         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JUNE SESSION, 1997


STATE OF TENNESSEE,           )
                                                               FILED
                                   C.C.A. NO. 02C01-9702-CC-00070
                              )                         September 15, 1997
      Appellee,               )
                              )                     Cecil Crowson, Jr.
                              )    LAUDERDALE COUNTY Appellate C ourt Clerk
VS.                           )
                              )    HON. JOSEPH H. WALKER
RONALD MITCHELL,              )    JUDGE
                              )
      Appellant.              )    (Felony Drugs, Reckless Driving)


               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF LAUDERDALE COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

GARY F. ANTRICAN                   JOHN KNOX W ALKUP
District Public Defender           Attorney General and Reporter

JULIE PILLOW                       ELIZABETH T. RYAN
Assistant Public Defender          Assistant Attorney General
131-A Industrial Road              450 James Robertson Parkway
Covington, TN 38019                Nashville, TN 37243-0493

                                   ELIZABETH RICE
                                   District Attorney General

                                   MARK DAVIDSON
                                   Assistant District Attorney General
                                   Criminal Justice Building
                                   Post Office Box 509
                                   Ripley, TN 38063




OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

DAVID H. WELLES, JUDGE
                                OPINION


      The Defendant, Ronald C. Mitchell, appeals as of right pursuant to Rule 3,

Tennessee Rules of Appellate Procedure. He was convicted by a Lauderdale

County jury of possession of over .5 grams of cocaine with intent to deliver,

driving on a revoked license, reckless driving and evading arrest. He was

sentenced as a Range II offender to 14 years for the conviction for possession

of cocaine, 11 months and 29 days for evading arrest, 6 months for driving on a

revoked license, and 6 months for reckless driving. All sentences were ordered

to run concurrently with each other but consecutively to sentences the Defendant

was serving for prior convictions. The Defendant challenges his conviction for

possession of cocaine over .5 grams, contending (1) That the trial court erred by

allowing testimony regarding a pager and cash seized from his person during his

arrest; and (2) that the trial court erred in allowing a witness to testify using his

notes. The Defendant also asserts that the evidence was insufficient to support

the convictions for possession of cocaine and reckless driving. We affirm the

judgment in part and reverse and dismiss the conviction for reckless driving.



      The State presented the following evidence at trial. On the night of April

3, 1996, Officer Steve Jackson of the Henning Police Department set up a radar

patrol on Highway 209, a two-lane road in Lauderdale County. The officer was

facing northbound and observed the Defendant’s vehicle traveling southbound

on the highway. The vehicle appeared to be moving at a high rate of speed and

it passed another vehicle. The radar reflected that the Defendant’s vehicle was



                                         -2-
traveling at seventy-seven miles per hour. The officer turned on his emergency

lights and followed the Defendant in order to pull him over. The Defendant was

driving a 1975 Buick Electra with a tag number of 126-KTW . The officer followed

the Defendant only a short distance from where he had set up his radar. The

Defendant pulled into a driveway of a private home.         The officer saw the

Defendant leave the driver’s side of the vehicle and flee on foot heading north.



      Officer Jackson chased the Defendant on foot through a wooded area.

The officer called for backup. He had briefly lost sight of the Defendant when he

observed him in a creek bed. When the officer went to the area, he saw the

Defendant lying on the ground on his back on an embankment. The officer

approached the Defendant.       He ordered the Defendant to place his hands

behind his neck and to roll over onto his stomach. Instead, the Defendant got up

and walked towards the officer. The officer continued to order the Defendant to

lie down and when he was around six feet away, Officer Jackson sprayed the

Defendant with pepper spray.        The Defendant then complied and was

handcuffed.



      Backup officers arrived at the scene and assisted with the arrest. Officer

Jackson conducted a pat-down search and discovered in the Defendant’s shirt

pocket what he described as a clear plastic bag containing an off-white chunky

substance that appeared to be crack cocaine.        He also seized a pager and

$203.72 in cash. The Defendant was agitated and upset and appeared to resist

being taken back to the cruiser. The Defendant’s girlfriend, Felicia Sanders, was

also present after the Defendant was arrested. It was determ ined that the vehicle

the Defendant was driving belonged to Ms. Sanders. The officers conducted a

                                       -3-
search of the vehicle, which revealed no other evidence. The Defendant was

transported to the Lauderdale County Justice Center. The substance in the

plastic bag was field tested, revealing it to be cocaine. The cocaine was shipped

to the T.B.I. laboratory in Jackson, Tennessee to be tested. The T.B.I. confirmed

that the substance was cocaine in the amount of 1.1 grams.



      The Defendant presented evidence that he was out that night on an errand

for his girlfriend. He was at her house that evening. Ms. Sanders testified that

she sent the Defendant to W al-Mart to get some diapers for their baby. Later that

evening, Sanders heard the Defendant pull into the driveway, but she did not see

any emergency lights indicating that a police vehicle was present. She went

outside and saw her vehicle, which the Defendant had been driving, in the

driveway with the door open and the lights on. She took the diapers out, turned

off the lights and locked the doors. After a few minutes, she saw the Defendant

and the officers.



      The Defendant testified at trial. He stated that he went to W al-Mart to get

diapers between 10:00 and 10:30. He returned on Highway 209 and saw a police

car behind him. He did not see emergency lights being displayed. The cruiser

did not enter the driveway behind him when he turned, but turned around in the

next driveway. The Defendant asserted that he thought it was Officer Jackson

so he ran because he knew his license was canceled and stated that, in the past,

Officer Jackson had stopped him for no reason and threatened him. He ran into

a wooded area near the house. After reaching the creek bed, he noticed the

lights from several flashlights and felt relieved that other officers were there. He

began walking toward Officer Jackson to turn himself in. He then sat down

                                        -4-
because he was tired. The Defendant also testified that Officer Jackson had his

gun drawn and sprayed the pepper spray while the Defendant was lying on the

ground. He was handcuffed and led up the embankm ent, but could not see

because of the spray.



      The Defendant asserted that he was never searched and did not possess

drugs. He admitted to having a pager so his girlfriend could reach him and he

had approximately $200 earned from cutting hair, mowing lawns and washing

cars. He also noted that he could not have been driving at seventy-seven miles

per hour and still turn into the driveway.



      The Defendant was charged with possession of cocaine over .5 gram s with

intent to deliver, driving on a revoked license, evading arrest, reckless driving and

possession of drug paraphernalia.        The State later dropped the charge for

possession of drug paraphernalia. The Defendant was tried and a jury found him

guilty on all counts.



      In his first issue for our review, the Defendant contends that the trial court

erred by admitting Officer Jackson’s testimony regarding a pager and cash

seized from the Defendant’s person during his arrest. He asserts that the State

failed to provide notice of this evidence prior to trial and this failure constitutes a

violation of Rule 16 of the Tennessee Rules of Criminal Procedure.           The trial

court issued a pretrial order on June 4, 1996, ordering discovery pursuant to Rule

16. In addition, the Defendant filed a pretrial motion requesting notice of the

State’s intention to use evidence that would be a subject for suppression

pursuant to Rule 12(d)(2) of the Tennessee Rules of Criminal Procedure. The

                                          -5-
State gave the Defendant no notice of the existence of the pager or the cash as

evidence prior to the witness’ testimony.



      Rule 16(a)(1)(C) provides that upon the defendant’s request, the State

shall allow inspection and copying or photographing of “books, papers,

documents, photographs, tangible objects which are within the possession,

custody or control of the State, and which are material to the preparation of the

defendant’s defense or are intended for use by the State as evidence in chief at

the trial, or were obtained from or belong to the defendant.” Tenn. R. Crim. P.

16(a)(1)(C). Clearly, although the State had not intended to use the pager and

cash in its case in chief when defense counsel made the request, the State was

compelled under Rule 16(a)(1)(C) to provide them to the Defendant as “material

to the preparation of the defendant’s defense” or simply because they were

“obtained from or belonged” to the Defendant. Therefore, we find that the failure

to disclose or produce the evidence in question was a Rule 16 violation.

Moreover, the trial court erred by simply overruling the Defendant’s objection

without addressing the discovery violation.



      The State counters that the failure to provide notice to the Defendant

occurred because of a misunderstanding. The State alleges that the information

was provided in the list of inventory on the warrant which was returned to the

Defendant. Also, the State was under the impression that the pager and cash

were discussed at the preliminary hearing, although the State now concedes that

no such evidence exists in that record. This does not excuse the State’s failure

to comply because the burden is on the State, regardless of what it thinks the

Defendant is aware of, to assure that discovery is provided.

                                       -6-
      The Defendant asserts that exclusion of the evidence is now the only

remedy available to ensure a fair trial. However, prohibiting the introduction of

evidence is not the exclusive means to remedy failure to comply with a Rule 16

violation. Considering that the failure to produce the pager and cash was a

violation of Rule 16, the trial court had the discretion to order whatever remedy

that was just under the circumstances. Tenn. R. Crim. P 16(d)(2). This includes

a brief continuance to conduct a suppression hearing to determine the

adm issibility of the evidence or to allow the Defendant time to inspect the

evidence and formulate a responsive strategy. The Defendant has asserted that

the State’s failure to provide the evidence was prejudicial to his case because the

admission of testimony regarding the pager and cash established a required

element of intent to sell the cocaine.     A defendant must demonstrate actual

prejudice from the State’s failure to provide evidence pursuant to a discovery

request. State v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981); State

v. Briley, 619 S.W .2d 149, 152 (Tenn. Crim. App. 1981). In considering discovery

violations, the important inquiry is what prejudice has resulted from the discovery

violation, not simply the prejudicial effect the evidence, otherwise admissible, has

on the issue of a defendant’s guilt. See, e.g., State v. Cottrell, 868 S.W .2d 673,

677 (Tenn. Crim. App. 1992); Garland, 617 S.W .2d at 186.




      At trial, although defense counsel objected to the witness’ testimony, there

was no request for Rule 16 sanctions, such as a continuance. See State v.

Baker, 751 S.W.2d 154, 160 (Tenn. Crim. App. 1987). Furthermore, we cannot

speculate about the merits of a motion to suppress the pager and the cash. The

Defendant has not provided even a suggestion that the evidence was obtained

                                         -7-
from an illegal search or that the evidence was in any way inadmissible. Here,

we cannot conclude that the trial judge abused his discretion by admitting the

evidence. After considering the entire record in the case sub judice, we are

satisfied that any error made concerning the discovery violation was harmless.

T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).



         In his second issue, the Defendant contends that the trial court erred by

allowing a witness to retain his notes while testifying at trial. Officer Jackson

testified at trial regarding the Defendant’s actions concerning the charges against

the Defendant. The record reflects that, as Officer Jackson began testifying

regarding April 3, 1996, defense counsel objected that he appeared to be reading

from his notes. Specifically, counsel charged that a proper foundation had not

been established to support the witness’ testifying from his notes. The trial court

overruled the objection and instructed the witness to use the notes to refresh his

memory. The State offered that defense counsel could examine the document

and cross-examine the witness regarding its contents. The trial court clarified

that the witness could use the notes to refresh his memory only in response to

questions, but allowed him to keep the notes with him while on the stand. The

Defendant now argues that the trial court was confused as to the applicable law

and its decision to allow the witness to retain his notes amounts to prejudicial

error.



         The rules of evidence provide that "hearsay is not admissible except as

provided by these rules or otherwise by law." Tenn. R. Evid. 802. Hearsay is

defined as "a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted."

                                         -8-
Tenn. R. Evid. 801(c). There are, of course, numerous exceptions to the general

rule of exclusion of hearsay. See Tenn. R. Evid. 803(1.1) through (25), 804, and

805. The exception for Recorded Recollection under Rule 803(5) is as follows:



             (5) Recorded Recollection. A memorandum or record concerning
      a matter about which a witness once had knowledge but now has
      insufficient recollection to enable the witness to testify fully and
      accurately, shown to have been made or adopted by the witness when
      the matter was fresh in the witness's memory and to reflect that
      knowledge correctly. If admitted, the memorandum or record may be
      read into evidence but may not itself be received as an exhibit unless
      offered by an adverse party.


Recorded Recollection is used in lieu of a witness’ testimony when that witness

cannot recall the event in any meaningful way. Neil P. Cohen et. al., Tennessee

Law of Evidence § 803(5).1 (3d ed. 1995).



      A writing used to refresh one’s memory is not a hearsay exception, but

rather a means to facilitate a witness’ testimony when he or she cannot

completely remember the details of an event. See Tenn. R. Evid. 612. W hen

a witness’ memory is refreshed, the adverse party may inspect the writing, cross-

examine the witness and introduce portions into evidence. Tenn. R. Evid. 612.

The Advisory Commission Comments to Rule 612 suggest guidelines by which

a witness may refresh her memory: "The direct examiner should lay a foundation

for necessity, show the witness the writing, take back the writing, and ask the

witness to testify from refreshed memory."



      In the case at bar, Officer Jackson began by reading his notes and defense

counsel objected that a proper foundation had not been established, i.e. that the

witness could not remem ber. He continued to testify from his notes in response

                                       -9-
to questions and was permitted to keep them with him on the stand. He did say,

at times, that he would have to refer to his notes. Yet, because the notes were

not taken back, there appears to have been error by the manner in which they

were used. See State v. Dishman, 915 S.W.2d 458, 461 (Tenn. Crim. App.

1995). W e believe, however, any error was clearly harmless in the context of the

entire record.



      In his last issue, the Defendant contends that the evidence was insufficient

to support his convictions for possession of cocaine with intent to deliver and

reckless driving. When an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). 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). Nor may this court reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978).




      A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W .2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom . Cabbage, 571 S.W .2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

                                        -10-
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); Grace, 493

S.W.2d at 476.



      The Defendant argues that the evidence was insufficient to prove the

essential element of the intent to sell or deliver regarding his possession of

cocaine. The offense of which he was convicted requires that one knowingly

“[p]ossess a controlled substance with intent to manufacture, deliver or sell such

contraband substance.” Tenn. Code Ann. § 39-17-417(a)(4). Possession of

cocaine over .5 gram s is a Class B felony. Tenn. Code Ann. § 39-17-417(c)(1).

Furtherm ore, “[i]t may be inferred from the amount of a controlled substance . .

. along with other relevant facts surrounding the arrest, that the controlled

substance or substances were possessed with the purpose of selling or

otherwise dispensing.” Tenn. Code Ann. § 39-17-419.



      The proof in the record establishes that the cocaine found on the

Defendant was in the amount of 1.1 gram s. It was in the form of one large rock

contained within one plastic bag. The T.B.I. laboratory technician testified that

the 1.1 grams was eleven times the usual amount she tests, although she has

seen greater amounts of cocaine. A pager and over $200 cash was seized

during the arrest.   The Defendant explained that he had the pager so Ms.

Sanders could contact him. He also explained that he earned the cash doing odd

jobs, but that he was not regularly employed at the time of his arrest.



      The jury was permitted to consider both the amount of the cocaine and the

fact that the Defendant had a pager and cash on his person. The circumstances

                                        -11-
surrounding the arrest may carry as much weight as the quantity possessed in

authorizing the jury to draw the inference of intent to sell a controlled substance.

State v. Bledsoe, 626 S.W .2d 468, 469 (Tenn. Crim. App.                1981).    The

possession of a pager and cash simultaneously with a large amount of controlled

substance is such an example. See State v. Robert Lee Moore, C.C.A. No.

02C01-9502-CC-00038, Madison County (Tenn. Crim. App., Jackson, Oct. 4,

1995), perm. to appeal denied (Tenn. 1996); State v. Reginald T. Smith, C.C.A.

No. 02C01-9204-CR-00097, Shelby County (Tenn. Crim. App., Jackson, Feb. 17,

1993).   Likewise, the jury here could have reasonably concluded that the

Defendant possessed the cocaine in question with the intent to sell.



      The Defendant also argues that the evidence was insufficient to convict

him of reckless driving. The applicable statute states that “[a]ny person who

drives any vehicle in willful or wanton disregard for the safety of persons or

property commits reckless driving.” Tenn. Code. Ann. § 55-10-205. A defendant

manifests willful or wanton disregard who willfully breaches a duty in a “heedless

and reckless disregard for another’s rights, with the consciousness that the act

or omission to act may result in injury to another.” State v. W ilkins, 654 S.W .2d

678, 679 (Tenn. 1983)(citing Burgess v. State, 369 S.W .2d 731, 733, 212 Tenn.

315 (1963)). Exceeding the speed limit has been considered reckless driving

under certain circumstances when a defendant drove 120 miles per hour on a

highway with hills and curves. See id..        It is for the trier of fact to determine

whether a defendant’s operation of a vehicle constitutes a willful and wanton act

considering all the circumstances. Id.; see State v. Eddie Jake Mysinger, C.C.A.

No. 314, Greene County (Tenn. Crim. App., Knoxville, Mar. 14, 1990)(the

defendant’s approximate speed was 106 m.p.h. and he crashed into another

                                        -12-
vehicle, killing the occupant);    State v. Rita Marie Russell, C.C.A. No. 158,

Anderson County (Tenn. Crim. App., Knoxville, Apr. 2, 1986)(The defendant

passed four vehicles and forced a vehicle nearly off the road).



      Here, the Defendant was clocked going seventy-seven miles per hour

when the posted speed limit was fifty miles per hour. The roadway was straight

and flat. It was late at night, and he passed another vehicle. Shortly thereafter,

he turned into his girlfriend’s driveway. The primary evidence which could be

considered as reckless driving was driving seventy-seven miles per hour. After

carefully reviewing the evidence in this case in the light most favorable to the

State, we conclude that the evidence is insufficient to support a verdict of guilt for

reckless driving.   Therefore, we reverse and dismiss the charge for reckless

driving.



      Accordingly, the reckless driving conviction is reversed and that charge is

dismissed. In all other respects, the judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE




                                         -13-
CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -14-
