        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 21, 2016 Session

        STATE OF TENNESSEE v. JAVONTA MARQUIS PERKINS

                Appeal from the Criminal Court for Davidson County
                 No. 2012-C-2144      J. Randall Wyatt, Jr., Judge



              No. M2015-01025-CCA-R3-CD – Filed November 7, 2016



NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

       I agree with most of the conclusions set forth in the majority opinion. I write
separately, however, to respectfully dissent from the majority’s conclusion that Sergeant
Sanderson qualified as an endangered third party, which elevated the evading arrest to a
Class D felony.

       Relevant to this case, evading arrest occurs when a person operating a motor
vehicle on any street, road, alley, or highway intentionally flees or attempts to elude any
law enforcement officer after the person has received any signal from the officer to stop.
Tenn. Code Ann. § 39-16-603(b)(1). At the time of the pursuit, the statute provided that
the offense was a Class E felony “unless the flight or attempt to elude creates a risk or
death or injury to innocent bystanders or other third parties, in which case a violation of
subsection (b) is a Class D felony.” Tenn. Code Ann. § 39-16-603(b)(3) (2010). A
Tennessee Attorney General opinion, filed long before our legislature amended
subsection (b)(3) to specifically include “pursuing law enforcement officers” with
innocent bystanders or other third parties, concluded that officers attempting to arrest the
driver were not innocent bystanders or third parties under the statute. Tenn. Op. Att’y
Gen. No. 00-140 (2000). As the opinion explained,

              Provisions of the criminal code should be “construed
              according to the fair import of their terms, including reference
              to judicial decisions and common law interpretations, to
              promote justice, and effect the objectives of the criminal
              code.” Tenn. Code Ann. § 39-11-104 (1997). When a term is
              not defined in a statute, the term should be given its ordinary
              and commonly accepted meaning. Beare Co. v. Tennessee
             Dep’t of Revenue, 858 S.W.2d 906, 908 (Tenn. 1993).

                    A “bystander” is “a person who stands near but does
             not participate; [a] mere onlooker.” Webster’s New World
             Dictionary of the American Language, 2d College Edition
             195 (1976). Black’s Law dictionary defines a “bystander” as
             “one who stands near; a chance looker-on; hence one who has
             no concern with the business being transacted. One present
             but not taking part, looker on, spectator, beholder, observer.”
             Black’s Law Dictionary 182 (5th ed. 1979). An “innocent”
             bystander is an onlooker who is “guiltless,” Webster's New
             World Dictionary at 726, or “free from guilt,” Black’s Law
             Dictionary at 708.

                    A “third party,” on the other hand, is “a person in a
             case or matter other than the principals.” Webster’s New
             World Dictionary at 1479. Thus, a third party may be
             involved in the offense, either as an accomplice or a
             passenger, but would not be the driver or a law enforcement
             officer giving chase.

                     When it enacted Tenn. Code Ann. § 39-16-603(b), the
             legislature could have limited criminal liability for creating a
             risk of death or injury to the risk to innocent bystanders. The
             legislature did not impose this limitation, however, as
             reflected by the statute’s enhanced punishment for creating a
             risk of death or injury to “other third parties.” Because one
             should “assume that the legislature used each word in the
             statute purposely, and that the use of these words conveys
             some intent and has a meaning and purpose,” Locust v. State,
             912 S.W.2d 716, 718 (Tenn. Ct. App. 1995), it is the opinion
             of this Office that the legislature intended the risk of death or
             injury to encompass anyone other than the driver or the
             officers chasing him, regardless of whether the person
             endangered has aided or abetted the driver.

I think this reasoning is sound. Moreover, although attorney general opinions are not
binding authority, they are “entitled to considerable deference.” State v. Black, 897
S.W.2d 680, 683 (Tenn. 1995).

      In support of its conclusion that Sergeant Sanderson qualified as an endangered
                                           -2-
third party, the majority quotes State v. Cross, 362 S.W.3d 512, 521 (Tenn. 2012), in
which our supreme court stated that innocent bystanders or third parties are considered
“persons other than the defendant him or herself and the officer giving the signal to stop.”
However, Cross involved the pursuit of a defendant by only one officer. Thus, the issue
of whether additional officers pursuing a defendant are innocent bystanders or third
parties was never raised nor addressed.

       Finally, the majority notes that the evidence is unclear as to whether Sergeant
Sanderson had activated his blue lights when he encountered the stolen Pontiac. In my
view, once the initial officer gave the signal to stop, the question of whether additional
officers joining the pursuit also gave a signal to stop was irrelevant. In any event, Officer
Spillers testified that Sergeant Sanderson, who was “coming up” Trinity Lane as the
Pontiac turned onto Trinity, “activate[d] his blue lights and they almost hit, they almost
hit him head-on right there on West Trinity.”

        In sum, I would hold that under the statute in effect at the time of the offense, the
flight did not create a risk of death or injury to an innocent bystander or other third party.
Therefore, I would modify the Defendant’s conviction to Class E felony evading arrest.


                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE




                                             -3-
