IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 25, 2014 Session
STATE OF TENNESSEE v. WILLIAM COLE COMER
Appeal from the Criminal Court for Knox County
No. 91490 Steven Sword, Judge
No. E2013-00906-CCA-R3-CD-FILED-MARCH 26, 2014
The defendant, William Cole Comer, appeals his Knox County Criminal Court jury
convictions of driving under the influence, failure to stop, and possession of drug
paraphernalia, and his bench conviction of violating the implied consent law, claiming that
the trial court erred by permitting the arresting officer to testify as an expert witness for
purposes of admitting a cocaine field test. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and J EFFREY S. B IVINS, JJ., joined.
Robert C. Edwards, Assistant District Public Defender, for the appellant, William Cole
Comer.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Knox County Grand Jury charged the defendant with three alternative
counts of driving under the influence (“DUI”) of an intoxicant, a drug, or both, and one count
each of violating the implied consent law, failure to stop at a stop sign, and possession of
drug paraphernalia. The trial court conducted a jury trial in September 2012.
At trial, Knoxville Police Department (“KPD”) Officer Joel Ascencio testified
that he had worked for the KPD for almost eight years and that his duties included patroling
the Mechanicsville and Western Heights areas of Knoxville. Officer Ascencio stated that,
during his six months at the police academy, he completed 40 hours of course work on
detection of DUI offenders in addition to course work on drug detection. Officer Ascencio
estimated that he had made “a couple hundred” DUI stops during his eight years with the
KPD. With respect to testing for controlled substances, Officer Ascencio stated that he had
received training on the field test kits provided by the KPD and that he had administered
“thousands” of field tests over the years. When asked how the field test kits operate, Officer
Ascencio explained as follows:
You want to get the controlled substance. You don’t need a
whole lot, just a speck, a gram – not even a gram, just a – just a
minute amount. You put it inside this glass capsule that has the
chemical inside. You put the lid back on. You break the bottom
part, shake it up. If it’s a positive for, in this case, cocaine based
type material, it’ll turn blue. If it does not turn blue, you break
the cap part on the top, shake it up again. It’s more – it breaks
it down even more than the first part would. If it turns blue,
then it’s a cocaine based type material. If it doesn’t, then it’s
not.
Officer Ascencio confirmed that the only skill needed to read the test results is the ability to
discern the color, which he clarified is “bright blue.”
Defense counsel, outside the presence of the jury, conducted a voir dire
examination of Officer Ascencio regarding his training on the field test kits. Officer
Ascencio first used one of the kits shortly after finishing at the police academy. Officer
Ascencio admitted that he had never received any training from the manufacturer of the test
kit and that he had never received a certificate confirming his training, acknowledging that
his experience with the test stems from the hundreds of times that he had administered it.
When questioned by the State, Officer Ascencio confirmed that instructions for the test were
printed on the box and that he followed the instructions every time. Officer Ascencio
testified that, although the way in which the chemicals are added to the test had changed a
bit over the years, the fundamental operation of the test had remained the same. Based on
this testimony, the trial court ruled that Officer Ascencio’s experience was sufficient to
permit him to testify about his administration of the field test kit.
With respect to the arrest in question, Officer Ascencio testified that he was
on patrol in the Mechanicsville area on April 25, 2008, and he stated that he typically
encountered crimes in that area involving violence and drugs, specifically crack cocaine.
Just prior to 11:00 p.m., Officer Ascencio observed, at the intersection of Dora Street and
Douglas Avenue, a two-tone Dodge pickup truck that failed to properly observe the Dora
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Street stop sign. After the vehicle turned onto Douglas Avenue without first making a
complete stop, Officer Ascencio began to initiate a traffic stop. Before stopping the vehicle,
Officer Ascencio overheard the vehicle’s driver call out to an African-American man
walking on Douglas Avenue that he was “looking for some drugs.”
When Officer Ascencio activated his blue lights, the vehicle pulled over, and
the officer approached, finding only the defendant inside the truck. Officer Ascencio
explained to the defendant that he had stopped him for running the stop sign and inquired as
to why the defendant had asked the man on the street about purchasing drugs. Officer
Ascencio testified that the defendant never denied asking the man about buying drugs and
that the defendant “acknowledge[d] there’s a drug thing going on.” During his conversation
with the defendant, the officer noticed that the defendant had “red bloodshot eyes,” and he
detected the smell of an alcoholic beverage when the defendant was speaking, although he
did not recall that the defendant’s speech was slurred. The defendant admitted having
consumed “one beer.” The defendant had an out-of-state driver’s license, and Officer
Ascencio recalled that the defendant claimed to live “near Whittle Springs,” which the officer
testified was “a pretty good distance” from Mechanicsville. Officer Ascencio noticed
approximately $40 in cash “in plain view” on either the vehicle’s dash or in the front seat of
the vehicle, and the officer testified that, based on his experience, a rock of crack cocaine
costs $20 to $40, depending on its size.
Officer Ascencio asked the defendant to step out of his vehicle to perform
some field sobriety tests, and the defendant complied. Prior to administering the field
sobriety tests, Officer Ascencio searched the defendant for weapons and drugs, and he
discovered, on the defendant’s person, a pill bottle which contained “some white powder
residue” and a “push rod” which is used “to hold your crack rock in your crack pipe while
you smoke it.” The defendant claimed that the pill bottle had contained Advil. Although
Officer Ascencio did not find a crack pipe on the defendant’s person, the officer asked the
defendant about a pipe, and the defendant responded “something to the fact of he [did] not
have it with him.”
Using a field test kit, Officer Ascencio tested the white powder residue, and
the residue tested positive for “cocaine based material.” Because only residue existed,
Officer Ascencio was unable to charge the defendant with simple possession. Officer
Ascencio confirmed that Advil or any other over-the-counter medication that had been
contained in the pill bottle would not have caused the test to turn blue, stating that “[i]t’s got
to have some kind of cocaine in it.”
Officer Ascencio conducted three field sobriety tests. On the “walk-and-turn”
test, Officer Ascencio testified that the defendant started the test too soon, failed to turn
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properly, and raised his arms from his sides. During the “one-leg stand” test, the defendant
“swayed, he raised his arms, and he kept putting his foot down till finally he just stopped.”
Officer Ascencio testified that the defendant failed both of these tests. Wanting to give the
defendant “a fair shake,” Officer Ascencio conducted a “finger count” test, which the
defendant also failed. At that time, Officer Ascencio believed the defendant to be under the
influence of some form of intoxicant or controlled substance, and, after conducting a fruitless
search of the defendant’s vehicle, he placed him under arrest for DUI, failure to stop, and
possession of drug paraphernalia. Officer Ascencio then read the implied consent form to
the defendant and asked him to submit to a blood test, which the defendant refused. Through
Officer Ascencio, the State introduced the video from Officer Ascencio’s cruiser showing
the traffic stop and the defendant’s performance of the field sobriety tests.
On cross-examination, Officer Ascencio admitted that, in the narrative portion
of his arrest report, he wrote that he heard the defendant “talking to a black man walking
west on Douglas,” but he did not write anything about the defendant asking about drugs.
Officer Ascencio agreed that the defendant was cooperative during the traffic stop and his
ensuing arrest.
With this evidence, the State rested its case. Following the trial court’s denial
of the defendant’s motion for judgments of acquittal and a Momon colloquy, see Momon v.
State, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected to testify and to present
proof.
Tim Coffey, the defendant’s nephew, testified that he had spent April 25, 2008,
working with the defendant at Mr. Coffey’s father’s mill. Mr. Coffey stated that the
defendant had given him a ride both to and from work that day. When they left work in
Clinton around 6:30 p.m. to 7:00 p.m., it took approximately 45 minutes to an hour to return
to Mr. Coffey’s house in Strawberry Plains. On the way to Mr. Coffey’s house, the
defendant stopped at a store so that Mr. Coffey could purchase a six-pack of beer. Upon
arrival at Mr. Coffey’s residence, the two men ordered a pizza. Mr. Coffey testified that he
drank three or four beers and that the defendant consumed “part of one” beer. He recalled
that the defendant only drank part of the beer because he “poured the rest of it out when [the
defendant] left.” Mr. Coffey estimated that the defendant left his house at approximately
10:00 p.m. to 10:30 p.m. Mr. Coffey testified that the defendant was sober when he left Mr.
Coffey’s house and that the defendant did not consume any alcohol or use any drugs while
at work earlier that day.
The defendant testified that he was 58 years old and that he had moved to
Knoxville to live and work with his brother in 2007. The defendant stated that, on April 25,
he had spent the day working and that he drove Mr. Coffey home, arriving between 7:00 p.m.
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and 8:00 p.m. The defendant confirmed that he and Mr. Coffey had shared a pizza and
testified that he “drank about three quarters of a beer,” explaining, “I’m really not a big beer
drinker.” The defendant stated that he watched a movie with Mr. Coffey and that he then left
to drive home. Because he was unfamiliar with the area and was tired, the defendant missed
his exit on the interstate and became lost. The defendant testified that he was searching for
a way to get back to a familiar street when he was stopped by Officer Ascencio. The
defendant admitted calling out to a black man on the street, but he claimed that he was asking
for directions.
The defendant denied that the object Officer Ascencio found in his possession
was a “push rod,” explaining that it was a piece of a coat hanger from his brother’s
warehouse that he had noticed in the front seat of the truck. The defendant admitted that he
had cash in the console of the truck, but he did not know why he had put it there. The
defendant denied owning a crack pipe, and, although he admitted using powder cocaine “in
[his] younger days,” the defendant denied ever using crack cocaine. With respect to the
white powder residue in the pill bottle, the defendant stated that he used the pill bottle to hold
Tylenol. He could not explain why the residue in the bottle tested positive for cocaine. The
defendant testified that he had difficulty with the one-leg stand test because of health
problems and stated that his health issues necessitated multiple surgeries in the months
following his arrest. The defendant stated that his eyes were usually red and bloodshot, and
he denied drinking alcoholic beverages on a regular basis.
On cross-examination, the defendant admitted that, in spite of his health
problems, he was still able to work without any restrictions prior to and on April 25, 2008.
The defendant acknowledged that Officer Ascencio stopped him in a dark, residential area
and that, when the officer asked if he was in the area to purchase drugs, he responded, “Have
before, but not now.”
Based on this evidence, the jury convicted the defendant as charged of three
counts of DUI, which the trial court merged into a single conviction, one count of failing to
stop, and one count of possession of drug paraphernalia. The trial court also found the
defendant guilty of an implied consent violation. Following a sentencing hearing, the trial
court imposed, for the DUI conviction, a sentence of 11 months and 29 days to be served as
48 hours’ incarceration followed by probation, and a $1,500 fine. For the failure to stop and
the possession of drug paraphernalia convictions, the trial court imposed 30 days and 11
months, 29 days of probation, respectively, and ordered that the sentences be served
concurrently to the defendant’s DUI sentence. The trial court also ordered the defendant’s
driver’s licence revoked for a period of one year.
Following the denial of his timely but unsuccessful motion for new trial, the
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defendant filed a timely notice of appeal. In this appeal, the defendant contends only that the
trial court erred by permitting Officer Ascencio to testify to the field test results because he
was not properly qualified as an expert. We disagree.
The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. See generally McDaniel v. CSX Transp., Inc., 955 S.W.2d 257
(Tenn. 1997). Rule 702 addresses the need for expert testimony and the qualifications of the
expert: “If scientific, technical, or other specialized knowledge will substantially assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 focuses on the reliability of expert
opinion testimony. Generally, the admissibility of expert testimony is a matter entrusted to
the sound discretion of the trial court, and there can be no reversal on appeal absent clear
abuse of that discretion. See State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2010); State v.
Copeland, 226 S.W.3d 287, 301 (Tenn. 2007). “A trial court abuses its discretion when it
applies incorrect legal standards, reaches an illogical conclusion, bases its decision on a
clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice
to the complaining party.” Scott, 275 S.W.3d at 404 (citing Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).
In the instant case, Officer Ascencio testified that he had been trained to
operate the field test kits and that he had administered “thousands” of field tests over the
years. Officer Ascencio explained each step of the administration of the field test and
confirmed that he followed the test instructions “each and every time” he administered the
test. The trial court concluded that “based upon his experience he can testify as to actually
conducting that, and what the color was certainly.” We conclude that the trial court did not
abuse its discretion by allowing Officer Ascencio to offer expert testimony about the
administration of the field test and its results.
The defendant’s challenge to the admissibility of the field test results
apparently relates to the qualifications of the officer and not to the scientific validity of the
test itself. The defendant contends that the admission of the field test was improper because
no other evidence corroborated the field test results. In support of his argument, the
defendant relies on State v. Mikel Primm, No. 01C01-9712-CC-00571 (Tenn. Crim. App.,
Nashville, Dec. 9, 1998), in which this court stated that “[i]f the state was relying totally upon
the field test to establish that the suspected substance was in fact marijuana, we would be
compelled to reverse [the conviction of possession] and remand for a new trial.” Id., slip op.
at 5. In Mikel Primm, however, the State “concede[d] the prosecution failed to lay a proper
foundation for [the officer’s] testimony regarding the field test.” Id., slip op. at 4. Here, the
defendant conducted a voir dire examination of Officer Ascencio regarding his training and
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expertise on the field test, and the trial court found the officer’s testimony sufficient to
qualify him as an expert. The defendant also relies on State v. Wade Payne, No. W2010-
01735-CCA-R3-CD (Tenn. Crim. App., Jackson, Jan. 17, 2012), in which this court
concluded that a cocaine field test was properly admitted into evidence because, among other
things, the officer testified “that he was certified to perform the test.” Id., slip op. at 7.
Although Officer Ascencio admitted that he had never received a certificate to confirm his
training, his description of the administration of the test was virtually identical to that
provided by the “certified” officer in Wade Payne, id., slip op. at 6-7, and, thus, we do not
believe that the lack of a certificate rendered Officer Ascencio’s testimony to be any less
reliable given his training and experience.
Accordingly, we find no abuse of discretion in the trial court’s decision to
admit the expert testimony of Officer Ascencio, and, as such, the judgments of the trial court
are affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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