        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                        JANUARY SESSION, 1997




STATE OF TENNESSEE,          )    C.C.A. NO. 02C01-9512-CR-00370
                             )
     Appellee,               )
                             )    SHELBY COUNTY
                             )
V.                           )
                             )    HON. W. FRED AXLEY, JUDGE
JASO N MO RIN,               )
                             )    (AGGR AVATE D ASS AULT ,
     Appe llant.             )    RECKLESS ENDANGERM ENT)




FOR THE APPELLANT:                FOR THE APPELLEE:

TIMOTHY JOEL WILLIAMS             JOHN KNOX WALKUP
147 Jefferson Avenue, Suite 909   Attorney General & Reporter
Memphis, TN 38103
                                  S. SCOTT JACKSON
                                  Assistant Attorney General
                                  500 Charlotte Avenue
                                  Nashville, TN 37243-0491

                                  JOH N W. P IERO TTI
                                  District Attorney General

                                  JUDSON W. PHILLIPS
                                  Assistant District Attorney General
                                  201 Poplar Avenue, 3rd Floor
                                  Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED AS MODIFIED

THOMAS T. WOODALL, JUDGE
                                 OPINION

      The Defendant appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure. He was convicted of two counts o f aggravated

assault and one count of reckless endangerment following a jury trial in Shelby

Coun ty Criminal Court. The Defendant was sentenced to six (6) years on one

aggrava ted assa ult cha rge an d four (4 ) years on the other a ggrav ated a ssau lt

charge to be serv ed con currently. The Defendant was sentenced to two (2) years

on the reckless endangerment charge to run consecutively to the aggravated

assa ult sentences. He argues three issues in this appeal: (1) Whether the trial

court erred in disallowing cross-examination concerning the police pursu it policy;

(2) whethe r the trial cou rt erred in ins tructing the jury that it cou ld convict the

Defendant on both counts of the aggravate d ass ault ba sed u pon o ne sin gle

transaction; and (3) whether the trial court erre d in sente ncing the Defen dant to

conse cutive sen tences . As mo dified, we a ffirm the jud gmen t of the trial cou rt.



      In the early morning hours of Sep temb er 10, 1 994, th e Def enda nt and his

friends w ere at a bar called Mugs in the Raleigh area of Memp his. Police were

called to the sce ne bec ause o f an alterca tion in the b ar. When the police began

to arrive, the Defendant ran out of the bar, carrying what was thought to be a

club. He then jumped into the vehicle in which he had come to the bar with a

friend, and drove out of the parking lot. The officers who were responding to the

call followed the Defendant signaling him to pull over. The Defendant did not

stop and proceeded to lead the officers on a high speed chase that lasted twenty-

five (25) to thirty (30) minutes . The spee ds reache d during the ch ase were



                                          -2-
estimated to be around seventy miles an hour. At certain points during the

chase, the speed reached was twice the speed limit of the area.



      The chase led to several dangerous situations. At one point during the

chase, the Defendant hit a dog. The Defendant also drove onto a field that was

located behin d a loc al high scho ol. He p rocee ded to drive ar ound in circles while

on the field with the police chasing him. After driving off the field, the Defendant

ran a stop sign. As he was running this stop sign, the Defendant ran into a police

car driven by Officer D. R. Williams, spun around 360 degrees and continued to

flee. Officer Williams hit his head against the window of his vehicle mak ing him

dizzy, and he was unable to work the remainder of his shift. Officer Williams also

sustained an injury to his leg, but did not receive medical attention.            The

Defendant eventua lly came to a stop at a dead end street and attempted to flee

on foot. He was caught and arrested.



                                          I.



      The Defendant’s first issue is whether the trial court erred in not allowing

the Defendant to cross-examine the police officers, who testified at trial,

concerning their violation of the police pursuit policy. Following a discussion out

of the presence of the jury, the trial court ruled that the Defendant could not

cross-examine the offic ers co ncern ing the Mem phis P olice D epartm ent’s p ursuit

policy. The State’s objection, which was sustaine d by the trial c ourt, was that the

pursuit policy was not relevant to the proceedings. The Defendant now argues

that the pu rsuit policy was indeed relevant, and the trial court erred in sustaining

the State’s objection.

                                          -3-
      Rule 401 of the Tennessee Rules of Evidence states that relevant

evidence is “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less

proba ble than it would be without the evidence.” The Advisory Commission

Com ments that ac com pany R ule 401 state, “[t]he m ateriality conc ept is fo und in

the words, ‘any fact that is of c onseq uence to the dete rminatio n of the ac tion.’

To be releva nt, evidence m ust tend to prove a material issue.” See also, State

v. Banks, 564 S.W .2d 947, 949 (Tenn. 197 8).



      In its brief the Sta te argu es tha t the po lice pu rsuit policy is not a material

issue in the case sub judice. We agree. The issue at tr ial was whether the

Defendant was g uilty of rec kless enda ngerm ent and aggrava ted assa ult.

Whether the officers violated the police pursuit policy had no bearing on the

Defendant’s guilt or innocence.



      This issu e is withou t merit.



                                          II.



      The Defendant’s second issue is whether the trial court erred by instructing

the jury that it could convict Defendant on both counts of the aggra vated assa ult

charges, based upon one single transaction and involving one criminal mental

state. The De fendant was indicted on two c ounts of agg ravated assault. The

first count alleged that Defenda nt, “on Septem ber 10, 1994, in Shelby C ounty,

Tennessee, and before the finding of this indictment, did unlawfully and

intentionally, by use of a deadly w eapo n, to-w it: a mo tor veh icle, cau se bo dily

                                          -4-
injury to D. R. Williams, in violation of T.C.A. 39- 13-10 2.” Ag grava ted as sault

under this provision is a Class C felony.         The second count alleged that

Defen dant, “on September 10, 1994, in Shelby Co unty, Tennes see, and be fore

the finding of this indictment, did unlaw fully and reckle ssly, by u se of a dead ly

weapon, to-wit: a mo tor vehicle, c ause b odily injury to D. R. Williams, in violation

of T.C.A. 39-13-102.” Aggravated assault under this provision is a Class D

felony. These two counts are both for aggravated assault stemming from the

collision between the Defendant and the officer. The two aggravated as sault

charges are identical except for the mental states of intentional in Count 1 and

reckless in Count 2.



      W e find that these two convictions for aggravated assault violate the

doub le jeopa rdy clau se of th e Unite d State s and Ten ness ee Co nstitutions.

Therefore, the our court will address the issue of dou ble jeo pardy as this is plain

error. “An error which has affected the substantial rights of an accused may be

noticed at any time . . . in the discretion of the appellate cou rt where necessary

to do substan tial justice.” Tenn. R. Crim . P. 52(b).



      Dou ble jeopardy is a long-standing principle in both the United States and

Tennessee Constitutions. This court recen tly addr esse d Dou ble Je opard y in

State v. Pelayo, 881 S.W .2d 7 (Tenn . Crim. App. 19 94):


      The double jeopa rdy clauses of the United States and Tennessee
      Constitutions guard a gainst thre e evils: a second prosecution after
      acquittal for the same offense; a prosecution for the same offense
      after convic tion; and multiple convictions or punishments for the
      same offense. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81
      L.Ed.2d 425(19 84); Brow n v. Oh io, 432 U.S . 161, 165 , 97 S.C t.
      2221, 2225, 53 L.Ed.2d 187 (1977). The common denominator of
      each is whether the offenses involved are the sam e. Befo re mu ltiple

                                          -5-
      convictions can stand, it must be clear that the offenses supporting
      the convictions are “wholly separate and distinct.” State v. Goins,
      705 S.W .2d 648, 650 (Tenn. 198 6).


Pelayo, 881 S.W .2d at 10.



      The Tennessee Supreme Court recently set out the requirements for

resolving a double jeopardy punishment issue under the Tennessee State

Constitution. These requirements are:


      (1) a Blockburg er [v. United States, 284 U .S. 299 (1932 )] analy sis
      of the statutory offenses; (2) an analysis, guided by the principles of
      Duchac [v. State, 505 S.W .2d 237 (Tenn . 1973), cert. denied, 419
      U.S. 877 (1974)], of the evidence used to prove the offenses; (3) a
      conside ration of whether there were multiple victims or discrete acts;
      and (4) a comparison of the purposes of the respective statutes.
      None of thes e step s is determinative; rather the results of each must
      be weighe d and con sidered in relation to ea ch other.


State v. Denton, 938 S.W .2d 373, 381 (Tenn. 199 6).



      When an incident violates two distinct statutes and it needs to be

determined whether there are two offenses or one, the test to be applied under

Blockburger is, “whether each provision requires proof of an additional fact which

the other does n ot.” Blockburger, 299 U.S . at 304. The Defendant was twice

convicted of aggravated assault, once under Tennessee Code A nnotated section

39-13-102(a)(1)(B) and once under Tennessee Code Annotated section 39-13-

102(a)(2)(B). These provisions are identical except for the mental state required

for each one. The statutes in the case sub judice clearly do not require proof of

an additional fact. Both require the proof of an assault with a deadly weapon, but

with different mental states. The facts required are the same.




                                        -6-
       The analysis required under Duchac is based on the actual evidence in the

case. Duchac stated the test as:


       “One test of id entity of o ffense s is wh ether th e sam e evide nce is
       required to prove them. If the same evidence is not required, then
       the fact that both charges relate to, and grow out of, one transaction,
       does not make a single offense where two are defined by the
       statutes. “[sic] If there was one act, one intent, and one volition, and
       the defend ant has been tried on a cha rge bas ed on th at act, inten t,
       and volition, no subsequent charge can be based thereon, but there
       is not identity of offenses if on the trial of one offense proof of some
       fact is required that is not necessary to be proved in the trial of the
       other, although some of the same acts may necessarily be proved
       in the trial of ea ch.”


Duchac, 505 S.W.2d at 239 (quoting 21 Am. Ju r. 2d, Criminal Law, § 82). The

evidence required to prove each of the D efendant’s ag gravated assa ult

convictions is the incident of him running into the car of Officer Williams.

Therefore, the same evidence is required to prove each conviction.



       Continuing the analysis set out in Denton, there were not multiple victims.

The indictment specifically names the officer as the injured party in both of the

aggravated assault counts. The fourth requirement, comparison of the purposes

of the respective statutes is the final part of the analysis.      It can safely be

assumed that the purposes of the two aggravated assault statutes are the same.



       In this case, dual convictions of the D efend ant for a ggrav ated a ssau lt

violate the prote ctions ag ainst Do uble Jeo pardy. It is clear unde r the an alysis

required under Denton, that the Defendant has been convicted twice of the same

crime fo r one pa rticular incide nt.




                                         -7-
      Therefore, the Defe ndant can only have one conviction for aggravated

assau lt. When a defendant has been convicted of two counts for one transaction

and one offense is a lesser included offense to the other, the offenses can be

merged resultin g in one conviction. State v. Banes, 874 S.W.2d 73, 81 (Tenn.

Crim. App. 19 93). The first count of aggravated assault is a Class C felony and

the second coun t is a Class D felony. The mental state required for the first

conviction is “intentionally” and the mental state re quired for the s econ d cou nt is

“reckless ly.” The test to determine whether something is a lesser included

offense of anothe r is wheth er “it is impossible to commit the greater offense

without first having committed the lesser.” State v. Layne, 623 S.W.2d 629, 637-

38 (Tenn. Crim. App. 1981). It is evident in the case sub judice that on e cou ld

not com mit aggravated assault, Class C felony, without committing aggravated

assau lt, Class D felon y. Therefore, the second conviction, of Class D aggravated

assault shou ld be merg ed into the Clas s C felony.




                                          III.



      The merger of these two offenses requires the court to impose a sentence

for the one conviction for Class C aggravated assault. The Defendant was

sentenced to six (6) year s on the firs t count of aggravated assault and four (4)

years on the second count of agg ravate d ass ault. Th e trial co urt state d that h is

reason for a higher sentence on the first count was “that the court feels that the

difference between count one and cou nt two is that there is a change in the

wording of the indictment in the reckless at [sic] mental state between the two.”

However, the mental state is not a valid enhancement factor under Tennessee

                                          -8-
Code Annotated section 40-35-114. Therefore, it cannot be used to enhance a

sentence.



      A Range I sentence for a Class C felony is three(3) to six (6) years. The

trial court found several enhancement factors which do apply to the case sub

judice: (1) the Defendant has a previous history of criminal convictions and

criminal behavior; (6) the amount of dam age to p roperty wa s particula rly great;

(8) the Defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; and (10) the

Defendant had no hesitation about committing a crime when the risk to human

life was high. Te nn. Code Ann. § 40-3 5-114(1), (6), (8) & (10). In addition to

these enhance ment factors, u nder Tennessee Code Annotated section 39-13-

102(d), it is an enhancement factor if the victim of an aggravated assault is a

police officer, as in the case sub judice. The court can find no mitigating factors.

Therefore, the appropriate sentence for the aggravated assault conviction is the

maxim um of s ix years, im posed by the trial co urt.




                                         IV.



      The Defenda nt’s final issue is whethe r the trial court erred by ordering the

sentence for the reckless endangerment conviction to be se rved co nsec utively

to the sentence for aggravated assault. Proof of the existence of facts ne cessary

to justify c onse cutive s enten cing m ust on ly be established by a preponderance

of the evidence. Tenn. Code Ann. § 40-35-115(b). Also, consecutive sentencing

requires that,

                                         -9-
      “[I]n addition to the application of general principals of sentencing,
      the finding that an extended sentence is necessary to protect the
      public against further criminal conduct by the defendant and that the
      consecu tive sentences must reasonably relate to the severity of the
      offense s com mitted.”


State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).



      The trial court stated two reasons on the record for sentencing the

Defendant to conse cutive sen tences . The first reason is that the Defendant is a

professional crimin al. Tenn. Code Ann. § 40-35-115(b)(1). The second reason

is because the Defend ant has an e xtensive criminal re cord. Te nn. Co de Ann . §

40-35-115 (b)(2).



      The Defendant meets the criteria for Tennessee Code Annotated section

40-35-115 (b)(1), that the defendant is a professional criminal a nd turns to

criminal acts as the source of his livelihood. The Defendant was not employed

at the time of the incident. In the pre-sentencing report there is a re ference to

former employment for one year at Kma rt. The Defendan t’s sketchy work h istory

and extensive criminal record, including several the ft related offenses, lead the

court to believe that the Defendant has turned to crime for a major sourc e of his

livelihood.



      The Defendant also meets the criteria for Tennessee Code Annotated

section 40-35-1 15(b)(2) , an exten sive crimin al history. Although the Defendant

was only twenty-two (22) at the time of sentencing, the Defendant has an

extensive prior record including offenses commited as both an adult and a

juvenile.     The follo wing is a list o f the Defendant’s juvenile record and the



                                         -10-
dispositions: Shoplifting-released to mother; malicious mischief-placed on

probation in custody of his m other; shoplifting-release d to mothe r; grand larceny-

released to mother; no drive r’s license, driving on sidewalk, no helmet- released

to father; larce ny of a bicyc le-release d with cou rt costs to m other; no driv er’s

license, reckless driving- no petition filed; receiving and concealing stolen

prope rty-child placed under care of Youth Services 8/11/87, released into custody

of mothe r 11/25/8 7, 2/4/88 violation of probation; carrying a knife with blade

exceeding four inches- no dispostion found; aggravated assault-child committed

to Tennessee Department of Correction (TDOC) for indefinite period of time;

shoplifting-no petition filed; no driver’s license, reckless driving-child already

under committment to TDOC; grand larceny (auto)-petition su stained o n guilty

plea, home placement terminated; grand larceny (auto), receiving and concealing

stolen property over $200(2 c ounts), re ceiving an d conc ealing sto len prop erty

under $200-child already under committment to TDOC; grand larceny (auto)-no

petition filed; assault and battery-no petition filed; theft of property under $500-no

petition filed, restitution made; assa ult-no p etition file d, child has reached the age

of majo rity and is presently incarcerated for an extended period of time; s imple

possession of controlled subs tance and re ckless driving- no pe tition filed , child

has reached the age of majority and is presently incarcerated for an extended

period of time; speeding and driving on a revoked license-no petition filed, child

has reached the age of majority and is presently incarcerated for an extended

period of time.



       The Defendant’s adult record is also very lengthy. The following is a list

of the De fenda nt’s ad ult record: Speeding and driving without a license/revoked-

pled guilty to both, reduced to no driver’s license, paid fines and court costs;

                                          -11-
driving without a license/revoked, driving with a revoked license-amended to no

driver’s license, pled guilty, paid fines and costs; assault pled gu ilty, sentenced

to 30 days with 29 s uspe nded , proba tion for 6 mon ths, fine s and costs; public

intoxica tion-no lle prossed; public intoxication-nolle prossed; driving witho ut a

license/ revoked-pled guilty, sentenced to four day s and co sts; driving w ithout a

license/revoked-pled guilty, fines and costs; driving without a license/revoked-

pled guilty sentenced to 10 days; petition to declare and H abitua l Motor Vehic le

Offender-p etition granted; theft of property under $500-nolle prossed without

costs; speeding, driving without license/revoked and driving revoked license-pled

guilty, sentenced to 2 days, fines and costs; driving without a license/revoked and

driving revoked license-pled guilty sentenced to 10 days and fines on first cou nt,

pled guilty, sentenced to 1 day on s econd count, co sts on bo th; theft of pro perty

under $500-pled guilty, fines and costs. After the offenses in the case sub judice

occurred, the Defendant was also charged with aggravated assault and

aggravated burglary.



       It is clear that the Defe ndan t has a very exte nsive re cord, e spec ially

considering his young age. An order was entered declaring the Defendant an

Habitual Moto r Veh icle Offender when the Defendant was seventeen days shy

of his twenty-first birthday. W hen his juvenile rec ord is included, the number of

charges and convic tions is a stoun ding. T his cou rt has re cently held th at juven ile

offenses may be conside red to justify consecutive senten ces. State v. Jeffrey A.

Mika, No. 02C01-9508-CR-00244, Shelby County, slip. op. at 10-11 (Tenn. Crim.

App., Jackson, filed Feb. 25 , 1997); State v. Robert Chapman, No. 02C01-9510-

CR-00304, Shelby Co unty, slip. op. at p. 8 n.1 (Tenn. Crim. App., Jackson, filed




                                          -12-
Jan. 14, 1997). The Defendant clearly meets the criteria in Tennessee Code

Annotated sections 40-35-115(b)(1) and (2), to justify consecutive sentencing.



      W e believe tha t the Defe ndant h as been properly sentenced to a

consecu tive sentence due to his extensive record. The Defendant was placed

in the custody of the De partm ent of C orrect ions w hen h e was a juven ile, and it

did not seem to impro ve his beh avior. The incident in question had the potential

to end in a fa tal accide nt. The D efenda nt led the p olice on a twenty-five (2 5) to

thirty (30) minute high speed chase, sometimes reaching speeds of seventy (70)

miles an hour, through a small area of Memphis.            The speed of the chase

sometimes reached twice that of the speed limit of the area. An officer testified

at the sentencin g hearing that h e had bee n involved in three pu rsuits of the

Defendant.    The Defendant has been properly sentenced to a consecutive

sentence based on his extensive criminal history and the a bove fa ctors. It is

clear such a sen tence is necessary to protect the public. The effective sentence

of eight (8) years reasonably relates to the severity of the offenses.



      The judgmen t of the trial court is mod ified in p art and affirme d in part. The

Class D aggravated assault is merged into the Class C agg ravated a ssault with

a sente nce o f six (6) ye ars to b e serve d for this conviction. T he De fenda nt’s

sentence of two (2) years for reckless endange rment rem ains a conse cutive

sentence to the aggravated assault sentence.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



                                         -13-
CONCUR:



___________________________________
JOE B. JONES, Presiding Judge


___________________________________
PAUL G. SUMMERS , Judge




                             -14-
