### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs February

4, 2003

STATE OF TENN ESSEE v. MARIO A NTOINE LEGGS
Direct Appeal from the Criminal Court for Davidson County

No. 2001-A-273 Steve Dozier, Judge

No. M2002-01022-CCA-R3-CD - F iled May 21, 2003

The Defendant, Mario A ntoin e Legg s, was convicted by a jury of thef

t, robbery, two c ounts of reckle ss endang erment, aggr avated r obbery , two coun

ts of eva ding ar rest, three c ounts of r

eckless aggravated

assault, leaving the scene of an ac cident, and dr iv ing on a suspended license. After a sentencing he ar in g, th e t ri al co ur t o rd er ed th e D ef en da nt to se rv e a n e ff

ec ti ve se nt en ce of

tw en tythree years, e

leven months, and twenty-e ight days in the De

partment of Correction. In this direct appeal, the Defendant raises the following issues: (1) whe ther the trial court erred

by denying

the Defend ant’s moti on to sever the offenses; (2) whether the tria l court erred by

admitting prior identification testimony; (3) whether the Defendant is entitled to a new trial based upon improper remarks made by the prosecutor during closing arg ument; (4) whethe r the tria l court erred by

not reducing the Defendant’s three convictions for reckl ess aggravated a ssault to simple assault; (5) whether the trial court erred by not merging one

of the De

fendant ’s convictions for e vading arrest withhis conviction for leaving the scene of an accide nt; and (6 ) whethe r the tria l court pr operly sentenced the Defe ndant. We hold that the trial cou rt e rred by

not severing the offenses that

oc curred on N ovember 16, 2000. However, we deem the e rror harmless. Because we find insufficient

evidence to support the Defendant’s second conviction for evading arrest, we reve

rse it and dismiss that charge. I n all other respects, we affirm the judgme nt of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Modified

D AV ID H. W ELLES , J ., delivered the opinion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined.

Michael Colavec chio, Na shville, T ennesse e, for th e appell ant, Mar

io Antoine

Leg gs.

Paul G. Summers, Attorney Gene ral and Reporter; Elizabet

h B. Marney , Assistan

t Attorne y General ; Victor S. Johnson, District Attorney General; and De rrick Scretchen, Assistant District Attorney General, for the appellee, State of Te nnessee.-2- OPINION

The facts surrounding the

Defendant’s conviction for theft begin on October 25, 2000, in the Proffitt’s departm

ent store parking lot at Rive

rgate Mall. Mich

elle Willia

ms got off work

at about 5:45 that evening. As she was walking to her ve hicle in the parking lot, a man pulled up beside her in a car, grabbed

her purse, “ripped it off” her shoulder, a nd “took off.” Ms. Williams testified that she got a “quick glance” at the left side of her assailant’s face. She descr ibed him as a black man, and he was driving a small brown car. At tria l, Ms. Williams identified the Defendant as the man who stole her purse.

The Defend ant’s c onviction for robbe ry and one of his convictions for reckless endangerme nt stem from a similar occurrence on November 3, 2000, at about

6:00 p.m. Alexandra Sparrow had parked in the Proffitt’s parking lot at Riverg ate Mall a

nd was g oing into

the mall to pay a cr

edit card bill. As she walked across the parking lot, she “f elt somebody jerking

[her] purse from behind.” She turned around and saw that the man who had gra bbed her purse was driving a car, and “he wa sn’t gonna stop.” Ms. Sparrow triedto let go of her purse, but somehow the purse “g ot wrapped in [her] hand.” The driver of the car drag ged Ms. Sparr

ow along side his c ar. Ms. Sparrow testified that she

was able to se e the dri ver’s f ace in the car’ s mirror. Ms. Sparrow’s right le g came into conta

ct with

one of the vehicle’s tires, and she “thought [she] was gonna die.” Ho wever, th e purse straps eventua lly came out of Ms. Sparrow’s hand, and she fell to the ground. Ms. Sparrow stated that the man who took her purse was driving a “choc olate brown Camry.”

Also in the Proffitt’s parking lot at the time of the attack o n Ms. Sp arrow was Michael Powell, a driver for UPS who was making a delivery to Rivergate Mall. Mr. Powell witnesse d Ms. Sparrow being dragge d beside a car and saw h

er fall o nto the pa

vement. M

r. Powell t

old his supervis or to rema

in with Ms. Sparrow; he then got into his UPS truck and followed the escaping automobile. Mr. Powell was able to observe that the person who had taken Ms. Sparrow’s purse was driving a brown T oyo ta Camry with lice nse plate number EM R 757 . Detective Harold Willis of the Goodletts villePolice Department interviewed Mr. Powell an d resea rched th e vehicl e’s lice

nse plate number. T

wo people

were ide ntified a s owners of the ca r, one of whom was t

he Defe ndant.
That same evening, Detective Willis arrang ed for both Ms. Sparr ow and Ms. Williams to view a photo lineup containing pictures of six men. Ms. Sparrow viewed the lineup at a polic e substation in Rivergate Mall. She eliminated five of the men in the lineupwith one-hundred-percent

ce rt ai nt y. She stated tha t she was fifty per cent sure that the remaining man in the lineup, the Defend ant, was the man who had taken her purse. Both Detective Willis and Ms. Sparrow testified that, as she vie wed the lineup, the Defendant’s ey es were the feature that stood out most to her. Detective Willis sho wed the lineup to Ms. Williams at the store in Rivergate Mall in which she worked. He testified that she also ruled out five of the men in the lineup, and she was f ifty perce nt
sure that it was the Defendant who grabbed he r purse and drove away . Ms. Willi ams also commented on the Defendant’s ey es. She testified that his eyes “ were cold, mean-looking.”-3-

The Defendant’s remaining convictions arise f rom a series of events that occurred on Nove mber 1 6, 2000. Between 1:00 and 2:00 in the afternoon, Julia Peach was walking from Riverg ate Mall to her car, which was parked in the Prof fitt’s pa rking lo t. As she w as putting items into her car, a man approache d her. The man was holding a knife by his side, and he said, “I' m not gonna hurt you.” The ma

n then reached into Ms. Peach’s car and took her purs e. At this p oint, Ms. Peach ran back to the mall screaming. Ms. Peach testified tha t, aside from her

wallet, credit c ards, checkbook, and cash, she also had an antique Coca -Cola pocketknife in her purse.

Detective Ronald Br

ight of t he Goodle

ttsville Police Department testified that, based upon the license plate information that had been obtained as a result of the second robbe ry, the Defendant

was a suspect in both robberies. On November 16, 2000, a call was issued that another robbery had occurred in the parking lot at Rivergate Mall. Detec tive Bright began driving to the Defendant’s known residence and lo oking fo r the bro wn Toyota Camry . Detec tive Bri ght was sitt ing at a red light when he n oticed the Defe ndant’s vehicle, a brown Toyota Camry with license plate number EMR 757, dir

ectly in front of him. Detective Bright activated his emer gency lights and siren, and the Defend ant f

led. During the ensuing chase, whic h covered approximately five miles, the Defendant

and Detective Bright drove their vehicles in excess of ninety miles-per-hour. As he was following the Defendant, Detective Brig htobserve d the Def

endant th row a pur se out of h

is car. The purse was later determined to belong to Ms. Peach.

As the Defendant sped down a two-lane roa d, Detective Bright

saw a school bus turning off

a side street in front of the Defendant, and the Def endant’s vehicle struck the bus. Detective Bright testified that the Defendant’s vehicle “ricoche ted off the bus...went

down into a

small ditch, ca

me up, went airborne, hit a tree, did about four or five turns, a nd landed on the ground.” Three children who were on the bus at thetime of the crash testified that they suffered minor injuries as a result of the impact. Detective Bright approac hed the Defendant’s car, but the Defenda nt was not inside. Detective Bright discovered that the D efe ndant had run into some nearby woods. Eventually the Defendant

was f ound in the woo ds and was arrested. After he wa s released from the hospital the next day , the Def

endant w as taken

to the police station. Detective Bright testified that, after being advised of his Miranda

r ig hts, the Defendant described the manner in which e ach of the three incident s occurred. He denied ever hur ting any of his vic tims, and he specifically denied wielding

a knife during his robbery of Ms. Peac h. Howeve r, two knives were found in the Defendant’s vehicle. One was the Coca-Cola knife that had been in Ms. Peach’s purse. Ms. Peach identified the secondknife as the one the Defe ndant had in his hand

when he a

pproach ed her in the mall parking lot.

The jury convicted the D efendant of the agg ravated robbery

of Ms. Peach, evading arrest by fleeing from Det

ective B right, t

hree co unts of reckless a

ggra vated as sault

based upon the injuries1 Ke nneth Birdwell , a cus todian of drivi ng records for the D epartment of Safe ty, test

ifi ed that , on November 16, 2000, the Def

endant was drivi ng on a sus pended licen se.
-4- to the children on the bus, reckl ess en dange rment, leaving the scene of an ac cident, driving on a suspended license, 1 and evading arrest by fleeing from another office r.

The Defend ant arg

ues that th

e trial c ourt err

ed by deny ing his mo tion to sever

the offe nses. Prior to trial, the Defendant moved to sever these offense s into three separate trials based on the three different dates on which the various offenses were c ommitted. He contends that because there was

no p roof of the similarity of the c rimes, a larger plan or conspiracy, or a common cr iminal transaction, the offenses shou ld h ave been tried separately . The proper standard of review for decisions concerning permissive joinder and sever ance of offenses is abuse of discre tion. See State

v. S hirle y , 6 S.W.3d 243, 247 (Tenn. 1999). Therefore, a trial court’s dec ision to consolidate or

sever offenses will not

be disturbed on appeal unless the “‘court applied an incor rect legal standard,

or reached a decision which is a gainst l ogic or

reasoning that c aused an injustice to the par

ty complaining.’” Id. (quot ing State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997)).
According to Rule 8(b ) of the T ennesse e Rules of

Criminal Pr

ocedure , in order

to consoli date separa te indictmen

ts, the State

must show that the offenses are part of a c ommon scheme or plan or that the offen ses are “of

the same or similar

character.” “ In c ontrast, however , a defe ndant hasa right under Rule 14(b)(1) to a severance of offenses permissively

joined, unless the offenses are part of a common scheme or plan and the evidence of one of fense ‘would be admissible upon the trial of the others.’” Spicer v. State , 12 S.W.3d 438, 443 (Tenn. 2000). “Consequently, whe n a defendant objects to a pre-trial consolidation motion by the sta te, the trial court must consider the motion by the severance provisions of Rule 14(b)(1), not the ‘same or similar character’ standar d of Rule 8(b).” Id. Our supreme court has stated that “[t]he primary inquiry

into whether a severance should have been granted under Rule 14 is whether the evidenc e of one crime would be admi ssible in the trial of the other if the two counts of the indictment had been severed.” State v. B urchfie ld , 664 S.W.2d 284, 286 (Tenn. 1984 ). “In its most basic sense, therefor e, any que stion as to whether offenses should be tried separa tely pursuant to Rule 14(

b)(1) is ‘really

a question of evidentiary

relevance.’” Spicer , 12 S.W.3d at 445 (citations omitted).
Our supreme court further stated: Before consolidation is proper, the trial court must conclude from the evidence and arg

uments pr

esented at th e hearing that: (1) the multiple offenses constitute parts of a common scheme or plan, Tenn. R. C rim. P. 14(b)(1); (2) evidence of each

offense is releva nt to some

material issue in the trial of all the other offense s, Tenn. R. Evid. 404(b)( 2); State v. Moore , 6 S.W.3d 235, 239 (Tenn. 1999); and (3) the probative value of the evidence of other offenses is not

outweighed by

the prejudicial effect that

admission of the evidence would have on the defendant, Tenn. R. Evid. 404(b)(3).-5-

Spicer
, 12 S.W.3d at 445. The first prong of Rule 14(b)(1) of the Tenne ssee R ules of Criminal Procedure requires that the trial court find a common scheme or plan. “I n Tennessee, there are three types of common scheme or plan evidence: (1) offe nses that reveal a distinctive design or are so similaras to constitute ‘signature’ crimes; (2) offe nses that are part of a large

r, continuing plan or

co ns pi ra cy; and (3) offenses that are all part of the same criminal transaction.” Shirley , 6 S.W.3d at 248.

Our

supreme court has noted that “a common scheme or plan for severa nce purposes is the

sameas a common scheme or plan for evidentiary

purposes.” Statev, Moore , 6 S.W.3d 235, 240 n.7 (Tenn. 1 999). Thu s, Tenne ssee Rule of Eviden

ce 404(b ) is releva

nt to our a naly sis of this issue. Tennessee Rule of Evidence 4 04(b) pr ohibits the admission of “other crimes, wrongs, or acts”of the defendant when a dmitted o nly to show the defenda nt’s propensity to commit the crime cha rged. However, Rule 404(b) does not bar admission of acts a lleged to be part of a common scheme or plan when relevant to a materialissue at trial and the probative value of such evidence is not outweig hed by its prejudicial eff

ect on the defendant. See Bunch v. State , 605 S.W.2d 227, 229 (Tenn. 1980).

The second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure requires that the evidence of each of the offense s b e admissible at the trial of the other. Under Tennessee Rule of Evidence 404(b) and Spicer , 12 S.W.3d at 445, for evidence of other cr imes to be a

dmissible in a criminal trial, the evidence must be relevant to a material issue and the probative value of the evidence must not be outweighed by the risk of unfair prejudice to the defendant. Therefore, once the trial court determines that a common scheme or plan exists, it then must decide whether evidence of the plan is relevant to a material issue and balance the pr obative value of the evidence ag ainst the risk of unfair prejudice to the defendant. See Spicer , 12 S.W.3d at 445.
In its order deny

ing the Defendant’s motion to sever, the trial court stated:

In this case , Det. Br

ight t e stified that all three victims identified the perpetr ator a s a black male who was driving an older model brown vehicle. According to Det. Bright, the first two robberies involved a pe rpetrator pulling along side of the vic tim and tak

ing thei r purse b efore f

leeing the scene in his ve

hicle. De t. Bright also testified that all of the robberies occurred at the exact same loc ation. De

t. Bright further testified that the first robbery occurred at approximately 5:55 P.M., the secondrobbery oc curred at approximately 6:04 P.M., and the last robbery occurred at approxima

tely 2:04 P.M. Th

e Court would ackno wledge that t he l ast alleged robbery w as accomplished with the perpetrator attacking the victim with a weapon while standing as oppose d to sit

ting in h is vehicle . Additiona lly, the Court w ould acknowl edge th at the time frame isminimally

differe nt.
However, Det. Bright testified that the third v

ictim, Ms. Pe ach advised him that the perpetrator then fled the scene in an olde r model brown vehicle, which was consistent with the first two robberies. Therefore, the Court opines that the id entity-6-

of the perp etrator

is a mater

ial issue in this case, e

vidence of each of the cr imes in th is ca se “w ou ld be ad mi ss ib le up on th e t ri al of th e o th er s, ”... to es ta bl is h i de nt it y.

While the trial court found that the Defendant’s criminal behavi or on the thr ee date s in question did constitute a co mmon sche me or plan, it failed to specifically indicate which of the three typ es of com

mon schem

e or plan evidenc e was impl

icated in th is ca se . O bv io us ly, these offenses were not all part of

the same criminal transaction, and the three episodes we re not so similar

as to constitute “signature” crimes, especially where, during the third episode, the Defe ndant was on foot, notin a car, and display ed a knife. Therefore, it is reasona ble to assume that the trial court fo und that the three episodes constituted a “larger , continuing plan.” Shirley , 6 S.W.3d at 248. As the trial court noted, the

first two offenses were nearly

identical in th at th ey o cc ur re d a t t he sa me ti me of da y, in the same place, and in each case , a black man grabb ed a w oman’s pu rse as he drove by in his older, small, bro wn car. The third offense was diff erent in that it occurr ed at an e arlier t

ime of da y, the perp etrator was not driving a car when he took the woman’s purse , and he displayed a knife during the commission of the crime. However, it occurred in exact ly the same place as the prior crime s, it involved a woman having her purse taken, and the pe rpetrator fled in an older , small
, brown car. Furthermore, all of the crimes occurr ed between October 25 and November 16, 2000. We think that these factors sufficiently demonstrate that the offenses were par t of a larger, continuing plan to ste al women’ s purses i n the Prof fitt’s pa rking lo t at River

gate Ma ll.

The trial court also found that the evidence of each offense was relevant to a

material issue in the trial of the other offenses, specifically identity. “Ty

pically, offense s that are parts of a

common scheme or plan are offere d by the State to establish the identity of a perpetrator.” Moore
, 6 S.W.3d at 239. We agree that the identity of the pe rpetrator was a material issue in this case. When the victims of the first two e pisodes vi ewed a photogra phic line up, eac h was abl e to identify the De fe nd an t w it h o nl y fi ft y-p er ce nt ce rt ai nt y. Although each victim identified the Defendant at trial, counsel for the Defendant vigorously cross-examined the victims regarding their re spect iv e opportunities to view the Defendant and their inability to pick the Defendant out of the photo lineup with any more than f

ifty-perc ent certainty. Therefore, the evidence of the other criminal episodes

was releva

nt to the ma

te rial issue of identity in accor dance with Tennessee Rule of Evidence 404(b)(2).

However, for

evidence of one offense to be admissible in the trial of a nother, the evidence must not only be releva

ntto a materi al issue, its proba tive valu e also mus t outweig h the risk of unfai r prejudice to the defendant. See Tenn. R. Evid. 404(b)(3). In this case, the trial court fa iled to expressly state that it conducted a Rule 404(b)(3) balancing test. As we have already no ted, t he episodes that occurred on October 25 and November 3 are nearly

identical. Therefore, the probative value of the evidence of each of these instance s is high, and it outweighs the risk of prejudice cause d by the jury hearing evidenc e of two se

parate cr iminal incidents. However, with respect to the episode that occurred

on November

16, seve ral distin guishab le facto

rs were present which inc

rease the risk of unfair prejudice to the Defendant and decrease the probative value of the evidence of that crime spree. First, unlike the prior two instances, the Def endant did not

drive by the victim

in his

car and grab her

purse str ap. I nstead, h e approa ched the victim on f

oot. Seco nd, while

the first two-7-

crimes were c ommitted a t almost exa

ctly the same time of da

y, t he third to ok place

approxima

tely four to five hours earlier in the day

. Third, an d mo st importantly, on November 16, the assa ilant displayed a knife, wherea s no weap on was u sed dur ing the commission of the first two criminal episodes

. The presence of a deadly weapon is highly

prejudicial evidence in the trial of the first two

occurr ences, in which no weapon was display ed. Based on the dissimilarities of the third criminal episode, we conclude that the probative value of that evidenc e was outweighed by the risk o f unfair prejudice to the Defendant. Therefore, the tria l court erred by finding that the evidence of the November

16 episode would be admissible in the trial of the other two, and it abused its discretion by denying the Defendant’s motion to sever the offense s that occ urred on Novembe

r 16 from those that occ urred on

the two pr

ior date s. Having determined that the trial c ourt a bused its discretion in consolidating the crimes committed on November 16 with the other two episod

es, we mu st

now deci de wheth

er that a buse of discretion affirmatively

appears to have affected

the outcome of the trial. See Tenn. R. Cr im. P. 52(a); Tenn. R. App. P. 36( b). I n most seve

rance c ases, “the line between harmless and prejudicial

error is in direct proportion to the deg ree...by which pr oof excee ds the sta

ndard required to

convict, beyond a reasonable doubt.” Delk v. Sta te , 590 S.W.2d 4 35, 442 (T enn. 1979 ); see also Spicer , 12 S.W.3d at 447; Shirley , 6 S.W.3d at 250; Moore , 6 S.W.3d at 242. In this case, th e evidence regarding the Octob er 25 cr

ime consisted of the victim’s testimony. She describe d how her purs e
was stolen an d identifi ed the De fendant as t he man who took it. In addition, this proof was reinforced

by the evidenc e of the offense committed on November 3, w hich was strong evidence relative to the identity of the Defe ndant as the assailant. This evidence is more than sufficient for conviction bey ond a rea sonable d oubt, and we cann ot say

that t he impr oper consolidation affirma tively appears to have affected the trial with re spect to the October 25 episode. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).

With respect to the crimes that were committed on November 3, the proof consisted of the victim’s testimony, in which she describe d the manner in which her purse was grabbed and how she

was dragged by

the car. The victim identified the Defendant as her assailant at trial. The State also offered the test imony of th e UPS drive

r who foll owed the

Defend ant’s ve

hicle an d recove

red its license plate number

and the police officer

who discovered that the Defendant was one of the two listed owners of the vehicl e with that license tag. Again, this evide nce is bol stered b y the identity evidence presented in relation to the October 25 offense. This is more than sufficient evidence for conviction bey ond a rea sonable d oubt, and we cann ot say

that more probably than not the judgment was affected by

the trial court’s error. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).

Fi na ll y, the proof regarding the series of crimes committed on November 16 consisted of the victim’s testimony, the testimony of the police of

ficer w ho pursue d the Def

endant in his patrol car and was present for the Defendant’s c apture and arrest, and the testimony of people who we re on the school bus into which the Defendant’s vehicle crashed. T here was quite clearly

sufficient proof of2 We found no evi dence in the record to support the Defendant’s second conviction f or evading arrest. However, as that i ssue is unrel ated to the is sue of severance, we address it later i n the opinion.

-8- all but one of the crimes that were committed by the Defe

ndant on November 16, 2000, 2 and it does notaffirma

tively appear that evid ence of the first two episod

es affected the

outcome with respe ct to the November 16 offenses. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36 (b). We a re unabl e to say that the tr

ial cour t’s failu re to grant the Defendant’s motion to sever the Nove mber 16 offenses affirma tively appear s to have a

ffecte d the outc ome of the trial; the refore , the tria

l court’serror in

this regard is harmless, and this issue is without merit.

Next, the Defe

ndant con

tends tha t the tria l court e rred by admitting

prio r ident ification te st im on y. However, the Defendant failed to ra ise this issue in his motion for a new tri al, which results in a waiver of the issue. See Tenn. R. App. P. 3(e). Furthermore, the Defendan t failed t

o argue the issue in his brief; he mer

ely stated it a s an issue

present ed for a ppeal. Accordin g to Tennessee Court of Cr

iminal App eals Rule

10(b), “ Issue s which a

re not sup

ported by argume nt, citation to author

ities, or a ppropria te refe rencesto the record will be treated as waived in this court.” It appears that, by

failing to argue the issue of the prior ide ntification tes timony in his brief, the Defendant has abandoned the issue. I n any eve nt, the issue has been waived.

The Defend ant a lso argues that he is entitled to a new trial based upon improper r emarks made by the prosec

utor du ri ng cl os in g a rg um en t. Du ri ng th e S ta te ’s cl os in g a rg um en t t o t he ju ry, the prosecuting attorney

stated, “I don’t have to bring to your attention that, on

September eleventh,

an airplan e, which

is normall

y so mething

used just to

transpor t people, was turned into a de adly weapon; and it was turned into a deadly weapon by the manner in whic h it was used.” The Defendant

argues in his brief that the prosecutor’s comments, which were made only one month after the terrorist attacks in New York City on September 11, 2001, “were made with the intent to in

flame the jury and promo te the hatred felt by many America

ns for terrorists immediately the reafter.” The Defendant contends th at the remarks warrant rever sal because the trial court failed to address the issue and the prosecutor never retracted the comments. How ever, the De fendant failed to take availab le action to prevent or nullify the alleged harmful effec t of this argument as he did not make

a contemporaneous objection at trial. He is, therefore, not entitled to relief. See Tenn. R. App. P. 36(a); State v. Thomas , 818 S.W.2d 350, 365 (Tenn. Crim. App. 1991) (holding that “[t]he failure to make a contempo

raneousobjectio n servesas a waiver”). Even if the issue was not waived, the prosecutor’s comments were not improper. The prosecutor was using the attack on the World Trade Center as an example of an ordinary means of transportation being used as a dea dly weapon t

o illustrate how the Defendant’s car could similarly c onstitute a deadly wea pon based on how it was used. He did

not compare the Defendant to the terrorists of September eleventh or indicate that the Defendant

was as culpable as they

. Moreover, even if the argume nt of the p rosecut or did con stitute misc onduct, whether

it amounts t

o rever sible err

or depends on whet

her it ha d a preju dicia

l effec t upon the jury’s ver

dict. See State v. Thornton , 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999). The Defendant

has not demonstrated that the argument of the prosecutor, g iven the strength of the State’s case, a ffecte d the jury ’s verdi ct to his pr ejudice . This issue

is without me

rit.3 We note that the Defendant cites no aut hority f or his proposition that

the tri al court should have reduced the De fenda nt’s con victions for rec kless ag grava ted ass ault to sim ple ass ault.

-9- The Defendant also a ss erts that the trial court erred by not reducing the Defendant’s three convictions for rec

kless ag grava

ted assa ult to simple

assault. 3 Essentially, this presents the question of whether the ev idence i s suffici ent to susta in the Def

endant’ s three c onviction s for re ckless aggravated

assault. Tennessee Rule of Appellate Procedure 13( e) prescribes that “[f] indi ngs of guilt in criminal actions whether by the trial court or jury sha

ll be set aside if the evidence is insufficient to support the findings by the

trier of fact of guilt bey

ond a reasonable doubt.” Evidence is sufficient if, after reviewing the evidenc e in the light most favorable to th e prosecution, any rational trier of fact could have found the essential elements of the crime be yond a reas onable

doubt. See Jackson

v. Virgini a , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because convicti on by

a trier o f fact d

est roys the pr

esumption

of innoce

nce and imposes a presumption of guilt, a convicted criminal defendant bea rs the burden of

showing that the evidence

was insufficient. See McBee v. State , 372 S.W.2d 173, 176 ( Tenn. 196 3); see also Stat e v. Buggs , 995 S.W.2d 102, 1 05-06 (T enn. 1999 ); Statev. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as all reas o nable and legitimate inferences that may be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court maynot “reweigh or re-eva luate the evidenc e” in

the record below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. L ike wise, should the reviewing court find particular c onflicts in the trial te st im on y, the court must resolve them in favor of the jury verdi ct or trial court judgment. See Tuggl e , 639 S.W.2d at 914. All questi ons involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 78 8, 795 (Te nn. 2000) ; State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

A person commits reckless aggra vated assault who reckle ssly commits an assault and either

causes se ri ou s b od il y in

ju ry t o a no th er or us es or di sp la ys a deadly w eapon. See Tenn. Code Ann. § 39-13-10 2(a)(2 ). Assau lt is defined in per tinent pa rt as inte ntionally , knowing ly, or reck lessly causing bodily injury

to another. See id. § 39-13-101(a)(1). F irst, the Defendant argues that the injuries suffered by

the three c hildren on the bus do not constitute serious injury. However , the indictmentdoes not allege that the childre n were s eriously

injured a s a resul

t of the a ccident . With respect to the three c ounts in the

indictmen

t charging the D efenda

nt with reckle ss agg

ravate d assault
, the indictment states that the Defend ant “re cklessly did cause bodily injury to [the vict

ims] by the

use or displa

y of a deadly weapon, to wit: a speeding automobile . . . .” Accordingly , the Defendant further argues in his brief that

he did not u se or display a dea dly weapon, a s his vehicle was traveling slowly when it struck the school b

us. In su pport of t his theor y, h e contends in his br

ief that h e must have been traveling slowly , for only three children wer e injured, a nd they only reported “minor headaches.” We find this argument unpersua sive.-10-

First of all, thi s Court hasheld that a motor veh

icle ca n constitu te a dea dly weapon within the meaning of

Tennessee Code Annotated section 39-13-102. See State v. Ta te , 912 S.W.2d 785, 787 (Tenn. Crim. App . 1995). Detective Bright testified that he cha sed the Defendant for approxima

tely five mile s, and at t

imes the chase re ached sp eeds in excess of ninety miles-per- hour. Detective Bright fur

ther test if ied that, when the

Defend ant’s ca

r crash ed into the

school bus , it “ricocheted

off the bus...went down into a small ditch, came up, went air borne, h it a tree, did about four or five turns, and

landed on the ground.” This evidence is sufficient to support the finding that the Defendant did cause bodily injury to the three victims by the use of a deadly we apon, specific ally , his spee ding au tomobile. T

his issue iswithout me

rit.

Next, the Defendant argues that the tria l court erred by

notmerging one of the Defendant’s convictions for evading arrest with his conviction for leaving the scene of an ac cident. He contends that count ten of the indictment, whichcharges the Defenda nt with leaving the scene

of the accident withthe scho ol bus, should be merged with count twelve, which is the second char ge of evading arrest. Count twelve alleges that, on November 16, 2000, the Defendant “intentionally did flee from Officer William Dillo n,” whom t he Defe ndant knew was a la

w enfor cement o fficer that “was attempting to arrest him.” Officer Dillon did not testify , and no witness testified to the conduct alleged in count tw elve of t

he indict ment. In his brief, the Defe ndant states that the two offenses “are

one and the sa

me conduct in this case.” However, in our review of the record, we have

been una ble to find any evidenc e which would sustain the Defendant’s conviction for evading a rrest in count twelve. Although the Defendant does not challeng e the sufficiency of the evide nce with r espect t o this conviction for evading arrest, this Court has discretion pursuant to Rule 52(b) of the Tennessee Rules of Crimina

l Procedu re to tak e notice at any time of pla

in error which af fects a substantial right of the accused where it may be necessary

to do substantial justice. See State v. Taylor , 992 S.W.2d 941, 944 (Ten

n. 1999); State v. Ogle , 666 S.W.2d 58, 60 (Tenn. 1984). When deciding whether an

error c onstitutes“plain e

rror,” we consi der five

factor s: (a) the record must clearly establish what occurred in the trial court; (b) a cle ar and unequivocal rule of law must have been bre ached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not wa ive the issue for tactical reasons; and (e) consider ation of the error is “necessary to do substantial justice.”

Statev. Smith , 24 S.W.3d 274, 2 82-83 (Tenn . 2000 ) (quo ting State v. Adkisson , 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994)). With respect to the first factor, the recor d is void of any evidenc e th at the Defe

ndant fle d from an

Office r Dillon a s alleg ed in coun t twelve o f the indictment. Tennessee Rule of Ap

pellate P rocedur e 13(e) prescr

ibes that “ [f]indingsof guilt in criminal actions whether by the trial court or jur

y shall be set aside if the evide n ce is insufficient to support the findings by the trie

r of fact of guilt bey ond a reasonable doubt;” thus, thesecond and third factors

are satisfied. There appears to be no tactical re ason for the Defendant to have waived the issue of insufficient

evidence to support his second conviction for evading a rrest; therefore the fourth factor is satisfied . And finally, if there is no proof in the record that the Defendant committed the ac t alleged in count twelve of the indictment, for which h e was convicted, it is necessary that we-11-

consider the issue to ensure justice. Therefore, we f ind that allowing the convicti on to be entered in the abse

nce of e vidence in the re cord re gardin g the De fendant ’s s econd convi ction for evading arrest was plain

error. As su ch, the f

ailu re of the Defendant to raise the issue on appe al does not preclude this Court from considering the issue. See Tenn. R. Crim. P. 52(b).

In our revi ew of the

record , we have

found no e

vidence that the D efenda

nt evade d arres tas allegedi n count twelve of the indictment. Therefore, that conviction must be reve rsed an d th e charge dismissed in accordance with Rule 13(e) of the Tennessee Rules of Appellate Proce dure.

The Defend ant’s fin al issue iswhether h e was properly sentenced by

the trial court. The Defendant

does not challenge the length of the individual senten ces. He ch allenges only the imposition of partia

lly c onsecuti ve sente

nces. Whe

n an accused cha

lle nges the

le ngth, range, or manner of service of a sentence , this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record tha t the trial cou

rt consid ered the sentenc ing principles a

nd all relevant f

acts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, re ceived at the trial and sentencing hea ring; (b) the presentence

report; (c) the principles of sentencing and argument s as to sentencing alternatives; (d) the nature a nd characteristics of the criminal conduct involved; (e) any statutory mitigati n g or enhancement factors; (f ) any stateme

nt made by the defendant regarding sentencing; and (g) the potential or la ck of potential fo r rehabilitation or treatment. See Tenn. C ode Ann. § § 40-35-1 02, -103, -210; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thoma s , 755 S.W .2d 838, 844 (Tenn. Crim. App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

c ourt im posed a lawful sentence after having given due consideration and proper we ight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may notmo di fy the sentence even if we would have preferred a different result. See State v. Pike , 978 S.W.2 d 904, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The trial court imposed partial consecutive sentences on the dual bases that the Def endant is “an off ender w hose rec ord of cr

iminal ac tivity

is e xte nsive” a

nd was “s entence d for an o ffense committed while on probation.” Tenn . C ode Ann. § 40-35-115(b)(2), (6). The Def endant argues that the trial court erred by

sentencing him as a dangerous of fender. Ho wever, the rec ord ref lects that the trial court did not sentence the Defendant as a dange rous offend er. Inst ead, t he tri al jud ge ordered the Defe ndant to se

rve cons ecutive

sentenc es based

upon his extensive criminal history and-12-

the fact that he was on probation when he committed the ins tant off enses. Indeed, in its order denying the Defendant’s motion for a new trial, the trial court stated, “Furthe r, the Cou rt would note that the defendant was not classified or found to be a ‘da ngerous offender’ for sentencing purposes
as counsel a

rgues in his motion. Rather, the Court used the [factors set forth in Tennessee Cod e Annotated sect

ion 40 -35- 115( 2), ( 6)] i n deter mining the appropriate sentence for the de fendant.” Therefore, the Defendant’s challenge to the trial court’s classification of him as a dangerous offender is misplac ed and without meri t.

The Defend ant also

argues that the trial court

erred by imposing consecutive sentences where it had den ied a sev erance

of offe nses. I n his brie f, the De

fendant states,
[T]he trial cou

rt adopte d the State ’s theor y th at these

crimes w ere all p art of the same transaction, just separated by se veral day s time. However, when the time came to be consiste nt, as in sentencing, the trial court declare d that the sepa rate incidents were to be punished s eparat

ely , and sen

tenced t he Appellant to consecutive sentences on the separa te theft/ robberi es, and separate from the incident in which the Appellant’s vehicle hit the school bus, and yet ag ain s eparate from the Appellant’s subsequent flight from the school bus accident. We submit that if these events were indeed par t of a common plan or scheme, then they shoul d be puni shed likewise, and that theref ore the A ppellant should re ceive c oncurre

nt sentences.

The Defend ant has c ited no au th ority, an d we are aware of none, w hich would support the propositio n that a tr

ial cour t’s decis ion to seve

r offen ses is in an

y w ay related to the imposition of consecutive sentences. As we have stated, a tri al c ourt’s decision to grant or deny a motion for a

se veranceis governed by the Tennessee Rule of Criminal Procedure 14(b)(1), w hich co ntains th e “common scheme or plan” langua ge. However, the factors to be considere d when imposing consecutive sentenc es are s et forth in Te nnessee Code Anno tated se ction 40- 35-115(b ). These factors are independent from the mandates of Rule 14(b)(1). Therefore, the Defendant’ s contention that he should r

eceive concurr ent sente nces bec ause

the trial court denied his motion for a severance of offe nses is wit

hout merit

. However, we have determined that the Defenda nt’s conviction for

evading arrest as alleg ed in count twelve of the indictment must be reversed and dismissed because the re was no evidence in the record to support

it. The trial court imposed a sentence of el ev en mo nt hs an d t we nt y-n in e d ays for this conviction, and it ordered this sentence to be served consecu tively to the sen tences f or counts one, two, four, and six, resulting in an effective sentence of twenty-three yea

rs, elevenmonths, and twenty-eig

htdays. Becau se the convi ction for eva ding arrest in count twelve is reversed and dismissed, we modify the De fendant’s effective sentence to twenty-two years, e leven months, and twenty -nine da

ys. In all other respec ts, the judgment of the trial court is affirmed.-13- ___________________________________ DAVID H. WEL

LES, JUDGE