           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        MARCH 1996 SESSION           FILED
                                                        May 1, 1996
STATE OF TENNESSEE,        *      C.C.A. # 02C01-9509-CC-00272
                                                   Cecil Crowson, Jr.
                                                     Appellate Court Clerk
      Appellee,            *      TIPTON COUNTY

VS.                        *      Hon. Joseph H. Walker, Judge

KEITH L. BROWN,            *      (Possession of Schedule II
                                  Controlled Substance with
      Appellant.           *      Intent to Deliver and
                                  Evading Arrest)




For Appellant:                    For Appellee:

James V. Ball                     Charles W. Burson
Attorney                          Attorney General & Reporter
217 Exchange Avenue
Memphis, TN 38105                 Robin L. Harris
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Walt Freeman
                                  Assistant Attorney General
                                  302 Market Street
                                  Somerville, TN 38068




OPINION FILED:




AFFIRMED




GARY R. WADE, JUDGE
                             OPINION

          The defendant, Keith L. Brown, was convicted for

evading arrest and possession of more than .5 grams of cocaine

with intent to deliver.   The trial court imposed a sentence of

ll months and 29 days for the misdemeanor conviction and a

consecutive sentence of nine years for the drug conviction.

The single issue presented for review is whether the evidence

was sufficient to convict.   We affirm the judgment of the

trial court.



          At approximately 7:30 P.M. on February 24, 1994,

Officers Terence Craig and Cavat Bass observed an automobile

accident at the intersection of Church Street and South

College in Covington.   Although the accident occurred after

dark, there was a street light at the intersection.    Sergeant

Bass, who was ten to twelve feet away from the collision site,

identified the defendant as the driver of one of the two

vehicles involved.   The second vehicle had caused the accident

by running a stop sign.   Before the officers could intervene,

however, the defendant sped away from the scene, traveling at

a high rate of speed and running several stop signs.   The two

officers pursued the vehicle through the town square until the

defendant and his passenger, later identified as Elton Ruffin,

abandoned their vehicle and ran away on foot.   Officer Bass

captured Ruffin.   Officer Craig was able to identify the

defendant as he fled from the moving car, but was unable to

make an arrest at the scene.



          The officers found some "white chunky substance" in


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the rear floorboard of the defendant’s car.    A laboratory

analysis established that the substance was 2.9 grams of

cocaine.    A warrant was issued and the defendant was arrested

at his mother’s house in Shelby County about a week later.



            At trial, Officer Craig testified that the person

driving the car was the defendant.    Officer Bass testified

that he knew the defendant and had seen him in the same car

about three days before this offense; he specifically recalled

having seen the defendant washing the car at the residence of

a relative.



            The defendant denied that he was the driver of the

car.   He claimed that he was in Memphis with his girlfriend

and several others at the time.     Ruffin testified that the

defendant, his nephew, was not in the vehicle at the time of

the accident and that the car had been driven by Lamont

Leonard Currie.   Ruffin claimed that he had purchased the

vehicle for $200.00 from Quentin Booker, to whom the vehicle

was registered, on the day of the accident.    The defendant’s

grandmother, his mother, his sister, and his girlfriend, all

testified that the defendant was in Memphis at the time of the

accident.



            In this appeal, the defendant complains that no

rational trier of fact should have been satisfied with the

sufficiency of the identification evidence.    Clearly, the

identification of the defendant was the primary issue at

trial.   In fact, during the course of deliberations, the


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jurors asked the trial judge why Currie had not been

subpoenaed to appear and what testimony he had given at the

preliminary hearing.   Of course, no answers were given to

either of the questions.   The jury was instructed to disregard

those issues.



          Recently, our supreme court promulgated a new jury

instruction on identification, holding that the value of such

evidence may depend upon several factors:

          (1) The witness’ capacity and opportunity
          to observe the offender. This includes,
          among other things, the length of time
          available for observation, the distance
          from which the witness observed, the
          lighting, and whether the person who
          committed the crime was a prior
          acquaintance of the witness;

          (2) The degree of certainly expressed by
          the witness regarding the identification
          and the circumstances under which it was
          made, including whether it is the product
          of the witness’ own recollection;

          (3) The occasions, if any, on which the
          witness failed to make an identification
          of the defendant, or made an
          identification that was inconsistent with
          the identification at trial; and

          (4) The occasions, if any, on which the
          witness made an identification that was
          consistent with the identification at
          trial, and the circumstances surrounding
          such identifications.

State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995).



          Dyle was released on May 15, 1995, before the notice

of appeal was filed in this case.   Because the new rule

specifically applied to those cases which were on appeal at

the time of the release of Dyle, it applies here.



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             Under this ruling, it is plain error not to give the

instruction when witness "identification is a material issue

and it is requested by defendant’s counsel."     Id.   The issue

of identity is a material issue when either (1) the defendant

puts it at issue, or (2) the eyewitness testimony is

uncorroborated by circumstantial evidence.      Id. at 612, n. 4.

If the "defendant does not request the instructions, failure

to give it will be reviewable under a Rule 52 harmless error

standard."    Id.   Because defense counsel did not request any

special instructions on eyewitness identification in this

case, our review must be based upon the harmless error

standard, that is, there shall be no reversal "except for

errors which affirmatively appear to have affected the result

of the trial on the merits."    Tenn. R. Crim. P. 52(a).



             There are restrictions upon our scope of review.      In

an appeal, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might

be drawn therefrom.    State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978).    The credibility of the witnesses, the weight to

be given their testimony, and the reconciliation of conflicts

in the evidence are matters entrusted exclusively to the jury

as the triers of fact.    Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978).    A conviction can be set aside only

when this court finds that the "evidence is insufficient to

support the finding by the trier of fact of guilt beyond a

reasonable doubt."    Tenn. R. App. P. 13(e).   A jury verdict,

approved by the trial judge, accredits the testimony of the

state’s witnesses and resolves all conflicts in favor of the


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state’s theory.    State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.

1978).



             In our view, the instruction error was harmless and

the proof was sufficient.    First, there was corroboration of

the identification by direct and circumstantial evidence.

When arrested, Ruffin initially identified the defendant as

the driver of the car.    The factors outlined in Dyle support

the position of the state.    First, each of the officers who

identified the defendant knew him before the date of the

accident.    Officer Bass was within ten to twelve feet of the

defendant in a well-lit intersection.      Officer Craig

identified the driver as the defendant when he saw the

defendant leap from the moving vehicle.      Clearly, each officer

had not only a reasonable opportunity to identify the

defendant but also a good reason to do so.      Next, each of the

officers testified repeatedly that they were certain that the

defendant was the driver of the car.      That would have

satisfied the second prong in Dyle.      Thirdly, neither of the

officers hesitated about their identification.      There was no

point at which they misidentified or failed to identify the

defendant.    Finally, the officers were consistent in making

the identification, from the issuance of the warrant to their

testimony at trial.    In our view, the proof of eyewitness

identification was sufficient.       It was the prerogative of the

jury to assess the credibility of those who testified.      Any

error by the failure to provide the Dyle instruction, in the

interest of the entire trial, was harmless.




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          Accordingly, the judgment is affirmed.



                         ____________________________________
                         Gary R. Wade, Judge

CONCUR:



_____________________________
Joe B. Jones, Presiding Judge



_____________________________
William M. Barker, Judge




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