        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 21, 2016 Session

        STATE OF TENNESSEE v. JAVONTA MARQUIS PERKINS

                Appeal from the Criminal Court for Davidson County
                  No. 2012-C-2144 J. Randall Wyatt, Jr., Judge
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                 No. M2015-01025-CCA-R3-CD – November 7, 2016
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This is Defendant’s, Javonta Marquis Perkins, direct appeal from his conviction of
evading arrest, a Class D felony. On appeal, he argues that the evidence is insufficient to
support his conviction and that the trial court erred by giving a jury instruction on
criminal responsibility. We affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, J., joined. NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

Richard C. Strong, Nashville, Tennessee, for the appellant, Javonta Marquis Perkins.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General, Senior Counsel; Glenn R. Funk, District Attorney General; and Mindy Morris
and Jude Santana, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

                        Procedural History and Factual Summary

      On August 6, 2012, the Davidson County Grand Jury indicted Defendant on one
count of aggravated robbery, one count of carjacking, one count of aggravated assault,
one count of evading arrest, and one count of possession of a weapon during the
commission of a dangerous felony.

       At trial, the proof showed that, on March 3, 2012, between 1:30 a.m. and 2:00
a.m., Maurice Hegwood went to his parents’ home to deliver medicine to his mother. As
Mr. Hegwood exited his vehicle, two men approached him. One of the men pointed a
gun at Mr. Hegwood’s head and ordered Mr. Hegwood onto the ground. The gunman
took the keys to Mr. Hegwood’s newly-purchased white 2009 Pontiac G-6 and handed
them to the other man. The other man then attempted to reverse the Pontiac out of the
driveway and into the road; however, he hit the house twice, damaging both the vehicle
and the home. Mr. Hegwood heard the gunman accuse the other man of not knowing
how to drive and demand that the other man “get out of the car.” The gunman then
commandeered the driver’s seat, and the men drove away.

        At trial, Mr. Hegwood identified Defendant as the gunman. Mr. Hegwood
testified that the home had motion-censor lights located on the porch near the garage and
that the driveway was well-lit during the altercation. Mr. Hegwood was able to see the
gunman’s face while he was on the ground.

        Between 2:00 a.m. and 2:30 a.m. of the same night, two men approached Edward
Crowder as he exited his vehicle in the driveway of his home, located only a few miles
away from the Hegwood residence. Mr. Crowder heard “a couple of car doors closing”
and saw a “light-colored” vehicle which was “running as though the muffler had damage
to it or something was wrong with it.” As Mr. Crowder walked along his driveway, two
men approached him while pulling hoods over their heads. The two men moved quickly
toward Mr. Crowder. Feeling threatened, Mr. Crowder produced a firearm from his right
pocket. One of the men walked into Mr. Crowder’s yard and pulled a gun from his pants.
In response, Mr. Crowder retrieved another firearm with his left hand and turned around
to confront the gunman. As soon as Mr. Crowder displayed the two firearms, both men
ran back to the vehicle and sped away.

       Mr. Crowder was unable to identify either man because their hoods covered their
faces and because they never came closer than “fifteen to twenty feet.” However, Mr.
Crowder testified that the gunman appeared taller than the other man.

       Officer Nicholas Carter of the Metro Police Department responded to the
Hegwood residence and observed that the driveway had “enough ambient light to where
[he] did not use a flashlight” to illuminate his notepad while taking notes. Mr. Hegwood
told Officer Carter that he would be able to identify the gunman but not the other man.
Mr. Hegwood was, however, able to describe the race, gender, height, and clothing of
each perpetrator. Mr. Hegwood told Officer Carter that the gunman was the taller of the
two men.

       While interviewing Mr. Hegwood, Officer Carter was notified that two black male
suspects in “a white or light-colored vehicle had . . . attempted to commit another robbery
close by.” At approximately 2:55 a.m., while driving an unmarked vehicle, Officer
Carter spotted a white 2009 Pontiac G-6 driving towards him on Trinity Lane. Officer
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Carter pointed his spotlight at the license plate and saw two individuals in the vehicle.
Officer Carter verified that the vehicle belonged to Mr. Hegwood, made a radio report
that he had located the stolen vehicle, and continued following it. Anticipating that the
men in the Pontiac may have been armed, Officer Carter waited for assistance before
activating his sirens. Officer Steven Spillers of the Metro Police Department, in a
marked vehicle, took the lead behind the Pontiac, and the two officers initiated their
lights and sirens together. The Pontiac came to a complete stop at a stop sign on Old
Matthews Road then made a sudden right turn onto Trinity Lane and accelerated
westbound.

        At this time, Sergeant Corey Sanderson of the Metro Nashville Police Department
was travelling eastbound on Trinity Lane in response to the radio report and saw the
accelerating Pontiac. As Sergeant Sanderson approached, the Pontiac entered into his
lane of traffic while travelling at a high rate of speed. Sergeant Sanderson swerved to his
right to avoid a head-on collision. Sergeant Sanderson saw two occupants in the front
seats of the vehicle.

       The Pontiac attempted to make a left turn onto Baptist World Center Drive.
However, due to its high speed, the vehicle drove over a curb, hit a “pretty substantial
dip” in the pavement of a parking lot, and then traveled airborne into a wooded area at the
intersection of Baptist World Center Drive and Youngs Lane. Two men exited the
wrecked vehicle and ran into the woods. When more units arrived at the scene, the
officers created a perimeter around the wooded area. Eventually, a K-9 unit apprehended
Defendant and Quentin McClain.

       The jury found Defendant guilty of evading arrest with a motor vehicle and not
guilty of aggravated assault. The jury was unable to reach a verdict on the remaining
charges, and the trial court declared a mistrial on those charges. The trial court sentenced
Defendant to serve four years as a Range I offender for his evading arrest conviction.
Because the trial court found that Defendant placed a third party in imminent danger
during the commission of the offense, the offense was classified as a Class D felony
pursuant to Tennessee Code Annotated section 39-16-603(b)(3).

                                         Analysis

       Defendant raises two issues on appeal. First, Defendant contends that the State
produced insufficient evidence to sustain a conviction for felony evading arrest.
Specifically, Defendant argues that the State failed to prove that during the evasion,
Defendant was the driver of the vehicle and that Defendant placed an innocent bystander
or third party in imminent danger of death or serious bodily injury. Second, Defendant
argues that the trial court erred by charging the jury under the theory of criminal
responsibility. We choose to address the second issue first.
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                                    A. Jury Instruction

       It is well-recognized that a defendant in a criminal case “has a right to a correct
and complete charge of the law, so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Garrison, 40 S.W.3d 426, 432
(Tenn. 2000); see State v. Leath, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When
reviewing jury instructions on appeal to determine whether they are erroneous, this Court
must “review the charge in its entirety and read it as a whole.” State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997). A jury instruction is considered “prejudicially erroneous”
only “if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law.” Id. Because the propriety of jury instructions is a mixed question of law
and fact, the standard of review is de novo with no presumption of correctness.
Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004); State v. Smiley, 38 S.W.3d 521,
524 (Tenn. 2001).

      Defendant does not argue that the instruction on criminal responsibility was
inaccurate. Instead, he argues that the instruction was erroneously charged because it
was not fairly raised by the proof presented at trial. We disagree.

       A trial court may commit error by instructing a jury on the theory of criminal
responsibility where the evidence presented does not support such a theory of guilt. See
State v. Hatcher, 310 S.W.3d 788, 811 (Tenn. 2010). Tennessee Code Annotated section
39-11-402(2) provides that a person is “criminally responsible for an offense committed
by the conduct of another, if . . . [a]cting with intent to promote or assist the commission
of the offense, or to benefit in the proceeds or results of the offense, the person solicits,
directs, aids, or attempts to aid another person to commit the offense . . . .” In State v.
Dickson, our supreme court explained:

       Criminal responsibility is not a separate crime, but “a theory by which the
       State may prove the defendant’s guilt of the alleged offense . . . based upon
       the conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170
       (Tenn. 1999). Criminal responsibility represents a legislative codification
       of the common law theories of aiding and abetting and accessories before
       the fact. Id. at 171 (citing State v. Carson, 950 S.W.2d 951, 955 (Tenn.
       1997)). “No particular act need be shown, and the defendant need not have
       taken a physical part in the crime in order to be held criminally
       responsible.” State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App.
       2002).

413 S.W.3d 735, 744 (Tenn. 2013). Accordingly, “defendants convicted under a theory
of criminal responsibility are considered to be principal offenders, just as if they had
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committed the crime themselves.” State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008)
(citing Carson, 950 S.W.2d at 954).

       Criminal responsibility was fairly raised by the proof in this case. The evidence
showed that two men acted in concert to steal a car. The car’s owner identified
Defendant as one of the carjackers. When police officers located the stolen vehicle and
signaled for it to stop, the car failed to comply and engaged in evasive maneuvers. As the
car fled, police officers observed two occupants inside the vehicle. When the car
eventually came to a stop, two men were observed fleeing the stalled vehicle on foot.
With the assistance of a canine unit, Defendant was discovered hiding in the vicinity of
the stolen vehicle. Although the police officers involved in the chase could not identify
the driver of the vehicle, the evidence presented was sufficient for a rational jury to infer
that Defendant was one of the occupants of the vehicle and that he acted with the intent to
promote or benefit from the vehicle’s failure to yield to police. The trial court did not err
by instructing the jury on criminal responsibility under the circumstances of this case.
Defendant is not entitled to relief on this issue.

                                B. Sufficiency of the Evidence

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.” State v. Wagner, 382 S.W.3d
289, 297 (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “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.” Reid, 91
S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the
role of this Court to reweigh or reevaluate the evidence, nor to substitute our own
inferences for those drawn from the evidence by the trier of fact. Id. The standard of
review is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

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        Tennessee Code Annotated section 39-16-603(b)(1) provides that “[i]t 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 the officer to bring the vehicle to a stop.” The offense is
considered a Class D felony if the flight “creates a risk of death or injury to innocent
bystanders or other third parties.” T.C.A. § 39-16-603(b)(3)(B).

        Defendant asserts that the evidence is insufficient to support his conviction
because the State did not introduce evidence that Defendant was the driver of the vehicle
at the time of the evasion. Specifically, Defendant argues that, because almost two hours
elapsed after Mr. Hegwood witnessed Defendant enter the driver’s seat, there was ample
time for the perpetrators to switch drivers. Under this reasoning, Defendant argues that
because no officer identified the driver at the time of the evasion, there was insufficient
evidence to prove beyond a reasonable doubt that he was actually the driver of the
vehicle during the evasion. However, this argument fails because the State was not
required to prove that Defendant was actually the driver. As discussed above, a rational
jury could have found Defendant guilty of evading arrest under a theory of criminal
responsibility. While not a separate crime, criminal responsibility is a theory by which
the State may alternatively establish guilt based on the conduct of another. Dorantes, at
386 (citing Lemacks, 996 S.W.2d at 170). In order to be convicted, “the evidence must
establish that the defendant in some way knowingly and voluntarily shared in the
criminal intent of the crime and promoted its commission.” Id. (citing State v. Maxey,
898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755 S.W.2d 846, 848
(Tenn. Crim. App. 1988)). No specific act or deed needs to be demonstrated by the State,
and the presence and companionship of an accused with the offender before and after the
offense are circumstances from which participation in the crime may be inferred. State v.
Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998).

       The owner of the stolen vehicle identified Defendant as one of the men who stole
the vehicle. The two occupants of the stolen vehicle failed to comply with signals to stop
and actively eluded police pursuit. The two occupants of the stolen vehicle then
continued to elude police even after wrecking the vehicle. Defendant was found
concealed in the vicinity of the stolen vehicle after being tracked from its location by a
canine unit. The fact that the State primarily relied on the theory that Defendant was the
driver of the stolen vehicle, rather than the passenger, is immaterial. In this regard, the
evidence was sufficient to support Defendant’s conviction.

       Defendant also contends that there was no evidence that the evasion placed
innocent bystanders or third parties under threat of death or injury and that, therefore, the
Class D felony sentence was erroneous. Defendant argues that he, his accomplice, or any
of the pursuing officers cannot be considered “innocent bystanders or third parties” to
permit a Class D conviction. The State, however, asserts that Sergeant Sanderson was
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the “third party” placed in danger of death or bodily injury during the evasion. Our
supreme court has stated that innocent bystanders or third parties are considered “persons
other than the defendant him or herself and the officer giving the signal to stop.” State v.
Cross, 362 S.W.3d 512, 521 (Tenn. 2012). The record clearly establishes that Sergeant
Sanderson was not one of the officers who signaled the initial stop of the stolen vehicle.1
After Officers Spillers and Carter gave the initial signals to stop and began pursuing the
stolen vehicle, Sergeant Sanderson approached the reported location of the stolen vehicle
to provide assistance if required. While traveling in the opposite direction of the stolen
vehicle, Sergeant Sanderson narrowly avoided a head-on collision with the stolen vehicle
when it swerved into his lane. We agree with the State that a law enforcement officer
who did not initiate the stop can be considered an endangered third party to give rise to a
Class D felony evading arrest conviction.2 Because there was evidence that Defendant’s
evasion of arrest created a risk of death or injury to a third party, the Class D felony
conviction was proper. Defendant is not entitled to relief.

                                              Conclusion

      Based on the foregoing, Defendant is not entitled to relief, and we affirm the
judgment of the trial court.


                                                     ____________________________________
                                                    TIMOTHY L. EASTER, JUDGE




        1
         The record is unclear as to whether Sergeant Sanderson’s blue lights were activated when the
encounter occurred with the stolen vehicle.
        2
          We note that, after the incident in this case occurred, the General Assembly amended the
evading arrest statute such that, “[i]f the flight or attempt to elude creates a risk of death or injury to
innocent bystanders, pursuing law enforcement officers, or other third parties, a violation of this
subsection (b) is a Class D felony . . . .” T.C.A. § 39-16-603(b)(3)(B) (emphasis added).
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