        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                      NOVEMB ER SESSION, 1998           August 19, 1999

                                                   Cecil W. Crowson
STATE OF TENNESSEE,          )                   Appellate Court Clerk
                                  C.C.A. NO. 01C01-9712-CC-00568
                             )
      Appellee,              )
                             )
                             )    MAURY COUNTY
VS.                          )
                             )    HON. JAMES L. WEATHERFORD
JASON ERIC BRADBURN,         )    JUDGE
                             )
      Appe llant.            )    (Dire ct Ap pea l - Cla ss D Felo ny)




FOR THE APPELLANT:                FOR THE APPELLEE:

MICHAEL J. FLANAGAN               JOHN KNOX WALKUP
95 White Bridge Road, Suite 208   Attorney General and Reporter
Nashville, TN 37205
                                  DARYL J. BRAND
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  MIKE BOTTOMS
                                  District Attorney General
                                  P. O. Box 459
                                  Lawrenceburg, TN 38464



OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

JERRY L. SMITH, JUDGE
                                  OPINION


      On July 29, 1997, a Maury County jury convicted Appellant Jason E. B radburn

of Class D felony evading arrest and reckless driving. After a sentencing hearing on

October 30, 1997, the trial court sentenced Appellant as a Range II multiple offender

to six years imprisonment for felony evading arrest and 11 months and 29 days for

reckless driving.   The s entence for felony evading arrest was ordered to run

cons ecutive ly to a sentence that Appellant had received in another case and the

sentence for reckless driving was ordered to run concurrently with the other

sentences. Appellant challenges his convictions, raising the following issues:

      1) whether the indictment was sufficient to charge Appellant with felony
      evading arrest;
      2) whether the evidence was sufficient to support Appellant’s conviction for
      Class D felony eva ding arre st;
      3) whether the trial court erred when it failed to instruct the jury as to the
      lesser inc luded o ffenses o f Class D felony eva ding arre st;
      4) whether the trial court erred when it failed to instruct the jury as to a
      statutory defense; and
      5) whether principles of due proce ss an d dou ble jeopardy prohibit convictions
      for both Class D felony evading arrest and reckless driving that arise out of
      the sam e cond uct.

After a review of the record, w e affirm the judgm ent of the tria l court in pa rt and

reverse in part.



                                      I. FACTS




      On July 26, 1996, Officer John Beech of the Columbia Police Department and

civilian informant John Johnston, in conjunction with the Maury County Drug Task

Force, set up a “reverse sting operation” in which they were to sell two pounds of

marijuana to Appellant for $2,000. After a series of conversations and an initial



                                          -2-
meeting to inspect the marijuana, Appellant agreed to meet Beech and Johnston in

a Wal-Mart parking lot later that afternoon.



      After Appellant arrived a t the Wa l-Mart parking lot, he parked his small pickup

truck and got into Officer Beech’s car.         Appellant then paid for and took the

marijuana and got back into his truck. At this point, Officer Beech signaled some

other officers who had been wa iting nearby. Office r Mike J ohns on the n drov e his

unmarked vehicle directly in front of Appellant’s truck. As he pulled in front of

Appe llant’s truck, Office r Johns on activate d his vehic le’s eme rgency e quipm ent,

which consiste d of a ban k of strobe lights with the bank of headlights. As Officer

Johnson and his passenger, Officer Lonnie Lyles, were about to get out of the car,

Appellant looked at them m omen tarily and the n ramm ed his truc k into the right front

corner of Officer Johnson’s car. Ap pellant the n sped away ac ross the p arking lot.

Officer Bill Denton then activated the blue lights and siren on his vehicle and began

pursuit.



      After striking Office r John son’s car, Appellant traveled through the W al-Mart

parking lot, ran a stop sign, crossed Brookmede Drive, and entered the parking lot

of the Shady Brook Mall. Appellant then drove down a row of parke d cars in the m all

parking lot and threw the two pounds of marijuana out his truck window. Appellant

then drove tow ard the m ain exit of the mall park ing lot, but the heavy traffic forced

him to stop. Shortly thereafter, Appellant was apprehended and taken into custody.



                     II. SUFFICIENCY OF THE INDICTMENT




                                          -3-
         Appe llant contends that his conviction for Class D felony evading arrest should

be reversed because the indictment did not allege a felony. Specifically, Appellant

claims that because Tennes see Cod e Annotate d section 39-1 6-603(b)(1) states that

evading arrest must oc cur on a “street, roa d, alley or highway” in order to be a

felony, the indictm ent was insufficient b ecaus e it did not alle ge that the fleeing

occurre d on a “s treet, road , alley or high way.” 1



         The Tennessee Supreme Court has stated that “an indictment is valid if it

provides sufficient information (1) to enable the accused to know the accu sation to

which answ er is req uired, (2 ) to furn ish the court a dequ ate ba sis for the entry o f a

proper judgment, and (3) to protect the accuse d from dou ble jeopardy.” State v. Hill,

954 S.W .2d 725, 727 (Tenn. 199 7) (citations omitted). Further, “an indictment need

not conform to traditionally strict pleading requirements.”                                   Id.    “Thus, we now

approach ‘attacks upon indictments, especially of this kind, from the broad and

enlightened standp oint of com mon s ense a nd right reason rather than from the

narrow standpoint of petty precio sity, pettifo gging , techn icality or h air splittin g fault

finding.’” Id. (quoting Unite d State s v. Pur vis, 580 F.2 d 853, 8 57 (5th C ir.1978)).



         A “common sense” reading of count two of the indictment indicates that it was

sufficient to comply with the constitutional notice requirements recited in Hill. Count

two of the indictment alleged that on July 26, 1996, Appellant

         did un lawfully w hile op erating a mo tor veh icle intentio nally flee or attem pt to
         elude a law enforcement officer, after having received a signal from such
         officer to bring the veh icle to a stop, c reating a risk of dea th or injury to

         1
          The State contends that Appellant waived this issue pursuant to Rule 12(b)(2) of the Tennessee
Rule s of C rim inal P roce dure by failin g to ra ise it eit her b efor e trial o r in his mo tion fo r a ne w trial. R ule
12(b)(2), however, provides that either jurisdictional defects or the failure to properly charge an offense
“shall be noticed by the court at any time during the pendency of the proceedings.” Tenn. R. Crim. P.
12(b)(2). Thus, the waiver rule does not apply when the indictment fails to assert an essential element of
the offen se. State v. Perkinson, 867 S.W .2d 1, 5 (Tenn. Crim. App . 1992).

                                                             -4-
      innocent bystanders or others, in violation of Tennessee Code Annotated 39-
      16-603 (b)(1)(3) . . . .

Thus, the indictment informed Appellant of the date of the offense, the fact that he

operated a motor vehicle, that he intentionally fled from a law enforcement officer

after receiving a signal to stop, and that his conduct created a risk of injury or dea th

to others. Further, by specific reference to the statute, the indictment left no doubt

that Appellant was being charge d with violating Tennessee Code Annotated section

39-16-603(b)(1), (3). Eve n witho ut a sp ecific re ferenc e to “stre et, road , alley or

highwa y,” the indictment clearly put Appellant on notice of the offense he was being

charged with, appraised the trial court of the sp ecific charge for purposes of entering

an appro priate ju dgm ent an d sen tence , and p rotecte d App ellant fro m do uble

jeopard y. This issu e has n o merit.



                      III. SUFFICIENCY OF THE EVIDENCE




      Appellant contends that the evidence was insufficient to support his conviction

for Class D felony evading arrest under Tennessee Code Annotated section 39-16-

603(b), which states,

      (1) It is unlaw ful for an y perso n, while opera ting a m otor ve hicle on any s treet,
      road, alley or highw ay in this state , to intentiona lly flee or attem pt to elude any
      law enforcem ent officer, after having received any signal from su ch officer to
      bring the vehicle to a stop.
               ....
      (3) A violation of subsection (b) is a Class E felony unless the flight or attempt
      to elude creates a risk of death o r injury to innocent bysta nders or othe r third
      parties, in which cas e a violation of subse ction (b) is a Class D felony.

Tenn. Code Ann. § 39-16-603(b) (1997).              We agree that the evidence was

insufficient to support a c onviction for a Class D felony.




                                            -5-
       When an appellant challenges the su fficienc y of the e videnc e, this C ourt is

obliged to review that challenge according to certain well-settled principles. A verdict

of guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State’s

witnesses and resolve s all conflicts in the tes timony in favor of the State. State v.

Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict re move s this pres umptio n and re places it w ith one of gu ilt.

State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden

of proof rests with Appellant to demonstrate the insufficiency of the convicting

evidenc e. Id. On ap peal, “th e [S]ta te is entitled to the strongest legitimate view of

the evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom.”    Id. (citing State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8)).

Wh ere the sufficiency of the evidence is contested on appeal, the relevant question

for the rev iewing court is whether any rational trier of fact could have found the

accused guilty of every element of the offens e beyon d a reas onable doubt. Harris ,

839 S.W.2d at 75; Jack son v. V irginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61

L. Ed. 2d 560 (1979). In conducting our evaluation of the c onvictin g evide nce, th is

Court is preclud ed from reweigh ing or reco nsidering the evide nce. State v. Morgan,

929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own

inferences “for those d rawn by the trier of fact fr om circum stantial evid ence.”

Matthews, 805 S.W.2d at 779. Finally, Rule 13(e) of the Tennessee Rules of

Appe llate Procedure provides, “findings of guilt in criminal actions whether by the

trial court or jury shall be set aside if the evidence is insufficient to support the

findings by the trier of fact beyond a reasonable doubt.” See also Matthews, 805

S.W.2d at 780.

                                              -6-
         Initially, Appella nt claims that the evid ence is in sufficient to s upport his

conviction for felony evading arrest because there was no evidence that he crossed

a “public” street during the chase. We disagree. A review of the record indicates

that there is evide nce b y which a ration al jury co uld conclude that at least part of the

vehicle chase occurred on a street, road, alley, or highwa y. When Officer Johnson

was asked whether Appellant had crossed any streets during the police chase, he

responded, “Any streets? Well, he crossed Brookm ede D rive, the stop sign here .”

Further, Officer Lyles testified that during the chase, Appellant went “through the

intersection there at Brookmede and over into Shady Brook Mall park ing lot.” In fact,

Appellant himself admitted that he crossed a road during the chase and he

spec ifically referred to Brookmede Drive as “the street between [Wal-Mart] and the

mall.” A rational jury could conclude from this evidence that Appellant had crossed

a public street during his flight from the police.2



         Howeve r, we hold that the evidence was insufficient to support the conviction

for a Class D felony for another reason. In order to commit Class D felony evading

arrest un der sec tion 39-1 6-603(b ), a perso n mus t “create[] a risk of death or injury

to innocent bystanders or other third parties,” “while operating a motor vehicle on any

street, road, alley or highway.” Tenn. C ode Ann . § 39-16-603 (b)(1), (3) (1997).

There is no evide nce in the record th at Appe llant create d any risk o f death or injury

to a third person while he was driving acros s Broo kme de Dr ive. In fac t, the on ly


         2
          The State contends that Tennessee Code Annotated section 39-16-602(b) does not require the
evad ing of police to tak e plac e on a “pub lic” roa d, bu t only on “any s treet , road , alley or highw ay in this
state.” We disagree. Under the State’s interpretation, this statute would encompass evading of police
while driving a moto r vehicle on any private d riveway, par king lot, or a ny other pro perty desig ned to
acc om mo date the o pera tion o f mo tor ve hicles . If that had b een wha t the le gislat ure in tend ed, it w ould
have us ed langu age sim ilar to that of T ennes see C ode An notated s ection 55 -10-401 , which pro hibits
driving under the influence of an intoxicant “on any of the public roads and highways of the state, or on any
streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house
com plex, or an y other prem ises wh ich is gene rally frequen ted by the pu blic at large.” T enn. Co de Ann . §
55-1 0-40 1(a) (199 8). In a dditio n, be cau se s ectio n 39- 16-6 03 is a crim inal st atute , it mu st be strictly
constru ed in favo r of App ellant. See State v. Levandowski, 955 S.W .2d 603, 605 (Tenn. 1997 ).

                                                        -7-
evidence about whether third persons were even on Brookmede Drive came from

Appe llant, who testified that he s lowed dow n enough to see that no ca rs were

coming before he crossed Brookm ede D rive. Although we agree with the State that

there was am ple eviden ce that A ppellant created a risk a risk of inju ry or death to

third persons when he drove through the crowded parking lots, that is not what the

statute req uires.



       Because there was no evidence that Appellant created a risk of injury or death

to third parties while he was driving across Brookmede Drive, we hold that

Appe llant’s conviction for Class D felony evading arrest must be reversed and the

charge dismissed. However, in finding Appellant guilty of Class D felony evading

arrest, the jury necessarily found that the elements of Class E felony evading arrest

were satisfied: that Appellant operated a moto r vehicle on a st reet wh ile inten tionally

fleeing a police o fficer after rec eiving a sig nal from the police officer to stop his

vehicle. See Tenn. C ode Ann . § 39-16-603 (b)(1) (1997). Indee d, a rational jury

could conclude, from the evidence that Officer Johnson activated his emergency

lights when he approa ched Ap pellant in the W al-Mart parking lot, that Appellant was

intentio nally fleeing a police officer who had given him a signal to stop when

Appellant drove his vehicle across Brookmede Drive. Thus, the evidence was

sufficient to support a co nviction for Class E felony evading arrest.          Howeve r,

because of the erro r discuss ed in Pa rt IV, infra, we hold that this case must be

remanded for a new trial for that offense.



      IV.   FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES




                                            -8-
       Appellant contends that the trial court committed reversible error when it failed

to instruct the jury as to the lesser included offenses of Class D felony evading

arrest. Even though we hold that Appellant’s conviction for Class D felony evading

arrest must be reversed, we must address this issue because the evidence was

sufficient to s upport a conviction for Class E felony e vading a rrest.



       Tennessee Code Annotated section 40-18-110(a) provides that a trial judge

must charge the jury with all lesser grades or classes of an offense supported by the

evidence, without any request on the part of the defendant to do so. See also State

v. Trusty, 919 S.W .2d 305, 311 (Tenn. 199 6); State v. Harbison, 704 S.W.2d 314,

319 (Tenn. 1986). Failure to charge such lesser offens e(s) de nies a defen dant h is

constitutional right to trial by a jury if there are any fac ts “sus ceptib le of infe rring gu ilt

on any lesser included offense or offens es.” State v. Wright, 618 S.W.2d 310, 315

(Tenn. Crim. App. 1981). This requirement is avo ided o nly whe n the re cord is

devoid of evidence to support an inference of guilt of the lesse r offense . State v.

Stephenson, 878 S.W .2d 530, 550 (Tenn. 199 4).



       In this case, the proof clearly established that Appellant committed the offense

of misdemeanor evading arrest. In fact, Appellant admitted that after he crossed

Brookmede Drive, he continued to flee even though he had seen the flashing blue

lights on Officer Den ton’s vehic le and he knew th at the polic e were tryin g to

apprehend him.         Ho wever, as previously discussed, whether Appellant had

committed Class E felony evading arrest depends on whether he knew that he had

received a signal from the police to stop his vehicle before he crossed Brookmede

Drive. Indeed, Appellant denied that he had seen the strobe lights on Officer

John son’s unmarked vehicle and he claimed that he did not know that Johnson and

                                                -9-
Lyle were police officers because they were wearing plain clothes and he could not

see the badges they were wearing around their necks. Appellant claimed that he

fled from Officers Johnson and Lyle because he could see that Lyle had a gun and

he believed that the two men were tr ying to ro b him . Ther efore, th e reco rd clea rly

contained evidence that wo uld support an inference of guilt for the lesser included

offense of misdemeanor evading arrest. By failing to charge the jury on the lesser

included offense, the trial court deprived Appellant of his right to have the jury

determine his guilt. As this Court stated in State v. Boyce,

       “However plain it may be to the mind of the Court that one certain offense has
       been committed and none other, he must not confine h imself in h is charge to
       that offense. When he does so he invades the province of the jury, whose
       peculiar duty it is to ascertain the grade of the offense. However clear it may
       be, the Court should never decide the facts, but must leave them
       unem barrass ed to the ju ry.”

920 S.W.2d 224, 227 (Tenn. Crim. App. 1995) (quoting Poole v. State, 61 Tenn.

288, 294 (1872)). Thus, the trial court clearly erred whe n it failed to instruct the jury

on the lesser included offenses.




          V. FAILURE TO INSTRUCT ON THE STATUTORY DEFENSE




       Appellant contends that the trial court erred wh en it failed to instruct the jury

that “[i]t is a defens e to prosec ution [for eva ding arre st] that the attempted arrest was

unlawfu l.” Tenn . Cod e Ann . § 39-1 6-603 (a)(2), (b )(2) (19 97). W e disa gree. T his

Court has state d that the tria l court nee d not instru ct the jury regarding a defense

unless that defen se is fairly raise d by the p roof. State v. Shrops hire, 874 S.W.2d


                                            -10-
634, 639 (Tenn. Crim. App. 1993).          Appellant contends that because he was

arrested for possession of marijuana and the jury found him not guilty of possession

of marijuana by reason of entrapment, his arrest w as ne cess arily unla wful.

Howeve r, Appellant cites no authority for the proposition tha t an acquittal for a

charged offense means that the arrest for that offense was unlawful. Indeed, that

is not the standard. The lawfulness of an a rrest de pend s on w hethe r it is founded

upon probable cause to believe that the person arrested has committed a criminal

offense. State v. Downey, 945 S.W .2d 102 , 106 (T enn. 19 97). “Whether proba ble

cause is present depends upon whether the facts and circumstance s and reliable

information known to the police office r at the time of the arre st ‘were su fficient to

warrant a prudent man in believing that the [individual] had committed an offe nse.’”

Id. (quoting Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142

(1964)). In this case, App ellant paid $2,000 to Officer Beech for t wo pounds of

marijuana in a transaction that was overheard through listening devices by the other

officers who su bsequ ently purs ued an d arreste d Appe llant. Thus, the arresting

officers clearly had probable cause to believe that Appellant had committed a

criminal o ffense. T his issue is without m erit.



VI. CONVICTIONS FOR BOTH EVADING ARREST AND RECKLESS DRIVING




      Appellant contends that his convictions for both Class D felony evading arrest

and reckless driving cannot be sustained because they arose out of the same set of

circumstances.     We agree that an accused cannot be convicted of these two

offenses for the same course of conduct. Indeed, this Court stated in State v. Kerry

D. Garfin kle, No. 01C01-9611-CC-00484, 1997 WL 709477, at *4-5 (Tenn. Crim.

App., Nashville, Nov. 7, 1997), that convictions for both reckless driving and Class

                                           -11-
D felony evading arrest for the same conduct violate principles of due process and

doub le jeopardy. However, because we have reversed Appellant’s conviction for

Class D felon y evad ing arre st, App ellant’s convic tion for re ckless driving mus t be

affirmed. Beca use th e State could decide not to prosecute Appellant or a jury could

acqu it Appellant of Class E or misdemeano r evading arrest, we need not decide

whether a conviction for both reckless driving and either of those offenses would also

violate principles of due process an d double jeop ardy.



                                 VII. CONCLUSION




      Because we find that the evidenc e was insuffic ient to s uppo rt App ellant’s

conviction for Class D felony evading arrest, the conviction for that offen se is

reversed and the charge is dismisse d. Beca use the trial court erre d in failing to

instruct the jury on the lesser included offenses, Appellant is entitled to a new trial

for the offens e of Clas s E felon y or misd emea nor evad ing arres t. In all other

respects, the judgment of the trial court is affirmed.

                                  ____________________________________
                                  JERRY L. SMITH, JUDGE


CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




                                          -12-
