            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                          SEPTEMBER 1997 SESSION
                                                           April 7, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,           *    C.C.A. No. 01C01-9509-CC-00302 Clerk
                                                    Appellate Court

             Appellee,        *    LINCOLN COUNTY

VS.                           *    Hon. Charles Lee, Judge

JAMES RAY BARTLETT,           *    (DUI, Driving on Revoked License,

             Appellant.       *    Reckless Driving, Evading Arrest)




For Appellant:                     For Appellee:

A. Jackson Dearing, III            Charles W. Burson
117 S. Main Street                 Attorney General & Reporter
Shelbyville, TN 37160
(on appeal)                        Eugene J. Honea
                                   Assistant Attorney General
Robert Peters                      450 James Robertson Parkway
100 First Ave., S.W.               Nashville, TN 37243-0493
Third National Bank
Winchester, TN 37398               Michael McCown
(at trial)                         Attorney General
                                   Marshall County Courthouse
                                   Lewisburg, TN 37091

                                   Charles Crawford
                                   Assistant District Attorney General
                                   215 E. College Street
                                   Fayetteville, TN 37334




OPINION FILED:__________________



AFFIRMED AS MODIFIED



GARY R. WADE, JUDGE
                                       OPINION

              The defendant, James Ray Bartlett, was indicted for DUI, driving on a

revoked license, five counts of reckless driving, resisting arrest, evading arrest and

reckless endangerment. At the close of the state's proof, the trial court granted the

defendant's motion for acquittal as to the charge of resisting arrest. The jury

rendered guilty verdicts as to the remaining counts. After setting aside the

conviction for reckless endangerment, the trial court sentenced the defendant to ten

months for the DUI; four months and fifteen days for driving on a revoked license;

five months for the reckless driving convictions, all of which were merged as one

offense; and ten months for evading arrest. The transcript of the trial indicates

sentences were ordered to be served consecutively for an effective sentence of

twenty-nine months fifteen days with the minimum service at seventy-five percent.

The judgment form indicates concurrent sentencing for all new convictions. The trial

court revoked the defendant's community corrections sentence for prior convictions;

these new sentences were ordered to be served consecutively to the prior offenses

according to the judgment form.



              In this delayed appeal, the defendant presents the following issues for

our review:

              (I) whether the evidence was sufficient to support his
              convictions;

              (II) whether the trial court erred by allowing the state to
              introduce inadmissible character evidence in violation of
              Rule 404, Tenn. R. Evid.; and

              (III) whether the trial court erred in the length and
              manner of sentence imposed.




                                           2
              We find no error and affirm the judgment of the trial court. The

judgments are modified to the extent necessary to reflect concurrent sentencing for

these offenses which are to be served consecutively to the prior convictions.



              We preface our discussion of the issues by the procedural history of

this case. At the conclusion of the sentencing hearing on December 13, 1994, the

hearing on the motion for new trial was set for a date almost two months later. The

motion for new trial was not timely filed. At the hearing on the motion, the

defendant, on the advice of his counsel who saw no issues for appeal, "withdr[e]w"

his motion for a new trial before it was heard and informed the trial court that he

would file a written "waiver." Thus, there was no hearing on the motion and no order

of disposition at that time. Defense counsel did not file notice of appeal.



              On May 1, 1995, defendant's newly appointed appellate counsel filed a

notice of appeal and the trial court granted a delayed appeal. Because no hearing

on the motion for new trial had been conducted, the cause was remanded for that

purpose. State v. James Ray Bartlett, C.C.A. No. 01C01-9509-CC-00302, Order

(Tenn. Crim. App., at Nashville, Feb. 26, 1996). The trial court denied a new trial

and this appeal followed.



              At trial, Cliff Page, who was related to the defendant by marriage,

testified that between 9:30 P.M. and 10:45 P.M. on March 4, 1994, he saw the

defendant driving his stepdaughter's Sunbird near the Dairy Queen. Page informed

Officer Richard Howell, who was parked nearby in his police cruiser, that he had

seen the defendant driving "all over the road[,] both lanes." Later, Page, who

acknowledged his dislike for the defendant, saw him driving the same car near the




                                           3
courthouse square. Page did not know how many passengers accompanied the

defendant at the time and could not recognize them.



              Sue Repasky, an employee of South Main Minimart, knew the

defendant as a frequent store customer. On the date of the offense, she observed

the defendant purchase a quart of beer between 10:00 P.M. and midnight. Ms.

Repasky watched the defendant leave the store, step into a vehicle, and drive in the

direction of the courthouse square.



              Sam Rollins, a neighbor of the defendant, recalled seeing him near the

courthouse square three or four times on that same evening between 7:00 and

10:00 P.M. When he last saw the defendant at about 10:00 P.M., the defendant

was driving around the square. Rollins recalled hearing the defendant "take off" in

his car and seeing the police officer engage the blue lights. He remembered there

was at least one other passenger in the defendant's vehicle.



              Deputy Sheriff Craig Bledsoe, who had known the defendant about

two years, saw him driving around the courthouse square at about 10:00 P.M. on

the night in question. Deputy Bledsoe, who was off-duty that night, did not detect

any erratic driving on the part of the defendant at that time.



              The defense stipulated that the defendant's driver's license had been

revoked. He was not authorized to drive on the night of these offenses.



              Officer Howell, who had worked for the Fayetteville Police Department

for five years, had been assigned to the second shift on the night of the defendant's

arrest. He recalled being approached by Page at about 10:00 P.M. and being


                                           4
informed that the defendant was probably drunk and was driving recklessly on South

Main Street in a Sunbird. When Officer Howell drove his cruiser in the direction of

the courthouse square, he saw the defendant, who was wearing a denim shirt,

jacket, and a black cap, driving a Sunbird automobile. Although he saw a

passenger in the defendant's car, Officer Howell could not see him clearly from a

distance of twenty-five to thirty feet. When Officer Howell approached the

defendant's vehicle, the defendant "accelerated real fast," "started off the square,"

and ran a stop sign. Officer Howell activated his blue lights, siren, and video

camera. During the pursuit, the defendant ran five stop signs and exceeded speeds

of 100 miles per hour. When Officer Howell's cruiser had a flat tire, he sent a radio

message to the dispatcher, changed his tire and, within twenty minutes, drove to the

defendant's residence.



              Officer Howell described the defendant as clearly under the influence.

The defendant, who could not produce a driver's license, refused field sobriety and

breath tests but admitted that he had consumed two quarts of beer. Officer Howell,

who early the next morning swore out an arrest warrant for the defendant which

included a description of the pursuit, failed to note that he had identified the

defendant as the driver of the vehicle just prior to activating his blue lights. Instead,

he wrote that the identification was made after the chase began. At trial, Officer

Howell conceded that it would have been impossible to identify the driver after the

pursuit was initiated. He explained that the oversight in his report, which was written

at 3:00 A.M., was due to fatigue. Officer Howell recalled that when he arrived at the

defendant's residence, four or five other officers were already on the scene. He

remembered that the defendant's brother, Michael Bartlett, had claimed to be the

driver of the vehicle.




                                            5
              Defense witness Marty Lyn Bryant claimed that he was with the

defendant just prior to the police chase and testified that Michael Bartlett was the

driver when he left the two men just before the chase began. He recalled that the

defendant was in the back seat of the vehicle at that time.



              Michael Bartlett, the nineteen-year-old brother of the defendant,

testified that both he and his brother wore a mustache, beard, and long hair on the

date in question. He claimed that he was wearing a light and dark blue shirt and

remembered that he was not wearing his prescription glasses at the time because a

lens had fallen out. He stated that the defendant wore a black George Dickel

T-shirt. Michael Bartlett testified that he was driving when the officer activated his

blue lights and that he "got scared and headed towards home." He explained that

some of the police officers had been harassing his brother and he was afraid they

were going to "start it with me." He drove the twelve miles home "pretty fast."



              Michael Bartlett testified that when he arrived at their residence, he

stayed in the yard and the defendant went inside. He claimed that when Officer

Terry Quick arrived, he admitted that he was the driver and was searched,

handcuffed, and placed in a patrol car. When Officer Howell arrived, however, five

or ten minutes later, he was released and the defendant was arrested.



                                            I

              The defendant first challenges the sufficiency of the evidence as to

each conviction. On appeal, of course, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which might be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of

the witnesses, the weight to be given their testimony, and the reconciliation of


                                           6
conflicts in the proof are matters entrusted to the jury as triers of fact. Byrge v.

State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the

evidence is challenged, the relevant question is whether, after reviewing the

evidence in the light most favorable to the state, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



              There are statutory definitions for each of the offenses at issue. "It is

unlawful for any person ... to drive or to be in physical control of any automobile or

other motor driven vehicle on any of the public roads ... while under the influence of

any intoxicant...." Tenn. Code Ann. § 55-10-401(a) (1993). "A person who drives a

motor vehicle on any public highway ... at a time when a person's privilege to do so

is ... revoked commits a Class B misdemeanor...." Tenn. Code Ann. § 55-50-

504(a)(1) (1993). A person commits reckless driving who "drives any vehicle in

willful or wanton disregard for the safety of persons or property...." Tenn. Code Ann.

§ 55-10-205(a) (1993). The speed at which a motor vehicle travels may establish a

willful and wanton disregard for persons or property. State v. Wilkins, 654 S.W.2d

678 (Tenn. 1983); Bowers v. Thompson, 688 S.W.2d 827 (Tenn. App. 1984). A

person evades arrest who, "intentionally flee[s] from anyone the person knows to be

a law enforcement officer and the person ... [k]now[s] the officer is attempting to

arrest the person...." Tenn. Code Ann. § 39-16-603(a)(1)(1989).



              A person acts intentionally with respect to the nature of conduct or the

results that flow therefrom, "when it is the person's conscious objective or desire to

engage in the conduct or cause the result." Tenn. Code Ann. § 39-13-302(a). A

person acts knowingly with respect to conduct or circumstances, "when the person

is aware of the nature of the conduct or that circumstances exist. A person acts


                                            7
knowingly with respect to a result ... when the person is aware that the conduct is

reasonably certain to cause the result." Tenn. Code Ann. § 39-11-302(b).



              With its verdict, the jury accredited the testimony of the state's

witnesses. That was clearly their prerogative. The trial testimony established each

of the elements necessary for all four offenses. The defendant acknowledged

having consumed two quarts of beer just prior to his arrest. The jury believed

Officer Howell's assertion that the defendant was intoxicated and that he was the

operator of the vehicle. Thus, there was sufficient evidence to support the

conviction for driving under the influence and driving on a revoked license.



              The proof was also sufficient to establish that the defendant had driven

recklessly. The video tape of the chase scene established that the defendant ran

five stop signs. Officer Howell testified that the defendant exceeded speeds of 100

m.p.h. One vehicle was driven onto the curb in order to avoid a collision. In our

view, these actions establish a willful and wanton disregard for the safety of others.

Finally, instead of yielding to the blue lights of Officer Howell's police vehicle, the

defendant accelerated and sped away from the courthouse square in his attempt to

avoid arrest. The defendant took a circuitous route through and out of town in an

attempt to evade the police. That evidence was sufficient to support the conviction

for evading arrest.



                                             II

              Next, the defendant argues that certain of the testimony was

inadmissible and should have been excluded by the trial court. He specifically

argues that Rule 404(b), Tenn. R. Evid., requires exclusion of the testimony of Page

and Rollins who observed the defendant driving the Sunbird vehicle between 7:00


                                            8
and 9:00 P.M. on March 4, 1994. He complains that these prior incidents constitute

inadmissible character evidence of other wrongs or acts. In response, the state

contends the evidence is simply not character evidence.



             Generally, the standard of review of evidentiary rulings by a trial court

is one of abuse of discretion; however, when the issue regards Rule 404(b), Tenn.

R. Evid., the trial court must "upon request" hold a jury out hearing, make a

determination of relevancy, and find that the probative value of the evidence is not

outweighed by unfair prejudice. Tenn. R. Evid. 404(b)(1),(2),(3). Where a court fails

to substantially comply with these requirements, the court's decision is afforded no

deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In this instance,

defense counsel did not request a jury out hearing and the trial court did not order

one. In our view, however, the trial court substantially complied with the rule. Thus,

the abuse of discretion standard is applicable.



             Rule 404(b) provides as follows:

             Other Crimes, Wrongs, or Acts. Evidence of other
             crimes, wrongs, or acts is not admissible to prove the
             character of a person in order to show action in
             conformity with the character trait. It may, however, be
             admissible for other purposes. The conditions which
             must be satisfied before allowing such evidence are:

               (1) The court upon request must hold a hearing outside
             the jury's presence;

               (2) The court must determine that a material issue
             exists other than conduct conforming with a character
             trait and must upon request state on the record the
             material issue, the ruling, and the reasons for admitting
             the evidence; and

               (3) The court must exclude the evidence if its probative
             value is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). In several prior cases, our appellate courts have held that

the rule operates to exclude evidence of other crimes, wrongs or acts only when

                                          9
they are "wholly independent of that for which [the defendant] is charged." State v.

Howell, 868 S.W.2d 238, 254 (Tenn. 1993); State v. King, 718 S.W.2d 241 (Tenn.

1986).



              Each count of the indictment against the defendant charges that the

offense occurred on March 4, 1994. There is no reference to specific time. The

video tape showed that the offense occurred between 10:13 and 10:21 P.M. Page

testified that he saw the defendant driving between 9:30 and 10:45 P.M., clearly

within the time frame of Officer Howell's high-speed chase of the defendant. Thus,

the crimes charged did not qualify as "separate" under the prohibitions of Rule

404(b). Rollins testified that he saw the defendant three or four times on March 4,

1994, beginning as early as 7:00 P.M.; he testified that he observed the defendant

driving the vehicle at approximately 10:00 P.M. Again, the event was not "separate."

Thus, the evidence admitted at trial was not inadmissible character evidence.



                                          III

              The defendant also challenges the length of sentencing. He argues

that the ten-month sentence is excessive for an act that spanned no more than ten

minutes and twelve miles. He reasons that no one was injured and no property was

damaged.



              This sentence is controlled by the Criminal Sentencing Reform Act of

1989. Tenn. Code Ann. § 40-35-117(b). When a challenge is made to the length,

range, or manner of the service of a sentence, it is the duty of this court to conduct a

"de novo review ... with a presumption that the determinations made by the court

from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). The




                                          10
Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of a sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statement made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In misdemeanor sentencing, the court is required to provide the

defendant with a reasonable opportunity to be heard as to the length and manner of

the sentence. The sentence must be specific and consistent with the purposes of

the Act. Tenn. Code Ann. § 40-35-302(a), (b). A percentage of not greater than

seventy-five percent of the sentence should be fixed for a service for a

misdemeanor offender; however, a DUI offender may be required to serve the full

one hundred percent of his sentence. Tenn. Code Ann. § 40-35-302(d); Palmer v.

State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the percentage of the

sentence, the court must consider enhancement and mitigating factors as well as

the legislative purposes and principles related to sentencing. Tenn. Code Ann. §

40-35-302(d).



              Upon service of that percentage, the administrative agency governing

the rehabilitative programs determines which among the lawful programs available is

appropriate. The trial court retains the authority to place the defendant on probation

either immediately or after a term of periodic or continuous confinement. Tenn.


                                          11
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider

public or private agencies for probation supervision prior to directing supervision by

the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory

scheme is designed to provide the trial court with continuing jurisdiction in the

misdemeanor case and a wide latitude of flexibility. The misdemeanant, unlike the

felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,

885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).



              For each conviction, the trial court applied principles of the 1989 Act,

including enhancing or mitigating factors. For the DUI conviction, which has a

minimum sentence of forty-eight hours and a maximum sentence of eleven months

and twenty-nine days, the trial court imposed a ten-month sentence. The court

found no mitigating factors and applied the following enhancing factors to arrive at

the sentence:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those
              necessary to establish the appropriate range;

              (8) The defendant has a previous history of
              unwillingness to comply with the conditions of a sentence
              involving release in the community; and,

              (13) The felony was committed while on any of the
              following forms of release status if such release is from a
              prior felony conviction: ... (C) Probation[.]

Tenn. Code Ann. § 40-35-114(1), (8), (13)(C) (Supp. 1993). The trial court properly

applied factor (1); the defendant has a history of criminal behavior and convictions

including theft, aggravated assault, aggravated burglary and larceny, among others.

The defendant also has a history of probation violations, thus application of (8) was

also proper. Because, however, (13)(C) does not apply to misdemeanors, that

enhancement factor was misapplied. Nonetheless, the significant weight attached

to the two applicable enhancement factors would warrant the ten-month sentence.


                                          12
              The trial court imposed a four-month-fifteen-day sentence for the

conviction of driving on a revoked license. The single mitigating factor was that no

serious bodily injury was threatened or caused by the defendant's committing this

offense. The same three enhancing factors for the DUI offense were applied to this

offense. The application of (1) and (8) were proper, but (13)(C) was improper. In

our view, the sentence should remain the same.



              Reckless driving, a Class B misdemeanor, may include a sentence of

not more than six months. The trial court sentenced the defendant to five months.

The trial court again properly applied enhancements (1) and (8), and improperly

attached (13)(C). In addition, the trial court identified the following as enhancement

factors:

              (2) The defendant was a leader in the commission of an
              offense involving two (2) or more criminal actors;

              (3) The offense involved more than one (1) victim; and

              (7) The offense involved a victim and was committed to
              gratify the defendant's desire for pleasure or
              excitement[.]

Tenn. Code Ann. § 40-35-114 (Supp. 1993). Because the defendant was the sole

driver and the only person charged with an offense, the state agrees that (2) was

improperly applied. The application of (3) was also improper in that the defendant

caused no injuries or property damage. See State v. Raines, 882 S.W.2d 376

(Tenn. Crim. App. 1994). Because there was no victim in this case, enhancement

factor (7) was not applicable. Nonetheless, the defendant drove through five

intersections at high rates of speed while intoxicated and without a valid driver's

license. The applicable enhancement factors, in our view, are entitled to significant

weight. The defendant did not receive the maximum term. Thus, we find the

reckless driving sentence of five months appropriate.



                                          13
              Evading arrest is a Class A misdemeanor and may include a sentence

of not more than eleven months and twenty-nine days. The trial court imposed a

ten-month sentence and applied factors (1), (2), (7), (8), and (13)(C), as previously

set forth in this opinion, and one additional factor: "(9) The defendant possessed or

employed a firearm, explosive device or other deadly weapon during the

commission of the offense." Tenn. Code Ann. § 40-35-114(9) (Supp. 1993). The

state concedes that factors (2), (7), (9), and (13)(C) should not have been applied

and are not supported by the record. Only (1) and (8) were properly applied.

Nonetheless, the defendant's sentence is within the range specified by the statute

and less than the maximum possible. We attach considerable weight to the

defendant's prior record, his lack of candor, and his heedless disregard for the

authority of law enforcement. The ten-month sentence is just.



              The state would have this court uphold the defendant's sentences for

evading arrest by the application of the following additional enhancement factors:

              (10) The defendant had no hesitation about committing a
              crime when the risk to human life was high;

              (15) The defendant abused a position of public or private
              trust...; and

              (16) The crime was committed under circumstances
              under which the potential for bodily injury to a victim was
              great.

Tenn. Code Ann. § 40-35-114 (10), (15), (16) (Supp. 1993). The application of

enhancement factor (10) is appropriate not only for evading arrest but also for the

reckless driving offense. The defendant showed no hesitation in endangering the

lives of other motorists for the entire length of the police chase. Because the trial

court failed to apply (16), we are hesitant to do so. No particular facts in the record

would support that. While the defendant was a participant in the Community

Corrections program when these offenses occurred, we do not classify these


                                           14
offenses as a violation of public trust. Because the trial judge properly applied an

enhancement for failure to comply with sentencing on release to the community, the

inclusion of (15) would be a duplication.



              Consecutive sentences may be imposed in the discretion of the trial

court only upon a determination that one or more of the following criteria exist:

              (1) The defendant is a professional criminal who has
              knowingly devoted himself to criminal acts as a major
              source of livelihood;

              (2) The defendant is an offender whose record of
              criminal activity is extensive;

              (3) The defendant is a dangerous mentally abnormal
              person so declared by a competent psychiatrist who
              concludes as a result of an investigation prior to
              sentencing that the defendant's criminal conduct has
              been characterized by a pattern of repetitive or
              compulsive behavior with heedless indifference to
              consequences;

              (4) The defendant is a dangerous offender whose
              behavior indicates little or no regard for human life, and
              no hesitation about committing a crime in which the risk
              to human life is high;

              (5) The defendant is convicted of two (2) or more
              statutory offenses involving sexual abuse of a minor with
              consideration of the aggravating circumstances arising
              from the relationship between the defendant and victim
              or victims, the time span of defendant's undetected
              sexual activity, the nature and scope of the sexual acts
              and the extent of the residual, physical and mental
              damage to the victim or victims;

              (6) The defendant is sentenced for an offense
              committed while on probation;

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). Even if the court finds one of these factors

applicable, however, aggravating circumstances must be present before

consecutive sentences may be imposed. Gray v. State, 538 S.W.2d 391, 393

(Tenn. 1976).


                                            15
              In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involve

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses. Gray, 538 S.W.2d at 393. In State v. Wilkerson, 905

S.W.2d 933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding

that consecutive sentences cannot be required of the dangerous offender "unless

the terms reasonably relate to the severity of the offenses committed and are

necessary in order to protect the public (society) from further criminal acts by those

persons who resort to aggravated criminal conduct." The Wilkerson decision, which

modified somewhat the strict, factual guidelines for consecutive sentencing adopted

in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described

sentencing as a "human process that neither can nor should be reduced to a set of

fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938.



              The state concedes that the trial court failed to make findings of fact to

support consecutive sentencing as required by law. The judgment forms for each

conviction show all sentences are concurrent to each other and consecutive to the

defendant's prior felony sentences. That appears to have been the intent of the trial

court.



              Accordingly, the defendant's convictions are affirmed. The sentences

are modified to conform to the judgment entered by the trial judge, all to be served

at seventy-five percent minimum service.



                                          __________________________________
                                          Gary R. Wade, Judge

                                          16
CONCUR:



______________________________
Thomas T. W oodall, Judge



_______________________________
Curwood Witt, Judge




                                  17
