         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned in Briefs October 3, 2000

            STATE OF TENNESSEE v. GEORGE OSBORNE WADE

                   Direct Appeal from the Circuit Court for Obion County
                           No. 9-67 William B. Acree, Jr., Judge



                   No. W1999-01607-CCA-R3-CD - Filed October 19, 2001



         An Obion County jury convicted the defendant for one count of felony evasion of arrest, one
count of felony reckless endangerment, and one count of misdemeanor evasion of arrest. The trial
court sentenced the defendant to six (6) years as a Range II multiple offender for his conviction for
felony evasion of arrest, which was merged with his conviction for reckless endangerment. The trial
court also sentenced the defendant to eleven (11) months and twenty-nine (29) days for his
conviction for misdemeanor evasion of arrest, to be served concurrently with his sentence for his
felony conviction. The defendant filed for a motion for new trial, and the trial court held a hearing
on that motion on the same date that it held the sentencing hearing. Subsequently, the defendant
filed a second motion for new trial, which the court treated as an amended motion for new trial. On
appeal, the defendant challenges the sufficiency of the evidence at trial, his sentence, and the trial
court’s refusal to grant his motion for new trial based on the threatening statements made to jurors
during a break in their deliberations. After reviewing the record, we find that none of these claims
merit relief and therefore affirm the defendant’s conviction.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN, JJ, joined.

Steve McEwen, Mountain City, Tennessee, (on appeal); and Joseph P. Atnip, District Public
Defender, Dresden, Tennessee, (at trial), for appellant, George Osborne Wade.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James David Kendall, Assistant District
Attorney, for appellee, State of Tennessee.

                                             OPINION
                                         Factual Background

        The defendant, George Wade, and his acquaintance, “Ed,” were driving from Trenton,
Tennessee to Union City, Tennessee. Apparently Ed was interested in purchasing the defendant’s
car and therefore asked to accompany the defendant on his trip to Union City. The defendant testified
that he and Ed are approximately the same height and share similar coloring. On the return trip from
Union City back to Trenton, the defendant testified that he allowed Ed to drive his automobile. A
Union City police officer spotted the defendant’s car, which he recognized, and followed it. The
officer testified that the driver of the defendant’s vehicle made three turns without signaling.
However, the defendant testified that the driver of his vehicle, Ed, made those turns under his
instruction and signaled each time. After witnessing the driver make these turns, the officer turned
on his blue lights and siren. The driver of the defendant’s car began to pull over, but subsequently
sped off, leading the police officer on a high speed chase.
         The officer testified that after the driver initially sped off, he made a right turn, at which time
he looked directly at the officer for one or two seconds. Based on that observation, the officer
identified the defendant as the driver of the vehicle. He also noted that another black male was
present in the automobile, sitting in the passenger seat. After the driver made that right turn, he led
the officer on a chase for several blocks, traveling fifty to sixty miles per hour in both a twenty mile
per hour speed zone and a fifteen mile per hour school speed zone, running several stop signs, and
almost hitting another automobile at one intersection. The officer eventually stopped his pursuit of
the defendant, fearing that further chase would create an unreasonable risk of injury.
         The driver of the defendant’s vehicle eventually pulled into a backyard. Once the automobile
stopped, the defendant and his acquaintance, Ed, fled on foot. While the police officers never
discovered Ed, they did discover the defendant, who was hiding from the officers behind a tree. The
officer who discovered the defendant found a key next to the defendant’s person. The officer
successfully used this key to start the ignition of the defendant’s vehicle. Subsequently, the officers
arrested the defendant for evasion of arrest and reckless driving, and he was tried before a jury on
those charges.
         When the jurors broke for lunch during their deliberations, an unidentified person told the
jurors that “You’d better not find him guilty, you mother fuckers. You don’t know what you’re
doing.” Nine of the twelve jurors heard this statement. The jury subsequently convicted the
defendant. After the jury returned its verdict, defense counsel inquired of the trial court as to
whether the jury members should be questioned as to the effect, if any, this statement had on them.
The trial court declined to question the jurors at that time, but told the panel that they may be brought
back for a later hearing to determine the effect that the statement may have had on them. However,
the defendant never subpoenaed any jury member to the motion for new trial, and no proof was ever
put before the court as to what effect this remark may have had on them.


                                      Sufficiency of the Evidence

       The defendant first argues that the evidence presented at trial was insufficient to support his
convictions for felony evasion of arrest. When an accused challenges the sufficiency of the


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convicting evidence, this court must review the record to determine if the evidence adduced during
the trial was sufficient "to support the finding of the trier of fact of guilt beyond a reasonable doubt."
Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In determining the sufficiency of the evidence, this
court does not re-weigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Nor may this court substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). This court is required
to afford the state the strongest legitimate view of the evidence contained in the record, as well as
all reasonable and legitimate inferences that may be drawn from the evidence. State v. Herrod, 754
S.W.2d 627, 632 (Tenn. Crim. App. 1988).
         Questions concerning the credibility of the witnesses, the weight and value to be given the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this
court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the state and resolves all
conflicts in favor of the theory of the state. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption
of guilt, the accused has the burden on appeal of illustrating why the evidence is insufficient to
support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
This court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts
contained in the record and the inferences that may be drawn from the facts are insufficient, as a
matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt.
Matthews, 805 S.W.2d at 780.
         The defendant argues that the evidence presented at trial was insufficient to establish the
elements of felony evasion of arrest, because the evidence was insufficient to establish that the
defendant was operating the vehicle when the driver of the defendant’s vehicle evaded the pursuing
police officer. However, the state presented adequate evidence at trial upon which a rational trier
of fact could have found the defendant to have been the driver of the automobile at the time that the
crimes were committed. Specifically, the officer who pursued the defendant positively identified
the defendant as the driver of the vehicle based upon a brief view of the defendant’s face.
Additionally, the police officer who discovered the defendant found a key next to his person that
started the ignition of his vehicle. This evidence is sufficient for a rational trier of fact to find that
the defendant was indeed driving his vehicle, and therefore we will not disturb the jury’s verdict.


                  Extraneous Prejudicial Information Considered by the Jury

        The defendant claims that because the jurors in the instant case were threatened during a
break in their deliberations, they were exposed to extraneous prejudicial information that improperly
influenced them, therefore entitling the defendant to a new trial. The threat at issue was made by an
unknown person to the jurors while they were on break for lunch. This unknown person said,
“You’d better not find him guilty, you mother fuckers. You don’t know what you’re doing.” Nine
jurors heard this statement.


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         The state argues that this issue is not properly before the court because the defendant failed
to object to the guilty verdict on the basis that it was a product of this extraneous prejudicial
information or move for a mistrial on that basis. However, regardless of whether the defendant
waived the issue for appeal, the issue has no merit because the defendant has failed to prove that the
extraneous statement was prejudicial to him.
         When a jury has been exposed to prejudicial extraneous information, a rebuttable
presumption of prejudices arises, and the burden shifts to the prosecution to either explain the
conduct or prove that the exposure was harmless. State v. Blackwell, 664 S.W.2d 686, 689 (Tenn.
1984). However, in cases involving non-sequestered juries, the burden does not shift to the state
until the defendant has proven the exposure to be prejudicial.1 See State v. Parchman, 973 S.W.2d
607, 612 (Tenn. Crim. App. 1997) (stating that “the threshold question is whether the statement
communicated to the jury was prejudicial to the [d]efendant”); State v. Meade, 942 S.W.2d 561
(Tenn. Crim. App. 1996); State v. Clinton, 754 S.W.2d 100 (Tenn. Crim. App. 1988). As the instant
case involves a non-sequestered jury, the defendant has the burden of proving prejudice.
         In his brief, the defendant argues that the statement made to the jurors by the unknown party
was clearly prejudicial because it was a threat against those jurors, unambiguously threatening them
if they found the defendant guilty. Additionally, this threat was heard by nine of the twelve jurors.
However, if the jurors were cowed by this threat, it seems that they would have acquitted the
defendant, not convicted him. The defendant makes no argument that the threat may have angered
the jurors toward the defendant, making it more likely that they voted to convict him. Indeed,
because the defendant did not put on any juror at the new trial motion to testify as to the effect, if
any, that the remarks may have had, the defendant has failed to carry his initial burden of showing
prejudice.2 Because the defendant has failed to meet this requisite burden, we find that this issue
lacks merit.


                                                Sentencing Challenge

        The defendant next challenges the sentence imposed by the trial court, arguing that he should
have received a lesser sentence and should serve at least a portion of his sentence on probation or
in the Community Corrections program. This court's review of the sentence imposed by the trial
court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption is conditioned upon an affirmative showing in the record that the trial judge considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no



         1
                   Cf. State v. Furlough, 797 S.W.2d 631 (Tenn. Crim. App. 1990) (indicating that if the jury is
sequestered and a juror has communicated with a non-juro r, the burd en imm ediately sh ifts to the pro secution to
demo nstrate that the jury was not preju diced by the com munic ation).
         2
                    Because this issue involves the question of whether an outside influence was brought to bear upon
any juror, it was proper to call the jurors to testify as to wha t effect the thre at may h ave had on them . See Tenn. R. Evid.
606.

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presumption of correctness, and our review is simply de novo. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997).
        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d) (1997) Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated Section 40-35-210, to consider the following
factors in sentencing:
        (1) the evidence, if any, received at the trial and the sentencing hearing;
        (2) the presentence 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 the enhancement and
        mitigating factors in §§ 40-35-113 and 40-35-114; and
        (6) any statement the defendant wishes to make in his own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b) (Supp. 2000).
        An especially mitigated or standard offender convicted of a Class C, D or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6) (1997). A trial court must presume that a defendant who
is sentenced to eight years or less and who is not an offender for whom incarceration is a priority is
subject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993).
It is further presumed that a sentence other than incarceration would result in successful
rehabilitation of the defendant unless rebutted by sufficient evidence in the record. Id. at 380.
        However, the presumption that a defendant is a suitable candidate for alternative sentencing
or probation may be rebutted by evidence to the contrary. Such evidence may include the following
sentencing considerations:
        (A) Confinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;
        (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
        confinement is particularly suited to provide an effective deterrence to others likely
        to commit similar offenses; or
        (C) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (1997). A court may also apply the mitigating and enhancement
factors set forth in Sections 40-35-113 and -114, as they are relevant to the Section 40-35-103
considerations. Id. § 40-35-210(b)(5). Finally, a court should consider the defendant’s potential or
lack of potential for rehabilitation when determining whether to grant an alternative sentence. Id.
§ 40-35-103(5).
        Our review of the instant case is de novo with a presumption of correctness, as the record
reflects that the trial court properly and carefully considered the sentencing principles and all relevant
facts and circumstances. Specifically, the court examined the general sentencing principles,
enumerated the applicable enhancing factors, found that no mitigating factors applied, and addressed
the appropriateness of alternative sentencing. The defendant does not challenge the trial court’s


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finding of the applicability of two enhancing factors, namely the defendant’s prior criminal history
and his history of unwillingness to comply with the conditions of measures less restrictive than
confinement. Rather, the defendant argues that the trial court afforded these factors too much
weight, as the defendant’s convictions were at least six years old, and the defendant completed high
school and attended two semesters of college. However, because the defendant has not proven that
the trial court erred in its application of the relevant enhancing factors, the trial court is presumed
to have afforded these factors an appropriate weight, and therefore this court will not re-weigh the
enhancing factors and accordingly impose a different sentence. Moreover, there is sufficient
evidence in the trial court’s findings of fact to support enhancing the defendant’s sentence by two
years, one year for each enhancing factor.
         The defendant also alleges that the trial court should have allowed him to serve at least a
portion of his sentence on probation or alternative sentencing, as he is presumed a favorable
candidate for alternative sentencing per Tenn. Code Ann. § 40-35-102(6) (1997). However, because,
as the defendant concedes, the trial court properly classified him as a Range II offender, this statutory
presumption is not applicable to him. Moreover, the trial court correctly found that the defendant
was not a suitable candidate for alternative sentencing or probation, as the defendant has failed to
comply with measures less restrictive than confinement, having committed several crimes while
serving a suspended sentence. Therefore, after conducting this de novo review and affording the trial
court’s sentence a presumption of correctness, we conclude that the trial court properly sentenced
the defendant, and therefore the defendant’s sentencing challenge lacks merit.


                                              Conclusion

      For the forgoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.


                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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