### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned in Briefs October 3, 2000

STATE OF TENNESSEE v. GEORGE OSBORNE WADE

Direct Appeal from the Circuit Court for Obion County No. 9-67 William B. Acree, Jr., Judge

No. W1999-01607-CCA-R3-CD - Filed October 19, 2001

An Obion County jury convicted the defendant for one count of felony

evasion of arrest, one count of felony reckless endangerment, and one count of misdemeanor evasion of arrest. The trial court sentenced the defendant

to six (6) yea

rs as a Range I

I multiple offender for his conviction for felony evasion of

arrest, which was merged with his conviction for reckless endangerment. The trial court also sentenced th

e defendant to e

leven (11) months a

nd twenty-n

ine (29) day

s for his conviction for misdemeanor evasion of arre

st, to be served co

ncurrently

with his sentenc e for his felony conviction. The defendant filed for a motion for new trial, and the trial court held

a hearing

on that motion on the sa

me date that it held

the sentencing

hearing. Subseq

uentl y, the

defendant filed a second motion for new trial, which the court treated as an amended motion for new trial. On appeal, the defendant challenges the sufficiency of the evidence at trial, his sentence, and the trial court’s refusal to gra

nt his motion for new trial based on the threatening statements made to jurors during a break in

their deliberati

ons. After revie

wing the recor

d, we find that none

of these claims merit relief and therefore affirm the defendant’s conviction.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in w hich D AVID G. H AYES and A LAN E. G LENN , JJ, joined.

Steve McEwen, Mountain City, Tennes see, (on appeal ); and Joseph P. Atnip,

Dist rict Public Defender, Dresden, Tennessee, (at trial), for appellant, Georg e Osborne Wade.

Paul G. Summers, Attorney General & Rep orter ; Mark E. Davidson, Assistant Attorney

General; Thomas A. Thomas, District Attorney General; and James David Kendall, Assistant Di str ict Attorney, for appellee, State of Tennessee.

OPINION-2- Factual Backgrou

nd

The defendant, George Wade, and his acquaintance, “Ed, ” were driving from Trenton, Tennessee to Union City, Tennessee. Apparently Ed was interested in purchasing the defendant’s

car and therefore asked to accompany the defe ndant on his trip to Union City. The defendant testified that he and Ed are a pproxima tely the same he ight and sha re similar coloring. On the return trip from Union City back to Trenton, the defendant testified that he allowed Ed to drive his automobile. A Union Cit y p olice of

ficer spotted the defendant’s car, which he recognized, and followed it. The officer testified that the driver o f the defend ant’s vehi cle made thr ee turns wit hout signal ing. However, the defendant testified that the driver of his vehicle, Ed, made those tur ns under his instruction and signaled each time. After witnessing the driver make these turns, the officer turned

on his blue lights and siren. The drive r of the defenda

nt’s car bega

n to pull over, but subse

quently sped off, leading the police officer on a high speed chase. The officer testified that after the driver initially sped off, he made a right tur

n, at which time he looked directly at the officer for one or two seconds. Based on that observation, the officer identified the defendant as the driver of the vehicle. He also n o ted that another black male was present in the automobile, sitting in the passenger sea t. After the driver made

that right turn, he led the officer on a cha

se for several bloc

ks, traveling fifty

to sixty miles pe

r hour in both a twe

nty mile per hour speed zone and a fifteen mile per hour school speed zone, running sev

eral stop signs,

and almost hitting another

automobile at one intersection. The officer eventually stopped his pursuit of the defendant, fearing that further chase would create an unre asonable risk of injury. The driver of

the defendant’s vehicle eventually pulled into a backyard . Once the automob

ile stopped
, the defendant and his acquaintance, Ed, fled on foot. While the police officers never discovered

Ed, they did discover

the defendant, who was hiding from the officers behind a tree. The off icer who discovered the defendant found a key next to the defendant’s per son. The officer successfully

used this key

to start the ignition of the defendant’s vehicle. Subsequently, the officers arrested the defendant

for evasion of arrest and reckless dr iving, and he was tried before a jury on those charges. When the jurors broke for lunch during their deliberations, an unidentified person told

the jurors that “You’d better not fi nd him guilty, you mother fuckers. You don’ t know what you’re doing.” Nine of the twelve jurors heard this

statement. The jury su bsequently convicted the defendant. After the jury returned its verdict, defense counsel inq uired of the trial court as to whether the jury membersshould be questione d as to the effec

t, if any, thi

s statement had on th

em. The trial court declined to question the juro rs at that time, but to

ld the panel that they may be broug ht back for a later hearing to determine the effect that the statement may have had

on them. However, the defendant never

subpoenaed any jury member to the motion for ne w trial, andno proof was ever put before the court as to what effect this remark may have had on them.

Sufficiency of the Evidence

The defendant first argues that the evidence pr

esented at trial w

as insufficient to

support his convictions for felony evasion of arrest. When an accused cha llenges the sufficiency of the-3-

convicting evidence, this court must review the record to determine if the evidence adduced during the trial was sufficient "to support the finding of the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is app licable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Matthews
, 805 S.W.2d 776, 779 (Tenn . Crim. App. 1990). In dete rmining the suff

iciency of the evidence, th

is court does not re-weigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c

ourt s ubstitute its inferences for those drawn by the trier of fac t from circumstantial evidence. Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956). This court is required to afford the state thestrongest legitimate view of the evidence contained in the record, as well as all reasonable and legitimate inferences that may be

drawn from the evidence. State v. Herrod , 754 S.W.2d 627, 632 (Tenn. Crim. App. 1988). Questions concerning the credibility of the

witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved

by the trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (T enn. Crim. App. 1987

). A guilty

verdict by th e ju ry, approved by the trial judge, accredits the tes tim ony of the witnesses f or the state and r

esolves all conflicts in favor of the theory of the state. State v. Grace
, 493 S.W.2d 474, 476 (Tenn. 1973). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden on appeal of illustrating why the ev idence is insuffic

ient to support the verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb averdict of guilt due to the suffici

ency of the

evidence unless

the facts containedin the record and the inference s that may be drawn from the fa

cts are insuffic

ient, as a matte r of law, for a rational trier of fact to find the accused guilty beyond a reason able doubt

. Matthews , 805 S.W.2d at 780. The de fendant argues that the evidence presented at trial was insufficient to establish the elementsof felony evasion of arrest, because the ev idence was in sufficient to establish that the defendant was operating the vehicle when the driver of the defendant’s vehicle evaded the pursuing police officer. However, the state presented adequate evidence at trial upon which a rational trier of fact could have found the defendant to have been the driver of the automobile at the time that the crimes were committed. Specifically, the officer who pursued the defe ndant positively identified the defendant as the driver of the vehicle based upon a brief view of the defendant’s f ace. Add iti ona lly, the police officer who discovered the defendant found a key next to his person that started the ignition of his vehicle. This evidence is sufficient for a

rational trier of fact to find that the defendant wa

s indeed driving

his vehicle, and th

erefore we wil

l not disturb the jury

’s verdict.

Extraneous Prejudicial Information Considered by the Jury

The defendant claims that because the jurors in the i n stant case w ere threaten ed during a break in their deliberations, they were exposed to extraneous prej udicial informati on that improperly influenced

them, therefore entitling the defendant to a new trial. The threat at issue was made by an unknown person to the j urors while they were on break for lunch. This unknown person said, “You’dbetter not find him guilty, y ou mother fucker

s. You don’t know what you’re doing.” Nine jurors heard this

statement.1 Cf. State v. Furlough , 797 S.W.2d 631 (Tenn. Crim. App. 1990) (i ndicati ng that i f the jur y i s sequestered

and a juror ha

s communi cated with a n on-juro r, the burd en imm ediately sh ifts to the pro secution to demo nstrate that the jury was not preju diced by the com munic ation).

2 Because this iss ue involves the questi

on of whether an o utside i nfluence was br

ought to bear upon any juror, it was proper to call the jurors to tes tify as to wha t effect the thre at may h ave had on them

. See Tenn. R. Evid. 606.

-4- The state argues th

at this issue is not properly before the court because the defendant failed to object to the guil

ty verdict o

n the basis that it w

as a product of this extraneous prejudicial i nformation or move for a mistrial on that basis. However, regardless of whether the def endan t waivedthe issue for appe

al, the issue has no

merit because

the defendant has failed

to prove that the extraneous stateme

nt was prejudicia

l to him. When a jury has be

en exposed to preju

dicial extra neous information , a rebuttable presumption of prejudices ar ises, and the burd

en shifts to the prosecution to eith er explain the conduct or prove that the exposure was harmless. State v. Blackwe ll , 664 S.W.2d 686, 689 (Tenn. 1984). However, in cas

es involving non- sequestered jur ies, the burden do

es not sh ift to the state until the defendant has proven the exposure to be p

rejudicial. 1 See Statev. Parchman , 973 S.W.2d 607, 612 (Tenn. Crim. App. 1997) (stating that “the threshold question is whether the statement communicatedto the jury wa s prejudicial to the

[d]efendant”); State v. Meade , 942 S.W.2d 561 (Tenn. Crim. App. 1996); State v. Clinton
, 754 S.W.2d 100 (Tenn. Crim. App. 1988). As the instant case involves a non-sequestered jury, the defendant has the bur den of proving prejudice. In his brief, the defendant argues that the

statement made to t

he jurors by

the unknown party

was clearly prejudicial

because it was a

threat against

those jurors, unambiguously threatening them if the y fou nd t he d efen dan t gui lty. Additionally, this threat was heard by nine of the twelve jurors. However, if the jurors were cowed by this thr eat, it se ems that they would have acquitted the defendant,

not convicted him. The defendant makes no argument that the threat may have angered the jurors toward the defendant, making it more likely that they voted to convict him. I ndeed, because the defendant did not put on any juror at the new trial motion to testify a s to th e effect, if any, that the remarks m

ay have ha

d, the defendant

has failed to

carry his initial burden

of showing prejudice. 2 Because the de fendant has fail

ed to meet this requ

isite burden, we f

ind that t his issue lacks merit.

Sentencing Challenge

The defendant next challenges the sentence imposed by the trial court, arguing that he should have received a lesser sentence and should serve at least a por t ion of his sentence on probation or in t he Community Corrections program. This court's review of the sentenc e imposed b y the tria

l court is de novo with a

presumption of correctness. Tenn. Code Ann. § 40-35-401(d) ( 1997). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial c ourt fails to comply with the statutory directives, there is no-5-

presumption of cor

rectness, and our review is simply de novo. State v. Poole
, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the a

ppealing party

to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) (1997) Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tennessee Code Annot ated Section 40-35-210, to consider the following factors in s entencing: (1) the evid ence, if any, rece ived at the trial and t he sentenci ng hearing; (2) the presente

nce report; (3) the principle

s of sentencing

and arguments a

s to sentencing a

lternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on the enha ncement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) any statement

the defendant wi

shes to make in his own behalf a bout sente ncing.
Tenn. Code Ann. § 40-35-210(b) (Supp. 2000). An e spe cially mitig

ated or standard

offender convi

cted of a Class C, D

or E felony

is presumedto be a favorable candidate for alternative sentencing in the absence of evidence to the

con tra ry. Tenn. Code Ann. § 40-35-102(6) (1997). A trial court must presume that a defendant who is sentenced to eight years or less and who is not an offender for whom incarceration

is a priority is subject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further presumed that a sentence other than inca rcerat ion would result in successful rehabilitation of the defendant unless rebutted by sufficient evidence in the re cord. Id. at 380. However, the presumption that a defendan t is a suitable

candidate for alternative sentencing

or probation may be rebutted by evidenc e to the contrary. Such evidence may include the following sentencing con

siderations: (A) Confinement is necessary to protect society by restraining a defendant who has a long history

of criminal condu

ct; (B) Confinement is nec

essary to avoid deprecia

ting the seriousn

ess of the offens

e or confinement

is particularly suited

to provide an effe

ctive deterren

ce to others likely to commit similar offenses; or (C) Measures le s s restrictive than confinement have frequently or rece ntly been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (1997). A court may also apply the mitigating and enhancement factors set forth in Sections 40-35-113 and -114, as they are relevant to the Sec tion 40-35-103 considerations. Id. § 40 -35 -21 0(b )(5 ). Fi nal ly, a court should consider the defendant’s potential or lack of potential for rehabilitation when determining whether to grant an alternative sentence. Id. § 40-35-103(5). Our review of the i nstant case is de novo with a presumption of correctness, as the record reflects that the trial cour

t properly a

nd carefully

considered th

e sentencin

g principles and all relevant facts and circumstances. Specifically, the court examined the general sentencing prin ciples, enumerated

the applicable enhanc in g factors, found that no mitigating factors applied, and addressed the appropriatenes s of alternative s entencing. The

defendant does n

ot chall enge th e trial court’s-6-

finding of the applicability

of two enhancing

factors, namely the defendant’s prior criminal history and his history of

unwillingness to c

omply with the

conditions of me

asures less

restrictive than confinement. Rath er, the defendant argues that the trial court afforded these factor s too much weight, as the defendant’s convictions were at least si x years old, an d the defend ant comple ted high school and attended two semesters of college. However, because the defe ndant has notproven that the trial court erred in its app l ication of the relevant enhancing factors, the trial court is presumed to have afforded these factorsan appropriate weight, and therefore this court will not re-weigh the enhancing factors and accordingly impose a differe nt sentence. Moreover, there is sufficient evidence in the trial co urt’s find ings of fact to support enhancing the defendant’s sentence by two years, one year

for each enhancing factor. The defendant also alleges that th e trial court shou

ld have allowed hi

m to serve at least

a portion of his sentence on probation or alternative sentencing, as he is presumed a fav orable candidate for alternative sentencing per Tenn. Code Ann. § 40-35-1 02(6) (19 97). However, because,

as the defendant c

oncedes, the tria

l court properly

classified him as a

Range II offender,

this statutory presumption is not applicable to him. Moreover, the trial court correctly found that the defendant

was not a suitable can

didate for alter

native sentencin

g or probation, a

s the defendant h

as failed to comply with measures l

ess restri ctive than confin ement, having c

ommitted several c

rimes while serving a suspended sentence. Therefore, after conducting this de novo review and affording the trial court’s sentence a presumption of correctness, we conclude that the trial court properly sentenced the defendant, a

nd therefore the

defendant’s sen

tencing challe

nge lacks merit

.

Conclusion

For th e forgoing re

asons, we find tha

t none of the defe

ndant’s allega

tions merit r

elief

. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE