### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y

8, 200 7
ST A TE OF TE N N ES SE E V
. GU Y M A R TI N

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 05-04311 Jam es C. Beasley, Jr ., Judge

No. W2006-01851-C CA-R 3-CD - F iled Jul y 24, 2007

Appellant, Guy

Martin, was found g uilty by a jury of ag g ravated robbe ry

and intentionally

evading
arr est in a motor vehicle. As a result, the trial court sente nced him to an e ffe ctive sente nce of nine y e a rs . F o l l o w i n gt h e d e n i a l o f a m o t i o nf o r n e w t r i a l , A p p e l l an ti n i t i a t e d t h i s a p p e a l

. O na

pp e a l, Appellant ar g ues that the e vidence is insuff icient to sustain his c onvictions. As part of his ar g ument that the evidenc e is insufficient to support the c onvictions, Appellant cha lleng es the trial c ourt’s denial of h i s m o tion to suppress the photogr aphic lineup a s unduly sug g estive. B eca

use the photogr aphic lineup wa s not unduly s ug g estive and the re w as evide nce pr esente d from which a rational juror

could conc lude that Appellant c ommitt ed ag g ravated robbe ry and intentionally

evade d
arr e st i n a mot or ve hic le , w e a ff

ir m th e jud g me nts of

the tr ia l c ourt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Tr ialCo ur t a r e Affir m e d.

J ER R Y L. S MI TH , J ., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and N OR MA M C G EE O G LE , J ., joined.

Melanie E. T aylor, Memphis, Tennesse e, for the appe llant, Guy

Martin.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l & Rep or

te r; Re ne e W. T ur

ne r, As sis tant A tto rn e y

Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and D avid Pritchard, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

Factual Back

ground

I n J une of 2005, A

ppellant was indicted by

the Shelby

County Gra nd J ury for one count of ag g ravated robbe ry

and one c ount of intentionally evadingarr est in a motor vehicle

. At trial, the victim, L atasha Var daman, testified tha

t o n Marc h 2, 2005, at appr ox imately 4:00 p.m., she went to her

g randmother ’s apa

rtment at 5166 Tulane in Memphis, Tennessee to pick up her children. As she was in the proce ss of loading her children into the car , she was approa ched by two Afric an-A merica

n males. At that time, the victim’s three -y ear -old daug hter was alre ady in the
car , and she w as in the proc ess of placingher se ven-month-old son in the ca r. The f irst male orde red her to g ive him the car key s. The man state d, “B itch, if y ou scre am, I am g oing to shoot y ou, g ive me the key s for the car .” The man pointed a silver g un at the victim. The victim handed ove r the key s. The victim stated that she trie d to ge t her son out of the c ar, but t h at o n e of the men had alre ady remove d him from the ca

r. During the enc ounter, the vic tim was terrifie d and wor ried a bout her c hildren. At some point, the victim’s daug hter mana g ed to g et out of the ca r by herse lf. Neither of the me n w e re we ari ngma sk s, so the vic timwa s a ble to g e t a

g oo d lo ok

a t th e ir fa c e s.
Once the children wer e remove d from the car , the men took of f in the ca r, a 1999 bur g undy Chevrolet Cavalier. The victim’s g randmother called the police, who a

rrived two or

three minutes later.

Severa l day s later, the victim wa s able to identify Ger ald J ohnson as one of the per petrators from a photog raphic lineup. The vic t i m wa s l at er c alled bac k to the police station wher e she identified Appe llant in another photog raphic lineup. The victim s t at ed that she could identify Appellant base d on his ey es and the structure of his nose and f ace . The victim also iden t i fi ed Ap pe lla nt at tr ia l.
At trial, the victim testified that she initially descr ibed Appellant to police a s five fe et, four inches tall with braids a

nd dark spots on his fac e. I n contra st, the victim’s sworn statement to police descr ibed Appellant a s five fe et, seve n inches tall and a pproxi mately

one hundred ninety five pounds with a low hair c ut. The victim also admitted that she told police off icer s that one of the pe rpetrators took her daug hter out of the car when it wa s, in f act, her son that was re moved from the c ar by one of the men. The victim ex plained that she g ot c onfused beca use she was shaken up a

nd nervous.

Ger ald J ohnson, one of the me n responsible for the robbery , testified t hat he saw Appellant
a t a g a s s tati o n o n th e c o r n e r o f T u la

n e an d Sh e lb y dr iv e o n M ar c h 2 , 2 0 0 5

. A p p e ll an t a s k e d Mr. J ohnson if he wa

nted to car

jack someone . Mr. J ohnson told Appellant he “didn’t car e,” so they ran a c ro ss t he str e e t to wa

rd the Tu lane Ap artme nts

. Acc ording to Mr. J ohnson, Appellant starte d walking toward the v i ct i m ’s car, then ra n up to the victim, pointed a g un at her and dema

nded her key s. Contrary

to the victim’s testimony , Mr.-3-

John so n te sti fi e d th a t the g un wa s bla c k, no t sil ve r. Whe n Ap pe lla nt po int e d the g un a t th e vic tim , Mr . Joh ns on

wa s st and ing in fr on t of

the c ar. Ap pe lla

nt a sk e d M r. John so n if

he wa nte d to g e t in the ca r with him, so Mr. J ohnson walked around to the passeng er side of the ca r. When he ope ned the door to the c ar, he saw a baby

. Ap p el lant told Mr. J ohnson to ge t the baby out of the ca

r. Acc ording to Mr. J ohnson, he held the door open so that the victim could re move her son from the
car

. On ce t h e i n fa n t was re moved from the c ar, the two men took off. Appe llant drove a nd Mr. J o h n s o n ro d e in the passeng er se at. They drove to Mr. Johnson’s neig hborhood and A ppellant dropped Mr . J ohnson off at a frie nd’s house. Mr. Johnson testified that he did not remember being chase d by the police while the y

wer e in the stolen ca

r. Mr. Johnson was arre sted later that after noon and admitted his involvement in the crime se vera l day s later. At that time, Mr. Johnson identified Appellant as the main ag g ressor in the r obbery

.
Mr. J ohnson testified that at the time of the r obbery he wa s on probation for bur g lary of a building and that he had se rved some time in jail f or a theft of pr operty

char g e in 2003. Mr. Johnson state d th a t he ho pe d to g e t a fa ir ou tc ome on

his pa ro le vio la tio n h e ari ngin e xch ang e fo r h is testimony ag ainst Appellant.

Of fi c e r E lla so n F la g g of

the Me mph is Po lic e De pa rt me nt t e sti fi e d th a t he wa s on p a tr ol i n the Whit e have n, Wes tw oo d a re a of Me mph is o n M arc h 2 , 2 00 5, whe n he hear d a br oa dc a st descr ibing a vehicle that had been i nvolved i n a carjac king. The car was descr ibed as a burgundy Chevrolet Cava lier with tinted windows and Mississippi tag s.
Of fi c e r F la g g sp ott e d th e c ar at th e c or ne r o f L e a c re st a

nd B owStr e e t and

ini tiate d p ur su it by activatinghis blue lights and sire n in an attempt to stop the car . Acc ording to Office r Flag g , the driver of the car sped off at a high rate of spee d. Offic er F lag g was a ble to pursue the suspe cts for two or three minutes, but eventually lost sight of the c ar. The car was rec overe d sever al blocks aw ay by other police office rs. The suspe cts wer e not in the ca r whe n it was rec overe d.

Of fi c e r F la g g c ou ld n ot p os iti ve ly ide nti fy Ap pe lla nt a s th e dr ive r of the c ar, bu t w a s c e rt a in that the ca

r wa s occupie d by

two Afric an-A merica

n males. When Of

fi cer Flag g first saw the c ar, the driver was trave ling at a normal rate of speed throug h a re sidential neig hborhood. Afte r Off icer Flag g initiated a pursuit of the c ar, the driver spe d up, ran severa l stop signs and re fused to stop the
car

.
L ieutenant B rad N ewsom interview ed the victim seve ral da y s aft er the incident. He put toge ther a photogr aphic lineup that included Mr. J ohnson’s picture. A fter vie wing the lineup, the victim identified Mr. J o h n s o n as o ne of the perpe trators. L ieutenant Ne wsom interviewe d Mr. J ohnson, who admitted his involvement in the crime and implicated Appe llant as the lea der in the
c omm iss ion

of the ro bb e ry . A t th a t po int , L ieut enan t N e ws om p re pa re d a se c on d p ho tog ra

ph ic lineup that included Appe llant. The victim identified Appellant f rom the lineup.

Of fi c e r A nto nio Gr ay

wa s d isp a tc he d to 42 60 Wes tmo nt on Mar ch 4, 20 05 , to a rr e st Appellant. W h en h e an d sever al other of fice rs ar rived at the addre ss, they knocked on the door.-4-

Appellant’s mother

answe red the door, but denied the office rs ac cess to th e re s i d en ce. As the office rs started to le ave, one of them saw someone running throug h the house toward the back door

. The off icer s appre hended A

ppellant as he came out the back door of the re sidence

. Appellant offe red proof at trial in his defe nse. Cleo Wil liams, A ppellant’s s tep-father, testified that he lived at 4260 Westm ont with Appellant’s mother. Ac cordingto Mr. Wil liams, on Marc h 2 , 2 00 5, he wa s p re pa ri nga bir thd ay ba rb e qu e fo r h is b ro the r, and Ap pe lla nt wa s at th e ho us e most of the day

to help with the prepa

rations. Mr. Willi ams stated that Appe llant le ft the house on two differ ent occ asions for a bout twenty

or twenty -five minutes.

Ta bit ha Willi a ms, Ap pe lla

nt’ s si ste r, st ate d th a t sh e a lso liv e d at 42 60 Wes tmo nt w ith Appellant. On Ma

rch 2, 2005, Ms. Willi ams testified that Appellant took her to pick up he r childre n at appr ox imately

2:00 p.m. After they

picked up he r childre n, they went to the store. The y returne d to the residenc e at a

pproxi mately

4:00 p.m.

Martha Ma

rtin, Appellant’s mother, was called as a rebuttal witness for the State. Acc ording to Ms. Martin, she informed a n investigator that Appellant wa s at home all day and that he did not le a ve the ho us e a t all. Ms. Mart in te sti fi e d tha t she fo rg ot that App e lla nt h a d g on e to t

he sto re wi th her daug hte r

. M s

. M arti nd e n ie d th a t s h e to ld

th e p o li c e th a t A

p p e ll an t w a s n o t h o me w h e nth ey came to her house to a

rre st Appellant. Fur

th er , Ms. Martin testified that Appellant wa s arr ested inside the house rather than outside the house

. At the conc lusion of the proof, the jur y found Appe llant guilty of ag g ravated robbe ry and intentionally evading arr est in a vehicle . At a sente ncinghear ing, the trial court se ntence d Appellant as a Rang e I

standard of

fende r to nine y ear s for the a g g ravated robbe ry conviction and two y ear s for the i ntentionally evading arr est in a mot or vehicle conviction. The trial court ordere d the sentenc es to run conc urre ntly , for a

total effe ctive sente nce of nine y ear s. Subsequently , Appellant filed a mot ion for new t rial i n which he a rg ued, int e r a lia , that the trial court erre d in denying the motion to suppress the photogr aphic lineup and that the e vidence was insufficient to support the c onvictions. The trial cour t denied the motion, and Ap p ellant soug ht revie w in this Court. On a ppeal, Appe llant ag ain cha lleng es the suff iciency of the e vidence . As part of his argume nt that the e vid e nc e wa s ins uf fi c ie nt, Ap pe lla

nt a g a in argue s that t he p ho tog ra ph ic lin e up wa s und

uly su g g e sti ve and

pr e jud ic ia l.

An aly sis On appe al, Appellant c ontends that the evidenc e was insufficient to identify him as the man who robbe d the victim a

nd as the individual who wa s involved in the high- speed c hase w ith Office r F la g g . Sp e c if

ic a lly , App e lla

nt a rgue s th a t th e “ ph oto sp re a d w a s so un du ly su g g e sti ve that it prejudice d him and the end result was a conviction for a crime he did not commit” and “no rational trier of fac t could have found hi m g uilty ” of the crimes as charg ed. The State c ounters that the jury ha d “ a mpl e e vid e nc e ” of Appe lla nt’ s id e nti ty

to s up po rt

the ro bb e ry

c on vic tio n a

nd “ a mpl e-5-

circ umstantial evidence ” to support the convic tion for inte nti o n a ll y evadingarr est in a motor vehicle

. Whil e Appe llant’s brief te chnica lly only prese nts one issue to this C ourt, we interpre t the argument section of Appe llant’s brief as raising two distinct issues: (1) whether the trial court e rre d in denying his motion to suppress the p h o t o gra p h ic lineup; and (2) whether the evidenc e wa s su ff ic ie nt t o s up po rt

the c on vic tio ns

. Prior to trial, Appellant filed a motion to suppress the photog raphic lineup. Appellant ar g ued that his picture wa s the only picture that depicted a

man with “bra ids” in the phot o gra phic lineup and, as suc h, the lineup was unduly sug g estive. Afte r a hear ing, the trial court de termined that the photogr aphic lineup wa s not improperly sug g estive. The court found that the men depicted in the
arr ay looked similar enoug h so as not to make any one in d i v i d u al s t an d out from the re st, even tho ug h App e lla

nt w a s th e on ly

man in the arr ay wi th w hat a

pp e are d to be sh or

t “ br a ids .” As a

re su lt, the trial cour

t denied Appe llant’s motion to s uppress.

I n re v ie w in g a

tr ia l c o u r t’ s d e n ia l o f

a mo ti o nto s u

p p r e s s , th is Co u rt i s b o u n d b y th e trial court’s f indings of f

act unless the evidence preponde rate s otherwise. State v. Y eargan , 958 S.W .2d 626, 629 (Tenn. 1997) . Howeve r, the lawas applied to those f acts is subject to de novo revie w. Id. Appellant bea

rs the burde n of demonstrating that the evidence preponder ates ag ainst the t rial cour t’s finding s. State v. Odom , 928 S.W .2d 18, 22-23 (Te nn. 1996).

Out-of-Court Identifications

Out-of- court e y ewitness identifications as well as in-cour t ide ntifications may

be cha lleng ed on constitutional grounds. Adefe ndant’s rig ht to due proce ss is viol ated if, under the totality of the
c ir c ums tanc e s, “ the ph oto g ra ph ic ide nti fi c a tio n p ro c e dure wa s so imp e rm iss ibl y su g g e sti ve as t o g ive rise to a ve ry

substantial likelihood of irrepa rable misidentification.” Simmons v. U.S. , 3 90 U. S. 37 7, 38 4 ( 19 68 ); Stovall v. Denno , 3 88 U. S. 2 93 , 3 02 (1 96 7) ; s e e a ls o S ta tev

. S tr ic k land , 885 S.W .2d 85, 88 (Tenn. Crim. App. 1993) . “Sug g estive conf rontations are disapproved be cause they incre ase the likelihood of misidentification, and unnece ssarily sug g estive ones a

re c ondemned f

or the further reason that the incr ease d chanc e of misidentification is gratuitous.” Ne il v . B igge rs , 409 U.S. 188, 198 (1972). Examples of impermissibly sug g estive identification procedur es include:

That all in the l ineup but the s uspect were known to the identifying w itness, that the oth e r p art ic ip ants ina

lin e up we re g ro ssl y

dis sim ila r i n a pp e ara nc e to t he su sp e c t, that on ly th e su sp ect wa s r e qu ir e d to we ar d ist inc tiv e c lot hin g wh ic h th e c ulp ri t
a lle g e dly wo re , th a t th e wi tne ss is to ld b y the po lic e that th e y

have c a ug ht t he c ulp ri t afte r which the defe ndant is broug ht before the witness alone or is viewed in jail, that the s uspect is pointed out befor e or dur ing a lineup, and that the pa

rticipants in the lin e up are a sk e d to tr

y on an a rt ic le of c lot hin g wh ic h f

its on ly the su sp e c t.

United States v. W

ade , 388 U.S. 218, 233 (1967) (f ootnotes omitt ed).-6-

Although a

n identification procedure might be unne cessa rily sug g estive, the e nsuing ide ntifications may be admissible at trial if the identification wa s nonetheless re liable. Ne il , 409 U.S. at 199-201. The fa ctors to be c onsidered in de termining the re liability of the identification include:
[T] he opportunity

of the wi t n es s to view the cr iminal at the time of the cr ime, the witness’ deg ree of attention , t h e acc urac y of the witness’ pr ior descr iption of the criminal, the leve l of ce rtainty demonstrated by

the witness at the confr ontation, and the leng th of time betwee n the cr ime and the c onfrontation.

Id. a t 19 9; see State v . Edwards , 868 S.W .2d 682, 695 (Tenn. Crim. App. 1993)

.
I n th is c a se , w e a g re e wi th t he tr ia l c ourt

that th e ph oto g ra

ph ic lin eup was no t un du ly sug g estive. The photogr aphic arra y depicted six Afric an-A merica n males of similar ag e with similar fac ial char acte ristics, hair color and hair leng th. The hairsty les of t he men in the photogra phic ar ray wer e similar enoug h that no one man stood out mere ly beca use of a distinctive hairsty le. I n addition, the victim testified at trial that she identifie d Appellant fr om t h e l i n eu p b ased on his ey es in the photogr aph, not his hairsty le. Moreove r, even if the l ineup had been sugg estive, we find the victim’s identificati o n o f Appellant to be none theless re liable. The vic tim had plenty of time to view Appellant duringthe robbe ry , Appellant’s f ace was unmaske d, and the victim had no idea that Mr. J ohnson had alre ady implicated Appellant in the crime at the time that she easily identified him from the phot og raphic lineup. Under these c ircumstance s, we find the vic tim’s identification of Appellant reliable . Appellant is not entitled to relief on this issue.

Sufficiency of the E

videnc e Moving ne x t to our analy sis of the sufficie ncy of t h e evidenc e, we rec og nize that when a de fe nd ant c ha lle ng e s th e su ff ic ie nc y of the e vid e nc e , th is C ourt is oblig e d to re vie w t hat c la im
acc ording to cer

tain well-settled pr inciples. A ver dict of guilty , rende red by a jury and “a pproved by the trial judg e, ac cre dits the testimony of the” State’s wit nesses and resolves a ll conflicts in the testimony in favor of

the State. State v. Cazes , 8 75 S.W. 2d 25 3, 25 9 ( Te nn . 1 99 4) ; Sta te v . H arris , 839 S.W .2d 54, 75 (Tenn. 1 9 92). Thus, althoug h the ac cused is orig inally cloake d with a pr e su mpt ion

of inn oc e nc e , the jur

y ve rd ic t of g uil ty re mov e s thi s p re su mpt ion “ and re pla c e s it

wi th one of guilt.” Sta te v . Tu

gg le , 639 S.W .2d 913, 914 (Tenn. 1982). Henc e, on appe al, the burde n of proof r ests with the defe ndant to demonstrate the insufficienc y of the convicting evidenc e. Id. The rele vant question the re viewing cour t m u st answer is whether a

ny rational trier

of fa ct could have found the a ccuse d g uilty

of eve ry element of

the offe nse beyond a re asonable doubt. See Te nn . R. Ap p. P. 1 3( e ); Ha rri

s , 839 S.W .2d at 75. I n making this decision, we ar e to ac cord the State “the strong est leg itimate view of the evidenc e as w ell as all re asonable and leg itimate infere nces that may be dra wn there from.” See Tug gle , 639 S.W .2d at 914. As such, this Court i s p re cl u d ed from
re- weig hing or

rec onsidering the evidenc e whe n evaluating the convicting proof. State v. Morgan , 92 9 S. W.2 d 3 80 , 3 83 (T e nn . Cr im. Ap p. 19 96 ); Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990). Moreove r, we may not substi t u t e our ow n “infe renc es for those draw n by

the-7-

trier of fac t from circ umstantial evidence .” M atthe ws , 805 S.W .2d at 779. Fur ther, que stions of witness cre dibilit y , the weig ht a nd value of evidenc e, and resolution of conflicts in the evide nce a re entrusted to the trie r of f

act. Odom , 928 S.W .2d at 23. Appellant wa s convicted of ag g ravated robbe ry . Pursuant to T.C.A. § 39-13-401, robbe ry is defined a s “the intentional or knowingtheft of pr operty from the pe rson of another by violence or pu tti ng th e pers on

in f e ar. ” Ag g ra

vate d r ob be ry

is r ob be ry

that is “ a c c omp lis he d w itha de a dly
we a po n or by dis pla

y of any art ic le us e d or fa sh ion e d to lea d the vic tim to r e a so na bly be lie ve it t o be a de adly

wea pon.” T.C.A. § 39-13- 402.
At the outset, we acknowle dg e that it is well-settled that the i dentifica tion of a defe ndant as the per petrator of the c rime is a question of fac t for the jury to determine. State v. Strickland , 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993) . Viewingthe evidenc e in a light most favor able to the State, the victim made a p o s i t i v e identification of Mr. J ohnson from a photog raphic lineup at the police station. Then, after the police int ervie wed Mr. Johnson, he admitted his involvement in the robbery
and imp lic a te d App e lla

nt as the se c on d indi vid

ua l invo lve d in th e ro bb e ry . A t th a t po int , th e vic tim
was a ble to identify

Appellant from a photogra phic l ineup. The victim ag ain pos itively identified Ap pe lla nt a t tr ia l and te sti fi e d th a t du ri ng th e en c ounte r, sh e ha d a pp ro xima te ly

tw o mi nu te s to observe Appellant and Mr . J ohnson and that neither man was wearinga mask. We dete rmine that the proof offe red at trial was more than s ufficie nt to support Appellant’s conviction for ag g ravated robber y . Appellant is not entitled to relief on this issue. Appellant wa s also convicted of intentionally

evadingarr est in a motor vehicle

. Our c ode makes it “unlaw ful for a

ny person, while ope rating a motor vehic le on any s tree t, road, a lley or highw ay in this st ate, to intentionally flee or attempt to elude a ny law enf

orce ment office r, af

ter having rec eived a

ny signa l from the officer to bring the vehicle to a stop.” T.C.A. § 39-16- 603(b)( 1).

The e vidence prese nted at trial indicated that Appellant was the driver of the c ar stolen f

rom the victim. Both the victim a nd Mr. J ohnson testified that Appellant g ot into the driver ’s seat of the
c a r an d s p e d aw ay f

r o m t h e s c e n e o f t h e r o b b e r y

. T h e v i c t i m d e s c r i b e d h e r c ar t o p o lic e wi thi n minutes of the robbe ry . At that time, a ca ll was place d over the radio for police to be on the lookout for the vic tim’s car. O ffice r F lag g t estified that he e ncounter ed the ve hicle that matche d the descr iption of the victim’s c ar and wa s able to see that there wer e two Af rica n-Amer ican men in the
c ar. Of fi c e r F la g g a c tiv a te d h is b lue lig hts and sir e ns to s ig na l to the c ar to pu ll ov e r. At the tim e he e nc ounte re d th e c ar, it w a s b e ing dr ive n no rm a lly , bu t it a c c e le ra te d a s so on

a s h e tur ne d o n h is lights and sire n. Offic er F lag g pursued the c ar, but e ventually lost sight of the car

. At trial, Off icer Flag g stated that he could not say with cer tainty that Appellant was the driver of t he car. Of course , a criminal offe nse may be established exclusively by circ umstantial e vidence

. State v. Tharpe , 726 S.W. 2d 89 6, 89 9- 90 0 ( Te nn . 1 98 7) ; State v. Jone s , 901 S.W .2d 393, 396 (Tenn. Crim. App. 1995)

. Howeve r, t he trier of fact m ust be able to “dete rmine from the proof that all other re asonable theories except that of g uilt are e x cluded.” Jones , 9 01 S.W. 2d a t 39 6; see also, e .g., Tharpe , 726 S.W .2d at 900. The e vidence here in, while circ umstantial, was suffic ient enoug h for th e j u ry t o infer that-8-

Ap p el l an t w a s s t i l l dri v i n g t h e c ar af t er i tl ef tt h e s ce n e o f t h e r o b b ery an d ev ad edOf

fi ce r F l agg when he attempted to stop the ca r. Appe llant is not entit led to relief on this iss ue.
Conclusion

For the fore g oing r easons, the judg ments of the trial c ourt are aff irmed.

___________________________________ J ERRY L . SMI TH, JUDGE