State of Tennessee v. Steve William Pollock ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 1, 2012
STATE OF TENNESSEE v. STEVE WILLIAM POLLOCK
Appeal from the Circuit Court for Obion County
No. CC-10-CR-93 William B. Acree, Jr., Judge
No. W2011-01566-CCA-R3-CD - Filed September 17, 2012
The Defendant-Appellant, Steve William Pollock, appeals his two convictions for vehicular
assault in the Obion County Circuit Court. On appeal, Pollock argues: (1) that the trial court
erred in allowing the State’s expert to rely on a study, a copy of which he was not provided,
in forming her opinion regarding the likelihood of his intoxication at the time of the collision
and (2) that the trial court erred in denying his motion for judgment of acquittal at the close
of the State’s proof and that the evidence was insufficient to support his convictions. Upon
review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.
Charles S. Kelly, Sr. (on appeal), Dyersburg, Tennessee, and James T. Powell (at trial),
Union City, Tennessee, for the Defendant-Appellant, Steve William Pollock.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Thomas A. Thomas, District Attorney General; and Kevin D. McAlpin, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
This case concerns a November 4, 2009 collision in which Pollock’s truck hit an
oncoming vehicle, resulting in serious injuries to the victims, Sarah and Scotty Jones.
Pollock was later charged with two counts of vehicular assault. Just prior to the presentation
of proof at trial, the parties stipulated that Pollock caused serious bodily injury to the victims
by the operation of a motor vehicle. See T.C.A. § 39-13-106(a). Therefore, it was the jury’s
responsibility to determine whether Pollock’s intoxication recklessly caused the victims’
serious bodily injuries. See id.
State’s proof. Sarah Jones testified that she and her sixteen-year-old son, Scotty
Jones, were involved in an automobile collision with Pollock on November 4, 2009. She said
that she was driving to Samburg on Highway 21, a two-lane road, when the collision
occurred. However, she did not remember any details regarding the collision. Her injuries
included a full hip replacement and whiplash.
Scotty Jones testified that the collision occurred when Pollock attempted to pass a van
in front of him and drove into the lane for oncoming traffic. He said that his mother “tried
to get over” on the shoulder of the road but that Pollock’s vehicle hit them in a head-on
collision. Scotty stated that his injuries included a titanium rod in his left leg and some cuts
on his face and behind one of his ears, which resulted in scars. Both he and his mother were
airlifted to the Regional Medical Center at Memphis because of the severity of their injuries.
Tina Thompson testified that she was a passenger in the front seat of the van that
Pollock attempted to pass just before causing the collision on November 4, 2009. She said
that the van she was riding in had just passed the top of a hill when Pollock’s truck “pass[ed
them] on a double yellow line” just before hitting the victims’ truck. Thompson stated that
the accident occurred “right beside” the van in the left lane and that “the impact was so
great” she initially thought the van had been involved in the collision.
Jessie Clark testified that he witnessed the November 4, 2009 collision. He had been
driving behind Pollock for five to seven minutes prior to the collision and, during that time,
Pollock “kept swerving off the road, across the median, off the shoulder.” He described
Pollock’s driving as “very, very erratic[.]” As he picked up his cell phone to call the police
about Pollock’s driving, he saw Pollock’s truck collide with the victims’ truck. Pollock
drove “off of the shoulder” on the right side and then “overcorrected” before “smash[ing]
right into [the victims’ truck].” Clark did not recall a van in front of Pollock at the time of
the collision. When Clark approached the truck that caused the collision, he saw blood on
Pollock’s face.
Sergeant Carl Jones, an officer with the Tennessee Highway Patrol, testified that he
responded to the November 4, 2009 collision on Highway 21. When he arrived at the scene
of the head-on collision, he saw rescue personnel removing an individual from a red and
silver truck and saw another individual, later identified as Pollock, sitting in the driver’s seat
of a white truck. Sergeant Jones asked Pollock if he was okay, and Pollock responded
affirmatively. He then asked Pollock what happened, and Pollock “began cursing [and]
saying that the other pickup truck ran over him in his lane.” During this conversation,
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Sergeant Jones observed that Pollock’s “speech was extremely slurred[,]” “[h]is eyes were
droopy, and he had a drowsy appearance about him.” He also said that Pollock’s “reactions
were very slow,” and “[h]e had the appearance of a person being under the influence of an
intoxicant.” Then Sergeant Jones asked Pollock if he had been taking any medication, and
Pollock said he had not. No field sobriety tests were conducted on Pollock because he was
injured in the collision.
Sergeant Jones said that the physical evidence indicated that Pollock had been
“traveling eastbound on [Highway] 21” when he “traveled across the center line into the
westbound lane, striking the red and silver pickup truck head-on, directly in the westbound
lane.” The skid marks from Pollock’s truck indicated that Pollock was either “attempting
to . . . pass another eastbound vehicle, or [was] trying to avoid rear[-]ending another
eastbound vehicle[.]” Sergeant Jones said that he did not “see any evidence of [Pollock]
running off the [eastbound] shoulder” because “[t]he skid marks [caused by his braking
began] just inside the eastbound lane, near the center line, and continued across into the
westbound lane[.]” Based on the physical evidence, Sergeant Jones opined that Pollock
“came up behind the van too fast, and instead of rear[-]ending the van, he attempted to go
around it and pass, illegally, instead of swerving off the right side of the road[.]” He said that
the victims had driven their truck almost completely onto the westbound shoulder just prior
to the collision.
Sergeant Jones said that he later had contact with Pollock at the emergency room in
Union City. During Pollock’s interview with Agent Moore and Trooper Avery, Sergeant
Jones noticed that Pollock’s “speech was still extremely slurred” and “[h]is reactions were
real[ly] slow.” Shortly after the interview, Pollock refused medical treatment and asked to
leave the hospital. When Pollock stood up, he was “unsteady on his feet and staggering
about.” Sergeant Jones opined that Pollock “was definitely a threat to himself and to any of
the other motorists on the road” and “shouldn’t have been driving that day.”
On cross-examination, Sergeant Jones acknowledged that Pollock’s air bag deployed
as a result of the collision. However, he did not notice whether Pollock had blood on his face
after the collision. Sergeant Jones admitted that the skid marks on the center line could have
been caused by Pollock braking when he saw the oncoming truck as he was attempting to
pass the van in front of him.
On redirect examination, Sergeant Jones concluded that Pollock was impaired rather
than just temporarily shaken from the accident because Pollock’s condition remained the
same for two hours following the collision. He opined, based on his experience and
Pollock’s demeanor following the accident, that Pollock “appeared to be under the influence
of an intoxicant.”
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Brian Avery, a trooper with the Tennessee Highway Patrol, testified that he responded
to the November 4, 2009 collision. Trooper Avery observed a red and silver truck on the
north side of the road and a white truck “sitting crossways [sic] in the roadway [with] the
front of the vehicle . . . in the westbound lane.” He immediately approached Pollock, who
was sitting in the white truck, and began talking with him. When he asked Pollock what
happened, Pollock responded, “She hit me in my lane.” Trooper Avery noticed that Pollock’s
speech was slurred. He then asked Pollock if he had taken any medication or was under the
influence of alcohol, and Pollock said that he had taken Methadone that day. Trooper Avery
said that Pollock had no visible injuries at the time he was loaded into an ambulance.
Trooper Avery followed the ambulance to the hospital so that he could obtain a blood
sample from Pollock. He later informed Pollock that he would have to provide a blood
sample because a suspect’s blood may be taken without consent in vehicular assault cases.
Pollock became “a little combative” and informed him that “he wasn’t going to give [his
blood] to [him].” A nurse at the hospital drew Pollock’s blood in Trooper Avery’s presence.
During Trooper Avery’s testimony at trial, the parties stipulated that the sample obtained at
the hospital was Pollock’s blood, which was then sent to the Tennessee Bureau of
Investigation for analysis. At the hospital, Trooper Avery observed Pollock’s “slurred
speech” and “his unsteadiness on his feet[.]” He opined that Pollock “was too impaired to
operate a motor vehicle.” Pollock refused medical treatment before leaving the hospital.
On cross-examination, Trooper Avery said that he did not see any blood on Pollock’s
face after the accident. He stated that Pollock’s air bag deployed but that Pollock was not
wearing his seat belt when he first observed him at the scene. Trooper Avery acknowledged
that Pollock could have refused medical treatment at the hospital because he did not have
health insurance. He further acknowledged that he and Agent Moore asked Pollock fifteen
pages of questions, which included requests for Pollock to provide several telephone
numbers and his social security number, and that Pollock answered each question. During
this questioning, Pollock admitted that he had taken Methadone, a legal prescription drug,
the day of the collision. Trooper Avery admitted that the skid marks on the yellow line could
have been caused by Pollock hitting his brakes when he saw the oncoming truck as he was
attempting to pass the van in front of him.
On redirect examination, Trooper Avery stated that Pollock was combative with him
and insulted him on several occasions during the investigation. He also recalled Agent
Moore having to ask the same question to Pollock several times and Pollock saying that he
was having trouble understanding the question.
Dan Moore, the assistant special agent for West Tennessee’s Criminal Investigations
Division of the Tennessee Highway Patrol, testified that he investigated the November 4,
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2009 accident. Agent Moore interviewed Pollock at the hospital in the presence of Sergeant
Jones and Trooper Avery. During the interview, Pollock admitted that he had taken 120
milligrams of Methadone that morning but denied taking any other medications. Agent
Moore said that Pollock was cursing and combative, refused to follow the instructions of the
hospital personnel, was “thick-tongued while speaking[,]” had “slurred and sometimes
unintelligible” speech, and was, at times, hysterical. In addition, he said that Pollock “could
not stand without any assistance, he could not dress himself without assistance, he was very
unsteady [on] his feet, [and he] could not maintain balance.” Agent Moore said that there
was no evidence Pollock had received a head injury in the collision. He also said that the
hospital staff never indicated that Pollock had suffered any type of head injury or trauma.
Agent Moore opined that Pollock “appeared to be under the influence of a central nervous
system depressant, based . . . upon [his] experience and training.” He also opined that there
was “no doubt” that Pollock was too impaired to drive.
On cross-examination, Agent Moore said that he did not arrest Pollock because he was
not the case agent. He acknowledged that he allowed Pollock to leave the hospital with his
family, even though Pollock could have driven a car while still impaired. He also
acknowledged that Pollock was not charged with the offenses in this case until he was
indicted by the grand jury, which was approximately three months after the collision. On
redirect examination, Agent Moore said that it was “not an uncommon practice” for the
Tennessee Highway Patrol to present cases like this to the grand jury.
Sergeant Jones, when he was recalled by the State, testified that even though he had
wanted to arrest Pollock the day of the accident, a representative from the district attorney’s
office informed him not to charge Pollock with an offense until the blood results were
obtained and the preliminary investigation was completed.
Dr. Tonya Horton, a forensic scientist and special agent with the Tennessee Bureau
of Investigation, was declared an expert in the field of pharmaceutical science. When Dr.
Horton tested the blood sample taken from Pollock, she determined that it contained the
following controlled substances: Meprobamate, Carisoprodol, Methadone, Diazepam,
Nordiazepam, and Alprazolam. She explained that the Meprobamate was “more than likely,
the active metabolite formed from the Carisoprodol[.]” She said that as the body attempts
to turn the Carisoprodol into “a form that it can eliminate more easily . . . the [M]eprobamate
is formed [and it has] more of a sedative effect, whereas the Carisoprodol [or] Soma is a
muscle relaxant.” Because Meprobamate is also a drug on its own, Dr. Horton could not
conclusively state whether Pollock had taken the Meprobamate and Soma separately or if the
Meprobamate had formed from the Soma.
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Dr. Horton determined that the amount of Meprobamate in the sample was within the
therapeutic range for that drug. However, she determined that the amount of Carisoprodol
or Soma in the sample was in an amount lower than the therapeutic range for that drug. Dr.
Horton opined that the amount of Meprobamate and Carisoprodol in the sample could impair
an individual because Meprobamate had “sedative effects” which would make operating a
vehicle difficult. She also said that Methadone, an “analgesic pain reliever also used to help
withdrawal symptoms from opiates[,]” could make an individual sleepy. She stated that even
though the amount of Methadone in the sample was less than her lowest calibrator of 0.1
micrograms per mil[liliter], that amount could still be within the therapeutic range for that
drug, which is 0.07 to 1.1 micrograms per mil[liliter]. Dr. Horton said that Diazepam, also
known as Valium, is a “sedative, tranquilizer, [and] anti-anxiety medication.” She also said
that the Nordiazepam is “an active metabolite” made by the body when an individual takes
Diazepam. Both the Diazepam and the Nordiazepam were present in amounts less than her
lowest calibrator. Finally, Dr. Horton said that Alprazolam, or Xanax, causes
“[s]luggishness, sedation, and sleepiness” in individuals. Dr. Horton reiterated that the blood
sample showed that Pollock had taken the following four or five medications prior to the
collision: Soma, Methadone, Valium, and Xanax, with the possibility that he separately took
a dose of Meprobamate. When asked what effect these drugs would have on the body if they
were present at the same time, Dr. Horton stated:
Separately, all of these drugs have a warning about operation of a motor
vehicle in their use, and also a warning about using it in combination with
other medications. And all of these in the body at the same time could impair
a person’s ability to operate heavy machinery or a car, [and could cause a
person to] be sleepy, sluggish . . . unable to walk, [and to have] poor
coordination.
She also added that the presence of all these drugs at the same time in the body would cause
slurred speech. Dr. Horton concluded that Pollock had taken the Soma and Xanax “within
24 to 36 hours” of the time that his blood sample was taken. However, she was unable to tell
when Pollock had ingested the Methadone and Valium. Dr. Horton warned that the presence
of a drug within the therapeutic range does not mean that an individual can safely operate a
motor vehicle.
Defense’s Proof. Pollock did not testify at trial. Casey Blakley, Pollock’s fiance,
testified that she saw Pollock at around 11:00 a.m. on November 4, 2009, when Pollock and
their son picked her up from the hospital in Jackson, where she had been staying with
Pollock’s mother following his mother’s total knee replacement surgery. When Pollock and
their son arrived, Blakley did not notice anything unusual about Pollock. She said he was not
slurring his words or stumbling. When Pollock drove her from Jackson to Hornbeak, Blakley
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stated that nothing about Pollock’s driving caused her to worry. Pollock dropped Blakley
and their son off at his mother’s house at around 1:00 p.m., which was approximately two
to two-and-a-half hours prior to the collision in this case. Blakley said that following the
accident, Pollock had a sling on one arm and some scratches and blood on his face. She also
said that she had been dating Pollock for the last eight years and would know if he were so
impaired that he should not drive. On cross-examination, Blakley acknowledged that she
knew Pollock had taken Methadone the morning of the accident.
At the conclusion of the trial, the jury convicted Pollock of two counts of vehicular
assault. The trial court sentenced Pollock as a Range II, multiple offender and imposed
concurrent eight-year sentences in the Tennessee Department of Correction. Pollock filed
a timely motion for new trial, which was denied. He then filed a timely notice of appeal.
ANALYSIS
I. Objection to “Logan Study.” Pollock argues that the trial court erred in
overruling his objection to Dr. Tonya Horton’s reliance on a study published in 2000 by Dr.
Logan, which showed how the drugs Carisoprodol and Meprobamate impaired an
individual’s ability to drive. He claims that Dr. Horton should not have been allowed to rely
on this study because he had no opportunity to review the study or cross-examine her about
the study. He also claims that Dr. Horton’s reliance on the Logan study prejudiced the jury
and that Dr. Horton’s “alleged facts were not tested for their trustworthiness” as required by
Tennessee Rule of Evidence 703. The State responds that this issue is waived because Dr.
Horton’s testimony at trial was not based on the Logan study. We conclude that Pollock is
not entitled to relief on this issue.
During a hearing outside the presence of the jury, the following exchange occurred:
The State: Can you tell me anything about what [the amounts of the drugs
found in Pollock’s blood] might mean?
Dr. Horton: The Carisoprodol amount, 2.8, is within or might be a little
below the active therapeutic range. The [M]eprobamate is
within the active range, but Logan published in a 2000 paper
[with] the concentrations that I found for the [M]eprobamate
and the Carisoprodol. It was indicative of – well, 21 driving
subjects were studied, and it was found that these people did
show impairment at these levels that I exhumed [from Pollock’s
blood].
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During the defense’s cross-examination of Dr. Horton during the jury-out hearing, the
following interchange occurred:
Defense: Ms. Horton, you said something earlier about some study that
was done sometime or another, and you’re using that in your
testimony today; is that correct?
Dr. Horton: Yes.
Defense: Where did that study come from?
Dr. Horton: Dr. Logan out of, I believe Washington State.
Defense: And when did that come out?
Dr. Horton: It was 2000.
Defense: You’re using his findings –
Dr. Horton: Yes.
Defense: – to determine this, is that correct?
Dr. Horton: In part.
Defense: In a large part?
Dr. Horton: Not necessarily.
Defense: No, ma’am, that doesn’t answer the question. I’m not trying to
be rude. But are you using that [Logan study] as some kind of
standard to use in your testimony today?
Dr. Horton: That [Logan study] only deals with one of the four drugs.
Defense: Which one?
Dr. Horton: The Carisoprodol/[M]eprobamate.
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Later, during the jury-out cross-examination, the defense again asked Dr. Horton
about the Logan study:
Defense: Now, this study that you used to talk about impairment of these
people, this theory that you have or this study that you got from
this [Dr. Logan], did you bring that with you today?
Dr. Horton: No. I have a review article.
Defense: So, there’s no way that I can review that today, is there?
Dr. Horton: You could look at the review article.
Defense: Okay. You didn’t bring the [Logan] study with you, though?
Dr. Horton: No.
During the jury-out hearing, defense counsel objected to Dr. Horton’s reliance on the
Logan study because he was not provided a copy of the study so that he could cross-examine
her about it. The trial court noted the defense’s objection and stated, “If that were the only
basis for her opinion, I probably would not allow this testimony.” The court added that it
believed that Dr. Horton had formed her opinion based on her training, experience, and
education. The court said that it was “going to let her testify on that basis” and that it “did
not understand that her whole opinion was based upon one study.” The trial court then
overruled the defense’s objection to Dr. Horton’s reliance on the Logan study.
Here, the trial court determined that Dr. Horton formed her opinion based on several
factors, only one of which was the Logan study. Dr. Horton herself testified during the jury-
out hearing that she only partially relied on the Logan study in forming her opinion and that
the study related only to the controlled substances of Carisoprodol/Meprobamate.
Significantly, Dr. Horton did not mention the Logan study in the presence of the jury.
Tennessee Rule of Evidence 703 provides guidance regarding the proper bases for
expert testimony:
The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence. Facts or data that are otherwise
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inadmissible shall not be disclosed to the jury by the proponent of the opinion
or inference unless the court determines that their probative value in assisting
the jury to evaluate the expert’s opinion substantially outweighs their
prejudicial effect. The court shall disallow testimony in the form of an opinion
or inference if the underlying facts or data indicate lack of trustworthiness.
Tenn. R. Evid. 703 (emphasis added). “Generally speaking, the trial court is afforded broad
discretion in resolving questions concerning the admissibility of expert testimony; in
consequence, we will not overturn its ruling on appeal absent a finding that it abused its
discretion.” State v. Ferrell, 277 S.W.3d 372, 378 (Tenn. 2009) (citing State v. Copeland,
226 S.W.3d 287, 301 (Tenn. 2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)).
In this case, the trial court questioned Dr. Horton extensively during the jury-out hearing. The
court specifically asked the basis of her opinion regarding the combined effect of the drugs
found in Pollock’s blood had on a person’s body. Dr. Hutton replied that she based her
opinion on attendance at seminars, various courses on drug impairment and human behavior,
and observing “DUI/drug stops[.]” Following the hearing, the court concluded that Dr.
Horton was well qualified and testified as to the basis of her opinion, which was consistent
with Rule 703. Defense counsel stipulated to Dr. Horton’s qualification as an expert and
limited his objection to the portion her testimony that was based upon the Logan report. The
record shows that defense counsel had an opportunity to question Dr. Horton regarding the
basis of her testimony and whether or not her testimony was trustworthy. Accordingly, we
conclude that the trial court did not abuse its discretion in admitting Dr. Horton’s testimony.
Pollock is not entitled to relief on this issue.
II. Denial of Motion for Judgment of Acquittal. Pollock argues that the trial court
erred in denying his motion for judgment of acquittal made at the close of the State’s proof
because he claims the State failed to prove beyond a reasonable doubt that he was intoxicated
at the time of the collision. He also apparently argues that the evidence was insufficient to
support his convictions. In response, the State argues that Pollock has waived the issue
regarding his motion because he presented evidence after making his motion for judgment
of acquittal at the close of the State’s case-in-chief. Waiver notwithstanding, the State also
contends that the evidence was sufficient to support Pollock’s convictions for vehicular
assault. We agree with the State.
Tennessee Rule of Criminal Procedure 29 provides, in pertinent part:
On defendant’s motion or its own initiative, the court shall order the entry of
judgment of acquittal of one or more offenses charged in the indictment,
presentment, or information after the evidence on either side is closed if the
evidence is insufficient to sustain a conviction of such offense or offenses.
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Tenn. R. Crim. P. 29(b). “This rule empowers the trial judge to direct a judgment of acquittal
when the evidence is insufficient to warrant a conviction either at the time the state rests or
at the conclusion of all the evidence.” State v. James, 315 S.W.3d 440, 455 (Tenn. 2010)
(citing Overturf v. State, 571 S.W.2d 837, 839 & n.2 (Tenn. 1978)). When a motion for
judgment of acquittal is made, the trial court must favor the party opposing the motion with
the strongest legitimate view of the evidence, including all reasonable inferences from the
evidence, and cast aside any countervailing evidence. Id. (citing Hill v. State, 470 S.W.2d
853, 858 (Tenn. Crim. App. 1971)). In order to appeal a denial of a motion for judgment of
acquittal at the close of the State’s case-in-chief, a defendant must stand on the motion and
decline to present any evidence. Mathis v. State, 590 S.W.2d 449, 453 (Tenn. 1979). If the
defendant fails to stand on his motion, the issue is waived on appeal. Id.
Here, the trial court denied Pollock’s motion for judgment of acquittal made at the
close of the State’s proof. Pollock then presented evidence in his case-in-chief. At the close
of Pollock’s proof, Pollock renewed his motion for judgment of acquittal, and the trial court
again denied the motion. Because Pollock presented proof following the denial of his first
motion for judgment of acquittal, he has waived his right to appeal the trial court’s denial of
his first motion. See Finch v. State, 226 S.W.3d 307, 317 (Tenn. 2007) (refusing to revisit
the waiver rule established in Mathis); see also State v. Ball, 973 S.W.2d 288, 292 (Tenn.
Crim. App. 1998) (holding that “[t]his court may not return to the midpoint of the trial and
then order the trial court to direct a judgment of acquittal upon the basis of the record as it
then existed.” (citing State v. Thompson, 549 S.W.2d 943, 945 (Tenn. 1977))).
Because Pollock renewed his motion for judgment of acquittal at the end of all the
proof, we note that “[t]he standard by which the trial court determines a motion for judgment
of acquittal at the end of all the proof is, in essence, the same standard which applies when
determining the sufficiency of the evidence after a conviction.” State v. Anderson, 880
S.W.2d 720, 726 (Tenn. Crim. App. 1994). To the extent that Pollock also challenges the
sufficiency of the evidence supporting his convictions, we conclude that he is not entitled to
relief.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
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of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).
The trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and must reconcile all conflicts in the evidence. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency
of the evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by
the jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A
guilty verdict also “removes the presumption of innocence and replaces it with a presumption
of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
Pollock was convicted of two counts of vehicular assault. Tennessee Code Annotated
section 39-13-106 defines this offense:
A person commits vehicular assault who, as the proximate result of the
person’s intoxication as set forth in § 55-10-401, recklessly causes serious
bodily injury to another person by the operation of a motor vehicle. For the
purposes of this section, “intoxication” includes alcohol intoxication as defined
by § 55-10-408, drug intoxication, or both.
T.C.A. § 39-13-106(a). Tennessee Code Annotated section 55-10-401 generally prohibits
anyone from driving or being in physical control of a motor vehicle while “[u]nder the
influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects
on the central nervous system[.]” Id. § 55-10-401(a)(1) (2004).
Here, the parties stipulated that Pollock caused serious bodily injury to the victims in
this case while operating a motor vehicle. Accordingly, the only issue submitted to the jury
was whether Pollock’s intoxication recklessly caused the victims’ serious bodily injuries.
One of the victims, Scotty Jones, testified that Pollock drove into the lane for
oncoming traffic and hit the truck driven by his mother in a head-on collision. Tina
Thompson testified that Pollock attempted to pass her van on a double yellow line just before
colliding with the victims’ truck. Jessie Clark stated that he followed Pollock for several
minutes prior to the collision and that Pollock repeatedly swerved and ran off the shoulder
of the road. He also said that Pollock drove “off of the shoulder” of the road and then
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“overcorrected” before running into the victims’ truck. Sergeant Carl Jones, Trooper Brian
Avery, and Agent Dan Moore all testified that Pollock exhibited signs of intoxication, which
included slurred speech, a drowsy appearance, slowed reactions, unsteadiness on his feet, and
combativeness. Pollock admitted to law enforcement that he had taken Methadone prior to
the collision. Dr. Horton testified that Pollock had taken the following four or five
medications prior to the collision: Soma, Methadone, Valium, and Xanax, with the
possibility that he separately took a dose of Meprobamate. She testified that each of these
medications “have a warning about operation of a motor vehicle in their use” and “a warning
about using it in combination with other medications.” In addition, Dr. Horton opined, “[A]ll
of these [medications] in the body at the same time could impair a person’s ability to operate
heavy machinery or a car, [and could cause a person to] be sleepy, sluggish . . . unable to
walk, [and to have] poor coordination.” We conclude that the evidence was more than
sufficient to establish that Pollock’s intoxication recklessly caused the victims’ serious bodily
injuries in this case.
CONCLUSION
The trial court did not err in allowing Dr. Horton to rely, in part, on the Logan study
in forming her opinion in this case. In addition, Pollock waived his claim that the trial court
erred in denying his motion for judgment of acquittal at the close of the State’s proof, and
the evidence was sufficient to support his convictions. The judgments of the trial court are
affirmed.
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CAMILLE R. McMULLEN, JUDGE
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