IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9512-CR-00370

)

Appellee, )

) SHELBY COUNTY

)

V. )

) HON. W. FRED AXLEY, JUDGE

JASON MORIN, )

) (AGGRAVATED ASSAULT, 

Appellant. ) RECKLESS ENDANGERMENT)

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY JOEL WILLIAMS JOHN KNOX WALKUP 

147 Jefferson Avenue, Suite 909 Attorney General & Reporter

Memphis, TN 38103

S. SCOTT JACKSON 

Assistant Attorney General

500 Charlotte Avenue 

Nashville, TN 37243-0491

JOHN W. PIEROTTI 

District Attorney General

JUDSON W. PHILLIPS

Assistant District Attorney General

201 Poplar Avenue, 3rd Floor

Memphis, TN 38103 

OPINION FILED ________________________

AFFIRMED AS MODIFIED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure. He was convicted of two counts of aggravated

assault and one count of reckless endangerment following a jury trial in Shelby

County Criminal Court. The Defendant was sentenced to six (6) years on one

aggravated assault charge and four (4) years on the other aggravated assault

charge to be served concurrently. The Defendant was sentenced to two (2) years

on the reckless endangerment charge to run consecutively to the aggravated

assault sentences. He argues three issues in this appeal: (1) Whether the trial

court erred in disallowing cross-examination concerning the police pursuit policy;

(2) whether the trial court erred in instructing the jury that it could convict the

Defendant on both counts of the aggravated assault based upon one single

transaction; and (3) whether the trial court erred in sentencing the Defendant to

consecutive sentences. As modified, we affirm the judgment of the trial court.

In the early morning hours of September 10, 1994, the Defendant and his

friends were at a bar called Mugs in the Raleigh area of Memphis. Police were

called to the scene because of an altercation in the bar. When the police began

to arrive, the Defendant ran out of the bar, carrying what was thought to be a

club. He then jumped into the vehicle in which he had come to the bar with a

friend, and drove out of the parking lot. The officers who were responding to the

call followed the Defendant signaling him to pull over. The Defendant did not

stop and proceeded to lead the officers on a high speed chase that lasted twentyfive (25) to thirty (30) minutes. The speeds reached during the chase were
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estimated to be around seventy miles an hour. At certain points during the

chase, the speed reached was twice the speed limit of the area.

The chase led to several dangerous situations. At one point during the

chase, the Defendant hit a dog. The Defendant also drove onto a field that was

located behind a local high school. He proceeded to drive around in circles while

on the field with the police chasing him. After driving off the field, the Defendant

ran a stop sign. As he was running this stop sign, the Defendant ran into a police

car driven by Officer D. R. Williams, spun around 360 degrees and continued to

flee. Officer Williams hit his head against the window of his vehicle making him

dizzy, and he was unable to work the remainder of his shift. Officer Williams also

sustained an injury to his leg, but did not receive medical attention. The

Defendant eventually came to a stop at a dead end street and attempted to flee

on foot. He was caught and arrested.

I.

The Defendant’s first issue is whether the trial court erred in not allowing

the Defendant to cross-examine the police officers, who testified at trial,

concerning their violation of the police pursuit policy. Following a discussion out

of the presence of the jury, the trial court ruled that the Defendant could not

cross-examine the officers concerning the Memphis Police Departm ent’s pursuit

policy. The State’s objection, which was sustained by the trial court, was that the

pursuit policy was not relevant to the proceedings. The Defendant now argues

that the pursuit policy was indeed relevant, and the trial court erred in sustaining

the State’s objection.
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Rule 401 of the Tennessee Rules of Evidence states that relevant

evidence is “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” The Advisory Commission

Comments that accompany Rule 401 state, “[t]he materiality concept is found in

the words, ‘any fact that is of consequence to the determination of the action.’

To be relevant, evidence must tend to prove a material issue.” See also, State

v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978).

In its brief the State argues that the police pursuit policy is not a material

issue in the case sub judice. We agree. The issue at trial was whether the

Defendant was guilty of reckless endangerment and aggravated assault.

Whether the officers violated the police pursuit policy had no bearing on the

Defendant’s guilt or innocence.

This issue is without merit.

II.

The Defendant’s second issue is whether the trial court erred by instructing

the jury that it could convict Defendant on both counts of the aggravated assault

charges, based upon one single transaction and involving one criminal mental

state. The Defendant was indicted on two counts of aggravated assault. The

first count alleged that Defendant, “on Septem ber 10, 1994, in Shelby County,

Tennessee, and before the finding of this indictment, did unlawfully and

intentionally, by use of a deadly weapon, to-wit: a motor vehicle, cause bodily
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injury to D. R. Williams, in violation of T.C.A. 39-13-102.” Aggravated assault

under this provision is a Class C felony. The second count alleged that

Defendant, “on September 10, 1994, in Shelby County, Tennessee, and before

the finding of this indictment, did unlawfully and recklessly, by use of a deadly

weapon, to-wit: a motor vehicle, cause bodily injury to D. R. Williams, in violation

of T.C.A. 39-13-102.” Aggravated assault under this provision is a Class D

felony. These two counts are both for aggravated assault stemming from the

collision between the Defendant and the officer. The two aggravated assault

charges are identical except for the mental states of intentional in Count 1 and

reckless in Count 2.

We find that these two convictions for aggravated assault violate the

double jeopardy clause of the United States and Tennessee Constitutions.

Therefore, the our court will address the issue of double jeopardy as this is plain

error. “An error which has affected the substantial rights of an accused may be

noticed at any time . . . in the discretion of the appellate court where necessary

to do substantial justice.” Tenn. R. Crim. P. 52(b).

Double jeopardy is a long-standing principle in both the United States and

Tennessee Constitutions. This court recently addressed Double Jeopardy in

State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App. 1994):

The double jeopardy clauses of the United States and Tennessee

Constitutions guard against three evils: a second prosecution after

acquittal for the same offense; a prosecution for the same offense

after conviction; and multiple convictions or punishments for the

same offense. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81

L.Ed.2d 425(1984); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct.

2221, 2225, 53 L.Ed.2d 187 (1977). The common denominator of

each is whether the offenses involved are the same. Before multiple
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convictions can stand, it must be clear that the offenses supporting

the convictions are “wholly separate and distinct.” State v. Goins,

705 S.W .2d 648, 650 (Tenn. 1986).

Pelayo, 881 S.W .2d at 10. 

The Tennessee Supreme Court recently set out the requirements for

resolving a double jeopardy punishment issue under the Tennessee State

Constitution. These requirements are:

(1) a Blockburger [v. United States, 284 U.S. 299 (1932)] analysis

of the statutory offenses; (2) an analysis, guided by the principles of

Duchac [v. State, 505 S.W.2d 237 (Tenn. 1973), cert. denied, 419

U.S. 877 (1974)], of the evidence used to prove the offenses; (3) a

consideration of whether there were multiple victims or discrete acts;

and (4) a comparison of the purposes of the respective statutes.

None of these steps is determinative; rather the results of each must

be weighed and considered in relation to each other.

State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996).

When an incident violates two distinct statutes and it needs to be

determined whether there are two offenses or one, the test to be applied under

Blockburger is, “whether each provision requires proof of an additional fact which

the other does not.” Blockburger, 299 U.S. at 304. The Defendant was twice

convicted of aggravated assault, once under Tennessee Code Annotated section

39-13-102(a)(1)(B) and once under Tennessee Code Annotated section 39-13-

102(a)(2)(B). These provisions are identical except for the mental state required

for each one. The statutes in the case sub judice clearly do not require proof of

an additional fact. Both require the proof of an assault with a deadly weapon, but

with different mental states. The facts required are the same.
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The analysis required under Duchac is based on the actual evidence in the

case. Duchac stated the test as:

“One test of identity of offenses is whether the same evidence is

required to prove them. If the same evidence is not required, then

the fact that both charges relate to, and grow out of, one transaction,

does not make a single offense where two are defined by the

statutes. “[sic] If there was one act, one intent, and one volition, and

the defendant has been tried on a charge based on that act, intent,

and volition, no subsequent charge can be based thereon, but there

is not identity of offenses if on the trial of one offense proof of some

fact is required that is not necessary to be proved in the trial of the

other, although some of the same acts may necessarily be proved

in the trial of each.”

Duchac, 505 S.W.2d at 239 (quoting 21 Am. Jur. 2d, Criminal Law, § 82). The

evidence required to prove each of the Defendant’s aggravated assault

convictions is the incident of him running into the car of Officer Williams.

Therefore, the same evidence is required to prove each conviction.

Continuing the analysis set out in Denton, there were not multiple victims.

The indictment specifically names the officer as the injured party in both of the

aggravated assault counts. The fourth requirement, comparison of the purposes

of the respective statutes is the final part of the analysis. It can safely be

assumed that the purposes of the two aggravated assault statutes are the same.

In this case, dual convictions of the Defendant for aggravated assault

violate the protections against Double Jeopardy. It is clear under the analysis

required under Denton, that the Defendant has been convicted twice of the same

crime for one particular incident.
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Therefore, the Defendant can only have one conviction for aggravated

assault. When a defendant has been convicted of two counts for one transaction

and one offense is a lesser included offense to the other, the offenses can be

merged resulting in one conviction. State v. Banes, 874 S.W.2d 73, 81 (Tenn.

Crim. App. 1993). The first count of aggravated assault is a Class C felony and

the second count is a Class D felony. The mental state required for the first

conviction is “intentionally” and the mental state required for the second count is

“recklessly.” The test to determine whether something is a lesser included

offense of another is whether “it is impossible to commit the greater offense

without first having committed the lesser.” State v. Layne, 623 S.W.2d 629, 637-

38 (Tenn. Crim. App. 1981). It is evident in the case sub judice that one could

not commit aggravated assault, Class C felony, without committing aggravated

assault, Class D felony. Therefore, the second conviction, of Class D aggravated

assault should be merged into the Class C felony.

III.

The merger of these two offenses requires the court to impose a sentence

for the one conviction for Class C aggravated assault. The Defendant was

sentenced to six (6) years on the first count of aggravated assault and four (4)

years on the second count of aggravated assault. The trial court stated that his

reason for a higher sentence on the first count was “that the court feels that the

difference between count one and count two is that there is a change in the

wording of the indictment in the reckless at [sic] mental state between the two.”

However, the mental state is not a valid enhancement factor under Tennessee
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Code Annotated section 40-35-114. Therefore, it cannot be used to enhance a

sentence.

A Range I sentence for a Class C felony is three(3) to six (6) years. The

trial court found several enhancement factors which do apply to the case sub

judice: (1) the Defendant has a previous history of criminal convictions and

criminal behavior; (6) the amount of damage to property was particularly great;

(8) the Defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; and (10) the

Defendant had no hesitation about committing a crime when the risk to human

life was high. Tenn. Code Ann. § 40-35-114(1), (6), (8) & (10). In addition to

these enhancement factors, under Tennessee Code Annotated section 39-13-

102(d), it is an enhancement factor if the victim of an aggravated assault is a

police officer, as in the case sub judice. The court can find no mitigating factors.

Therefore, the appropriate sentence for the aggravated assault conviction is the

maximum of six years, imposed by the trial court. 

IV.

The Defendant’s final issue is whether the trial court erred by ordering the

sentence for the reckless endangerment conviction to be served consecutively

to the sentence for aggravated assault. Proof of the existence of facts necessary

to justify consecutive sentencing must only be established by a preponderance

of the evidence. Tenn. Code Ann. § 40-35-115(b). Also, consecutive sentencing

requires that,
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“[I]n addition to the application of general principals of sentencing,

the finding that an extended sentence is necessary to protect the

public against further criminal conduct by the defendant and that the

consecutive sentences must reasonably relate to the severity of the

offenses committed.”

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

The trial court stated two reasons on the record for sentencing the

Defendant to consecutive sentences. The first reason is that the Defendant is a

professional criminal. Tenn. Code Ann. § 40-35-115(b)(1). The second reason

is because the Defendant has an extensive criminal record. Tenn. Code Ann. §

40-35-115(b)(2).

The Defendant meets the criteria for Tennessee Code Annotated section

40-35-115(b)(1), that the defendant is a professional criminal and turns to

criminal acts as the source of his livelihood. The Defendant was not employed

at the time of the incident. In the pre-sentencing report there is a reference to

former employment for one year at Kmart. The Defendant’s sketchy work history

and extensive criminal record, including several theft related offenses, lead the

court to believe that the Defendant has turned to crime for a major source of his

livelihood.

The Defendant also meets the criteria for Tennessee Code Annotated

section 40-35-115(b)(2), an extensive criminal history. Although the Defendant

was only twenty-two (22) at the time of sentencing, the Defendant has an

extensive prior record including offenses commited as both an adult and a

juvenile. The following is a list of the Defendant’s juvenile record and the
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dispositions: Shoplifting-released to mother; malicious mischief-placed on

probation in custody of his mother; shoplifting-released to mother; grand larcenyreleased to mother; no driver’s license, driving on sidewalk, no helmet- released

to father; larceny of a bicycle-released with court costs to mother; no driver’s

license, reckless driving- no petition filed; receiving and concealing stolen

property-child placed under care of Youth Services 8/11/87,released into custody

of mother 11/25/87, 2/4/88 violation of probation; carrying a knife with blade

exceeding four inches- no dispostion found; aggravated assault-child committed

to Tennessee Department of Correction (TDOC) for indefinite period of time;

shoplifting-no petition filed; no driver’s license, reckless driving-child already

under committment to TDOC; grand larceny (auto)-petition sustained on guilty

plea, home placement terminated; grand larceny (auto), receiving and concealing

stolen property over $200(2 counts), receiving and concealing stolen property

under $200-child already under committment to TDOC; grand larceny (auto)-no

petition filed; assault and battery-no petition filed; theft of property under $500-no

petition filed, restitution made; assault-no petition filed, child has reached the age

of majority and is presently incarcerated for an extended period of time; simple

possession of controlled substance and reckless driving-no petition filed, child

has reached the age of majority and is presently incarcerated for an extended

period of time; speeding and driving on a revoked license-no petition filed, child

has reached the age of majority and is presently incarcerated for an extended

period of time.

The Defendant’s adult record is also very lengthy. The following is a list

of the Defendant’s adult record: Speeding and driving without a license/revokedpled guilty to both, reduced to no driver’s license, paid fines and court costs;
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driving without a license/revoked, driving with a revoked license-amended to no

driver’s license, pled guilty, paid fines and costs; assault pled guilty, sentenced

to 30 days with 29 suspended, probation for 6 months, fines and costs; public

intoxication-nolle prossed; public intoxication-nolle prossed; driving without a

license/ revoked-pled guilty, sentenced to four days and costs; driving without a

license/revoked-pled guilty, fines and costs; driving without a license/revokedpled guilty sentenced to 10 days; petition to declare and Habitual Motor Vehicle

Offender-petition granted; theft of property under $500-nolle prossed without

costs; speeding, driving without license/revoked and driving revoked license-pled

guilty, sentenced to 2 days, fines and costs; driving without a license/revoked and

driving revoked license-pled guilty sentenced to 10 days and fines on first count,

pled guilty, sentenced to 1 day on second count, costs on both; theft of property

under $500-pled guilty, fines and costs. After the offenses in the case sub judice

occurred, the Defendant was also charged with aggravated assault and

aggravated burglary.

It is clear that the Defendant has a very extensive record, especially

considering his young age. An order was entered declaring the Defendant an

Habitual Motor Vehicle Offender when the Defendant was seventeen days shy

of his twenty-first birthday. When his juvenile record is included, the number of

charges and convictions is astounding. This court has recently held that juvenile

offenses may be considered to justify consecutive sentences. State v. Jeffrey A.

Mika, No. 02C01-9508-CR-00244, Shelby County, slip. op. at 10-11 (Tenn. Crim.

App., Jackson, filed Feb. 25, 1997); State v. Robert Chapman, No. 02C01-9510-

CR-00304, Shelby County, slip. op. at p. 8 n.1 (Tenn. Crim. App., Jackson, filed
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Jan. 14, 1997). The Defendant clearly meets the criteria in Tennessee Code

Annotated sections 40-35-115(b)(1) and (2), to justify consecutive sentencing.

We believe that the Defendant has been properly sentenced to a

consecutive sentence due to his extensive record. The Defendant was placed

in the custody of the Department of Corrections when he was a juvenile, and it

did not seem to improve his behavior. The incident in question had the potential

to end in a fatal accident. The Defendant led the police on a twenty-five (25) to

thirty (30) minute high speed chase, sometimes reaching speeds of seventy (70)

miles an hour, through a small area of Memphis. The speed of the chase

sometimes reached twice that of the speed limit of the area. An officer testified

at the sentencing hearing that he had been involved in three pursuits of the

Defendant. The Defendant has been properly sentenced to a consecutive

sentence based on his extensive criminal history and the above factors. It is

clear such a sentence is necessary to protect the public. The effective sentence

of eight (8) years reasonably relates to the severity of the offenses.

The judgment of the trial court is modified in part and affirmed in part. The

Class D aggravated assault is merged into the Class C aggravated assault with

a sentence of six (6) years to be served for this conviction. The Defendant’s

sentence of two (2) years for reckless endangerment remains a consecutive

sentence to the aggravated assault sentence.

____________________________________

THOMAS T. W OODALL, Judge
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CONCUR:

___________________________________

JOE B. JONES, Presiding Judge

___________________________________

PAUL G. SUMMERS, Judge