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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs October 26, 2004 STATE OF TENNESSEE v. BRANDON PATRICK
Appeal from the Circuit Court for Blount County Nos. C-13601, C-13602, C-13603 D. Kelley Thomas, Jr., Judge

No. E2003-02382-CCA-R3-CD - Filed March 8, 2005

The defendant, Brandon Patrick, was convicted of one count of violation of the Habitual Motor Vehicle Offenders Act, one count of felony evading arrest with risk of death, and two counts of felony reckless endangerment. The trial court later merged the two counts of reckless endangerment into one count. The trial court held a sentencing hearing on November 7, 2002. The defendant received the maximum sentences as a career offender of six (6) years for violation of the Habitual Motor Vehicle Offender Act, twelve (12) years for Class D felony evading arrest with the risk of death, and six (6) years for reckless endangerment with a deadly weapon. The trial court ordered the defendant to serve the six-year sentences for violation of the Habitual Motor Vehicle Offender Act and the reckless endangerment sentence concurrently. The trial court then ordered that the six (6) year sentences be served consecutively to the twelve (12) year sentence for Class D felony evading arrest for an effective sentence of eighteen (18) years as a career offender to be served in the Department of Correction. On appeal, the defendant argues: (1) that the evidence was legally insufficient to support a verdict of guilty; (2) his dual convictions for Class D felony evading arrest and felony reckless endangerment violated the principles of double jeopardy; (3) the trial court erred by failing to instruct the jury on applicable lesser-included offenses; and (4) the trial court erred in imposing consecutive sentences. We conclude: (1) that the evidence was sufficient to support his convictions; (2) the dual convictions for Class D felony evading arrest and felony reckless endangerment violate principles of double jeopardy and must be merged; (3) it was harmless error beyond a reasonable doubt when the trial court failed to instruct on the lesser-included offenses; and (4) consecutive sentencing was proper in the defendant's case. We reverse and remand the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Reversed and Remanded. JERRY L. SMITH , J., delivered the opinion of the court, in which ALAN E. GLENN and J. C. MCLIN , JJ., joined.

Steve McEwen, Mountain City, Tennessee, (on appeal); and Mack Garner, District Public Defender, Maryville, Tennessee, (at trial), for the appellant, Brandon Patrick. Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; Mike Flynn, District Attorney General, and Rocky Young, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION Factual Background

On the night of July 28, 2001, Ms. Jada Alvarez and the defendant were driving to a friend's house outside of Alcoa. The defendant was driving Ms. Alvarez's maroon Nissan. When they arrived at the friend's house, the defendant received a phone call and the couple returned to Alcoa where an individual was repairing the defendant's car at a home in Alcoa. About 9:15 p.m., Officer David Carswell witnessed a maroon Nissan traveling at 78 miles per hour pass by him on Alcoa Highway. He activated his blue lights, radioed for backup, and began to pursue the vehicle. When Officer Carswell began to pursue the maroon Nissan, the Nissan sped up to an estimated speed of 100 miles per hour. Officer Darren Gallow responded to Officer Carswell's call. Officer Gallow was able to catch up to the maroon Nissan and was between Officer Carswell and the vehicle. Officer Gallow followed the maroon Nissan onto Newcomen Street where the vehicle came to a stop. The driver of the Nissan jumped out of the driver's side and ran. Officer Gallow saw the driver briefly as he jumped out of the vehicle, but before the driver ran away from the vehicle. Officer Gallow recognized the individual as the defendant. Officer Carswell arrived immediately afterward. Ms. Alvarez exited the passenger side of the car and said that the defendant had been driving the car. She also said that she begged him to stop the car. Officer Robert Petty of the Maryville Police Department was not on duty the night of July 28, 2001. Officer Petty was at the home of his great aunt on Newcomen Street. He first saw the defendant that day between 3:30 p.m. and 4:00 p.m. Officer Petty also saw the defendant with Ms. Alvarez at dusk. The defendant's car was in Officer Petty's great aunt's driveway because a man was repairing the car there. The man repairing the car made a phone call to tell the owner of the car to bring the keys to the car. This phone call occurred twenty (20) to thirty (30) minutes before Officer Petty heard sirens and saw a maroon Nissan come up the street and stop. Officer Petty was sitting on his great aunt's porch about twenty (20) feet from the Nissan. He then saw the defendant jump out of the driver's side of the car. Based on this proof, the defendant was convicted and sentenced as previously noted.

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ANALYSIS The defendant argues four issues on appeal: (1) whether the evidence was legally sufficient to support a verdict of guilty; (2) whether the defendant's dual convictions for Class D Felony evading arrest and felony reckless endangerment violated the principles of double jeopardy; (3) whether the trial court erred by failing to instruct the jury on applicable lesser-included offenses; and (4) whether the trial court erred in imposing consecutive sentences.

Sufficiency of the Evidence The defendant argues that the evidence is legally insufficient to support his convictions. When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and "approved by the trial judge, accredits the testimony of the" State's witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this presumption "and replaces it with one of guilt." State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State "the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom." See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from reweighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own "inferences for those drawn by the trier of fact from circumstantial evidence." Matthews, 805 S.W.2d at 779. The defendant's sufficiency of the evidence argument is based upon the fact that the only identifications of the defendant as the driver were made by Officers Gallow and Petty and the testimony of Jada Alvarez that the defendant was the driver of the maroon Nissan. The defendant asserts that the witnesses that he presented at trial outweigh the identifications made by the officers and Ms. Alvarez's testimony that the defendant was driving the car. The defendant's witnesses were the defendant's fiancee and his friends. The defendant's fiancee, Tanyetta Johnson, testified that the defendant was with her at her house almost the entire day and night on July 28, 2001. They were having people over to grill out when she received a phone call around 9:00 p.m. to tell the defendant that the police were looking for him. Ms. Johnson stated that the defendant's cousin picked him up, but the defendant and his cousin returned about ten (10) minutes later. The defendant's cousin, Jason Sudderth, testified that he went to Ms. Johnson's

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house to pick-up the defendant. They left Ms. Johnson's house, were gone about twenty (20) minutes and returned around 10:00 p.m. A friend of the defendant, Ernest Newton, testified that he went to Newcomen Street sometime between 6:30 p.m. and 7:00 p.m. A man was fixing the defendant's vehicle at a house on Newcomen Street. He saw the defendant and the defendant's girlfriend pull up in a white car around 7:30 p.m. The defendant left and did not return. Mr. Newton saw a maroon Nissan stop while being chased by the police. Mr. Newton was unable to identify the driver of the vehicle because it was dark and a row of bushes was blocking his line of vision. Anthony Lenoir also testified on behalf of the defendant. He is a friend of the defendant and is a cousin of Officer Petty who testified on behalf of the State. Mr. Lenoir stated that he saw the defendant between 7:00 p.m. and 7:30 p.m. in front of his house on Newcomen Street. He saw the subject vehicle stop while being chased by the police. He could not identify the driver who fled because it was dark and "it was like a blur." Questions regarding the credibility of the witnesses, the weight and value of the evidence, and any factual issues raised by the evidence are resolved by the trier of fact. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). It is obvious that the jury believed the testimony of the State's witnesses and Ms. Alvarez when determining the defendant's guilt. When viewing the evidence in a light most favorable to the State, we conclude that a reasonable trier of fact could find the defendant guilty based upon the evidence presented at trial. The defendant also argues that there was insufficient evidence to support his conviction for felony evading arrest. Class D felony evading arrest is found at Tennessee Code Annotated section 39-16-603. This statute states: (b)(1) It is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement officer, after having received any signal from such officer to bring the vehicle to a stop. .... (3) A violation of subsection (b) is a Class E felony unless the flight or attempt to elude creates a risk of death or injury to innocent bystanders or other third parties, in which case a violation of subsection (b) is a Class D felony.

Tenn. Code Ann.

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