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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
DECEMBER 5, 2000 Session STATE OF TENNESSEE v. BRYAN HERMAN DOWDY
Direct Appeal from the Criminal Court for Lauderdale County No. 6761 Joseph H. Walker III, Judge

No. W2000-01011-CCA-R3-CD - Filed January 26, 2001

Defendant, Bryan Herman Dowdy, appeals his jury convictions for vehicular homicide by intoxication, two counts of vehicular assault, and felony evading arrest. He was sentenced to eight years and six months for vehicular homicide, two years for each of the vehicular assaults, and two years for felony evading arrest, with an effective sentence of ten years and six months. In this appeal, he raises the following issues for our review: (1) whether the evidence was sufficient to sustain his convictions; (2) whether items from his vehicle were improperly admitted; (3) whether his blood alcohol test result was improperly admitted into evidence; (4) whether the underlying DUI charge should have been severed; (5) whether he was improperly denied access to an officer's personnel file during cross-examination; (6) whether the trial court erroneously instructed the jury to use their "common sense;" and (7) whether his sentence was excessive. After our review of the record, we find all issues to be without merit and affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT W. WEDEMEYER , JJ., joined. Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Bryan Herman Dowdy. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; Tracey A. Brewer and Colin A. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION Defendant appeals his convictions by a Lauderdale County jury for vehicular homicide by intoxication, two counts of vehicular assault and felony evading arrest, for which he received an effective sentence of ten years and six months. In this court he challenges the sufficiency of the evidence, the admission into evidence of items obtained from his vehicle, the admission of his blood

alcohol test result, the denial of his motion to sever the DUI offense, the denial of access to an officer's personnel file during cross-examination, a jury instruction on "common sense," and his sentence. We affirm the judgment of the trial court.

FACTS Officer John Thompson of the Lauderdale County Sheriff's Department was on patrol at approximately 11:00 p.m. on May 8, 1999. He received a dispatch stating that a 1996 Chevrolet with Tennessee tag DU 421 had evaded authorities in Tipton County and was traveling north on Highway 51. After receiving a subsequent dispatch indicating the subject vehicle was on Cooper's Creek Road, Officer Thompson eventually stopped his vehicle at the intersection of Cooper's Creek Road and Highway 371. He observed the subject vehicle traveling east on Highway 371 and identified DU 421 on the Tennessee tag. After following the vehicle approximately one-half mile, Officer Thompson observed the vehicle cross the center line while negotiating a curve. Officer Thompson activated his blue lights and siren intending to stop the vehicle. Defendant, driver of the subject vehicle, appeared to be complying with the stop. However, defendant then accelerated and fled at a high rate of speed. Defendant ran a stop sign and went around two other police cruisers attempting to stop the vehicle. When it became apparent to Officer Thompson that he could not catch the vehicle, he cut off the emergency equipment. Shortly thereafter, defendant's vehicle went over a hill at a high rate of speed. There was a vehicle in front of the defendant; however, the defendant was unable to stop due to his speed. He attempted to pass the vehicle on the left side. Defendant's vehicle impacted the other vehicle as the other vehicle attempted to turn to the left. Wanda Epps was the driver of the other vehicle. Also traveling in the vehicle were her twelve-year-old niece, her nine-year-old nephew, and Paul Webb. The niece was killed, and Wanda Epps and Paul Webb suffered injuries requiring hospitalization. Two emergency medical technicians, who responded to the scene of the accident, testified that the defendant smelled of alcohol. One technician also testified that the defendant had slurred speech, stated that he started drinking around 4:00 p.m., but stated he did not know how much alcohol he consumed since 4:00 p.m. Furthermore, Lieutenant Thomas Smith of the Tennessee Highway Patrol testified that he observed several opened and unopened bottles of beer in defendant's vehicle after the accident. Defendant was transported to the hospital for treatment. Tennessee Highway Patrol Investigator Paul Phillips asked the nurse at the hospital to draw a blood sample from the defendant. Investigator Phillips also noticed an odor of alcohol on the defendant. The blood taken from the defendant subsequently tested 0.18 gram percent ethyl alcohol.

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The defendant testified at trial. He testified that he stopped work at approximately 4:30 or 5:00 p.m. on May 8, 1999. He said he purchased a six-pack of beer and drank one beer at a friend's home. Subsequently, on his way to a local tavern, he drank another beer. Upon arrival at the tavern, he said he then consumed another beer. Defendant testified he left the tavern at approximately 11:00 p.m. and began drinking another beer in his vehicle. Defendant testified that when he was near Wal-Mart in Tipton County, a police vehicle with its flashing blue lights came up behind him. He testified that he had just obtained custody of his daughter in a "custody battle," panicked when he saw the officer since he had been drinking, and fled. He stated that subsequently, while driving in Lauderdale County, he observed the blue lights of Officer Thompson's vehicle. Defendant testified that he again panicked and fled. Defendant testified that he was traveling approximately 70 miles per hour and never crossed the center line. He observed the two other police cars in front of him on the shoulder of the road but did not stop. He testified that when he came over a hill, he observed two vehicles in his lane of travel and another patrol car with its lights on on the side of the road. Defendant testified that, because he did not have time to stop, he tried to go around the two vehicles in the other lane. One of the vehicles then turned in front of him leading to the collision. Defendant was indicted and charged with vehicular homicide by intoxication, two counts of vehicular assault, felony evading arrest, and DUI by alcohol concentration of .10% or more. The jury convicted the defendant on all charges. The trial court subsequently merged the DUI conviction into the vehicular homicide and vehicular assault convictions. He received an effective sentence of ten and one-half years in the Department of Correction. This appeal followed.

WAIVER Defendant's motion for new trial challenges the sufficiency of the evidence and his sentences. The remaining allegations are that the trial court erred in "failing to grant defendant's pre-trial motions, . . . in several rulings during the course of the trial, . . . [and] in failing to properly charge the jury or did improperly charge the jury." Other than sufficiency of the evidence and the sentences, the issues presented in this appeal are not specified in the motion for new trial. Tenn. R. App. P. 3(e) requires issues to be "specifically" stated in the motion for new trial. Otherwise, this court cannot assume the issues were properly presented to the trial court; thus, they will not be considered in this court. See State v. Dykes, 803 S.W.2d 250, 254 (Tenn. Crim. App. 1990); State v. Gauldin, 737 S.W.2d 795 (Tenn. Crim. App. 1987). The allegations in the motion for new trial are too broad relating to all issues except the sufficiency of the evidence and sentencing. In an effort to determine whether these issues were considered by the trial court, we examined the transcript of the motion for new trial. It indicates that

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these issues were indeed argued before the trial court. In the interest of justice, we have elected to suspend the requirements of Tenn. R. App. P. 3(e) and address all issues on their merits.

SUFFICIENCY OF THE EVIDENCE Defendant attacks the sufficiency of the evidence to support his convictions. His attack is threefold: (1) a witness was improperly qualified as custodian of medical records, thereby making other evidence insufficient to establish that Wanda Epps suffered serious bodily injuries and insufficient to establish the vehicular homicide victim's cause of death; (2) intoxication was established by the improper admission of the blood test result, thereby rendering the other evidence insufficient to support vehicular homicide and the vehicular assaults; and (3) the absence of proper cause to stop defendant's vehicle renders the evidence insufficient to establish the offense of evading arrest. We do not view the first two allegations appropriate to an examination of sufficiency of the evidence. In evaluating the sufficiency of the evidence, we view all evidence considered by the jury, whether properly or improperly admitted. See State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981). The remedy for improperly admitted evidence is a new trial, not dismissal for insufficiency of the evidence. Id. Thus, we will review these two arguments as attacks on the admissibility of evidence. A. Medical Records Defendant contends the state failed to properly lay the foundation to qualify the custodian of medical records. Specifically, defendant contends the state failed to establish that the records were made at or near the time of the incident, and that there was a business duty to make such records. Consequently, defendant contends the medical records relating to Wanda Epps' injuries and the death certificate of the deceased victim were improperly introduced. Lee Evans testified that she was the manager of health information management at the hospital and, as such, was the "record keeper." She further testified the records were prepared in the regular practice of the hospital. Defendant's objection was simply to the lack of a "proper foundation," and there was no specific argument that the records were not made at or near the time of the incident, nor whether there was a business duty to make the records. Furthermore, Wanda Epps testified that she was hospitalized and that all she remembered about the wreck was a "big explosion" as she began her turn. She further testified she was hospitalized either thirteen or fifteen days and had surgery during her hospitalization. As to the vehicular homicide, the death of the victim was clearly established by the testimony of other witnesses without reference to the questioned death certificate. Furthermore, the testimony concerning the facts and circumstances of the accident clearly allowed the jury to conclude that the accident and death were the proximate result of the defendant's intoxication. Defendant is not entitled to relief on this issue.

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B. Evidence of Intoxication Defendant contends his blood test result was improperly admitted. We conclude otherwise later in this opinion. Accordingly, we find this issue to be without merit. C. Evading Arrest Defendant contends Officer Thompson had no legal basis to effectuate the stop of his vehicle, thereby nullifying his conviction for evading his arrest. Ordinarily, an attack based upon lack of probable cause to stop an automobile must be by motion to suppress all evidence resulting from the stop. Tenn. R. Crim. P. 12(b)(3). We assume, however, that defendant relies upon Tenn. Code Ann.

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