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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs at Knoxville July 26, 2005 STATE OF TENNESSEE v. JAMES C. MCWHORTER
Direct Appeal from the Circuit Court for Montgomery County No. 40200368 Michael R. Jones, Judge

No. M2004-02804-CCA-R3-CD - Filed December 6, 2005

The defendant, James C. McWhorter, was convicted of two counts of forgery, misdemeanor evading arrest, and felony reckless endangerment. The trial court imposed a four-year sentence for each of the forgery convictions, an eleven month and twenty-nine day sentence for the misdemeanor evading arrest conviction, and a four-year sentence for the felony reckless endangerment conviction. The sentences were ordered to be served concurrently, for a Range II, effective sentence of four years. In this appeal, the defendant asserts (1) that the trial court erred by denying the motion to suppress evidence obtained during a search of his residence; (2) that the trial court erred by denying the motion to suppress the defendant's statement to police; (3) that the trial court erred by denying the motion to sever the offenses; (4) that there was a fatal variance between the indictment and the proof at trial; (5) that Count 3 of the indictment did not charge an offense; (6) that the offenses alleged were legally impossible under the facts of the case; (7) that the evidence was insufficient to support the convictions for evading arrest and reckless endangerment; (8) that the trial court erred by referring to his statement as a "confession;" (9) that the trial court should have given a curative instruction during a co-defendant's testimony; (10) that the sentence is excessive; and (11) that the trial court erred by denying probation. The judgments of the trial court are affirmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and J.C. MCLIN , JJ., joined. James C. McWhorter, Clifton, Tennessee, pro se. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; and Art Bieber and Daniel Brollier, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION

On March 20, 2002, Christy Hodges Shepherd, who was working as a cashier at the Hilltop Cee Bee Market in Montgomery County, was alerted by the bank to be on the lookout for a specific type of forged check. She was provided a copy of one of the checks. On the following day, a man came into the market and presented a check for cashing that bore the same account number as that provided by the bank. Ms. Shepherd alerted the assistant manager, Brian Bowers, who directed her to telephone the police. According to Ms. Shepherd, the defendant was not the man who presented the check. After verifying the account number and notifying the manager, Bowers went outside, where he saw a red Dodge Neon being driven away from the store at a high rate of speed. According to Bowers, the driver turned sharply, lost control of the car, and struck a guard rail. Another employee of the market, Don Baggett, had seen the same Dodge Neon in the parking lot and had observed two men, one white and one black, park the car and enter the store. Baggett, who also looked at the check, saw the black man pause outside of the office, leave the store, and get into the Dodge Neon. Baggett confirmed that neither of the individuals who entered the store were the defendant. Deputy Robert Michael Oliver of the Montgomery County Sheriff's Department, who was in his patrol car near the Hilltop Cee Bee Market, was notified that two men had tried to cash a forged check at the market. When he saw the Dodge Neon strike the guardrail, he activated his emergency equipment and began to follow. The Dodge Neon sped away, passing cars on the shoulder of the road and driving into the oncoming lane, "zig-zagging back and forth." The chase continued for approximately twelve miles at speeds of over one hundred miles per hour until the car was stopped on the shoulder of the road just inside the Stewart County line. The defendant was the driver of the vehicle. Deputy James Durico, who assisted at the scene of the arrest, searched the vehicle and discovered several pieces of a check on the floorboard behind the driver's seat. At trial, Madeline Dailey, assistant vice president and branch manager for the First Federal Savings Bank North Clarksville location, testified that a check bearing the routing number for the bank was placed on a check purportedly drawn on Regions Bank. She stated that the account number listed on the check, 0160185038, belonged to a "money order account" at First Federal Savings Bank and not to Rafferty's Restaurant, as indicated on the face of the check. Ms. Dailey also identified the fragments of the check found in the defendant's vehicle as having the First Federal Savings routing number. According to Ms. Dailey, the account number on that check matched the account number printed on the first check. She confirmed that Rafferty's Restaurant did not have an account with First Federal Savings. Shawn Estes, Comptroller for Rafferty's Restaurant, testified that neither check was a legitimate check drawn on the restaurant's account. He stated that payroll checks for every Rafferty's location was processed out of Bowling Green, Kentucky.

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Mark Sletto, Special Agent with the United States Secret Service, testified that he questioned the defendant, who admitted manufacturing counterfeit commercial checks, counterfeit driver licenses, and counterfeit currency. According to Agent Sletto, the defendant explained that he had used two different software programs, My Business Check Writer and Versa Check, to create the checks. He recalled that the defendant acknowledged having used the account numbers from cashiers checks he had purchased. Brian Thomas testified that he had met the defendant in early March of 2002. He remembered that on March 21, he arranged to meet the defendant so that they could "try to forge checks one more time." According to Thomas, the defendant printed the checks on his computer. Thomas, who was accompanied by Justin Ballard, explained their plan as follows: The agreement that we always had was that Mr. Ballard and I would be the actual face [men], we were the ones who actually walked into the store and pretty much cashed the checks ourselves and when we c[a]me back, we would give [the defendant] two hundred dollars and then we would, keep the rest. .... . . . [The defendant] was the one that produced the checks for us, produced the checks and identification and so forth. Thomas testified that the defendant provided him with an identification card bearing the name "David Watts," which appeared as the payee on the check he tried to cash at the Hilltop Cee Bee Market. Thomas recalled that as he attempted to pass one of the forged checks at the Hilltop Cee Bee, the clerk became "somewhat suspicious," took the check into the store office, and called in another employee. He explained that he left because he knew "something suspicious was going on and something [was] going to happen." Thomas testified that when he returned to the car, he told the defendant to leave because "it was not going as planned." The defendant drove away but returned to pick up Ballard, who had gone to the store's restroom. According to Thomas, when they saw a police car approaching them, the defendant sped away at a high rate of speed and struck the guard rail while trying to negotiate a turn. Thomas recalled that the defendant drove "as fast as . . . that little thing could go," passing cars on both the right and left. Thomas testified that there were several other vehicles on the road and some were forced to "veer[] off to the side." At trial, he acknowledged that he had entered a guilty plea for his role in the offense and that he had received a two-year probationary sentence and was ordered to pay approximately five thousand dollars in restitution. Justin Ballard corroborated Thomas's account of the events and described their arrangement with the defendant: "[I]f I cashed the check, [the defendant] would get two hundred [dollars] and I [would] keep three [hundred dollars]. If Mr. Thomas cashed the check, he would get two [hundred dollars] and [the defendant] gets three [hundred dollars]." Ballard acknowledged that he also intended to cash a check at the Hilltop Cee Bee Market, but left when Thomas encountered -3-

difficulty. He confirmed that Thomas and the defendant left the market without him but returned shortly thereafter. Ballard testified that the defendant ripped the check and attempted to throw the pieces out the window as he sped away. According to Ballard, the defendant reached speeds of 120 miles per hour as he fled from the police. He admitted having pled guilty for his role in the offense and receiving two years of pretrial diversion. Investigator John Michael Stone with the Montgomery County Sheriff's Department, who interviewed the defendant following the arrest, testified that the defendant provided a handwritten statement admitting having created the counterfeit checks and the identification cards used by Thomas and Ballard. According to Investigator Stone, the defendant claimed that Thomas and Ballard forced him to flee from the police, explaining that he wanted to stop but the two men "kept yelling don't you stop." The defendant informed Investigator Stone that he received forty percent of each check cashed. Investigator Stone, who executed a search warrant at the residence where the defendant had been staying, seized several items with the defendant's cooperation, including: Versa Check software, blank check stock, a computer, a printer, various documents, and several fake driver licenses. I. The defendant contends that the trial court erred by denying his motion to suppress the items seized pursuant to the search warrant. He asserts that the search warrant is invalid because the affidavit accompanying the search warrant does not allege a specific time and date for the alleged illegal activity and does not, therefore, establish probable cause that the evidence sought could be found at the residence to be searched. The state concedes that the search warrant was void because of the absent date but claims that the search of the residence was valid because the defendant and other occupants of the residence consented to the search. Our supreme court has previously held that: [W]hen suppression of evidence seized pursuant to a search warrant is advocated, the burden is upon the accused to prove by a preponderance of the evidence: (1) the existence of a legitimate expectation of privacy in the place or property from which the items sought to be suppressed were seized; (2) the identity of the items sought to be suppressed; and (3) the existence of a constitutional or statutory defect in the search warrant or the search conducted pursuant to the warrant. State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998) (citing State v. Evans, 815 S.W.2d 503, 505 (Tenn. 1991); State v. Harmon, 775 S.W.2d 583, 585-86 (Tenn. 1989)). The standard of review applicable to suppression issues is well established. When the trial court makes a finding of facts at the conclusion of a suppression hearing, the facts are accorded the weight of a jury verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court's findings are binding upon this court unless the evidence in the record preponderates against them. -4-

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson, 878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984). Questions of credibility of witnesses, the weight and value of the evidence, and resolution of conflicts in evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from the evidence. Odom, 928 S.W.2d at 23. This court's review of a trial court's application of law to the facts, however, is conducted under a de novo standard of review. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). In this case, Investigator Stone testified at the hearing on the motion to suppress that he had failed to include a time and date when the criminal activity was alleged to have occurred. The state argued that a "close reading of the search warrant . . . when coupled with the dates and signatures of Judge Shelton . . . leads to a reading and interpretation of a continuing criminal enterprise that was an ongoing thing." The trial court agreed and denied the motion to suppress. In State v. Baker, this court concluded that "the absence of a specific date in the affidavit setting out when the illegal activity was observed is not required if the affidavit sets out sufficient facts from which the magistrate issuing the warrant could find probable cause to believe the illegal activity, or other matters justifying a search, are occurring or are present on the premises when the search warrant is issued." 625 S.W.2d 724, 726 (Tenn. Crim. App. 1981), overruled on other grounds by State v. Holt, 691 S.W.2d 520, 522 (Tenn. 1984). The existence of probable cause is to be determined on a case-by-case basis and, when making the probable cause determination, "the issuing magistrate should consider whether the criminal activity under investigation was an isolated event or of a protracted and continuous nature, the nature of the property sought, and the opportunity those involved would have had to dispose of incriminating evidence." State v. Meeks, 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993) (citing United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975); W. LaFave & J. Israel, Criminal Procedure

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