# FILED
September 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE AU GUST 1997 SESSIO N

STA TE OF TENN ESSEE, ) ) NO. 01C01-9610-CC -00441 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HA RRIS, JUD G E EDWA RD IROGHU EHI ISIBOR, ) ) (Resisting Arrest) ) Appellant. )

FOR THE APPELLA NT : FOR THE A PPELLEE : STEPHEN CROFFORD JOHN KNOX WAL KUP 209 10 TH Avenue, South Attorney Gen eral and Repor ter Suite 511 Cummins Station PE TE R M . C OU GH LAN Nashvil le, TN 37203 Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 JOSEPH D. BAUGH, JR. Distric t Attorney General DEREK SMITH Assistant D istrict A

ttorney Gener

al P. O. Box 937 Franklin, TN 37065-0937

OPINI ON FI LED:

AF FIRMED A

S MODIFIED

JOE G. RI LEY, JUDGE

OPINION2 On July 30, 1996, Edward Ir oghuehi Isib or

was found gui lty at a ben ch trial of resisting arrest, a C lass B misdemeanor . The trial c ourt placed defendant o n judicial diversi on with el even (11) months and twe nty-nine(29) days probation. D efendant
co m plains that the trial court erre d in allow ing consol idation of the ini tial and subsequent

indictments, and the evidence is insufficient to sust ain the trial court’s finding of guilt. We find these issues to be without merit and AFFIRM the trial court in the finding of g ui lt. Althou gh the issuewas not r aised, the judg ment of the trial court must be modi fied to reflect j udicial div ersion w ith six (6) months pro bation.

PROCEDURAL HISTOR Y

On May 5, 1994, the grand jury of W illi amson Co unty, Tennessee, returned
a three -c ount indictment ( No. I-77-594) alleging that on Februar y 26, 1994, the defendant: (1) unlawfully and knowingly did in a public place and with t he intent to cause public annoyance or alarm, create a hazardou s and phy sically off ensi ve conditio n by a n act that served no legitimate purpose, in violatio n of Tennessee Code Annotate d [Section] 3 9-17-305 [disorderly conduct]; (2) unlawfully and intentionally did flee fro m . . . a du ly appointed law enforcement off icer, said off icer b eing k nown to defendant to be alaw enforcement officer, at a time w hen the said defendant had be en arrested or knew the said officer was attempting to arrest him , in v iolation of Tennessee Code Annotated, Sect ion 39-16-603 [evadin g arrest]; (3) unlawfully did prevent and obstruct . . . a duly appointed of ficer

. . . by us ing force, w hen the sai d offic er . . . attempted to lawfully arrest [him].

. . in viol ation of Tennessee Code A nnotated Section 39- 16-602 [resis ting arrest]. On September

26, 1994, defendant filed a motion to dismiss coun t one of the indictment

alleging the underly ing disor derly con duct statute tobe “unconstitutionally vague and/or vi olating due pr ocess and or

infringing upon defendant’s ri ght of free speech.” On October 2 4, 1994, the tri al court ord ered the state to providea Bill of Particular

s setting forth the specific offending actions. On December 12, 1994, a second indic tment (No. I-239- 1294) based on the3

same incident was returned al leging t hat defendant: unla wful ly, knowing ly and w ith intent to ca use public annoy ance or alarm, did in a public place engag e in fighting or in vi olent o r threatening b ehavior, i n violati on of Tennessee Code Annotat ed 39-17-305(a)( 1) [disorder ly conduct ]. On December 28, 1994, defendant moved to require the s tate to “dispose of” IndictmentNumber I-7 7-594, claiming t he second indic tment to be a “super

seding indictment.” The trial cour t consolidated the two i ndictments for tr ial. Defendant was tried by jury on January 25, 1995. At the c lose of the state’s proo f, the trial court entered a judg ment of acquittal as to count two [evading arrest] in cas e I-77-594. The jury w as unable to ag ree on a ver dict as to cou nts one [disor derly condu ct] and three [r esisting arrest] of I-77 -594, and as to c ount one [disorderly conduct] in I-239-1294. T he trial court declare d a mis trial as to these three remaining counts. The defendant was subs equently tried at a benc h trial. The court found him “guilt y” of resisting arrest in count three in case I-77-594 and “not guilty” of disorderly conduct in I-77-594 a nd I-239-1294. D efendant was plac ed on judicial diversi on based on the conv iction for res isting ar rest.

SUFFICIENCY OF THE EVIDENCE

A. When an accused chal lenges the sufficiency of the convicti ng evidenc e, our standard of review

is whethe r, after rev iewing the evidenc e in a lig ht most favorable to the prosecuti on, any rati onal trier of fact could have found t he essential el ements of the crime beyond a reasonable do ubt. Jackson v. Virgin ia , 4 43 U.S. 307, 319 (1979). Questions c oncerning t he credibil ity of the witnes ses, the w eight and value to be gi ven the evidence as well as all factual issues raised by the evidence, are resolved by the tri er of fact, not this Court. Stat e v. T uttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 199 5). Nor may this Court

reweig h or re-evaluate the e vi dence. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn . 1978). On appeal, the Sta te is entitled to the strongest legitimate view of the evidence and all infere nces t herefrom.4

Id

. Because a verdic

t of guilt removes the presumption o f innocence and repl aces it with a pr

esumption of guil t, the accused has the burden in this Court of illustrat ing why the evidence is insufficient to support the verdict returned by the tri er of fact

. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The offense of resisting arrest req uires a pers on: to intentionall y prev ent or obstruc t anyone know n to the person to be a law

enforcement of ficer . . . from effecting a stop, frisk, halt, arrest or search of a ny person, inc ludi ng the defendant, by us ing force ag ainst the law enforcement officer or ano ther. Tenn. Code Ann. § 39-16-602( a). “Force” means compulsion by physical power or violence a nd is to be bro adly const rued. Tenn. Code Ann . § 39-11-106(a )(12).

B. The state’s proo f showed that defendant ignor ed an officer who was on patrol in the Franklin W al-Mart parking lot when he approached def endant’s automo bile and asked him t o mo ve from the fire lane. Defenda nt poin ted to t he car ahead o f him, and the officer indicate d that he would also take care of that car. Before the officer arrived at the s econ d car , he n otic ed th at de fen dan t was m akin g no ef for ts to move his vehicle. Returning to defendant’s car, t he officer tapped on the d river’ s windo w. Defendant wo uld no t lower his wind ow, so the o fficer went to the rear of the car to obtain license plate information . The officer ra dioed f or backup becaus e of the unusual behavi or of the defendant. Defendant, shouting at the officer, rolle d down his window

as the officer appr

oached. The officer

told defendant to calm dow n, and defendant did not c omply. The officer explai ned that defendant could b e charged with dis orderly conduct. Defendant l aughed at the officer and pulled away. Defendant went to a

regular parking s pace. The officer followed and parked behind defendant. Defendant began walking toward Wal-Mart, and the officer asked foridenti fication. The officer testified t o specific lang uage used by defendant that reflected a disr

egard for author ity and di sdain for the officer. Defendant yelled and became aggre ssive i n his approach to t he o fficer, causing the officer to stepback brief ly. The officer told the d efendant he was pl acing5

him under arrest

for disorderl y conduct. Defendant turned to walkaway ag ain, and the officer again told him he was under arre st. The defendant stated that t he officer could not arrest hi m and kept wal king aw ay. The officer g rasped defendant’s clothing between his shoulder

blades. Defendant s truggle d against the officer ’s effor ts to detain him. Defendant

flailed his arms and also strugg led in an effort to av oid being handcuffed. The officer fin ally sprayed defendant’s f ace wi th “Freez e” in order to subdue him. The defen dant

tes tifi ed i n con tra dic tion to mu ch of

the state ’s p roof

. Spec ific ally, defendant testified that he did not strugg le with the officer. In ess ence, he denied that he resisted arrest. This Cou rt does not re weigh t he evidence. This Court does not judge the credibili ty

of witnesses. The trial judge obviously believed the officer’s tes timony and found the defendant used physical power (force) in obstr ucting the officer’s efforts to arrest him. There fore, t he evidence i s sufficient to supp ort the gui lty finding of resisting arrest. Whether the arrest w

as or was

not supported by

probable cause is not determinative as to whet her defendant resis ted arrest. A defendant may still be guilty of resisting arrest even if the arrest is unlaw

ful. Tenn. Code A nn. § 39-16- 602(b). This i ssue is w ithout merit.

SUBSEQUENT INDICTMENT

Defendant contends all three counts of the first indi ctment should have been dismissed by the trial court upon the return of the subseque nt indictment which charged one count of disorderly conduct. Specifically, defendan t contends Tenn. R. Crim. P. 8( a) requir

es that such offenses mus t be joined in a single i ndictment. Tenn. R. Crim. P. 8(a) provides that “[t]wo or more offenses shal l be joined in the same indict ment . . . wi th each offense stated in a separate count, or consolidated pursuant to Ru le 13 if the offenses are based upon the same conduct
or ar ise from the same criminal episode and if suc h offenses are know n to the appr opriate prosecuting official at the ti me of the return of the i ndictment. . .”The6

purpose of the rule is to prevent a defendant from being subj ected to separate trials formultiple offenses base d upon the same conduct

. See King v. State , 717 S.W.2d 306 (Tenn. Crim. App. 1986). De fendant overlook s th at portion o f the abovementioned rule which states that the offe nses shall be joined in the same indict ment “or consolidated pursuant to Rule 13.” These indictments and of fenses were consolidated by

the trial court; therefore, there was no violat ion of Tenn. R. Cr im. P. 8(a). This i ssue is w ithout merit.

DURA TION OF JU DICIA L DIVERSION

Tenn. Code Ann. § 40-35-313( a)(1) speci fies that the cour t may “ . . . place the person on probation upo n such rea sonable conditions as it may require and f or a period of time not less t han t he period of the max imum sentence for the misdemeanor with w hich he is c harged . . .” While the statute omits the maximum length of probation, this Court hasheld t hat theperio d of prob ation i s to bethe sa me length as the maximum s entence for the misdemean or involved. State v. Porter , 885 S.W.2d 93, 95 (Tenn. Cr im. App. 1994) . Sinc e resisting arrest is a Class B misdemeanor

with a max imum sentence of six (6) months, th e period ofprobation for judicial diversi on must be six (6) months rather than eleve n (11 ) mon ths a nd twe ntynine (29) days.

CONCLUSI ON

For the foregoi ng reasons, we AFFIRM the judgment of the trial court in all
r espects except that the judgment must b e modified to ref lect six (6) month s probation for judi cial diversion.7 JOE G. RILEY , JUDGE

CONCUR:

CURWOOD W ITT, JUDGE

JOE H. WALKER, III, SPECIAL JUDGE