         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                       AT KNOXVILLE
                                       February 20, 2001

        STATE OF TENNESSEE v. CHRISTOPHER LAMONT KELSO

                     Appeal from the Criminal Court for Monroe County
                            No. 99-062   Carroll L. Ross, Judge



                                  No. E2000-01602-CCA-R3-CD
                                         June 18, 2001


The grand jury for Monroe County charged the defendant with one count of possession of cocaine
with intent to resell and one count of felony evading arrest. The defendant went to trial, and the jury
acquitted him of the narcotics offense but found him guilty of Class D evading arrest. The trial court
sentenced the defendant as a Range II, multiple offender, to five years incarceration in the
Department of Correction. In this direct appeal, the defendant challenges the sufficiency of the
convicting evidence, the state’s misuse of his post-arrest silence, the flight instruction given to the
jury, and his classification as a Range II offender. Unpersuaded by the defendant’s contentions, we
affirm the trial court’s judgment and sentence.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
JOHN EVERETT WILLIAMS, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Charles M. Corn, District Public Defender;
and William C. Donaldson, Assistant Public Defender (at trial and on appeal), for the Appellant,
Christopher Lamont Kelso.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Nashville, Tennessee; Jerry
N. Estes, District Attorney General; and Shari Lynn Tayloe, Assistant District Attorney General for
the Appellee, State of Tennessee.

                                             OPINION

              On March 24, 1999, Monroe County Deputy Sheriff James Kile was on assignment
with Bobby Queen, an agent with the Tenth Judicial District Drug Task Force. Kile and Queen were
doing drug interdiction in Bradley and Monroe Counties, and that evening they were parked in
Queen’s unmarked Buick on the right shoulder of the I-75 off ramp for Sweetwater, at Exit 60.
Around 11:30 p.m., the defendant, Christopher Lamont Kelso, drove past Kile and Queen at a high
rate of speed. The defendant was driving his girlfriend’s Chevy Cavalier, and he had four passengers
with him. The defendant ignored the stop sign at the end of the exit ramp; instead he turned right
on Highway 68 and speeded on towards Sweetwater.

                Kile and Queen managed to catch up with the defendant on Highway 68, and they
activated their emergency equipment to signal the defendant to pull over and stop. The defendant
refused to comply, and two marked Sweetwater Police Department patrol cars joined the pursuit.
The defendant made a sharp right hand turn off of Highway 68 onto Valley View Drive, a residential
apartment complex. The defendant brought the vehicle to an abrupt stop, causing Kile and Queen
to veer to the left to avoid a collision. Sweetwater Patrolman Scruggs, who had been following
behind Kile and Queen, saw an object being tossed from the passenger side of the defendant’s car.
Patrolman Scruggs retrieved the object. It was a plastic baggie containing a golf ball sized
substance. The substance later tested positive for 11.7 grams of cocaine.

                After the object was ejected, the defendant’s vehicle started moving again. It swerved
toward Kile and Queen, proceeded a short distance before making a left hand turn into a dead-end
cul-de-sac, and came to a final stop. The defendant and his passengers were ordered out of the
vehicle. They were searched for weapons; none were found. Sergeant James Waltz, an officer with
the Monroe County Sheriff’s Department, arrived at the scene. His drug-sniffing dog alerted to the
back seat of the defendant’s vehicle. The two female passengers were questioned and released, but
the defendant and his two male companions were arrested and taken to the Monroe County Sheriff’s
Department. At the jail, another canine sniff was performed on the trousers of the three suspects.
The dog did not alert to the defendant’s pants, whereas it did to the pants worn by the defendant’s
male passengers.

               The defendant testified at trial. He denied buying or possessing any drugs the evening
that he was arrested. He admitted, though, to speeding on the exit ramp, not stopping at the stop
sign, and speeding along Highway 68. The defendant claimed that he and his friends were returning
from a short trip to Chattanooga and that he was driving in a hurry to pick up his girlfriend in
Knoxville.

               Based on this evidence, the jury found the defendant not guilty of possession of
cocaine with intent to resell but guilty of felony evading arrest. The trial court sentenced the
defendant as a Range II offender to serve five years. Principally because of the defendant’s extensive
criminal history, the trial court declined to order alternative sentencing.

                                  I. Sufficiency of the Evidence

                The defendant complains that the evidence was insufficient to convict him of Class
D evading arrest because the state failed to prove beyond a reasonable doubt that his actions created
a risk of death or injury to innocent bystanders or other third parties. He does not dispute that the
proof was adequate to support a conviction for Class E felony evading arrest.



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                In reviewing the sufficiency of the convicting evidence, we apply a familiar standard.
When an accused challenges the sufficiency of the evidence, an appellate court inspects the
evidentiary landscape, including its direct and circumstantial contours, from the vantage point most
agreeable to the prosecution. The reviewing court then decides whether the evidence and the
inferences that flow therefrom permit any rational factfinder to conclude beyond a reasonable doubt
that the defendant is guilty of the charged crime. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.
Ct. 2781, 2791-92 (1979); Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985).
This rule applies to findings of guilt based on direct evidence, as well as circumstantial evidence or
a combination thereof. See State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). On appeal, a defendant no longer
enjoys the presumption of innocence; consequently, he shoulders the burden of demonstrating that
the evidence is legally insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

                 In determining sufficiency of the evidence, the court does not replay and reweigh the
evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness
credibility, the weight and value of the evidence, and factual disputes are entrusted to the finder of
fact. 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 the evidence. See Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).
Rather, this court extends the State of Tennessee 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. See Cabbage, 571 S.W.2d at 835.

               Code section 39-16-603(b) defines felony evading arrest in the following fashion:

                       (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 elude any law enforcement officer,
               after having received any signal from such 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 or injury to innocent
               bystanders or other third parties, in which case a violation of
               subsection (b) is a Class D felony.

Tenn. Code Ann. § 39-16-603(b)(1), (b)(3) (1997).

               The defendant asserts that neither the passengers in the vehicle that he was driving
nor the law enforcement officers who were pursuing him qualify as “innocent bystanders” or “other


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third parties.” According to the defendant’s argument, when these individuals are eliminated, the
proof fails to establish that anyone else was endangered during the chase. We disagree.

                We need not reach the question whether pursuing law enforcement officers or
passengers who voluntarily accompany a driver are excluded from the categories of “innocent
bystanders” and “other third parties.” Deputy Kile testified that as he and Queen were pursuing the
speeding car and attempting to get the defendant to stop “there were cars, oncoming traffic as we
were going up 68.” Also, according to Deputy Kile the chase on Highway 68 clipped along at speeds
between 70 and 80 miles per hour; the defendant moreover admitted speeding on the exit ramp and
on the highway. This testimony, we believe, is sufficient to establish a risk of death or injury to
other motorists on Highway 68 that evening. In State v. Garry Lee Mathes, No. 03C01-9904-CR-
00140 (Tenn. Crim. App., Knoxville, Jan. 21, 2000), the defendant was convicted of misdemeanor
reckless endangerment and Class D felony evading arrest. The evidence showed that two officers
chased the defendant at high speeds for seven to ten miles. During the chase the defendant and the
officers “zipped past other vehicles.” Id., slip op. at 4. The defendant’s argument that his conduct
did not place any third parties within risk of death or injury was flatly rejected. The court explained,

                 The testimony of the officers indicated that the Defendant passed a
                 tractor and trailer and several cars on the interstate at very high
                 speeds. We believe that a rational jury could find that such conduct
                 created a risk of death or injury to those other motorists. Had the
                 Defendant lost control of his vehicle because he was driving too fast,
                 he could have killed or seriously injured persons in a vehicle near
                 him. Moreover, the other motorists could have lost control of their
                 vehicles and been killed or seriously injured due to surprise caused by
                 the Defendant’s fast speeds and the police chase.

Id., slip op. at 5.

               For the same reasons, we hold that the evidence in this case is legally sufficient to
sustain the Class D evading arrest conviction.

                                     II. Post-arrest Statements

         In his next issue, the defendant claims, and we agree, that the state improperly elicited
testimony about his post-arrest silence. During Deputy Kile’s testimony the state inquired, “Did Mr.
Kelso give you any statement?” The witness began to answer, “No. Ma’am. Mr. Kelso would not
speak to--” at which point the defense objected. The trial court sustained the objection and instructed
the jury to disregard the question and answer. When the defendant testified, the state then asked him
if he told the officers what was going on when they apprehended him. He responded that he “didn’t
have time to” because the officers had his face in the ground. The state followed up with asking if
the defendant later told the officers, which prompted a bench conference and the state’s
abandonment of that line of questions.


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                When a defendant exercises his constitutional right to remain silent after arrest, the
fact that he does so generally cannot be used against him. See Doyle v. Ohio, 426 U.S. 610, 96 S.
Ct. 2240 (1976); State v. Pender, 687 S.W.2d 714, 719 (Tenn. Crim. App. 1984); Braden v. State,
534 S.W.2d 657 (Tenn. 1976); Honeycutt v. State, 544 S.W.2d 912 (Tenn. Crim. App. 1976). The
state’s questions in this case were clearly designed to highlight his post-arrest silence; as such they
were improper.

                The state, on appeal, does not defend the propriety of the offending questions. Rather,
it argues that no prejudice flowed from the error. We reach the same conclusion. The defendant’s
post-arrest silence does not bear on the evading arrest charge. The defendant admitted that he was
speeding, and he acknowledged that he did not stop when signaled to do so. The disputed issue was
whether his conduct created a risk of death or injury to innocent bystanders or other third parties.
The defendant’s subjective intent was not relevant in that situation, and we do not see how his
silence could make it more likely that innocent bystanders could have been killed or maimed that
evening. On the other hand, that the defendant did not spontaneously deny knowledge of or
involvement with the discarded drugs could suggest his complicity vis a vis the narcotics charge.
Because, however, the jury found the defendant not guilty of the drug charge, any prejudice
stemming from his post-arrest silence has been cured or, at least, rendered moot.

              Under these circumstances we can confidently conclude that the state’s improper
questioning was harmless beyond a reasonable doubt.

                                 III. Improper Jury Instruction

               The defendant also complains that he is entitled to a new trial because the court’s jury
instruction about flight as evidence of guilt was not confined to the drug possession charge. As a
result, the argument goes, the jury was permitted to draw an inference of guilt based on the
defendant’s flight, which was the same evading arrest conduct with which he was charged.


                Our review of the record reveals that the trial court and the parties were in agreement
that a flight instruction should be confined to the controlled substance count of the indictment.
Apparently, through oversight, the flight instruction was not limited to that count, and we are called
upon to assess the prejudice, if any, that was created.

                We are unpersuaded that reversible error occurred. The only disputed question
concerning the evading arrest charge was whether the defendant’s conduct created a risk of death or
injury to innocent bystanders or other third parties. The defendant’s flight, which he did not contest,
was not dispositive of that question, and we fail to perceive how his defense was adversely impacted
by the flight instruction.




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                                 IV. Range II Sentencing Notice

                 The defendant’s final complaint is that he should not have been sentenced as a Range
II, multiple offender, because the state’s notice of intent to seek enhanced punishment was not timely
filed. There is no dispute that the state’s notice was untimely. Code section 40-35-202(a) specifies
in clear terms that if the state believes that the defendant should be sentenced as a multiple,
persistent, or career offender, “the district attorney general shall file a statement thereof with the
court and defense counsel not less than ten (10) days before trial or acceptance of a guilty plea.”
Tenn. Code Ann. § 40-35-202(a) (1997). The state’s notice in this case was not filed until the
morning of trial.

                  The issue becomes one of determining what remedy is available for an untimely
notice. The defendant argues that the remedy is to prohibit enhanced punishment; the state asserts
that the only available relief is for a defendant to move for a continuance, which the trial court is
required to grant. The state’s argument is based on Criminal Procedure Rule 12.3, which provides
in pertinent part, that if “the notice [of enhanced punishment] is filed later than this time [ten days
prior to trial], the trial judge shall grant the defendant, upon motion, a reasonable continuance of the
trial.” Tenn. R. Crim. P. 12.3(a).

               The supreme court decided this issue in State v. Stephenson, 752 S.W.2d 80 (Tenn.
1988), wherein it held that the state's failure to file a timely notice of intent to seek enhanced range
sentencing did not prevent the trial court from imposing sentence in an enhanced range, absent a
demonstration of prejudice to the defendant from the untimely notice; furthermore, in the absence
of a defense motion for continuance, any objection to the late-filed notice is waived. See id. at 81.
The holding in Stephenson was reaffirmed in State v. Adams, 778 S.W.2d 557 (Tenn. 1990), and in
State v. Gilmore, 823 S.W.2d 566, 570 (Tenn. Crim. App. 1991), this court declared that “the rule
fashioned by the Supreme Court in Stephenson is equally applicable to the 1989 version of Tenn.
Code Ann. § 40-35-202(a).” Id. at 571.

               Before the trial court, the defendant repeatedly disavowed any intention to request a
continuance based on the untimely notice. Moreover, on appeal the defendant does not address or
explain how he was prejudiced by the late filing of the notice. “The fact that the [defendant] was
sentenced within the proper range, based upon his prior convictions, does not establish prejudice.”
Gilmore, 823 S.W.2d at 570. Accordingly, we conclude that the defendant was properly sentenced
as a Range II multiple offender.

                For the foregoing reasons, the trial court’s judgment and sentencing are affirmed.




                                       __________________________________________
                                       JAMES CURWOOD WITT, JR., JUDGE


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