The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1998 SESSION July 30, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9707-CR-00304
Appellee, )
) Greene County
V. )
) Honorable James E. Beckner, Judge
CHRISTOPHER BROWN, )
) (Reckless Driving; Motorcycle
Appellant. ) Helmet and Protective Eyewear)
)
FOR THE APPELLANT: FOR THE APPELLEE:
William H. Bell John Knox Walkup
Attorney at Law Attorney General & Reporter
P.O. Box 1876
Greeneville, TN 37743 Clinton J. Morgan
Counsel for the State
Cordell Hull Building, 2d Floor
425 5th Avenue North
Nashville, TN 37243-0493
C. Berkeley Bell, Jr.
District Attorney General
Eric D. Christiansen
Assistant District Attorney General
109 South Main Street
Greeneville, TN 37743
OPINION FILED: _______________________
REVERSED IN PART; AFFIRMED IN PART
PAUL G. SUMMERS,
Judge
OPINION
Christopher Brown was charged with reckless driving in violation of
Tennessee Code Annotated § 55-10-205 (1993); driving a motorcycle without a
helmet in violation of Tennessee Code Annotated § 55-9-302 (1993); and driving
a motorcycle without a windshield, safety goggles, face shield, or glasses in
violation of Tennessee Code Annotated § 55-9-304 (1993). A mistrial occurred
in December 1996. After a jury trial on January 22, 1997, the appellant was
convicted on all three charges. That same day the trial court conducted a
sentencing hearing. The appellant was sentenced to six months for the reckless
driving conviction, to thirty days for failure to wear a helmet, and to thirty days for
failure to have a motorcycle windshield. All three sentences were to be served at
thirty percent and were to run concurrently.
The appellant presents three issues for our review: (1) whether the
evidence is sufficient to support the appellant’s convictions; (2) whether the
state’s only witness provided contradictory testimony; and (3) whether the trial
court erred in imposing an excessive sentence. After carefully reviewing the
record, we reverse the appellant’s conviction as to reckless driving and affirm the
rest of the charges.
At approximately 11:40 a.m. on Thursday, April 18, 1996, Officer Lynn
House of the Greeneville Police Department was inside the Foothills Car W ash
on the Newport Highway in Greene County. He had brought his cruiser in to be
cleaned and was there to pick it up after cleaning. While inside the car wash and
while signing a receipt, House heard the loud noise of a motorcycle. He looked
out the window and saw what he described as a black and yellow motorcycle,
although on cross-examination he could not describe the size of the motorcycle
that he had observed. Also, he testified that the appellant was the rider of the
motorcycle, although the appellant disputes this assertion. House stated that he
-2-
knew the appellant because he had stopped him “on occasion.” He further
stated that the appellant “was not wearing a helmet, had no windshield on the
motorcycle nor [sic] was not wearing any type of glasses, protective glasses.”
On cross-examination, Officer House admitted that he observed all of this detail
for “just a moment” and that he was approximately 80 to 100 feet away from the
driver of the motorcycle. House indicated that the appellant was traveling only
about 40 miles per hour on West Main at that time. The appellant contends that
Officer House, who wears glasses to read, made the identification while looking
through a tinted window. Officer House, however, denies that he requires
glasses and that the window was tinted.
As Officer House was preparing to leave the car wash, he went to his
cruiser and retrieved something from the trunk. He then got into his cruiser, and
as he was leaving the car wash, he observed the driver of the motorcycle coming
across the lot of the Amoco market across the street. House testified that the
motorcycle crossed the Amoco lot and accelerated out Marshall Lane. House
further testified that the appellant was the driver of the motorcycle and that he
was not wearing goggles or a helmet. On cross-examination, Officer House
acknowledged that “[t]here were people going in and out of the market [, but] I
don’t have any idea who they were.”
Officer House described the area of Marshall Lane as being level for
approximately a tenth of a mile and then there is a sharp draw in the roadway.
One cannot see any of the roadway beyond the crest of the hill. He further noted
that there are houses and a church in the area. However, he admitted that there
was no other vehicular or pedestrian traffic on the road during the middle of the
day on Thursday, April 18, 1996 when this incident occurred.
-3-
Officer House then turned onto the lot and “[t]hat’s when the motorcycle
accelerated to a very high rate of speed, and I made a U-turn and followed him.”
On cross-examination, Officer House admitted that the “very high rate of speed”
that the motorcycle reached was approximately 55 to 60 miles per hour and that
the speed limit in that area was 30 miles per hour. He accelerated to 45 miles
per hour while following the motorcycle. He also stated that both wheels of the
motorcycle left the road when it crossed the crest of the roadway, although the
record does not indicate how high off the ground the wheels were.
On cross-examination, Officer House admitted that he did not get the
license tag number of the motorcycle. He also admitted that he never turned on
his blue lights, his siren, or his flashing lights and that he did not have his radar
on at any point. Furthermore, Officer House acknowledged that it would have
taken only a second to flip the switch for the blue lights and that he never yelled
or indicated in any way to the driver of the motorcycle to pull over or to stop. His
response when asked why he did not stop the rider of the motorcycle was “[h]e
wouldn’t stop.” Officer House then obtained warrants for the appellant.
The appellant disputes Officer House’s assertion that he was the driver of
the motorcycle. The appellant contends that House mistakenly identified him as
the driver of the motorcycle and contends that he was in another part of the
county when the incident with House occurred. To support his contention, the
appellant called five witnesses on his behalf.
Robert Keith Kesterson testified that he was followed for a period of time
by three cruisers driven by three Greeneville police officers on the afternoon of
Thursday, April 18, 1996, the same day of the incident with Officer House.
Finally, Kesterson, along with some friends, stopped their motorcycles, although
-4-
the three cruisers did not “blue light” them to stop. Kesterson was riding a
motorcycle that was green, purple, and white. He testified that he was asked by
one of the officers, “Have you been riding on the Newport Highway without a
helmet or speeding?” He replied, “No” and asked, “Why?” The officer
responded, “That’s all you need to know.” A couple of minutes later Officer
House arrived on the scene and told Kesterson that the appellant, Chris Brown,
was going to be arrested. House also told Kesterson to tell the appellant to turn
himself in to the police.
Rodney Kyker, a tow truck driver, testified that the appellant was at the
Texaco station in Mosheim around the time of the incident with Officer House.
Mosheim is a considerable distance from the Newport Highway where the
incident with Officer House occurred. Billy Dugger, the owner of the Texaco
station in Mosheim and a friend of the appellant’s, also testified that the
appellant stopped by the station around 11:00 or 12:00 on April 18, 1996 to see
him.
Mark Spears, the motorcycle mechanic at Ken’s Cycle Center in Gray,
Tennessee, testified that the appellant’s motorcycle was in the shop for work on
April 18, 1998. He also testified that the appellant’s motorcycle was big and
heavy because he had to move it around at the shop. Kenneth Britt, owner of
Ken’s Cycle Center, also testified that the appellant’s motorcycle, a Honda CBR
900 RR, was “[n]ot any louder than anything else on the market. Motorcycles
meet the same criteria on EPA standards on both emissions, sounds.” Also,
Britt testified that the appellant is a well-known customer and that sometimes
work for customers does not get entered in the shop’s log book. He also testified
that he had written a receipt for work done on the appellant’s motorcycle on the
day in question several months after the work had been completed.
-5-
The appellant’s first issue for our review is whether the evidence is
sufficient for conviction. The appellant contends that he is the victim of mistaken
identity. He insists that his motorcycle was at Ken’s Cycle Center in Gray,
Tennessee on the day the incident with Officer House occurred. Furthermore,
he asserts that he was in Mosheim, which is “completely across the county” from
the site of the incident with Officer House. Also, he asserts that Officer House
cannot identify anything else about the motorcycle and that Rodney Kesterson
was questioned about whether he had been riding a motorcycle without a helmet
and been speeding on the Newport Highway that same day. Finally, the
appellant contends that Officer House wears glasses to read and that he made
an identification of the driver of the motorcycle from 100 feet away and through a
tinted window.
The state argues that the evidence is sufficient to support the appellant’s
convictions. It contends that this is a case of witness credibility, not mistaken
identity. The state maintains that the jury found Officer House to be credible,
despite the five witnesses who testified on behalf of the appellant.
When appellants challenge the sufficiency of the evidence, this Court
must determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The
weight and credibility of a witness’ testimony are matters entrusted exclusively to
the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);
Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978). This Court does not
reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978).
-6-
A jury verdict approved by the trial judge accredits the state’s witnesses
and resolves all conflicts in favor of the state. State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). On appeal, the state is entitled to the strongest legitimate
view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.
Because a verdict of guilt removes the presumption of innocence and replaces it
with a presumption of guilt, the accused has the burden on appeal to show why
the evidence is insufficient to support the verdict. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
The appellant argues that the evidence is insufficient to convict him of
reckless driving. Tennessee Code Annotated § 55-10-205 (1993) states that
“[a]ny person who drives any vehicle in willful or wanton disregard for the safety
of persons or property commits reckless driving.” One manifests willful or
wanton disregard who willfully breaches a duty in a “heedless and reckless
disregard for another’s rights, with the consciousness that the act or omission to
act may result in injury to another.” State v. Wilkins, 654 S.W.2d 678, 679
(Tenn. 1983) (citing Burgess v. State, 212 Tenn. 315, 320, 369 S.W.2d 731, 733
(1963)). “Willful and wanton disregard for another’s safety is a factual question
properly determined from all the circumstances.” Id. at 680; see State v. Eddie
Jake Mysinger, No. 314 (Tenn. Crim. App. at Knoxville, Mar. 14, 1990); State v.
Rita Marie Russell, No. 158 (Tenn. Crim. App. at Knoxville, Apr. 2, 1986).
Driving 120 miles per hour on a highway with hills and curves has been
considered reckless driving. Wilkins, 654 S.W.2d at 679.
However, in State v. Ronald Mitchell, No. 02C01-9702-CC-00070 (Tenn.
Crim. App. at Jackson, Sept. 15, 1997), the defendant was traveling 77 miles
per hour in a 50-mile-per-hour zone on a straight, flat road. The incident
occurrred late at night, and the defendant passed another vehicle. A panel of
this Court held that the evidence was insufficient to support a verdict of guilt for
-7-
reckless driving.
In the case sub judice, Officer House testified that the driver of the
motorcycle, which House contends was the appellant, was traveling
approximately 55 to 60 miles per hour in a 30-mile-per-hour zone. This incident
occurred in the middle of the day on a Thursday, and Officer House admitted
that there was no pedestrian or vehicular traffic in the area at the time of the
incident. Furthermore, he testified that the wheels of the motorcycle left the
road, although the transcript does not indicate by how much, as it went over the
crest of the hill. From all the circumstances surrounding this incident, we
conclude that the evidence is insufficient to support a verdict of guilt for reckless
driving.
With respect to the charges of failure to wear a helmet while operating a
motorcycle and failure to drive a motorcycle without a windshield or protective
eyewear, the appellant contends that he was mistakenly identified by Officer
House. He insists that he was in another part of Greene County and that his
motorcycle was at Ken’s Cycle Center in Gray, Tennessee when the incident
with Officer House occurred. In support of this contention, the appellant
produced two witnesses who testified that he was in another part of the county at
the time of the incident and two witnesses who testified that his motorcycle was
in the shop at the time of the incident. Moreover, Rodney Kesterson testified
that he was questioned by a Greeneville police officer as to whether he had been
riding without a helmet and speeding on the Newport Highway earlier in the day
on April 18, 1996. As to the state’s proof, Officer House claims that he saw the
appellant when he, Officer House, was inside the car wash and then again as he
was leaving the car wash.
We affirm the convictions regarding the lack of a motorcycle helmet and
-8-
driving without a windshield or protective eyewear. To reverse these convictions
would require this Court to engage in a prohibited assessment of the credibility of
witnesses and the weight to be given to their testimony. Officer House
affirmatively identified the appellant as a helmet-less, lens-less rider of a
motorcycle that had no windscreen. We believe that his testimony is sufficient,
in the light most favorable to the state, to establish the commission of these two
equipment offenses despite the appellant’s protestations. Conflicts and
contradictions in the evidence are typically matters for the trier of fact to resolve,
and the jury in this case resolved the conflicts in favor of the state. State v.
Grace, at 476. Therefore, we affirm these two convictions.
The appellant’s next issue involves alleged contradictory testimony of the
state’s only witness. This issue raised by the appellant is a credibility issue,
which the jury resolved in favor of Officer House as to the charges upon which
the appellant now stands convicted. This issue is without merit.
The appellant argues that the trial court erred in imposing an excessive
sentence. Since we have now dismissed the most serious charge, the
appellant’s sentence as adjudged by the trial court is thirty days for failure to
wear a helmet and thirty days for failure to have a motorcycle windshield, with
both sentences running concurrently.
The trial court found two enhancement factors and no mitigating factors.
The trial judge denied probation. The appellant apparently was on probation
when he committed the present offenses, and he has a prior violation of parole.
The trial judge found that some incarceration was necessary to avoid
depreciating the seriousness for the offenses and to deter others. The trial court
made findings of fact.
-9-
In the state’s brief, the Attorney General argues that the appellant
manufactured evidence. This allegation is of some concern to this Court as we
are sure it was to the trial court. Such activity would certainly be a lawful basis
for denial of probation.
The appellant did not prove his worthiness for probation. Based on his
prior record, probation and parole revocation, this Court is of the opinion that his
effective thirty-day sentences, running concurrently, are not excessive.
Accordingly, we reverse the judgment of conviction for reckless driving
and dismiss that indictment. We affirm the other convictions and the sentences
as adjudged by the trial court. The trial court will enter a judgment accordingly.
_______________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
JERRY L. SMITH, Judge
-10-
____________________________
CURWOOD W ITT, Judge
-11-