### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE January 23, 2002 Se ssion
STATE OF TENNESSEE v. GREGORY DUNNORM
Appeal from the Criminal Court for Anderson County No. 99CR0258 James B. Scott, Jr., Judge

No. E2001-00566-CCA-R3-CD June 12, 2002

The defend ant, G rego ry Dunnor m, was co nvicted o f Class D f elony evading arrest, the simple

assault of LaDeana Ellis, vandalism, and sec ond offense driving on a suspended license. See Tenn. Code Ann. §§ 39-16-603, 39-13-301, 39-14-408, 55-50-504. He had bee n charged w ith the aggravated
a ssault of LaDeana

Ellis and was acquitted on charges of simple assault of Sonda E llis an d aggravated

assault of Officer

Karen We

henkel. Wh

ile granting supervised probation, the trial cour t sentenced the defendant to concurrent terms of tw o ye ar s f or ev ad in g a rr es t a nd 11 mo nt hs , 2 9 d ays for each of the misdemeanor convictions. I n this appeal of right, the defendant asserts (1) that the evidence was insufficient to support the convictions for evading arrest, assault, and vandalism; (2) that the trial court erred by

permitting the state to cross-examine the defendant regar ding his a ffidavit of inco me; (3) that the trial court erred by failing to instruct the jury regarding the lesser inc luded offenses of Class D felony evading arrest; and (4) that the trial court erred by declining to instruct the jury on the defe

nse of effective consent. Bec ause the evidence was insufficient to support the defendant’s convicti on for Cla ss D felony evading arrest and because the trial court erred by failing to instruct o n the less er inclu ded offe nse of Class E felony eva

ding arrest, the conviction is reversed and the cause remanded. Otherwise, the judgments of the trial court are affirme d. Tenn. R. App.P. 3; Judg ments o f the Trial C ourt Affirm ed in Par t and Reve rsed and Remanded in Part

G ARY R. W ADE , P.J., delivered the opinion of the court, in which N ORMA M C G EE O GLE , J., joined. J OSEPH M. T IPTON , J., filed a concurring opinion.

J. Thomas Ma

rshall, Jr. , District Public De fender , for the

appella nt, Greg ory

Dunnorm.

Paul G. Summers , Attorney General & Report er; Kathy D. A slinger, Assistant Attorney General; and Jan Hicks, Assistant District Attorney Genera l, for the appellee, State of Tennessee.-2- OPINION

On the evening of June 12, 1999, Sonda Ellis attended a dance at the Elks Lodge in Oak Ridge. As Ms. Ellis wa lk ed to her car at approximately 1:00 a.m., accompanied by a friend, CassandraJohnson, she observed the defendant enter the parking lot driving a brown Cadillac

. When she he ard the d

efenda nt say “bitch, ”Ms. Ellis tur

ned in his direction. She claimed that the defendant struck her in the face, knocking her to the g round. When Ms. Johnson attempted to drag Ms. Ellis to the door o f the lodg e, the defendant struck Ms . Johnson in th

e upper b ody . At that po int, Ms. Ellis’s co

usin, L aDeana

Ellis, ca me out of th

e lodge and atte mpted toquestion the defendant as he returned to his car. The defend ant go t into his ca r and ac celera

ted quick ly in revers e, first bumping LaDeana Ellis and then knoc king her to the ground with the still-open car do or. The defendant then drove out of the parking lot, striking a police ca r as he did so. As a resul t of th e assault, Sonda Ellis sustained facial bruises and br ui se s a nd sc ra tc he s o n h er lo we r b od y. She denied having bumped into the defendant or having spilled a

drink on him, but acknowledged throwing her shoe in hisdirectio n as he left.

LaDeana Ellis, who knew the defendant, testified that she was inside the Elks Club when the defendant assaulted her cousin, Sonda Ellis

. When she learned that the defendant had struck her and inquired why, the def endant initially ga

ve her a blank look before say ing that he “didn ’t have to explain.” She testified that she cursed and pushed the defendant and attempted to calm her cousin, Sonda, who was “trying to hit him.” Ms. E

llis, who was knocked unconscious, stated that her next memory was of wa

king up in

the hospit

al. She wa s sore and her fe et were cut. Ly nette Carpenter testified that when she arrived at the scene, L aDeana Ellis was attempting to calm he

r cousin So nda, who s tated tha t the def endant ha d struck h er. Ms. Carpenter

confirmed that the defe ndant ent ered hisvehicle

and drov e it in rev erse, st riking L aDeana Ellis with the car door and dragging he

r along the ground. She denied having seen anyone

throw things at the defenda nt.

KarenWehenkel, an officer with the Oak Ridge Police De partment, was on patrol when she heard a woman screaming in the Elks Lodge par king lot sometime between 1:30 and 2:00 a.m. She ob served a wo man “doubled over, holding her stomach, on her ba ck” in the parking lot and a Cadillac traveling in

reverse at a high rate of

speed. The front driver’s side door of the Cadillac was open. When the officer positioned he r cru iser so as to partially block the e xit, the Cadillac driver “gunned the engine” and struck the rig ht rear quarter panel of her ve hicle. When the defe ndant moved his vehicle, she again blocked his path. When Officer Wehenke l stepped out of her vehicle, the defendant backed towards her, then dr ove around her cruiser and out of the parking lot. The officer followed the vehic le, forc ed it

off the r oadway , and arr

ested the defenda nt. She described the defendant as hysterica

l and recalled that he repeatedly said, “I didn’t run any

body over, I ’m not going to run anymore .” Officer Wehenkel placed the defe ndant in the back of her cruiser. L ater, when she inspectedher vehicle, she discovered that the armre st and plastic molding on the interior of the rear driver’s side door ha d been cracked and broken away . The cruiser’s rear seat viny l had also been-3-

torn. Officer Wehenk el testified that no one other than the defendant had bee n transported in the back sea t during her shif t and that it was unda

maged p rior to he r shift. Shyi sta LaToy a Bates was in her c ar leav ing th e Elks Club when the defendant arrived. When she ob served Sond a Elli s fall to th e groun d, she go t out of hercar. She stated that when LaDeana Ellis asked the defendant what he was doing, he r epl ied th at he did not have to explain. Ms. Bates, who acknowledged that LaDeana Ellis had pushed the defendant as he walked to his car, corroborated

the other testimo ny t

hat the defendant struck Ms. Ellis with his open car door and dragged her on the g

round.

RichardHunter, a defense witness, testified that he walked out of the Elks Club and observed two women “in [the defendant’s] face, y elling and screaming.” He stated that when he directed the defendant to go home, someone reached over him to g et at the defendant. Hunter testified t h at as he “coerced” the defenda nt to his car, a shoe and an alcoholic bever age were thr

own in the

ir direction. He rec alled tha t two wome

n “ju mped over” hi m and “jumped on” and punched the defendant

. Hunter st

ated tha t he back ed away after b eing str

uck on the

ear by one of the women
. He claimed that the defendant kicked the women a way and dr

ove his car in reverse, knocking one of the wom e n down with his car door. He testified that the defendant’s vehic le struck Officer Wehenkel’s cruiser “soft like” and that when the officer stepped out of the car, the defendant drove
aw ay, then pulled to the side of the road only a short

distance away . Hunter acknowledged that he had not informed police of what he had witnessed. Dorothy Jones, the defendant’s girlfriend of 22 y ears, testified that

she owned the vehicle the defenda nt was dri ving at t

he time of

the offe nses. She acknowledged that the defenda nt, who had
no driver’s license, did not have permission to drive her car. Ms. Jones testified that she was asleep when he took her car.

The defendant, 46 y ears old and employed as a c arpenter, testified that a co worker

drove him to the Elks Lodge. He c laimed that when he returned to his residence, he discove red that he had no door key s, awake

ned Ms. Jone s to let him in , and then drove Ms. Jones’s car the one-and-one-halfblock distance back to the lodge. The defe ndant testified that as he attempted to enter the club, a
woman said to him, “What’s wrong with you old M-F ?” He c onten ded that after he exchanged words withthe woman, she “commenced to . . . clawing at [him]” an d another

woman pus hed him towards the parking lot. The defendant testified that a “mob of people” gathered, throw ing th ings at him and attempting to pre vent him from entering his vehicle or closing his car door. He maintained that he did not hit any one and that he had no recollection of striking LaDeana Ellis or dragging her with h

is car door. The defendant contende d that he did not see the police cruiser until after he had hit it and that he stopped only bec ause he thou ght that the police would help. He testified that Off

icer Wehenkel did

not drive her cru iser into t he side of his vehic le until after he had
come to a stop. The defendant

also denied having done any damage to the interior of the cruiser a fter his arre st.-4-

The defendant acknowledged that he took Ms. Jones’s vehicle without her permission. He took her keys f

rom the television set after shereturned to bed. The defendant claimed that he drank his first beer at an Applebee’s restaur ant at 9:00 or 10:00 p.m. and had only one more beer before his arrest. He denied any drug use.

In rebuttal, the state re-called Office r Karen Wehenkel and Sonda Ellis. Officer Wehenkel testified that she d

id not obse

rve an in jury to the def

endant’ s head or

any spilled liq

uid on his cloth ing. She emphasized that the defendant’s vehicle was still moving when struck by he r cruiser. Alth ough the offic er did not b elieve the de fendant

was intoxic ated, she

did smell a

lcohol on h

is breath. Sonda Ellis testified that she was outside of the Elks Lodge a nd in the parking lot when she first enc ountere d the def

endant.

I Ini ti al ly, the defendant claims that the evidence was insufficie ntto support his convictions for Class D felony eva

ding arrest, a s sault and vandalism. He does not contest his conviction for second offense driving on a suspended lice nse.
On appeal, of course, the

state is e ntitled to t he strong est leg itimate

view of the evidence and all reasonable inferences which mig ht be drawn therefrom. State v. Cabba ge , 571 S.W.2d 832, 835 (Tenn. 1978). Th

e credi bility of the wit

nesses, t he weig ht to be g iven thei

r te stimony , and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrg e v. State , 575 S.W.2d 292, 2 95 (Tenn . Crim. App . 1978). When the suf ficienc y of

the evide

nce is challenged, the relevant question is whether, after reviewing the evidence in the light most favo

rable to the state, any r

ational trier of fact could have found the essential elements of the crime beyond a
reasona ble doubt. Tenn. R. App. P. 13(e) ; State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concer

ning the credibi lity

of the wit nesses, the weight and value of the evidence , as well
as all factual issues raised by the e vidence are resolved by

the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S .W.2 d 856, 859 (1 956). Becaus e a verd ict of guilt aga i nst a defendant removes the presumption of innoce

nce and raises a presumpt ion of gu ilt, the convicted criminal defendant bears the burden of showing that the evidence waslegally insufficient to sustain a

guilty verdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

The defendant challenges his conviction of Class D felony eva ding arrest on the grounds that there was no evidencethat he ever received a “sig nal to stop” within the meaning of Tennessee Code Annotated§ 39-16-603 and that n one of the elementsof the crime occurred on a “street, road, alley
or highway ,” as required by the statute. While the state concedes that the evidence wasinsufficient for a Class D felony

conviction, it insists that the evidence supports a Class E felony c onviction.

The offe nse of fe lony evading arrest i s define d as follo ws: (b)(1) It is unlawful for a

ny person, while ope

rating a motor vehicle on any street, road, alley or

highway in this state, to intentionally flee or attempt to elude any-5-

law enforcement officer, afte r having received

any signa l from such officer

to bring the vehicle to a stop. (2) It is a defense to prosec u tion under this subsection that the attempted arrest w as unlaw ful. (3) A violation of subsection (b) is a Class E felony unless the flig ht or attempt to elude creates a risk of death or injury to innocent bystanders or other third pa rt ie s, in wh ic h c as e a vi ol at io n o f s ub se ct io n ( b) is a C la ss D fel on y. Tenn. Code Ann. § 39-16-603(b).

The defenda

nt argu es that because

Officer Wehenkeldid not ac tivate he r cruise r’s blue lights
or siren, there was never a “signal,” as required by the statute, t o sto p his vehicle. In matters of statutory construction, the role of t his c ourt is to ascertain and give effect to the intent of the legislat u re. State v. Will

iams , 623 S.W.2d 1 21, 124 (T enn. Crim. App. 1981 ). Unlessambiguity requires resort elsewhere to ascertain leg islative intent, judicial interpretation of a statute is restricted to the natural and ordinary meaning of the languag e used

. Roddy Mfg. Co. v. Olsen , 661 S.W.2d 868, 871 (Tenn . 1983). "Legislative enactments must be interpreted in their natural and ordinary
sense without a forced construction to either l imit or ex pand their m eaning." State v. Thomas , 635 S.W.2d 114, 116 (Tenn. 1982). "Courts must construestatutes as a whole a nd in conju

nction wit

h their surrounding parts and their interpretation should be consistent with their legislative purposes." Statev. Turner , 913 S.W.2d 158, 160 (Tenn. 1995). The meaning of a statute is to be determined notfrom specific words in a single sentence or section but from the act in its entirety in light of the general purpose o f the leg

isl atio n; any interpre

tation should express the intent and purpose of the legisla ti on. National Gas Distr ib., I nc. v. Sta

te , 804 S.W.2d 6 6, 67 (Te nn. 1991) ; Loftin v. Langsdon , 813 S.W.2d 475, 478-79 (Tenn. Ct. App. 1991). "The cardinal rule of statu tory construction is to effectuate legislative intent, with all rules of construction being [aids] to that end." Browde r v. Morr is , 975 S.W.2d 308, 311 (Tenn. 1998).

Alth ough “signal” is not defined in our code, the term is una mbiguousas it is use d in Tennessee Code A nnot ated § 39-16 -603( b). By usi ng the phras e “ any signal,” the General Assembly, in our view, intended to encomp ass a wide range of communications by an officer, not to require the use of blue lights and a siren. The proof established that the of ficer initially attempted to stop the de

fendant by u sing her

marked c ruiser to block his e

xitfrom the E

lks Lo dge pa

rking lo t. She testifie d that prio

r to driving into her cru is er, the defendant made ey e contact and gunned the engine of his vehicle. After the defendant struck her crui ser, Office

r Wehenke

l repositi oned it to again block the defendant’s pa th. The defendant, however, drove around the cruiser and, when finally forced to the side of the road, remarked, “[I ’m] not going to run anymore.”In our view, the evidence establish

es that the

defenda nt unders tood the of

fic er’s “ signal” to stop. See State v. Joe David Sloan , No. W2000-02861-CCA-R3-CD (Tenn. Crim. App., at Jackson, Jan. 4, 2002). Citing State v. Jason Eric B radb urn , No. 01C01-9712-CC-00568 (Tenn. Crim. App., at Nashville, Aug. 19, 1999), the defendant also argues that the evidence wa s insufficient for his Cla ss D felony eva

ding arrest conviction because all of the e lements of the offens e o ccurred in the Elks-6-

Lodge parking lot, rather than a public “street, r oad, alley or hig

hway,” a s requi red by

th e statute. In Bradburn , poli ce of

fice rs me t the d efendant in a Wa l-Mart p arking lot to sell him marijuana as part of a “reverse sting opera tion.” After the transaction, an officer drove hisunmarke d vehicle directly in front o f the def

endant’ s truck a

nd activa ted his blue lights. When the officer attempted to step out of his car, the defendant “looked at [him] momentarily ,” then “rammed” the car and sped
aw ay. Another officer activated his blue lights and pursued

the defe ndant thr ough the parking lot,
across Brookmede Drive, and into the parking lot of the Shady Brook Mall. The defendant arg ued that because thepursuit too

k place in a parking lot, he could not b e guilty

of felon y evading arrest. A panel o f this court held that because the defendant crossed Brookmede Dr ive, the evidence was sufficient for a ra tional jur y to fi nd th at “a t l ea st pa rt of

th e c ha se oc cu rr ed on a s tr ee t, ro ad , a ll ey, or highway .” Bradburn , slip op. at 7. In a footnote , the cour

t interpr eted the felony evading arrest statute to require that the flight take pl ace on a “public” road. Id. at n.2. Th e court neverthe

less found that the evidence was insufficient to suppor t the Class D conviction because there was no evidence that the defendant created any

risk of death or injury to a third party while he w as driving across Brookmede Drive. Id. , slip op. at 8.

In our view , the facts in this c ase canno t be distinguished from those in Bradburn . While there was evidence

that the defendant’s flight created a risk of death or injury to by standers in the Elks Lodg e parkin g lot, the risk was in the priv ate par king lot, not o n the p ublic roadway , a requirement

recognized in Bradburn . Thus, with no evidence of risk after the defenda nt entered the private street, the evidence was insufficient to sustain a conviction for ClassD felony evading arrest. Becau se the de fendan t’s fl ight fr om th e Elks Lodge parking lot was onto a public roadway , however, the evidence would have been sufficient to support a Class E f

elony conviction. The de fendant’s conviction is reversed

rather than modif

ied to the Class E felony only

because the trial court failed to pro per ly in st ruc t o n t he l ess er i ncl ude d of fen ses , as di scu ss ed i n se cti on III. The cause must be remande d, therefore, f

or a new trial on Cla ss E felon

y evading arrest. With regard to his conviction for assault, the defendant arg ues that the state failed to rebut his claim of self-defense. The state arg ues that a r at io na l j ur y co ul d h av e r ej ec te d t he de fe ns e t he or y. Assault is defined

as follow s: (a) A person commits assault who: (1) I ntentiona lly, knowing ly o

r reckl essly

causes b odily

injury to anothe r; (2) I ntenti onally or knowing ly causes a nother to reasonably

fear imminent bodily injury ; or (3) Intentionally

or k nowingl y causes physica l contact with another and a
reasona ble pers on would regard the contact as extremely offensive or provocative.

Tenn. Code Ann. § 39-13-101(a). A person is justified in using force a gainst another person when he or she reasonably

believes (1) that

death or serious b odily

injury is imminent and (2) that the forc e used is immediately necessar y to protect ag ainst the other person's use or attempted use of unlawful force. Tenn. Code Ann. § 39-11-611(a). The state has the burde n of negating any

defense raised by the supporting evidence bey ond a reasonable doubt. Tenn. Code Ann. § 39-11-201(a) (3).-7-

Initi ally charg ed with

the aggravated a ssault of LaDeana Ellis, the def endant was convicted of the lesser included offense of assault. While he does not dispute the sufficiency of the evidenc e as it relates to the elements of the crime, he does argue that the state failed to present any evidenc e to contradict his claim of self-defense.

Whether a criminal defendant acted in self-def ense is a jury

question. Wilson v. Sta

te , 574 S.W.2d 52, 54 (Tenn. Crim. App. 1978). In ou r view, th e jury could have reasonably

concluded that the severity and the

degree of thevehicular assault of Ms. Ellis was disproportionate to the threat presented. There were no we apons. That the jury c onvicted the defenda nt of the le sser off

ense as to LaDeana

Ellis and acquitted him on the charges of assaulting Sonda Ellis and Officer Wehenkel sugge sts that the jury took in to acc oun t m it iga ti ng c irc um st anc es. In short, the jury acted w ithin its prerogative in rejecting the self-defense claim.

The defenda

nt contends that the

evidenc e, which

was circ

umstantia l in natu re , was insufficient

to support the vandalism conviction because the state failed t o pr ove that his actions were “knowing .” Vanda

lism is def

ined by our code as follow s: (a) Any person w ho knowing

ly c ause s d amage to or the destruction of any real or personal property

of another or of the state, the United States, any co un ty, ci ty, or town knowing that the person does not have the owner' s effective consent is guilty of an offense under this section. (b) For the purposes of this section: (1) "Damage" includes, but is not limited to: (A) Destroy

ing, polluting or contaminating property

. . . . Tenn. Co de An n. § 3 9- 14 -1 08 (a ) – (b ). “A pe rs on ac ts kn ow in gl y wit h respect to a result of the perso n's conduct w

hen the pe rson is aw are tha

t the cond uct is reasona

bly certain to cause the result.” Tenn. Cod

e Ann. § 39 -11-106( a)(20) ; see also Tenn. Code Ann. § 39-11-302(b).

An offense may

be proven by

circumstantial evidence alone. Price v. St ate , 589 S.W.2d 929, 931 (Tenn. Crim. App. 1979). Our scope of revie w is the same when the conviction is based upon circumstantial evidence as it is when it is based upon direct evidence. State v. Brown , 551 S.W.2d 329, 331 (Ten

n. 1977); Farmer

v. State , 208 Tenn. 75, 343 S.W.2d 895, 897 (Tenn. 1961). Where the evide nce is en tirely circumst antial, the jury

must find th at the pr

oof is not only

consiste nt with the guilt of

the accused but inconsiste nt with his innocence. There must be an evidentiary basis upon which the jury

can exclu de ever

y ot her rea sonable

theory or hy

pothesis except that of guilt. Pruitt
v. State , 3 T enn. Crim. App. 256, 460 S.W.2d 385, 390 (1970). Like all other fact questions, the determination of whe ther all re asonable theorie s or hy

pothesesare excl

uded by the evide

nce is primaril y a jury question. State v. Tharpe , 726 S.W.2d 8 96 (Tenn . 1987); Mara ble v. Stat

e , 203 Tenn. 440, 313 S.W.2d 451, 457 (1958). T he jury is governed by

four rules when testing the value of circumst antial evidence: (1) The evidence should be a cted upon with caution; (2) all of t h e essential facts must be consistent with the hypothesis of guilt; (3) the f acts must exclude every othe r reasona ble theory except that of

guilt; and (4) the

facts mus t establis h such a c ertainty of guilt as to-8-

convince beyond a re asonable doubt that the d efenda nt is the perpetrator of the crime. Marable , 313 S.W.2d at 456. Photographs demonstrated damage to the re ar seat and the interior paneling of the le ft rear door of Officer Karen Wehenkel’s c ruiser. Although the officer did not personally witness the destruction, there was no damage when she began her shift and

the defendant

was the only occ

upant of the rea r seat durin g the en tire e venin g. The defendant sat in those specific area s of the back seat which were damaged. The de fendant had to reposition himself in order to dama ge the door, indicating a s pe ci fi c i nt en ti on . A t l ea st a p or ti on of th e a rm re st wa s t or n a wa y. In our view , a rational jury could have f

ound bey ond a rea sonable doubt that the defendant knowingly damaged the interior of Officer Wehenkel’s police cruise r.
II Next, rely in g on Tennessee Rules of Evidence 404 and 608, the defe ndant asserts that the trial court erred

by allowing

the state to cross- examine him

at trial r egard ing the a ffidavit of income he executed for appointment of counsel. He also contend s that adm ission of th e affid avit into evidence was improper. During cross-examination by the state, the de fendant testified that he owned a 1982 Cadillac El Dorado a

utomobile

at the time of the offenses and that he was employ ed by S&S Tree Service. When the state questioned the defendant on his affidavit, wherein he l isted no assets and no employ ment, defense

counsel lodged an objection based on Rule 404. The trial cour t determined that the evidence was material on the issue of cred ibility and allow ed the sta

te to cross-examine. The defendant then acknowledged tha

t he did not list his employment or his assets, explaining that he “couldn’t afford an attorney .”

Ini ti al ly, Tenness ee Rule

of Evidence 404, which

pertains to the admissibility of chara cter evidence, is inapplicable. The state’s cross-examination regarding the content of the affidavit was material to the defenda

nt’s cha racter for truth fulness o r untruth fulness. Rule 404( a)(3) s pecific ally provides that the r

ule is inap plicable to “[e]vidence of the character of a witness as pr ovided in Rules 607, 608, and 609,” which govern the impeachment of witnesses.

While Rule of Evidence 404 provides a limited basis for the admission of character evidence
as substantive evidence, Rule 608 permits character evidenc e to be used for impe achment purposes
. Rule 608 pr

ovides in p ertinen

t part as f ollows: Specific Instances of Conduct. Specific instances of conduct of a witness for the purpose o f attack

ing or su pporting the witne ss's cr

edibility , other thanconvictions of crimes as provided

in Rule 609, may not

be proved by e

xtrinsic evidence. They
ma y, however, if probative of truthfulness or untruthfulness and under the following condition s, be inquired into on cross-examination of the witness concerni ng the witn ess's character for truthfulness or untruthfulness or c oncerning the characte r for truthfulness or untruthfulness of another witness as to which the character wit ness-9-

being cross-examined has testified. The conditions which must be satisfiedbefore allowing inquiry on cross-examination ab o ut such conduct probative solely of truthfulness or untruthfulness are:
(1) The court

upon r eques t mus t hol d a hear ing ou tsid e the j ury's presence and
mus tdetermine that the alleged conduct has proba tive value and that a reasona bl e fa ct ua l b as is ex is ts fo r t he in qu ir y; (2) The conduc t must have occurred no more than ten y ears before commencement of the action or prosecution, . . . ; and (3) If the witness to be impeached is the accused in a criminal prosec ution, the State must

give the accuse d reason able

written notice of the impeaching conduct before trial, and the court upon request must determine that the conduct's proba tive value on credi

bility outweig hs its unfa

ir prejudicial effect

on the subs tantive is sues. The court may rule

on the admissibility of such proof pri or to the trial but in any event sha ll rule prior to the testimony of the ac cused. If the cour t makes a final determination that such proof is admissible for impeachment purposes, the accused neednot actually testify at the trial to later ch al lenge the propriety of the determination. . . .

Tenn. R. Evid. 608(b). A criminal act which does not qualify as a c

riminal conviction is governed by Rule 608.

In this instance, the state failed to provide notice of its intention to present the evidence, as required by the rule. The defendant testified on direct examination before the trial court conducted
a hearing . There

was a jury-out interruption of the c ross-examination by the state during which the trial court ruled that th

e state c ould ask

abo ut th e af

fid avi t o f in com e. In our view , the state should have given th

e defen se pre-trial notice of its intent to cross-examine the defendant on the af fidavit. Neverth eless, the err

or was ha rmless. Whi le there

was proc edural e

rror, the evidence other

wise would have been a proper basis for inquiry

. The trial court correctly adjudged credibility

to be a key issue at trial. Mult iple eyewitnesse s testified to varying versions of the events. The defendant’s alleged pe rj ur y, committed in aproceeding relative to this case, is highly probative of his character for truthful ness. F urther, because it bears no resemb lance to the char ged of fenses, any

unfair prejudicial effect was minimal. Gr antin g the de fense a dditional t

ime to pre

pare fo r the crossexamination would have served no apparent purpose.

The trial cou

rt did comm

it error by a dmitting t he affi davit

of income . The document should nothave been passed to the jury . Tennessee Rule of Evidence 608(b) pr

ovides tha

t prior ba d acts submitted for impeachment pu rposes “m ay not be pro ved by

extrinsic e

vidence .” The sta

te maintains that the affidavit was properly admitted unde r Ru le 613, which permits the use of prior inconsistentstatements to impeach a w itness. Yet extrinsic evidence of a prior inconsistent statement is inadmiss ible exce

pt u nder th e terms of Tennessee Rule of Evidence 613(b) , which providesas follow s:-10- Ext rinsic evidenc e of a pr ior incon sistent sta

tement by

a witnessis n o t admissible

unless the witness is afforded an oppor tunity to explain

or deny the same and the opposite party is aff orded an opportunity to interr ogate the witness thereon, or the interests of justice otherwise require.

See also State v. Reece , 637 S.W.2d 858, 861 (Tenn. 1982). The purpose of Rule 613(b) is to allow introduction of otherwise inadmissible extrinsic evidence for impeachment. State v. Martin , 964 S.W.2d 564, 567 (Tenn. 1998). When presented with a prior inconsistent statement a "witness then has severa

l possible r

esponses : the witne ss can admit, deny, or not remember making all or part of the st at ements." Neil P. Cohen et al., Tennessee Law of Evidence

§ 6.13[5][a] (4th ed. 2000). Extrinsic evid ence of

a prior in

consiste nt stateme

nt remain s inadmissi

ble when a witness unequivo cally

acknowledges having made the prior statement. Martin , 964 S.W.2d at 567; Cohen et al., at § 6 .13[5 ][a]. If

the witne ss admits ma

king the prior inc onsistent s tatement , any extrinsic proof of the statement would be cumulative. Here, the defendant candidly admitted the contents of his affida vit and extr

insic proof should have been excluded. Nevertheless, given the overwhe lming evidenc e of guilt, the er

ror was h armless.

III The defendant

next asserts that the trial court erred by failing to instruct the jury on the lesser included offenses of Class D fel ony evading arrest. He argues that the tria l court should have instructed the jury

on Class E f

elony evadin g arrest and m isdemea nor evad ing arr est. The s tate concedes that the trial court should have instructed on the Class E offense, but maintains that there
was no er ror by its failur e to instru ct on misde

meanor e vading arrest.
With regard to jury

instructions, the trial court has a duty “ to give a comple

te charge of the law applicable to the facts of a case.” State v. Harbison , 704 S.W.2d 314, 3 19 (Tenn . 1986); see also Tenn. R. Crim. P. 30. “[The] defendant has a constitutional right t o a corr ect and compl ete cha rge of the law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law requi res that all of the elementsof each offense be descr ibed and defined in connection with that offense. Se e State v. Cravens , 764 S.W .2d 754, 756 (Tenn. 1989). Jury instructions must, however, be reviewed in the cont ext of the overall charge ra

ther than in isolation. See Sandstrom v. Montana , 4 42 U.S . 510 (1979); see also State v. Phipps , 883 S.W.2 d 138, 142 (Tenn. Crim. App. 199 4). A cha rge is prejudicial error “i f it fails t o fairly submit the leg al issues or if it misleads the jury as to the applicable law.” State v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997).

In State v. Burns , 6 S.W.3d 453 (Tenn. 1999), our supreme court revised the standards for the determin ation of le sser inc luded off enses. In a companion case , State v. Dominy , 6 S.W.3d 472 (Tenn. 1999), our high court confi rmed tha t it had overruled that portion of State v. Tr usty , 919 S.W.2d 305 (Tenn. 1996), in which it had established a distinction between lesser grade s or classes of offenses and lesser included offenses . In Burn s , the court adopted a modified version of the Model Pena

l Code in or

der to de termine w

hat const itutes a le sser inc luded off ense:
An offense is a lesser included offense if:-11-

(a) all of its statutory elements are included wi thin the statutory elements of the offense charged; or (b) it fails to m

eet the d efinition in part (a

) only in the re spect that it cont ains a statu tory elem ent or eleme nts es tabli shin g (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm tothe same

person, p roperty or public interest; or (c) it consists of (1) f aci litation of

the offe nse char ged or of an off ense tha t otherwi se meets the definition of lesser-included offense in part (a) or (b); or (2 ) an attempt to commit th e offen se char

ged or an offe nse that o therwis e meets the definition of lesser included offense in part (a) or (b); or (3) solici tation to commit the offense charg ed or an o ffense

that othe rwise meets the definition of lesser-included offense in part (a ) or (b).

6 S.W.3d at 466-67.

Class E felony eva

ding arrest occurs when “any person, while operating a motor vehicle on any street, road, alley

or highway

in this state, . . . intentionally flee[s] or attempt[s] to elude any law enforcement

officer, after having r

eceived an y signal f

rom such officer to bring the vehicle to a stop.” Tenn. Code Ann. § 39-16-603(b)(1). I t becomes Class D felony e vading arre st w hen “the flight or attempt to elude creates a risk of dea t h or injury to innocent by standers or other third parties.” Tenn. Code Ann. § 39-16-6 03(b)(3) . Thus, because all of its statutory elements are included within the

statutory elementsof Class Dfelony evading arrest, Class E fe

lony evading arrest is a lesser included offense thereof under part (a) of the Burns analy sis.

In our view, howe ver, misdemeanor evading arre st would not qualify as a lesser included offense of Class Dfelony

evading arrest. The misde

meanor o ffense

is define d as follo ws: [I]t is unlawf ul for an y pe rson to intentionally flee by any means of

locomotion from anyone the pe

rson knows to be a law enforcement office r if the person: (A) Knows the officer is attempting to arre st the person; or (B) Has been arrested.

Tenn. Code Ann. § 39-16-603(a)(1). As such, misd emeanor evading arrest r equiresa defendant to have been arrested or to have knowledg e of his impending arrest at the time of h is flight. See id. The Class D f

elo ny o ffense , in contr

ast, req uires onl y th at a def

endant ha ve rece ived a sig nal to “stop” from a law enforcement office r. See Tenn. Code A nn. § 39-16-603(b). A signal to “stop” may be for an investigatory

stop or for something other than an arrest. B ecause misdemeanor evading arrest includes statutory elements not found in Class D fe lony evadi ng arrest, part (a) of the Burns test is not satisfied. See State v . Joe David Sloan , No. W2000-02861-CCA-R3-CD (Tenn. Crim. App., at Jackson, Jan. 4, 2002) (holding that disobedience to police officers, requiring failure to comply with “any

lawful order or direction,” is not a lesser included off ense of C lass Efelony-12-

evading arrest, which requires f ailure to comp l y w ith a spec ific sig nal to stop ); State v. Frank John son , No. W2000-00386-CCA-R3-CD (Tenn. Crim. App., at Jackson, June 26, 2001) (same); butsee Bradburn , slip op. at 12 (pre- Burn s opin ion remanding for new trial on Class E felony evading arrest and misdemeanor e vading arrest as lesser included).
Further, misdemeanor evading arrest is not a lesser inc luded offense of Class D felony evading arrest under

part (b) of the Burns test. Be cause both misdemeanor evading arrest and fe lony evading arrest require that the defendant “ intentiona

lly” flee, there is no

“diffe rent men tal state indicating a lesser kind of culpability.” See Tenn. Code Ann. § 39-16-60 3(a) – ( b); Burns , 6 S.W.3d at 467. L ikewise, misdemea

nor evad ing arr est does not present “a

less serious harm or risk of harm to the same person, prop erty or public interest” than Class D felony evading arrest. See Burns , 6 S.W.3d at 467. F

light fr om an arr esting l aw enfo

rcement o fficer, required for the misdemeanor offense, presents a serious risk of harm to those involved and, dep ending

upon the c ircumsta

nces, to third parties and bystande rs. Beca use the f light may be by

“any mea

ns of locomotion,” the misdemeanor

statute’ s applica

tion is itself broad

enough to encomp ass one of

the harm s – fligh

t in
a motor vehicle – addressed by the felony statute. Additionally , misdemeanor evading arrest may be committed on public or private property . Felony e vading arrest requires trav e l on a publi c ro ad wa y; thus, the t

wo statute s addres s different interests. Finally , because misdemeanor evading arrest does not

consist of facilitation, attempt, or solicitation to commit felony evading arrest, part (c) of the Burns test is inapplicable. In consequenc e, the trial court did not err by failing to instruct the jury on the off

ense of m isdemea nor evad ing arr est. Having determined th at Class E fe lony evading arrest i s a lesse

r include d offens e of Class D felony eva

ding arrest, our ne xt in qu ir y i s whether the evidence warra nted an instruction on the offense. See Burns , 6 S.W.3d at 467. The guiding principle is that if there is evidence in the record from which the jury could c onclude that a lesser included offense was c ommitted, there must be an instruction for the lesser offense. See J ohnson v. S tate , 53 1 S .W .2d 558 , 55 9 (T enn . 19 75) . In Burns , our supreme court adopted a two-step process f or determining whether the evidence justifies a jury instruction on a lesser included offense:
First, the trial court must determine whether any evide nce exists that r

easonab le minds could accept as to the lesser-included offense. I n making this determination, the trial cou

rt must view the evid

ence lib erally

in the li g ht most favorable to the existence of the l esser-included offense without making any judgments on the credibi lity

of such evidence. Second, the trialcourt must determine if the evidence, viewe d in this light, is leg ally sufficie nt to suppor

t a conviction for th

e less er
included offense.

Burns , 6 S.W.3d at 469. In the light most favorable to e xistence of the offense, it is our view that there is sufficient evidence to support

a convic tion for Cl ass E

felony eva

ding arrest. The

trial court erred by

failing-13-

to instruct the jury on that offense . In State v. El y , our supreme court confirmed that the failu re to charg e a lesse

r include d offens e qualif

ies as an error o f constitu

tional pro portions:

That the right of

trial by jury is of cons titutional

dimension

is evidenced by

its embodiment

in Article I, section 6 of the Tennessee Constitution, which states, "the rightof tr ial by

jury shall remain inviola

te." Ac cording ly, we hold th at this constitutional right

is violated when the jury is not permitted to consider all offenses supported by the evide

nce.
48 S.W .3d 710, 727 ( Tenn. 200 1) (emph asis in ori ginal) ; see also State v. Bowles , 52 S.W.3d 69 (Ten n. 2001). Our high court directed that in reviewing error arising from a failure to charge on e or more lesser included offenses, "the proper inquiry for an a

ppellate court is whether the error i s harmless beyond a reas onable doub t." Ely , 48 S.W.3d at 727. Here, the failure to charg e the lesser included offense of Class E felony evading arrest was not har mless beyond a re asonable doubt. The jury was instructed only on the indicted of fense o f Class D felony

evading arrest. The

evidence, however, was insufficient to support a c onviction for that offense and the jury

should not have been instructed thereon. As such, the trial court’s error was two-fold, leaving

the jury with the option of co nvicting the defe ndant of t he highest possible offense
o r acquitt ing him altogether. The defenda nt is, therefore, entitled to a new trial on the offense of Class E fe

lony evading arrest.

IV Fi na ll y, the defe

ndant ass erts that the trial court erred by denying his request for a jury instruction on the def

ense of e ffectiv e consen

t as to the c

harge of agg ravate d assault

upon LaDeana Ellis. The

state maintains tha

t the def ense is no t raised by the facts

. The effective consent defense is contained in Tennessee Code Annotated § 39-13-104:

When conduct i s charg ed to cons titute an o ffense under thi s part be cause it
causes or threatens bodily injury , effectiveconsent to such conduct or to the infliction of such injury is a def

ense if: (1) The bodily injury

consentedto or thre atened b y th e conduct consent

ed to is not serious bodily injury ; or (2) The c onduct and the har m are re asonably

forese eable ha

zards: (A) Of joint participation in a lawful athletic contest or competitive sport; or (B) For any

concerted activity

of a kind not forbidden by la w.
“‘Effe ctive consent’ means assent in fact, whether express or appa rent, including assent by

one legall y autho rized to act for another.” Tenn. Code Ann. § 39-11-106(a )(9). The Sentencing Commission Comments indicate that the effective consent defense wa s intended to apply “wher e the conduct and i n jury are reasonably

foreseeable hazards of sports or other lawf ul activities, such as-14-

medical treatments, scienti fic experiments or an occupation.” Tenn. Code Ann. § 39-13-104, Sent encing Commission Comments; see also State v. John Malone , No. M2000 -02265-C CA-R3-CD (Tenn. Crim. App. , at Nash vil le, Nov. 16, 2001) (noting application contemplated by Sentencing Commission Comments and holding defense inappl ic able to defendant’s assault upon merchant attempting to detain him for shoplifting).

In our view, the facts presented do not implicate the defense of e ffective consent. The threat of bodily injury

posed to LaDeana Ellis by the defendant’s actions, striking her with a moving vehicle, was “serious.” See Tenn. Cod e Ann. § 39 -13-104( 1). Ms. Ellis and the defendant were not engaged in any joint

activity at all, sporting or otherwise, prior

to their altercation. See Tenn. Code Ann. § 39-13-104(2). Finally , there was no evidence at trial that Ms. Ellis provided

either e xpress or apparent consent to being struck by the defendant’s car.

The judgment of conviction for Class D felony evading arrest is rever sed and the caus e is remanded for a new trial on a charg e of Class E felony evading

arrest. Otherwise, the judgments of the trial court are affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE