                                                                                         04/24/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs March 21, 2017, at Knoxville

        STATE OF TENNESSEE v. GREGORY MAURICE MARLIN

                  Appeal from the Circuit Court for Bedford County
                       No. 18166 Franklin L. Russell, Judge
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                           No. M2016-01376-CCA-R3-CD
                       ___________________________________


The Defendant, Gregory Maurice Marlin, was convicted of evading arrest while
operating a motor vehicle, evading arrest on foot, and operating a motor vehicle while
declared a habitual traffic offender. The trial court sentenced the Defendant as a standard
offender to two years for the evading arrest while operating a motor vehicle conviction,
eleven months and twenty-nine days for the evading arrest on foot conviction, and two
years for the operating a motor vehicle while declared a habitual offender conviction, all
to be served consecutively to each other. After the sentencing hearing, the trial court
amended the sentence and merged the evading arrest on foot conviction with the evading
arrest while operating a motor vehicle conviction, for an effective sentence of four years
in prison. The Defendant argues that the evidence is insufficient to support his
convictions and that the trial court abused its discretion in sentencing him. After a
thorough review of the record and applicable law, we affirm the judgments of the trial
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.

Donna Orr Hargrove, District Public Defender; and Michael Collins (at trial and on
appeal) and Brian Belden (at trial), Assistant District Public Defenders, for the appellant,
Gregory Maurice Marlin.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Defendant was indicted for one count of evading arrest while operating a
motor vehicle, one count of evading arrest on foot, and one count of operating a motor
vehicle while declared a habitual traffic offender. The evidence presented at trial
established the following underlying facts.

       Deputy Garcia Jordan with the Bedford County Sheriff’s Department testified that
he had known the Defendant for “several years” and could “easily recognize [the
Defendant] by sight,” and he made an in-court identification of the Defendant. On March
24, 2013, Deputy Jordan was at the Bedford County Workhouse having maintenance
done on his marked patrol vehicle. The back of the workhouse where he brought his
vehicle, abutted West Jackson Street. He testified that after the maintenance was
completed, he pulled his vehicle out of the parking lot of the workhouse and attempted to
pull out onto West Jackson Street. Before he could do so, he saw two vehicles traveling
on West Jackson Street headed away from South Cannon Boulevard toward Tyson. He
stated that the first vehicle he saw was a black Nissan Altima and the second vehicle,
which passed by shortly thereafter, was a gold Chevrolet Caprice, traveling in the same
direction as the Nissan Altima. He testified that the Caprice caught his attention because
it was “obviously exceeding the 30-mile-an-hour speed limit.”

        Deputy Jordan decided to pull over the Caprice and activated his patrol lights and
siren. He stated that as he pursued the Caprice, the driver of the Caprice accelerated,
attempting to get away. He also stated that while in pursuit of the Caprice, he was
travelling at about seventy to seventy-five miles per hour. Deputy Jordan testified that
the driver of the Caprice made a right turn onto Pencil Street, travelled along Pencil
Street until the intersection of West Lane Street, continued through a stop sign without
stopping, and made a left turn onto West Lane Street. He explained that West Lane
Street has a speed limit of thirty miles per hour. He stated that the driver of the Caprice
then made a right turn onto Buckingham Lane, making no attempt to stop for Deputy
Jordan. He also stated that the Caprice crested a hill along Buckingham Lane, and he
briefly lost sight of the vehicle.

       Deputy Jordan testified that after losing sight of the Caprice for a moment, he
regained a visual of the vehicle which was attempting a left turn onto the driveway of a
house on Buckingham Lane. The house with the driveway that the Defendant attempted
to turn into was later determined to belong to the Defendant’s cousin, Mr. Austin Smith.
He also testified that the driver of the Caprice failed to successfully turn onto the
driveway and instead skidded across the front yard of Mr. Smith’s residence, leaving
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tracks in the yard from the road to the neighboring house’s yard. Deputy Jordan
explained that the yard was wet because it had rained earlier in the day. He also
explained that the Caprice came to a stop in the front yard of neighboring house and
made a 180-degree turn while skidding across the front yard, causing the driver’s side of
the Caprice to face him at a distance of about fifteen to twenty yards. He testified that at
the time of the pursuit of the Caprice, it was daylight, it was not raining, and visibility
was fine. He also testified that after the Caprice came to a stop, he saw the driver’s door
open and the Defendant step out and look directly at him. Deputy Jordan stated that the
Defendant closed the car door and quickly walked behind the neighboring house. He
explained that he ran after the Defendant but that after reaching the back of the house, he
did not see the Defendant. Deputy Jordan testified that there were many garages,
toolsheds, trees, and shrubs behind the residence and that the Defendant could have found
many places to hide. He also testified that once other police officers responded to the
scene, they began to search the area for the Defendant but were unable to find him.

       Deputy Jordan testified that the black Nissan Altima he saw before pursuing the
Caprice was in the driveway of Mr. Smith’s residence when the search for the Defendant
began. He also testified that the license plate tag of the Caprice was registered to Mr.
Austin Smith who lived at the house on Buckingham Lane. Deputy Jordan stated that he
was certain that the driver of the Caprice was not, in fact, Mr. Smith. He also stated that
he checked the Defendant’s driving history and discovered that he was a habitual motor
vehicle offender.

       On cross-examination, Deputy Jordan testified that during his pursuit of the
Defendant, the black Nissan Altima followed the Caprice. Deputy Jordan was unable to
identify the driver of the Caprice while it was moving. He admitted that at the
preliminary hearing in General Sessions Court, he testified that the Defendant was fifty
yards away from him when the Defendant exited the Caprice, maintaining that he
nonetheless immediately knew the driver of the Caprice to be the Defendant. Defense
counsel presented Deputy Jordan with a report that Deputy Jordan then read from,
stating, in part, “After further investigation, I identified the driver as” the Defendant.
Deputy Jordan explained that he knew the Defendant’s identity immediately and that
while writing his report, he does an investigation to verify what he saw. He conceded
that he could not remember what the Defendant was wearing when he exited the vehicle.
He acknowledged that his report listed 6:30 P.M. as the time of the incident. On re-direct
examination, he explained that there was “plenty of daylight” to observe the events that
took place.

      Mr. Austin Smith testified that on March 24, 2013, he was living on Buckingham
Lane and owned a gold Chevrolet Caprice. He explained that he left the Caprice in the
driveway of his house that morning because his producer picked him up and brought him
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to work that day. He stated that after the Defendant escaped on foot following the
vehicle pursuit, Mr. Smith’s father called and told him to come home. Mr. Smith
testified that upon returning home, he did not see his Caprice in the driveway but rather
saw it in his neighbor’s yard. He explained that the Caprice was not where he had left it
that morning and that he did not give anyone permission to use his car that day. He also
stated that the Defendant is his cousin and made an in-court identification of the
Defendant. Mr. Smith testified that the ignition of his Caprice was malfunctioning and
that a key was not necessary to drive the vehicle.

       On cross-examination, Mr. Smith testified that there was no physical damage to
the Caprice. He conceded that “based off [the] ignition system, anybody could have
come and gotten the car, because it was never locked.” He stated that on March 24,
2013, he did not allow the Defendant to borrow his car and did not see the Defendant.

      The Defendant stipulated to being a habitual motor vehicle offender. The jury
found the Defendant guilty of evading arrest in a motor vehicle, evading arrest on foot,
and operating a motor vehicle while declared a habitual traffic offender.

        At the sentencing hearing, the trial court found several enhancing factors that
applied to the Defendant. Defense counsel urged the trial court to run the sentences
concurrently because the Defendant had not been previously convicted of a felony.
Defense counsel also argued that the evading arrest on foot conviction should be merged
with the evading arrest in a motor vehicle conviction. The trial court found that
enhancement factor number one applied, noting that the Defendant had many prior
convictions, including evading arrest, resisting arrest, jail escape, and assault. T.C.A. §
40-35-114(1) (2015). The trial court also found that enhancement factor number eight
applied, noting that the Defendant, whose record contained four revocations of probation,
failed to abide by the terms of prior releases into the public. Id. § 40-35-114(8). The trial
court also found that enhancement factor number thirteen applied because the Defendant
was out on bond and on probation at the time of the instant offenses. Id. § 40-35-
114(13). Based on the aforementioned findings and determining that the Defendant was
a Range I offender, the trial court imposed the maximum sentence for each conviction:
two years for evading arrest in a motor vehicle, eleven months and twenty-nine days at
seventy-five percent for evading arrest on foot, and two years for operating a motor
vehicle while declared a habitual offender. Id. §§ 40-35-111(e)(1), -112(a)(5). The trial
court did not find that any mitigating factors applied, and that none were suggested to the
court.

       The trial court ordered the Defendant to serve his sentences consecutively, finding
that the Defendant’s criminal record was extensive and that the Defendant was on
probation when he committed the instant offenses. Id. § 40-35-115(b)(2), (b)(6). The
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trial court also refused to merge the evading arrest convictions, noting that the offenses
occurred during separate and distinct time periods. Finally, the trial court denied
alternative sentencing for the Defendant, concluding that his criminal record was too
extensive and that his record for abiding by the terms of previous alternative sentencing
was “abysmal.” The trial court later amended the Defendant’s sentence, merging the
evading arrest on foot conviction with the evading arrest with a motor vehicle conviction.
The Defendant received an effective four-year sentence of incarceration.

                                       ANALYSIS

       On appeal, the Defendant challenges the sufficiency of the evidence to sustain his
convictions. The crux of the Defendant’s argument lies in the proof concerning the
identity of the driver of the gold Chevrolet Caprice. The Defendant challenges whether
Deputy Jordan was capable of making a positive identification of the driver of the
Caprice. The Defendant also argues that the trial court abused its discretion by giving the
Defendant the maximum available sentence for his convictions.

                           I.     Sufficiency of the Evidence

       When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient “to
support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.
App. P. 13(e). The appellate court determines “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 (1979). In determining the sufficiency of the evidence, this court does not
reweigh or reevaluate the evidence. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004). Instead, this court affords the State the strongest legitimate view of the evidence
contained in the record, as well as all reasonable and legitimate inferences that may be
drawn from that evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). “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.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The conviction replaces the presumption of
innocence with a presumption of guilt, and the accused has the burden of 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).

        The identity of the perpetrator is an indispensable element of the crime. See White
v. State, 533 S.W.2d 735, 744 (Tenn. Crim. App. 1975). The identity of an accused may
be established by either direct evidence, circumstantial evidence, or a combination of the
two. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). “The credible testimony of
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one identification witness is sufficient to support a conviction if the witness viewed the
accused under such circumstances as would permit a positive identification to be made.”
 State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999). Identity is a question of
fact for the jury to determine after consideration of all the evidence. State v.
Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).

        According to Tennessee Code Annotated section 39-16-603, “it is unlawful for
any person to intentionally flee by any means of locomotion from anyone the person
knows to be a law enforcement officer if the person: (A) knows the officer is attempting
to arrest the person; or (B) has been arrested.” T.C.A. § 39-16-603(a)(1)(A), (B) (1995).
Additionally, “[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.” Id. § 39-16-603(b)(1).

       According to Tennessee Code Annotated section 55-10-616, “[i]t is unlawful for
any person to operate any motor vehicle in this state while the judgment or order of the
court prohibiting the operation remains in effect.” T.C.A. § 55-10-616(a).

        In the light most favorable to the State, it is clear from the record that Deputy
Jordan attempted to arrest the driver of the gold Chevrolet Caprice, whom he identified as
the Defendant. The vehicle involved in this incident was registered to the Defendant’s
cousin, and the Defendant knew of the vehicle’s existence after visiting his cousin’s
house previously. The Defendant engaged Deputy Jordan in a high-speed vehicle chase
and ignored Deputy Jordan’s signal to pull over. The Defendant drove the Caprice to his
cousin’s house where the Caprice was parked earlier that same day. After the vehicle
chase ended, Deputy Jordan witnessed the Defendant exit the driver’s side door of the
Caprice, look at Deputy Jordan, flee on foot, and disappear into a residential backyard.
Deputy Jordan testified that he knew who the Defendant was as soon as he exited the
Caprice because he has known the Defendant for many years. Deputy Jordan explained
that at that moment, visibility was fine, that the sun had not yet set, and that he was about
fifteen to twenty yards away from the Defendant. It was reasonable for the jury to
conclude that Deputy Jordan could positively identify the Defendant. Accordingly, the
evidence was sufficient to support the evading arrest convictions.

       At trial, the Defendant stipulated to being a motor vehicle habitual offender.
Deputy Jordan made positive identification of the Defendant as the operator of the
Caprice upon seeing the Defendant exit the driver’s side door of the Caprice.
Accordingly, the evidence was sufficient to support the operating a motor vehicle as a
habitual traffic offender conviction.

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                                    II.     Sentencing

      The Defendant argues that the trial court abused its discretion by imposing the
maximum available sentence. He contends that he should be given a shorter sentence
because of Tennessee’s limited ability to house prisoners.

       This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-
range sentences that reflect a proper application of the purposes and principles of
our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will
uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. Even if the trial court “recognizes and
enunciates several applicable mitigating factors, it does not abuse its discretion if it does
not reduce the sentence from the maximum on the basis of those factors.” State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The trial court is “to be guided by—but not
bound by—any applicable enhancement or mitigating factors when adjusting the length
of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. A sentence imposed
by the trial court that is within the appropriate range should be upheld “[s]o long as there
are other reasons consistent with the purposes and principles of sentencing, as provided
by statute.” Id. The appealing party bears the burden of proving that the sentence was
improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining the sentence, the trial court must consider: (1) any evidence
received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the applicable mitigating and enhancement factors; (6) any statistical
information provided by the administrative office of the courts as to sentencing practices
for similar offenses in Tennessee; and (7) any statement the defendant wishes to make in
the defendant’s own behalf about sentencing. T.C.A. § 40-35-210(b). “The sentence
imposed should be the least severe measure necessary to achieve the purposes for which
the sentence is imposed,” and “[t]he potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining the sentence alternative
or length of a term to be imposed.” Id. § 40-35-103(4), (5).

        The decision to impose consecutive sentences rests within the sound discretion of
the trial court. State v. Hayes, 337 S.W.3d 235, 266 (Tenn. Crim. App. 2010); State v.
Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999). Our supreme court held that the
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standard of appellate review for consecutive sentencing is abuse of discretion
accompanied by a presumption of reasonableness. State v. Pollard, 432 S.W.3d 851, 859
(Tenn. 2013). To impose consecutive sentencing, the trial court must find by a
preponderance of the evidence at least one of several factors, including that “[t]he
defendant is an offender whose record of criminal activity is extensive” or “[t]he
defendant is sentenced for an offense committed while on probation.” T.C.A. § 40-35-
115(b). The trial court may properly impose a consecutive sentence upon the finding of
just one of the criteria listed in the statute. State v. Alder, 71 S.W.3d 299, 307 (Tenn.
Crim. App. 2001). Consecutive sentencing is also “guided by the general sentencing
principles providing that the length of a sentence be ‘justly deserved in relation to the
seriousness of the offense’ and ‘no greater than that deserved for the offense
committed.’” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing T.C.A. §§ 40-35-
102(1), -103(2)).

       Here, the Defendant was convicted of evading arrest while operating a motor
vehicle, which is a Class E felony that is punishable by a sentence of one to two years as
a Range I offender. T.C.A. §§ 39-16-603(b)(3); 40-35-112(a)(5). The Defendant was
also convicted of operating a motor vehicle as a habitual traffic offender, which is also a
Class E felony that is punishable by a sentence of one to two years as a Range I offender.
Id. §§ 55-10-616(b); 40-35-112(a)(5). The trial court sentenced the Defendant to the
upper bounds of each sentencing range and ran the felony convictions consecutively to
one another, imposing an effective four-year sentence of incarceration.

        Although the Defendant argues that the trial court abused its discretion, we hold
that the trial court acted well within its discretion when sentencing the Defendant. At the
sentencing hearing, the Defendant’s presentence report was introduced, which showed
that the Defendant had numerous arrests, convictions, and failed attempts at probation.
The trial court found that no mitigating factors and three enhancement factors applied to
the Defendant: he had a criminal history, failed to abide by the requirements of probation
many times, and committed the instant offenses while on probation and bail. See id. §§
40-35-113, -114(1), -114(8), -114(13). The trial court also found two criteria for
imposing consecutive sentences: he was on probation and out on bail when he committed
the instant offenses and his criminal record was extensive—over fifty prior convictions.
See id. 40-35-115(b)(2), (6). The evidence introduced at the sentencing hearing supports
the trial court’s findings. Accordingly, we conclude that the trial court did not err
in sentencing the Defendant.

                                    CONCLUSION

      Based upon the foregoing reasons, we affirm the judgments of the trial court.

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 ____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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