# FILED
May 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9607-CR -00277 Appellee, ) ) Knox County V. ) ) Honorable Richa rd R. Baumgartne r, Judge ) DONALD C. L EE, ) (Felony murder, robbery, reckless ) endangerment, aggrav ated assault, and Appellant. ) vehicular homicide)

FOR THE APPE LLANT: FOR THE APPELLEE: Leslie M. Jeffress Charles W. Burson Attorney at Law Attorney General & Reporter 1776 Riverview

Tower 900 S. Gay Street Michael J. Fahey, II Knoxville, TN 37902 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Randall E. Nichols District Attorney General Gregory H. Harr

ison Assistant District A

ttorney General City-County Buil ding 400 Main Street, P.O. Box 1468 Knoxville, TN 37901-146 8 OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge-2- O P I N I O N The appellant, Donald C. Lee, was convicted by a jury of felony murder, robbery, reckless end angerment, aggravated assault, and vehicular

homicide. He was sentenced to life for the felony murder convicti on. This sentence was ordered to run consecutiv ely to the 37 years he received on the other convictio ns. He app eals raisi ng the fo llowing issu es for revi ew: 1) whether the evidenc e is sufficient to support a felony murder conviction; 2) whether the evidenc e is sufficient to support a v ehicular homicide conviction; 3) whether a state rebuttal witness was properly allowed to express his opinion regarding

the driver of the appellant' s vehicle; and 4) whether his sentence is proper. Upon review, w

e affirm the judgment of the trial cour t.

FACTS
The appellant entered the Super-X drug store in Knoxv

ille. He forced the pharmacist to open the safe and giv e him all Schedule II, III, and IV narcotics. A witness saw him l eaving the pharmacy i n a white truck. The dri ver of the white truck let the appellant out in an adjacent parking lot. The police imm ediately apprehe nded the driver. He in formed the polic e that th e appella nt left i n a brown Ford containing one passeng er. Approximately 25 minutes later the appellant was spotted by the poli ce and a high-speed chase ensue d. In an effort to get away, the appellant str uck the side of the police car.He erratically c ut in front of other motorists. He slammed on his brakes causing the police car to slam into the rear of his car. The appell ant eventually sw erved into the oncoming l ane of traffic and struck a Jeep. The appell ant's passenger and the dri ver of the Jeep were killed in the head -on collision.

I-3- In his first issue the appell ant contends that the evidence w as insufficient to support a conviction for felony murder. He argues that the killing of the victim did not occur during the perpetration of the robbery. He claims that he had successfully completed the r obbery and made a successful g etaway when the police chase ensued. We disagree.
The purpose of Tennessee's felony murder statute is to prevent the d eath of innocent persons likely to occur during the commission of certain inhere ntly dangerous felonies. The applicabl e statute reads in pertinent p art: First degree murder. (a) First degree murder is defined as: (2) A reckless killing of another committed in the perpetration of, or attempt to perpet rate any f irst degre e murder , arson, r ape, rob bery, burglary, t heft, ki dnaping o r aircraf t piracy. Tenn. Code Ann. § 39-13-202(a)(2) (1991). The app ellant's contention is simply that the robbery had been complet ed when he collided wi th the Jeep causing the death of its driver. We note that th e protraction of events over time and distance accentuate the problem of determining whether the underlyi ng felony had reached completion before the death occurred. However, other jurisdictions have hel d that a person i s engag ed in the commiss ion or p erpetra tion of a robbery while the criminal is trying to escape with the property taken in such robbery. Campbell v. State , 227 So. 2d 873 (Fla. 1969). F actors to be considered in determining whether there has been a br eak in the chain of circumstances include the r elationship between the under lying felony and the homicide in point of time, place, and causation. One commentator sug gests that in the case of flight, the most i mportant consideration is w hether the fleeing felon has reached a "place of temporary safety." LaFave, Substanti ve Criminal Law, § 7.5 (1986). We also note that the determination of w hether the act of escape or flight is a continuous part of the accomplished crime or w hether the defendant has reached a place of temporary safety is a question for the trier of fact. See Commonwealth v. Dellelo , 209 N.E.2d 303 (Mass. 1965).-4- In this case the appellant w as spotted by a police officer approximately 25 minutes after the robbery occurred. The appellant, in his brief, states that he and hi s a cc om pl ice p la nn ed to

re nd ez vo us an d s pl it

up th e f ru its of t he

ro bb er y. We find that a rational trier of fact could find, and indeed did find, that the homicide occurred in furtherance of the ro bbery. Nothing in th e record indicates that the appella nt had rea ched a pla ce of tem porary saf ety. The h omicide was clearly a result of the high-speed chas e necessitated by the appell ant's attempt to flee the area of the crime. It is a legitimate and logical assumption that one who plans a robbery and carries i

t out has also planned to escape from the scene of the crime. His flight is

an integral part of the cr ime. Since asportation is an element of robbery, the felony is s till in progress w

hile the defendant is fleeing from the scene with the stolen pr operty. We find the evidence sufficient to s upport the appellant's felony murder co nviction.

II
The appellant next contends that he cannot be convicted of vehi cular assault because there was insufficient proof that he was the driver of the vehicl e. We disagree.
Jury verdicts ac

credit state's witne

sses and resolve all evidentiary conflict s in the state's favor. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes , 874 S.W.2d 73, 78 (T enn. Crim. App. 1993). On appeal, the state is entitled to both the strongest legitimate view of the evidence and all reasonable inferences which may be dr awn therefrom. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). When appellants challenge the sufficiency of the evidence, this Court must only determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime bey ond a reasonable doubt. Jackson v. Virginia ,-5- 443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985).

The record reveals that th e vehicle was reg istered to the appellant. At trial two police officer

s testified that they observ ed the appellant driving the vehicle during the hi gh speed chase. Also, an uni nterested motorist identified the appellant as the driver of the car. Finally, a member of the rescue squad testified. He stated that w hen he arrived on the scene the appellant's car was found resting on the drive r's side door. The appellant' s right foot was entang led in the driver side floor

board, and he was trapped behi nd the steering wheel underneath the other passenger in the car.
Based upon the evidence suppli ed by several wi tnesses, a rational trier of fact could have concluded that t he appellant was driv ing the vehicle w

hen the deadly collision occurred. We find the evidence sufficient to support the appellant's conviction for vehicular assault.

III
The appellant next contends that the trial court erred i n allowing rebuttal testimony of a rescue squad worker in the form of opinion testimony. He argues that the rescue worker was not qualified as an ex pert in accident reconstr uction and should not have been allow ed to give his opinion

.
At trial the appellant attempted to defend the vehicular assault charge by proving that he was not driving the Ford when the collision occurred. In rebuttal, the state called the member of the res cue squad that extracted the appellant from the wreckage. The witness testified that he had years of experience in1 The rescue worker testified that

has been a paramedic f or over ten years and has been a member of the resc ue squad s ince 198 2. He testified that, as a m embe r of the rescu e squad , he has e xtracted bo dies from wrecke d cars somewhe re between 300 to 500 tim es. -6- removing individuals from wrecked vehicles. 1 He testified regarding the positions of the bodies in the appellant's car and the process of removal. He then gave his opinion that the appellant had been dr iving the car.
The record is ambiguous as t o whether the trial ju dge considered the rescue worker to be an expert. It does reveal that he considered the appellant's objection and allowed the rescue worker to state his opinion. W e think this decision was proper.
This Court finds that, had the proper procedures been followed, the rescue worker would have qualified as an expert. His extensive experience, skill, and training qualified hi m to testify in this capaci ty. Tenn. R. Evid. 702. However, regar

dless of his status as a ex pert or lay witnes

s, his testimony was proper. His testimony

was rationally b

ased on his perception and w as helpful to gain a clear understanding of his testimony. Tenn. R. Ev id. 701(a). Furthermore, we note, that if there was error regarding this testimony, it was harmless. The state produced thr ee other witnesses that t estified that the appellant was the driv

er of the vehicle. This is sue is without merit.

IV
In his final issue the appella nt contends that his sentences ar e excessive. He argues that the trial court misapplied enhancement fa ctors and improperly ran the sentences consecutiv ely.
When a sentencing issue is appealed, this Court shall conduct a de novo review with the presumption that the trial c ourt’s findings are cor

rect. State v. Byrd , 861 S.W.2d 377, 37 9 (Tenn. Crim. App. 1993).2 The ap pellant's pres entence report indica tes that he has bee n arrested and/or co nvicted fo r the followin g crimes : robbery, aggravated r

obbery, pos

session of

a control led substa nce, publi c intox icati on, cri minal tre

spassing,DUI, assaul t and battery, carry

ing a weapon with intent t o go armed, reckless drivi ng, evading ar rest, s everal moving vi

olati ons, and sever

al parole vi olati ons. It s hould be noted t hat the appel lant has been arreste d and/or convi

cted of sever

al of the above list

ed crimes o n more than on e occasio n. -7- The appellant was classifie d as a Range II offender. The trial court found that Tenn. Code Ann. §§ 40-35-114(1), (2), and (13) enh ancement factors applied to all of the appellant's convictions. The appellant offered no mitigation evidence. Our revi ew of the record sugges ts that none exists. After careful consideration, we find that the trial court follow ed the principles of sentencing

. The sentences imposed were pro per. This issue is without merit.
Regarding the issue of co nsecutive sentences, the r ecord reveals that the trial court found the appellant' s record of criminal acti vity to be extensi

ve. 2 The trial court also found that the appellant was clearly a dangerous offe nder whose behavior indicates little regard for human life and no he sitation about committing crimes in which the r

isk to human life is high. Furthermore, the appellant w as on parole when he committed these crimes. The trial court found that society needs protection from the appellant. We find that the tri al court correctly interpreted and applied Tenn. Code Ann § 40-35-115 i n ordering the appellant's sentences consecutively. This

issue is without meri

t.

CONCLUSION
After carefully consideri ng the appellant's issues , we find no error of law mandating reversal. A ccordingly, w

e affirm the judgment of the trial cour t.

__________________________-8- PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge