### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3
STATE OF TENN ESSEE v. MELVIN C OFER
Appeal from the Criminal Court for Hardeman County No. 6542 Jon Kerry Blackwood, Judge

No. W2002-01984-CCA-R3-CD - Filed July 25, 2003

The defendant, Melvin Cofer, was convicted of ag gravated vehicular homicide, see T enn . Code Ann. §§ 39-13-213, -218, and vehicular assault, see T enn. Co de Ann. § 39-13-106. The trial court imposed Range I , concur rent sen tences o f twenty

-one y ears a nd three ye a rs, resp ectively . In th is appeal, the d e fendant asserts (1) that the trial court erred by refusing to suppress the results of the blood alcohol test; (2) that the trial court erred by limiting defense counsel's questioning of potential jurors; (3) that the evidence is insufficient to support the agg ravated vehicular homicide conviction; (4) that the trial court

erred by refusing to qualify

a defense witness as an expert; (5) that the st ate failedto establi sh a prope r chain o f custody

prior to th

e admissio n of the r

esults of the blood alcohol test; and (6) that the trial court erred b y denying his request for special jury instructions. The judgments of the trial court are affirme d.

Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined. Harriet S. Thompson, Bolivar, Tennessee, for the a ppellant, Melvin Cofer.

Paul G. Sum

mers , Atto

rney Gene ral & Repor ter; Rene e W. Turner, Assistant Attorney Genera l; and James Walter F

reeland and Ry an Brown, Assista nt Distric t Attorne

ys G eneral , for

the appellee, the State of Tennessee.
OPINION

At approximately 2:15 a.m . on March 12, 2001, Trooper Tim Scott was dispatched to the
scene of a single-vehicle ac ciden t on Carlin s Road in Ha rdeman Co

unty . When he a

rrived s ome thirty-five

minutes after the accident, he observed that emergency

medical personnel were preparing1 The witness' name is also spell ed "Cand ace" in other portions of t he record. The spelling in the i ndictment is "Ca ndice ."
-2- to transport the female victim, l ater identified as Candice 1 Main, by helicopt er to a ho spital in Jackson. The mal e vict im, Jeff Taylor, was being transported by a

mbulance to Jackson General Hospital. A g re en Ho nd a l ay u ps id e d ow n o n t he ed ge of th e r oa dw ay. Accord

ing to Tr ooper Sc ott, the vehicle had "crossed over the c enter line, and the center of th e r oa dw ay, and had r

olled ove r into oncoming traffic." The

defendant, who was the owner of the Honda, acknowledg ed that he had been driving when the accident occurred. Tr ooper Scott described

the defe ndant' s speech

as slurred, his ey es as wa

tery , and his gait as unsteady , and observed that one of his pupils was dilated. Trooper Scott also smelled alcohol on his breath. There was an unopened c an of beer besid e the d efenda nt's vehicle.

After photographing the vehicle, Trooper Scott questioned the defendant, who admitted that he had beendrinking earlier in the evening a nd had take

n Xanax, a

nd then pla

ced him under arr

est for DUI. The

officer transported the

defenda nt to Boliv ar Gene

ral Hospi tal for a blood alc ohol test, which the defendant refused. Bec ause of inj uries he suf fered in the accident, the defenda nt was hospitalized and was later taken to Jackson General Hospital. Trooper Scott was not present when the defendant's blood was drawn. I t was his opinion that the defendant was intoxicated when the accident occurred. Trooper Scott, who had only three months' experience at the time of the accident, had previous ly

investigated approximately twe nty accide

nts. This was the first ac cident he had investigated

which involved a fatality. T rooper Scott conceded that

he did not interview any of the bystanderswho were at the scene that night and acknowledged that the de fendant's slurred speech, watery e yes, dilated

pupil, and unsteady g ait could have been caused by injuries he received

in the accide nt.
Denise Walder, the victim Taylor' s fianceé, testified that she had last seen him at approxima

tely midnight on the night of accident and did not

see him again until he was taken to the hospital. Upon her arrival at the hospital, she learned that Tay lor had been in a

car accident and had died.

Candice Main, who had attended a cookout at a neighbor' s house on the day be fore the accident, testified that both the defendant and Tay lor were there. Both were dr inking. During the
course of the evening, Ms. Main and Tay lor decided to persuade the defendant to lea ve the cookout in order to avoid an altercation. She recalled that when they left in the defendant's car, ea ch of them
was drinking

beer. According to Ms. Main, Taylor drove initially but

the defendant eventually

took the wheel . Whe n the d efenda nt bega n driv ing at a n exc essiv e rate o f speed and sw ervin g, she "begged [the defe ndant] to sto

p or let us o ut, or let somebody else drive ." Ms. Main testified that she was pinned underneath the car when the defendant crashed. She recalled hearing Tay lor talking but could not see him. The defendant ran for help. Just after a man and a woman pulled her from the car , she lost c onsciousness.-3-

Ms. Main remained

in the hospital for three weeks with injuries to her colon, pancrea s and kidney s. All of her ribs were broken. She testified that "[i]t's not all [the defendant' s] fault. He didn 'twant me to get in that car. . . . I believe the pain [the defendant has] been through is enough."

Laura Kitchen, a

medical laboratory

technician at Bolivar General Hospital at the time of the accide nt, testifie d that the

defenda nt's bloo d was dra

wn at the d

irection of th e emerge ncy room physician to test for bl ood alcohol content. Although she could not specifically recall taking the defend ant's blood, Ms. Kitchen testified that it is her practice to clean the area with water rather than alcohol before drawing

the sample. Testing established that the defendant' s blood alcohol content was .217 milligrams per deciliter.

Robert Marshall, a forensic s cientist with the Tennessee Bureau of I nvestigation testified that the defendant's medical recor ds establish

ed that a serum blo od alcoho l test, rather than a whole blood alcohol test, was performed. Using a standa rd formu la , Mars hall d eterm ined t hat th e defen dant's whole blood alcohol level would have been .177 percent. Marsha ll testified thatwhile alcohol in the body gener ally dissipate s at a

rate of .01 to.02 grams percent per hour, the alcohol content of blood kept in asealed container would likely remain the same. The defendant' s medical records indicated that he had taken the prescription medicati on Xanax, w

hich, ac cording

to Marshall, should not be combined with alcohol. Mars hall testi fied tha t the medic al reco

rds esta blished th at t

he d efendant refused blood alcohol testi ng by law enfor cement and that the testing was conducted for medical purposes
. Billy Irvin, a volunteer with the re scue squad that responded to the accident , testified that while he is not a certified emergency medical tec hni cian, he was certified to render medical assistance at accident scenes with few limitations. I rvin, who arrived

at the accident scene

at 2:20 a.m., testifie d that it too k approxima

tely twenty minutes t

o extri cate Tay

lor, who was pinned between the ground and the rea r window, with the full weight of the vehicle on his back.

Mechani c Roger Province, who examined the vehicle severa l mont h s after t

he acci dent, determinedthat "the right rear tire was flat. The right rear wheel is turned under, and . . . the left front fender and the left front wheel has da mage where it hit the tree." Provinc e stated tha t he observed asphalt in side the r

im of the r

ight re ar tire, indicating that it had dug into theroadway . He found that the tire had broken loose from the rim and the right rea r suspension of the car wa s bent.

John Weaver, a param

edic with the Hard eman Coun

ty A mbulance Service , testifie d that when he a

rrive d at the scene of the accident, a number of bystanders we

re rocking the car in an attempt to lift it off of Taylor

. According to Weaver, Tay lor was lying

on his stomach and was pinned under the car from his waist down. After direct ing the bystanders to step aw ay from the vehicle, Weaver performed an assessment of Tay lor's condition. Weaver noted that Taylor, who was conscious and able to speak, had a strong odor of

alcohol on his breath. Initially , he did not detect any life-threatening injuries. After Tay lor was remove d f

rom th e veh icle , Wea ver o bser ved t hat " [i]n the lumbar area over the kidney s[,] wh ich would be just above his belt line, there were two indent[a]tions in the bac

k of the sk in. They were a pproximate

ly half an inch dee

p, gues sing pro

bably-4-

the size of a cigarette, one over ea ch kidney." Although Taylor's skin was not broken, it was Weave r's opinion that the i njuries were of a ty pe that "could cause a lot of damag e to the internal organs."

Alth ough a helicopter

was called to transport Tay lor to Jackson General Hospital or to The Med in Memphis, a major weather front between Har deman and Shelby Counties prev ented ai r travel
so that only

one helicopter was available. When the helicopter arrived, Tay

lor was pinned under the vehicle and Ms. Main's condition had worsened so the decision was made to transport Ms. Main by air and Taylor by

ambulance. Although the p ilot of the helicopter agreed to return a nd meet the ambulance after d

ropping off Ms. Main, weather conditions would not permi t him to do so. Ta ylor's condition deteriorated during the trip to Jackson General Hospital, which took a pproximately an hour.

I The defenda

nt first asserts that

the trial court erred by

refusing to suppress the results of the bloo d alco hol test. He claims that because he was unconscious and bec ause no exigent circumstances existed, hisblood was drawn in contravention of Tennessee Code Annota ted section 55-10-406(b). The state

submits that the defendant has waived the issue by failing to include in the record thetranscript of the hearing on the motion to suppress or the trial cour t's order denying the motion. In the

alterna tive, the state asserts t hat the r esults of t he blood a

lcohol te st were a

dmissible because the test was not performed at the di rection of law enforcement, but for the purposes of medical d iagnosi s or trea

tment.
Ge ne ra ll y, the failure to includethe transcript of a suppression hearing constitutes a waiver of the issue. See

Tenn. R. A

pp. P. 24(b ); Thompson v . State , 958 S.W.2d 156, 172 (T enn. Crim

. App. 1997). Whe

n no trans crip t is included in the record, this court must presume that the ruling of the trial court is correct. See State v. Taylor , 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983).

The merits of the question are primarily governed by Tennessee

Code Annotated section 55- 10-406, w hich prov ides, in r elevant part, asfollows:
(a)(1) Any person who dr ives any motor vehicle

in the state is deemed t o have given consent to a test for the purpose of determining the alcoholic or dr ug content of that person's blood; provided, that such test is administered at the direction of a law enforcement officer having reasonable grounds to believe such per son was driving while under the influence of an intoxicant or drug

. . . . * * * (b) Any person

who is unconscious as a result of an accident or unconscious at the time of arrest or apprehension or otherwise in a condition rendering that

person incapab le of refusal, shall besubjecte d to the te st as provided for by

§§ 55-10-405- 55-10-412, butthe results thereof shall not be used in evidence ag ainst that person in any court or before any regula tory body wi thout the c onsent of

the pers on so tested.-5- * * * (e) Nothing

in this section s hall aff

ect the a dmissibility

in evidence, in criminal prosecutions for aggra vated assault or

homicide by t he use of a motor ve

hicle on ly, of any che

mical analysis of the a

lcoholic or drug content

of the defend ant's blood which has been obtained by any means lawful without regard to the provisions of this section. Tenn. Code Ann. § 55-10-406(a)(1), (b), (e ).

This co u rt has consistently held that section 55-10- 406 does not apply to blood samples drawn pursuant to a medical request and analy zed by hospital personnel. S ee State v . Rid ge , 667 S.W.2d 502, 505 ( Tenn. Crim. App. 198 2); see also State v. Wi lliam Roy Hopper , No. 02C01-9612-CC-00485 (Tenn. Crim. App., at Jackson, Jan. 20, 1998); State v. Robert J. Kellet , No. 03C01-9401-CR-00002 (Tenn. Crim. App., at Knoxville, Jan. 27, 1995). B ecause the evide nce in this case established that the defendant's blood wa s drawn pursuan t to a medical rather than law enforcement

request, Tennessee Code Annotated section 55-10-406 would not bar admission of the blood alcohol test results. In our view, the trial court did

not err b y r

efusing to suppre ss the re sults of the blo od alcoho l test.

II Th e defendant next contends that the trial court committed reversible error by limiting ques tioning of potential jurors by def ense counsel. He argues that c ounsel should have been permitted to explain th

e presum ption of in

nocenc e utilizing

"a meta phor based on the ba

pti sm o f Jesus in the Jordan River and the white dove surrounding Jesus in the same manner that a cloak of innocence surrounds the accused." Our supreme court has held that "[t]he ultimate goal of voir dire is to see that jurors are competent, unbiased, and impartial, and the decision of how to c onduct vo ir dire of prospective jurors rests within thesound discretion of the trial court ." State v. H owell , 868 S.W.2d 238, 247 (Tenn. 1993).
Here, th e t ri al co ur t d id no t m ak e a ru li ng wh ic h l im it ed vo ir di re . T o t he co nt ra ry, the record establishes that def

ense cou nsel did notactually attempt to question jurors using the metaphor of the baptism. Prior to voir dire, the following colloquy took place:

Prosecut or: Your Honor, it has occurred to me that in the last D UI tr ial I had with [defense counsel], there was an allusion made to Jesus' baptism at the - - Defens e Counsel : I ha ve no plan

to do that. Prosecutor: Thank you. That' s what I was going to ask. Defens e Counsel : I'm go in g t o t el l a st or y ab ou t t re es to da y. The Court : All righ t.
It is our view that the defenda nt is not entitled to relief on this issue.-6- III The defendant asserts that the evidence is insufficient to support the conviction for aggravated

vehicular homicide. Specific ally , he conte nds that the state

overlook ed its oblig ation to prove that Taylor had, in fa ct, died and also failed to establish that the car accident was the cause of his death. On appeal, of course, the state is entitled to the strongest leg itimate view of the evidence and all reasonable inferences which mig ht be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrg e v. State , 575 S.W.2d 292, 295 (Te nn. Crim. A pp. 1978) . When the s ufficie ncy of the ev idence i s challenged, the relevant questionis whether , after reviewing the e

vidence in the lig ht most fav orable to the state, any r

ational trier

of fact could have found the essential elements of the crime bey ond a
reasona ble doubt. Te

nn. R. A pp. P. 13(e ); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesses, the w eight and valueof the evidence, as well
as all factual issues raised by the evidence are

resolved by the trie

r of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidenc e was leg ally

insufficient to sustain a guilty ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

"Vehicular

homicide is the reckless killing of another by the operation of

an automobile . .

. [a]s the proximate result of the driver's intoxication as set forth in § 55-10-401." Tenn. Code Ann. § 39-13-21 3(a)(2). "Aggravate d vehicular homicide is vehicular homicide, as defined in § 39-13-213 (a)(2), where . . . [t]he defe ndant has two (2) or more prior convictions for . . .[d]riving under the influence of an intoxicant." Tenn. Code Ann. § 39-13-218(a)( 1)(A).
Here, Tay lor's de athwas established by the te stimony of Denise Walder and by the admission of his de ath certificate into evidence. Trooper Scott testified that the r oadway w as dry and th e weather clear w hen the a ccident occurr ed. Ms. Ma

in testified th at the de fendant was driving erratic ally just prior to the accident and that h e had b een dri nkin g. Tay lor's me dical records es tablish that he diedfr om internal bleeding caused by injuries to his kidneys. Paramedic Weave r testified that he observed two indentations in Taylor' s back just after the accident. Although the de fendant introducedevidence suggesting that Taylor' s injuries were either caused or exacer bated by the bys tander' s attemptsto free him from the vehicle and that Tay

lor might not have died had he been transportedby helicopter to a hospital w ith a higher tra

uma rating, it is we

ll settled that the jury may reject the theory

offered by

the defendant and accredit the evide nce offered by

the state. See State
v. Summerall , 926 S.W.2d 27 2, 275 (Te nn. Crim. App. 1995). In our view, the evide nce is sufficient to support

the convi ction for

aggr avated v ehicula

r assaul t.

IV The def endant c laims that the tr

ial cour t erred by r efusing to permit d

efense witness Roger Province to testify as an expert and r ender a n opinion a s to the ca

use of the accide nt. The sta

te submits that the trial court properly re

fused to recognize Province as an expert beca use he did not have any scientific knowledge or specialized training in a ccident reconstruction.-7-

The admissibility o f expert te stimony is gover ned by Rules 702 a

nd 703 of th

e Tennessee Rules of Evidence. McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257 (Tenn. 1997 ) . Rule 702 address es the ne ed for e

xpert testi mony

and the qu alifica

tions of the

expert:
If scientif ic, tech nical, or other specializ ed knowl edge will subst antially assist the trier of

fact to understand the evidence or to deter mine a fa ct in issue , a witnes s qualif ied as an expert by knowledg e, skill, experience, training, or education may testify in the form of an opinion or othe rwise.

Tenn. R. Evid. 702 . "To g ive exper t testimony , one must

be particul arly skilled, learned or experienced

in a science , art, trade, business, profess ion or voc ation. The expert must

possess a thoro ugh knowledge upon which he testifies that is not within the general knowledge and experience of the average perso n." Otis v. Cam bridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 443 (Tenn. 1992) (citi ng Kinley v. Tennessee State Mut. Ins. Co., I nc. , 620 S.W.2d 79, 81 (Tenn. 1981)).

Ge ne ra ll y, the admiss ion of expe rt testimon

y islargely e

ntrusted to the sound discretion of the trial court. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). The trial court's decision may be overtur

ned on ap peal only upon a sho wing tha

t the tria l court a bused its discretion. Id. "The abuse of discretion standard contemplates that before re ve rsal the record must show t hat a j udge 'applied an incorrect legal standard , or reached a decision which is against logic or reasoning that caused an inj ustice to t he party complainin g.'" State v. Coley , 32 S.W.3d 831, 833 (Tenn. 2000) (quoting State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999)); see also State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997).
Here, testimony offere d out of the presence of the jury established

that Province was licensed
as a mechanic, had repaired cars for a number of y

ears, had rebuilt wrecked cars, and had oper ated
a tow truck. He testified that hehad also been involved in a number of car accidents. I

n our view, the trial cou

rt did not a

buse its dis cretion

in determining that Province did not possess the skill or experience necessary

to testify as an expert in accident reconstruction.

V Th e defendant

next asser

ts that the trial cou rt imprope

rly admitted t

he blood a

lcohol te st results from Bol

ivar Hosp ital and th

e testimon

y of Laur a Kitche n becau se the state

failed to establish
a proper c hain of custody . The stat e su bmi ts that the

defenda nt has wa ived the i ssue by

failing to lodge a contemporaneous objection to the evidence. In the a

lternative, the state

argue s that the c

hain of custody was suff

iciently established.

As a conditi on precedent to the introduc tion of tangible evidence , a witnes s must be a ble to identify the evidenceor establish an unbroken chain of custody

. State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custo dy r

equirem ent is to “d

emonstra te that there has been no tampering, loss, substitution, or mistake with respect to the evidenc e.” State
v. Braden , 867 S.W.2d 750, 759 (Ten n. C rim. App. 1 993). While the state is not req

uired to establish facts which exc lude eve ry possibility

of tampe ring, th e circu mstance s establis hed must-8-

reasona bly assure the identity of the

evidence and

its integrity. State v. Ferguson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). This rule does not require absolute certainty of identification. Ritter
v. State , 46 2 S.W.2d 247, 250 (Tenn. Crim. App. 1970). Absent sufficient proof of the chain of
cu st od y, however, the “evidence should not be admitted . . . unl e ss both identity and integrity can be demonstr

ated by other ap propria te means.” Neil P. Cohen et al., Tennessee Law of Evidence § 9.01[13][c] (4th ed. 200 0). A lea ding Te nnessee treatise providesas follow s:
The concep t of a “chain” of cust ody recog ni zes that real evidence may be handledby more than one pe rson between the time it is obtained and the time i t is either introduced into evidence or subjecte d to scien

tific analysis. Obviously , any of these persons might have the opportunity to tamper with, confuse, misplace, damage, substitute, lose and replace, or otherwise alter the evidence or to ob serve an other doing so. Each person who has custody or control of

the evidenceduring t

his time is a “link” in the chain of custody

. Generally , testimony from each link is neede d to verify the authe nticity of the evidence a

nd to show t

hat it is w hat it purpor ts to be. Eachlink in the chain testifies about when, where, and how possession or control of the evidence was obtained; its condition upon receipt; where the item was kept; how it was safeguard

ed, if at all; any chang es in its co ndition dur ing posse ss ion; an d when, where and how it left the witness’s possession.

Id. The issue addresses itself to the sound discretion of the trial court; its determination will not be disturbed in the absence of a c learly mistaken e xercise of such discretion. State v. Beech , 744 S.W.2d 585, 587 ( Tenn. Crim. App. 198 7); State v. Johnson , 673 S.W.2 d 8 77, 881 (Tenn. Crim. App. 1984). Reasonable assurance, rather than absolute assurance, is the prerequisite for admission.
Here, Ms. Kitchen identified her initi als on certain of the medical records indicating that she had drawn the defendant's blood pursuant to a requ est from the emergency room physician. Alth ough she was unable to specifically recall the incident, it was her policy to initial the records when she had performed the blood alcohol test. It is our view th at this tes timony was suff icient to establish "the identi ty of the evidence and i ts integrit y." See Ferguson , 741 S.W.2d at 127.

VI As his final issue, the defendant claims that the trial court erred by refusing his request that the jury be char ged " fully " on the l esser included of fense s of vehicular homicide and vehicular assault. He asserts that although the trial court provided instruct ions on the applicable lesser included offenses of the two crimes, the trial court should have included a n a dditi onal instruction explaining how the jury should consider the lesser included offenses. The st ate argues that the instructions were proper.
"[The] defendant has a constitutional right to a correctand complet e charge of the law. " State
v. Teel , 793 S.W.2d 236, 249 (Tenn. 199 0). Jury instructions must, however, be revie wed in the cont ext of the ove

rall cha rge ra ther tha n in isolati on. S ee Sandstrom v. Montana , 442 U.S. 510 (1979); see also State v. Phipps , 883 S.W.2d 138, 142 (Tenn. C rim. App. 1994 ). A cha rge is-9-

prejudicial error "if it fails to fairly submit the legal issues or if it misleads the jury as to t he applica ble law." St ate v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997). While the defendant may request special instructions, jury instructions are sufficient where they

adequately

state the law. See, e.g. , State v. Tyson , 603 S.W.2d 7 48 (Tenn . Crim. App. 1980). When a trial court's charge to the jury is complete, it need not give additional special instructions requested by the defendant. See State v. Story , 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).

Th e t ri al co ur t p ro vi de d t he fo ll ow in g i ns tr uc ti on s t o t he ju ry:
If you find the defe

ndant not guilty of vehicula

r homicide as a result of intoxication
as charg ed in the indictmen t, then y our verd ict will be not guilt y of that offense, and then you should procee d to determine his guilt or innocence of vehicular homicide
as a result of reckless conduct. I

f you find the def

endant not guilty of this off ense, or if y ou have a

reasona ble doubt a s to his gu

ilt as to thisoffense, you

must find him notgu ilty of th at offense, and then you should proceed to determine his guilt or innocence of the lesser offense of driving under the influence.

The next count of the indictment, if you find the defe ndant not gui lty of vehicular assault, or have a reasonabl e doubt as to his guilt of vehicular assault, then y ou should find him notgui lt y, an d t hen you w il l p roc eed to rec kl ess end ang erm ent . If you find, however, that the State has proven the defendant guilty beyond a reasona ble doubt, th en yo u sh oul d fi nd h im gui lt y. If you find the State has not proven bey ond
a reason able d oubt the de fendan t's guilt, or if you ha ve a reasonable doubt, then y ou sh al l f in d h im no t g ui lt y.
Becau se the instructions provided by the trial cour t are a correct statement of the law, it is our view that the tr ial cour t did not er

r by refusin g the de

fendant 's spec ial requ est. Accordingly , the judgments of the trial court are affir med.

___________________________________ GARY R. WADE, PRESIDING JUDGE