury in this tragic case. It

was the jury’s d uty to decide which w itnesses were credib le. It was the their duty

to determine how much wei ght to place on particul ar evidence. There was competent evidence in the record from which the jury could have found that the appellant was intoxicated at the time of the collision, and, that the appellant’s intoxication was the proximate cause of the victims’ deaths.
The judgment of the trial court i s affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge-7- ______________________________ CORNELIA A. CLARK , Special Judge