         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     June 28, 2000 Session

              STATE OF TENNESSEE v. WILLIAM T. EMERSON

               Appeal as of Right from the Criminal Court for Sullivan County
                           No. S41,565    Phyllis H. Miller, Judge



                                 No. E1999-02314-CCA-R3-CD
                                       October 16, 2000

The appellant, William T. Emerson, was convicted by a jury in the Criminal Court of Sullivan
County of one count of reckless driving, a class B misdemeanor, one count of evading arrest, a class
A misdemeanor, and one count of driving on a revoked license, a class B misdemeanor. The trial
court sentenced the appellant to six months incarceration in the Sullivan County jail for reckless
driving. The trial court also sentenced the appellant to six months incarceration in the Sullivan
County jail for driving on a revoked license. Additionally, the trial court sentenced the appellant to
eleven months and twenty-nine days incarceration in the Sullivan County jail for evading arrest. The
trial court further ordered the appellant to serve his sentences for reckless driving and driving on a
revoked license concurrently, but ordered that the sentence for evading arrest be served consecutively
to the other sentences. The appellant raises the following issues for our review: (1) whether the jury
verdict was contrary to the law and the evidence; (2) whether the evidence in the record is
insufficient as a matter of law to sustain the convictions; (3) whether the evidence in the trial
preponderates against the guilt of the appellant and in favor of his innocence; and, (4) whether the
trial court erred in sentencing the appellant to consecutive sentences. Upon review of the record and
the parties’ briefs, we affirm the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, and JAMES
CURWOOD WITT, JR., JJ., joined.

Richard A. Tate, Blountville, Tennessee, for the appellant, William T. Emerson.

Paul G. Summers, Attorney General and Reporter, Patricia C. Kussman, Assistant Attorney General,
and J. Lewis Combs, Assistant Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background
                On the night of October 31,1997, Officer James Shores, of the Bristol, Tennessee
Police Department, was driving home from work in his personal vehicle when he noticed a white
Ford Ranger pickup truck run a red light. Officer Shores, who continued to observe the vehicle,
became concerned as he watched the truck being driven erratically. The officer saw the truck
repeatedly swerve into both lanes of traffic on West State Street, cross into the emergency lane, drive
over the median, and run off the side of the road. Officer Shores followed the truck toward the
Bristol Regional Medical Center because he thought the driver might have a medical emergency and
require assistance. When Officer Shores observed that the truck did not turn off at the hospital, but
instead sped up and continued driving erratically, he continued to follow the vehicle because he
feared for the safety of other motorists.

               Officer Shores estimated that the truck was being driven at speeds in excess of 100
miles per hour (mph) in a 55 mph zone. Once, to avoid crashing into another vehicle, the driver of
the truck slammed on his brakes, causing his tires to smoke. Additionally, Officer Shores
maintained that he was never more than 150 to 250 feet behind the truck during the chase. The
officer watched as the truck stopped at a residence at 104 Dalton View Drive. Officer Shores
followed the truck into the driveway and witnessed the appellant unsteadily attempt to get out of the
truck.

                Officer Shores, still wearing his police uniform, identified himself as a police officer
and approached the appellant. The officer then heard someone approach him from behind. Officer
Shores instructed the appellant to place his hands on top of the truck and turned to see what was
happening behind him. When Officer Shores turned his head, the appellant ran away, jumping over
an embankment and landing on a moving car. Although Officer Shores gave chase, he was unable
to catch the fleeing appellant because the officer did not have a flashlight and was unfamiliar with
the area. Subsequently, the appellant managed to elude the police during an hour long search of the
area.

                 The appellant was indicted on charges of reckless driving, speeding, driving under
the influence, driving on a revoked license, and evading arrest. On April 14, 1999, a jury in the
Sullivan County Criminal Court found the appellant guilty of one count of reckless driving, a class
B misdemeanor, one count of evading arrest, a class A misdemeanor, and one count of driving on
a revoked license, a class B misdemeanor. The trial court sentenced the appellant to six months
incarceration in the Sullivan County jail for reckless driving. The trial court also sentenced the
appellant to six months incarceration in the Sullivan County jail for driving on a revoked license.
Additionally, the trial court sentenced the appellant to eleven months and twenty-nine days
incarceration in the Sullivan County jail for evading arrest. The trial court further ordered the
appellant to serve his sentences for reckless driving and driving on a revoked license concurrently,
but ordered that he serve his sentence for evading arrest consecutively to the other sentences. On
appeal, the appellant presents the following issues for our review: (1) whether the jury verdict was
contrary to the law and the evidence; (2) whether the evidence in the record is insufficient as a matter
of law to sustain the convictions; (3) whether the evidence in the trial preponderates against the guilt



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of the appellant and in favor of his innocence; and, (4) whether the trial court erred in sentencing the
appellant to consecutive sentences.

                                              II. Analysis
                                   A. Sufficiency of the Evidence
                The appellant’s first three issues basically challenge the sufficiency of the evidence
produced at trial. In Tennessee, a jury’s guilty verdict in a criminal trial is accorded considerable
weight by appellate courts. The jury conviction replaces the defendant’s presumption of innocence
at trial with a presumption of guilt on appeal; therefore, the appellant bears the burden of
demonstrating to this court why the evidence will not support the jury’s findings. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). Accordingly, the appellant must establish that no “reasonable
trier of fact” could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

                 Moreover, the State, on appeal, is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). Furthermore, the trier of fact, and not the appellate courts, resolves
questions concerning the credibility of witnesses and the weight and value to be given the evidence,
as well as all factual issues raised by the evidence. State v. Pruett,788 S.W.2d 559, 561 (Tenn. 1990).

                                   1. Driving on a Revoked License
                In order to obtain the appellant’s conviction for driving on a revoked license, the State
had to prove that the appellant was driving a motor vehicle on a public road of Tennessee at a time
when the appellant’s privilege to drive was revoked. Tenn. Code Ann. § 55-50-504(a)(1)(1997).
Officer Shores testified that the roads he observed the appellant driving on were public roads in
Tennessee. Moreover, the State produced a certified copy of the appellant’s driving record which
established that, on October 31, 1997, the appellant’s driver’s license was revoked. However, the
appellant’s main contention is that there was insufficient evidence to establish that he was the driver
of the vehicle. We disagree.

                 Officer Shores testified that, after he saw the truck run a red light, the truck never left
his sight. Moreover, the officer stated that he was never more than 150 to 250 feet behind the truck
at all times. Officer Shores admitted that he never saw the appellant while the truck was in motion.
However, the officer maintained that when he pulled in the driveway behind the appellant’s truck,
he witnessed the appellant unsteadily exit the truck. Additionally, there was no evidence introduced
at trial that anyone else could have been driving the truck. Furthermore, the appellant’s mother
testified that the truck belonged to the appellant. A jury could reasonably infer, based upon these
facts, that the appellant was the driver that the officer had observed. See State v. Gray, No. 03C01-
9702-CR-00074, 1998 WL 95391, at *2 (Tenn. Crim. App. at Knoxville, March 6, 1998), perm. app.
denied (Tenn. 1998). This issue is without merit.

                                          2. Reckless Driving



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                For the appellant to be convicted of reckless driving, the State had to first prove that
the appellant drove the truck. We have already concluded that a jury could find that the appellant was
the driver of the vehicle that Officer Shores followed, which satisfies the first element of the statute.
Tenn. Code Ann. § 55-10-205(a)(1997). Furthermore, the State must establish that the appellant
drove with “a willful or wanton disregard for the safety of persons or property.” Id.

                 Officer Shores testified that he began to follow the appellant after he saw the vehicle
blatantly run a red light. Moreover, the officer maintained that the appellant erratically swerved
through both lanes of traffic on a two lane road, repeatedly crossing the median and running off the
side of the road. See State v. Bartlett, No. 01C01-9509-CC-00302, 1998 WL 161121, at *4, (Tenn.
Crim. App. at Nashville, April 7, 1998)(finding that the defendant drove recklessly by running five
stop signs, driving over 100 mph, and forcing a vehicle onto a curb to avoid collision). Additionally,
there was proof that the appellant drove his truck at speeds in excess of 100 mph in a 55 mph zone.
See State v. Wilkins, 654 S.W.2d 678, 680 (Tenn. 1983)(stating that establishing that the defendant
drove at 120 mph on a highway with hills and curves is sufficient to prove reckless driving).
Furthermore, the appellant had to slam on his brakes to avoid a collision with another vehicle. Based
upon the foregoing, a jury could find the appellant guilty of reckless driving. This issue is without
merit.

                                           3. Evading Arrest
                 The appellant was charged with violating Tenn. Code Ann. § 39-16-
603(a)(1)(A)(1997) which states that “it is unlawful for any person to intentionally flee by any means
of locomotion from anyone the person knows to be a law enforcement officer if the person. . . knows
the officer is attempting to arrest the person.” The appellant contends that there was no evidence in
the record to indicate that Officer Shores was attempting to arrest the appellant.1 We disagree.

                Officer Shores maintained that, when he approached the appellant, he was wearing
his police uniform and identified himself as a police officer. Therefore, the appellant knew that
Officer Shores was a law enforcement officer. Furthermore, Officer Shores testified that he
instructed the appellant to place his hands on top of the truck. Although Officer Shores never
specifically told the appellant that he was under arrest, “an arrest may be affected without formal
words or a station house booking.” State v. Crutcher, 989 S.W.2d 295, 301 (Tenn. 1999). When
the officer turned to see who was coming up behind him, the appellant ran from the officer. See
State v. Black, 924 S.W.2d 912, 915 (Tenn. Crim. App. 1995). Moreover, the appellant continued
to run when Officer Shores gave chase, and remained hidden during a subsequent police search for
him. See State v. Hughes, No.01C01-9502-CC-00033, 1996 WL 337341, at *3, (Tenn. Crim. App.
at Nashville, June 20, 1996). Additionally, the appellant’s immediate flight from Officer Shores
indicates that he was aware that he was not free to leave. State v. Russell, 10 S.W.3d 270, 276



         1
           The record does not indicate that Officer Shores attempted to stop the appellant from driving; therefore the
State does not contend that the appellant evaded Officer Shores by continuing to drive. However, the State does allege
that the appellant evaded arrest by fleeing after Officer Shores told the appellant to put his hands on the truck.

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(Tenn. Crim. App. 1999). We conclude that a reasonable jury could find, based upon the foregoing
facts, that the appellant evaded arrest. This issue is without merit.

                                              B. Sentencing
                The appellant also claims that the trial court erred in sentencing him to consecutive
sentences. Appellate review of the length, range, or manner of service of a sentence is de novo.
Tenn. Code Ann. § 40-35-401(d)(1997). This court considers the following factors in conducting
its de novo review: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
pre-sentence 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 statement by the defendant in his own
behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210
(1997). See also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Additionally, the appellant
bears the burden of demonstrating the impropriety of his sentence(s). Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments. Furthermore, because we find that the trial court correctly
considered sentencing principles and all relevant facts and circumstances, we will accord the trial
court’s determinations a presumption of correctness. Tenn. Code Ann. § 40-35-401(d); Ashby,823
S.W.2d at 169.

                Tenn. Code Ann. § 40-35-115(a)&(b)(1)-(7)(1997) states that the trial court may
impose consecutive sentences if the court finds any of the following factors by a preponderance of
the evidence: (1) the appellant is a professional criminal who has knowingly devoted himself to
criminal acts as a major source of livelihood; (2) the appellant is an offender whose record of
criminal activity is extensive; (3) the appellant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the
defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior
with heedless indifference to consequences; (4) the appellant is a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about committing a crime in
which the risk to human life is high; (5) the appellant is convicted of two or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating circumstances arising from
the relationship between the appellant and victim or victims, the time span of appellant’s undetected
sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims; (6) the appellant is sentenced for an offense committed
while on probation; or (7) the appellant is sentenced for criminal contempt. Moreover, the presence
of a single factor is enough to justify the imposition of consecutive sentences. See State v. Black,
924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

                The trial court found that the appellant has an extensive criminal history. See State
v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997)(stating specifically that “extensive
criminal history alone will support consecutive sentences”). The appellant has multiple convictions
for public intoxication, driving on a revoked license, and sale of schedule II drugs. Additionally, the
appellant has been convicted of unlawful use of drug paraphernalia, resisting arrest, assault, and
marijuana possession. This criminal record is sufficiently extensive to permit the trial court to


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impose consecutive sentences. See State v. Palmer, 10 S.W.3d 638, 648 (Tenn. Crim. App. 1999).


                 In order to complete our review of the validity of the appellant’s consecutive
sentences, we must also determine “whether consecutive sentences are necessary to protect the
public from the [appellant’s] possible future criminal conduct and whether the aggregate sentence
is reasonably related to the severity of the [appellant’s] present offenses.” State v. Franklin, 919
S.W.2d 362, 366 (Tenn. Crim. App. 1995). One of the key factors in this determination is the
appellant’s potential for rehabilitation. Id. (citing Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976)).
The trial court found that other alternatives had failed to deter the appellant from repeatedly engaging
in criminal behavior. See Palmer, 10 S.W.3d at 649 (stating that the defendant’s criminal record
exposes the defendant’s inability to conform his behavior to the law). Therefore, the trial court
found that the appellant should be confined to protect the public against the appellant’s further
criminal conduct. Furthermore, the trial court felt that a sentence of seventeen months and twenty-
nine days reasonably related to the severity of the appellant’s offenses, because his reckless driving
endangered the lives and property of others. The appellant has failed to demonstrate the impropriety
of his sentences.

                                       III. Conclusion
               Based upon the foregoing, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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