IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 26, 2013 Session

STATE OF TENNESSEE v. RICKY WAYNE DAVIS, JR.

Direct Appeal from the Criminal Court for Knox County

No. 97274 Steve W. Sword, Judge

No. E2012-01595-CCA-R3-CD - Filed August 14, 2013

A Knox County Grand Jury returned an indictment against Defendant, Ricky Wayne Davis,

Jr. charging him with two counts of felony evading arrest, reckless endangerment,

misdemeanor possession of marijuana, possession of drug paraphernalia, failure to provide

evidence of financial responsibility, and failure to use a seat belt. After a jury trial,

Defendant was found guilty of one count of evading arrest, misdemeanor possession of

marijuana, failure to provide evidence of financial responsibility, and violation of the seatbelt

law. He was found not guilty of one count of evading arrest and reckless endangerment, and

the trial court dismissed the charge of possession of drug paraphernalia. The trial court

sentenced Defendant to two years of probation for felony evading arrest and eleven months,

twenty-nine days of probation for misdemeanor possession of marijuana, to be served

concurrently. The trial court also imposed a fine of ten dollars for the seat belt violation and

a fine of one-hundred dollars for failure to provide evidence of financial responsibility. On

appeal, Defendant argues that (1) the trial court erred by denying his motion to suppress the

evidence found in his vehicle; and (2) the evidence was insufficient to support his conviction

for felony evading arrest. After a thorough review, we reverse the conviction for

misdemeanor possession of marijuana. All other judgments are affirmed.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Criminal Court Affirmed in Part; Reversed in Part

THOMAS T. WOODALL,J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROBERT W. WEDEMEYER, JJ., joined.

Keith Lowe, Knoxville, Tennessee, for the appellant, Ricky Wayne Davis, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Jason Hunnicutt, Assistant

District Attorney General, for the appellee, the State of Tennessee.
OPINION

I. Background

Suppression Hearing

At approximately 4:10 to 4:20 p.m. on August 16, 2010, Lieutenant Gordon Gwathney

of the Knoxville Police Department was driving eastbound on Virginia Avenue when

Defendant’s vehicle, “a dark blue or black Cavalier,” passed him in the westbound lane. As

the two men met each other, Lieutenant Gwathney noticed that Defendant was not wearing

his seat belt. Lieutenant Gwathney then made a U-turn, and as he did, Defendant “went from

going at a normal speed to probably at least twice the normal speed.” He explained that the

speed limit on Virginia Avenue was thirty miles per hour. Lieutenant Gwathney testified that

he drove sixty to eighty miles per hour to catch up to Defendant’s car. Concerning the area

where he and Defendant were driving, Lieutenant Gwathney said:

That area is - - normally has a lot of people walking. There’s a housing project

there. There’s the Emerald Youth Foundation, and also Jimmy’s Mini Market

there at the end of Virginia and Schofield. Didn’t use his blinker light when

he turned. I believe he turned onto Bowling right there, and then at Schofield,

when I got to - - he was fishtailing the whole way because of his speed. When

I got to - - when I got to Schofield and looked right - - when he turned right

onto Schofield, there were several cars coming. I think he lost it and swerved

over towards the cars.

Lieutenant Gwathney testified that he was able to see Defendant’s vehicle the entire

time, and he activated his blue lights after turning onto Schofield Street. He did not believe

that Defendant could have seen his lights before that time because Defendant’s car was so

far ahead of him. Lieutenant Gwathney stopped at the intersection of Schofield Street and

Tennessee Avenue. He then turned onto Tennessee Avenue and immediately activated his

siren.

The video from Lieutenant Gwathney’s patrol car was played for the jury, and he

narrated during the video. He noted that he watched Defendant’s car turn onto Bowling

Avenue and Vermont Avenue, and he pointed out that Defendant’s vehicle swerved and

“almost tipped those cars right there.” Lieutenant Gwathney explained that the camera in his

patrol car recorded at “slow speed” until he activated his blue lights. The frame speed then

became “real time instead of slow time.” Additionally, he noted that the camera was set at

“a wide angle. So things look smaller than they actually are.” Lieutenant Gwathney further

testified that although his video camera was pointed straight ahead, he could see out the side

of the window of the vehicle. In addition to what was on the video, he noted that Defendant

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“completely blew the stop sign there at Schofield and Tennessee.” Lieutenant Gwathney

testified that after Defendant pulled over and was arrested, he inventoried the vehicle. He

found 2.4 grams of marijuana underneath the seat along with a metal box with some tweezers

in it. He explained that he had Defendant’s vehicle towed because it was blocking a

driveway. Lieutenant Gwathney testified that Defendant did not give any explanation for

his manner of driving and said that “he wasn’t running.” In his opinion, Defendant was a

danger to the public. Lieutenant Gwathney testified: “He was driving normal until I turned

around, and he - he floored it. He went from driving below normal to way past normal.”

On cross-examination, Lieutenant Gwathney testified that he saw Defendant almost

hit three cars, although it was not on the video. However, he pointed the vehicles out on the

video. He further explained that he could “see around that - that little edge” even though the

video did not capture beyond the edge and that the video camera did not show beyond the

edge because it was “set at a factory wide-angle setting.” Lieutenant Gwathney

acknowledged that there was a hill on Schofield Street that went approximately to the

intersection of Schofield Street and Tennessee Avenue. However, he could still see

Defendant’s vehicle. Lieutenant Gwathney noted that Defendant “fishtailed” when he “came

down the hill. The back end apparently let loose.” Lieutenant Gwathney also observed

Defendant pass a white truck in a no-passing zone. When he pulled Defendant over, he

noticed the smell of “hot brakes” as he approached Defendant’s vehicle. Lieutenant

Gwathney testified that he had Defendant’s car towed because it was at the corner of a

driveway “where you cannot turn left safely, and he did not even ask to leave his car there

or ask for someone to come and get it.” He noted that the Knoxville Police Department

policy did not require him to try and make other arrangements before a vehicle was towed.

On re-cross examination, Defendant played the audio recording from the preliminary

hearing. At the hearing, Lieutenant Gwathney said twice that he had Defendant’s car towed

because Defendant was in custody. Lieutenant Gwathney testified that he had watched the

video at least three times since the preliminary hearing, and the car was towed because it was

blocking the driveway.

Christopher Irwin, an attorney, testified on Defendant’s behalf. He testified that

defense counsel asked him to ride in the car with him to “measure distances and clearances

and videotape and take photos. . .” Mr. Irwin then narrated the video while it was played in

court. He testified that he took a photograph at “head level” of the intersection of Vermont

Avenue and Schofield Street. Mr. Irwin noted that he was unable to see over the “hill” or

“bend.” He said that he drove the route four or five times and was unable to see traffic on the

other side of the crest of the hill. Mr. Irwin also noted that while sitting on Vermont Avenue

looking up at Schofield Street, he was unable to see any portion of Schofield Street before

he got all the way to the intersection. He said that when he looked to the right of the car

approaching Schofield Street, all he could see was a hill with houses, trees, and a concrete

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embankment. Mr. Irwin testified that one had to be at the stop sign at the intersection of

Bowling Avenue and Vermont Avenue in order to see down Vermont.

Trial

At trial, Lieutenant Gwathney’s testimony was substantially the same as it was at the

suppression hearing. He testified that on the day of the offenses, he was working overtime

at the “KCDC housing development there at Western Heights.” Lieutenant Gwathney

explained that he patrolled the area “for criminal activity and anything to help keep the

residents safe there.” Lieutenant Gwathney testified that at approximately 4:00 p.m. on

August 16, 2010, he was driving on Jourolman Avenue, and turned onto Virginia Avenue.

He said, “[N]ot too far past the intersection, I passed the defendant there driving a dark

colored Cavalier - - ‘98 Cavalier. Speeds were normal. I looked at him. He looked at me.

He didn’t have his seat belt on.”

Lieutenant Gwathney believed his speed at the time to be under thirty miles per hour,

and it was his impression that Defendant was also traveling within the speed limit (thirty

miles per hour) at the time. Lieutenant Gwathney testified that the road was too narrow for

a U-turn, so he did “more of a three-point turn.” He said, “[W]hen I completed my turn, he

was - - he went from driving slower than normal to way past normal, and he was almost out

of sight.” Lieutenant Gwathney testified that he drove sixty to eighty miles per hour to catch

up with Defendant. He explained that his patrol car was equipped with a digital video

system. He said, “I followed - - the main thing we’re taught [is] to keep the vehicle in sight.

It appears on the video that the vehicle’s out of sight, but it’s not. We have a wide-angle lens

that makes things smaller.” Lieutenant Gwathney also noted that the camera in his car was

situated to the right of the driver and that the camera runs at a slow speed until “we flip our

lights or sirens on, then it runs normal.”

Lieutenant Gwathney again narrated the video from his patrol car taken at the time of

the offenses. He noted that there was a housing development in the area, surrounded by

residential houses. The only business in the area was a market located at the intersection of

Virginia Avenue and Schofield Street. The Emerald Youth Foundation was located on

Virginia Avenue at Bowling Avenue.

Concerning Defendant’s driving, Lieutenant Gwathney testified:

It doesn’t appear that I can see him go - - swerve over and almost hit those cars

from the video, but, again, the video is at a wide-angle setting. It’s not where

the driver sits. It’s to the right of me, and from this it doesn’t appear that I see

him do that, but I can see - - I’m not - - I’m actually in the other lane a little bit

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so I can see over - - it’s not a big hill. I can see over the small crest of the hill,

he almost hit those cars.

He noted that the camera was pointed straight ahead of the car and not to the sides.

Lieutenant Gwathney testified that Defendant “illegally” passed a white truck and ran

through two stop signs. He noted that Defendant also swerved and almost hit three oncoming

vehicles during the pursuit. Lieutenant Gwathney testified that he activated his blue lights

after he turned onto Vermont Avenue from Bowling Avenue. He did not believe that

Defendant could see his lights “until Schofield when we - - when I was catching up to the

white truck that he passed.”

Lieutenant Gwathney testified that he activated his siren when he turned onto

Tennessee Avenue from Schofield Street. Defendant did not apply his brakes until

Lieutenant Gwathney had almost caught up to him. Lieutenant Gwathney noted that he could

see Defendant’s car “the whole time. It - - the only time that I - - that I lost it for a minute

is when he first made that turn, but as soon as my car got there, I - - and - - and got over in

that other lane, I saw his car.”

Lieutenant Gwathney testified that after Defendant stopped his vehicle, he asked

Defendant to throw his keys out the window. He noticed the smell of “hot” or “burnt” breaks

when he approached Defendant’s vehicle, which indicated “hard braking.” For officersafety,

Lieutenant Gwathney ordered Defendant to get out of the car and lie down on the ground

with his hands out. He then handcuffed Defendant and placed him under arrest. Defendant

denied attempting to flee. He was placed in Lieutenant Gwathney’s patrol car, and

Lieutenant Gwathney began searching the vehicle. He noted that the vehicle was parked at

the corner of a driveway. He said:

You can legally park on that road, but you cannot block somebody from

leaving their - - their property. If somebody were to come from that driveway

and turn left, they could not safely turn left. They couldn’t see around the car,

and it’s - - it’s right up to the edge of the driveway. So that’s - - that’s why I

towed the vehicle.

When asked if he told Defendant that the car would be towed, Lieutenant Gwathney testified:

“I told him that - - yes. I told him that it was going to be towed, and at no point did he ask

for somebody to come and get the vehicle.” Lieutenant Gwathney noted that protocol for the

Knoxville Police Department required him to perform an inventory search of the vehicle “so

we don’t send anything to the - - to the city pound that can hurt the civilian workers.”

Lieutenant Gwathney testified that he searched Defendant’s car and found 2.4 grams

of marijuana in a small baggie under the driver’s seat. There was also a metal container with

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a pair of tweezers in it. He opined that the tweezers were used to smoke marijuana.

Lieutenant Gwathney testified that Defendant’s driver’s license was valid, but he did not

have proof of insurance.

On cross-examination, Lieutenant Gwathney testified that the camera in his patrol car

was suspended from “ a glued piece of lead on the windshield.” He noted that it was actually

lower than the rearview mirror and located at “almost eye level, not quite.” He estimated that

the camera was positioned “a foot and a half” to his right. According to Lieutenant

Gwathney, it took him approximately twelve seconds to turn around after he met Defendant,

and he heard Defendant’s engine “rev up” as soon as he met and passed Defendant. He said

that by the time that he got turned around, Defendant’s car was “way ahead” of him.

Lieutenant Gwathney did not immediately activate his blue lights because of the distance

between his car and Defendant’s. He later activated them when he came to an intersection.

Lieutenant Gwathney testified that during the pursuit, he lost sight of Defendant’s vehicle

for “a little bit” at the intersection of Schofield Street and Vermont Avenue. He explained

that out of the corner of his eye, he saw Defendant turn from Vermont Avenue onto Schofield

Street. He also testified that Defendant almost hit two vehicles rather than three, and

Defendant illegally passed a white truck. Lieutenant Gwathney testified that the video from

his patrol car “doesn’t lie, but it doesn’t capture everything.” He admitted that there was a

“slight grade” on Schofield Street, and the road curved slightly to the right. However, he

could see beyond the curve. Lieutenant Gwathney agreed that according to the video,

Defendant came to a stop ten seconds after he activated his siren. He believed that Defendant

should have seen his car with the blue lights activated before they turned onto Tennessee

Avenue.

Lieutenant Gwathney testified that Defendant was compliant after his vehicle stopped,

and he did not resist in any way. He noted that the substance in Defendant’s car appeared

to be marijuana. He later filled out the paperwork for the substance to be sent to the

Tennessee Bureau of Investigation laboratory, but it was never sent to be tested. Lieutenant

Gwathney testified that Defendant placed the public in danger by speeding by a daycare at

the intersection of Virginia Avenue and Vermont Avenue, and he noted that the area was a

“high residential” area where most people walked because they did not have a vehicle. He

further testified: “The two vehicles, him passing the - - the reckless driving, him passing the

white truck on the wrong side of the road, not stopping at two stop signs - - not one, two.”

Lieutenant Gwathney did not know if there was anyone outside of the daycare when

Defendant drove by. He specifically noted that Defendant put “the people in the vehicles [in

danger], especially the white truck passing on the wrong side of the road.”

Christopher Irwin testified that he helped trial counsel make a video of the route

driven by Lieutenant Gwathney and Defendant. He noted that while on Bowling Avenue,

he could not see Schofield Street because “[t]he houses were in the way.” When asked if he

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could see Schofield Street, other than what was directly in front of him, while traveling on

Vermont Avenue, Mr. Irwin noted that he could not because there was a hill in the way. Mr.

Irwin testified that while traveling on Schofield, he could not see over the hill or around the

bend. He and trial counsel drove the route five times, and he was never able to see traffic

coming around the bend.

II. Analysis

A. Motion to Suppress

Defendant contends that the trial court erred by denying Defendant’s motion to

suppress the marijuana found during a search of his vehicle. He argues that the search was

not a lawful search incident to an arrest nor was it a lawful inventory search. The State

concedes that the search was not lawful. We agree.

The findings of the fact by the trial court in a suppression hearing will be upheld by

the appellate court unless the evidence preponderates otherwise. State v. Williams, 185

S.W.3d 311, 314 (Tenn. 2006). The prevailing party in the trial court is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence. Id. at 314-15.

The application of the law to the facts is a question of law that the appellate court reviews

de novo. Id. at 315. The burden is on the State to prove that a warrantless search was

constitutionally permissible. State v. Nicholson, 188 S.W.3d 649, 656–57 (Tenn. 2006).

Both the federal and state constitutions protect against unreasonable searches and

seizures. The Fourth Amendment to the United States Constitution provides that “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” Article I, section 7 of the Tennessee

Constitution similarly guarantees “[t]hat the people shall be secure in their persons, houses,

papers and possessions, from unreasonable searches and seizures.” “[U]nder both the federal

constitution and our state constitution, a search without a warrant is presumptively

unreasonable, and any evidence obtained pursuant to such a search is subject to suppression

unless the state demonstrates that the search was conducted under one of the narrowly

defined exceptions to the warrant requirement.” State v. Cox, 171 S.W.3d 174, 179 (Tenn.

2005). These exceptions include searches incident to a lawful arrest, consensual searches,

searches incident to the “hot pursuit” of a fleeing criminal, “stop and frisk” searches, and

searches based on probable cause under exigent circumstances. State v. McMahan, 650

S.W.2d 383, 386 (Tenn. Crim. App. 1983), citing State v. Shaw, 603 S.W.2d 741, 742 (Tenn.

Crim. App. 1980). A police officer may also conduct a warrantless inventory of a lawfully

impounded vehicle in the absence of probable cause that the vehicle contains evidence

subject to seizure or exigent circumstances. State v. Watkins, 827 S.W.2d 293, 295 (Tenn.

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1992), citing South Dakota v. Opperman, 428 U.S. 364, 372 (1976); State v. Glenn, 649

S.W.2d 584, 588 (Tenn. 1983).

The trial court in this case made the following findings concerning Defendant’s

motion to suppress:

The question becomes was there a justification for searching the vehicle and

finding the other contraband that was allegedly located in the defendant’s car,

and there’s two factors. You know, this is a warrantless search, and the

presumption is that this was an unreasonable search of the vehicle that led to

the discovery of the contraband. There are two exceptions to that warrant

requirement that I believe apply here.

The first is search incident to a lawful arrest, and if an individual is in lawful

arrest, then a search of the vehicle the person was an occupant of, as long as

it’s contemporaneous with that arrest, once the defendant is removed and put

in the back of the cruiser, under New York v. Belton, State v. Watkins, and

State v. Reid here in Tennessee, even if that person’s been neutralized and

placed in the back seat of the cruiser, the officer may conduct the search of the

occupant space of the vehicle.

And so I think the officer would have been justified for that. He testified that

he conducted an inventory search of the vehicle. That can be done whether

under all the circumstances is [sic] reasonable grounds for an impoundment of

the vehicle, and under State v. Drinkard which was a Tennessee Supreme

Court case from 1979, when you look at all those circumstances, was it

reasonable for the car to be impounded? In this case the officer testifies that

the positioning of the vehicle made it difficult for the resident there who - - the

driveway where the vehicle was parked right in front of would make it very

difficult for them to pull out and turn left there.

It’s hard to tell that from the video. You can see the driveway there and the

corner of the defendant’s vehicle, but, in any event, I think that under those

circumstances that there was no one else there to drive the vehicle away.

There are no other occupants of the car. The defendant was the only one in

there. He didn’t request for somebody else to come and get it. I think that it

was not unreasonable for the officer to impound the vehicle at that point, and

therefore, a search would also be valid under an inventory search, and so I’m

going to deny your motion at this time to suppress the evidence due to either

the stop or the search.

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First, Defendant argues, and the State concedes that the search in this case was not a

valid search incident to arrest. We agree. In Arizona v. Gant, 556 U.S. 332, 343 (2009), the

Supreme Court held that an officer may search a vehicle “incident to a recent occupant’s

arrest only when the arrestee is unsecured and within reaching distance of the passenger

compartment at the time of the search.” The Court further held that a search of a vehicle

incident to a lawful arrest is justified when it is ‘”reasonable to believe evidence relevant to

the crime of arrest might be found in the vehicle.”’ Id. (emphasis added)(internal citations

omitted). “In many cases, as when a recent occupant is arrested for a traffic violation, there

will be no reasonable basis to believe that the vehicle contains relevant evidence.” Id.

In this case, Defendant was not within reaching distance of the passenger

compartment at the time of the search since he was handcuffed and in the back seat of

Lieutenant Gwathney’s patrol car. Nor was there reasonable basis to believe that the vehicle

contained relevant evidence of the crime for which he was arrested, felony evading arrest.

Therefore, the warrantless search of defendant’s vehicle as a search incident to a lawful arrest

was not constitutional.

Defendant next argues, and the State concedes, that the search was not a lawful

inventory search. We agree. A valid inventory search depends on whether it was reasonably

necessary to impound the arrested person’s vehicle. State v. Lunsford, 655 S.W.2d 921, 923

(Tenn. 1983). An “inventory search . . . is ostensibly to protect the occupant of the vehicle

against loss of his property or the law enforcement agency against the occupant’s claim for

failure to guard against such loss.” State v. Donald Curtis Reid, No. M1999-00058-CCAR3-CD, 2000 WL 502678 (Tenn. Crim. App. Apr. 28, 2000). In Drinkard v. State, 584

S.W.2d 650, 653 (Tenn. 1979) our supreme court established the following guidelines

concerning the impoundment of a vehicle:

[I]f the circumstances that bring the automobile to the attention of the police

in the first place are such that the driver, even though arrested, is able to make

his or her own arrangements for the custody of the vehicle, or if the vehicle

can be parked and locked without obstructing traffic or endangering the public,

the police should permit the action to be taken rather than impound the car

against the will of the driver and then search it. Just cause to search the driver

is not alone, enough; there must also be reasonable cause to take his vehicle

into custody.

The burden is on the State to show that the impoundment was necessary. Id. at 354.

Concerning the factors to consider as to whether an impoundment of the vehicle is

reasonable, our supreme court further opined:

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[T]he officer [must] advise a present, silent arrestee that his car will be

impounded unless he can provide a reasonable alternative to impoundment.

Our holding does not mandate that an arrestee must be advised of all available

options to impoundment; such a per se rule would be unworkable because of

changing conditions and circumstances. However, the extent of the

consultation with an arrestee is a factor for the trial judge to consider in

determining whether the impoundment was reasonable and necessary.

State v. Lunsford, 655 S.W.2d 921, 924 (Tenn. 1983)(quoting Sanders v. State, 403 So.2d

973, 974 (Fla. 1981).

In this case, the State failed to show that impoundment was necessary. Defendant was

alone, and his car was parked at the corner of a driveway, as reflected in the video.

Lieutenant Gwathney testified:

You can legally park on that road, but you cannot block somebody from

leaving their - - their property. If somebody were to come from that driveway

and turn left, they could not safely turn left. They couldn’t see around the car,

and it’s - - it’s right up to the edge of the driveway. So that’s - - that’s why I

towed the vehicle.

When asked if he told Defendant that the car would be towed, Lieutenant Gwathney testified:

“I told him that - - yes. I told him that it was going to be towed, and at no point did he ask

for somebody to come and get the vehicle.” On the video of the stop, Lieutenant Gwathney

is heard telling Defendant that his car would be at the “city pound.” Defendant did not ask

to have anyone pick up the vehicle and at one point asked to call the mother of his children

because “they” were waiting on him to pick them up. Lieutenant Gwathney noted that

protocol for the Knoxville Police Department required him to perform an inventory search

of the vehicle “so we don’t send anything to the - - to the city pound that can hurt the civilian

workers.” Defendant’s driver’s license was valid; however, Lieutenant Gwathney testified

that Defendant did not have proof of insurance.

In this case Lieutenant Gwathney did not advise Defendant that his vehicle would be

impounded unless he could provide a reasonable alternative to impoundment. He simply told

Defendant that his car would be at the “city pound.” Further we note that Lieutenant

Gwathney testified that parking was allowed on the side of the road, and from Lieutenant

Gwathney’s testimony, Defendant’s vehicle was not blocking ingress and egress via the

driveway, but was only parked closer to the driveway than the officer though was

appropriate.

B. Sufficiency of the Evidence

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Defendant argues that the evidence presented at trial was insufficient to support his

conviction for felony evading arrest. We disagree.

When an accused challenges the sufficiency of the convicting evidence, our standard

of review is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact,

not this Court, resolves questions concerning the credibility of the witnesses, and the weight

and value to be given the evidence as well as all factual issues raised by the evidence. State

v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may this Court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences therefrom.

Id. Because a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this Court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and circumstantial evidence should be treated

the same when weighing the sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d

370, 381 (Tenn. 2011).

It is an offense for a “person, while operating a motor vehicle on any street, road, alley

or highway in this state, to intentionally flee or attempt to elude any law enforcement officer,

after having received any signal from such officer to bring the vehicle to a stop.” Tenn.Code

Ann. § 39-16-603(b)(1). The offense of evading arrest while driving a motor vehicle is a

Class E felony “unless the flight or attempt to elude creates a risk of death or injury to

innocent bystanders or other third parties, in which case a violation of subsection (b) is a

Class D felony.” Id. § 39-16-603(b)(3). The jury in the present case found Defendant not

guilty of felony evading by “intentionally flee[ing]” from Lieutenant Gwathney. He was

found guilty of evading arrest by “intentionally attempt[ing] to elude” Lieutenant Gwathney

after having received any signal from the officer to stop.

The evidence, taken in a light most favorable to the State, shows that Lieutenant

Gwathney was driving on Virginia Avenue when he met Defendant, who was driving in the

opposite direction, and he noticed that Defendant was not wearing a seatbelt. At the time,

both vehicles were traveling the speed limit. Lieutenant Gwathney turned around, and when

he completed the turn, Defendant “went from driving slower than normal to way past normal,

and he was almost out of sight.” He then drove sixty to eighty miles per hour in an attempt

to catch up with Defendant. During the video of the stop, Defendant acknowledged, “How

did I know that you were turning around on me?” This is circumstantial evidence that

Defendant knew that Lieutenant Gwathney was turning around to pursue him. In any event,

the officer signaled Defendant to stop when the blue lights were turned on, well before

Defendant finally stopped after the officer turned on his siren. At that point, Defendant

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accelerated and began driving beyond the speed limit in an attempt to elude Lieutenant

Gwathney.

Lieutenant Gwathney testified that his patrol car was equipped with a digital video

system. He noted that although on the video it appeared that Defendant’s car was out of

sight, it was not. He said, “We have a wide-angle lens that makes things smaller.”

Lieutenant Gwathney admitted that he lost sight of Defendant’s vehicle for “a little bit” at

the intersection of Schofield Street and Vermont Avenue. However, he explained that out

of the corner of his eye, he saw Defendant turn from Vermont Avenue onto Schofield Street.

At the intersection of Vermont and Schofield, Lieutenant Gwathney activated his blue lights.

Lieutenant Gwathney testified that Defendant almost hit two vehicles and illegally passed

a white truck in a no passing zone while traveling on Schofield Street. He noted that during

the pursuit, Defendant also ran two stop signs. The video recording clearly showed

Defendant driving past one stop sign without stopping. Defendant did not apply his brakes

until Lieutenant Gwathney had activated his siren when he turned from Schofield Street onto

Tennessee Avenue and had almost caught up with Defendant. Lieutenant Gwathney noted

that when he approached Defendant’s car, he smelled “hot” or “burnt” breaks indicating

“hard breaking.”

Defendant, citing the “physical facts rule” argues that Lieutenant’s Gwathney’s

testimony was contradicted by the video taken by Mr. Irwin of the area on Schofield where

the officer testified that Defendant almost hit two cars and illegally passed a truck and by the

video from Lieutenant Gwathney’s patrol car. He essentially contends that it was impossible

for Lieutenant Gwathney to have seen Defendant almost hit the two cars on Schofield and

illegally pass a truck because his visibility would have been limited by “the crest of the hill”

he was traveling toward. A panel of this court has said,

The so-called “physical facts rule” is the accepted proposition that in cases

where the testimony of a witness is entirely irreconcilable with the physical

evidence, the testimony can be disregarded. That is, where the testimony of

a witness “cannot possibly be true, is inherently unbelievable, or is opposed to

natural laws,” courts can declare the testimony incredible as a matter of law

and decline to consider it. As stated by the Court in Wood v. United States,

342 F.2d 708, 713 (8th Cir.1965), “where undisputed physical facts are

entirely inconsistent with and opposed to testimony . . . the physical facts must

control. No jury can be allowed to return a verdict based upon oral testimony

which is flatly opposed to physical facts, the existence of which is

incontrovertibly established.” State v. Hornsby, 858 S.W.2d 892, 894 (Tenn.

1993) (internal citations omitted). “Courts have made it clear that in order for

testimony to be considered incredible as a matter of law, it must be

unbelievable on its face, i.e., testimony as to facts or events that ... could not

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have occurred under the laws of nature.” State v. Allen, 259 S.W.3d 671, 680

(Tenn. 2008). If a witness’s testimony is impossible to reconcile with physical

evidence, an appellate court is not bound to consider it when determining

whether the evidence was sufficient to support the conviction. Id. (citing

Hornsby, 858 S.W.2d at 894). However, an appellant may not invoke the

“physical facts rule” when the application of it is dependent on “assumptions

or calculations based upon estimates as to speed, distance, time, and other such

uncertain matters in the movement of vehicles.” Hornsby, 858 S.W.2d at 895

(citing Waller v. Morgan, 23 Tenn.App. 355, 133 S.W.2d 614, 616 (Tenn. Ct.

App. 1939)).

State v. Trutonio Yancey and Bernard McThune, No. W2011-01543-CCA-R3-CD, 2012 WL

4057369 (Tenn. Crim. App. Sept. 17, 2012).

We conclude that the physical facts rule is inapplicable in this case. Lieutenant

Gwathney’s testimony on its face was not unbelievable, and his testimony also involved

“uncertain matters in the movement of vehicles.” Id. The jury obviously accredited

Lieutenant Gwathney’s testimony that he could see Defendant’s vehicle almost hit two cars

and illegally pass a truck while on Schofield Street. In fact, after Defendant’s arrest, the

video from Lieutenant Gwathney’s patrol car reflects that he informed Defendant that

Defendant almost hit several vehicles as he was attempting to elude the officer.

Based on Lieutenant Gwathney’s testimony, a reasonable trier of fact could find that

Defendant’s driving caused a risk of death or injury to others beyond a reasonable doubt. As

pointed out by the State, the Tennessee Supreme Court has held that the driver of a vehicle

creates a risk of death or injury to innocent bystanders and other third parties when that

driver operates a car “heedless of the traffic signals” such as Defendant did in this case. State

v. Turner, 193 S.W.3d 522, 525 (Tenn. 2006). Defendant is not entitled to relief on this

issue.

In conclusion, we reverse the conviction for misdemeanor possession of marijuana

because the trial court erred by denying the motion to suppress all evidence obtained in the

warrantless search of Defendant’s vehicle. The remaining judgments are affirmed.

___________________________________

THOMAS T. WOODALL, JUDGE

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