State of Tennessee v. Lonnie L. Cross ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 29, 2009
STATE OF TENNESSEE v. LONNIE L. CROSS
Direct Appeal from the Criminal Court for Bradley County
No. M-07-478 Amy Reedy, Judge
No. E2008-02792-CCA-R3-CD - FILED JUNE 17, 2010
After the appellant, Lonnie L. Cross, led police on a high-speed chase, a Bradley County
Criminal Court jury convicted him on two counts of reckless endangerment with a deadly
weapon, felony evading arrest with risk to others, driving on a revoked license, and speeding.
The trial court sentenced the appellant to an effective sentence of eight years in custody. On
appeal, the appellant contends that the evidence was insufficient to support two of his
convictions: the evading arrest conviction and one of the reckless endangerment convictions.
The appellant also challenges the trial court’s reliance on two sentencing enhancement
factors. Upon review, we conclude that there was sufficient evidence for the appellant’s
convictions. We also conclude that, although the trial court erred in its application of one of
the enhancement factors, the error was harmless. However, our review of the record reveals
that the trial court committed plain error. The appellant’s conviction on the reckless
endangerment in count three violates constitutional double jeopardy protections. We
therefore affirm the judgements of the trial court as to count one, reckless endangerment, and
count two, evading arrest. The judgment of conviction in count three is vacated, and the case
is remanded to the trial court for merger of the conviction in count three with the evading
arrest conviction in count two.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Reversed in Part and Affirmed in Part; Case is Remanded.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.
Larry D. Wright, Cleveland, Tennessee, for the appellant, Lonnie L. Cross.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Steven Bebb, District Attorney General; and Brooklyn Martin, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reveals that the appellant and his girlfriend, Wanda Lynn Moore, decided
to spend October 6, 2007, drinking beer at the pool near Moore’s house at 1550 Kincaid
Road in Bradley County. Not long after they got to the pool, the appellant’s son-in-law
called and asked him to pick up the appellant’s daughter and grandchildren so they could join
him at the pool. Although the appellant’s driver’s license had been revoked, he nevertheless
decided to borrow his friend’s car to go get them. He took two beers with him for the trip.
Along the way, he passed a Bradley County Sheriff’s Deputy, who clocked him going
thirteen miles per hour over the speed limit. The deputy followed him, and, when the
appellant realized he was the deputy’s target, he “panicked” and tried to get away.
A high-speed chase ensued. At various times, the appellant reached speeds between
eighty and ninety miles per hour; passed two cars in no-passing zones along blind curves; ran
his own car into a ditch but continued to flee; twice nearly hit the deputy’s car; swerved into
the lane of oncoming traffic in an unsuccessful attempt to avoid another deputy’s “stop
sticks,” which punctured the appellant’s tires and ultimately caused one tire to come off
completely; and returned to his girlfriend’s house only to continue fleeing on foot. When he
was finally detained, he had a strong odor of alcohol on his breath; slurred speech; and
blurry, bloodshot eyes.
At trial, the State called two witnesses. The first, Bradley County Sheriff’s Deputy
Travis Smith, testified that he was on patrol when he saw the appellant driving down the
street. He clocked the appellant driving sixty-eight miles per hour in a zone where the speed
limit was fifty-five miles per hour. Deputy Smith turned on his lights and turned around to
pursue the appellant.
Deputy Smith testified that he caught up with the appellant on Keith Valley Road and
turned on his siren. The appellant accelerated, and a high speed chased ensued.
While on Keith Valley Road, the appellant drove at speeds between eighty and ninety
miles per hour, even though the speed limit on that section of the road was forty-five. The
appellant also passed two cars, both in no-passing zones along blind curves. The appellant
-2-
then turned onto Union Road, where he accelerated to speeds around sixty miles per hour,
twenty-five miles per hour above the posted limit.
Deputy Smith explained that when the appellant came to a sharp turn on Union Road,
he lost control of his car and ran into a ditch. Deputy Smith pulled up to the ditched car and
told the appellant to stop. The appellant refused. He put his car in reverse and pulled out of
the ditch. He then went forward toward Deputy Smith, who backed his own car up to avoid
being hit by the appellant. The appellant then stopped, turned around, and headed down
Union Road toward Sugar Creek Road. The chase resumed.
The appellant turned onto Sugar Creek Road and eventually onto Hawkins Road.
Deputy Smith was familiar with Hawkins Road and knew it was a dead-end, so he tried to
block the appellant’s exit. The appellant turned around in a large gravel lot at the end of
Hawkins Road and headed back toward Deputy Smith. As the appellant approached, Deputy
Smith again put his car in reverse out of fear that the appellant would ram him. The appellant
maneuvered around him, and the chase continued.
Deputy Smith testified that the appellant returned to Keith Valley Road and turned
back toward home. Before the appellant could reach Kincaid Road, Deputy Smith’s
colleague, Deputy Phillip Reagan, set up “stop sticks” to puncture the appellant’s tires. The
appellant swerved into the opposite lane to avoid the sticks and nearly crashed into the ditch
a second time. Nevertheless, the appellant’s right front tire was punctured and went flat.
The tire then came off the wheel. However, the appellant did not stop until he pulled into
the driveway at 1550 Kincaid Road.
Deputy Smith arrived at the house shortly after the appellant. Deputy Smith testified
that he approached the house cautiously because the dust had not yet settled and he was
afraid that the appellant might again try to ram him. By that time the appellant had gotten
out of his car and was approaching the house on foot. Shortly thereafter, Deputy Smith
caught up with him. At Deputy Smith’s command, the appellant stopped and eventually got
on the ground. Deputy Smith secured the appellant and noticed a strong odor of alcohol on
his breath. The appellant had slurred speech and blurry, bloodshot eyes. Given the
appellant’s behavior up to that point, Deputy Smith decided it would be unsafe to give the
appellant the necessary freedom of movement to conduct a field sobriety test. Instead,
Deputy Smith attempted to read an implied consent form to the appellant, but the appellant
refused to listen and refused to sign the form. Around this time, additional officers arrived
to assist Deputy Smith.
The State’s second witness was another officer with the Bradley County Sheriff’s
Department, Phillip Reagan. Deputy Reagan was on patrol in the area when dispatch
-3-
informed him of the chase. Deputy Reagan drove closer to the chase and proceeded to a
location he suspected the appellant would soon approach. Deputy Reagan testified that he
laid down spike strips. As the appellant approached the strips, he swerved into the opposite
lane, nearly ditched, and swerved back to avoid some mailboxes. Despite the appellant’s
evasive action, he still hit the spikes. The appellant did not stop. Deputy Reagan got back
to his car and tried to catch up with the appellant and Deputy Smith, which he did at the
Kincaid Road house.
The defense presented two witnesses as well. The first, Wanda Lynn Moore, was the
appellant’s girlfriend. She testified that she resided at the Kincaid Road house and that the
appellant had been staying with her. She further testified that the two woke late on the
morning of October 6. They made breakfast, and Ms. Moore went to the grocery store where
she bought beer. They then went to the nearby pool. Ms. Moore explained that not long after
they got to the pool, the appellant’s son-in-law called and asked him to pick up the
appellant’s daughter and grandchildren so they could go swimming. The appellant decided
to go, and he picked up two beers to take with him. Ms. Moore told the court that although
she had a couple of drinks, the appellant had not had any beer at that point.
The appellant was the defense’s second witness. He testified that he had been living
at Ms. Moore’s house at the time of the offense, and, like Ms. Moore, he recounted that the
two had gotten up late that morning. They made breakfast, and, after Ms. Moore returned
from the store, they went to the pool with a cooler of beer. The appellant testified that his
son-in-law called shortly after they got to the pool and asked the appellant to pick up his
daughter and grandchildren so they could join him.
The appellant testified that he was reluctant to go because he did not have a valid
driver’s license. However, he ultimately decided to go so he could spend some time with his
grandchildren. He took two beers, which he intended to drink before he got to his daughter’s
house because he did not want to drink with his grandchildren in the car.
The appellant testified that, along the way, he opened the first beer and had two sips
when he saw a deputy behind him. At first he did not realize that the officer was after him,
but he threw the beer to the floor of the car, and it spilled out. He also told the court that
once he realized he was the officer’s target, he “panicked” and tried to get away. He
admitted that he was trying to evade arrest and that he was driving without a license, but he
denied that he ever tried to ram Deputy Smith’s car.
When the appellant returned to the Kincaid Road home, he tried to walk toward the
house. He explained that he was fearful the officers would mistreat him. Because of a
variety of ailments, he could not walk very fast. The appellant testified that once he was
-4-
taken into custody, he repeatedly demanded a blood alcohol test, which the officers never
administered.
A Bradley County Grand Jury indicted the appellant for aggravated assault, felony
evading arrest, felony reckless endangerment, his fourth driving under the influence (DUI)
offense, driving on a revoked license, and speeding. Notably, count one, charging
aggravated assault, alleges the victim to be Deputy Smith. Count two’s evading arrest charge
refers generically to “innocent bystanders or third parties.” The reckless endangerment
charge in count three simply refers to the appellant placing “another person” at risk.
At a March 19, 2008 trial, a jury found the appellant not guilty of aggravated assault
but guilty of the lesser included offense of reckless endangerment. He was also acquitted of
the DUI charge. The jury found him guilty of felony reckless endangerment as charged in
count two, felony evading arrest, driving on a revoked license, and speeding. On August 22,
2008, the appellant was sentenced to four years for each reckless endangerment conviction,
eight years for evading arrest, and eleven months and twenty-nine days for driving on a
revoked license. The appellant’s request for alternative sentencing was denied. The trial
court enhanced the appellant’s sentence, finding that he had a criminal history in addition to
that necessary to establish the appropriate sentencing range, had failed to comply with the
conditions of a previous sentence involving release into the community, and had no hesitation
about committing a crime when the risk to human life was high. See Tenn. Code Ann. § 40-
35-114(1), (8) & (10). Although the court indicated that it would have preferred to have the
sentences run consecutively, it concluded it did not have the authority to do so in this case.
It therefore ordered the sentences to be served concurrently.
This appeal followed, raising essentially two arguments. First, the appellant claims
that there was insufficient evidence to convict him on either the evading arrest with risk of
death or one of the reckless endangerment with a deadly weapon charges. Second, he asserts
that his sentence is excessive.
II. Analysis
A. Sufficiency of the Evidence
The appellant first argues that there was insufficient evidence to convict on two of the
counts against him.
When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
-5-
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of
witnesses and the weight and value to be afforded the evidence, as well as all factual issues
raised by the evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court
substitute its inferences drawn from the circumstantial evidence for those inferences drawn
by the jury. Id. Because a jury conviction removes the presumption of innocence with which
a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted
defendant has the burden of demonstrating to this court that the evidence is insufficient.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
With respect to the appellant’s arguments regarding his conviction for evading arrest,
Tennessee Code Annotated section 39-16-603(b)(1) makes it “unlawful for any 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
the officer to bring the vehicle to a stop.” A violation of this section is a Class D felony
where “the flight or attempt to elude creates a risk of death or injury to innocent bystanders
or other third parties.” Id. § 603(b)(3). It is not necessary to show that anyone was actually
injured by the appellant’s actions. Rather, “[a]ll that need be shown is that the defendant
evaded arrest and that in so doing, he created the risk of death or injury.” State v. Turner,
193 S.W.3d 522, 525 (Tenn. 2006).
The appellant confines his argument to one element of the crime: whether there was
sufficient evidence that his conduct created a risk of injury or death to innocent bystanders
or third parties. He contends that because he never encountered oncoming traffic and
because the two cars he passed did not react to him, the evidence does not support a
conviction under Tennessee Code Annotated section 39-16-603(b)(3).
We are not persuaded. The testimony at trial revealed that the appellant led law
enforcement on a car chase with speeds reaching between eighty and ninety miles per hour.
The appellant twice passed other vehicles by entering the lane of oncoming traffic in no-
passing zones along blind curves. The appellant lost control of his vehicle at least once along
the way. In addition, once he hit Deputy Reagan’s “stop sticks” and lost one of his tires, the
appellant continued the chase without the tire. This evidence demonstrates a significant risk
of death or injury to anyone that may have been on the roadways, especially those in the cars
the appellant passed. The fact that the two cars did not react to being passed does not
mitigate the risk the appellant posed to them. Indeed, given the appellant’s reckless driving,
the mere presence of other cars satisfies this element of the statute. See State v. Travis T.
-6-
White, No. M2005-01991-CCA-R3-CD, 2006 WL 2956505, at *3 (Tenn. Crim. App. at
Nashville, Oct. 13, 2006) (“The presence of other vehicles on the street during the course of
a high speed chase supports a finding that Defendant’s conduct placed others in danger.”).
Thus, the record demonstrates that the appellant’s driving posed a significant risk of death
or injury to bystanders or third parties.
The appellant’s arguments regarding his reckless endangerment conviction fair no
better. The Tennessee Code prohibits one from “engag[ing] in conduct that places or may
place another person in imminent danger of death or serious bodily injury.” Tenn. Code Ann.
§ 39-13-103(a). When “committed with a deadly weapon,” reckless endangerment is a Class
E felony. Id. § 103(b). A “deadly weapon” is “[a]nything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Id. § 39-11-106(5)(B).
That includes motor vehicles, depending upon the manner in which the motor vehicle is used.
See State v. Tate, 912 S.W.2d 785, 787-88 (Tenn. Crim. App. 1995).
The appellant argues that, other than the risks to Deputy Smith, which were the basis
for the appellant’s other reckless endangerment conviction, the record does not demonstrate
that there was “another person in imminent danger” as required by Tennessee Code
Annotated section 39-13-103(a). He notes that other than the two cars he passed, there were
no other cars on the road. Further, he asserts the two cars he passed did not take evasive
action. Similarly, there is no evidence that Deputy Reagan perceived any danger to himself.
Thus, concludes the appellant, no other person was in imminent danger.
The statute, however, does not require that the appellant’s conduct actually placed
another person in fear of imminent danger. Rather, the statute prohibits conduct that “places
or may place another person in imminent danger.” Tenn. Code Ann. § 39-13-103(a)
(emphasis added). In order for the threat “to be ‘imminent,’ the person must be placed in a
reasonable probability of danger,” not just “a mere possibility of danger.” State v. Payne, 7
S.W.3d 25, 28 (Tenn. 1999). The violation therefore depends on the probability of danger
rather than another person’s perception of danger. The appellant’s actions here, passing
others at a high speed on a blind curve in a no-passing zone, qualify as actions that may place
other people in a reasonable probability of danger. Indeed, unlike the erroneous conviction
in Payne where the State “could have met its burden by showing that at the time of the chase
another motorist was driving on the street” but did not, id. at 29, here there is ample evidence
that other individuals were present during some of the chase. Consequently, the record
provided the jury with sufficient evidence to convict on this count as well.
B. Double jeopardy
-7-
Although we conclude that the evidence was sufficient to sustain each of the
appellant’s convictions, we note that the record presents a double jeopardy impediment to
affirming the judgments en masse. This is not an issue raised by the appellant. However,
we may consider it as a matter of plain error. See Tenn. R. App. P. 36(b); see also Tenn. R.
Evid. 103(d). We may only consider an issue as plain error when all five of the following
factors are met:
(a) the record must clearly establish what occurred in the trial court; (b) a clear
and unequivocal rule of law must have been breached; (c) a substantial right
of the accused must have been adversely affected; (d) the accused did not
waive the issue for tactical reasons; and (e) consideration of the error is
“necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “plain error must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (quotation
marks omitted).
Under the double jeopardy clause of the Fifth Amendment to the United States
Constitution, which is applicable to the states through the Fourteenth Amendment, no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb. . . .”
Similarly, article I, section 10 of the Tennessee Constitution states that “no person shall, for
the same offence, be twice put in jeopardy of life or limb.” These double jeopardy clauses
protect an accused from: (1) a second prosecution following an acquittal; (2) a second
prosecution following conviction; and (3) multiple punishments for the same offense. State
v. Denton, 938 S.W.2d 373, 378 (Tenn.1996). The present case involves the third category.
In Tennessee, whether two offenses are the “same” for double jeopardy purposes
depends upon a close and careful analysis of the offenses involved, the statutory definitions
of the crimes, the legislative intent and the particular facts and circumstances. State v. Black,
524 S.W.2d.913, 919 (Tenn. 1975). This analysis is guided in part by the application of the
test announced in Blockburger v. United States, 284 U.S. 299, 304 (1932). Where the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact that the other does not. Black, 524 S.W.2d at 919
(quoting Blockburger, 284 U.S. at 304). In order to determine if double jeopardy attaches,
our supreme court devised a four-part test: (1) a Blockburger analysis of the statutory
offenses; (2) an analysis, guided by the principles of Duchac v. State, 505 S.W.2d 237 (Tenn.
1973), of the evidence used to prove the offenses; (3) a consideration of whether there were
-8-
multiple victims or discrete acts; and (4) a comparison of the purposes of the respective
statutes. See Denton, 938 S.W.2d at 381. None of these steps is determinative; the results
of each must be weighed and considered in relation to each other. Id.1
This court has previously applied the Denton test in the context of simultaneous
convictions for Class D felony evading arrest with risk of injury and Class E felony reckless
endangerment with a deadly weapon, with differing results. See State v. Johnny C. Menifee,
No. M2005-00708-CCA-R3-CD, 2006 WL 2206067 (Tenn. Crim. App. at Nashville, July
31, 2006) (finding no double jeopardy violation); State v. Jimmy Lee Cullop, No. E2000-
00095-CCA-R3-CD, 2001 WL 378543 (Tenn. Crim. App. at Knoxville, Apr. 17, 2001)
(finding a potential double jeopardy violation and remanding for further proceedings).2 With
respect to the first step in the Denton analysis, both Menifee and Cullop conclude that there
is not an identity of elements under the Blockburger test. See Menifee, M2005-00708-CCA-
R3-CD, 2006 WL 2206067, at *7; Cullop, No. E2000-00095-CCA-R3-CD, 2001 WL
378543, at *6. Tennessee Code Annotated section 39-13-103(a) defines reckless
endangerment as “recklessly engag[ing] in conduct that places or may place another person
in imminent danger of death or serious bodily injury.” The offense is a Class E felony if it
is “committed with a deadly weapon.” Tenn. Code Ann. § 39-13-103(b). A person commits
the Class D felony version of evading arrest when, “while operating a motor vehicle on any
street, road, alley or highway in this state, [he] intentionally flee[s] or attempt[s] to elude any
law enforcement officer, after having received any signal from the officer to bring the vehicle
to a stop” and “the flight or attempt to elude creates a risk of death or injury to innocent
bystanders or other third parties.” Id. § 39-16-603(b). These statutes thus differ in at least
two respects. First, “reckless endangerment requires a deadly weapon, while evading arrest
requires the use or operation of a motor vehicle.” Menifee, M2005-00708-CCA-R3-CD,
2006 WL 2206067, at *7. Second, “evading arrest requires flight or an attempt to elude a
law enforcement officer upon a signal to stop,” whereas reckless endangerment does not.
Id. The two statutes therefore do not have an identity of elements, as described by
Blockburger.
1
However, “if the offenses are the ‘same’ under Blockburger, the federal constitutional double
jeopardy protections have been violated and the inquiry may end.” State v. Hayes, 7 S.W.3d 52, 55 (Tenn.
Crim. App. 1999).
2
Similarly, this court has addressed double jeopardy concerns in at least two cases involving Class
D felony evading arrest and reckless driving. See State v. Jason Eric Bradburn, No. 01C01-9712-CC-00568,
1999 WL 632301, at *6 (Tenn. Crim. App. at Nashville, Aug. 19, 1999) (concluding without its own Denton
analysis that dual convictions violated double jeopardy protections); State v. Kerry D. Garfinkle, No. 01C01-
9611-CC-00484, 1997 WL 709477, at *4-5 (Tenn. Crim. App. at Nashville, Nov. 7, 1997) (concluding with
a brief Denton analysis that the two convictions violated double jeopardy).
-9-
The second step in the Denton analysis, the comparison of the evidence relied upon
for conviction in the case, weighs heavily in favor of finding a double jeopardy violation.
This step appears to be one of the critical distinctions between Menifee and Cullop. In
Menifee, the defendant led police on a high-speed chase down a public street and then into
the parking lot of a shopping center. Id. While on the street, the defendant hit one third-
party motorist. Id. That individual testified at trial. Id. The defendant almost hit another
motorist on the street as well. Id. When the defendant reached the parking lot, he then nearly
hit one of the officers pursuing him. Id. The proof thus presented distinct acts within the
single criminal episode, and those acts had different victims: the third-party motorist was the
victim in the evading arrest charge; the officer was the victim in the reckless endangerment
charge. Id. In Cullop, by contrast, “[b]oth offenses were established by proof of the same
course of conduct—the defendant’s high-speed flight . . . during which he exhibited erratic
driving that endangered other drivers.” No. E2000-00095-CCA-R3-CD, 2001 WL 378543,
at *6. It does not appear that the State specifically delineated victims for each charge.
The record before us is much more like Cullop than Menifee in this respect. At the
outset we note that, because he is the specifically identified victim of the aggravated assault
charge and subsequent reckless endangerment conviction in count one, Deputy Smith cannot
be the victim in count three’s reckless endangerment charge nor can he be the victim in count
two’s evading arrest charge because he is not an “innocent bystander[] or other third part[y].”
Tenn. Code Ann. § 39-16-603(b)(3). The record does not show that Deputy Reagan was the
victim in either count. Like Deputy Smith, he does not qualify as an innocent bystander or
third party under Tennessee Code Annotated section 39-16-603(b)(3). Moreover, nothing
in the record indicates that Deputy Reagan was placed in any danger. Therefore, contrary
to the State’s position on appeal, he cannot be the victim in the reckless endangerment
charge. We are left with the occupants of the other vehicles on the road as the possible
victims. However, the drivers themselves did not testify nor is there any evidence of
anything unique about the individual encounters. Instead, all we have is Deputy Smith’s
general testimony that the appellant passed two cars in no-passing zones on blind curves.
Consequently, as was the case in Cullop, the same proof was used at trial to establish both
convictions.
The third step of the Denton analysis, determining whether the charges show multiple
episodes of criminal conduct or multiple victims in a single episode of criminal conduct, also
weighs heavily in favor of a double jeopardy violation. Again, the differences in Menifee
and Cullop are stark, and again, this case is much more like Cullop. As noted above, in
Menifee the State presented specific witnesses who were victims of the defendant’s conduct.
M2005-00708-CCA-R3-CD, 2006 WL 2206067, at *7. The two motorists on the street were
identified as the victims of the defendant’s evading arrest charge whereas the officer in the
parking lot was the victim in the reckless endangerment charge. Id. Thus in Menifee, “by
-10-
presenting distinct proof of acts against specific victims, the State established that this was
not one continuous episode; rather, the proof established discrete acts and separate victims
which were capable of being separated into multiple offenses.” Id. In Cullop, on the other
hand, neither the indictments nor the State’s evidence delineated specific victims for the two
charges. No. E2000-00095-CCA-R3-CD, 2001 WL 378543, at *7. Furthermore, the Cullop
panel noted that because both statutes prohibit courses of conduct rather than individual acts
(reckless endangerment prohibits reckless conduct that places “another person” in danger;
evading arrest prohibits flights that create risk to “innocent bystanders”), there can be
multiple victims of each. See id. (citing State v. Ramsey, 903 S.W.2d 709, 713 (Tenn. Crim.
App. 1995) (concerning reckless endangerment)). Based upon the lack of specific evidence
regarding each victim, the charges appeared to concern multiple victims of a single episode
of criminal conduct. Id.A review of our facts indicates, again, that this case is more like Cullop than Menifee.
As noted above, the only possible victims in this case are the occupants of two cars that the
appellant passed. The evidence concerning those cars was limited to Deputy Smith’s general
testimony that the appellant passed two cars. As in Cullop, the State did not further delineate
the victims of the separate charges. The State cannot, without more evidence than this record
provides, claim two separate offenses because the appellant passed two cars. Moreover, the
record does not suggest the State even tried. We thus conclude that, on the record before us,
this case involves multiple victims in a single episode of criminal conduct.
The final step in the Denton analysis is to determine whether the statutes serve
different purposes. The panels in Menifee and Cullop diverged on this point as well. Both
agreed that the purpose of the reckless endangerment statute was to combat conduct that
created a risk of death or injury to others. See Menifee, M2005-00708-CCA-R3-CD, 2006
WL 2206067, at *8; Cullop, No. E2000-00095-CCA-R3-CD, 2001 WL 378543, at *7. The
Cullop panel, however, concluded that the legislature sought to combat the same conduct in
Tennessee Code Annotated section 39-16-603(b)(3), where it raised the offense classification
for conduct that “creates a risk of death or injury to innocent bystanders or other third
parties.” See Cullop, No. E2000-00095-CCA-R3-CD, 2001 WL 378543, at *7 (citing State
v. Kerry D. Garfinkle, No. 01C01-9611-CC-00484, 1997 WL 709477 (Tenn. Crim. App. at
Nashville, Nov. 7, 1997)). The panel in Garfinkle reasoned that, although the two statutes
appear to have different purposes, the purpose in elevating a count of evading arrest to a
Class D felony is to—like the reckless endangerment statute—protect the public from those
that drive recklessly. See Garfinkle, No. 01C01-9611-CC-00484, 1997 WL 709477, at *5.
The Cullop panel agreed. See Cullop, No. E2000-00095-CCA-R3-CD, 2001 WL 378543,
at 7. It did so, however, over the dissent of a member of this panel, who concluded that “the
gravamen of the evading arrest offense is the attempt to elude police while in a vehicle which
places others at risk.” Id. at 14 (Tipton, J., concurring in part, dissenting in part). The panel
-11-
in Menifee agreed with Judge Tipton. See No. M2005-00708-CCA-R3-CD, 2006 WL
2206067, at *8. It noted that the two provisions were located in separate chapters of the
code—one concerning the administration of law enforcement and one concerning offenses
against individuals. Id. The elevated evading arrest statute, it concluded, sought to combat
a particular type of pernicious obstruction of law enforcement. Id.Although the Garfinkle panel raises a strong point, we agree with the conclusion
reached in Menifee that the two statutes serve different purposes. The prohibition on evading
arrest “addresses the threatened harm to the public interest of obstructing a law enforcement
officer in the discharge of any legal duty.” Menifee, M2005-00708-CCA-R3-CD, 2006 WL
2206067, at *8 (quotation marks and ellipses omitted). The elevated felony for recklessly
fleeing in a motor vehicle is designed to “address[] the public harm when the act of evading
arrest creates a risk of death or injury to innocent bystanders or other third parties.” Id. In
contrast, reckless endangerment, which is codified in the chapter regarding offenses against
persons, “addresses threatened harm to the individual by prohibiting conduct which may
place another person in danger of death or serious bodily injury with a deadly weapon.” Id.(quotation marks, citations, and ellipses omitted). Thus, we conclude the purposes of the two
statutes are different.
Having proceeded through the Denton framework, we conclude that, on the record
before us, the appellant’s convictions under counts two and three violate the protections
against double jeopardy. Although the statutes require proof of different elements and appear
to serve different goals, the way the prosecution was carried out in this case overwhelmingly
demonstrates that the appellant is being punished for the same conduct in both counts. The
same evidence led to both convictions, and that evidence reveals that the prosecution of these
two counts concerned a single episode of criminal conduct that involved multiple victims.
The appellant has thus been impermissibly given multiple punishments for the same offense.
See Denton, 938 S.W.2d at 381.
This violation of the appellant’s double jeopardy protections easily rises to the level
of plain error. As explained above, the record clearly establishes that a clear and unequivocal
rule of law has been breached and that the appellant has been adversely affected. See
Adkisson, 899 S.W.2d at 641-42. Nothing indicates that the appellant waived this issue for
tactical reasons. See id. And consideration of this issue is necessary to do substantial justice.
See id. We therefore conclude that the trial court committed plain error in entering the
judgment in count three. As a result, we vacate the judgment of conviction in count three and
remand the case to the trial court with instructions to merge the conviction in count three into
the evading arrest conviction in count two. See Cullop, No. E2000-00095-CCA-R3-CD,
2001 WL 378543, at *8.
-12-
C. Sentencing
We now turn to the appellant’s argument that the trial court erred at sentencing. As
noted above, the trial court relied on three enhancement factors in arriving at its sentence for
the appellant. In particular, the trial court found that the appellant (1) had a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range; (2) had failed to comply with the conditions of a sentence involving
release into the community; and (3) had no hesitation about committing a crime when the risk
to human life was high. See Tenn. Code Ann. §§ 40-35-114(1), (8) & (10). The appellant
asserts that the trial court erred in relying on the latter two enhancements.
Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;
(5) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that
the trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.
The appellant first argues that the trial court relied on an erroneous factual belief
about the sequence of the appellant’s prior convictions to conclude they trigger the
enhancement for compliance with conditions of release. In particular, he contends that the
court erred because it cited a 2007 DUI conviction as the basis for finding he had violated
the conditions of a probation order from 1992. Because he was not convicted of the DUI
charge until after the expiration of a period of probation, he argues, that conviction cannot
be used as a basis for applying this enhancement.
The appellant’s argument misses the mark. The presentence report reveals that he has
a December 1992 conviction for incest. He was sentenced to four years in custody and four
years of probation. In 1997, the appellant was convicted of DUI for an incident that occurred
in November 1996. Our reading of the presentence report thus indicates that the probationary
period for his 1992 conviction did not end until after his November 1996 DUI. It is possible
-13-
that the trial court cited the wrong DUI conviction—the appellant has several—but the record
reveals that the 1997 conviction was a violation of his probation for the incest conviction.
Therefore, the trial court did not error in relying on this factor.
The appellant next argues that the trial court erred in enhancing his sentence based on
his lack of hesitation about committing a crime when the risk to human life was high.
Specifically, he argues that the record lacks an evidentiary basis from which to draw that
conclusion, that the factor essentially duplicates the necessary elements of the underlying
crime, and that the facts upon which the trial court relied were not found by the jury and
therefore the trial court’s reliance on those facts violated his constitutional right to trial by
jury.
The appellant’s argument regarding the duplication of proof is well-taken. Tennessee
Code Annotated section 40-35-114(10) allows a trial court to enhance a sentence if “[t]he
defendant had no hesitation about committing a crime when the risk to human life was high.”
“The determinative language of this factor is ‘the risk to human life was high.’” State v.
Jones, 883 S.W.2d 597, 602 (Tenn. 1994). The appellant is correct that the same proof used
to convict the appellant of evading arrest with risk of death and reckless endangerment with
a deadly weapon cannot be used to support the enhancement. The trial court therefore erred
in relying on this enhancement.
We conclude, however, that the error was harmless. See Tenn. R. App. P. 36(b). As
an initial matter, the sentencing guidelines under which the trial court relied upon provide
that the enhancement factors are advisory. See Tenn. Code Ann. § 40-35-210(c); see also
State v. Banks, 271 S.W.3d 90, 144-45 (Tenn. 2008). Further, it is clear from the record that
the trial court would not likely have altered its sentence in the absence of this enhancement.
As discussed above, the trial court relied on two other enhancements that justify an increased
sentence. Moreover, the trial court considered the sentencing principles and all relevant facts
and circumstances in coming to its decision and even indicated its desire to give a longer
sentence by making the individual sentences consecutive. Therefore, the error here did not
“more probably than not affect[] the judgment or . . . result in prejudice to the judicial
process.” Tenn. R. App. P. 36(b).
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court, except for the judgment of conviction in count three. We vacate the conviction with
respect to count three (reckless endangerment with a deadly weapon). This case is remanded
to the trial court with instructions to enter a judgment reflecting that count three merges with
-14-
the conviction in count two (evading arrest with risk of death). The judgments of the trial
court are affirmed in all other respects.
___________________________________
NORMA McGEE OGLE, JUDGE
-15-