# FILED
April 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. No. 01C01-9509-CC-00302

Appellee, * LINCOLN CO UNTY VS. * Hon. Charles Lee , Judge JAMES RAY BARTLETT, * (DUI, Driving on Revoked License, Appellant. * Reckless Drivin g, Evading Arrest )

For Appellant: For Appellee: A. Jackson Dearing, III Charles W. Burson 117 S. Main Street Attorney General & Repor ter Shelbyville, TN 37160 (on appeal) Eugene J. Honea Assistant Attorney Gener al Robert Peters 450 James Robertson Parkwa y 10 0 F ir st Av e. , S .W. Nashville, TN 37243-0493 Third National Bank Winchester, TN 37398 Michael Mc Cown (at trial) Attorney General Marshall County Courthouse Lewisburg, TN 37091 Charles Crawford Assistant District A

ttorney General 215 E. College Street Fayetteville, TN 37

334

OPINION FILED:__________________

AFFIRMED AS MODIFIED

GARY R. WADE, JUDGE2 OPINION The defendant, James Ray Bartlett, w as indicted for DUI, driv ing on a revoked license, five

counts of reckless driv ing, resisting ar

rest, evading arres

t and reckless endangerment. At the close of the state's proof, the tr ial court granted the defendant's motion for acquittal as to the cha rge of resisting arrest. The jury rendered guilty v

erdicts as to the remaining counts. After setting asi de the conviction for reckles

s endangerment, the trial c ourt sentenced the defendant to ten months for the DUI; four months and fifteen day s for driving on a re

voked license; five months for the reckless driving convic tions, all of which w

ere merged as one offense; and ten months for evading arr est. The transcript of the tri al indicates sentences were ordered to be served consecutiv

ely for an effective sentence of twenty-nine months fifteen day s with the minimum serv ice at seventy-fiv

e percent. The judgment form indicates concur rent sentencing for all new convictions. The trial court revoked the defendant's community corrections senten ce for prior convictions; these new sentences wer e ordered to be served cons ecutively to the pri or offenses according

to the judgm ent form.
In this delayed appeal, the de fendant presents the following issues for our review: (I) whether the evidence was sufficient to support his

convictions; (II) whether the tri al court erred by all owing the state to introduce inadmissible char acter evidence in vi olation of Rule 404, Tenn. R. Evid.; and (III) whether the tr

ial court erred in the l ength and manner of sentence imposed.3 We find no error and affirm the judgment of the trial c ourt. The judgments are modified to the ex tent necessary to reflect concurrent sentencing for these offenses which are to be ser ved consecutively

to the prior convicti ons.
We preface our discussion of the issues by the procedural history of this case. At the conclusi on of the sentencing hearing on December 13, 1994, the hearing on the motion for new trial was set for a dat

e almost two months later. The motion for new trial w

as not timely filed. At the hearing on the motion, the defend ant, on t he advice of his cou nsel who sa w no issues for appe al, "withd r[e]w" his motion for a new trial before it was heard and informed the trial court that he would file a writte n "waiver." Thus, ther e was no hearing on the moti on and no order of disposition at that time. Defense counsel did not file notice of appeal

.
On May 1, 1995, defendant's new ly appointed appellate couns el filed a notice of appeal and the trial cour t granted a delayed appeal.Because no hearing on the motion for new trial h ad been conducted, the cause was remanded for that purpose. State v. James Ray Bar tlett , C.C.A. No. 01C01-9509-CC-00302, Order (Tenn. Crim. App., at Nashv ille, Feb. 26, 1996). The tri al court denied a new tr ial and this appeal followed.

At trial, Cliff Page, w

ho 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 ste pdaughter's Sunbird near th e Dairy Queen. Page i nformed Officer Richard Howell , who was parked near by in his police cr

uiser, that he had seen the defendant driving "al l over the road[,] both l anes." Later, Page, who acknowledged his dis like for the defendant, saw him dr iving the same car near the4 courthouse square. Page did not know how many passengers accompanied the defendant at the

time and coul d not recogn ize 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 bee r between 10:00 P.M. and midnight. Ms. Repasky watched the defendant leave the store, step int o a vehicle, and driv

e in the direction of the courthouse sq uare.

Sam Rollins, a neighbor o f the defendant, recalled seeing hi m 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 10:0 0 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 th ere was at least one other pass enger in the defendant's vehi cle.
Deputy Sheriff Craig Bl edsoe, 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 driv

ing on the part of the defendant at that ti me.
The defense stipulated that the defendant's dr iver's license had bee n revoked. He was not authorized to drive on the night of these offenses.

Officer Howell, who had worked for the Fayettev ille Police Department for five years, had been assigned to the second shift on the n ight of the defendant's arrest. He recalled bei ng approached by Page at about 10:00 P.M. and being5 informed that the defendant was probabl y drunk and was dri

ving recklessly

on South Main Street in a Sunbird. When Officer Howell drove his crui ser in the direction of the courthouse square, he saw the defendant, who was w earing a denim shirt, jacket, a nd a black cap, drivin g a Sunbird automob ile. Altho ugh he saw a passenger i n the defendant' s car, Office r Howell could not see him clearl y from a distance of twenty-fiv

e to thirty feet. When Officer Howell appr oached the defendant's vehicle, the defendant "acc elerated real fast," "started off the sq uare," and ran a stop sign. Officer H owell activated hi s blue lights, siren,and video camera. During the purs uit, the defendant ran five stop si gns and exceeded speeds of 100 miles per hour. Whe n Officer Howell's cruiser had a flat tire, he sent a radio message to the dispatcher, c hanged his tire and, wi

thin twenty minutes, dr ove to the defendant's residence.

Officer Howell described the defendant as clearly under the influence. The defendant, who could not produce a d river'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 pur suit, failed to note that he had identified the defendant as the driver of the v ehicle just prior to ac

tivating his blue l ights. Instead, he wrote that the identification was made after the chase beg an. At trial, Officer Howell conceded that it would have been impossibl e to identify the driver after the pursuit was initiat

ed. He explained that the ov ersight in his repor

t, which was written at 3:00 A.M., was due to fatig ue. Officer Howell recal led that when he arriv ed at the defendant's residence, four or five other of ficers were already on the scene. He remembered that the defendant's brother, Michael Bartlett, had cl aimed to be the driver of the vehicl e.6 Defense witness Marty Lyn Bryant claimed tha t he was with the defendant just prior to the poli ce chase and testified that Mic hael 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 nin eteen-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 clai med that he was wearing a light and dark blue shi rt and remembered that he was not w earing his prescrip

tion glasses at the time bec ause a lens had fallen out. He stated that the defe ndant wore a black George Dickel T-shirt. Michael Bartlett testified that he was driving when the officer activated his blue lights and that he "go t scared and headed towards home." He explained that some of the police officers had been harass ing his brother and he w as afraid they were going to "star

t it with me." He drov

e the twelve miles home "pretty fast."

Michael Bartlett testifie d that when he arrived

at their residence, he stayed in the yard and the defendant went inside. He cl aimed that when Officer Terry Quick arriv

ed, he admitted that he was the dr iver and was searc

hed, handcuf fed, an d placed in a patro l car. W hen Off icer Howell arrived, h owever, fi ve or ten minutes later, he w as released and the defendant was a rrested.

I The defendant first challenges the suffici ency of the evidence as to each conviction. On appeal, of course, the state is entitled to the strongest legitima te view of t he eviden ce and all reasona ble infe rences whi ch might b e drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the w

eight to be given thei r testimony, and the reconc iliation of7 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 challeng ed, the relevant questi on is whether, after rev iewing the evidence in the ligh t most fa vorable to the state , any ratio nal trier o f fact c ould have found the essential elements of the cri me 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 phy sical control of any automobi le or other motor driven veh icle on any of the public r oads ... while under the i nfluence of any intoxicant...." Tenn. Code Ann. § 55-10-401(a) (1993). "A person who drives a motor vehicle on any public highway ... at a time when a person's privilege to do so is ... revoked commits a Class B misdemeanor...." Tenn. C ode Ann. § 55-50- 504(a)(1) (1993). A person commits reckless driving who "drives any vehicle in willful or wanton di sregard for the safety of pers ons or property...." Tenn. C ode Ann. § 55-10-205(a) (1993). The speed at which a motor vehi cle travels may est ablish a willful and wanton dis regard for persons or pr operty. State v. Wilkins , 654 S.W.2d 678 (Tenn. 1983); Bowers v. Thompson , 688 S.W.2d 827 (Tenn. App. 1984). A person evades arrest w ho, "intentionally flee[s] fro m anyone the person knows to be a law enforcement officer and the pers on ... [k]now[s] the officer i s attempting to arrest the person...." Tenn. C ode Ann. § 39-16-603(a)(1)( 1989).
A person acts intentionally with respect to the natur e of conduct or the results that flow therefrom, "when it is the person's conscious objective or desire to engage in the conduct or c ause the result." Tenn. Code Ann. § 39-13-302(a). A person acts knowingl

y with respect to c

onduct or circumstances, "w hen the person is aware of the nature of the conduc t or that circumstances ex ist. A person acts8 knowingly with respect to a result ... when the person is aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-1 1-302(b).

With its verdict, the jury accredited the testimony of the sta te's witnesses. That was clearly their prerogative. The trial testimony established each of the elements necessary for all four offenses. The defendant acknowledged having consumed two q uarts of beer just prior to his arrest. The jury believed Officer Howell's asser

tion that the defendant was intox icated and that he was the operator of the vehicle. Thus,there was sufficient evi dence to support the conviction for driv

ing under the influence and dri ving on a revoked l icense.
The proof was also sufficient to est ablish that the defendant had driv en recklessly. The v

ideo tape of the chase scene establi shed that the defendant ran five stop signs. Officer H owell testified that the defendant exceeded speeds of 100 m.p.h. One vehicle was driven onto the curb in order to avoid a colli sion. In our view, these actions establish a willful and wanton disregard for the safety of others. Finally, instead of y

ielding to the blue lig hts of Officer Howell's pol ice vehicle, the defendant accelerated and sped away from the courthouse square in his attempt to avoid arrest. The defendant took a circuitous route throug h and out of town in an attempt to evade the police. That evidence was sufficient t o support the conviction for evading arrest.

II

Next, the defendant argues that certain of the testimony w as inadmissible and should have been excluded by the trial court. He specifically argues that Rule 4 04(b), Tenn. R. Evid., requires exclus ion of the tes timony of Page and Rollins who observ ed the defendant driving the Sun bird vehicle betwee n 7:009 and 9:00 P.M. on March 4, 1994. He complains that these prior incidents constitute inadmissible character ev idence of other wrongs or acts. In response, the state contends the evidence is s imply not character ev idence.
Generally, the standard of review of evidentiary rulings by a trial court is one of abuse of discretion; how ever, when the issue regards Rule 404(b), Tenn. R. Evid., the trial court must "upon request" hold a jury out hearing, mak e a determination of relevancy , and find that the probative v alue of the evidence is not outweighed by unfair prejudice. Tenn. R. Evid. 404(b)(1),(2),(3). Wh ere a court fails to substantially comply with these requir

ements, the court's decision is afforded no deference. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997). In this instance, defense counsel did not request a jury out hearing and the trial court did not or der one. In our view, however, the trial court substantially complied with the rule. Thus, the abuse of discretion standard i s applicable.

Rule 404(b) provides as follows: Other Crimes, Wrongs, or Acts. Ev idence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in conformity with the char acter trait. It may, how ever, be admissible for other purposes. The conditions which must be satisfied before allowi ng such evidence are: (1) The court upon reques t must hold a hearing outsid e the jury's presence; (2) The court must determine that a material issue exists other than conduct conforming with a charac ter trait and must upon request s tate on the record the material issue, the ruli ng, and the reasons for admitting the evidence; and (3) The co urt must e xclude the evidence if its pro bative value is outweig hed by the danger of unfair prej udice. Tenn. R. Evid. 404(b). In several prior cases , our appellate courts hav e held that the rule operates to excl ude evidence of other crimes, wrongs or acts onl y when10 they are "wholly

independent of that for which [the d efendant] is charged." State v. Howell , 868 S.W.2d 238, 254 (Tenn. 1993); State v. King , 718 S.W.2d 241 (Tenn. 1986).
Each count of the indictment agains t the defendant charges that the offense occurred on March 4, 1994. Ther e is no reference to specific ti me. The video tape showed that the off ense occurred b etween 10:13 an d 10:21 P.M. Page testified that he saw the defendant driving between 9:30 and 10 :45 P.M., clearly within the time frame of Officer Howell's high-speed chase of th e defendant. Thus, the crimes charged did not qualify as "separate" under the prohibitions of Rule 404(b). Rollins testified that he saw the defendant three or four times on March 4, 1994, beginning as early as 7:00 P.M.; he testified that h e observed the defendant driving the vehi cle at approximately 10:00 P.M. Again, the ev ent was not "separate." Thus, the evidence admitted at tr ial was not inadmissi ble character evidence.

III The defendant also challenges the len gth of sentencing. He arg ues that the ten-month sentence is ex cessive for an act that spann ed no more than ten minutes and twelve mil es. He reasons that no one w as injured and no property was damaged.

This sentence is controlled by the Criminal Sentenci ng Reform Act of 1989. Tenn. Code Ann. § 40-35-117(b) . When a challenge is made to the length, range, or manner of the serv ice of a sentence, it is the duty of this court to conduct a "de novo review ... with a presumption that the determinations made by the court from which the appeal is tak en are correct." Tenn. Code Ann. § 40-35-401(d). The11 Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of a sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statement made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

In misdemeanor sentencing, the c ourt is required to pr

ovide the defendant with a reasonable opportunity to be heard as to the l ength and manner of the sentence. The sentence must be specific and consistent with the purposes of the Act. Tenn. Code Ann. § 40-35-302( a), (b). A percentage of not greater than seventy-five percent of the sentence should be fixed for a service for a misdemeanor offender; however, a DUI off ender may be required to serve the full one hundred percent of his sentence. Tenn. Code Ann. § 40-35-302(d); Palmer v. State , 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the percentage of the sentence, the court must conside r enhancement and mitigating factors as well as the legislative pur

poses and principles rel ated to sentencing. Tenn. Code Ann.§ 40-35-302(d).

Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a term of periodic or continuou s confinement. Tenn.12 Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to directing supervision by the Department of Correction. Tenn. Code Ann . § 40-35-302(f). The statutory scheme is designed to prov ide the trial court w

ith continuing jurisd iction in the misdemeanor case and a wide l atitude of flexibility. The misdemeanant, unlike the felon, is not entitled to the pre sumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829, 83 2 (Tenn. Crim. App. 1994).

For each conviction, the trial court applied pr inciples of the 1989 Act, including enhancing or mitigating factors. For the DUI conviction, which has a minimum sentence of forty-eight hours and a maximum sentence of elev en months and twenty-nine days, the trial court imposed a ten-month sentence. The court found no mitigating factors and ap plied the following enhanc ing factors to arriv

e at the sentence: (1) The defendant has a previous h istory of criminal

convictions or criminal behavior in addition to those necessary to establish the appropriate range; (8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving rel ease in the community; and, (13) The felony was committ ed while on any of the following forms of relea

se status if s uch release is from a prior felony conviction: ... (C) Probation[. ] Tenn. Code Ann. § 40-35-114(1), (8), (13)(C) (Supp. 1993). The trial court pro perly applied factor (1); the defendant has a history of criminal beha vior and convicti ons including theft, aggrav

ated assault, aggrav

ated burglary and lar

ceny, among others. The defendant also has a history of pr obation violations, thus application of (8) was also proper. Because, how ever, (13)(C) does not apply to misdemeanors, that enhancement factor was misappli ed. Nonetheless, the signi ficant weight attached to the two applicable enhanc ement factors would warr ant the ten-month sentence.13 The trial court imposed a four-month-fifteen-day sentence for the conviction of drivi ng on a revoked licens e. The single mitigatin g factor was that no serious bodily injury was threatened or caused by the defendant's committing this offense. The same three enha ncing factors for the DUI offense were applied to this offense. The application of (1) and (8) were proper, but (13)( C) was improper. In our view, the sentenc

e should remain the same.
Reckless driving , a Class B misdemeanor, may include a sentence of not more than six months. The trial court sentenced the def endant to five months. The trial court again properly applied enhancements (1) and (8), and improp erly attached (13)(C). In addition, the trial court id entified the following as en hancement factors: (2) The defendant was a leader i n the commission of an

offense involving tw

o (2) or more criminal actors; (3) The offense involved more than one (1) victim; and (7) The offense involved a v ictim and was committed to gratify the defendant's desir e for pleasure or excitement[.] Tenn. Code Ann. § 40-35-114 (Supp. 1993 ). Because the defendant was the sole driver and the only person charged with an offense, the state agrees that (2) was improperly applied. The appl ication of (3) was als o improper in that the defendant caused no injuries or pro perty damage. See State v. Raines , 882 S.W.2d 376 (Tenn. Crim. App. 1994). Becaus e there was no victi m in this case, enhancement factor (7 ) was not ap plicable . Nonethe less, the defend ant drove through f ive intersections at high rates of speed while intoxicated and without a valid driver's license. The applicable enhancement factors, in our view , are entitled to significant weight. The defendant did not r eceive the maximum term. Thus , we find the reckless driving

sentence of five months appropriat e.14 Evading arrest is a Class A misdemeanor and may include a sentence of not more than eleven months and tw enty-nine days. The tr ial court imposed a ten-month sentence and applied fact ors (1), (2), (7), (8), and (13)(C), as previously set forth in this opinion, and on e additional factor: "(9) The defendant possessed or employed a firearm, explos ive device or other deadly weapon during the commission of the offense." Tenn. Code Ann. § 40-35-114(9) (Supp. 1993). The state concedes that factors (2) , (7), (9), and (13)( C) should not have been appli ed and are not supported by the r ecord. Only (1) and (

8) were properly

applied. Nonetheless, the defendant's sentence is within the range specified by the statute and less than the maximum possi ble. We attach considerable weight t o the defendant's prior record, his lack of candor, and his heedless disregard for the authority of law enforcement.The ten-month sentence is just.

The state would have this court uphold the defendant's sentences for evading arrest by the application of the following additional enhancemen t factors:

(10) The defe ndant had no h esitation abo ut committing a crime when the risk t

o human life was high; (15) The defendant abused a position of publi c or private trust...; and (16) The crime was committ ed under circumstances under which the potential for bodily injury t o a victim was great. Tenn. Code Ann. § 40-35-114 (10), ( 15), (16) (Supp. 1993). The appl ication of enhancement factor (10) is appropr iate not only for evading arrest but also for the reckless driving

offense. The defendant showed no hesitation i n endangering the lives of other motorists for the entire length of the poli ce chase. Because the trial court failed to apply (16), we are hesitant to do so. No particular facts in the record would support that. While the defendant was a participant in the Community Corrections program when these offenses occurred, we do not classify these15 offenses as a violation of public trust. Because the trial judge properly appli ed an enhancement for failure to comply w ith sentencing on release to the community, the inclusion of (15) would be a duplication.

Consecutive sentences may be imposed in the discretion of the trial court only upon a determinati on that one or more of the followin g criteria exis t: (1) The defendant is a professional c riminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous mental ly abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b). Even if the court fin ds one of these factors applicable, however, aggravating circumstances must be present before consecutive sentences may be imposed. Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976).16 In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in t he statu te, othe r conditi ons must be presen t: (a) tha t the crim es involve aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses. Gray , 538 S.W.2d at 393. In State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995), our high court re affirmed those principles, holdi ng that consecutive sentences cannot be required of the dan gerous offender "unless the terms reasonably relate to the severity of the offenses com mitted and are necessary in order to protect the public (society) from further criminal acts by those persons who resort to a ggravated criminal

conduct." The Wilkerson decision, which modified somewhat the strict,factual guidelines for consecutive sentencing adopted in State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), descr ibed sentencing as a "human process that neither can nor should be r educed to a set of fixed and mechanical rules." Wilkerson , 905 S.W.2d at 938.

The state concedes that the trial court failed to make findings of fact t o support consecutive sentencing as required by law. The judgment forms for each conviction show al l sentences are concurrent to each other and consecutiv e to the defendant's prior felony sentence s. That appears to have been the i ntent of the trial court.
Accordingly, the defendant' s convictions are affirmed. The sentences are modified to conform to the judgment e ntered by the trial judge, all to be served at seventy-five per

cent minimum service.

__________________________________ Gary R. Wad e, Judge17 CONCUR:

______________________________ Thomas T. W oodall, Judge

_______________________________ Curwood Wi tt, Judge