State v. Lewis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
JULY 1997 SESSION
October 30, 1997

Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9608-CC-00378
Appellee, )
) WILLIAMSON COUNTY
VS. )
) HON. CORNELIA A. CLARK,
PATRICK K. LEWIS, II, ) JUDGE
PATRICK K. LEWIS and )
DONNA LEWIS, )
)
Appellants. ) (Evading arrest, possession of
marijuana, reckless endangerment)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID L. RAYBIN JOHN KNOX WALKUP
2210 SunTrust Center Attorney General & Reporter
424 Church St.
Nashville, TN 37219 LISA A. NAYLOR
(On appeal) Asst. Attorney General
450 James Robertson Pkwy.
VIRGINIA LEE STORY Nashville, TN 37243-0493
136 4th Ave. S.
P.O. Box 1608 JOSEPH D. BAUGH
Franklin, TN 37065 District Attorney General
(At trial)
JEFF BURKS
WILLIAM DON YOUNG, JR. Asst. District Attorney General
227 Bridge St. P.O. Box 937
Franklin, TN 37064 Franklin, TN 37065
(At trial)

OPINION FILED:____________________

AFFIRMED IN PART; REVERSED AND
DISMISSED IN PART; AND REMANDED
IN PART

JOHN H. PEAY,
Judge
 OPINION

Defendant Patrick K. Lewis, II (“Kelly”) was indicted for driving under the

influence, possession of marijuana, felony reckless endangerment, and evading arrest.

Defendant Patrick K. Lewis (“Mr. Lewis”), Kelly’s father, was indicted for evading arrest,

being an accessory after the fact in the evasion of an arrest, and tampering with

evidence. Defendant Donna Lewis (“Mrs. Lewis”), Kelly’s mother, was indicted for aiding

in an evasion of arrest, being an accessory after the fact in the evasion of an arrest, and

two counts of tampering with evidence. All cases were consolidated for trial. The jury

convicted Kelly of simple (misdemeanor) possession of marijuana, felony reckless

endangerment, and evading arrest. It convicted Mr. and Mrs. Lewis of evading arrest and

Mrs. Lewis of one count of tampering with evidence. The trial court subsequently entered

a judgment of acquittal on the tampering with evidence conviction.

After a hearing, Kelly was sentenced on the felony conviction as an

especially mitigated offender to nine tenths of a year incarceration, suspended, and two

years probation.1 On the misdemeanor possession charge, he was sentenced to six

months jail, suspended, and eleven months, twenty-nine days probation. For the

misdemeanor evading arrest conviction, he received six months’ jail, suspended, and

eleven months, twenty-nine days probation. Kelly was also fined $3,000 on the felony

reckless endangerment offense, $2,000 on the possession offense, and $2,000 on the

evading arrest offense. All sentences were run concurrently. Mr. Lewis was sentenced

to thirty days in jail, suspended, and eleven months, twenty-nine days probation on the

evading arrest charge and fined $2,500. Mrs. Lewis’ sentence was identical to her

husband’s.

1
As a condition of his probation on this charge, Kelly was ordered to serve twenty days on
con sec utive w eek end s in th e cou nty jail.

2
 The defendants now join in this appeal as of right challenging their

convictions for evading arrest. Defendant Kelly also challenges his conviction for

reckless endangerment, asserts that the trial court erred in denying his request for judicial

diversion on his possession of marijuana charge, complains that his fine on the

possession charge was excessive, and asserts that his fines should be run concurrently

rather than consecutively.2 Upon our review of the record, we reverse all three

convictions for evading arrest and dismiss those charges; remand this matter for further

proceedings on Kelly’s request for judicial diversion on the possession charge; and

remand for reconsideration the fine imposed for the possession offense. In all other

respects, we affirm the judgments below.

FACTS

On the evening of March 4, 1994, the defendant Kelly met his friend, James

Walter Inman, for dinner at approximately 8:30 p.m., according to Kelly. During dinner,

he drank approximately two beers. He left the restaurant between 10:00 and 10:30 p.m.

At approximately 11:30 p.m., Kelly was driving home headed east on state highway 96.

As he came down a hill and around a blind curve, he was temporarily blinded by

oncoming headlights. According to his testimony, “I was having a very difficult time

seeing. And I let off the gas to slow down and the [oncoming] car passed me. And when

it passed me, I realized that I was up on the rear end of another vehicle that was stopped

in the middle of the road.”

The other vehicle belonged to Jason Rauschenberger who had stopped to

make a left turn onto Clovercroft Road. Rauschenberger had stopped in order to allow

an oncoming car to pass. According to Rauschenberger, as he began his left turn, a

2
The defendants Mr. Lewis and Mrs. Lewis also challenge their sentences. In light of our
disposition of their convictions, we find it unnecessary to address these sentencing issues.

3
“[c]ar c[a]me from behind me like they were going to pass me and hit me in my left front

of my vehicle. . . . The other vehicle went off into the ditch and it knocked mine down the

road.” Rauschenberger testified that the car that hit him had been “going very fast,

probably 60 something miles an hour.” Kelly testified that, as he realized he was about

to collide with the turning vehicle, he “basically just jerked the wheel to try to keep from

rearending the other vehicle and go around the vehicle. And at the time that I did that,

the best I can remember the vehicle turned into me, into my car. And it caused me to

veer to the left and go through a guardrail and down into the ditch.” Rauschenberger

suffered a strained neck muscle from the collision and Kelly suffered cuts to his hands.

Following the collision, Kelly was taken to a nearby hospital. Meanwhile,

Officer Fedincio Medina arrived on the scene of the accident. After spending about thirty

minutes at the scene, Officer Medina went to the hospital to speak with Kelly. Officer

Medina testified that, while speaking with Kelly, he noticed “an odor of alcohol type

beverage on his person and also smelled an odor of marijuana, smell of marijuana on

him.” He testified that Kelly had told him he had had a couple of drinks. He further

testified that he had then explained that he wanted to administer a field sobriety test and

that Kelly had not cooperated in the administration of that test. Officer Medina testified

that he had then “advised [Kelly] that [he] would be going to the magistrate’s office to

attempt to swear out a warrant against him for DUI.” At that point, Officer Medina left the

hospital and returned to the scene of the accident “to get the license of [Kelly] and do an

inventory of the vehicle.” Prior to leaving the hospital, he testified, he had told the nurses

“that [he] would be returning back with warrants to attempt to get a blood alcohol drug

screen on [Kelly].”

After he had returned to the scene of the accident, Officer Medina testified,

4
he encountered Kelly’s father, Mr. Lewis. According to Officer Medina, Mr. Lewis

approached him as he was conducting his inventory search of the vehicle and asked him

what authority he had to be searching the car. By this time, Officer Medina had found a

film canister in the car that contained “green plant material.” This was later determined

to be approximately one-half gram of marijuana. Officer Medina testified that he had told

Mr. Lewis that he was the investigating officer and that he was going to go to the

magistrate’s office to attempt to obtain warrants against Kelly for DUI and possession of

a controlled substance, and that “as soon as [he] got the warrant that [he] would be

returning back to the hospital to place [Kelly] under arrest for any other charges that

stemmed out of the investigation.” He also testified that, after obtaining the warrants for

Kelly’s arrest, he had called the hospital and told Sandra Isenberger, one of the nurses

there, to “tell the family that I was en route to the emergency room to serve the warrants

on Patrick Kelly Lewis.”

Mr. Lewis testified that, after receiving a phone call, he and his wife had

gone to the hospital. While his wife remained with his son, he went to the accident

scene. He denied that he had had any conversation with Officer Medina there. He

testified that he had remained there long enough to see what was being done with Kelly’s

car and then returned to the hospital. He further testified that he never saw Officer

Medina at the hospital, was never told by anyone at the hospital that he could not leave,

and was never told by anyone that his son was under arrest.

Mrs. Lewis testified that, on the night in question, she never understood her

son to be under arrest and that she never saw or spoke with Officer Medina. She

testified that, after Kelly had been treated, “he asked the doctor if they were through. And

the doctor said yes and he [Kelly] asked to go the restroom. He came back out, my

5
husband and I were standing there talking to the doctor. Kelly again asked if there was

anything else. And the doctor said no.” At that point, according to Mrs. Lewis, Kelly left

to go wait for them in the car. After some more discussion with the doctor, she testified,

she had suggested that her husband “go on out and check on Kelly.” Her husband then

left, she continued to speak to the doctor, and then she left and joined her son and

husband in the car. They then left the hospital. Mrs. Lewis testified that no one ever told

her she could not leave the hospital with her son.

Kelly testified that Officer Medina had not told him he was going to get

warrants for him, did not tell him to stay at the hospital, and did not tell him he was going

to be back later to talk to him. He further testified that, when he left the hospital to wait

in the car, no one had told him to wait there for Officer Medina or that Officer Medina was

on his way back to talk with him.

Susan Jenna Scarbrough was the charge nurse on duty on the night in

question and assisted in treating Kelly. She testified that Kelly had been there

approximately an hour before his parents arrived. She testified that Officer Medina had

spoken to her technician, Renee, and that Renee had relayed their conversation to her.

She testified that, based on what Renee had told her, she advised her supervisor, Sandra

Isenberger, that “Trooper Medina had gone to get some warrants or something and he

was on his way back.” She also testified that she told Renee “to inform the family that

Trooper Medina needed to discuss some further business about the wreck with them”

and that, to her knowledge, Renee had done so.

Sandra Isenberger testified that Officer Medina had called the hospital and

said “to keep [Kelly] there that he was on his way back, he needed to see them.” She

6
further testified that, “At one point in time I told [Kelly and his parents] that Trooper

Medina was coming back and wanted to talk to them.” Renee did not testify. Officer

Medina admitted that he had not placed Kelly under arrest at the hospital. He testified

outside the presence of the jury that the defendants “later turned themselves in to the

sheriff’s office in Williamson County.”

ANALYSIS

In their first issue, the defendants contend that the evidence was not

sufficient to convict any of them of evading arrest. We agree.

When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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, 61

L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to

afford the State the strongest legitimate view of the proof contained in the record as well

as all reasonable and legitimate inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

7
 When the alleged offenses were committed, our criminal code provided that

it was “unlawful for any person to intentionally flee from anyone the person knows to be

a law enforcement officer and the person: (1) Knows the officer is attempting to arrest the

person; or (2) Has been arrested.” T.C.A. § 39-16-603(a) (Repl. 1991).3 That is, a

person could evade an arrest either while an officer was attempting to effect it, or after

he or she had actually accomplished it. In this case, there is no dispute that Officer

Medina had not yet placed Kelly under arrest as of the time he “fled.” Accordingly, we

need concern ourselves only with determining whether Kelly intentionally fled from Officer

Medina while knowing that Officer Medina was attempting to arrest him.

The facts of this case establish that, at the time Kelly left the hospital,

Officer Medina was on his way to attempt an arrest. He had not yet begun the attempt

when the Lewis family left the hospital. In order to effectuate the arrest under the

circumstances of this case, Officer Medina had to do two things: first, get an arrest

warrant4 and second, (attempt to) serve that warrant and place Kelly under arrest. As of

the time Kelly left the hospital, Officer Medina had accomplished only the first step.

Thus, taking the evidence in the light most favorable to the State, Kelly and

his father knew that Officer Medina was attempting to obtain a warrant for Kelly’s arrest

at the time they left the hospital. Attempting to obtain a warrant is not the equivalent of

attempting to arrest someone. Officer Medina had not yet begun his attempt to arrest

Kelly at the time the Lewis family left the hospital. Indeed, we are perplexed as to how

any police officer could attempt to arrest someone when the officer is not in some

3
This sta tute has s ince bee n rewritten , effective J uly 1, 1995. See T.C.A. § 39-16-603 (Supp.
1995).

4
Officer Medina testified that he had to obtain a warrant prior to arresting Kelly “for a violation of
the law that wasn’t comm itted in my presence on a m isdemeano r type.” See T.C.A. § 40-7-103.

8
physical proximity to the person he or she is attempting to arrest. Common sense

dictates that, in order for an officer to arrest someone, he or she must be in a position to

take physical custody of that someone at that time: not at some undetermined time in

the future. Thus, the concept of fleeing from an officer necessarily involves the concept

of fleeing from the presence of an officer. The State would have us hold that a police

officer can effectuate an attempted arrest by telling someone to “sit right there until I get

back with an arrest warrant.” We decline to do so.5 The convictions against Kelly Lewis,

Patrick Lewis, and Donna Lewis for evading arrest are reversed and dismissed.

In light of our holding on the defendants’ first issue, we find it unnecessary

to address the defendants’ issue concerning the trial court’s supplemental instruction to

the jury on the charges of evading arrest, and the issue concerning the constitutionality

of the evading arrest statute.

Defendant Kelly Lewis next contends that the evidence was insufficient to

support his conviction for felony reckless endangerment. Reckless endangerment is

committed when a person “recklessly engages in conduct which places or may place

another person in imminent danger of death or serious bodily injury.” T.C.A. § 39-13-

103(a) (Repl. 1991). Kelly argues that the State’s proof established no more than that

he had acted negligently when he rounded the curve and was unable to stop his car

before colliding with the victim’s vehicle. The State disagrees.

5
If the State’s position is correct, where would that leave Kelly Lewis had Officer Medina been
uns ucc ess ful in h is que st for an ar rest w arra nt? W ould h e be r equ ired to rem ain at the h osp ital un til
Officer Medina had gotten around to notifying him that he was now free to go? Kelly Lewis was either
under arrest or he was not. If he was not, he was free to go unless Officer Medina was in the process of
attem pting to arre st him. O fficer Me dina had not reac hed that s tage at the time Ke lly left the hospital.

9
 The conduct in which Kelly engaged was driving at a high rate of speed6 at

night after consuming two beers7 into a curve beyond which lay an intersection he could

not see. We think it obvious beyond the need to comment further that such conduct may

place other drivers and/or passengers and/or pedestrians “in imminent danger of death

or serious bodily injury.” We need, then, determine only whether Kelly engaged in this

conduct “recklessly.”

A person drives recklessly when he “is aware of but consciously disregards

a substantial and unjustifiable risk that” his driving may put others in imminent danger of

death or serious injury. T.C.A. §§ 39-11-106(a)(31); 39-13-103. “The risk must be of

such a nature and degree that its disregard constitutes a gross deviation from the

standard of care that an ordinary person would exercise under all the circumstances as

viewed from the accused person’s standpoint.” T.C.A. § 39-11-106(a)(31).

The risk of putting others in imminent danger of death or serious bodily

injury is, prima facie, “of such a nature and degree that its disregard constitutes a gross

deviation from the standard of care.” Moreover, the proof indicates that Kelly was driving

so fast and under such circumstances that, when he finally saw Mr. Rauschenberger’s

vehicle, he was not only unable to stop, but even after colliding with the truck, went

careening into a ditch across the road. This manner of driving, under all the

circumstances, even as viewed from Kelly’s standpoint, was a gross deviation from the

6
The only proof as to how fast Kelly was driving was the other driver’s testimony that he had
look ed in h is rea rview mirr or, be gan to turn and “ the c ar co me from behin d m e goin g ver y fast, prob ably
60 something miles an hour.” In any event, the speed was too fast to allow Kelly to stop upon finding a
car in his lane.

7
Off icer M edina testifie d tha t he h ad sm elled t he od or of ma rijuan a abo ut Ke lly’s per son and in
the interior of the car. Even taking this testimony at face value, it does not prove that Kelly was under
the influence of marijuana at the time he was driving. For one thing, someone else could have smoked
it in his car in his p resenc e. Even if K elly himse lf had sm oked it, there is no pr oof in the re cord as to
when he did so.

1 0
standard of care that an ordinary person would exercise.

Thus, the only remaining issue is whether Kelly was aware of the risk

created by his driving but consciously disregarded it. We find that the proof, taken in a

light most favorable to the State, supports the inference that Kelly was and did. His

description of the collision at trial was as follows:

Well, I remember coming down the hill, you come down the
hill and go around a turn. And it was dark, there are not any
lights around. And as I came around the turn there was
another car’s headlights in my eyes. And it was oncoming
and I was having a very difficult time seeing. And I let off the
gas to slow down and the other car passed me. And when
it passed me, I realized that I was up on the rear end of
another vehicle that was stopped in the middle of the road.

And I basically just jerked the wheel to try to keep from
rearending the other vehicle and go around the vehicle. And
at the time that I did that, the best I can remember the vehicle
turned into me, into my car. And it caused me to veer to the
left and go through a guardrail and down into the ditch.

Kelly admitted that he had had two beers prior to commencing his drive. Thus, he was

aware that he had consumed alcohol within a short time of getting behind the wheel of

his car. As he approached the intersection at which the accident occurred, he knew it

was dark and that he was coming down a hill and approaching a turn. Although he had

a “very difficult time seeing” because of another car’s headlights, his response is merely

to “let off the gas.” While this response was certainly too little, too late, it does indicate

that Kelly knew he was driving too fast. Moreover, everyone who drives on the public

roadways is aware that there is the ever-present possibility of other vehicles in front of

you: whether you can see them or not. When driving down a hill and around a curve,

blinded by oncoming headlights, it is particularly important to slow your speed so as to

be able to stop if there is a vehicle ahead of you that you cannot yet see. Kelly did not

do this. Even after taking his foot off the accelerator, he is still doing “60 something”

miles an hour when he veers around Mr. Raushenberger’s truck.

1 1
 We are sympathetic to the defendant’s plea that “[e]very automobile

accident should not be transformed into a reckless endangerment prosecution.”

However, the collision which occurred in this case is not typical of “every automobile

accident.” Rather, the collision in this case is typical of automobile accidents in which

one or more of the drivers is driving recklessly. It is certainly negligent to drive at such

a speed that you cannot stop in time to avoid hitting a car in your lane attempting to make

a legal left turn. It is far more than negligent -- it is reckless -- to do so at night, as you

are approaching a blind curve, and after you have had a couple of drinks.

In State v. Ramsey, 903 S.W.2d 709 (Tenn. Crim. App. 1995), this Court

considered a defendant who had been speeding and, as his car entered a right turn,

drifted into the oncoming lane, hitting a pick-up truck. The collision killed the passenger

in the defendant’s car. There was no evidence that the defendant had been under the

influence of any alcohol or drugs. Based on the high rate of speed and the curvy, hilly

conditions of the road, this Court found that the defendant had operated his vehicle in a

reckless manner so as to be guilty of reckless endangerment. Similarly, in State v.

Clifford Bidwell, No. 03C01-9308-CR-00287, Bradley County (Tenn. Crim. App. filed Aug.

30, 1994, at Knoxville), this Court affirmed a conviction of reckless endangerment where

the defendant, with a police officer in pursuit, “drove his automobile at a high rate of

speed in a congested area through several stop signs and through a police roadblock.”

Although no one was hurt as a result of the defendant’s actions, this Court found that the

evidence was “overwhelming.”

This issue is without merit.

The defendant Kelly next contends that the trial court erred because it did

1 2
not instruct the jury on the lesser offense of misdemeanor reckless endangerment. We

first note that trial judges must instruct the jury on all lesser offenses where there is any

evidence to support them, State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App.

1981), but “where the record clearly shows that the defendant was guilty of the greater

offense and is devoid of any evidence permitting an inference of guilt of the lesser

offense, it is not error to fail to charge on a lesser offense.” State v. Boyd, 797 S.W.2d

589, 593 (Tenn. 1990).

Reckless endangerment is a Class A misdemeanor unless it is committed

with a deadly weapon, whereupon it is a Class E felony. T.C.A. § 39-13-103(b). There

is no evidence whatsoever that Kelly committed reckless endangerment other than by

driving his car in a reckless manner. A deadly weapon is defined as “[a]nything that in

the manner of its use or intended use is capable of causing death or serious bodily

injury.” T.C.A. §39-11-106(a)(5)(B) (emphasis added). As we have previously discussed,

the proof established that Kelly drove his automobile in a manner which was quite

capable of causing death or serious bodily injury. Indeed, with respect to the proof about

how the wreck occurred, there is no proof in the record that he drove his car in any other

manner. Therefore, it is immaterial that we have previously recognized that automobiles

are not, under all circumstances, deadly weapons. See State v. Scott W. Long, No.

03C01-9301-CR-00032, Greene County (Tenn. Crim. App. filed Aug. 19, 1993, at

Knoxville). Under the circumstances of this case, the defendant Kelly’s method of driving

his car rendered it a deadly weapon. There being no proof in the record that Kelly

committed the offense of reckless endangerment in any other way, no instruction on

misdemeanor reckless endangerment was required. Only when there is some evidence

upon which reasonable minds could convict the defendant of a particular lesser offense

is the court required to instruct regarding that offense. Johnson v. State, 531 S.W.2d

1 3
558, 559 (Tenn. 1975). This issue is without merit.

The defendant Kelly’s next three issues challenge the propriety of his

sentences. We will first address his contention that the trial court abused its discretion

in failing to sentence him to judicial diversion for the misdemeanor offense of possession

of marijuana. Because Kelly has not been previously convicted of a felony and because

this offense is a Class A misdemeanor, he is eligible for judicial diversion on this offense.

T.C.A. § 40-35-313(a)(1). His concurrent conviction for felony reckless endangerment

does not prohibit the granting of judicial diversion. See State v. Eric Lemart Harris, No.

03C01-9511-CC-00363, Washington County (Tenn. Crim. App. filed Dec. 30, 1996, at

Knoxville).

This Court has previously held that

judicial diversion is similar in purpose to pretrial diversion and
is to be imposed within the discretion of the trial court subject
only to the same constraints applicable to prosecutors in
applying pretrial diversion under T.C.A. § 40-15-105.
Therefore, upon review, if