# FILED
July 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9707-CR-00304 Appellee, ) ) Greene County V. ) ) Honorable Jam es E. Beckner, Ju dge CHRISTOPHER BROWN, ) ) (Reckless Driving; Motorcycle Appellant. ) Helmet and Protective Eyewear) )

FOR THE APPE LLANT: FOR THE APPELLEE: William H. Bell John Knox Walkup Attorney at Law Attorney General & Repor ter P.O. Box 1876 Greeneville, TN 37743 Clinton J. Morgan Counsel for the State Cordell Hull Buildi ng, 2d Floor 425 5th Avenue North Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General Eric D. Christianse n Assistant District A

ttorney General 109 South Main Street Greeneville, TN 37743

OPINION FILED: _______________________ REVERSED IN PART; AFFIRMED IN PART
PAUL G. SUMM ERS, Judge

O P I N I O N-2- Christopher Brown w

as charged with reckless driving i n violation of Tennessee Code Annotated § 55-10-205 (1 993); driving a motor cycle without a helmet in violation of Tennessee C ode Annotated § 55-9-302 (1993); and driving a motorcycle without a windshield, safety goggles, face shield, or glasses in violation of Tennessee Code Annotate d § 55-9-304 (1993). A mistr ial occurred in December 1996. After a jury trial on January 22, 1997 , the appellant was convicted on all three c harges. That same day the tr ial court conducted a sentencing hearing. The appellant was sentenced to six months for the reckless driving convic

tion, to thirty days

for failure to wear a helmet,and to thirty days for failure to have a motorcy cle windshield. All

three sentences were to be served at thirty per cent and were to run concurre ntly.
The appellant presents three is sues for our review:(1) whether the evidence is sufficient to supp ort the appellant’s convi ctions; (2) whether the state’s only witne

ss provided contradict

ory testimony; and (3)

whether the trial court erred in imposing an excessive sentence . After carefully rev iewing the record, we rever

se the appellant’s convi ction as to reckless dr iving and affirm the rest of the charges.
At approximately 11:40 a. m. on Thursday, April 18, 1996,Officer Lynn House of the Greeneville Police Department was inside the Foothills Car W ash on the Newport Highw

ay in Greene County. He had brought his cruis er in to be cleaned and was there to pi ck it up after cleaning. While inside the car wash and while signing a receipt, House heard the loud noise of a motorcycle. He l ooked out the window and saw what he described as a bl ack and yellow motorc ycle, although on cross-examination he could not describe the size of the mo torcycle that he had observed. Also, he testified that the appellant w as the rider of the motorcycle, although the appellant disputes this ass ertion. House stated that he-3- knew the appellant because he had stopped him “on occasion.” He further stated that the appellant “w as not wearing a helmet,had no windshield on the motorcycle nor [sic] was not wearing any type of glasses, protective glasses.” On cross-examination, Officer House admitted that he observed all of this detail for “just a moment” and that he w as approximately 80 to 1 00 feet away from the driver of the motorcycle. House indicated that the appellant was traveling only about 40 miles per hour on West Main at that ti me. The appellant contends that Officer House, who wears glasses to read, made the i dentification while look ing through a tinted window. Officer House, however, denies that he requires glasses and that the wi ndow was tinted.
As Officer House was preparing to leave the car wash, he went to his cruiser and retriev

ed something from the trunk. He then got into his cruis er, and as he was leaving the car wash, he observ ed the driver of the motorcy cle coming across the lot of the Amoco market across the street. House testified that the motorcycle crossed the Amoco lot and accelerated out Marshall Lane. House further testified that the appellant was the driver of the motorcycle and that he was not wearing goggles or a helmet. On cross-examination, Officer House acknowledged that “[t]h ere were people going in and out of the market [, but] I don’t have any idea w

ho they were.”

Officer House described the area of Marshall Lane as being l evel for approximately a tenth of a mi le and then there is a sharp dr aw in the roadway

. One cannot see any of the roadw ay beyond the crest of the hi ll. He further noted that there are houses and a churc h in the area. Howev

er, he admitted that there

was no other vehicul ar or pedestrian traffic on the r oad during the middle of the day on Thursday, April

18, 1996 when this incident occurred.-4- Officer House then turned onto the lot and “[t]h at’s when the motorcycle accelerated to a very high rate of speed, and I made a U-turn and followed him.” On cross-examination, O fficer House admitted that the “v ery high rate of speed” that the motorcycle reached was approximately

55 to 60 miles per hour and that the speed limit in that area w as 30 miles per hour. He ac celerated to 45 miles per hour while follow

ing the motorcycle. H e also stated that both wheel s of the motorcycle left the road w hen it crossed the crest of the roadway, although the record does not indicate how high off the ground the wheel s were.
On cross-examination, O fficer House admitted that he did not get the license tag number of the motorcy cle. He also admitted that he never turned on his blue lights, his siren, or his flashing lights and that he did not hav e his radar on at any p oint. Fur thermor e, Offi cer House acknowled ged that i t would have taken only a second to flip th e switch for the blue li ghts and that he never y elled or indicated in any way to the driver of the motorcycle to pull over or to stop. His response when asked why he did not stop the rider of the mot orcycle was “[h] e wouldn’t stop.” Officer H ouse then obtained warrants for the appellant.
The appellant disputes Officer House’ s assertion that he was the driver of the motorcycle. The appellant contends that House mistakenly identified him as the driver of the motorcy cle and contends that he was in another part of the county when the incident with House occurred.To support his contention, the appellant called five w

itnesses on his behalf.

Robert Keith Kesterson testified tha t he was foll owed for a pe riod of time by three cruisers dr

iven by three Greenev

ille police officers on the after noon of Thursday, April 18, 1996, th e same day of the incident wi th Officer House. Finally, Kesterso n, along with some f riends, stoppe d their motorcycle s, although-5- the three cruise rs did not “blue ligh t” them to stop. Kesterson was ridin g a motorcycle that was green, purple, and white. He testified that he was asked by one of the officers, “Have you been riding on the Newp ort Highway w

ithout a helmet or speeding?” He r eplied, “No” and asked, “ Why?” The officer responded, “That’s all yo u need to know.” A couple of minutes later Officer House arrived on the sc ene and told Kesterson that the appel lant, Chris Brown, was going to be arrested. House also told Kesterson to tell the appellant to turn himself in to the police.
Rodney Kyker, a tow

truck driver, testified that the appellant was a t the Texaco station in Mosheim ar ound the time of the incident with Officer House. Mosheim is a considerable distance from the Newport H ighway where the incident with Officer House occurred. Billy Dugger, the owner of the Texaco station in Mosheim and a friend o f the appellant’s, also testified that the appellant stopped by the stati on around 11:00 or 12:00 on April 18, 1996 to see him.
Mark Spea rs, the mo torcycle m echanic at Ken’s C ycle Cente r in Gray, Tennessee, testified that the appellant ’s motorcycle was

in the shop for work on April 18, 1998. He also tes tified that the appellant’s motorc ycle was big and heavy because he had to mov e it around at the shop. Kenneth Br itt, owner of Ken’s Cycle Center, also testified that the appellant’ s motorcycle, a Honda CB R 900 RR, was “[n]ot any louder than anything el se on the market. Motorcy cles meet the same criteria on EPA s tandards on both emissions, sounds .” Also, Britt testified that the appell ant is a well-know n customer and that sometimes work for customers does not get entered in the shop’s l og book. He also testified that he had written a rece ipt for work done on the appel lant’s motorcycle on the day in question sev

eral months after the work h ad been completed.-6- The appellant’s first issue for our review is whether the evidence is sufficient for conviction. The appe llant contends that he is the v ictim of mistaken identity. He insists that his m otorcycle was at Ken’ s Cycle Cent er in Gray, Tennessee on the day the incident with Officer House occurr ed. Furthermore, he asserts that he was i n Mosheim, which is “ completely across the co unty” from the site of the incident with Officer House. Also, he asserts that Of ficer House cannot identify anything else about the motorcycle and that Rodney Kesterson was questioned about whether he had been riding a motorcy cle without a helmet and been speeding on the Newpo rt Highway that same day. Finally,the appellant contends that Officer Hous e wears glasses to read and that he made an identification of the driver of the motorcycle from 100 feet awa y and through a tinted window.
The state argues that the evidence is sufficient to supp ort the appellant’s convictions. It contends that this is a case of wi tness credibility, not mistaken identity. The state maintains that the jury found Officer House to be credible, despite the five witness es who testified on behalf of the appell ant.
When appellants challen ge the sufficiency of the evidence, this Court must determine whether, after v iewing the evidenc

e in a light most favorabl e to the prosecution, any rati onal trier of fact could have found the essential elements of a crime beyond a reasonable doub t. Jackson v. Virginia , 443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985). The weight and credibil ity of a witness’ tes timony are matters entrust ed exclusively

to the jury as the trier

s of fact. State v. Sheffield , 676 S.W.2d 542 (Te nn. 1984); Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978). This Cour t does not reweigh or re-ev

aluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).-7- A jury verdict ap proved by the trial judge accredits the state ’s witnesses and resolves all confli cts in favor of the state. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the stat e is entitled to the strongest legitimate view of the evidence and all inferences therefrom. Cabbage , 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guil t, the accused has the burden on appeal to show why the evidence is insufficient to support the verdict. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).
The appellant argues that the ev idence is insufficient to conv ict him of reckless driving . Tennessee Code Annotated § 55-10-205 (1993) states that “[a]ny person who dr

ives any vehicl e in willful or w anton disregard for the safety of persons or property commits reckless drivi ng.” One manifests wil lful or wanton disregard who willfully breaches a duty in a “heedless and reckless disregard for another’s r ights, with the cons

ciousness that the act or omis sion to act may result in injury to another.” State v. Wilkins , 654 S.W.2d 678, 679 (Tenn. 1983) (citing Burgess v. State , 212 Tenn. 315, 320, 369 S.W.2d 731, 733 (1963)). “Willful and wanton disregard for another’s safety i s a factual question properly determined from all the circumstances.” Id. at 680; see State v. Eddie Jake Mysinger , No. 314 (Tenn. Crim. App. at K noxville, Mar. 1 4, 1990); State v. Rita Marie Russell , No. 158 (Tenn. Crim. App. at Knoxville, Apr. 2, 1986). Driving 120 miles per hour on a highway with hills and cur

ves has been considered reckless dri ving. Wilkins , 654 S.W.2d at 679.

However, in State v. Ronald Mitchell , No. 02C01-9702-CC-00070 ( Tenn. Crim. App. at Jackson, Sept.15, 1997), the defendant was trav eling 77 miles per hour in a 50-mile-per- hour zone on a straight,flat road. The incident occurrred late at night , and the defendant passed another vehi cle. A panel of this Court held that the ev idence was insufficient to s upport a verdict of guil t for-8- reckless driving.

In the case sub judice , Officer House testified that the dr iver of the motorcycle, which House contends was the appel lant, was traveli ng approximately 55 to 60 mi les per hour in a 30-mile- per-hour zone. This incident occurred in the middle of the day on a Thursday, and Officer House a dmitted that there was no pedestri an or vehicular traffic i n the area at the time of the incident. Furthermore, he t estified that the wheels of the motor cycle left the road, although the transcr ipt does not indicate by how much, as it went over

the crest of the hill. From all th e circums tances su rroundin g this incid ent, we conclude that the evidence is insufficient to support a verdict of guilt for reckless driving.
With resp ect to the charge s of failure to wear a helmet while op erating a motorcyc le and fa ilure to d rive a moto rcycle witho ut a windsh ield or pro tective eyewear, the appellant contends that he was mistaken ly identified by Officer House. He insists that he was in another part of Greene County and that his motorcycle was at Ken ’s Cycle Center i n Gray, Tennessee when the i ncident with Officer House occurr ed. In support of this contention , the appellant produced two witness

es who testified that he w as in another part of the county at the time of the incident and two witnesses who testi fied that his motorcycle w as in the shop at the time of the incide nt. Moreover, Rodney Kesterson testified that he was questioned by a Greeneville police officer as to whether he had been riding without a hel met and speeding on the Newpor t Highway earl ier in the day on April 18, 1996. As to the s tate’s proof, Officer House clai ms that he saw the appellant when he, Officer Hous e, was inside the car w ash and then again as he was leaving the c

ar wash.
We affirm the convictions regarding th e lack of a motorcycle helmet and-9- driving without

a windshield or protective eyewear. To reverse these convi ctions would require this

Court to engage in a pr ohibited assessment of the credibi lity of witnesses and the weight to be given to their testimony. Officer House affirmat ively

identified the appellant as a hel met-les s, lens-less r

ider of a motorcycle that had no w indscreen. We believe that his testi mony is sufficient, in the ligh t most fa vorable to the state , to estab lish the c ommissi on of th ese two equipment offenses despite the appellant’ s protestations. Conflicts and contradictions in the ev idence are typically

matters for the trier of fact to r esolve, and the jury in this ca

se resolved the conflicts in favor of the state. State v. Grace , at 476. Therefore, we affirm these two convictions.
The appellant’s next issue involves alleged contradictory testi mony of the state’s only witne

ss. This issue raised by the appellant is a credibi lity issue, which the jury resolved in favor of Officer House as to the charges upon which the appellant now stands conv icted. This issue is w

ithout merit.
The app ellant ar gues that the trial c ourt erre d in impos ing an exce ssive sentence. Since we hav e now dismissed the most ser ious charge, the appellant’s sentence as adjudg ed by the trial court is thirty days for fail ure to wear a helmet and thirty days for failure to have a motorcycle windshi eld, with both sen tences ru nning con currentl y.

The trial court found two enhanc ement factors and no mitigating factors. The trial judge denied probation. The appellant apparently was on probation when he committed the present offenses, and he has a prior viola tion of parole. The trial judge found that some incarceration was necessary to avoid depreciating the seriousness for the offense s and to deter others. The trial court made findings of fact.-10- In the state’s brief, the Attor ney General argues that the appellant manufa ctured evi dence. T his allega tion is of some con cern to th is Court as we are sure it was to the trial court. Such activity would certainly be a lawful basis for denial of probation.
The appellant did not prove his worthiness for probation. Based on h is prior record, probation and parole revocation, this Court is of the opinion tha t his effective thirty-day

sentences, running concur rently, are not exce

ssive.
Accordingly, w

e reverse the judgment of con viction for reckless

driving and dismiss that indictment. We affirm the other convictions and the sentences as adjud ged by the t rial court . The tria l court will e nter a jud gment acc ordingly.

_______________________ PAUL G. SUMMERS, Ju dge

CONCUR:

____________________________ JERRY L. SMITH, Jud ge-11- ____________________________ CURWOOD W ITT, Judge