### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. SAMUEL D. LAND.
Direct Appeal from the Circuit Court for Williamson County No. II-1098-332 Timothy L. Easter, Circuit Judge

No. M1999-01023-CCA-R3-CD - Decided April 28, 2000

The appellant, Samuel D. Land, was found guilty by a jury of one count of felony evading arrest and
one count driving on a revoked license, second offense. He was sentenced, as a career offen

der, to twelve years in the

Department of

Correction for the felony offense. A concurrent se ntence of eleven months, twenty nine days was impo sed fo r the m isdem eanor offen se. In this appeal as of right, the appellant challenges the trial court’s denial of his motion to suppress a statement made af

ter his constitutional right to counsel had attached and the trial court’s denial of his motion f or m istrial resulting from allegedly

prejudicial comments made by the court. Additionally, he r aises numerous evidentiary

issues and challenges the sufficiency of the convicting offense. After review, we find
one is sue regarding

hearsay e vidence meritor

ious. We conclude,

however, that thi

s error is harmle

ss. Furthermore, we find th

at no othe r error o f law req uiring re versal exi sts. We affirm the judg

ments of conviction ente

red by the tr

ial court.

Tenn. R. App. P. 3(b) Appeal as of Right; Judgments of the Williamson County Circuit Court are Affirmed

HAYES , J ., delivered the opinion of the court, in which SMITH , J . and OGLE , J ., joined. Eric L. Davis, Franklin, Tennessee, for the appellant, Samuel D. Land

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Todd Kelley, Assistant Attorney Genera l, Ronald L. Davis, D

istrict Attorney G

eneral, and Jeff P. Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The appellant, Samuel D. Land, was charged by presentment with theft over $10,000, driving under the influence, s econd offense, driving on a revoked license, second offense, and felony evading arrest. Prior to trial, the State entered a nolle prosequi as to the offenses of theft over $10,000 and drivin g under the influence. A jury found the appellant guilty of the offenses of evading arrest, a class D felony, and driving on a revok ed lice nse, a class A misdemeanor. Following trial, the

### -2-

appellant pled guilty to the offense of driving on revoked second off ense. The appel lant w as sentenced as a career offender

to twelve years in the

Department of Cor

rection for the f

elony offe nse and eleven mont hs, twenty- nine days in t

he Williamson County

Jail for the misdemea

nor. In this appeal as of rig

ht, the appellant c

ontends:

I. The trial court erred in denying the appellant’s motion to suppress his statement to Detective Brown;

II. The trial court erred in denying a mistrial when the court informe d the jury that the trial would be delayed as the result of “late-filed notices” by the defense;

III. The trial co urt improperly admitted hearsay statements unde r the excited utterance exception;

IV. The trial court improperly permitted a witness to testify as to statements made by appellant’s mother during a telephone conversation;

V. The evidence introduced at trial failed to establish the appellant’s gui lt for both offenses bey

ond a reasonable

doubt.

After review, w

e affirm.

Background

On August 22, 19 98, Trooper Richard Cash and Trooper Israel Silva of the Tennessee Highway Patrol were “running a stationary radar [at mile-marke r 74] on I-65" in W ill iam son Cou nty. During the operation, the troopers observed a vehicle app roaching fro m the rear at a very high rate of speed. Trooper Cash made a visual estimate that

the vehicle was traveling at over one hundred miles per hour. As the vehicle pa ssed their pa trol car, he was able to identify a white male as the sole occupan t and driv er of the dark-c olor Ford vehicl

e. Trooper Cash a

dvised Trooper Sil

va to activate the radar, however, because of heavy traffic, the equipment failed to “clock” the vehicle. The troopers then initiated pursuit in an attempt to “pace” the vehicle. The troopers reached a speed of one hundred

and fifteen miles per

hour during their pursuit. The pursued vehicle exited I-65 at the Cool Springs exit, made a “sharp lane change,” and passed a vehicle on the rig

ht. At this point, the troopers were close enough to the pursued vehicle to activate the patrolcar’s emerge ncy lights. The pursued vehicle made a right turn on to Mack Hatcher Boulevard, proceeding to the intersection of Franklin Road where the vehicle went through a red traffic signal. The vehicle passed sev e ral other vehicles. The patrol car slowed down because of other traffic and lost the fleeing vehicle. As the troopers proceeded in the direction of the pursued vehicle, they observed skid marks on the road and the pursued vehicl e in a ditch on t he side of the road. Upon approaching the vehicle, the troopers discovered that the vehicle was unoccupied, the doors were aja r and the engine was

### -3-

smoking. During a check of the

license tag on the 1996 Ford Taurus, the troopers discovered that the vehicle was registere

d to William Land a

nd obtained Mr. L

and’s address.

Trooper Cash

proceeded to the residence of

William Land, ap

proximately on

e-half mi le from the location of the disabled vehicle. Trooper Cash, accompanied by officers of the Franklin Police Department, arrived at the Land residence at approximately 2:20 a.m. Mrs. Land answered the door. Trooper Cash informed Mrs. Land that “he r vehicle had been wrecked a short distance from her home. Mrs. L and, the appellant’s mother, became angry and “started

cursing.” She e

xclaimed, “He, [the

appellant], stole my ca r, he stole my car!” Trooper Cash accompanied Mrs. L and to the appellant’s bedroom; the appe llant was not t

here. Mrs. La

nd told Trooper Cas

h, “He’s drunk, h

e stole my ca

r.” She also informed Trooper

Cash that her car keys were in her purse and that the a ppellant took the keys out of her purse and stole her vehicle. She advised that she wanted to file criminal charges. Trooper Cash, h a ving been provided the appellant’s name and birth date from his mother, checked the appellant’s driving status and learned that the appellant’s license had

been revoked due to May 19, 1998, convictions for driving under the influence and driving on a revoked license.

On September 8, 1998, Franklin Police Detective Richard Brow n con tacted Mrs. Land regarding this incident. Pursuant to this telephone conversation during which Mrs. Land again stated that the appellant took her vehicle without her permission , Detective Brown obtained a warrant against the appellant for theft of the vehicle. The appellant was ultimately located, resulting in his arrest on September 13, 1998. On September 21, 1998, Detective Brown encountered the appellant in the hal lwa y o f the General Se ssions Court as the a

ppellant was bein

g escorted to me

et with his appointed counsel. The appellant informed Detective Brown t ha t “ [t]he charge of theft is not correct, it should have been unauthorized use of a vehicle since it was [my] parents’ vehicle.”

Based up on this proof, the ju ry returne d guilty ver

dicts as to the offe

nses of Drivin

g on a Revoked License and F

elony Evading

Arrest. The appellant waived his right to have the jury determine the charge of driving on revoked, second offense, and e ntered a guilty plea.

I. Motion to Suppress On Febr uary 1 6, 1999, the trial court conducted a suppression hearing regarding the statements

made to Detective Richard Brown on September 21, 1998. Detective Brown testified that he saw the appellant with his attorney standing in the back

hallway of the General Sessions Court
near the inmate holding cell. The appellant, wh o was in custody at the time, informed Detective Brown, “The charge of

theft is not correct, it should have been unauthorized use of a vehicle since it was my parents’ vehicle.” Detective Brow

n denied initiating

the conversation

with the appellant

, although he conceded that he “may have said ‘he llo’.”

The appellant refut

ed Detective Br

own’s testimony

by stating t

hat, while he was waiti

ng to speak with his attorney, Detective Brown approached him, offer ed his hand, and said

“How are you doing, David?” The

appellant relate

d that the following

colloquy oc

curred:1 Although any review of w hethe r an accused’s Sixth Amendment right to counsel may

necessarily

involve consideration of his Fifth Amendment right to counsel via Miranda , the two are distinguished in purpose. T he right to counsel provided by Miranda under the Fifth Amendment protects against

coercions rela

tive to self-incrimination, while the right to c ounsel under the Si

xth Amendment

guarantees, after formal charges have been brought, the right to legal assistance at any critical confrontation wit

h State officials,

irrespectiv

e of c oercion. Notwithstanding the nature of the respective rights, we note tha t the United States Su

preme Court in Michigan v. Jackson , 475 U.S. 625, 106 S.Ct. 1404 (1986), merely integrated the Fifth Amendment analysis of Edwards v. Arizona , into Sixth Amendment analysis. Michigan v. Harvey , 494 U.S. at 345, 110 S.Ct. at 1177.

2 Since adversarial proceedings had been initiated by way of the arrest warrant, t he appellant’ s SixthAmendment right to counsel had attached. See Michigan v. Jacks o n , 475 U.S. at 639, 106 S.Ct. at 1407; Brewer v. William s , 430 U.S. 387, 97 S.Ct.

1232 (1977); see also State v. Mitchell , 593 S.W.2d 280, 283 (Tenn.), cert. denied , 449 U.S. 845, 101 S.Ct . 128 (1980); State v. Butler , 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990).


### -4- Appellant: Fine, except for these charges. Brown: Now, I’ve got you on a theft cha rge, that’ll do good. Appellant: No you don’t, I wasn’t in the car. Brown: That’s not what I hear. Appellant: [The] police charged me with unauthorized use of a vehicle . . . how are you getting a theft when I wasn’t in the vehicle. The appellant asserted that he then terminated the conversation and “walked off.”

Based upon the proof at the hearing, the trial court denied the motion finding the appellant’s proof not credible and that the appellant’s statement was not a response to police initiated interrogation. The appellant now contends that the t

rial court erred in d enying his motion to suppress. Specifically

, the appellant “s

ubmits that Detecti

ve Br own’s actions and conduct were specifically

designed as an attempt

to elicit incriminating statements from the defendant,” and was unconstitutional cus tod ial int erro gati on. Add iti ona lly, notwithstanding h is motion to suppress, the appel lant conten ds that the statement “should not have been admitted [during the trial] as an admission of a party opp on ent” as the appellant was “not making any assertion as to his guilt or innocence.” Rather, the appellant argues that he was “merely making a legal conclusion as to the appropriate charge as the allegation involved the use of his parents’ vehicle.

A. Suppression The appellant, in contesting the admission of his statement to Detective Brown, is essenti

ally claiming a violation of his Sixth Amendment 1 right to counsel during custodial interrogation. 2 It is
a firmly established tenet of constitutional law that, after the initiation of formal charges against an accused, the Sixth Amendment right to counsel attaches, guaranteeing the accused the right

to rely
on counsel as a medium

between him and

the State at any

critical confro

ntation with State of

ficials,

### -5-

irrespective of coercion. See Maine v. Moulton , 474 U.S. 159, 176, 106 S.Ct. 477, 487 (1985). Once formal criminal proceedings begin, the Sixth Amendment renders inadmissible in the prosecution’s case-in-chief

statements “deliberately elicited” from a defe ndant wi thout an express waiver of the right to counsel. Michigan v. Harvey , 494 U.S. 344, 348, 110 S.Ct. 1176, 1179 (1990). The accused may not be subjectedto further interrogation by the authorities until counsel has been made av

ailable to him, unless the acc

used himself

initiates further

communication with

the police. See Michigan
v
. Jackson , 475 U.S. at 636, 106 S.Ct. at 1411. Accor

dingly, “th

e prosecution may

not use stat e ments, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeg ua rds effecti ve to secure the privil ege against self-incrimination.” Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966).

It is clear from the record that the appellant’s statement

was made while he was in custody and after his Sixth Amend ment rights

had attached. Thus, the only question is whether the statement
was made in response t o improper police

inte rrog ation by Det

ective Richard B

rown. This determination involves questions o f both fact and la

w, which th

is court re views de novo

. See generally State v. Burns , 6 S.W.3d 4 53, 461 (Ten n. 1999) (ci ting Harries v. State , 958 S.W.2d 799, 802 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1997) (cases that involve mixed questions of law and fact ar

e subject to de novo review)); State v. Bridges , 963 S.W.2d 487, 490 (Tenn. 1997).

The trial court’s factual finding that Detective Brown did not solicit the voluntary statement made by the appellant will not be disturbed unless this finding is plainly wrong or withou t support in the evidence. See generally State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998) (appellate court should uphold trial court’s decision o n suppression motion unless record pr

eponderates ag

ainst finding). The relevant

evidence presented at the suppression hearing consisted of the testimony of Detective Brown and the testimony of the appell ant. Detective Brown related that the appellant voluntarily

and spontaneously

made the statemen

t to him. The appellant’s testimony, that Detective Brown initiated the conversation, contradicts Detective Brown’s version. The evidence introduced by the State is consiste

nt with the finding of the

trial court. The a

ppellant’s testimo

ny to the contrary does not dispel the finding. See Henning , 975 S.W.2d at 279 (credibility questions and resolution of conflicts in the evidence are matters entrusted to trial court as trier of fac t). We find that such support exists in the record.
Next, the trial court’s ruling that Detective Brown’s conduct did not constitute interrogation is a conc lusion of law that we review de novo . Custodial interro gation is limited to

“quest ionin g initiated by law enfo

rcement office

rs after a pers

on has been taken

into custody or

otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona , 384 U.S. at 444, 86 S.Ct. 1602. [T]he term “interrogation” refers not only to ex pr ess questioning, but also to any words or actions on the part of the police (oth

er than those norm

ally attend

ant to arrest and cus tody) that the police should know are reasonably likely to elicit an incriminating re

sponse from the sus

pect.
Rhode Island v. I

nnis , 446 U.S. 291, 301, 100 S.Ct. 1682, 16 89-1690 (1980) (footnotes omitted). There is a differ ence between police initiated custodial interrogation and communications , exchanges ,3 We note that our Rule 801(a), (b), and (c) are verbatim of Federal Rule of Evidence 801(a ), (b), and (c).


### -6- or conversations initiated by the accused himself. See Edwards v. Arizona , 451 U.S. 477, 101 S.Ct

. 1880 (1981). It is well established that questioning initiated by the accused is not interrogation in the Innis sense. Edwards v. Arizona , 451 U.S. at 484, 101 S.Ct. 1880. At the very least, the police must have ask ed a q ues tio n th at w as “p rob ing, accu sat ory, or l ike ly t o el icit an incriminating response” before a court may conclude that there was interr ogation.

In the case sub judice , the statement was an u nsolicited comment

by the appe

llant. There is no constitutional protection from statements volunteered by the accused. Edwards v. Arizona , 451 U.S. at 484, 101 S.Ct. at 1880. Since the police sure ly cann ot be held accountable for the unforeseeable

results of their w

ords or actions, th

e definition of inte

rrogatio n can e xtend only to words or actions on the part of police officers that they should h

ave known were r

easonably likely to elicit an incriminating response. Innis , 446 U.S. at 301-301, 100 S.Ct. at 1682. Additionally, where
a defendant makes a statement without being questioned or pressured by a gover nment ag ent, the statement is admissible, if the statement was freely and voluntarily made by the defendant. Colorado
v. Connelly , 479 U.S. 157, 164, 107 S.Ct. 515, 520 (19 86); Michigan v. Tucker , 417 U.S. 433, 441, 94 S.Ct. 2357, 2362 (1974). Given the trial court’s findings that the appellant initiated the discussion withDetective Brown and that De tec tive Brown did not pose any statements to the appellant reasonably

likely to elicit an incriminating response, we hold tha t the trial cou rt did not err in concluding that the appellan t’s statement was n

ot t he produ ct of unconstitutional custodial interrogation. Accordingly, the motion to suppress the statement was properly denied. This issue is without merit. B. Statement as Hearsay The appellant next challenges the admissibility of the above statement to Detective Brown, upon the additional ground that the statement constitutes inadmissible hearsay. The statement was admitted as a statement “offered against a p a rty that is (A) the party’s own statement.” See Tenn. R. Evid. 803(1.2). A “statement” is defined as “(1) an oral or written assertion .” see Tenn. R. Evid. 801(a) (emphasis added). The appellant argues that his remarks to Detective Brown do not constitute an assertion and,

therefore, fa

il to qualify a

s admissible

hearsay. In this regard, the appellant notes that, although the Rules of Evidence fail to define the term “assert,” t

he term isdefined elsewhere as “to state as true; declare; maintain.” See B LACK ’ S L AW D ICTIONARY 116 (6 TH ed. 1990); W EBSTER ’ S T HIRD N EW I NTERNAT IONAL D ICTIONARY , U NABRIDGED v.1 p 131(1981). Un der this definition, the appellant maintains th at his “ remarks” do not constitute an “assertion” and, hence, a “statement,” because he was “merely making a leg al conclusion as to the appropriate charge.”

Our rules of evidence defi ne h ears ay as “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 3 Tenn. R. Evid. 801(c). A “statement” is then defined as an oral or written asserti on or nonverbal conduct intended as an assertion. Tenn. R. Evid. 801(a). “Assertion” is not defined in the Rules, but “has the connotation of

a forceful or positive declaration.” SeeW EBSTER ’ S N INTH N EW C OLLEGI ATE4 “An out of court utterance must have two characteristics before it is rend

ered inadmissabl

e as hearsay: It

must be a ‘statement’–that is a verbal assertion or conduct intended as an assertion, and it must be offered

to probe the truth of the matter it asserts.” See Weaver v. Tech Data Corp. , 66 F.Supp.2d 1258, 1264 (M.D. Fla. 1999) (citing United States v. Cruz , 805 F.2d 1464, 1477 (11 th Cir. 1986)).

5 “ The term ‘matter asserted’ as employ ed in [Fe deral] Rule 801(c) and at common law includes both matters directly expressed and matters the declarant ne

cessarily implicitly inte

nded to assert. W hen the declarant ne cessarily intended to asser

t the inference

for which the stat

ement is offered, the statement is

tantamount to a direct assertion and therefore is hearsay. . .. To illustrate, the question 'Do you think it will stop raining in one hour?’ contains the implicit assert ion that it is currently raining. The fact that it is currently raining is a necessary foundation fact which must be assumed true for the ques

tion asked to

make sense." Id. (quoting M ICHAEL H. G RAHAM , H ANDBOOK OF F EDERAL E VIDENCE 708-709 (3d ed. 1991)).


### -7- D ICTIONARY 109 (1985 ed.). The definition of ‘statement’ a ssumes importance

because the ter

m is used in the definition of hearsay in subdivision (c). 4 The key to the de finition is th at nothing is an assertion unless intended to be one. See Advisory Committee’s Note, Fed. R. Evid. 801(a). Cons equ ent ly, the effect of th e definition of “s

tatement” is to excl

ude from the oper

ation of th

e hearsay rule “all eviden

ce of conduct,

verbal or

nonverbal, not intended as an assertion.” See Advisory Committee’s Note, F

ed. R. Evid. 801(a) ; see also Advisory Comm ission Comments,

Tenn. R. Evid. 801.

In determining whether certain conduct constitutes an assertion, the Advisory Committee Note provides “It can scarcely be doubte d that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fa ll into the category of the

statement.” Advisory Committee’s Note , Fed. R. Evid. 801. Notwith standing, not all v

erbal utteranc

es are readily ascertainable

as assertions, suc

h as the case now b

efore this court

. An utterance must, in order to be
an assertion, be off

ered with the inte

nt to sta te th at some factual proposition is true. See generally United States v. Lewis , 902 F.2d 1176, 1179 (5 th Cir. 1990) (citing D. Binder, Hearsay Handbook § 2.03 (2d ed. & 1989 sup

p); Inc. Publishing Corp. v. Manhattan Magazine, Inc. , 616 F.Supp. 370, 388 (S.D.N.Y. 1985)); United States v. Zenni , 492 F.Supp. 464, 469 (E.D. Ky. 1980). When an utterance is offered on

the theory that it is not a statement, and hence, not hearsay , a preliminary determination is required to determine whether an assertion is intended. Advisory Committee’s Note, Fed. R. Evid. 801(a).

In certai n circumstances , an utterance, while not directly

assertive in form

, may implicit

ly contain certain asse

rtion s. See generally

N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE §801.3, at 494 (3d ed. 1995). 5 Implicit assertions are not always readily apparent; to illustrate:
an inspector at an a

irport security

station might run a metal detector over a passenger and say “go on through.” I n the a bsence of the inspector,

would testimony

of this event be objectionable

hearsay, if offered for the proposition that the passenger did not have a gun on him at that time?

. . . If an asser tion were intende

d the evidence wo

uld6 We note that if the utteranceis not an assertion, then th e statement is nothearsay a nd is admissible if it satisfies general admissibility requirements, e.g. relevance , probative value, etc.

7 Our supreme court has noted: The hearsay evidence rule rests primarily upon the basis that the declarant is not present and available fo

r cross-examinati

on. It is for thi

s rea son that where the alleged declarant is a criminal defe

ndant, strictly

speaking the ru

le does not come

into pla y. The mere fact that an assertion is offered to prove its truth and t hat cross-examination would be helpful does no t make the statement hearsay where a party defe ndant in a crimina

l action is the dec

larant.

. . .Paine, Tenness

ee Law of Ev

idence, Sectio

n 54, [provides], "(a

)n admission is hearsay because it is usually unsworn and uncros s-exam ined and is offered as substantive evidence." Therefore, [Paine states], "(w)e make an exception . . . since
we believe that the part

y-de clarant is estopp

ed from claiming

that his prior state

ments are unreliable." This accords with Tennessee Law.

We note that Rule 801, F ederal Rule s of Evidence, Sec tion (d)(2), prov

ides that a


### -8- be excluded [unless meeting a recognized hearsay except i on.] If not, it would be admissible. . . .

Zenni , 492 F. Supp. at 469 n.21. Other implied assertions are obvious; for exam ple , the question: “Why did you stab me Brutus?” impliedly asserts that the questioner was stabbed by Brutus.” See Brown v. Commonwe

alth , 487 S.E.2d 248, 252 (Va. App. 1997) (citing Carlton v. State , 681 A.2d 1181, 1184 (Md. App.), cert. denied , 686 A. 2d 634 (Md. 1996)). Likewise, the question “Do you needchange?” impliedly asserts that the questioner has cha nge. Id. As demonstrated b y these exampl es, the extent to which an utterance may or may or may not contain an implied assertion depends on the nature of the utterance and the circumstances surrounding it. Id.

In the present case, the

appellant commented, “the charge of theft is not correct, it should have been unauthorized use o f a vehicle since

it was my

paren ts’ vehicle.” I

t is apparent fro

m this statement that the appellant was necessarily implying or asserting that he had been driving the vehicle. The statement is

an assertion. Mor

eover, the State

offered the statement to prove by implication the appellant’s identity as the perpetrator of the charged offenses. Thus, we conclude that the statement
was offered fo r the t ruth of the matter asserted and is not admissible unless it meets a recognized
exc ept ion to t he ru le a gain st h ears ay. 6

Tenn. R. Evid. 803(1.2)(

A) provides a hea

rsay except

ion for a sta

tement offe red against a party that is “the party’s own statement in either an individual or a representative capacity.” See N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE §803 (1.2).2, at 51 3. This means that a ny assertion a

party spoke

, wrote, or did may

be used against

that party as an admission. Id. The rule is simple and absolute. 7 Since the declarant is a party in the case, he o r she can testify, explain,statement is not hearsay if:

The statement is of

fered agains

t a party an

d is (A) his own state

ment.
This appears to us as a

better view; h

owever, whe ther a criminal defendant's own statement be treated as an exc

eption to the hearsay evidence rule, or as an admission notgoverned by the rule, the result is the same. The admission is competent proof.

Statev. Jones , 598 S.W.2 d 209, 223 (Te nn. 1980), overruled on other grounds by , State v. Shropshire , 874 S.W.2d 634 (Tenn. Crim. App. 1993), and, superseded by sta tute as stated in , State v. Shuck , 953 S.W.2d 662 (Tenn. 1997).



### -9- amplify or deny the statement. Id. Accordingly, the appel lant’s stateme

nt is admissible as an exception to the rule against hearsay an d was prop erly admitte

d by the tria

l court. This issue i

s without merit.

II. Failure to Grant a Mistrial Prior to the start of the a

ppellant’s trial,

the ap pellant requested a continuance which was denied by the trial court. In deny ing the motion, the trial court advised the jury Ladies and Gen tleme n, the case I anticipate try

ing today is State of Tennessee v. David Land . The defendant has filed some late-filed n

otices this morning

, which is going to cause us to take a short recess and a delay. I do notanticipate

our delay w

ill be over 10 minutes. The appellant contends that the court’s admonition to the jury

denied him a fair trial by “plant[in g] the seed in

the venire’s collective mind that the defense was in a state of unpreparedness, that it was seeking to unnecessarily delay the proc eedings, and that the defense’s motions were an irritant to the Court.” The appellant m oved fo r a mistrial which was denied by the trial court. The appellant contests t he trial cou rt’s rulin g.
A mistrial should be declared in criminal cases onl y in the event that a manifest ne cessity requires such action. State v. Millbrooks , 819 S.W.2d 441 (Tenn. Crim. App. 1 991). In other words,
a mistrial is an appr

opriate remedy

when a trial can

not continue, or a

miscarriage o

f just ice would result if it did. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. Ap p.1994). The dec

ision to grant a mistrial lies within the sound discretion of the trial court and this court will n

ot interfere with the exercise of that d

iscretio n absent c lear abuse appearing on the face of the record. See State v. Hall , 976 S.W.2d 121, 147 (Tenn. 1998), cert. denied , – U.S. –, 119 S.Ct. 1501 (1999)(cit ing State
v. Adkins , 786 S.W.2d 642, 644 (Tenn. 1990)). Moreover, the burden of establishing the necessity for mistrial lies with the party seeking it. State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

### -10-

The trial court,

in the present case, informed the jury as to the status of the proceedings before it. No comment was made uponthe evidence nor was a erroneous instruction of the applicable law provided. While the comments c ould be construed

as a criticism of d

efense counsel, the comment alone is not sufficient to require the declaration of a mistrial. See generally State v. Moffitt , 754 S.W.2d 584, 589 (Mo. App. 1988).

The trial court has a d

eep responsibility

for the orderly

and dignifie

d c onduct of courtroom proceedings.

When the circumstances are those which ma y imprison a criminal defendant, the tension of the court room

drama and the human fra

ilties and emotiona

l factors inevita

bly involved s

erve to make the judge’s task more difficult. Order and decorum must be maintained. The factual inquiry must be cond ucted within the issues and at all times under the applicable rules of law. The judg e must not indicate

a belief in either the guilt or innocence of the accused nor may he let such belief be reflected or even conjectured by the jury in his treatment of

either counsel. See State v. Caughron , 855 S.W.2 d 526, 536 ( Tenn. 1993 ) (citing Brooks v. State , 213 S.W.2d 7, 10 (Tenn. 1948)).

With consideration of these principles and the context of the comments, we conclude that the trial court’s com ments chal lenged by the app ellant did not infrin ge upon the appellan t’s right to

a fair trial. Rather, the comments were merely an attempt to inform the jurors of the status of the case for which they had been summoned. Acc ordi ngly, we c onclude that the tr

ial court did not ab

use its discretion in denying the appellant’s motion for mistrial. This issue is without merit.

III. Excited Utterance During the State’s case-in-chief, Trooper Cash testified, ove

r defense objection, concerning statements

made to him by Mrs. Land. The challenged sta tements arose from a m eeting bet ween Trooper Cash and Mrs. Land soon after the occurrence of the offenses. Spec ifically, upon

arriving at the Land residence, Trooper Cash informed Mrs. La nd that her vehicle had been wrecked a short distance from h er house. Trooper Cash testified that Mrs. Land became angry , began cursing and stated to him that the appellant “stole m y c ar, he stole my car.” Trooper Cash then received permission to check the appellant’s bedroom. The appellant was not in his bedroom, however,
numerous empty beer cans cluttered the floor. Mrs. Land then

exclaimed, “He’s

drunk. He stole my
ca r.” She ex plained that “her keys were in her purse, he g ot my keys and stole my

car.” The trial court admitted the statements as excited utterances under Tenn. R. Evid. 803(2). The appellant argues that the trial court

erred in permitting Trooper Cash to testify as to Mrs. Land’s exclamations that the appel lant “stol e her car.” Specifically, he asserts that Mrs. L and did not have any personal knowl edge, as required by Tenn. R. Evid. 602, that the appellant “stole her car;” ra ther “she ha d merely speculated that the [appellant] had taken her car that night.” Hearsay is a stateme nt, other than one made by the declarant while testify ing at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tenn. R. Evid. 801. Hearsay sta tements, in general, ar e inadmissible. Not

withstanding, the

reliability

and circumstanti

a l guarantees of trustworthiness of certain nontestimonial statements have permitted courts to carve out various limited exceptions to the hearsay

rule. One such exc

eption is commo

nly ref erred to as the8 Admissible testimony is limited to

matters of whichthe witness has acquired personal knowledge th rough any of [the witness’s] own
senses.
. . . . . .[T]o

be admitted pursua

nt to an exception co

ntained in Rule 803 or 804, the declarant of the extrajudicial s

tatement must

also be shown to have personal knowledge as to the matter related. Michael H. Graham, Handbook of Federal Evidence § 602.1 at 392-93 (3d ed. 1991).


### -11- excited utterance exception. The admission of excited utterances is governed by Tenn. R. Evid. 803(2), which admits statements relating to a startling event

or condition made w

hile the declarant
was under the stress of excitement caused by the event or condition . The underly ing theory

of this exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. For a s t atement to qualify as an excited utterance, the following criteria must be established: (1) there must be

a startling eve

nt or condition that

causes the stres s of excitement; (2) the statement must relate to the startling event or condition; and
(3) the statement

must be made while the declarant was under the stress of exciteme

nt.
See N EIL P. C OHEN , ET AL ., T ENNESSEE L AW OF E VIDENCE § 80 3(2).2, at 533-534. The only competency requirement for an excited utterance under Rule 803(2) is that t

he declarant mus

thave had an opportunity

to observe the facts contained in the extrajudicial statement. See N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 803(2).3, at 535. See also Tenn. R. Evid. 602. Th us, an excited utterance is inadmissible if the declarant lacked personal knowledge. 8

The appell ant concedes that the statements satisfy the 803(2) definition of an excited utterance. Notwithstanding, he argues that

the statements fa

il t o satisfy the per sonal know ledge requirement of Ru

le 602, which prov

ides:

A witness may not testify to a matter u nless evidence is introduce d sufficient to support a finding that the witne ss has personal knowledge of the matter. Evidence to prove personal knowledge may, but need no t, consist of the witness’s own tes tim ony. Again, one of the requirements for theadmission of an excited utterance is that the declarant appear to have had an o ppor tunity to personally observe the matter of which he or she speaks. See

6 Wigmore, Evidence § 1751, p. 222; McCormick, E vidence (3d ed.) , § 297, p. 858. While foundatio nally, the decl arant must have person al knowled ge, that kno wledge may be inferred from the statements themselves and the surrounding facts and circumstances. See State v. Ra wlings , 402 N.W.2d 406, 409 (Iowa

1987). In determinin

g whether a witn

ess is competent fo

r purposes of Rule 602, the trial court must de termine whether a witness had a sufficient opportunity to perceive the

### -12-

subject matter about which he or she is testifying. See N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE , § 602.4, p. 313. Thus, the party offering the testimony must introduce sufficient evidence to support a jury finding that the witness had personal knowledge of the matter

. Id.

While the rule fails to define what co nstitutes “kno wledge,” the r ule does not requir

e “absolute certainty.”N EIL P. C OHEN ET AL ., T ENNESSEE LAW OF E VIDENCE , § 602.4, p. 314. Nevertheless, the witness/declarant’s statement may not be based on mere speculation. Id. For example, the Arizona Supreme Court held that it was error to admit hearsay statements regarding the identity of the person who had placed a bomb under the declarant’s car, since there was no showing that the declarant had personal knowledge of the bomber’s identity. See S tate v. Adam son , 665 P.2d 972 (Ariz.), cert. denied , 464 U.S. 865, 104 S.Ct . 204 (1 983). The court found error despite its belief that the statements otherwise qualified as both excited utterances and

dying declarations. According to the court: There is . . . a general req ui rement imposed on d

eclarations com

ing in under all exception s to the hearsay rule that the declarant, like witnesses, must have had an opportunity

to observe or personal knowledge of the fact declared. State v. Mincey , 636 P.2d 637 (Ariz. 1981); State v. Dixon , 489 P.2d 2 25 (Ariz. 1971); Ariz. R. Evid. 602.

Adamson , 665 P.2d at 977. Indeed, the court held that t

he declarant’s statements should not have been admitted because the statements were not based on eve nts perceiv ed by the declara nt through
one of the physical sen ses. Id. See also Jones v. State , 12 S.W. 704 (Ark. 1889) (when declarant could not and did not see w

ho shot him, statemen

t identifying

shoote r prop erly exclude

d); State v. Weir , 569 So.2d 897, 900 (Fla. App. 1990), decision quashed, holding approved , 591 So.2d 593 (Fla. 1991) (evidence showi

ng declarant d

id not accuratel

y obs erve facts basis for court’s exclusion of dying declaration); People v. Kent , 404 N.W.2d 668, 671 ( Mich. App. 1986)(

hearsay st

atements identifying

defenda nt as per

petrator excluded absent proof that declarant had personal knowledge that defendant started fire).

In the present case, there is no evidence that Mrs. Land had personal knowledge that the appellant took the vehicle a

nd was driving the

vehicle on the night of the offense. The failure of the State’s proof to show that Mrs. Land either saw or otherwise perceived the appellant’s taking of her vehicle leaves the record in doubt as to whether her statement that “he stole my car, he

stole my car”
was an expression of Mr

s. Land’s know

ledge or merel

y an expression of speculation. Acco rdi ngly, the admission of Mrs. Land’s statement to Troop er Cash upon arriving at the Land residence was
error. The trial court's error, however, does not justify reve rsal of the judgment. Other evidence exists regarding the appellant’s g

uilt. We conclude th

e outcome of the tr

ial would not have been different had the statement s no t been presented to the jury. Accordingly , we find the error harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

IV. Admis

sion of Mrs.

Land’s Stat

ements t o Detect ive Brown During direct examination of Detective Brown, the State attempted to elicit statements made9 The substance of the s tatements related that Mrs. Land informed Detective Brown that the appellant had removed the keys from her pocketbook, took her vehicle, and had done so without her permission.

10 Although the charge of theft of the vehicle wa

s dismissed immediate

ly prior to the start of trial, testimony w as related by Detective Brown during direct examination that the appellant had been charged w

ith this offense by

the Franklin Police

Department.

11 Although Tennessee has no t expressly a

dopted the doctr

ine of cu rat ive adm iss ibi lit y, previous decisions of this court reflect an implicit adoption of thesame. See, e.g. , State v. Chearis , 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999) (officer permitted to testify on redirect examination to previously excluded evidenc e because defen se “opened the do

or” by elic

iting on crossexamin ation the b asis for the sear ch of the defend

ant); Harrison v. State

, 527 S.W.2d 745, 748 ( Tenn. Crim. App.), cert. denied , (Tenn. 1975) (defense called Chancery Court Clerk to t estif y regarding certain divorce matte rs between defendant and deceased, defense counsel did not introduce petition as exhibit, State permitted to cross-examine clerk on specific allegations in b ill, since defense counsel had “open ed the door”); State v. Raymond L. Covington , No. 01C01-9109-CC

00267 (Tenn. Crim. App. at Nashville, May 13, 1992) (defense counsel opened door by direct questioning of witness, prose cutor was entitle

d to rebut the appellant’s insinuation by showing that the tape was not beneficial to either State or defense).


### -13- by Mrs. Land to Detective Brown during a September 8, 1998, telephone conve rsation. 9 The trial court sustained defense objection finding the statements made by Mrs. Land

during the conversation constituted inadmissible hearsay. Notwithstanding, it was during this examination that Brown was permitted to testify con cerning the appellant’s Septemb er 21st statement made in the General Sessions hallway that “the charge should have b een unauthori zed use of a motor ve hicle, instead of

theft, because it was his parents’ vehicle.” 10 During cross-examination of Detective Brown, defense counsel repeatedly questioned Brown regar ding the State’s proof of

intentto support the charge for theft of the vehicle. Bound by the court’s earlier ruling, Brown was unable to relate his telephone conversation with Mrs. Land which substance was the proof supporting the theft charge. Thus, the inferencewas raised that the State had no proof of a theft and had wrongfully charged the appellant of the crime. On re-direct, the State again inquired as to Mrs. Land’s September 8 th statements t

o Detective Brown. The State asserted that the defense had “opened the door” by inquiring into proof of intent to support the theft charge. The trial court agreed that the defense “ope ned the door” and permitted the S tate to introduce the he arsay stat ements of Mrs. L

and which it had pr

eviously hel

d inadmissible.

Cle arl y, the statements of Mrs. Land made during the telephone conversation with Detective Brown constitute hearsay and do not fall within a recognized hearsay exception. See Tenn. R. Evid. 801. Not wit hst and ing, we co ncl ude tha t th e st ate men ts w ere p rop erl y a dmitte d during redirect examinatio n under the doc tri ne o f cur ati ve ad mis sib ili ty. 11 Most often employed in criminal cases where the “door” to a p articular subject is opened by defense counsel on cross-examination, the doctrine of curative admissib

ility permits t

he State, on redir

ect, to question the witness to clarify or explain the

### -14-

matters brought out

during, or

to remove or corr

ect unfavorable

inferences lef

t by, the pre

vious crossexamination. See People v. Manning , 695 N.E.2d 423, 433 (Ill. 1998 ) (cit ations omitted). Th is doctrine provides that “[w]here a defendant has injected an issue into the case, the State may be allowed to admit otherwise inadmissable evidence in order to explain or counteract a negative inference r aised by the issue

defendant injects.” See Statev. Armentrout , 8 S.W.3d 99, 111 (Mo . 1999) (cit ing State
v. Weaver , 912 S.W.2d 499, 510 (Mo. banc 1995), cert. denied , 519 U.S. 856, 117 S.Ct. 153 (1996));
see also Rastall v. CSX Transportation, Inc. , 697 A.2d 46, 52 (D. C. 1997) (in the inte rest of fairness , otherwise inadmissible evide

nce may be

admitted to

the extent necessary to remove prejudice when a party opens the door to its

admission); U.S. v. Monroe , 437 F.2d 684, 686 (D.C. Cir. 1970) (doctrine of “curative admissibility” allows one party to introduce evidence that might otherwise be excluded to counter unfair prejudicial use of

the same evidence by the opposing party); 21 Fed. Prac. & Proc. Evid. § 5039 (1977). In other wo rds, “[i] f A opens up an issue and B will be prejudiced unless B can introduce contradictory or explanatory evidenc e, then B will be permitted to introduce such evidence, even though it might otherwise be improper.” Manning , 695 N.E.2d at 433 (citations omitted).

The rule is derived from the fundamental guarantee of fa irness. That is, the rule op erates to prevent one party from

manipulat ing the rule s of evidenc e so as to le ave the jury wit h feelings about the case that are unjustified, even though thejury’s emotional response to the case is, theoretically , not a consideration in determining admissibility. See 22 Fed. Prac. & Proc. Evid. § 51 65. Spe cif ica lly, i n a c riminal case, “[t]he rule operates to prevent an accused from successfully gaining exclusion of inadmissible

prosecution evi dence and t hen extracting selected pieces of this evidence for his own advantage, without the Government being able to place them in their proper context.” Lamp kins v. United States , 515 A.2d 428, 431 (D.C. 1986) (citations omitted).

Notwithst anding, the doctrine’s applicability is limited by, “the necessity of removing prejudice in the interest of fairness.” Crawford v. United States , 198 F.2d 976, 979 (1952) (D. C. Cir. 1952) (citations omitted). It is not an unconstrained remedy permitting introduction of inadmissible evidence merely because the opposing party brought out evidence on the same subject. Manning , 695 N.E.2d at 434 (citation omitte

d). The rule is pro

tective and goe

s only so far

as is necessary

to shield a party from adverse infere

nces and is

not to be converted into a doctrine for injecting prejudice. Id. (citation omitted). Only that evidence which is necessary

to dispel the unfai

r prejudice res

ulting from the c

rossexamination is admissible. United States v. Winston , 447 F.2d 1236 (D.C. Cir. 1971). See also Dyson
v. United States , 450 A. 2d 432, 454 (D.C. 1982) (citations omitted) (introduction of incompetent or irrelevant evidence by a party opens the door to admission of otherwise ina dmissible evidence only to extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence). Since the application of the doctrineof curative admissibility is based on the notion that the jury might be misled if contradictory evidence was excluded, the doctrine should not justify admission of that evidence when it is likely to do more harm in this respect than good. See 27 Fed. Prac. & Proc. Evid. § 6096 (1990). When constitutional rights are involved, the court must be particularly certain that the c

ase is appropriate

for curative admissibility by requiring a clear showing of prejudice before the open the door ruleof rebuttal may be involved. Lampkins , 515 A.2d at 431 (citations omitted). If the trial cour t12 I n addressing confrontation violations, other courts have held that “[where] the prejudice
was obvious and substantial, the f act th at appellant’s Sixth Amendment right to confront the witnesses against him was implicated does not pre vent a pplication of the “open-the-door rule of rebuttal.” See Winston , 447 F.2d at 1240-1241.I 

### -15- decides to admit such testimo ny on a theor

y of curati ve admissibility

, however, its dec

ision will not be reversed on appeal unless the appel lant can demonstrate a clear abuse of discretion. See generally Chearis , 995 S. W.2d at 6 45. In the pre sent case, the re

cord reflects th

at defense coun

sel repeatedly posed to Detective Brown the unanswerable question as to the State’s proof supporting the appellant’s intentfor the theft offense, i.e. , “where is you evidence of [the appellant’s] intent.” Although the issue of the appel lant’s int ent for the t heft charge wa s irrelevan t as the char ge itself had been nolled

by the State, the appellant’s v

oluntary int

erjection of the

issue, abse

nt objection by the State, “opened the door” for the admission of oth

erwise inadmissible evide

nce to the extent ne

cessary to remove the unfai

r prejudice. See Lampkins , 515 A.2d at 431 (citation omi tted); see also State v. McNeil , 518 S.E.2d 486, 501 (N.C. 1999), petition for cer tiorari filed , (Jan. 7, 2000) (“The law ‘wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.”). Assuming that the State wou ld not be per mitted to place the fact in the prope

r context, defense counsel’s cross-examination was a calculated move intended to relay to the jury the inference that the appellant was arrested on the charge of theft with no basis or proof. Thu s, the S tate could introduce otherw ise inadmiss ible evidence to the extent necessary to remove the unfair prejudice w hich might otherwise have ensued from the

original evidence. See California Ins. Co. v. Allen , 235 F.2d 178, 180 (5 th Cir. 1956).

We conclude that the trial court correctly determined that Mrs. L and’s statements relating that the appellant had taken her keys from her purse and had taken the vehicle were admissible on redirect examination. These statements were necessary to dispel the prejudice that the a ppellant was arrested absent proof. Thus, we c

onclude that the tr

ial court did

not abuse its discretion by permitting the jury to hear the out-of-

court s tateme nts of Mrs. Land. See generally Chearis , 995 S.W.2d at 645 (“admissibility

of testimony a

nd other evidenc

e, as well as the sc

ope of redirect

examination, is within the discretion of the trial court, whose ruling will not be reversed absent an abuse of that

discretion”).
Moreover, we r ecognize that the appellant’s Sixth Amendment right to confront witnesses against him is implicated by the admission of the hearsay statements. See generally Ohio v. Roberts , 448 U.S. 56, 62-65, 100 S.Ct. 2531, 2537-2539 (1980). In this respect, we conclude that no violation of the appellant’s r

ight toconfrontation resulted as the declaran

t, the appellant’ s mother, was a wit ness calledby both the State and the defense. 12 Thus, the appella nt had the opportun

ity to confron t this witness regar

ding the out of co

urt statements. Ac

cordingly , this issue is without m

erit.

V. Sufficiency of the Evidence In his final issue, the appellant argues that the evidence is insufficient to support his conviction. Spe cif ica lly, he contends the proof introduced at the trial failed to establish beyond a reasona ble doubt his ident ity as the dr

iver of the vehic

le. In this reg

ard, he asserts t

hat no direct evid

ence exists

### -16-

establishing his identity as the driver. In essence, the appellant a rgues that the "finger of guilt" does not point unerringly to him as the perpetrator of this crime.

Init ial ly, a defendant is cloaked with the presumption of innocence. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 198 2). However, a j ury convic tion removes this

presumption of innocence and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insuf

ficient. Id. In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Mann , 959 S.W.2d 503, 518 (Tenn. 1997). On appeal, the Stateis entitled to the strongest legitimate view of the ev idence and all legitimate or reasonable inferences which may be drawn therefrom. State v. H arris , 839 S. W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993). It is the appellate court's duty to affirm the c onviction if the evidence viewed under these standards was sufficient for any rational trier

of fact to have found the essent ial element s of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1 979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn.1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). This rule is applicable

to findings of g

uilt predica ted upon direct evidence, circumstantial evidence, or a combination of both direc t an d circumstantial evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Circumstantial evidence alonemay be sufficient to support a conviction. See State v. Leming , 3 S.W.3d 7, 13 (Tenn. Crim. App. 1998) (citing State v. Smith , 868 S.W.2d 561, 569 (Tenn. 1993)). However, if a conviction is based purely

on circumstantial

evidence, the f

acts and circums

tances must be so overwhelming

as to exclude any

other expla

nation ex cept for the defendant's guilt. State v. Tharpe , 726 S.W.2d 896, 900 (Tenn.1987). In addition, "it must establish such a certainty of guilt of the accused as to convince the mind beyond a re asonable doubt that the [appellant] is the one who committed the crime." Tharpe , 726 S.W.2d at 896. When reviewing the sufficiency of circumstantial evidence, this court must remember that the jury decides the weight to be given to circ umstantial evidence, the inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence. Leming , 3 S.W.2d at 13.

The State presented proof at trial establishing that state troopers ob served a vehicle operated by
a white male traveling at an excessive rate of speed on I-65. The troopers pursued

the vehicle. Des

pite the patrol car’s eme

rgency l ights and siren, t

he driver faile

d to yield to

the troopers’ pur

suit. As a result of its excessive speed, the vehicle lost control and left the roadway. By the time the troopers arrived, the driver had disappeared. The vehicle was registered to the appellant’s parents. The appellant resided with his parents.

Both the appellant and the vehicle had disappeared from the residence. The wreck occurred a short d istance from t

he appellant’s r

esidence. Afte

r his arrest, the a

ppellant admitted t

o Detective Brown that he should have only been charged with unauthorized use of the vehicle

because the car belonged to this parents. During the trial, the appellant presented the testimony of h

is mother to sugg est tha t an oth er pe rso n ma y h ave committed the offe nses. The jury

rejected this ev

idence in favor of the proo

f submitted by

the State. We concl

ude that this evide

nce excludes eve

ry reasona

ble hypothesis

but that of the appe

llant’s g uilt fo r the offenses of felony evading arre st and driving on a revoked license. See Tenn. Code Ann. §39-16-603(b)(1)(1997); Tenn. Code Ann. § 55-50-504(a)(2) (1998). This issue

is without merit.

### -17-

For the reason s set forth herein, we affirm the judgments of conviction entered by the Williamson County

Circuit Court.