# FILED
October 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9608-CC-00378 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. CORNELIA A. CLA RK, PATRICK K. LEWIS, II, ) JUDGE PATRICK K. LEWIS and ) DONNA LEWIS, ) ) Appellants. ) (Evadi ng arre st, poss ession o f marijuana, reckless endangerment)
FOR THE APPE LLANT: FOR THE APPELLEE:
DAVID L. RA

YBIN JOHN KNOX WALKUP 2210 SunTrust Center Attorney General & Repor ter 424 Church St. Nashville, TN 37219 LISA A. NAYLOR (On appeal) Asst. Attorney General 450 Jame s Roberts on Pkwy. VIRGINIA LEE STORY Nashville, TN 37243-0493 136 4th Ave. S. P.O. Box 1608 JOSEPH D. BAU GH Franklin, TN 37065 District Attorney General (At trial) JEFF BURKS WILLIAM DON YOUNG, JR. Asst. District Attor ney General 227 Bridge St. P.O. Box 937 Franklin, TN 37064 Franklin, TN 37065 (At trial)
OPINION FILED:____________________
AFFIRMED IN PART; REVERSED A ND DISMISSED IN PART; AND REMA NDED IN PART JOHN H. PEAY, Judge1 As a conditi on of his prob ation on t his charge, Kelly was ordered to ser

ve twenty

days on con sec utive w eek end s in th e cou nty jail. 2 O P I N I O N

Defendant Patrick K. Lewis, II (“K elly”) was indicted fo r driving u nder t he influence, possession of marijuana, felony reckless endangerment, and evading arrest. Defendant Patrick K. Lewis (“Mr. Lewis”), Kelly’s father, wasindicted for evading ar rest, being an accessory after the fact in the evasion of an arrest , and tamper ing with evidence. Defendant Donna Lewis (“M rs. Lewis”), Kell y’s mother, was indi cted for aiding in an evasion of arrest, being an accessory after the fact i n the evasion of an arrest, and two counts of tam pering with evidence. All cases were consolidated for trial. The jury convicted Kelly of simple (misdemeanor ) possession of marijuan a , felony reckless endangerment, and evading arrest. It convicted Mr. and Mrs. Lewis of evading arrest and Mrs. Lewis of

one count of tampering with evidence. The trialcourt subsequently ent ered a judgment of acquittal on the t ampering with evi dence conviction.

After a hearing, Kelly wa s sentence d on the felony conviction as an especiallymitigated offender to nine tenths of a year incarcera tion, sus pended , and two yea rs probation. 1 On the misdemeanor possession charge, he was sentence d to si x months jail, susp ended, a nd eleven months, twenty-nin e days probation. For the misdemeanor

evading arrest conviction, he received six months’ j ai l, suspended, and eleven months, twenty-nine days probation. Kelly was als o fined $3,000 on the felony reckless endangerment offense, $2,000 on the possession offense, and $2,000 on the evading arrest offense. All sentences were run concurrently. M r. Lewis was sent enced to thirty days in j ail, suspended, and eleven months, twenty -nine days probation on the evading arrest charge and fined $2,500.Mrs. Lewis’ sent enc e was iden tical to her husband’s.2 The defendants Mr. Lewi s and Mrs. Lewis al so challenge their sent ences. In l ight of o ur disposit ion of th eir convi ctions, we find i t unnecessary to address th ese sentencing i ssues. 3 The defendants now join in this appeal as of ri ght challenging their convictions

for evading arrest. Defendant Kel ly also ch allenges his convic tion for reckless endangerment, asserts that the trial court erred in denying

his request for judici al diversion on his possession of marijuana charge, complains that his f ine on the possession charge was exces sive, and asserts

that his fines should be run concurrently rather than c onsecutively

. 2 Upon our review of the record, we rever se all three convictions

for evading arrest and dismiss those charges ; remand this matter for further proceedings on Kelly’s r equest for judicial div ersion on the possession char ge; and remand for reconsideration the fine impos ed for the possession offen se . In all other respects , we affi rm the jud gments be low.

FACTS On the evening of March 4, 199 4, the defendant Kelly met his friend, James Walter Inman, for

dinner at approximately 8:30 p.m., according to Kelly. During dinner, he drank approximately two beers. He l eft the restau rant between 10:00 and 10: 30 p.m. At approximately 11:30 p.m., Kelly was driv ing home headed east on state hig hway 96. As he came down a hill and aro und a blind curve, he w as temporarily blinded by oncoming headlights . Accordin g to his tes timony, “I was havi ng a very difficult ti me seeing. And I let

off the gas to slow down and the [oncoming] car passed me. And when it passed me, I realized that I w as up on the rear

end of another vehicle that w as stopped in the middle of the road.”

The other

vehicle belonged to Jas on Rauschenberger who ha d stopped to make a left turn onto Clovercr oft Road. Rauschenberger had s topped in order to allow
an oncoming car to pass. Acco rding to Ra uschenberger, as he began hi s left turn, a4

“[c]ar c[a]me from behind me like they w ere going to

pass me a nd hit me

in my l eftfront of my vehicle. . . . The o ther ve hicle w

ent off into the ditch and it knocked mine down the road.” Rauschenberger testified that the car th at hi t him had been “going v ery fast, probably 60 something miles an hour.” Kelly testi

fied that, as he realized he was about to collide with the turning vehicle, he “basicallyjust jerked the wheel to try to keep

from rearending the other ve hicle and go around the vehicle. And at the ti me that I did that, the best I can remember the vehic le turne d into me, into my car. And it caused me to
veer to the left an d go through a guardrai l and down into the ditch.” Rauschenberger suffered a strained neck muscle from the collision and Kelly suffered cuts to his hands.

Followingt he collision, Kelly was taken to a nearby hospital. Meanwhile, Officer Fedincio Medina arrived on the s cene of the accident. After spending about thirty minutes at the scene, Offi cer Medina went to the hos pital to speak with Kel ly. Officer Medinatestified that, while sp eaking with Kelly, he noticed “an odor of alcohol t ype beverage on his person and also smelled an odor of marijua na, smell of marijuana on him.” H e testified that Kelly had told him he had had a couple of drinks. He furt he r testified that he had then explained that h e wanted to administer a field sobrie ty test and that Kellyhad not cooperated in the administr ation of that test. Officer Medina te stified that he had then “advised [ Kelly] that [h e] would be going to the magistrate’s office to attempt to swear out a warr ant against him for DUI.” At that point, Officer Medina left the hospital and returned to the scene of the accident “to get the l icense of [Kelly] and do an inventoryof the vehicle.” Prior to leaving the hospital , he testified, he had told the nurses “that[he] would be returning back with warrants to attempt toget a bl ood alcohol drug screen on [Kelly].”

After he had returned to the

scene of the accident, Officer Medi na testified,5

he encountered Kelly’s father, Mr. L e wis. According to Officer Medina, Mr. Lewis approached him as he was conducting his inventorysearch of the vehicle and asked him whatauthority he had to be sear ching the car. By thi s time, Officer Medinahad found a film canister

in the car that contained “g reen plant material.” This w as later determined to be approximately one-hal f gram of marijuana. Officer Medina testified that he had told Mr. Lewis t hat he was th e investigating officer and that he was going to go to the magistrate’s office to attempt to obtain warrants against Kelly for DUI and possession of
a controlled substance, and that “as soon as [he] got

the warran t that [he] would be returning back to the hospital to place [Kelly] under arrest for any o ther charges that stemmed out of the investigation.” He also testified that, after obtaining the warr ants for Kelly’s arrest, he had called the hospital and told Sandra Isenberger, one of the nur ses there, to “tell the family that I was en route to the emergency room to ser ve the warrants on Patrick Kelly Lewis.”

Mr. Lewis testified t hat, after rec eiving a pho ne call, he and his wife had gone to the hospital. While his wife remain e d with his son, he went to the acc ident
scene. He denied that he had had any c onversation with Officer Medina th ere. He testified that he had remained there long enoug h to see what was being done with Kelly’s
car and then returned to the hospital. He further testif ied that he never saw Office r Medinaat the hospital, was nev er told by anyone at the hospital that he could not leav e, and was never told by

anyone that his son was under arrest.

Mrs. Lewis testifiedthat, on the night in ques tion, she never understood her
son to be under arrest and that she never saw or spoke with Officer Medin a. Sh e testified that, after Kelly had been treated, “he asked the doctor if they were through. And the doctor said yes

and he [Kel ly] asked to go the re stroom. He c

ame back out, my6

husband and I were standing there talking to the doctor. Kelly again asked if there was anything else. And the doctor said no.” At that point, according to Mrs. Lewis, Kelly left to go wait for them in the car. After some more discussion w ith the doctor, she testified, she had suggested that her husband “go on out and check on Kelly.” Her husband then left, she continued to speak to the doctor , and then she left and joined her so n and husband in the c

ar. They then left the hospital. Mrs. Lewis testified that no one ever told her she could not leave the hospital with her son.

Kellytestified that Officer Me dina had not told him he was goi ng to get warrants for him, did not tell him to st ay atthe hospital, and did not tell him he wasgoing to be back later to talk to him. He further testified that, w hen he left the hospital to wait in the car, no one had told him to w ait there for Officer Medina or that Officer Medina was on his way

back to talk

with him.

Susan Jenna Scarbrough was the charge nurse on duty on the night in que s tion and assisted in treating Kelly. She testified that Kelly had been there approximately an hour before his parents arr ived. She testified that Officer Medina had spoken to her technician, Renee, and that Renee had relayed theirconversation to her. She testified that, based on what R enee had told her, she advised her supervisor, Sandra Isenberger, that “Trooper Medina had goneto get some warrants o r something and he
was on his way back.” She also testified that she tol d Renee “to inform the family that Troope rMed ina needed to d iscuss some further busi ness about th e wreck w ith them” and that, to her knowledg e, Renee had done so.

Sandra Isenberger testified that Officer Medina had called the hos pital and said “to keep [Kelly] there that he was on his wa y back, he needed to see them.” She7

f urther testified that, “At one point i n time I told [Kelly and hi s parents] that Troop e r Medinawas comingback and wanted to talk to them.” Renee did not testify. Officer Medinaadmitted that he had not placed Kell y under arrest at the hospital. He testified outside the presence of the jury that the defend ants “later turned themselv es in to the sheriff’s office in W illiamson County.”

ANAL YSIS In their first issue, the defendants contend that the evide nce was no t sufficient to convict any of them of evading arrest. We agree.

When an accused challenges the sufficiency of the convicti ng evidence, we must review the evi dence in t he li ght most favorable to the pro secution in determining whether “ anyrational trier of fact could have found the esse nt ial elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or r e-evaluate the evidence and are required to afford the State the strongest leg itimate view of the proofcontained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibi lity of witnesses, the weight and valueto be given to the eviden ce, as well as factual issues raised by the evidence are resolv ed bythe t rier of fact, not this Court. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and approv ed by the trial judge accredits the t esti mony of the witnesses

for the State , and a presumption of guilt re places the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).3 This sta tute has s ince bee n rewritten , effective J uly 1, 1995. See T.C.A. § 39-16- 603 (Supp. 1995).
4 Officer Medina t estifi ed that he had t

o obtain a war rant pri or to arresting Kelly “for a violation of the law that wasn’t comm itted in my presence on a m isdemeano r type.” See T.C.A. § 40-7- 103. 8 When the alleged offenses were co mmitted, o ur criminal code prov ided that it was “unlawful for any person to intentionally

flee from anyone the person knows to be
a law enfor cement o fficer a nd the pe rson: (1) K nows the officer is attempting to arrest the person; or (2) Has been arrest ed.” T.C.A. § 39-16-603(a) (Rep l. 1991). 3 That is, a person could evade an arrest either while an officer was attempting to effect it, o r after he or she had actually acc omplished it. In this case,there is no dispute tha t Officer Medinahad not yet placed Kelly unde r arrest asof the ti me he “fl ed.” Acco rdingly, we need concern ourselves only with determining whether K elly intentionally fled from Officer Medina whi le knowing

that Officer M edina was a ttempting t

o arrest hi m.

The facts of this case establish that, at the time Kelly left the hospital, Officer Medina was on his way to attempt an arrest. He had not yet begun the attempt when the Lewis family left the hospital. In order to e ffectuate the arrest under the circumstances

of this case, Officer Medina had to do tw o things: first, get an arrest warrant4 and second, (attempt to) serv e that warrant and place Ke lly under arrest. As of the time Kelly left the hospital, Officer Medina had accomplis hed only the first step.

Thus, taking the evide nce in the light most favorabl e to the S tate, Ke lly and his father knew that Officer Medina was attemptingto obtain a warrant for Kelly’s arrest at the time they left the hospital . Attempting to obtain a w arrant is not the equiv

alent of attempting to arrest so meone. Of ficer Medina had not yet begun his attempt to arrest Kellyat the time the Lewis family left the hospital. Indeed, we are perplex ed as to how any police officer could attempt to ar rest someone when the officer is not in some5 If the St ate’s position i s correct, where would t hat leave Kel ly Lewi s had Officer Medi na been uns ucc ess ful in h is que st for an ar rest w arra nt? W ould h e be r equ ired to rem ain at the h osp ital un til Officer Medina had gotten arou nd to noti fying h im that he was now fr ee to go? Kell

y Lewis was either under arrest or he was not. If he was not,he was free to go unless Officer Medina was in t he process of attem pting to arre st him. O fficer Me dina had not reac hed that s tage at the time Ke lly left the hospital. 9 physical proximity to the per son he or s he is attempting to arrest. Common sense dictates that, in order for an officer to arrest someone, he or s he must be in a position to take physical custody of tha t someone at that ti me : not a t some undetermined time in the future. Thus, the concept of fleeing from an officer n ecessarily invol ves the concept of fleeing from the presenc e of an officer. The State would have us hold that a po lice officer can effectuate an attempted arrest by telling someone to “sit right there until I get backwith an arrest warrant.” We decline to do so. 5 The convictions against Kelly Lewis, Patrick Lewis, and Donna Lewis for evading arrest are reversed and dismissed.

In light of our

holding on the defendants’ first issue, we find it unnecessary to address thedefendants’ issue concerning the trial court’s supplemental instr uction to the jury on the charges of evading arrest, and the issue concerning the constitutionality of the evading arrest statute.

Defendant KellyLewis next contends that the evidence w as insufficient to support his con viction for felony reckless endangerment. Reckless endangerment is committed when a person “reckl essly engages in c onduct which pl aces or m ay place another person in imminent danger of d eath or serious bodily injury.” T.C.A. § 39- 13- 103(a) (Repl . 1 991). Kelly argues that the State’s proof established no more than that he had acted negligently when he rounded th e curve and was unable to stop his car before colliding with the victim’s vehicle. The State disagrees.6 The only proof as to how fast Kelly

was drivi ng was the other driver’s testi mony that he had look ed in h is rea rview mirr or, be gan to turn and “ the c ar co me from behin d m e goin g ver y fast, prob ably 60 something miles an hour .” In any event, t he speed was too fast to all ow Kelly

to stop upon f inding a car in hi s lane.

7 Off icer M edina testifie d tha t he h ad sm elled t he od or of ma rijuan a abo ut Ke lly’s per son and in the interior of

the car. Ev

en taking t his test imony at face v alue, i t does not pr

ove that Kel ly was under the infl uence of marijuana at the ti me he was driving. For one thi ng, someone else could have smoked it in his car in his p resenc e. Even if K elly himse lf had sm oked it, there is no pr oof in the re cord as to when he did so. 1 0

The conduct in which Kelly e ngaged was driv ing at a high rate

of speed 6 at nightafter

consumi ng two beers 7 into a curve beyond which lay an intersection he could not see. We think it obvious beyond the need to comment further that such conduct may place other drivers and/or passengers and/or pedestrians “in imminent danger of death
or serious bodily inj ury.”We need, then, determine only whether Kelly engaged in this conduct “recklessly.”

A person drives reckl essly when he “is aware of but

consciously disregards
a substantial and unjustifiable risk that” his driving may put others in imminent danger of d eath or serious injury . T.C.A. §§ 39-11-106(a)(31) ; 39-13-103. “The risk mus t be o f such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all thecircumstances as viewed from the accused person’s standpoint.” T.C.A. § 39-11-106 (a)(31).

The risk of putting others i n imminent dang er of dea th or serious bodily injuryis, prima facie , “of such a nature and degree that its disregard constitutes a gross deviation from the standard of care.” Moreover, the proofindicates that Kelly w as driving so fast and under such circumstances that, when he finally saw Mr. Rauschenberger’s vehicle, he was not only unable to s top, but even after collidi ng with the truck, w en t careening into a ditch across the ro ad. Th is manner of driving, und er all the circumstances, even as viewed from Kelly’s standpoint, w

as a gross deviation from the1 1

standard of care that an ordinary person would exerci se.
Thus, the only

remaini ng issu e is wh ether Ke lly w as awar e of the r isk created by

his driving but c

onsciously disreg arded it. We find that the proof, taken in a light most favorable to the State, suppo rts the inference that Kelly was and did. His description of the collision at trial was as follows:

Well, I remember coming down the hill , you come down the hill and go around a turn. And it was dark, there are not any lightsaround. And as I came aro und the turn there was another car’s headlights in my eyes. And it w as oncoming and I was having a v

ery difficult time seeing . And I let off the gas to slow down and the other car passed me. A nd when it passed me, I realized that I was up on the re ar end o f another vehicle that w

as stopped in the middle of the road. And I basically just jerked the wheel to try to k eep from rearending the other vehicle and go around the vehicl e. And at the time that I did that, the best I can remember the vehicle turned into me, into my car. And it cau sed me to veer to the left and go through a guardr ail and down into the ditc h. Kellyadmitted that he had had two beers prior to commencing his drive. Thus, he was
aware that he had consumed alcoholwithin a short time of getting behind the w heel of his car. As he approachedthe in tersection at which the accident occurred, he knew it
was darkand that he was coming dow n a hill and approaching a turn. Although he had
a “very difficult time seeing” because of another car’s headlights, his response is merely to “letoff the gas.” While this response was certainly to o little, too late, it does

indicate that Kelly kn ew he was driving too fast. Moreover, everyone who drives on the public roadways is aware that there is the ever- present possibility of other vehicles in front of you: whether you can see th em or not. When driving down a hill and ar ound a curve, blinde d by oncoming headlights, it is particularly i mportant to slow your speed so as to be able to stop if there is a vehicle ahead of you that you cannot yet see. Kelly di d not do this. Even after taking his f oot off the accelerator, he is still doing “60 som ething” miles an hour when he veers around Mr. Raushenberger’s truck.1 2 We are sympat hetic to the defendant’s plea that “[e]very automobile accidentshould not be transformed into a r eckless endangerment pr o secution.” However, the coll ision w hich occurred in this case is not typical of “every automobile accident.”Rather, the collision i n this case is typical of automobile accidents in which
one or more of the drivers i s driving reckl essly. It is certain ly negligen t to drive at such
a speed that you ca nnot stop in time to avoid hitting a car in your lane attempting to make
a legal left turn. It is far more than negligent -- it is reckless -- to do so at night, as you are approaching a blind cu rve, and after you have had a couple of drinks.

In State v. Ramsey , 903 S.W.2d 709 (Tenn . Crim. App. 1995), this Court considered a de fendant who had been speeding and, as his car entered a rig ht turn, drifted into the oncoming lane, hitting a pick-up truck. The collision k

illed the passenger in the defendant’s car. There was no evidence that the defendant had been under the influence of any alco ho l or drugs. Based on the high rate of speed and the curvy, hilly conditionsof the road, this Court found that the def endant had operated his vehicle in a reckless manner so as to be guilty of reckless endangerment. Si milarly, in State v. Clifford Bidwell , No. 03C01-9308-CR-00287, Bradley Coun ty ( Tenn. Crim. Ap p. filed Aug. 30, 1994, at Knoxville), th is Court affirmed a conviction of reckless endangerment where the defendant, with a polic e offic er in pursuit, “drov e his automobile at a high r ate of speed in a congested area through se veral stop signs and through a police roadblock.” Although no one was hurt as a result of the defendant’s actions, this Cour t found thatthe evidence was “ov

erwhelming.”

This issue is without merit.

The defendant Kelly next contends that the trial court erred because it did1 3

not in st ru ct

th e j ur y o n t he le ss er of fe ns e of m is de me an or

re ck le ss en da ng er me nt . We first note that trial judges must instruct the juryon all lesser offenses wher e there is any evidence to support them, State v. Wright , 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981), but“where the record cl early shows that the defendant was guilty of the greater offense and is devoid of any ev iden ce permitting an inference of gui lt of the lesser offense, it is not error to fail to charge on a lesser offense.” State v. Boyd , 797 S.W.2d 589, 593 (Tenn. 1990).

Reckless endangerment is a Class A misdemeanor unless it is committed with a deadly weapon, whereupon it is a Class E felony. T.C.A. § 39-13-103(b). There is no evidenc e whatsoever that Kell y committed reckless endangerment other than by d ri ving his car in a reckless manner. A deadly weapon i s defined as “[a]nything that in the m anner of its use or intended use is capable of causing death or serious bodily injury.” T.C.A. §39- 11-106(a )(5)(B) (emphasis added) . As we have prev iously discussed, the proof establ ish ed that Kelly drove hi s automobile in a manner whi ch was quite capable of causing death or serious bodily i njury. Indeed, with respect to the proof about how the wreck occurred, there is no proof in the recor d that he drove his car in any other
manner. Therefore, it is immaterial that we have previ ously recognized that automobiles
are not, under all circumstances, deadly weapons. See Stat e v. Scott W. Long , No. 03C01-9301-CR-00032, Greene County (Tenn. Crim. App. file d Au g. 19, 1993, at Knoxville). Under the circumstances o f this case, the defendant Kelly’ s method of driving his c ar rendered it a deadly w eapon. There being no proof in the r ecord that Kel l y committed the offense of reckless endangerment i n any other way, no instructi on on misdemeanor

reckless e ndangerment was requi red. Only when there

is some evidence upon which reasonable minds could convict the defendant of a particular lesser offense is the court required to instruct regarding that offense

. Johnson v. State , 531 S.W.2d1 4

558, 559 (Tenn. 1975). This issue i s without merit.

The defendant Kelly’s n ext thr ee issues challenge the propriety of his sentences. We will first address his contention that the tria l court abused its discr etion in failing to sentence him to j udicial diversion for the misdemeanor offense of possession of marijuana. Because Kelly has notbeen previously conv icted of a felony and because this offense is a Class A misdemeanor, he is eligi ble for judicial diver sion on this offense. T.C.A. § 40-35 -313(a)(1). His conc urrent conviction for felony reckless endangerment does not prohibit the granting of judicial diversi on. See State v. Eric Lemart Harris , No. 03C01-9511-CC-00363, Washington County (Tenn. Crim. App. f iled Dec. 30, 1996, at Knoxville).
This Court has previous ly held that

judicial diversion is similar in purpose to pr etrial diversion

and is to be imposed within the di scretion of the trialcourt subject o nly to the same constraints applicable to prosecutors in applying p r etrial diversion under T.C.A. § 40-15-105. The refor e, upon rev

iew, if < any substantial eviden ce to support the refusal’ exists in the record, we will give the trial court the ben efit o f its discretion. Only an abuse of that discretion will a llow us to overtur n the trial court. State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992) (cit ation omitted). And, in making its determination of whether to grant judici al diversio n, the trial court must consider all of the following factors:

(a) the accused’s amenability to correction, (b) the circumstances

of the offense, (c) the accused’s criminal record, (d) the accused’ s social history, ( e) the statusof the accused’s physical andmental health, and (f) the deterrence value to the accused as well as others. The trial court should also consider whether

judicial diversi on will serve the ends of justice -- the interes

ts of the public as well as the accused. State v. Bonestel , 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993) (cit a tion o mitted). A dditional factors to be considered are Kelly’s attitude, his behavior since arr est, hi s1 5

home environment, current dr ug usage, emotional stabil ity, past e mp loyment, general reputation, famil y responsibilities, and the attitude of law enforcement. See State v. Washington , 866 S.W.2d 950, 951 (Tenn. 1993).

In this case, the trial cou rt first denied judicial diversion to Mr. and Mr s. Lewis on their convictions for evading arrest. In doing so, the court cited as reasons that (a) the defendants had not taken full respo nsib ility for committing the offenses; (b) the nature of the crimes (“It is the k ind of offense when one attempts to interfere or to evade
an officer attempting to

do their duties for

which persons must be hel d accountable”); and (c) judicial diversi on would not serve the public’ s interest and would depr eciate the seriousness of the offenses. The t ria l court further stated that it considered judicial div ersion to be “reserved for those who fully understand and accept the nature of th e facts [sic] that they ha ve commit ted.” In then turning to Kel ly’s request for jud icial diversion, the court stated, “I do not find it’s appropriate in [Kelly ’s] case to grant div

ersion . . . for many of the reasons I have just recited a nd in add ition, [K elly] was the prim ar[y] actor in this case.” The court went on to st ate, “I t hink there’s a great deal more responsibility

that has to be accepted in this case. . . . These are serious [charges], they must not be depreciated and societ y must be protected[.]”

In this case, the court below made no spec ific findings as to Kelly’s amenability

to correction. As to

the circumstances of the offenses, th e court noted only that Kellywas the“primar[y] actor i n this case.” This observ ation was relevant on ly with respect to the evadingarrest convictions,however. There we re no other “actors” in the possession and endangerment crimes. It w as undisputed that Kelly had no criminal record. As to his social history, the court found that he had a “stable prior home life, full work history, participation in civic activ ities, and other p roductive participati on in the1 6

system.”In the presentence report, Kell y’s descriptions of his

physical and mental health
were “excellent” and “good,” respectively . Although he had admitted at tr ial to having twice tried marijuana in coll ege (Kelly was twenty-nine year s old at sentencing), he denied current

use of it as well as any other illegal drug and reported no substance abuse problem involving alc

ohol. The court made no specific findi ngs with res pect to the deterrence value of denying judicial diversion on this charge. As to whethe r diversion would serve the ends of justice, the court stated only that the charges were serious, must not be depreciated, and society must be protected.

Because the trial court failed to consider all of the factors appropriate to the grantor denial of judicial dive rsion, and because its statement of the reasons for denial is vague and conclusory , we find the record inadeq uate to allow appropriat e ap pel late review. Accordingly, w

e remand this matter

for further proceedings in or der for the court below to reconsider Kelly’ s request for judicial diversion on the simple possession offense. We further point out that the amount of marijuana found i n Kelly ’s car was minute. Therefor

e, the “s eriousn ess” of thi s particular charge i s questionable. As for Kelly’s refusal to accept responsibi lity for this particular offense, we a gree with the defendant thathis continued denial of guilt sho uld not, in and of itself, preclude judicial diversion. “An admissio n of guilt is not a vali d prerequisite to the g ranting of . . . diversion.” State v. T revis Mayn ard , No. 01C01-9303-CC-00086, Ruther ford County (Tenn. Crim. App. filed Feb. 24, 1994, at Nashville). Kel ly denied that the marijuana was his at his trial: that the jury found him gui lty does not, ipso facto , prove that he was l ying and does not, ipso facto , prove that he is not amenabl e to correction.

Kellyalso complai ns th at the fine im posed for the simple possessi on charge is excessive. The max imum fine for the marijuana charge i s $2,500, T.C.A.1 7

§ 40-35-111(e)(1), and the defendant was fined $2,000. This was the fine assessed by the jury and then imposed w ithout further comment by the tr ial court.

In imp osing defendant Kelly’s sentences, the trial court found m ultiple mitigating factors and no enhancement factors. Fines, l ike the length and manner and service, are to be “based upon the factors prov ided by the 1989 Sentencing A ct, which include < the defendant’s ability to pay that fine, and other factors of judgmen t involved in setting the total sentence.’ ” State v. Marshall , 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). It appears to us that Kelly’s fine should reflect the same minima list approach that the other portions of

his sentences do. Accordingly, w e remand the issue of Kelly’s fine for the simple possession charg e for reconsideration by the trial court in lig ht of al l appropriate sentencing factors.

Finally, defendant Kelly contests the “consecutive” nature of his fin es. In addition to the $2,000 fine for the marijuana charge, Ke lly was fin ed the maximum of $3,000 for the reckless endangerment offense. Although h is sente nces were run concurre ntly, the sentencing court denied his post-trial motion that the fines be run concurrently. Kelly argues that the trial court’s decision was error and urges this Court to reconsider its decisi on on this issue in State v. Woodcock , 922 S.W.2 d 904 (Tenn. Crim. App. 1995).

In Woodcock , this Court considered a defendant who had been c onvicted of and sentenced for multiple offenses. The tr ial court o rdere d the sentences to run
concurre ntly. The issue on appeal was w hether the fines imposed in conjunction with the sentences also ran concurrently. We held that “the trial court’s imposition of concurrent

< sentences’ under T.C.A. § 40-35-115 refers only to the defend ant’s t e rms of1 8

imprisonmen t and does not imply that fines are to be paid concurrently , or noncumulatively, as w

ell. . . . [U]nder our i nterpretation of the language of T.C.A. § 40-35-115, any reference to c oncurrent sentences alone does not include concurrent fines by implication.” Woodcock , 922 S.W.2d at 918 (emphasis in original) . We continue to abide by our holding in that cas e. The court below declin ed to run the fines concurrently and did not err by so doing. This issue is without meri

t.

In summary, we rever

se and dismiss the

convi ctions for evading arrest entered against Donna Lewis, Patrick K. Lewis, an d Patrick Kelly Lew is II. We remand forfurther proceedings in accordance with this opinion consideration of Pa trick Kelly Lewis II’s request for judici al diversion on his c onviction for simple possession of marijuana. We further set aside the lower court’ s fine of $2 ,000 against Patrick Kelly Lewis II on the possession charg e and remand for further proceedings on the amount of the fine in accordance with this opinion. In all other respects, the judgments below are affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ WILLIA M M. BARKER, Judge

______________________________ JERRY L. SMITH, Jud ge