             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                    Assigned on Briefs July 26, 2005

                    STATE OF TENNESSEE v. GREGORY MULLINS

                     Direct Appeal from the Criminal Court for Sullivan County
                            No. S48,296-297    Jon K. Blackwood, Judge



                        No. E2004-02314-CCA-R3-CD - Filed August 25, 2005


                             CONCURRING AND DISSENTING OPINION

DAVID H. WELLES, J., dissenting.

        I concur in the majority’s decision finding the evidence sufficient to support the Defendant’s
convictions for violating the vehicle registration law, speeding, driving on a suspended license, and
felony evading arrest. I respectfully disagree that principles of double jeopardy under Tennessee’s
constitution require the merger of the Defendant’s conviction for misdemeanor evading arrest with
his felony evading arrest conviction.

          The majority relies on the Calloway decision as determinative of this issue. See State v.
Prentice C. Calloway, No. M2004-01118-CCA-R3-CD, 2005 WL 1307800 (Tenn. Crim. App.,
Nashville, June 2, 2005). In that case, a panel of this Court utilized the four-prong test set forth in
State v. Denton, 938 S.W.2d 373 (Tenn. 1996),1 and concluded initially that the two offenses
contained different statutory elements. See Calloway, 2005 WL 1307800, at *7. Thus, the Calloway
panel determined that the offenses of misdemeanor evading arrest and felony evading arrest pass
Blockburger scrutiny. See id. I agree with that aspect of the decision. Tennessee Code Annotated
section 39-16-603(a)(1)(A) provides 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
. . . [k]nows the officer is attempting to arrest the person[.]” This offense is designated a Class A
misdemeanor. See id. § 39-16-603(a)(1)(3). Tennessee Code Annotated section 39-16-603(b)(1)


         1
           Specifically, we must consider a) whether each statutory provision under which the Defendant was convicted
requires proof of a fact that the other does not; b) whether the same evidence is necessary to prove both offenses; c)
whether the two offenses involved multiple victims or discrete acts; and d) whether the two offenses are aimed at
different goals. 938 S.W .2d at 381. “No single aspect of this analysis is given controlling weight; each factor must be
weighed and considered in relation to the others.” State v. Goodwin, 143 S.W .3d 771, 781 (Tenn. 2004). However,
“[t]he key issue in multiple punishment cases is legislative intent,” and we are to presume that “the legislature does not
ordinarily intend to punish the same offense under two different statutes.” Denton, 938 S.W . 2d at 379.
provides that “[i]t is 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 such officer to bring the vehicle to a stop.” This offense is
designated a felony. See id. § 39-16-603(b)(3).

         Thus, misdemeanor evading arrest may be committed “by any means of locomotion.” Felony
evading arrest, on the other hand, requires that the suspect be fleeing “while operating a motor
vehicle on any street, road, alley or highway.” Misdemeanor evading arrest also requires that the
police officer be attempting to arrest the suspect and that the suspect realize this. Felony evading
arrest requires only that the officer be attempting to stop the vehicle. Accordingly, as recognized by
the majority and the panel of this Court that decided the Calloway case, these two statutory
provisions have different elements. Differing elements indicate that the two offenses are not the
same for double jeopardy purposes.

        The Calloway panel next determined that the two offenses required different proof, again,
a factor in favor of finding two separate offenses. See Calloway, 2005 WL 1307800, at *7. I also
agree with that aspect of the decision. This prong of the analysis involves a consideration of the
evidence required to prove each offense, as guided by the case of Duchac v. State, 505 S.W.2d 237,
239 (Tenn. 1973). See Denton, 938 S.W.2d at 381. Duchac provides that,

       If the same evidence is not required [to prove both offenses], then the fact that both
       charges relate to, and grow out of, one transaction, does not make a single offense
       where two are defined by the statutes. . . . [T]here is no identity of offenses if on the
       trial of one offense proof of some fact is required that is not necessary to be proved
       in the trial of the other, although some of the same acts may necessarily be proved
       in the trial of each.

505 S.W.2d at 239 (quoting 21 Am. Jur. 2d Crim. Law § 82). The Defendant contends in his brief
that “his act of fleeing from Officer Hyatt by vehicle and subsequently on foot was a single act, that
his sole intent and choice was to attempt to elude arrest.” However, we must look to the proof
required by each offense. Misdemeanor evading arrest requires that the State prove that the suspect
fled an officer, by any means, while knowing that the officer was attempting to arrest him or her.
The Defendant admits his commission of this crime. In order to prove felony evading arrest, the
State had to prove that Officer Hyatt attempted to stop the Defendant while the Defendant was
driving a vehicle, and that the Defendant thereafter intentionally fled or attempted to elude Officer
Hyatt by continuing to drive the vehicle. The proof required was therefore different, and the proof
actually adduced at trial was different. Indeed, the Defendant contends that he did not commit felony
evading arrest because he was not driving the pickup at the time. That is, the Defendant admits the
accuracy of some of the State’s proof, but contests the different proof necessary to prove felony
evading arrest. Officer Hyatt’s testimony established the crime of felony evading arrest when he
described the Defendant’s acceleration to sixty miles per hour after Officer Hyatt signaled him to
pull over by turning on his lights. The Defendant subsequently committed the crime of misdemeanor
evading arrest as described by Officer Hyatt’s testimony when, after the brown pickup came to a halt,


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the Defendant exited the vehicle and ran off, trying to prevent Officer Hyatt from arresting him. The
proof required by the offenses is different, and the proof adduced by the State at trial in support of
each offense was different. Accordingly, this aspect of the analysis supports a finding that the two
offenses are not the same for double jeopardy purposes.

         In addressing the third prong of the Denton inquiry, the Calloway panel concluded that the
offenses “did not involve multiple victims or multiple episodes.” 2005 WL 1307800, at *7. I
respectfully disagree with this portion of the Calloway decision and would therefore not follow it
in the instant case. The majority does, however, and accordingly concludes that the Defendant’s
flight from Officer Hyatt was a single continuous criminal episode rather than two discrete acts
capable of supporting multiple convictions. To the contrary, as described in the preceding paragraph,
the Defendant engaged in discrete acts in committing both forms of evading arrest. Moreover, while
the crimes of misdemeanor evading arrest and felony evading arrest do not contemplate victims per
se (other than the State at large), there is a very real difference in the risks created by these two
crimes. Felony evading arrest exposes the motoring and pedestrian public, as well as the pursuing
officer(s), to the dangers inherent in a vehicle being driven at high speeds. Misdemeanor evading
arrest under the circumstances of cases like this one, in which the suspect stops fleeing in his or her
vehicle and begins fleeing on foot, exposes the pursuing officer(s) to a different type of threat. If the
pursuing officer is unable to continue chasing the suspect in his or her cruiser, and decides to
continue the pursuit on foot, the officer must leave the relative safety of his or her vehicle. If the
suspect is armed, the officer -- as well as any unfortunate bystander -- has just become more
vulnerable to attack. The differing types of danger involved with the different forms of evading
arrest supports, in my opinion, a finding of two discrete acts, and therefore two separate offenses.

        Finally, I respectfully disagree with the Calloway panel’s conclusion that the legislature was
addressing the same concern with both misdemeanor and felony evading arrest. The Calloway panel
determined that “[t]he evil at which the statute is directed is the same whether one flees on foot or
[by] motor vehicle, that is, to discourage flight from a police officer performing his or her official
duties.” 2005 WL 1307800, at *8. However, misdemeanor evading arrest is aimed at punishing
those who attempt to evade their actual arrest, thereby thwarting the State’s efforts to prosecute a
criminal suspect. The felony evading arrest provision is aimed at all of those who are driving motor
vehicles and are simply ordered by a police officer to stop their vehicle, but refuse to do so. Thus,
the concern addressed by the felony evading arrest statute is the protection of other drivers (including
the pursuing law enforcement officers) and pedestrians from the potential and actual dangers created
by a driver engaging in reckless maneuvers while trying to elude a police cruiser.2 Therefore, I
conclude that the purposes of the two statutory provisions are sufficiently distinct as to support a
finding that the two offenses are not the same for double jeopardy purposes.




         2
           W e note that felony evading arrest is a Class E felony unless the motorist’s flight “creates a risk of death or
injury to innocent bystanders or other third parties,” in which case the offense is a Class D felony. Tenn. Code Ann. §
39-16-603(b)(3).

                                                           -3-
        In summary, my analysis of the Defendant’s convictions for both misdemeanor evading arrest
and felony evading arrest convinces me that the Defendant’s dual convictions do not offend
Tennessee’s prohibition against double jeopardy, even though both convictions arose out of a single
chase. Accordingly, I would not merge the Defendant’s conviction for misdemeanor evading arrest
into his conviction for felony evading arrest. I would affirm both convictions.



                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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