State v. Gray

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
DECEMBE R SESSION, 1997 March 6, 1998

Cecil Crowson, Jr.
Appe llate Court C lerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9702-CR-00074
)
Appellee, )
)
) GREENE COUNTY
VS. )
) HON. JAMES E. BECKNER
ANTHONY GRAY, ) JUDGE
)
Appe llant. ) (DUI, D ORL , Evadin g Arrest)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF GREENE COU NTY

FOR THE APPELLANT: FOR THE APPELLEE:

R. RUSSELL MATTOCKS JOHN KNOX WALKUP
Office of the Public Defender Attorney General and Reporter
1609 College Park Drive, Box 11
Morristown, TN 37813-1618 TIMOTHY F. BEHAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243

C. BERKELEY BELL
District Attorney General

ERIC CHRISTIANSEN
Assistant District Attorney General
109 S. Main Street, Suite 501
Greeneville, TN 37743

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

This is an app eal as of rig ht pursu ant to Rule 3 of the Tennessee Rules of

Appellate Procedu re. The Defe ndant, Antho ny Gray, w as convicted by a jury

verdict of one count of driving while under the influence, second offense, a Class

A misdemeanor, and sentenced to eleven months and twenty-nine days at th irty

percent service prior to release; one count of driving on a revoked licens e, third

offense, a Class A misde mean or, and s entenc ed to eleven months and twenty-

nine days at thirty perc ent; and one co unt of eva ding arre st while op erating a

motor vehicle, a Class E felony, and sentenced to two years, with two hundred

twenty days in custody and the balance to be served on probation.1 In this

appe al, the Defendant argues: (1) That the evidence w as insufficient to supp ort

a verdict of g uilt; (2) tha t the trial c ourt er red by failing to grant th e Def enda nt’s

motion for acqu ittal; (3) that a double jeopardy violation occurred for his felony

evading arrest charge when it had been previously reduced to a misdemeanor

and he was later tried again on felony evading arrest; and (4) that the trial court

allowed improper c ross-examination of a defense witness regarding prior

convictio ns. We affirm the ju dgme nt of the trial co urt.

At approximately 3:00 a.m. on September 10, 1995, officers Tim Ward and

Tim Davis of the Greeneville Police Department were patrolling the east end of

Greeneville. While traveling on Rufe-Taylor road, a two-lane blacktop road near

1
Tenn. Code Ann. §§ 55-10-401; 55-50-504; 39-16-603.

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a foundry called Greeneville Iron and Paper, the officers saw a car approaching

them from the opposite direction at a high rate of speed. The approaching

vehic le was in the la ne of tra ffic in wh ich the officers were travelin g and it

appeared that they were about to collide. Officer W ard was driving the patrol car

and swer ved o ff the sid e of the road to avoid being hit. T he area was w ell-lit, and

as the other car passed, he saw a man in the driver’s seat whom he later

identified as the Defendant. Officer Davis was looking to the side of the road at

the pole h e was fe arful they w ere abo ut to hit.

Officer Ward turned the cruiser around, activated the emergency

equipment on the vehicle and pursued what appeared to be a sma ll Nissan car.

The officers lost sight of the other vehicle very briefly, but saw it again as they

approached the intersection w ith Snapps F erry Road. The officers were traveling

at a speed of forty-five to fifty miles per hour in pursuit. They observed the other

vehicle ignore the stop sign at the intersection with Snapps Ferry Road. The

vehic le turned onto Bolton Road which leads to the Bolton Trailer Park. The

vehic le turned onto Bainey Broyles Road, a cul-de-sac within the trailer park.

The vehicle stoppe d at the dead end. The officers pulled in behind the vehicle.

The cruise r’s emergency equipment was activated and “take-down ” lights were

shining into the vehicle.

The passenger got out and ran toward the front of the Nissan and toward

a wooded area with a fence. The driver got out and ran diagonally toward the

cruiser and around a trailer. Officer Davis pursued the passenger and Officer

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Ward pursued the driver. The passenger disappeared into an overgrown field.

Officer War d app rehen ded th e drive r, who was th e Def enda nt. Offic er Ward

handcuffed the Defendant and brought him back to the cruiser. Officer W ard

noticed that the Defendant smelled of alcoho l. The Defendant stated that he was

not driving. He was tran sported to the Gre ene C ounty Detention C enter whe re

Officer Ivan Co llins adm inistered a breath a lcohol test using the Intoximeter 3000.

The Defendant’s blood alcoh ol leve l at 3:08 a.m. w as .18 %. Th e Def enda nt’s

driving record indicated that his license had been revoked. The Defendant failed

the one leg stand and the nine-step heel-to-toe sobriety tests. The Defendant

stated that he had consumed twelve beers.

The Defen dant testified that on the nig ht in qu estion , he we nt to a b ar in

Gree neville called the Hideaway. He drank beer there and then went to a place

called “the hill” or “Houston Valley.” He returned to the Hideaway at some point

and was asking people to give him a ride back to his car, and David Elkins

obliged. Elkins testified that Gray was intoxicated and that Elkins was driving the

vehicle. Elkins testified that after he stopped the vehicle in the trailer park, b oth

he and the Defendant got out on the passenger side because Elkins was driving

on a revoked license and had a string of twenty-eight convictions for burglary of

automobiles and theft offenses. The Defendant testified that Elkins drove and

that he remembered nothing until he “more or less woke up in jail.” The

Defendant did state that when the vehicle stopped, Elkins touched him on the

shoulder an d said “run.”

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 The Defendant was convicted of driving under the influence, driving on a

revoked license and felony evading arrest. He now appeals his convictions.

In his first issue, the Defendant contends that the evidence was insufficient

to suppo rt the verdic ts of guilt. When an accused challenges the sufficiency of

the convicting evidence, the standard is whether, after reviewing the ev idenc e in

the light most favorable to the prosecution, any rational trier of fact could have

found the esse ntial elem ents of the c rime b eyon d a rea sona ble doubt. Jackson

v. Virginia , 443 U.S . 307, 319 (1979). Questions concerning the credibility of the

witnesses, the weight and value to be g iven th e evid ence , as we ll as all factual

issues raised by th e eviden ce, are re solved b y the trier of fac t, not this cou rt.

State v. Pappas, 754 S.W.2d 620, 623 (Ten n. Crim . App. 1 987). N or ma y this

court reweigh or reeva luate the e vidence . State v. Cabbage, 571 S.W.2d 832,

835 (Te nn. 197 8).

A jury verdict approved by the trial judge accredits the State ’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to th e strong est legitim ate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a p resum ption o f guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.

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 The Defendant challenges the sufficiency of the evidence by suggesting

that Officer War d’s ide ntificatio n of him as the driver o f the ve hicle was su spect.

He points to the fact that when his vehicle passed the police cruiser, Officer W ard

was driving and had to conce ntrate on avoiding an accid ent. He also sugge sts

that the light in the area was insufficient to fully illuminate his face. Officer Davis

was not looking at the other vehicle, but at the side of the road. The Defendant

also notes tha t the on ly light into the ca r cam e from the po lice cru iser’s

headlights. Howev er, Officer Davis tes tified that the area in wh ich they were

driving was well-lit. Officer Ward testified that the person he saw in the d river’s

seat was the Defen dant. There is no evidence that suggests that there was time

for the driver and passe nger to s witch pla ces after th e police o fficers beg an to

chase them after the near c ollision . Finally , after the Defe ndan t’s veh icle

stopped, both Officer Ward and Officer Davis saw someone get out of the car on

the driver’s side and someone get out of the car on the passenger’s side. Officer

Davis pursued the passenger. Officer Ward ran after the driver and apprehended

him. Th at perso n was th e Defe ndant.

After reviewing the evidence in the record in the light most favorable to the

State, we can only conclude that there was ample direct and circumstantial

evidence to show that the Defendant was driving the vehicle on a public road.

This proof is also sufficient to show that the Defendant committed felony evading

arrest , “while opera ting a m otor ve hicle o n any street, ro ad, alle y or hig hwa y in

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this state, [did] inte ntionally flee or attem pt to elude any law enforce ment o fficer.”

Tenn. C ode An n. § 39-1 6-603(b )(1). There fore, this issu e is withou t merit.

Next, the Defendant argues that the trial court erred by failing to gran t his

motion for acquittal after the close of the State’s proof. A motion for judgment of

acquittal raises a question of law for the determination of the trial judg e. State v.

Adams, 916 S.W.2 d 471, 4 73 (Ten n. Crim. A pp. 199 5); State v. Hall, 656 S.W.2d

60, 61 (Tenn. Crim. App. 1983). In resolving this question, the trial cou rt's only

concern is the legal sufficiency of the evidence and the trial court is not permitted

to weigh the evidence in reaching its determination. Adams, 916 S.W.2d at 473.

An appellate court must apply the same standard as a trial court when

resolving issues predicated upon the grant or denial of a motion for judgment of

acqu ittal. Id. Having determined that the evidence was sufficient to support the

Defe ndan t’s convictions, we must conclude that the trial court properly denied the

motion for acqu ittal. Thus, this issue ha s no m erit.

As his third issue, the Defendant contends that he was twice tried for the

same offense, violative of the p rovisio n aga inst do uble jeopardy as guaranteed

by the Fifth Amendment to the United States Constitution and Article I, section

11 of the Te nness ee Co nstitution. The Defendant was tried on one count of D UI,

one count of driving on a revoked license, and one count of felony evading arrest

on August 7, 1996. The jury was unable to reach a decision and the trial cou rt

granted a mistrial on the Defendant’s motion. The Defendant was tried again on

those offenses on September 25, 1996, and was convicted.

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 The Defendant asserts that at his first trial, the trial court reduced the

charge of felony evading arrest to misdemeanor evading arrest because no court

reporter was prese nt. He argues that to be charged and tried again for felony

evading arrest constitutes double jeopardy because jeopardy attached at the first

trial for that offense. The State co unters that there is nothing in the record that

indicates that the charge for felony evading arrest was reduced and that there is

no tran script o f the he aring o n the m otion fo r new trial.

We must a gree w ith the State that the record is devoid of evidence that the

charge was reduced at the first trial. The only evidence of this is contained in

statem ents made by the Defendant in his motion for new trial and in his brief on

appe al. We reite rate that the allegations contained in pleadings and state ments

made by counse l during a hearing or a trial are not evide nce. The same is true

with regard to the recitation of facts and argument contained in a brief submitted

to this Court. State v. Dykes, 803 S.W .2d 250, 255 (Tenn. Crim . App. 1990 );

State v. Benn ett, 798 S.W.2d 783, 78 9 (Tenn . Crim. A pp. 199 0). We conclude

that this issue has been waived because the record is inadequate to allow

meaningful review. T .R.A.P. 2 4(b); State v. Barnes, 874 S.W.2d 73, 82 (Tenn.

Crim. App . 1993).

In his final issue, the Defendant argues that the trial court erred by allowing

the State to cross-examine the Defendant and a defense witness regarding the

witness’ prior convictions. David Elkins testified that he was driving the

Defe ndan t’s vehicle when they passed the police cruiser and attempted to evade

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them. He testified that he was driving on a revoked license and tried to avoid

being seen as the driver so he slid from the driver’s seat out the passenger side

door behind the Defendant. Elkins admitted that he had a string of twenty-eight

convictions. On redirect, Elkins stated that he was only acquainted with the

Defendant but was not friends with the Defendant. On recross examination, the

State questioned whether the Defendant was present when Elkins was arrested

for the offense for which he was convicted and Elkins answered in the affirmative.

Defense counsel ob jected. The trial court issued an instruction to the jury as

follows: “Now, members of the jury, just in case you have any problem with that,

that does not implicate the defendant on trial here today in any way with these

charges for which this defendant (sic) has been convicte d. He’s no t involved with

those charge s.” The D efendant testified and the State cross-examined the

Defendant regarding whether he lived with David Elkins and gave officers the key

to Elkins’ ho use wh en he w as arres ted. The Defen dant de nied that h e lived w ith

Elkins or g ave pe rmission for a searc h.

On appeal, the Defendant argues that this line of cross-examination was

prejudicial to him. H owev er, beca use the defend ant has failed to cite a uthority

to suppo rt his argum ent, this issu e is waive d. Tenn . Ct. Crim. A pp. R. 10(b);

State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). Nevertheless,

we must co nclude that the issu e has n o merit. It appears from the record that the

State was atte mpting to elicit testimo ny from the defen se witne sses to

demonstrate that David Elkins was biased in favor of the Defendant. Rule 616

of the Tennessee Rules of Evidence provides that : “A party may offer evidence

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by cross-examination, extrinsic ev idence or both, tha t a witness is biased in favor

of or prejud iced aga inst a party or another witness.” As the Advisory Commission

Comment to the rule notes, such evidence is an important ground for

impea chme nt. Thus, we find no error in the State’s cross-examination of

defense witnesses regarding the nature of their relationship. Furthermore, the

trial judge instructed the jury that the Defendant was not involved in the charges

against David E lkins. A jury is presumed to have followed a trial court's curative

instruction in the abs ence o f evidenc e to the co ntrary. State v. Me lvin, 913

S.W.2d 195, 20 1 (Tenn . Crim. A pp. 199 5); State v. Baker, 751 S.W.2d 154, 164

(Tenn. Crim. App .19 87); State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim.

App. 1985). The Defendant has failed to establish that the jury did no t follow th is

instruction . Thus, this issue ha s no m erit.

Accord ingly, we affirm the ju dgme nt of the trial co urt.

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
DAVID G. HAYES, JUDGE

___________________________________
THOMAS T. WOODALL, JUDGE

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