         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs January 6, 2009

                   STATE OF TENNESSEE v. DARRIN BONNER

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 06-06320    W. Otis Higgs, Jr., Judge


                      No. W2007-02409-CCA-R3-CD - Filed July 2, 2009


The Defendant-Appellant, Darrin Bonner (“Bonner”), was convicted by a Shelby County Criminal
Court jury of intentionally evading arrest in a motor vehicle, a Class D felony, and was later
sentenced to six years in confinement. On appeal, Bonner argues that: (1) the evidence was
insufficient to support his conviction; (2) the trial court erred in admitting hearsay testimony; and
(3) the cumulative effect of the errors at trial deprived him of his federal and state constitutional
rights. Following our review, the judgment of the trial court is affirmed.

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

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which ALAN E. GLENN and J. C.
MCLIN , JJ., joined.

Robert W. Jones, Shelby County Public Defender; Phyllis Aluko, Assistant Public Defender,
Memphis, Tennessee (on appeal); Jennifer Johnson and Glenda Adams, Assistant Public Defenders,
Memphis, Tennessee (at trial), for the defendant-appellant, Darrin Bonner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Corliss Shaw, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                           FACTS AND PROCEDURAL HISTORY

        On July 27, 2006, Bonner was indicted by the Shelby County Grand Jury and charged with
intentionally evading arrest in a motor vehicle, theft of property over $10,000 but less than $60,000,
and aggravated assault. Prior to trial, Bonner filed a motion in limine to exclude any statements
regarding the theft of property offense because the victim had not previously appeared or testified
in court. The trial court denied the motion in limine based on the State’s good faith belief that the
victim would be present to testify at trial. Bonner was tried before a Shelby County jury on all of
the above offenses; however, at the conclusion of the State’s proof, the trial court granted Bonner’s
motion for a judgment of acquittal for the theft of property offense because the victim of the theft
did not testify. The jury convicted Bonner of intentionally evading arrest in a motor vehicle but was
unable to reach a verdict for the offense of aggravated assault. Bonner later pled guilty to simple
assault as a lesser included offense to the charge of aggravated assault and received a sentence of 11
months and 29 days, to be served concurrently to the previously imposed six-year term of
imprisonment.

        Trial. Paul Myers, a patrol officer with the Memphis Police Department, testified that on
April 30, 2006, he was involved in a “stolen vehicle [call] that turned into a pursuit.” Officer Myers
stated that he was “backup” in the area of American Way and Lamar Avenue when the subject
vehicle approached, observed the police vehicles, and made a “u-turn” to go in the opposite
direction. Officer Myers testified that the subject vehicle got onto the interstate and when officers
“tr[ied] to catch up with it, it continued going.” Officer Myers stated that he lost sight of the vehicle
when it exited the interstate but he notified other officers by radio of the subject vehicle’s direction.
Officer Myers went to the intersection at Airways Boulevard and Ketchum Street, the area in which
he believed the subject vehicle would be located, and met three other officers. Officer Myers stated
that while they were at the intersection, “a vehicle matching the description of the truck [they] were
looking for pulled up directly behind [his] vehicle.” Officer Myers heard another officer confirm
through dispatch that the tags on this truck were the same as the tags on the truck that had been
reported stolen. One after the other, the officers got out of their vehicles, drew their weapons, and
ordered the suspect out of the truck. When the suspect was ordered to turn the truck off, “[the
suspect] hit the gas, tires spun, smoke went, and [Officer Myers] was right in front of the vehicle,
and [he] had a choice to either stay there and get hit or jump out of the way. [Officer Myers] [wound]
up on top of [his] patrol car.” Officer Myers described the moment that the truck came toward him
as follows:

                That was the longest second and a half of my life if it lasted that long. Fear -
        if running me over was what was needed to happen - or if that was going to happen,
        it didn’t seem to bother anybody but me, in terms of myself and the suspect because
        I was there. Two officers with guns told him to stop. So, striking me was going to
        be in the sequence of events, I don’t think it would have changed anything.

        The subject vehicle “fled past” the officers standing outside their vehicles and another officer
immediately followed it in pursuit. Officer Myers stated that the officers had their lights and sirens
activated on their vehicles during this time, but the suspect refused to stop. The vehicle pursuit
ended at an apartment complex; however, the suspect then fled from the officers on foot. When the
officers ultimately apprehended the suspect, he was lying on the ground with his arms underneath
his body refusing to pull them out. Officer Myers stated that he and another officer had to “forcibly
pull [the suspect’s] hand out from underneath him to cuff him.” Officer Myers identified the suspect
driver in court as the defendant, Darrin Bonner.

        Dexter Craig, another patrol officer with the Memphis Police Department, testified that he
took a vehicle theft report from the victim. Officer Craig testified that the victim had left his cellular
phone in the vehicle, called his cellular phone, and the person who answered the phone agreed to
return the vehicle to the victim at the Garden Inn Hotel in the area of Lamar and American Way. In
all other respects, Officer Craig’s testimony corroborated Officer Myers’ recollection of the April 30,

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2006 event. Additionally, Officer Craig confirmed that all officers involved in the pursuit were
driving their patrol vehicles with lights and sirens activated. He stated the vehicle pursuit lasted
“maybe five to six minutes.” He further testified that he pursued Bonner on foot for approximately
fifty feet after the vehicle chase. During the foot chase, Officer Craig heard Bonner repeatedly say,
“I can’t go back to jail.” When Bonner ultimately stopped, Officer Craig stated that Bonner
positioned himself “in an aggressive stance[, a] boxer’s stance[,] like he wanted to . . . fight [him].”

       On cross-examination, Officer Craig clarified that a different officer had been called out to
respond to the same vehicle theft report earlier in the day but was unable to make a report.

        James Oliver, another patrolman with the Memphis Police Department, was also involved in
the vehicle pursuit and testified consistently with Officers Myers and Craig. However, Officer Oliver
stated he only had “a quick glimpse of [Bonner]” and only knew that the driver “was a young male
black with long dreads.”

       Mike Schafer, a detective with the Memphis Police Department, testified that following
Bonner’s arrest, Bonner waived his Miranda rights and provided a statement. The statement was
admitted into evidence as an exhibit and read to the jury. Bonner stated, in pertinent part, the
following:

       I come down Lamar, and I’m at the light at Lamar and American Way. I’m headed
       in one direction at the light, and I see a squad car headed in the other direction at the
       light. I go up a little bit more. I turned around, hopefully going up to the room. I see
       the squad car move, and it wasn’t time for him to move yet at the light. So, I figured
       I shouldn’t go up there right now because I didn’t want to be accused of the one who
       stole the car. I went back towards my area - Airways and Ketchum - and waited for
       the victim to call back again, I didn’t know what room number he was in. By the
       time I made up my mind to just go up there and just blow the horn, I backed up and
       pulled out. I drove down the street, and there was three squad cars at the corner. One
       pulled up like he was trying to let me by. That’s when the officer whose car was in
       the middle jumped out with his pistol aimed at me. I panicked and drove off.

         Bonner was asked a series of other questions within his statement. When asked if he made
any attempt to “give up,” Bonner replied, “No.” When asked if he observed any squad cars behind
him with blue lights and sirens on during the vehicle pursuit, Bonner replied, “Yes.” Bonner also
admitted that during the entire situation, he knew that he was breaking the law. Bonner explained,
“As far as me running from the police, making the police chase me, yes, I knew that was wrong. It
was breaking the law.” Finally, Bonner admitted that he was aware that he put the officers’ lives and
his life in danger when he refused to stop.

       Bonner testified at trial that he encountered the police near the intersection of Airways and
Ketchum Street on April 30, 2006. While approaching the intersection, he noticed that three patrol
cars were blocking the street. Bonner stated that one of the patrol cars moved as if to allow him to
pass. As Bonner was passing, he heard a knock on his driver’s side widow. He turned around to look

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and noticed an officer pointing his weapon at him and yelling. Bonner stated that he was unable to
understand the officer because his window was up and he was playing music. He stated that “when
I saw the pistol, I panicked and kind of like ducked, and I hit the gas.” Bonner stated that he did not
stop because he was scared, and he never had “a good encounter with the law. The two times [he had]
ever called the law in [his] life, [he was] the one that ended up going to jail.” After Bonner drove to
an apartment complex, he stated that he exited the vehicle, “took about eight or nine steps,” and then
stopped. Bonner stated that he realized that the officers had their emergency lights activated and
were chasing him after about a half of a mile of driving. When asked on cross-examination if he
denied running from the police, Bonner stated, “All I know is the police [were] behind me. No, I
don’t deny it.”

                                              ANALYSIS

        I. Sufficiency of Evidence. Bonner argues that the evidence was insufficient to prove that
he fled or attempted to flee from a lawful arrest. Specifically, Bonner contends that “the police had
no lawful reason to arrest [him]” because the trial court granted his motion for judgment of acquittal
on the theft of property charge. The State argues that the evidence was sufficient to support Bonner’s
conviction.

        When a defendant challenges the sufficiency of the convicting evidence, the standard of
review is “whether, after viewing 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, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e)
(2006) (“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 finding by the trier of fact of guilt beyond a reasonable doubt.”).
This standard applies to convictions based upon direct, circumstantial, or a combination of both direct
and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and all
legitimate or reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, and this court
will not reweigh or reevaluate the evidence. State v. Sutton, 166 S.W.3d 686, 689-90 (Tenn. 2005).
This court has stated that “[a] guilty verdict by the jury, approved by the trial court, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.”
Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also “removes the presumption of
innocence and replaces it with a presumption of guilt, and the defendant has the burden of illustrating
why the evidence is insufficient to support the jury’s verdict.” Id. (citation omitted).

        In this case, Bonner was charged and convicted of the Class D felony offense of evading
arrest. Tennessee Code Annotated § 39-16-603(b) provides the following:

                (b)(1) It 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


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                elude any law enforcement officer, after having received any signal from the
                officer to bring the vehicle to a stop.

                (2) It is a defense to prosecution under this subsection (b) that the attempted
                arrest was unlawful.

                (3) A violation of subsection (b) is a Class E felony unless the flight or attempt
                to elude creates a risk of death or injury to innocent bystanders or other third
                parties, in which case a violation of subsection (b) is a Class D felony.

         Here, Bonner challenges the lawfulness of his arrest for the theft of property offense rather
than the sufficiency of the evidence for the evading arrest conviction. In effect, he does not dispute
that the evidence was sufficient to support his conviction for felony evading arrest. Instead, he claims
that his arrest for theft was unlawful because the victim of the theft did not testify at trial and the
charge was ultimately dismissed. As a result of the dismissal, he argues that “the only testimony
suggesting that [he] did not have permission to be in the vehicle was inadmissible hearsay from police
officers.” The State responds by stating that “this argument is a non-sequitur that betrays a
misunderstanding of fundamental logic.” While we agree with Bonner that Tenn. Code Ann. Section
39-16-603(b)(2) provides a statutory defense to prosecution for felony evading arrest where the
attempted arrest was unlawful, we conclude that he has failed to properly raise the defense.

        The Fourth Amendment to the United States Constitution establishes “[t]he right of the people
to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause. . . .” Article I, section 7 of the Tennessee
Constitution similarly provides that “the people shall be secure in their persons . . . from unreasonable
searches and seizures. . . .” An arrest is therefore unlawful when an officer does not have “probable
cause to believe the person to be arrested has committed [a] crime,” State v. Lewis, 36 S.W.3d 88,
98 (Tenn. Crim. App. 2000), or when the officer does not have reasonable suspicion, supported by
specific and articulable facts, to believe that a crime has been or is about to be committed. Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868 (1968); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
“Probable cause-the higher standard necessary to make a full-scale arrest-means more than bare
suspicion: [It] exists where the facts and circumstances within . . .[the officers’] knowledge, and of
which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man
of reasonable caution in the belief that an offense has been or is being committed.” State v. Day, 263
S.W.3d 891, 902 (Tenn. 2008) (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302
(1949)) (internal quotations omitted). “This determination depends upon ‘whether at that moment the
facts and circumstances within [the officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had
committed or was committing an offense.’” Id. (quoting Goines v. State, 572 S.W.2d 644, 647
(Tenn. 1978) and quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223 (1964)).

       Reasonable suspicion, however, is a less demanding standard than probable cause. State v.
Bridges, 963 S.W.2d 487, 492 (Tenn. 1997). Reasonable suspicion for an investigatory stop will be
found to exist only when the events which preceded the stop would cause an objectively reasonable


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police officer to suspect criminal activity on the part of the individual stopped. State v. Levitt, 73
S.W.3d 159, 172 (Tenn. Crim. App. 2001); State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App.
1996). The likelihood of criminal activity required for reasonable suspicion is not as great as that
required for probable cause, and is “considerably less” than would be needed to satisfy a
preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7 (1989); see also
State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998).

       Unlike a constitutional challenge to an arrest, when a defendant relies upon Tenn. Code Ann.
§ 39-16-603(b)(2) as a defense to felony evading arrest, it must be fairly raised by the proof at trial
and submitted to the jury for its determination. T.C.A. § 39-11-203(a)-(d); see also State v. Reginald
D. Hughes, No. M2003-00543-CCA-R3-CD, 2003 WL 22748463, at *3 (Tenn. Crim. App., at
Nashville, Nov. 21, 2003); State v. Troy Robert Whipple, No. M2004-03047-CCA-R3-CD, 2006 WL
521425, at *6-7 (Tenn. Crim. App., at Nashville, March 3, 2006).

         Generally, challenges to the constitutional validity of a stop, based upon a lack of probable
cause or reasonable suspicion, are made prior to trial by a motion to suppress. Tenn. R. Crim. P.
12(b)(2). There was no such motion filed in this case. Therefore, Bonner relies solely upon the
defense provided by section 39-16-603(b)(2). However, as previously stated, in order to raise this
statutory defense, the lawfulness of the arrest must be challenged in the trial court, fairly raised by
the proof at trial, and submitted to the jury for its determination. See Tenn. R. App. P. 36(a); T.C.A.
§ 39-11-203(a)-(d). Here, Bonner filed a motion in limine to exclude the vehicle report and explained
in his Mirandized statement that he did not want to be accused of stealing the vehicle, neither of
which sufficiently addressed the lawfulness of his arrest. The record further shows that the jury was
not instructed on this issue. Accordingly, we conclude that Bonner did not sufficiently raise section
39-16-602(b)(2) as a defense because there was no proof at trial challenging the lawfulness of the
arrest, and this issue was not presented to the jury.

        Despite Bonner’s failure to properly raise the statutory defense provided by section 39-
602(b)(2), our review of the record shows that the officers were responding to a dispatch report of a
stolen truck when they encountered Bonner. Bonner was driving a truck that fit the description and
bore the same license plate tag number as that of the stolen vehicle. In his reply brief, Bonner cites
State v. James Eric Bradburn, No. 01C01-9712-CC-00568, 1999 WL 632301 (Tenn. Crim. App., at
Nashville, Aug. 19, 1999), and acknowledges that this court has previously held similar vehicle theft
reports as “sufficient to establish probable cause” for an arrest. See, e.g., State v. David W.
Livingston, No. M2004-00086-CCA-R3-CD, 2005 WL 639125, at *13-14, (Tenn. Crim. App. Mar.
15, 2005) rev’d on other grounds, 197 S.W.3d 710 (Tenn. 2006) (rejecting identical challenge to the
lawfulness of the underlying arrest because officers received information third-hand from a dispatcher
who was in turn receiving information from a private citizen over the telephone). At the very least,
the officers in this case had reasonable suspicion to conduct an investigatory stop. However, in our
view, the above facts also establish probable cause to arrest Bonner. In either case, we conclude that
Bonner’s arrest was lawful. See State v. Bryan Herman Dowdy, No. W2000-01011-CCA-R3CD,
2001 WL 91732, at *4 (Tenn. Crim. App., at Jackson, Jan. 26, 2001) (rejecting identical argument
that evading arrest conviction should be nullified because initial stop was not supported by probable
cause wherein officer’s pursuit of vehicle was based solely on information from dispatcher’s report).


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Thus, we reject Bonner’s contention that the dismissal of an underlying offense at trial amounts to
an unlawful arrest as contemplated by section 39-16-603(b)(2), requiring the evading arrest
conviction to be dismissed. We further decline Bonner’s invitation to revisit this court’s previous
holdings on this issue and conclude that the evidence was sufficient for a reasonable juror to find him
guilty beyond a reasonable doubt of felony evading arrest.

         II. Admission of Statements Regarding the Vehicle Theft Report. Bonner argues that
the trial court erred in admitting testimony regarding the vehicle theft report. Specifically, Bonner
contends that the officers should have been precluded from testifying about a report of a stolen
vehicle because “the victim was not present at trial to testify that the theft occurred.” The state
argues, and we agree, that the trial court properly admitted the testimony.

        The Tennessee Rules of Evidence define hearsay 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.” Tenn. R. Evid. 801(c). Generally, hearsay evidence is inadmissable. Tenn. R. Evid. 802.
However, if the extrajudicial statement is offered to prove the effect on the hearer and not the truth
of the matter asserted, then the statement represents non-hearsay and is admissible. State v. Venable,
606 S.W.2d 298, 301 (Tenn. Crim. App. 1980). Our supreme court has held that issues regarding
admissibility of evidence “rest within the sound discretion of the trial court and this Court will not
interfere with the exercise of this discretion in the absence of a clear showing of abuse appearing on
the face of the record.” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A trial court abuses its
discretion when it applies “an incorrect legal standard or [reaches] a decision which is illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006).

        Here, the record shows the testimony regarding the report of a stolen vehicle was not offered
to prove that a theft actually occurred. The testimony was offered to prove the effect it had on the
officers upon hearing it. It further explained why the officers initiated contact with Bonner. Thus,
we conclude that the testimony constituted non-hearsay as it was not offered to prove the truth of the
matter asserted. In Bonner’s reply brief, he concedes that these statements are not hearsay because
“this court might find that [they] were offered for reasons other than the truth of the matter asserted.”
In the alternative, Bonner argues the vehicle theft report was not relevant, and if so, the probative
value was substantially outweighed by the prejudicial effect. Because this issue was not raised in the
trial court, we conclude that it has been waived and decline to address it on appeal. See State v.
Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App.1988) (stating that “a party may not take one
position regarding an issue in the trial court, change his strategy or position in mid-stream, and
advocate a different ground or reason in this Court”). Accordingly, the trial court did not err in
admitting the evidence.

         III. Cumulative Error. Bonner argues that the cumulative effect of the errors made by the
trial court violated his federal and state constitutional rights. However, Bonner concedes in his reply
brief that challenges to the sufficiency of the evidence coupled with the allegation of a single error
does not amount to cumulative error. See State v. Phillip Eugene Johnson, No. W2006-00503-CCA-
R3-CD, 2007 WL 763214, at *7 (Tenn. Crim. App., at Jackson, Mar. 13, 2007), perm to appeal
denied (Tenn. Aug. 13, 2007). Accordingly, this issue is without merit.

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                                 CONCLUSION

Based on the foregoing reasons, we affirm the judgment of the trial court.


                                              ______________________________
                                              CAMILLE R. McMULLEN, JUDGE




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