         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     March 18, 2008 Session

                 STATE OF TENNESSEE v. RAYMOND MCNEIL

                     Appeal from the Circuit Court for Williamson County
                         No. II-CR081268      R.E. Lee Davies, Judge



                   No. M2007-01566-CCA-R3-CD - Filed September 10, 2008


The defendant, Raymond McNeil, appeals from his Williamson County Circuit Court conviction of
Class D felony evading arrest, alleging that the evidence was insufficient and that the trial court erred
in the admission of certain evidence at trial. The defendant challenges neither his conviction of
driving on a revoked license nor his 12-year effective sentence. Discerning no error, we affirm the
judgments of the trial court.

                 Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and JOHN EVERETT WILLIAMS, J., joined.

Matthew T. Colvard (at trial), and Michael T. Fort (on appeal), Franklin, Tennessee, for the
appellant, Raymond McNeil.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew Hamilton Smith, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                The defendant’s convictions relate to a series of events that took place on April 12,
2005, in Franklin, Tennessee. On that date, Sergeant James Handy of the Williamson County
Sheriff’s Department went to the Franklin Estates trailer park to “serve some papers” on the
defendant. As Sergeant Handy sat at the entrance of the trailer park, he observed the defendant drive
by in a white, four-door Cadillac with Phillip Martin in the passenger seat. Sergeant Handy, who
was familiar with both the defendant and Mr. Martin, activated his blue lights and fell in behind the
white Cadillac. At that point, the defendant “slowed down and he pulled over to the right shoulder
of the road. And then . . . he took off again.” Sergeant Handy activated his siren and gave chase.
The white Cadillac “proceeded on towards Jim Warner Park, where [the defendant] almost collided
with several other vehicles” including a City of Franklin public works truck. The city truck and
other vehicles were forced to take evasive action to avoid being struck by the white Cadillac. The
defendant then sped through a stop sign, and the chase route wound through a residential area, where
the defendant’s vehicle reached speeds of 50 to 60 miles per hour despite the posted 30-miles-per-
hour speed limit. The defendant continued into the park, where, despite the 15-miles-per-hour speed
limit, he drove at speeds in excess of 50 miles per hour. Sergeant Handy abandoned the chase when
the defendant entered the park because “of the risk to other people.”

                John Brown testified that he and his wife were traveling on Highway 96 on April 12,
2005, when he observed “a white vehicle passing a car on the right shoulder of the road, traveling
West. . . . Looked like he was driving erratically . . . and in a reckless manner.” Mr. Brown’s wife,
Laurie Brown, corroborated her husband’s testimony, noting that she saw the white Cadillac pass
a car on the right before “swerving” back into traffic. She also saw the car pass “cars on the
oncoming side of traffic when there wasn’t a passing lane, and go back into traffic.” Ms. Brown
recalled that the driver of the white Cadillac was a white male with a “slim build [and] dark hair.”

                The defendant’s passenger, his brother-in-law Phillip Martin, admitted that the
defendant “kept going” when Sergeant Handy attempted to stop the vehicle. Although Mr. Martin
denied seeing Sergeant Handy activate his blue lights, he stated that he was sure the officer “was
trying to stop us.”

                                    I. Sufficiency of the Evidence

                The defendant complains that his conviction for Class D felony evading arrest was
not supported by sufficient evidence that his attempt to elude Sergeant Handy posed “a risk of death
or injury to innocent bystanders or other third parties” as required by statute. The State, of course,
espouses an opposing view.

               We review the defendant’s claim mindful that our standard of review is whether, after
considering 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. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Winters, 137 S.W.3d
641, 654 (Tenn. Crim. App. 2003). This standard applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. Winters,
137 S.W.3d at 654.

                When examining the sufficiency of the evidence, this court should neither re-weigh
the evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Significantly, this court must afford the State the strongest legitimate view
of the evidence contained in the record as well as all reasonable and legitimate inferences which may
be drawn from the evidence. Id.



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                Here, the State charged the defendant with Class D felony evading arrest. Although
the defendant asserts that the State was required to prove that his actions met the statutory definition
of “reckless” in Code section 39-11-302(c), the applicable statute contains no such mens rea
requirement, see T.C.A. § 39-16-603. Code section 39-16-603 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.” T.C.A. § 39-16-603(b)(1). Evading arrest by way
of a motor vehicle 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.” Id. at (b)(3). This court has held that “[f]or such Class D felony convictions, all
that need be shown is that the defendant evaded arrest and that, in doing so, he created the risk of
death or injury.” State v. Johnny C. Menifee, No. M2005-00708-CCA-R3-CD, slip op. at 5 (Tenn.
Crim. App., Nashville, July 31, 2006) (citing State v. Payne, 7 S.W.3d 25, 28 (Tenn. 1999)).

                The evidence adduced at trial established that Sergeant Handy had traveled to the
Franklin Estates trailer park for the purpose of serving the defendant with “some papers” when the
defendant drove past him in a white, four-door Cadillac with damage to the right-rear bumper.
Sergeant Handy activated his emergency equipment and followed, and, despite initially slowing as
though to stop, the defendant sped away, reaching speeds nearing 60 miles per hour in the 30-miles-
per-hour zone. Mr. Martin, the defendant’s passenger, admitted that at that point they were “running
from” the police. The sergeant gave chase, observing the defendant speed through a residential area,
nearly collide with a public works truck, and run a stop sign, forcing two other vehicles to “jam[]
on their brakes” to avoid a collision. When the defendant sped into a neighborhood park, the
sergeant abandoned the chase because of the risk to innocent bystanders. Sergeant Handy estimated
the defendant’s speed in the park, which had a speed limit of 15 miles per hour, to be in excess of
50 miles per hour. Other witnesses confirmed seeing the white, four-door Cadillac being driven in
an erratic manner on highway 96, weaving through traffic, passing in “no passing” zones, and
passing at least one car on the shoulder of the road. Ms. Brown specifically testified that there were
a number of other vehicles on the road and that the defendant’s actions caused her to fear for her
safety. In sum, the evidence overwhelmingly supported the defendant’s conviction for Class D
felony evading arrest.

                                     II. Admission of Evidence

                The defendant complains that the trial court erred by admitting the whole of Sergeant
Handy’s incident report under the “rule of completeness” because no portion of the report was
tendered into evidence by the defense and because defense counsel’s references to the information
in the report did not present the information out of context. The State submits that the defendant
waived appellate review of the issue by failing to lodge a contemporaneous objection and, in fact,
acquiescing in the admission of the report. We agree with the State.

               During his cross-examination of Sergeant Handy, defense counsel attempted to utilize
the incident report prepared by the sergeant to impeach his testimony. After counsel had made


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several references to information both contained in and omitted from the report, the prosecutor asked
that the report be admitted into evidence in its entirety under Tennessee Rule of Evidence 106.1
Defense counsel noted his objection only to “one thing on there” and after the “one thing” was
redacted, made no further objection to the report. The defendant’s participation in, and his failure
to lodge a contemporaneous objection to, the admission of the remainder of the report results in a
waiver of the issue on appeal. Appellate relief is generally not available when a party is “responsible
for an error” or has “failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of any error.” Tenn. R. App. P. 36(a); see State v. Killebrew, 760 S.W.2d 228, 235
(Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a contemporaneous
objection); see also State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden,
739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987).

                                                   III. Conclusion

                The evidence is sufficient to support the defendant’s conviction of Class D felony
evading arrest because the State established that he placed other motorists in danger of death or
serious injury during his flight from Sergeant Handy. The defendant has waived our consideration
of the admission of Sergeant Handy’s incident report. Accordingly, the judgments of the trial court
are affirmed.

                                                                 ___________________________________
                                                                 JAMES CURWOOD WITT, JR., JUDGE




         1
           That rule provides, “W hen a writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other writing or recorded statement which ought
in fairness to be considered contemporaneously with it.” Tenn. R. Evid. 106.



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