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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE SEPTEMBER 1997 SESSION

FILED
April 7, 1998

STATE OF TENNESSEE, Appellee, VS. JAMES RAY BARTLETT, Appellant.

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Cecil W. Crowson Appellate Court C.C.A. No. 01C01-9509-CC-00302 Clerk LINCOLN COUNTY Hon. Charles Lee, Judge (DUI, Driving on Revoked License, Reckless Driving, Evading Arrest)

For Appellant: A. Jackson Dearing, III 117 S. Main Street Shelbyville, TN 37160 (on appeal) Robert Peters 100 First Ave., S.W. Third National Bank Winchester, TN 37398 (at trial)

For Appellee: Charles W. Burson Attorney General & Reporter Eugene J. Honea Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Michael McCown Attorney General Marshall County Courthouse Lewisburg, TN 37091 Charles Crawford Assistant District Attorney General 215 E. College Street Fayetteville, TN 37334

OPINION FILED:__________________

AFFIRMED AS MODIFIED

GARY R. WADE, JUDGE

OPINION The defendant, James Ray Bartlett, was indicted for DUI, driving on a revoked license, five counts of reckless driving, resisting arrest, evading arrest and reckless endangerment. At the close of the state's proof, the trial court granted the defendant's motion for acquittal as to the charge of resisting arrest. The jury rendered guilty verdicts as to the remaining counts. After setting aside the conviction for reckless endangerment, the trial court sentenced the defendant to ten months for the DUI; four months and fifteen days for driving on a revoked license; five months for the reckless driving convictions, all of which were merged as one offense; and ten months for evading arrest. The transcript of the trial indicates sentences were ordered to be served consecutively for an effective sentence of twenty-nine months fifteen days with the minimum service at seventy-five percent. The judgment form indicates concurrent sentencing for all new convictions. The trial court revoked the defendant's community corrections sentence for prior convictions; these new sentences were ordered to be served consecutively to the prior offenses according to the judgment form.

In this delayed appeal, the defendant presents the following issues for our review: (I) whether the evidence was sufficient to support his convictions; (II) whether the trial court erred by allowing the state to introduce inadmissible character evidence in violation of Rule 404, Tenn. R. Evid.; and (III) whether the trial court erred in the length and manner of sentence imposed.

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We find no error and affirm the judgment of the trial court. The judgments are modified to the extent necessary to reflect concurrent sentencing for these offenses which are to be served consecutively to the prior convictions.

We preface our discussion of the issues by the procedural history of this case. At the conclusion of the sentencing hearing on December 13, 1994, the hearing on the motion for new trial was set for a date almost two months later. The motion for new trial was not timely filed. At the hearing on the motion, the defendant, on the advice of his counsel who saw no issues for appeal, "withdr[e]w" his motion for a new trial before it was heard and informed the trial court that he would file a written "waiver." Thus, there was no hearing on the motion and no order of disposition at that time. Defense counsel did not file notice of appeal.

On May 1, 1995, defendant's newly appointed appellate counsel filed a notice of appeal and the trial court granted a delayed appeal. Because no hearing on the motion for new trial had been conducted, the cause was remanded for that purpose. State v. James Ray Bartlett, C.C.A. No. 01C01-9509-CC-00302, Order (Tenn. Crim. App., at Nashville, Feb. 26, 1996). The trial court denied a new trial and this appeal followed.

At trial, Cliff Page, who was related to the defendant by marriage, testified that between 9:30 P.M. and 10:45 P.M. on March 4, 1994, he saw the defendant driving his stepdaughter's Sunbird near the Dairy Queen. Page informed Officer Richard Howell, who was parked nearby in his police cruiser, that he had seen the defendant driving "all over the road[,] both lanes." Later, Page, who acknowledged his dislike for the defendant, saw him driving the same car near the

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courthouse square. Page did not know how many passengers accompanied the defendant at the time and could not recognize them.

Sue Repasky, an employee of South Main Minimart, knew the defendant as a frequent store customer. On the date of the offense, she observed the defendant purchase a quart of beer between 10:00 P.M. and midnight. Ms. Repasky watched the defendant leave the store, step into a vehicle, and drive in the direction of the courthouse square.

Sam Rollins, a neighbor of the defendant, recalled seeing him near the courthouse square three or four times on that same evening between 7:00 and 10:00 P.M. When he last saw the defendant at about 10:00 P.M., the defendant was driving around the square. Rollins recalled hearing the defendant "take off" in his car and seeing the police officer engage the blue lights. He remembered there was at least one other passenger in the defendant's vehicle.

Deputy Sheriff Craig Bledsoe, who had known the defendant about two years, saw him driving around the courthouse square at about 10:00 P.M. on the night in question. Deputy Bledsoe, who was off-duty that night, did not detect any erratic driving on the part of the defendant at that time.

The defense stipulated that the defendant's driver's license had been revoked. He was not authorized to drive on the night of these offenses.

Officer Howell, who had worked for the Fayetteville Police Department for five years, had been assigned to the second shift on the night of the defendant's arrest. He recalled being approached by Page at about 10:00 P.M. and being

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informed that the defendant was probably drunk and was driving recklessly on South Main Street in a Sunbird. When Officer Howell drove his cruiser in the direction of the courthouse square, he saw the defendant, who was wearing a denim shirt, jacket, and a black cap, driving a Sunbird automobile. Although he saw a passenger in the defendant's car, Officer Howell could not see him clearly from a distance of twenty-five to thirty feet. When Officer Howell approached the defendant's vehicle, the defendant "accelerated real fast," "started off the square," and ran a stop sign. Officer Howell activated his blue lights, siren, and video camera. During the pursuit, the defendant ran five stop signs and exceeded speeds of 100 miles per hour. When Officer Howell's cruiser had a flat tire, he sent a radio message to the dispatcher, changed his tire and, within twenty minutes, drove to the defendant's residence.

Officer Howell described the defendant as clearly under the influence. The defendant, who could not produce a driver's license, refused field sobriety and breath tests but admitted that he had consumed two quarts of beer. Officer Howell, who early the next morning swore out an arrest warrant for the defendant which included a description of the pursuit, failed to note that he had identified the defendant as the driver of the vehicle just prior to activating his blue lights. Instead, he wrote that the identification was made after the chase began. At trial, Officer Howell conceded that it would have been impossible to identify the driver after the pursuit was initiated. He explained that the oversight in his report, which was written at 3:00 A.M., was due to fatigue. Officer Howell recalled that when he arrived at the defendant's residence, four or five other officers were already on the scene. He remembered that the defendant's brother, Michael Bartlett, had claimed to be the driver of the vehicle.

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Defense witness Marty Lyn Bryant claimed that he was with the defendant just prior to the police chase and testified that Michael Bartlett was the driver when he left the two men just before the chase began. He recalled that the defendant was in the back seat of the vehicle at that time.

Michael Bartlett, the nineteen-year-old brother of the defendant, testified that both he and his brother wore a mustache, beard, and long hair on the date in question. He claimed that he was wearing a light and dark blue shirt and remembered that he was not wearing his prescription glasses at the time because a lens had fallen out. He stated that the defendant wore a black George Dickel T-shirt. Michael Bartlett testified that he was driving when the officer activated his blue lights and that he "got scared and headed towards home." He explained that some of the police officers had been harassing his brother and he was afraid they were going to "start it with me." He drove the twelve miles home "pretty fast."

Michael Bartlett testified that when he arrived at their residence, he stayed in the yard and the defendant went inside. He claimed that when Officer Terry Quick arrived, he admitted that he was the driver and was searched, handcuffed, and placed in a patrol car. When Officer Howell arrived, however, five or ten minutes later, he was released and the defendant was arrested.

I The defendant first challenges the sufficiency of the evidence as to each conviction. On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of

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conflicts in the proof are matters entrusted to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

There are statutory definitions for each of the offenses at issue. "It is unlawful for any person ... to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads ... while under the influence of any intoxicant...." Tenn. Code Ann.

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