# FILED March 6, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBE R SESSION, 1997 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 J UDGMENT OF THE CRIMINAL COURT OF GREENE COU NTY
FOR THE APPELL

ANT : FOR THE APPELLEE : R. RUSSELL MATTOCKS JOHN KNOX WALKUP Office of the Public

Defender Attorney Generaland 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 Distri ct Attor ney General ERIC CHRISTI ANSEN Assistant Distri ct Attor ney General 109 S. Main Street , Suite 501 Greenevill e, TN 37743
OPINION FILED ________________________ AFFIRMED DAVID H. WELL ES, J UDGE1 Tenn. Code Ann. §§ 55-10- 401; 55-50-504;39-16-603.

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# OPINION

This is an app eal as of rig ht pursu ant to Rule 3 ofthe Tennessee Rules of Appe llate Procedu re. The Defe ndant, Antho ny Gray, w as convicted by a jury verdictof one count

of drivi ng while under t he influ ence, second offense, a Class A misdemeanor, and sentenced to eleven months andtwenty-ni ne days at th irty percentservice pr ior to r elease; one count

of drivi ng on a revoked licens e, third offense, a Class A misde mean or, and s entenc ed to eleven months and twentynine days at thirty perc ent; and one co unt of eva ding arre st while op erati ng a motor vehicle, a Class E felony , and sentenced to two years, wi th two hundred twenty days in custody a nd the balance to be served on probat ion. 1 In this appe al, the Defendant ar gues: (1) That the evidence w as insufficient to supp ort a ver dict 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 doubl e jeopardy vi olation occurred for his fel ony evading arrest charge when it had been previ ou sly reduced to a misdemeanor and he was later t ried again on fel ony evading arr est; and (4)that thetrial court allowed improper c ros s-examinati on of a defense wi tness regardi ng prior convictio ns. We affirm the ju dgme nt of the trial co urt.

At approximatel y 3:00 a.m. on September 10, 1995, officers Tim Ward and Tim Davis of theGreenevill e Police Depart ment were patrol ling theeast end of Greenevill e. While travel ing on Rufe-Tayl or road, a t wo-lane blackt

op road near-3-

a foundry cal led Greenevil le Iron and Paper , the off icers saw a car approaching them from the opposi te direct ion at a high rate of spee d. The approachi ng 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 patrolcar 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 othe r car passed, he saw a man in thedriver’ s seat whom he later identif ied as the Defendant. Officer Davis was looki ng to the si de of the road at the pole h e was fe arful they w ere abo ut to hit.

Offi cer Ward turned the cruiser around, activated the emergency equipment on the vehicl e and pursued what appeared to be a sma ll Nissan car. The officer

s lost si ght of the other vehic le very bri efly, bu t saw it ag ain as they approached the intersection w ith Snapps F erry Road. The offi cers were tra veling at a speed offorty-five to fift y miles per hour

in pursui t. They obser ved the other vehi cle i gnore the stop sign at t he intersec tion wit h Snapps Ferry Road. The vehic le turned onto Bol ton Road which leadsto the Bolton Tr ailer Par k. The vehic le turned onto Bai ney Broyles Road, a c ul-de-sac wi thin the t rai ler park
. The vehicle stoppe d at the dead end. The officers pulled in behind the vehi cle. The cruise r’s emergency equipment was activated and “take-down ” lights were shining i nto the vehi cle.

The passenger got out and ran toward t he front of the Nissan and toward
a wooded area with a fence. The dri ver got out a nd r an diagonall y toward the cruiser and around a trai ler. Off icer Davis pu rsued the passenger and Officer-4-

Ward p ursued the driver. The passenger disappeared i nto an overgrown f ield. Officer War d app rehen ded th e drive r, who was th e Def enda nt. Offic er W ard handcuffed theDef enda nt a nd br ough t hi m back t o the cruiser. Officer W ard noticed that the Defendant smelled of alcoho l. The Defendant stated that he was not dri ving . 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 te st usin g the Intox imeter 3000. The D efen dant’s blood alcoh ol leve l at 3:08 a.m. w as .18 %. Th e Def enda nt’s drivingrecord indi cated that his li cense had been revoked. The Defendant fai led the one leg stand and t he nine-step heel-to-toe sobri ety 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 ther e and then wentto a place called “the hil l” or “ Houston Valley. ” He returned t o the Hideaway at some poi nt and was asking people to give him a ri de back to his car, and David El kins obliged. Elkinstestif ied that Gr ay was intoxi cated and that Elkins was driving the vehicle. Elkins testifi ed that after he stopped the vehi cle in t he trailer park, b oth he and the Defendant got out on the passenger side because Elkinswas driving
on a revoked license and had a stri ng of twenty- eight convi ctions for burglar y of automobiles and theft offenses. The Defendant test ified t hat Elkins drove and thathe remembered nothing unt il he “more or less woke up in j ail.” The Defendant did state that when the vehi cle stopped, Elkins touched him on the shoulder an d said “run.”-5- The Defendant was convic ted ofdriving under the inf luence, driving on a revoked license and felony evading arr est. He now appeals his convictions.

In his fi rst iss ue, the Defendant contends that theevidence was insuf ficien t to suppo rt the verdic ts of guil t. When an accused chal lenges the suffi ciency of the convicti ng evidence, t he standard i s whether, af ter revi ewing the ev idenc e in the light most favorabl e to the p rosecution , any rational t rier 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 t he credibi lity of the witnesses, the weight and value to be g iven th e evid ence , as we ll as all factual issues ra ised 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, 62 3 (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 verdi ct approved by t he trialjudge accredi ts 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 allinf ere nces the ref rom. Cabbage , 571 S.W.2d at 835. Because a verdict

of guilt removes the presumption of i nnocence and replaces it with a p resum ption o f guil t, the acc used has the burden i n this cour t of illustrati ng why the evidence is insufficient to support the verdic t retur ned by the trier of fact. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 198 2); Grace , 493 S.W.2d at 476.-6- The Defendant chall enges the suff iciency of the evidence by suggesting thatOfficer

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 vehicl e passed the police cruiser, Officer W ard
was driving and had to conce ntrate on avoiding an accid ent. He also sugge sts thatthe li ght in the area was insuffi cient to fully ill uminate his face. Offi cerDavis
was not looki ng at the ot her vehicle, but at the side of t he road. The Defendant
a lso not es 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 drivingwas well-l it. Of ficer Ward testifi ed that the person he saw in the d river’s seat was the Defen dant. There is no evi dence that suggest s thatthe re w as t ime forthe 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 Offi cer 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 si de. Offi cer Davis pursued the passenger. Officer Ward ran after t he driver and apprehended him. Th at perso n was th e Defe ndant.

After reviewing the evidence in the record in thelight most favorabl e to the State, we c an o nly conclude t hat there was ample di rect and ci rcumstantial evidence to show that t he Defendant was dri ving the vehi cle on a public r oad. This proof is also suff icient to show that t he Defendant committedfelony evadi ng arrest , “while opera ting a m otor ve hicle o n any street, ro ad, alle y or hig hwa y in-7-

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 t hat the trial court err ed by fail ing to gran t his motion for acquit

tal aft er the close of

the State’ s proof. A moti on for judgment of acquittalraises a quest ion of l aw 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. Cri m. App. 1983). I n resolvi ng this quest ion, thetrial cou rt's only
concern is the legal suf ficiency of t he evidence and the trial court is not per mitted to weigh the evidence i n reaching i ts determinat ion. Adams , 916 S.W.2d at 473. An appellate court must appl y the same standard as a trialcourt when resolvi ng issues predi cated upon the gr ant or denialof a motion for judgment of acqu ittal. Id. Having determined that the evidence was suf ficien t to support t he Defe ndan t’s convicti ons, we must conclude t hat the trial court properly deni ed the motion for acqu ittal. Thus, this issue ha s no m erit.

As his thi rd issue, the Defendant contends that he was twice tried f or the same offense, violative of the p rovisio n aga inst do uble jeopardy as guar anteed by the Fift h Amendment to the United States Constit ution and Art icle I , secti on 11 of the Te nness ee Co nstitution. The Defendant was tri ed on one count of D UI,
one count of driving on a revoked l icense, and one count of felony evading arrest
on August 7, 1996. The jury was unabl e to reach a de ci sion and the trial cou rt granted a mistri al on the Defendant’s motion. The Defendant was tr ied again on those offens es on September 25, 1996, and was convicted.-8- The Defendant asserts that at his fi rst tr ial, t he trialcourt reduced the charge of felony evading arrest to misdemeanor evading arrest because no court reporter wa s prese nt. He argues that to be charged and tr ied again for felony evading arrest constit utes double jeopardy because jeopardy at tached at the fir

st trialfor that

offense. The State co unters that there is nothi ng in the record that indicates that the c harge for fel ony evading arr est was reduced and t hat 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 r ecord is devoi d of evidence that the charge was reduced at the first trial. The only evidence of this i s cont ained in statem ents made by the Defendant i n his motion f or new trialand in his brief on appe al. We reite rate that the al legations contained i n pleadingsand state ments made by counse l during a hearing or a trial are not evide nce. The same is true with regard to t he recitat ion of fac ts and argument contained in a br iefsubmitted to th is Cou rt. 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 thatthis i ssue has been waived because t he 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 fi nal issue, t he Defendant argues t hat the trial court erred by allowing the State to cr

oss-examine the Defendant and a defense witness regar ding the witness’ prior convi ctions. David E lkins te stifi ed that he was driving the Defe ndan t’s vehicle when t hey passed the poli ce cruiser and attempted to evade-9-

the m. He testif ied that h e was driving o n a revoked li cense and tri ed to av oi d being seen as the driver so he slid f rom the driver’s seat out the passenger si de door behind the Defendant . Elkins admitted t hat he had a stri ng of twenty- eight
conv iction s. On redirect , Elkins stated that he was only acquainted with the Defendant but was notfr ien ds wi th t he Defenda nt. On recross examinat ion, the State questioned whether the Defendant was pr esent when Elkins was arrested forthe offense for which he was convicted and El kins answered in the af firmati ve. Defense counsel ob jected. The trial court issu ed an instr uction to the jury as follows: “Now, members of the jur y, just in case you have any problem with that, thatdoes not implica te the defendant on trialhere today in any way with these charges for which t his defendant (sic) has

been convicte d. He’s no t involved with those charge s.” The D efe ndant testif ied and the State cross-examined t he Defendant regarding whether he li ved with David El kins and gave offi cers 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 t hat this line of cross-examinat ion was prejudici al 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 . C t. Crim. A pp. R. 10(b); State v. Kill ebrew , 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 f rom 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 provi des that: “A party may offer evidence-10-

by cross-examinat ion, extrinsic ev idence or both, tha t a witness is biased in favor of or prejud iced aga inst a party or another wit ness.” As theAdvisory Commission C omment to the rul e notes, such evi dence is an important grou nd fo r impea chme nt. Thus, we findno error i n the S t ate’s cro ss-examinati on of defense witnesses regar ding the nature of their relati onship. Furt hermore, the trialjudge inst ructed thejury that the Defendant was not involved i n the charges against David E lkins. A jury i s presumed to have fol lowed a trial court's curative instruct ion 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. Cri m. App .19 87); State v. Bl ackmon , 701 S.W. 2d 22 8, 2 33 (Tenn . Cr im. App. 1985). The Defendant has fail ed to establ ish 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.

____________________________________ DAVID H. WELL ES, J UDGE CONCUR:

___________________________________ DAVID G. HAYE S, JU DGE

___________________________________ THOMAS T. WOODALL, JUDGE