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.
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DAVID H. WELLES, JUDGE
CONCUR:
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DAVID G. HAYES, JUDGE
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THOMAS T. WOODALL, JUDGE