State of Tennessee v. Evelyn Cotton Self

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 21, 2009 Session

STATE OF TENNESSEE v. EVELYN COTTON SELF

Direct Appeal from the Circuit Court for Warren County
No. M11116 Don Ash, Judge by Interchange

No. M2009-00343-CCA-R3-CD - Filed November 9, 2010

Following a jury trial, Defendant, Evelyn Cotton Self, was convicted of driving under the
influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced
Defendant to eleven months, twenty-nine days with Defendant’s sentence suspended and
Defendant placed on probation after service of seventy-three days in confinement. On
appeal, Defendant argues that (1) the evidence is insufficient to support her conviction; (2)
the trial court erred in denying Defendant’s request for a jury instruction on involuntary
intoxication; (3) the trial court erred in instructing the jury concerning prescription
medicines; (4) the trial court erred in excluding the testimony of Defendant’s psychologist;
and (5) the trial court erred in ordering Defendant to serve seventy-three days in
confinement. After a thorough review of the record, we affirm the judgment of the trial
court.

Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which DAVID H. WELLES
and JERRY L. SMITH, JJ., joined.

Mary M. Little, McMinnville, Tennessee; and Robert Newman, McMinnville, Tennessee,
for the appellant, Evelyn Cotton Self.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Lisa Zavogiannis, District Attorney General; and Darrell Ray Jullian, Assistant
District Attorney General, for the appellee, the State of Tennessee.
 OPINION

I. Background

Melissa Miller testified that on October 20, 2006, she and her fiancé were traveling
from Tullahoma to Knoxville on Hwy. 55, a four lane highway, to attend a football game.
Ms. Miller noticed a Cadillac in front of them when the couple drove into Warren County.
The Cadillac slowed down “considerably,” and Ms. Miller thought the driver was going to
turn onto the exit ramp leading to Hwy. 70S. Instead, the vehicle pulled into the emergency
lane and drove at a speed of approximately thirty to thirty-five miles per hour before pulling
back into the right-hand lane in front of Ms. Miller’s vehicle. Ms. Miller stated that another
vehicle was beginning to pass her vehicle and the Cadillac when the Cadillac swerved into
the left-hand lane in front of the passing car. The passing car moved over to the shoulder
of the road in order to avoid hitting the Cadillac. After observing the Cadillac swerve in its
lane a number of times, Ms. Miller’s fiancé called 911 on the speaker phone.

After the emergency call, the two vehicles entered a stretch of highway with several
traffic lights. At the second traffic light, the Cadillac rear-ended a vehicle that was stopped
for the red light. Ms. Miller said that the driver, whom Ms. Miller identified at trial as
Defendant, got of her vehicle and began stumbling about. The traffic was using the left lane
to get around the stopped vehicles, and Ms. Miller was afraid that Defendant was going to
be hit by the passing cars.

Officer Brad Myers arrived at the location of the traffic accident involving the
Defendant’s vehicle. Officer Myers testified that Defendant was “staggering around the area
of the accident” and walking in-between the vehicles stopped at the red light. Officer Myers
was concerned that Defendant would step in front of a moving vehicle. Officer Myers led
Defendant to the shoulder of the road and began to administer field sobriety tests. Officer
Myers asked Defendant to stand on one leg. Defendant attempted to do so but fell into
Officer Myers. Defendant said that she would do the test if Officer Myers would hold her
hand. Officer Myers told her he could not do that, and Defendant responded, “I can’t do the
test.” Officer Myers said that Defendant’s speech was slurred and she was “very unsteady
on her feet.” Defendant told Officer Myers that she had taken her prescription medicine and
“was not feeling good.” Officer Myers stated that he did not detect an odor of alcohol about
Defendant’s person.

Officer Myers placed Defendant under arrest for DUI. After reading the Tennessee
Implied Consent Advisement Form, Defendant agreed to provide a blood sample. Officer
Myers drove Defendant to the emergency room at River Park Hospital where a blood sample
was taken. Officer Myers said that the emergency room personnel asked Defendant if she
needed medical treatment, and Defendant responded negatively.

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 Special Agent Jenifer Hall testified that she is employed as a forensic toxicologist by
the Tennessee Bureau of Investigation (“TBI”). Special Agent Hall tested Defendant’s
blood sample for drugs. She detected the presence of bupropion, also known as Wellbutrin,
which is generally prescribed to treat depression. Special Agent Hall stated that she could
not quantify the level of bupropion in Defendant’s system from her testing. The testing also
revealed the presence of carisoprodol, a muscle relaxer known as Soma, and its metabolite,
meprobamate, a Schedule IV drug. The therapeutic range for meprobamate, or the range
normally prescribed by a physician, is approximately two to twenty-six micrograms per
milliliter, and Defendant’s blood sample for meprobamate was fifteen, or within the
therapeutic range. The level of carisoprodol was 4.7 micrograms per milliliter, below the
therapeutic range of ten to 40 micrograms per milliliter. Special Agent Hall also detected
the presence of metoprolol, generally prescribed under the names Lopressor or Toprol XL
for chest pain or high blood pressure. Special Agent Hall said that the level of metoprolol
in Defendant’s system was within the therapeutic range for that drug.

Special Agent Hall stated that the amount of a particular drug in an individual’s
system could be within the therapeutic range and still cause impairment based on such
factors as the length of time the drug had been taken and the amount of tolerance to the drug.
On cross-examination, Special Agent Hall stated that bupropion and carisoprodol are not
controlled substances in Tennessee. Special Agent Hall said that she did not test for the
presence of lithium. On redirect examination, Special Agent Hall said that either a non-
scheduled drug or a scheduled drug can cause impairment either individually or when taken
in combination with other drugs, and even when taken within therapeutic levels.

The State rested its case-in-chief, and Defendant presented her defense. Dr. Opless
Walker testified that as a clinical pharmacologist, he studies the positive and negative effects
of drugs on an individual. Dr. Walker stated that neither buproprion nor metoprolol would
have caused impairment in Defendant’s driving abilities, and the level of meprobamate was
within therapeutic levels. Dr. Walker stated, however, that Defendant’s symptoms, as
described by Officer Myers and Ms. Miller, were consistent with Defendant experiencing
an adverse reaction to lithium. Dr. Walker stated that carisoprodol, bupropion, metoprolol
and lithium are not controlled substances, or salts of barbituric acid, or any derivative or
compound which may produce hypnotic or somnifacient effects.

On cross-examination, Dr. Walker stated that there is a potential for interaction
between bupropion and carisoprodol but not to the extent that the two drugs could not be
taken together. Dr. Walker said that the drug carisoprodol warns against operating heavy
machinery while taking the drug. Dr. Walker said that some of Defendant’s symptoms could
have been caused by a combination of lithium toxicity and an interaction between
carisoprodol and bupropion, but reiterated that carisoprodol and bupropion would have
played a minor role in impairing Defendant’s driving abilities.

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 Dr. Jackie Chapman testified that she is a clinical psychologist with a specialty in
psychopharmacolgy. Dr. Chapman stated that she not only treats patients for emotional or
mental disorders but also can make recommendations to the patient’s medical doctor
concerning medications. Dr. Chapman stated that she recommended lithium for Defendant.
Dr. Chapman explained that general prescribing practice requires that the lowest effective
dose, or 150 milligrams, be initially prescribed in order to monitor for possible toxicity. On
October 3, 2006, Dr. Chapman recommended that Defendant take 150 milligrams of lithium
for approximately five to seven days. A blood sample was drawn after this period, and it
was determined that the level of lithium in Defendant’s blood was below therapeutic range.
Dr. Chapman, therefore, increased Defendant’s dosage from 150 milligrams once a day to
150 milligrams twice a day. Dr. Chapman said that her records indicated that Defendant
filled the prescription on October 19, 2006.

Dr. Chapman stated that Defendant visited her on November 4, 2006, and complained
of increased confusion, slurred speech, dizziness, and an inability to focus or concentrate.
Dr. Chapman said that these symptoms indicated a toxic reaction to lithium, and Defendant
was taken off the medicine. Dr. Chapman stated that Defendant did not tell her that she had
been arrested for DUI. Dr. Chapman said that she was aware that Defendant took
carisoprodol for a back injury. Dr. Chapman had also prescribed bupropion for Defendant
for depression.

On cross-examination, Dr. Chapman said that she did not find it odd that Defendant
did not mention the DUI on November 4, 2006. Dr. Chapman described Defendant on that
day as “quite distressed” and “not functioning very well.” Dr. Chapman said that it was her
practice to discuss all of the potential side effects from a new drug with her patients, but she
did not have a present recollection of discussing the impact of lithium on Defendant’s
driving ability. Dr. Chapman said, however, on redirect examination that she did not tell
Defendant not to drive.

II. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to support her conviction of DUI.
Defendant submits that the evidence does not support a finding that she was “[u]nder the
influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects
on the nervous system.” Defendant acknowledges that her blood test revealed the presence
of meprobamate, a Schedule IV drug, in her system but points to Dr. Walker’s testimony that
she did not take meprobamate directly and that the drug was in her system only because it
was a metabolite of Soma.

When a defendant challenges the sufficiency of the convicting evidence, we must
review the evidence in a light most favorable to the prosecution in determining whether a

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rational trier of fact could have found all the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
Once a jury finds a defendant guilty, his or her presumption of innocence is removed and
replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn.
1991). The defendant has the burden of overcoming this presumption, and the State is
entitled to the strongest legitimate view of the evidence along with all reasonable inferences
which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). The jury is presumed to have resolved all conflicts and drawn any reasonable
inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Questions concerning the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues raised by the evidence are resolved by the trier of fact and
not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or
a combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990).

Tennessee Code Annotated section 55-10-401(a) provides, in pertinent part:

It is unlawful for any person to drive or to be in physical control of any
automobile or other motor driven vehicle on any of the public roads and
highways of the state, or on any streets or alleys, or while on the premises of
any shopping center, trailer park or any apartment house complex, or any other
premises which is generally frequented by the public at large, while:

(1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug
producing stimulating effects on the central nervous system. . . .

(b) For the purpose of this section, “drug producing stimulating
effects on the central nervous system” includes the salts of
barbituric acid, also know as malonyl urea, or any compound,
derivatives, or mixtures thereof that may be used for producing
hypnotic or somnifacient effects, and includes amphetamine,
desoxyephedrine or compounds or mixtures thereof, including
all derivatives of phenolethylamine or any of the salts thereof,
except preparations intended for use in the nose and unfit for
internal use.

Viewing the evidence in a light most favorable to the State, Ms. Miller observed
Defendant’s erratic driving on October 20, 2006. Ms. Miller stated that Defendant pulled
into the emergency lane at a slow rate of speed before pulling back into the right-hand lane.
Defendant then pulled into the left-hand lane in front of another vehicle which was forced

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onto the shoulder to avoid a collision. Defendant then rear ended a vehicle which was
stopped at a red light. Both Ms. Miller and Officer Myers testified that Defendant was
staggering around after she exited her vehicle and that she was in danger of being struck by
the vehicles driving by the accident scene. Officer Meyers stated that Defendant’s voice was
slurred, and she told him that she could not take any of the field sobriety tests. Defendant’s
blood test revealed the presence of meprobamate, a Schedule IV narcotic, carisoprodol,
bupropion, and metoprolol. Although all of drugs tested within the therapeutic levels
associated with each drug, Special Agent Hall testified that schedule and non-schedule drugs
can cause impairment, individually or collectively, even when taken within the therapeutic
level.

“‘This Court has previously found sufficient evidence to sustain DUI convictions
based on a defendant’s behavior, prescription medications found in the defendant’s systems,
and expert testimony.’” State v. Hollena Arlene West, No. M2008-02200, CCA-R3-CD,
2010 WL 2787827 (Tenn. Crim. App., at Nashville, July 13, 2010) (quoting State v. Donna
Beatrice Kiser, No. E2005-02489-CCA-R3-CD, 2006 WL 2076341 (Tenn. Crim. App., at
Knoxville, July 27, 2006), no perm. to appeal filed) (citing State v. Albert L. Norton, No.
03C01-9707-CR-00270, 1999 WL 508654 *1-5 (Tenn. Crim. App., at Knoxville, July
20,1999), no. perm. to appeal filed (finding sufficient evidence to sustain the defendant’s
DUI conviction due to the presence of three types of pain medication, an inability to perform
field sobriety tests, and expert testimony regarding the possible effects of the medication);
State v. Kenneth Lee Abbott, No.02C01-9311-CC-00263, 1995 WL 422810 *1-5 (Tenn.
Crim. App., at Jackson, July 19, 1995), perm. to appeal denied (Tenn. Dec. 28, 1995)
(finding sufficient evidence for a DUI conviction after the Defendant’s blood test revealed
the presence of two tranquilizer drugs, one being within the therapeutic range and one being
well above therapeutic levels).

Defendant argues, without citation to authority, that only those drugs producing
stimulating effects on the nervous system that are specifically listed in section 55-10-401(b)
may subject a person to criminal liability. See Tenn. Ct. Crim. App. R. 10(b) (providing that
“[i]ssues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court”). Nonetheless, this Court has
previously observed that subsection (b) of Tennessee Code Annotated section 55-10-401
“sets forth a non-exhaustive ‘laundry list’ of drugs which are capable of ‘producing
stimulating effects on the central nervous system.’” State v. Marvin Lamar Farmer, 1986
WL 8849, at *2 (Tenn. Crim. App., at Knoxville, Aug. 15, 1986), perm. to appeal denied
(Tenn. Dec. 1, 1986).

Defendant presented as a defense that her impairment was due to a adverse reaction
to Lithium which the jury, by its verdict, rejected as was their prerogative. Based on our

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review, we conclude that a rational trier of fact could find beyond a reasonable doubt the
Defendant was guilty of the offense of DUI.

III. Waiver of Issues

Defendant raises three issues on appeal challenging the trial court’s jury instructions
and limitations placed on his direct examination of Dr. Chapman. The State argues that
Defendant has waived review of these issues when she failed to file a motion for new trial.
In her reply brief, Defendant acknowledges that she did not file a motion for new trial but
submits that she filed a notice of appeal and “asserted the issues before this Court.”
Defendant submits that the issues presented in this appeal were raised at trial, in the form of
various motions and objections, and Defendant argues that her failure to file a motion for
new trial is “harmless error.”

The thirty-day filing deadline of a motion for new trial is mandatory, jurisdictional,
and may not be extended. See Tenn. R. Crim. P. 33(b), 45(b); State v. Martin, 940 S.W.2d
567, 569 (Tenn. 1997). Failure to file a timely motion for new trial will result in the waiver
of all appellate issues that would result in the granting of a new trial. Dodson, 780 S.W.2d
at 780; State v. Williams, 675 S.W.2d 499 (Tenn. Crim. App. 1984). Although this court
cannot review those grounds upon which a new trial was sought, it may review those issues
which would result in dismissal, and sentencing issues. Tenn. R. App. P. 3(e); Williams, 675
S.W.2d at 501; see also State v. Givhan, 616 S.W.2d 612, 613 n.1 (Tenn. Crim. App. 1980)).
None of the issues raised by Defendant on appeal, other than those concerning the
sufficiency of the evidence would, if meritorious, result in dismissal of the charges against
her. Thus, these issues are waived.

IV. Sentencing Issues

Defendant argues generally that the trial court erred in its sentencing determinations,
submitting only that she is a divorced mother with two dependents, she is gainfully
employed, she cooperated with the arresting officer, there were no “narcotic, intoxicant, or
scheduled drugs involved,” and there was no property damage to the vehicle she hit
immediately before her arrest.

The only evidence presented at the sentencing hearing was the presentence report
which was introduced as an exhibit without objection. According to the report, Defendant
was fifty years old at the time of the sentencing hearing. She reported receiving her high
school diploma from Warren County High School in 1976. Defendant was engaged in
steady employment from 1974 to 2008, and, at the time of the offense, she was the owner
and manager of a rental property company. The presentence report shows that Defendant
submitted to a drug screen on November 25, 2008, approximately two weeks before the

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sentencing hearing, and tested positive for benzodiazepine, for which she had a valid
prescription. Defendant was convicted of adult driving while impaired in 2001. See T.C.A.
§ 55-10-418 (repealed 2003).

At the conclusion of the sentencing hearing, the trial court sentenced Defendant to
eleven months, twenty-nine days for her Class A misdemeanor offense. Based upon the
presentence report, the circumstances surrounding Defendant’s offense, and the fact that she
incurred a new charge of DUI on July 4, 2008, the trial court ordered Defendant to serve
seventy-three days in confinement after which her sentence was to be suspended and
Defendant placed on probation.

“When reviewing sentencing issues ..., the appellate court shall conduct a de novo
review on the record of such issues. Such review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A.
§ 40-35-401(d). “However, the presumption of correctness which accompanies the trial
court’s action is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the
defendant’s potential for rehabilitation, the trial and sentencing hearing evidence, the pre-
sentence report, the sentencing principles, sentencing alternative arguments, the nature and
character of the offense, the enhancing and mitigating factors, and the defendant’s
statements. T.C.A. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also
recognize that the defendant bears “the burden of demonstrating that the sentence is
improper.” Ashby, 823 S.W.2d at 169.

Further, misdemeanor sentencing is controlled by Tennessee Code Annotated section
40-35-302, which provides in part that the trial court shall impose a specific sentence
consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act.
See T .C.A. § 40-35-302(b). Misdemeanor sentencing is designed to provide the trial court
with continuing jurisdiction and a great deal of flexibility. See State v. Troutman, 979
S.W.2d 271, 273 (Tenn. 1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.
1997). The trial court retains the authority to place the defendant on probation either
immediately or after a time of periodic or continuous confinement. T.C.A. § 40-35-302(e).
In determining the percentage of the sentence to be served in actual confinement, the court
must consider the principles of sentencing and the appropriate enhancement and mitigating
factors, and the court must not impose such percentages arbitrarily. T.C.A. § 40-35-302(d).

The Tennessee Supreme Court has stated that in misdemeanor sentencing the trial
court need not make specific findings of fact on the record, so long as it appears the trial
judge considered the principles of sentencing in the code and applicable enhancement or
mitigating factors. T.C.A. § 40-35-302(d); Troutman, 979 S.W.2d at 274; State v. Russell,

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10 S.W.3d 270, 278 (Tenn. Crim. App. 1999). The defendant has the burden of establishing
suitability for full probation. Troutman, 979 S.W.2d at 274; State v. Housewright, 982
S.W.2d 354, 357 (Tenn. Crim. App. 1997); T.C.A. § 40-35-303(b).

The mandatory sentence for a DUI, second offense, is a fine between $600 and
$3500, confinement for not less than forty-five days nor more than eleven months and
twenty-nine days in the county jail or workhouse, and a two-year loss of driving privileges.
T.C.A. § 55-10-403(a)(1). Thus, “the only function of the trial court [is] to determine what
period above the minimum period of incarceration established by statute, if any, is to be
suspended.” State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996).

We observe that to the extent that the trial court relied upon a new charge of DUI in
the absence of a finding by a preponderance of the evidence that Defendant had actually
committed the offense, such reliance was misplaced. Before a sentencing court may rely
upon the defendant’s incursion of new charges not yet reduced to convictions, the court must
find by a preponderance of the evidence that the defendant committed the offenses with
which he has been charged. State v. Joseph Daniel Drew, No. E2009-01662-CCA-R3-CD,
2010 WL 2836100, at *4 (Tenn. Crim. App., at Knoxville, July 20, 2010) (citing State v.
Winfield, 23 S.W.3d 279, 283 (Tenn.2000) (stating that “facts relevant to sentencing must
be established by a preponderance of the evidence”)). In this case, the trial court made no
finding beyond its observation that Defendant had been recently charged with DUI. Thus,
the trial court’s findings fell short of a conclusion by a preponderance of the evidence.

Nonetheless, based on our review, we conclude that the record supports the trial
court’s imposition of seventy-three days of confinement, and Defendant has not
demonstrated on appeal that her sentence is improper. Defendant is not entitled to relief on
this issue.

CONCLUSION

After a thorough review, we affirm the judgment of the trial court.

_________________________________
THOMAS T. WOODALL, JUDGE

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