IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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 JASO N MO RIN, ) ) (AGGR AVATE D ASS AULT , Appe llant. ) RECKLESS ENDANGERM ENT)

FOR THE APPELLANT : FOR THE APPELLEE : TI MOTHY

JOE L WI LLI AMS JOHN KNOX WALKUP 147 Jefferson Avenue, Suite909 Attorney General& Reporter Memphis, TN 38103 S. SCOTT J ACKSON Assistant Attorney General 500 Charlotte Avenue Nashvill e, TN 37243-0491 JOH N W. P IERO TTI Distri ct Attorney General JUDSON W. PHILLI PS Assistant Distri ct Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED AS MODIFI ED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defen dant

appeal s as of

rig ht pu rsua nt to Ru le 3 of th e Tennessee Rules of Appellate Procedure. He was conv icted of two c ounts o f a ggravated assault and one co unt ofreckless endangerment foll owing a jury t rial i n Shelby Coun ty Criminal Court . The Defendant was sentenced to six (6) years on one aggrava ted assa ult cha rge an d four (4 ) years on the other a ggrav ated a ssau lt charge to be serv ed con currently. The Defendant was sentenced to two (2) years on t he reck less endangerment char ge to run consecut ively to the aggrav

ated assa ult sentences. He argu es three is sues in this appeal: (1)Whether the tri al court erred in disal lowing cros s-examinati on concerning the police pursu it policy; (2) whethe r the trial cou rt erred in ins tructing the jury th at it cou ld convict t he Defendant on both counts of the agg ravate d ass ault ba sed u pon o ne sin gle transacti on; and (3) whether the trial court erre d in sente ncing the Defen dant to conse cutive sen tences . As mo dified, we a ffirm the jud gmen t of the trial cou rt.

In the early

morning hours of Sep temb er 10, 1 994, th e Def enda nt and his friends w ere at a bar call ed Mugs in the Ralei gh area ofMemp his. Police were called to the sce ne bec ause o f an alterca tion in the b ar. When the police began to a rrive, the Defendant ran out of the bar, carryi ng what was thought to be a club. He then jumped into the veh icle in which he had come to the bar with a friend, and drove out of the parking lot. The of ficers who were responding t o the call followed the Defendant si gnaling hi m to p u ll over . The Defendant di d not stop and proceeded to l ead the offi cers on a high speed chase that lasted twentyfive (25) to thirty (30) minutes . The spee ds reache d during the ch ase were-3-

estimated to be around seventy miles a n hour. At cer tain poi nts during the chase, the speed r

eached was twice t he speed limit of the area.

The chase led to several danger ous situat ions. At onepoint duri ng the chase, the Defendant hit a dog. The Defendant also drove onto a field that was located behin d a loc al high scho ol. He p rocee ded to drive ar ound in circles while on the fiel d with the p olice chasi ng him. After drivi ng off thefield, the Defendant ran a stop sign. As he was running t his stopsign, t he Defendant ran i nto a police cardriven by

Officer D. R. Williams, spun around 360 degrees and continued to flee. Officer

Williams hit

his head against

the windowof his vehicle mak ing him dizzy, and he was unable to work the remainder of his shif t. Officer

Williams also sustained an injury

to his l eg, but di d not recei ve medical at tention. The Defendant eventua lly came to a stop at a dead end street and attempted to flee on foot. He was caught and arrested.

I.

The Defendant’s f irst i ssue is whether the tri al court erred in not all owing the Defendant to cr oss-examine the police of ficers, who testi fied at tria l, concerning their violat ion of thepolice pur suit pol icy. Fol lowing a di scussion out of the presence of

the jury , the trial court ruled that the Defendant could not cross-examinethe offic ers co ncern ing the Mem phis P olice D epartm ent’s p ursuit policy. The State’s obj ection, which was sustaine d by the trial c ourt, was that th e pursuit pol icy was not relevant to the proce edings. The Defendant now argues thatthe pu rsuit policy was indeed rel evant, and t he trialcourt err ed in sustai ning the State’ s objecti on.-4- Rule 401 of the TennesseeRu les of Evi dence states t hat relev ant evidence is “evidence having any tendency to make the existence of any fac t that is of consequence to the determination of t he action more probable or less proba ble than it would be witho ut the evi dence.” The Advis ory Commission Com ments that ac com pany R ule 401 state, “[t]he m ateriality conc ept is fo und in t he w ords, ‘any fact that is of c onseq uence to the dete rminatio n of the ac tion.’ To be releva nt, evidence m ust tend to prove a material issue.” See also , State v. Banks , 564 S.W .2d 947, 949 (Tenn. 197 8).

In its bri ef the Sta te argu es tha t the po lice pu rsuit policy i s not a materi al issue in the case sub judice . We agree. The issue at tr ial was whet her the Defendant was g uilty of rec kle s s enda ngerm ent and aggrava ted assa ult. Whether the office rs vi olated the police pur suit pol icy had no beari ng on the Defendant’s gui lt or i nnocence.

This issu e is withou t merit.

II.

The Defendant’s second issue is whet her the tri al court erred by instructing the jury that it could convi ct Defendant on bot h counts of t he aggra vated assa ult charges, based upon one single transa ction an d involv ing one cri minal mental state. The De fendant was indicted on two c ounts of agg ra vat ed assault. The first count alleged that Defenda nt, “on Septem ber 1 0, 19 94, in Shelby C ounty, Tennessee, and be fore the findi ng of this indict ment, did unl awfully and intentionally, by use of a d eadly w eapo n, to-w it: a mo tor veh icle, cau se bo dily-5-

injury to D. R. Willi ams, in vio lation of T.C. A. 39- 13-10 2.” Ag grava ted as sault u nder this provision i s a Class C felony . The second count al leged that Defen dant, “on September 10, 1994, in Shelby Co unty, Tennes see, and be fore the findingof this

indict men t, did unlaw fully and reckle ssly, by u se of a dead ly weapon, to-wit: a mo tor vehicle, c ause b odily injury to D. R. Williams, in viol ation of T.C.A. 39-13-102.” Aggravated assault under t his provision i s a Class D felony. These two cou nts are both for aggravated assault stemming from the colli sion between the Defendant and the off icer. The t wo agg rava ted as sault charges are identical exc ept for t he mental states of intentional in Count 1 and reckless i n Count 2.

We find that t hese two convict ions for aggravated assault viol ate the doub le jeopa rdy clau se of th e Unite d State s and Ten ness ee Co nstit utions
. Therefore, the our

court wil l address t he issue of dou ble jeo pardy as this is plain error. “An error

which has affected the substantial rights of an accused may be noticed at

any time . . . in th e discret ion of theappellate cou rt where necessary to do substan tial justice.” Tenn. R. Crim . P. 52(b).

Dou ble jeopardy i s a long-standing princ iple i n both the United States and Tennessee Constitutions. This court recen tly addr esse d Dou ble Je opard y in State v. Pelayo , 881 S.W .2d 7 (Tenn . Crim. App. 19 94):
The double jeopa rdy c lauses o f the United States and Tennessee Constitut ions guard a gainst thre e evils: a second prosecuti on after acquittalfor the same of fens e; a prosecution for the same offense after convic tio n; a nd multipl e convicti ons or punishments f or the same offense. Ohio v. Johnson , 467 U.S. 493, 104 S.Ct . 2536, 81 L.Ed.2d 425(19 84); Brow n v. Oh io , 432 U.S . 161, 165 , 97 S.C t. 2221, 2225, 53 L.Ed.2d 187 (1977) . The common denominator of each is whether t he offenses i nvolved arethe sam e. Befo re mu ltiple-6- convicti ons can stand, i t must be clear that the of

fenses support ing the convicti ons are “wholly separate and distinct .” State v. Goins , 705 S.W .2d 648, 650 (Tenn. 198 6). Pelayo , 881 S.W .2d at 10.

Th e Tennes see Supreme Court recent ly set out the requir

ements for resolvi ng a double jeopar dy punishment i ssue under the Tennessee Stat e Constitut ion. These requi rements are: (1) a Blockburg er [ v. United States , 284 U .S. 299 (1932 )] analy sis of the statu tory of

fenses; (2)an analysi s, guided by the principl es of Duchac [ v. State , 505 S.W .2d 237 (Tenn . 1973), cert
. denied, 419 U.S. 877 (1974)], of the evi dence used to prove the offenses; (3) a conside rati on of wheth er there were multiple victims or discrete acts; and (4) a compariso n of the purpos es of the res pe ctive s tatutes. None of thes e step s is determinative; rat her the results of each must be weighe d and con sidered in relation to ea ch other. State v. Denton , 938 S.W .2d 373, 381 (Tenn. 199 6).

When an incident

violates two dist inct statutes and it needs to be determined whether

there are t

wo offenses or one, the test to be applied under Blockburger

is, “whet her each provi sion requires proof of an addit ional fact which the other does n ot.” Blockburger , 299 U.S . at 304. The Defenda nt was twice con victed of aggravated assault, once under Tennessee Code A nnotated sect io n 39-13- 102(a) (1)( B) and once under Tennessee Code Annotated secti on 39-13- 102(a)(2)(B). These provisi ons are ident ical except for the mentalstate requi red foreach one. The stat utes in t he case sub judice clearly do not require pr

oof of an additio nal fact . Both requi re the proof of an assault

with adeadly weapon, but with dif ferent mentalstates. The facts requi red are the same.-7- The analysis required under Duchac is based on the actualevidence i n the case. Duchac stated the test as:

“ One t est of id entity of o ffense s is wh ether th e sam e evide nce is required to pro ve them. If the same evidence i s not requi red, then the fact that

both charges relate to, and grow out of, one tr ansaction, does not mak e a single of fense where two ar

e defined by t he statutes. “[sic] If there was one act, one i ntent, and onevolit ion, and the defend ant has been tried on a cha rge bas ed on th at act, inten t, and volit ion, no subsequent charge can be based thereon, but there is not identity of offens es if on t he trialof one offe nse proof of some fact is required t hat is not necessary to be proved in t he trialof the other, al though some of the same acts may necessaril y be proved in the trial of ea ch.”
Duchac , 505 S.W.2d at 239 (quoting 21 Am. Ju r. 2d, CriminalLaw, § 82). The evidence required to prove each of the D efendant’s ag grava ted assa ult convicti ons is the incident of him running into t he car of Office r Wi lliams. Therefore, t he same evidence is r equired to pr

ove each convic

tion.
Continuing the analysi s set outin Denton , there were not multiple vi ctims. The indi ctmen t specif icall y names the offi cer as the i njured part y in both of

the aggravated assault count s. The fourt h requirement, comparison of t he purposes of the respect ive stat utes is t he final part of t he analysis . It ca n safely be assumed that the pu rposes of t he two aggravated assault statutes are the same.

In this case, dual co nv ictions of the D efend ant for a ggrav ated a ssau lt violate the prote ctions ag ainst Do uble Jeo pardy. It is clear unde r the an alysis required under Denton , that t he Defendant has been conv icted twi ce of thesame crime fo r one pa rticular incide nt.-8- Therefore, the Defe ndant can on ly have one conv iction for aggravated assau lt. When a defendant hasbeen convicted of two counts for one tr ansaction and one off ense i s a lesser i ncluded offense to the ot her, the of fenses can be merged resultin g in one conv iction. State v. Banes , 874 S.W.2d 73, 81 (Tenn. Cri m. App. 19 93). The first count of aggrav ated assault is a Class C felony and the secon d coun t i s a Class D felony. The mental state requi red for the fi rst convicti on is “in tentional ly” and the mental state re quired for the s econ d cou nt is “reckless ly.” The test to determine whethersomething is a l esser incl uded offense of anothe r is wheth e r “it i s impossible to commit the greater of fense without first having committed the lesser.” State v. Layne , 623 S.W.2d 629, 637- 38 (Tenn. Crim. App. 1981). It is eviden t in the case sub judice that on e cou ld not com mit aggravated assault, Class C felony, without committing aggra vated assau lt, Class D felon y. Therefore, the second convi ction, of Class D aggravated assault shou ld be merg ed into the Clas s C felony.

III.

The merger of these two offenses requir es the court to impose a sentence forthe one convi ction fo r Class C aggravated assau lt . The Defendant was sentenced to six (6) year s on the firs t c ount of agg ravated assault and four (4) years on the second count of agg ravate d ass ault. Th e trial co urt state d that h is reason for a higher sentence on the fi rst count was “that t he court feel s that the difference between count one a nd cou nt t wo is that there is a change in the wording of t he indict ment in the re ckless at [sic] mentalstate bet ween the two.” H owe ver, the mental state is not a valid enh ancement factor under Tennessee-9-

Code Annotated sect ion 40-35-114. Therefore, it cannot be used to enhance a sentence.
A Range I sentence for a Class C felony is t hree(3) to six (6)years. The t ria l court found several enhancement factors whi ch do apply to the case sub judice : (1) the Defen dant has a previous hi story of criminal convicti ons and criminal behavior; (6) theamount of dam age to p roperty wa s particula rly great; (8) the Defendant has a previous hi story of

unwilli ngness to compl y with t he conditi ons of a sentence in volvi ng release i n the community; and (10) the Defendan t had n o hesitat ion about committ ing a cri me when the risk to human life was high. Te nn. Code Ann. § 40-3 5-1 14(1), (6 ) , (8) & (10). In addition to these enhance ment factors, u nder Tenness ee Code Annotated secti on 39-13- 102(d), it is

an enhancement factor if thevicti m of an aggravated assault is a police officer , as in t he case sub judice . The court can find no mit igatingfactors. Therefore, the appropriate sentence for the aggr avated assaul t convict ion is t he maxim um of s ix years, im posed by the trial co urt.

IV.

The Defenda nt’s final issue is whethe r the trial court erred by orderi ng the sentence for the r

eckless endangermen t convi ction to be se rved co nsec utively to the sentence for aggravated assault. Proof of the existence of facts ne cessary to justify c onse cutive s enten cing m ust on ly be establi shed by a preponderance of the evidence. Tenn. Code Ann. § 40-35-115( b). Also, consecutive sentencing requires that,-10- “[I]n addition to the appl ication of generalprinci pal s of sentenci ng, the findingthat an exten de d sentence is necessary to pr otect the public against further criminal conduct by the defendant and thatthe consecu tive sentences must reasonably r elate to t he severit

y of the offense s com mitted.” State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5).

The trialcour t s tated two r easons on the recor d for sentenc ing the Defendant to conse cutive sen tences
. The firstreason is that the Defendant i s a professiona l crimin al. Tenn. Code Ann. § 40-35-115( b)(1). The second reason is because the Defend ant has an e xtensive criminal re cord. Te nn. Co de Ann . § 40-35-115 (b)(2).

The Defendant meets thecriteria for Tennessee Code Annotated section 40-35-115 (b)(1), that the defendant is a professi on al criminal a nd turns to criminal acts as the sou rce of his livel ihood. The Defendant was not employed at the time of

the inci dent. In t he pre-sentenci ng report t here is a re ference to formeremployment for one y ear atKma rt. The Defe ndan t’s sketchy work h istory and extensiv

e criminal record, including several the ft related of fenses, l ead the court to believe t hat the Defendant has turned to crime for a majorsourc e of his livel ihood.

The Defendant also meets t he criteria for Tennessee Code Annotated section 40-35-1 15(b)(2) , an exten sive crimin al history. Although the Defendant was o nly t wenty-two (22) at the t ime of sentenci ng, the Defendant has an ext ensive prior r

ecord incl uding offens es commited as both an adul t and a juvenil e. The follo wing is a list o f the Defendan t’s j uvenile r ecord and the-11-

dispositions: Shoplift ing-rel eased to mother; malicious mis chief-pl aced on probation in custody of his m other; shoplifting-release d to mothe r; grand larcenyreleased to mother; no drive r’s license, drivi ng on sidewalk, no helmet- rel eased to father; larce ny of a bicyc le-release d with cou rt costs to m oth er; no driv er’s license, reckless driving- no petiti on filed; receivi ng and concealing stolen prope rty-child placed under car e of You th Services 8/11/87, re leased into custody of mothe r 11/25/8 7, 2/4 /88 viol at ion of probat ion; carr ying a kni fe with bl ade exceeding fourinches- nodisposti on found; aggrav ated assault-child committed to Tennessee Department of Corr ection (TDOC) for

indefin ite pe riod of t ime; shopl ifti ng- no petiti on filed ; no driver’s li cense, reckl ess drivi ng-child already under committment to TDOC; grand l arceny (auto )-petition su stained o n guilty plea, home placement terminated ; grand larceny (au to), receiving andconcealing stolen property ov er $ 200(2 c ounts), re ceiving an d conc ealing sto len prop erty under $200-chil d already under committment to TDOC; grand larceny (auto)-no petiti on filed; assault and bat tery-nopetiti on filed ; theft of property under $500-no petiti on filed, restit ution made; assa ult-no p etition file d, child has reached the age of majo rity and is present ly incar cerated for

an extended peri od of time; s imple possession of con troll ed subs tance and re ckless driving- no pe tition filed , child has reached the age of majority

and is pres ent ly incar cerated for

an extended period of time; speedi ng and drivi ng on a revoked l icense-no pet ition filed, child has reached the age of majority

and is present ly incar cerated for

an extended period of t ime.

The Defendant’s adult record i s also very lengthy . The following i s a list of the De fenda nt’s ad ult record: Speedi ng and drivi ng without a license/revokedp led guilty to both, reduced to no driv er’s license, paid fines and court costs;-12-

drivi ng without a l icense/rev oked, driv ing with a

revoked li cense-amended to no driver’s l icense, pled guilt y, paid fi nes and costs; assault pled gu ilty, sentenced to 30 days w ith 29 s uspe nded , proba tion for 6 mon ths, fine s and costs; public intoxica tion-no lle prossed; publ ic intoxicati on-nolle pr ossed; dr i ving witho ut a license/ revoked-pl ed guilty , sentenced to four day s and co sts; driving w ithout a l icense/ revoked-pl ed guilty , fines and costs; driving wi thout a li cense/revokedpled guilty sentenced to 10 days; petition to declare and H abitua l Motor Vehic le Offender-p etitio n granted; t heft of pr operty under

$500-nolle prossed witho ut costs; speeding, dr iving wi thout li cense/revoked andd rivi ng r evoked license-pled guilty, sentenced to 2 day s, fines and costs; dr iving wi thout a li cense/revoked and drivi ng revoked license- pled guil ty sentenced t o 10 days and fi nes on first cou nt, pled guilty, sentenced to 1 day on s econd count, co sts on bo th; theft of pro perty under $500-pled gui lty, fines and cost s. After the offens es in thecase sub judice occurred, the Defendant was al so charged wit h aggravated assault and aggravated burglary.

It is cle a r that the Defe ndan t has a very exte nsive re cord, e spec ially consideri ng his young age. An order was e nt ered declari ng the Defendant an Habitual Moto r Veh icle Offende r when the Defendant was seventeen days shy of his twenty-first birthday. W hen his juvenile rec ord is incl uded, the number of charges and convic tions is a stoun ding. T his cou rt has re cently held th at juven ile offensesmay be conside red to justify consecutive senten ces. Statev. Jeffrey A. Mika , No. 02C01-9508-CR-00244, Shel by County, sl ip. op. at 10- 11 (Tenn . Cr im. App., Jackson, fi led Feb. 25 , 1997); State v. Robert Chapman , No. 02C01-9510- CR-00304, Shelby Co unty, slip. op. at p. 8 n. 1 (Tenn. Crim. App. , Jackson, f iled-13-

Jan. 14, 1997). The Defen dant clearly meets the cri teria i n Tennessee Code Annotated secti ons 40-35-115(b) (1) and (2), to just ify consec utive sentencing.

We believe tha t the Defe ndant h as be en properly sentenced to a consecu tive sentence due to hi s extensiv e r ecord. Th e Defendant was placed in the cu stody of

the De partm ent of C orrect ions w hen h e was a juven ile, and it did not seem to impro ve his beh avior. The incident in questi on had the potent ial to end in a fa tal accide nt. The D efenda nt led the p olice on a twenty-five (2 5) to thirty (30) minute hi gh speed chase, sometimes reaching s peeds of seventy ( 70) miles an hour, through a small area of Memphis. The speed of the chase sometimes reached twice that of t he speed limit of the area. An of

ficer testifi ed at the sentencin g hearing that h e had bee n involved in three pu rs uits of the Defen dant. The Defendant has been properly sentencedto a consecut iv e sentence based on his extensive cri minal hi story an d the a bove fa ctors. It is clear such a sen tence is necessary to protect the publi c. The effective sentence of eight (8) year

s reasonably relates to the severity of the offenses.

The judgmen t of the trial court is mod ified in p art and affirme d in part. The Class D aggravated assaul t is merged into the Class C agg ravated a ssault with a sente nce o f six (6) ye ars to b e serve d for this conv iction. T he De fenda nt’s sentenc e of two (2) years for reckless endange rment rem ains a conse cutive sentence to t he aggravated assau lt sente nce.

____________________________________ THOMAS T. W OODALL, Judge-14-

CONCUR:

___________________________________ JOE B. JONES, Presiding Judge

___________________________________ PAUL G. SUMMERS , Judge