IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 21, 2016 Session

STATE OF TENNESSEE v. JAVONTA MARQUIS PERKINS

Appeal from the Criminal Court for Davidson County

No. 2012-C-2144 J. Randall Wyatt, Jr., Judge

No. M2015-01025-CCA-R3-CD – Filed November 7, 2016

NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

I agree with most of the conclusions set forth in the majority opinion. I write 

separately, however, to respectfully dissent from the majority’s conclusion that Sergeant 

Sanderson qualified as an endangered third party, which elevated the evading arrest to a 

Class D felony.

Relevant to this case, evading arrest occurs when a person operating a motor 

vehicle on any street, road, alley, or highway intentionally flees or attempts to elude any 

law enforcement officer after the person has received any signal from the officer to stop. 

Tenn. Code Ann. § 39-16-603(b)(1). At the time of the pursuit, the statute provided that 

the offense was a Class E felony “unless the flight or attempt to elude creates a risk or 

death or injury to innocent bystanders or other third parties, in which case a violation of 

subsection (b) is a Class D felony.” Tenn. Code Ann. § 39-16-603(b)(3) (2010). A 

Tennessee Attorney General opinion, filed long before our legislature amended 

subsection (b)(3) to specifically include “pursuing law enforcement officers” with 

innocent bystanders or other third parties, concluded that officers attempting to arrest the 

driver were not innocent bystanders or third parties under the statute. Tenn. Op. Att’y 

Gen. No. 00-140 (2000). As the opinion explained,

Provisions of the criminal code should be “construed 

according to the fair import of their terms, including reference 

to judicial decisions and common law interpretations, to 

promote justice, and effect the objectives of the criminal 

code.” Tenn. Code Ann. § 39-11-104 (1997). When a term is 

not defined in a statute, the term should be given its ordinary 

and commonly accepted meaning. Beare Co. v. Tennessee 
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Dep’t of Revenue, 858 S.W.2d 906, 908 (Tenn. 1993).

A “bystander” is “a person who stands near but does 

not participate; [a] mere onlooker.” Webster’s New World 

Dictionary of the American Language, 2d College Edition 

195 (1976). Black’s Law dictionary defines a “bystander” as 

“one who stands near; a chance looker-on; hence one who has 

no concern with the business being transacted. One present 

but not taking part, looker on, spectator, beholder, observer.” 

Black’s Law Dictionary 182 (5th ed. 1979). An “innocent” 

bystander is an onlooker who is “guiltless,” Webster's New 

World Dictionary at 726, or “free from guilt,” Black’s Law 

Dictionary at 708.

A “third party,” on the other hand, is “a person in a 

case or matter other than the principals.” Webster’s New 

World Dictionary at 1479. Thus, a third party may be 

involved in the offense, either as an accomplice or a 

passenger, but would not be the driver or a law enforcement 

officer giving chase.

When it enacted Tenn. Code Ann. § 39-16-603(b), the 

legislature could have limited criminal liability for creating a 

risk of death or injury to the risk to innocent bystanders. The 

legislature did not impose this limitation, however, as 

reflected by the statute’s enhanced punishment for creating a 

risk of death or injury to “other third parties.” Because one 

should “assume that the legislature used each word in the 

statute purposely, and that the use of these words conveys 

some intent and has a meaning and purpose,” Locust v. State, 

912 S.W.2d 716, 718 (Tenn. Ct. App. 1995), it is the opinion 

of this Office that the legislature intended the risk of death or 

injury to encompass anyone other than the driver or the 

officers chasing him, regardless of whether the person 

endangered has aided or abetted the driver.

I think this reasoning is sound. Moreover, although attorney general opinions are not 

binding authority, they are “entitled to considerable deference.” State v. Black, 897 

S.W.2d 680, 683 (Tenn. 1995).

 

In support of its conclusion that Sergeant Sanderson qualified as an endangered 
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third party, the majority quotes State v. Cross, 362 S.W.3d 512, 521 (Tenn. 2012), in 

which our supreme court stated that innocent bystanders or third parties are considered 

“persons other than the defendant him or herself and the officer giving the signal to stop.” 

However, Cross involved the pursuit of a defendant by only one officer. Thus, the issue 

of whether additional officers pursuing a defendant are innocent bystanders or third 

parties was never raised nor addressed. 

Finally, the majority notes that the evidence is unclear as to whether Sergeant

Sanderson had activated his blue lights when he encountered the stolen Pontiac. In my 

view, once the initial officer gave the signal to stop, the question of whether additional 

officers joining the pursuit also gave a signal to stop was irrelevant. In any event, Officer 

Spillers testified that Sergeant Sanderson, who was “coming up” Trinity Lane as the 

Pontiac turned onto Trinity, “activate[d] his blue lights and they almost hit, they almost 

hit him head-on right there on West Trinity.” 

In sum, I would hold that under the statute in effect at the time of the offense, the

flight did not create a risk of death or injury to an innocent bystander or other third party. 

Therefore, I would modify the Defendant’s conviction to Class E felony evading arrest.

_________________________________ 

NORMA MCGEE OGLE, JUDGE