State of Tennessee v. Garet Myers ( 2022 )

07/22/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 24, 2022 Session
STATE OF TENNESSEE v. GARET MYERS
Appeal from the Criminal Court for Hawkins County
No. CC-19-CR-136 Alex E. Pearson, Presiding Judge
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No. E2021-00841-CCA-R3-CD
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A jury convicted the Defendant, Garet Myers, of evading arrest in a motor vehicle, a
Class E felony; reckless endangerment, a Class A misdemeanor; speeding, a Class C
misdemeanor; and driving without a license, a Class B misdemeanor. The trial court
sentenced him to an effective sentence of two years, with thirty days to be served in
confinement and the remainder on probation. The Defendant appeals, challenging the
sufficiency of the evidence, the court’s refusal to approve the Defendant’s request for a
special jury instruction, the exclusion of evidence, and the trial court’s denial of judicial
diversion. After a thorough review of the record, the parties’ briefs, oral argument, and
the applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and JILL BARTEE AYERS, JJ., joined.
Phillip L. Boyd, Rogersville, Tennessee, for the Appellant, Garet Myers.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Amy Hinkle,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant was driving a motorcycle with a passenger seated behind him when
Officer Joshua Byrd of the Rogersville Police Department activated his emergency
equipment. The Defendant failed to stop and led Officer Byrd on a high-speed chase
which ultimately resulted in the ejection of the passenger, who sustained knee injuries.
The Defendant was charged with felony evading arrest in a motor vehicle, reckless
aggravated assault, speeding, violation of the financial responsibility law, and driving
without a license for the type or class of vehicle being driven. At trial, the Defendant
argued that Officer Byrd did not have probable cause to initiate a seizure, that Officer
Byrd behaved inappropriately in engaging in a high-speed chase, and that the Defendant
was forced to engage in the chase because the police vehicle was following him too
closely.
The evidence at trial established that the victim of the reckless aggravated assault
charge, Ms. Shyanne Golden, met the Defendant through social media, and the two
planned to go on a dinner date on April 5, 2019. The victim arrived at the Defendant’s
apartment, and when the Defendant suggested that they ride on his friend’s motorcycle,
the victim agreed. It was dusk when they departed.
Officer Byrd lived in the same apartment complex as the Defendant, and he was
leaving his home when he observed the Defendant driving a motorcycle down the road.
The Defendant passed two stop signs between the apartment complex and the highway.
The Defendant acknowledged that he came to a “rolling stop” at the first stop sign,
although he asserted he came to a complete stop at the second. Officer Byrd testified that
the Defendant did not come to a complete stop at either sign, and the victim testified
generally that she noticed the Defendant was not coming to a complete stop.
Officer Byrd decided to follow the Defendant’s vehicle onto the highway.
According to Officer Byrd, by “pacing” the Defendant’s vehicle, he was able to
determine it was traveling at 81 miles per hour in a zone where the speed limit was 55
miles per hour. He testified that, after making this determination, he turned on his
emergency equipment, including the lights and siren.
The victim testified that the Defendant sped up very quickly after entering the
highway. Asked on cross-examination if the officer turned on the blue lights after the
Defendant failed to stop at the stop sign, she said, “I think so. Yes.” Asked again, she
said, “I think. I’m not sure.” The victim needed a break to compose herself, and she later
testified that the blue lights came on after she noticed the Defendant speeding on the
highway.
The Defendant denied that he was speeding when the blue lights were activated.
He stated that he was initially “just riding with traffic” and that he could see from Officer
Byrd’s headlights that a car was following him closely. He stated he was not speeding
when Officer Byrd activated the lights, noting that he was aware he did not have a license
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for driving a motorcycle and that he did not want to give law enforcement a reason to
stop him. He elaborated that he was driving 60 to 65 miles per hour when the lights were
activated. He denied hearing a siren.
The Defendant, Officer Byrd, and the victim all testified that the Defendant did
not stop his vehicle when the emergency equipment was activated but instead sped up to
evade Officer Byrd. The Defendant described this as a “dumb mistake” prompted by
fear. He testified that Officer Byrd was “right there on me” and that he sped up in part
because the patrol vehicle was following him so closely that the distance seemed unsafe.
Officer Byrd testified that he was unaware that the Defendant had a passenger.
According to Officer Byrd, the Defendant’s motorcycle was at one point traveling at
approximately 130 miles per hour, a speed which Officer Byrd confirmed with his
speedometer and radar. He agreed that he did not “lock” the speed on his radar. The
victim at first testified that she could see the speedometer but could not recall what speed
was registering. However, she later testified that she recalled looking down and seeing
the speedometer at 115 miles per hour on one occasion. She testified that this occurred
prior to Officer Byrd activating his blue lights. The Defendant agreed that he sped up in
an effort to avoid Officer Byrd, but he did not know how fast he was traveling.
Ms. Lela Susan Carpenter and Mr. Joe Buell were driving in the “slow” lane of the
highway when the Defendant, with Officer Byrd in pursuit, passed them. Ms. Carpenter
stated that the vehicles were going over 60 or 70 miles per hour, and that “the police car
was just right there on the motorcycle” elaborating that Officer Byrd was following “too
close[ly],” possibly within ten feet. The road was curvy, and she felt if the Defendant
made a “bobble,” Officer Byrd “would have run over” him. Mr. Buell agreed that the
police car was “right behind” the Defendant, although his estimate was that Officer Byrd
was fifty or seventy feet behind the motorcycle. Mr. Buell told Ms. Carpenter, “Dead or
alive, he’s going to get him.”
The Defendant left Highway 11 West to travel on Old Highway 11 West. The
victim testified that she was in fear for her life and tried to get the Defendant to yield to
police by hitting his back and screaming at him to let her off the motorcycle. The victim
testified that the Defendant slowed down along a river but did not come to a complete
stop and was not traveling slowly enough that she could safely disembark. She stated
that the Defendant pulled off to the side of the road near an embankment and that she was
afraid she would fall in the water and did not get off the motorcycle. She responded in
the affirmative when asked, “[Y]ou chose not to do that even though he was — he was —
he was stopped?” On redirect examination, she clarified that the Defendant did not come
to a complete stop.
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Officer Byrd likewise testified that on Old Highway 11 West, the Defendant
slowed down to approximately ten miles per hour but did not stop. Officer Byrd became
aware that there was a passenger on the motorcycle and saw the passenger “beating on
the back of the driver.”
The Defendant denied that the victim was signaling him to stop, instead testifying
that he stopped the vehicle because he did not want to endanger her. According to the
Defendant, he came to a complete stop three or four feet from the embankment, and the
victim could have safely disembarked but refused to do so.
At this point, Officer Byrd’s vehicle caught up to the Defendant’s motorcycle.
The Defendant testified that the vehicle approached very fast and came very close and
that he got scared and moved his motorcycle forward to avoid being hit. The victim and
Officer Byrd testified that when Officer Byrd pulled up, the Defendant once again sped
away. The Defendant approached an intersection and ran off the left side of the road into
the ditch. The motorcycle became airborne and struck a road sign, and the victim was
ejected from the motorcycle and landed in the middle of the road. The victim, on cross-
examination, denied that she intentionally dismounted from the motorcycle in the middle
of the intersection.
Officer Byrd testified that the Defendant came to a stop when the victim was
ejected but that he saw the Defendant downshift, a necessary step prior to acceleration.
Officer Byrd detained the Defendant prior to rendering aid to the victim. The Defendant
had a license to operate an automobile but did not have a license to operate a motorcycle.
The victim had multiple knee surgeries and was “stuck on the couch” for six to
eight weeks, during which time she could not care for her son. She testified that her knee
was not completely healed at the time of trial two years after the accident. The victim
wore a knee brace at trial and testified that she sometimes wore the brace to her job in a
grocery store. The Defendant introduced two photographs, and the victim testified that in
one photograph, she had taken the brace off and placed it on the back seat of the vehicle
in order to pose for the photograph. She testified that in the other photograph, she was
wearing the brace, noting it was just visible at the bottom of the photograph. The victim
agreed that she had told her father and her best friend that she did not wish to prosecute
the Defendant.
On cross-examination, Officer Byrd denied enjoying high-speed car chases,
although he acknowledged that he had been involved in other high-speed chases. He
stated that backup was called during the chase, but could not recall the circumstances of
calling backup. He was unable to get the motorcycle’s license plate number, which was
displayed on a temporary tag, in lieu of engaging in a chase. He agreed that he himself
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was traveling 130 miles per hour while attempting to catch the Defendant and that he did
not stop the chase. The Rogersville Police Department policy left terminating a pursuit to
the officer’s discretion. Officer Byrd acknowledged he was outside city limits at one
point. Officer Byrd agreed that he lived in the same apartment complex as the
Defendant, but he stated he did not recognize the Defendant until the Defendant removed
his helmet after being detained. He agreed that the Defendant was not under the
influence of intoxicants and that the Defendant had no prior record of criminal offenses.
The Defendant requested the trial court to give a special instruction to the jury.
The court agreed to instruct the jury that a motorcycle approaching an intersection
controlled by a signal which uses a vehicle detection device may proceed through the
intersection after a full stop when the device is inoperative due to the size of the
motorcycle.1 See T.C.A. § 55-8-110(b). The Defendant requested, as part of the
instruction, a statement that the jury must determine whether the Defendant committed an
offense by failing to stop completely at the stop sign and whether the pursuit was justified
on this basis. He also requested, as part of the special instruction, a statement that an
officer must immediately terminate a pursuit if the pursuit endangers the general public,
the suspect and the officer. When the Defendant was unable to produce any legal
authority to support his position, the trial court denied the request.
After the Defendant sought to admit evidence that his insurance paid the victim
$100,000 as a settlement in a civil suit, the State dismissed the count charging violation
of the financial responsibility law. The trial court excluded the settlement check from
evidence. The jury convicted the Defendant of felony evading arrest in a motor vehicle;
misdemeanor reckless endangerment as a lesser included offense of reckless aggravated
assault; speeding; and driving without a license for the type or class of vehicle being
driven, and it imposed fines for the offenses.
At sentencing, the State introduced evidence that the Defendant had three speeding
tickets prior to the offenses and one speeding ticket and one ticket for a seat belt violation
after the offenses. The trial court found as mitigation that the Defendant’s criminal
record consisted only of the instant offenses and a few traffic infractions. The court
rejected the Defendant’s argument that the victim’s desire not to prosecute was
mitigating, noting that the felony offense was committed against the State and that the
victim was only a victim in the misdemeanor reckless endangerment offense. The trial
1
There was no testimony at trial that the motorcycle traveled through an intersection with a
traffic light equipped with vehicle detection sensor. The trial court noted that it was including the
statutory law from this section of the Code because defense counsel had referenced the provision during
voir dire and the court wanted the jury to have a correct statement of that law, “which is different than
what was used in your voir dire.”
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court rejected the Defendant’s argument that Officer Byrd provoked the Defendant into
engaging in a high-speed chase, that this was grounds tending to excuse the Defendant’s
conduct, or that this amounted to such unusual circumstances that it was unlike he had a
sustained intent to violate the law. See T.C.A. § 40-35-113(2), (3), (11). The court found
that the Defendant’s stable employment and subsequent marriage and fatherhood were
favorable circumstances but did not rise to the level of a mitigating circumstance. See
T.C.A. § 40-35-113(13). The court found as enhancement that the Defendant had no
hesitation about committing a crime where the risk to human life was high. See T.C.A. §
40-35-114(10). The court noted that under Tennessee Code Annotated section 39-16-
603, it was required to impose a minimum thirty-day period of confinement and a
mandatory suspension of the Defendant’s license for at least six months. For the felony
evading arrest conviction, the trial court sentenced the Defendant to two years, with the
statutory minimum of thirty days to be served in confinement and the remainder on
probation. The Defendant’s license was revoked for one year. He was sentenced to
eleven months and twenty-nine days for the misdemeanor reckless endangerment, with
thirty days in confinement and the remainder on probation. He received a thirty-day
suspended sentence for speeding and a six-month suspended sentence for driving without
a license. The sentences were to be served concurrently.
The trial court denied the Defendant’s request for judicial diversion. In doing so,
it found that the Defendant was amenable to correction and that his criminal record,
social history, and physical and mental state weighed in favor of diversion. However, the
court found that the circumstances of the offense weighed against granting diversion,
noting that the Defendant not only fled police but engaged in a high-speed chase on a
motorcycle which could easily have led to either his death or that of the victim of the
reckless endangerment conviction. The trial court also found that the crime was a serious
one, as evinced by the mandatory period of incarceration, and that denial of diversion was
necessary for deterrence both of the public and of the Defendant, who had engaged in the
dangerous behavior without any real cause. The court found that while diversion might
be in the Defendant’s best interest, it would not be in the public’s overall interest because
it “would send a message” that there would be no repercussions for fleeing law
enforcement and injuring an innocent victim.
The trial court denied the Defendant’s motion for a new trial, concluding that the
evidence was sufficient, that the jury instructions were correct, and that the settlement
check to the victim was not relevant. The Defendant appeals.
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ANALYSIS
I. Sufficiency of the Evidence
On appeal, the Defendant challenges his conviction for felony evading arrest on
the basis that there was no valid underlying arrest, his conviction for reckless
endangerment on the basis that his actions were merely negligent, and his conviction for
speeding based on conflicting evidence. We conclude that the evidence is sufficient to
uphold the convictions.
This court must set aside a finding of guilt if the evidence is insufficient to support
the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.
13(e). The question before the appellate court is whether, after viewing 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. Pope, 427 S.W.3d
363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it
may not substitute its inferences drawn from circumstantial evidence for those drawn by
the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty
verdict, approved by the trial judge, accredits the State’s witnesses and resolves all
conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
The trier of fact is entrusted with determinations concerning witness credibility, factual
findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing
the sufficiency of the evidence, we afford the State the strongest legitimate view of the
evidence and all reasonable inferences that can be drawn from the evidence. State v.
Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and on appeal the
defendant has the burden of illustrating why the evidence is insufficient to support the
verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is
sufficient to support a conviction, and the circumstantial evidence need not exclude every
reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297
(Tenn. 2012).
The Defendant also challenges the denial of his motion for judgment of acquittal.
“The standard by which the trial court determines a motion for a judgment of acquittal is,
in essence, the same standard that applies on appeal in determining the sufficiency of the
evidence after a conviction.” State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013). A
motion for judgment of acquittal is waived if the defendant introduces proof after making
the motion, and the appellate court merely analyzes the sufficiency of all evidence. Finch
v. State, 226 S.W.3d 307, 316-17 (Tenn. 2007). In this case, the Defendant introduced
proof after the State rested its case, and accordingly, the Defendant’s challenge is simply
one to the sufficiency of the evidence. The Defendant also asserts that the court erred by
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affirming the verdicts as thirteenth juror. See Tenn. R. Crim. P. 33. His argument
essentially urges us to conclude that “the jury verdicts were against the weight of the
evidence.” However, an appellate court, while it may assess the sufficiency of the
evidence, may not reweigh the evidence. State v. Stephens, 521 S.W.3d 718, 727 (Tenn.
2017) (noting that the trial court may reweigh the evidence as thirteenth juror but that
“‘[a]ppellate courts are ill-suited ... to assess whether the verdict is supported by the
weight and credibility of the evidence’” (quoting State v. Moats, 906 S.W.2d 431, 435
(Tenn. 1995))). Accordingly, we analyze the challenges as challenges to the sufficiency
of the evidence.
The Defendant was convicted of felony evading arrest. The statutory provision
defining the offense provides:
(b)(1) It 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.
(2) It is a defense to prosecution under this subsection (b) that the
attempted arrest was unlawful.
(3)(A) Except as provided in subdivision (b)(3)(B), a violation of
this subsection (b) is a Class E felony and shall be punished by confinement
for not less than thirty (30) days.
T.C.A. § 39-16-603(b) (2019).2
The Defendant argues that because the State did not charge the Defendant with
failure to stop at a stop sign, there was no proof of an “underlying crime.” We interpret
this as a claim that the attempted arrest was unlawful. See T.C.A. § 39-16-603(b)(2).
The Defendant cites to two cases addressing the offense of misdemeanor evading arrest,
which, as pertinent here, makes it unlawful to flee a law enforcement officer if the
accused knows the officer is attempting to arrest the accused. T.C.A. § 39-16-603(a)(1).
In State v. Holbrooks, this court concluded that the evidence was insufficient to sustain a
conviction for misdemeanor evading arrest when the defendant, without apparent cause,
spontaneously began to run upon the approach of an officer. 983 S.W.2d 697, 702-03
(Tenn. Crim. App. 1998). This court concluded that there was no evidence that the
defendant knew that the officer, who had no probable cause to believe the defendant was
committing a crime, was attempting to arrest him at the time he fled. Id. Holbrooks is
2
The Defendant was not charged with the Class D felony, which would have required the State to
prove that “the flight or attempt to elude creates a risk of death or injury to innocent bystanders, pursuing
law enforcement officers, or other third parties.” T.C.A. § 39-16-603(b)(3)(B).
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clearly inapposite to the case on appeal, where Officer Byrd observed the Defendant fail
to stop at two stop signs, observed him traveling 81 miles per hour in a zone where the
speed limit was 55 miles per hour, and activated the patrol vehicle’s emergency
equipment, which the Defendant acknowledged observing, only after confirming the
Defendant was speeding.
The Defendant also cites to United States v. Howard, where a federal court
examined whether the police had probable cause to arrest the defendant, who was on foot
at the time he was arrested, for misdemeanor evading arrest under Tennessee Code
Annotated section 39-16-603(a). 423 F. Supp. 3d 493, 499-501 (M.D. Tenn. 2019). In
Howard, the defendant was a mere passenger in a vehicle stopped for a traffic infraction,
and he fled the stop on foot. Id. at 501. The federal court, distinguishing between a brief
detention and an arrest, concluded that law enforcement had no probable cause to arrest
the defendant at the time he fled. Id.Felony evading arrest makes it unlawful to flee or attempt to elude law
enforcement with a motor vehicle on a road “after having received any signal from the
officer to bring the vehicle to a stop.” The Defendant’s own testimony established that he
was operating a motor vehicle on a highway and that he intentionally fled Officer Byrd
after having received a signal to bring his vehicle to a stop. T.C.A. § 55-1-103(c). It is a
defense to the crime that the attempted arrest was unlawful. T.C.A. § 39-16-603(b)(2).
However, the State introduced evidence that the speed limit was 55 and that the
Defendant was traveling at 81 or 115 miles per hour when the blue lights were activated.
The evidence at trial, seen in the light most favorable to the State, established that the
Defendant here, unlike the defendant who was a mere passenger in Howard, had
committed traffic offenses prior to law enforcement’s attempted seizure of the vehicle.
Accordingly, it was not unlawful for Officer Byrd to issue a signal for the Defendant to
bring his vehicle to a stop. See T.C.A. 55-8-152 (2019); State v. Binette, 33 S.W.3d 215,
218 (Tenn. 2000) (holding that, prior to turning on the blue lights, an officer must have
reasonable suspicion, supported by specific and articulable facts, that the defendant has
committed or was about to commit a criminal offense). Because the State introduced
evidence from which the jury could have found that the Defendant’s conduct satisfied the
elements of the offense and that the attempted arrest was not unlawful, the evidence was
sufficient to support the verdict.
The Defendant next asserts that his reckless endangerment conviction is not
supported by sufficient evidence because the proof established “ordinary negligence.”
“A person commits an offense who recklessly engages in conduct that places or may
place another person in imminent danger of death or serious bodily injury.” T.C.A. § 39-
13-103(a). Statute defines recklessness:
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(c) “Reckless” refers to a person who acts recklessly with respect to
circumstances surrounding the conduct or the result of the conduct when
the person is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur. The
risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the accused person’s
standpoint.
T.C.A. § 39-11-302(c). In challenging this conviction, the Defendant asserts that the
victim refused to get off the motorcycle and that she did not wish to prosecute the
Defendant. The Defendant does not explain how the victim’s alleged refusal to get off —
which we note was contrary to both the victim’s and Officer Byrd’s testimony — or
desire not to prosecute the Defendant would bear on the Defendant’s mens rea of
recklessness, which is the disputed element on appeal. The Defendant asserts that there
was no evidence that the Defendant “was speeding or otherwise behaving recklessly at
that point in the chase.” However, he neglects to account for the fact that, in reviewing
the sufficiency of the evidence, we take the evidence in the light most favorable to the
State. The evidence, seen in the light most favorable to the State, established that the
Defendant refused to stop his motorcycle when Officer Byrd initiated the seizure, instead
traveling at speeds in excess of 100 miles per hour on a highway with a speed limit of 55
miles per hour. The Defendant’s passenger feared for her life and was beating on his
back to get him to let her off the motorcycle, and impartial bystanders observing the
chase anticipated a deadly outcome. The Defendant exited the highway and sped along a
curvy road, slowing down but ultimately resuming the chase when Officer Byrd caught
up to him. We conclude that a rational trier of fact could have found that the Defendant
consciously disregarded a substantial and unjustifiable risk and that this disregard
constituted a gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances.
The Defendant asserts that there was “no reliable evidence” that he was speeding
because Officer Byrd did not introduce the proof of the radar reading and because the
victim’s testimony was unreliable. However, Officer Byrd testified that the Defendant
was traveling at 81 miles per hour when he initiated the traffic stop and thereafter drove
as fast as 130 miles per hour. The victim initially testified she could see the speedometer
but could not recall the reading, but she later testified that at one point, she looked down
and saw that the motorcycle was traveling at 115 miles per hour. See T.C.A. § 55-8-152
(2019). The Defendant’s own testimony was that he was initially traveling between 60
and 65 miles per hour and that he subsequently sped up to elude Officer Byrd. The
Defendant essentially asks us to reweigh the jury’s factual finding regarding the rate of
speed at which he was traveling, but this court does not reweigh or reevaluate the
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evidence. Smith, 436 S.W.3d at 764. The Defendant does not challenge his conviction
for driving without a license for the type or class of vehicle being driven, and we agree
the evidence is also sufficient to support this conviction. See T.C.A. §§ 55-50-301(a)(1),
-603. We conclude that the evidence is sufficient to support the verdicts.
II. Jury Instructions
On appeal, the Defendant asserts that the trial court erred in failing to give his
requested instructions. We agree with the State that the trial court properly refused to
give the instruction.
In addition to the special instruction which the trial court approved, the Defendant
requested an instruction that the jury must “consider the fact of (1) whether [the
Defendant] had committed a crime by rolling through the stop sign as alleged by the
officer and (2) whether the ensuing pursuit was justified.” The Defendant is mistaken in
his assertion that the court failed to instruct the jury that law enforcement must have a
“justifiable reason for arrest for an underlying crime.” Indeed, the court instructed the
jury:
It is a defense to prosecution for this offense that the attempted arrest was
unlawful. If evidence is introduced supporting this defense, the state has
the burden of proving beyond a reasonable doubt that the attempted arrest
was lawful. If you find that the attempted arrest was unlawful, or if you
have a reasonable doubt thereof, you must find the defendant not guilty.
The trial court’s instruction regarding the attempted arrest by a law enforcement officer
properly tracked the statutory language. T.C.A. § 39-16-603(b)(2) (“It is a defense to
prosecution under this subsection (b) that the attempted arrest was unlawful.”). The trial
court was not required to use the Defendant’s much more narrow instruction, which
would have defined the underlying crime as the “rolling stop” despite the State’s
evidence that Officer Byrd turned on his emergency equipment only after the Defendant
began speeding and which called for a vague determination of whether the pursuit was
“justified” rather than whether the arrest was unlawful. Indeed, the Defendant’s proposed
instruction, unlike the trial court’s, does not track the statutory language. The jury
received a complete and correct charge, and the Defendant is not entitled to relief
regarding this part of the proposed instruction.
The Defendant also asserts that the court erred in not charging the jury that Officer
Byrd was required to terminate the pursuit. He proposed an instruction that “during hot
pursuit by an officer of the law engaged with a fleeing suspect on a public highway, if the
pursuit endangers the general public, the suspect, and the officer, the pursuit must be
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immediately terminated for safety concerns.” On appeal, he cites a civil case for the
proposition that “[t]he general public has a significant interest in not being subjected to
unreasonable risks of injury as the police carry out their duties.” Haynes v. Hamilton
Cnty., 883 S.W.2d 606, 611 (Tenn. 1994). In Haynes, the Tennessee Supreme Court
concluded that an officer’s decision to commence or continue a high-speed chase may
carry liability to a third party injured by the fleeing suspect if the officer’s decision was
unreasonable. Id. Haynes, however, offers no insight on the criminal liability of the
fleeing suspect. Whether or not an officer’s pursuit is ill-judged has no effect on the
determination of whether the Defendant has violated the statute regarding felony evading
arrest, unless the attempted arrest was unlawful as set out in the trial court’s instruction
above. As the State notes, Haynes does not actually support the Defendant’s proposed
instruction that an officer is required to terminate a dangerous pursuit, and the Defendant
presents no other legal authority for the charge. The proposed charge would only relate
to a duty imposed on the officer and not to any of the elements of the offenses charged
against the Defendant. The trial court properly denied the Defendant’s motion.
III. Exclusion of Insurance Settlement
As part of his sufficiency argument, the Defendant contends that the court erred in
excluding evidence of a $100,000 settlement check which the victim received from the
Defendant’s insurance company, asserting that the court erred in excluding it under
Tennessee Rules of Evidence 401, 402, and 403. We address the argument as one
challenging the trial court’s evidentiary decisions, and we conclude there was no error.
A trial court’s decisions regarding the admissibility of evidence are generally
reviewed for abuse of discretion. State v. Parker, 350 S.W.3d 883, 896-97 (Tenn. 2011).
A trial court abuses its discretion when it applies an incorrect legal standard, reaches an
illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the party complaining. State v. Herron,
461 S.W.3d 890, 904 (Tenn. 2015).
In order to be admissible, evidence must first be relevant. Tenn. R. Evid. 402.
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 probable
than it would be without the evidence.” Tenn. R. Evid. 401.
Prior to the dismissal of the charge regarding violation of the financial
responsibility law, the Defendant offered evidence regarding a civil suit and a settlement
payment to the victim. The trial court clarified with the Defendant that he was attempting
to admit the documents regarding the civil suit to show that he had insurance, and defense
counsel noted that the defense was also asking to admit the monetary amount of the
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settlement “to point out that … she’s been made whole on it.” The trial court ruled that
the settlement amount was not relevant or admissible. The court took a recess, after
which it announced to the jury that the State had been provided with proof that the
Defendant carried insurance at the time of the accident and that the State was dismissing
that charge.
The Defendant does not articulate on appeal how evidence regarding the monetary
value of the insurance settlement made it more or less likely that he engaged in felony
evading arrest, that he committed reckless aggravated assault (as charged) on the victim,
that he was speeding, or that he was driving without a license permitting him to drive a
motorcycle. We conclude that the evidence had no tendency to make the existence of any
fact of consequence to the determination of the action more probable or less probable and
that the trial court properly excluded it.
IV. Diversion
The Defendant also challenges the trial court’s decision to deny judicial diversion.
Judicial diversion is a “legislative largess” granted to certain qualified defendants
whereby the judgment of guilt is deferred and the defendant is placed on probation. State
v. King, 432 S.W.3d 316, 323 (Tenn. 2014); see T.C.A. § 40-35-313(a)(1)(A). If the
defendant is successful in completing the probation assigned as part of diversion, the
charges will be dismissed and the defendant may seek expungement. T.C.A. § 40-35-
313(a)(2), (b). Violation of the probation imposed as a condition of diversion may result
in an adjudication of guilt and imposition of a sentence. Id.; T.C.A. § 40-35-313(a)(2).
“There is no presumption that a defendant is a favorable candidate for judicial diversion.”
State v. Dycus, 456 S.W.3d 918, 929 (Tenn. 2015)
Like other sentencing decisions, the decision to grant or deny diversion is
reviewed for an abuse of discretion. King, 432 S.W.3d at 324-25. “Reviewing courts
will find an abuse of discretion only when the trial court applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the complaining party.”
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Although the deferential standard of
review articulated in Bise applies to the decision to grant or deny diversion, the common
law factors which the trial court has long been required to consider in its decision have
not been abrogated. King, 432 S.W.3d at 326. Accordingly, in determining whether
judicial diversion is appropriate, a trial court must consider:
(a) the accused’s amenability to correction, (b) the circumstances of the
offense, (c) the accused’s criminal record, (d) the accused’s social history,
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(e) the accused’s physical and mental health, and (f) the deterrence value to
the accused as well as others. The trial court should also consider whether
judicial diversion will serve the ends of justice—the interests of the public
as well as the accused.
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996) (footnote omitted). In
addition to considering these factors, the trial court must weigh them against one another
and place an explanation of its ruling on the record. King, 432 S.W.3d at 326 (citing
State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998)).
If the trial court has adhered to these requirements, the reviewing court merely
looks to see whether “any substantial evidence” exists in the record to support the trial
court’s decision. Id. “Under the Bise standard of review, when the trial court considers
the Parker and Electroplating factors, specifically identifies the relevant factors, and
places on the record its reasons for granting or denying judicial diversion,” this court
must apply a presumption of reasonableness and uphold the trial court’s decision so long
as there is any substantial evidence to support the decision. Id. at 327. The trial court
need not “recite” all of the factors, but the record must reflect that it considered each
factor, identified the specific factors applicable to the case, and addressed the relevant
factors. Id. “‘[A] trial court should not deny judicial diversion without explaining both
the specific reasons supporting the denial and why those factors applicable to the denial
of diversion outweigh other factors for consideration.’” State v. Walter Townsend, No.
W2015-02415-CCA-R3-CD, 2017 WL 1380002, at *2 (Tenn. Crim. App. Apr. 13, 2017)
(quoting State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997)).
The trial court considered the Defendant’s amenability to correction, his criminal
record, his social history, and his physical and mental health, and found that those factors
weighed in favor of diversion. However, the court found that the circumstances of the
offense, which exceeded a mere attempt to elude arrest and could easily have led to the
death of the Defendant or the victim, weighed against diversion. It also found that
considerations of general deterrence weighed against diversion because the offense was a
serious one, and that specific deterrence of the Defendant also weighed against diversion
because the Defendant had engaged in the risky behavior without provocation and for no
reason.
The Defendant asserts that the court’s determination regarding deterrence was in
error because no evidence regarding general deterrence was introduced in the record. See
State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000) (noting that when probation is denied
based on deterrence the record must contain evidence of a need to deter similar crimes
within the community, jurisdiction, or state and that incarceration would serve to deter
others); State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). The Tennessee
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Supreme Court, presented with a similar argument in a case disputing the denial of
pretrial diversion, first noted that it would pretermit the issue of whether Hooper applied
to pretrial diversion as well as probation. Instead, it concluded that there was no error in
the failure to include the Hooper considerations because the prosecutor “relied upon
factors other than the need for deterrence.” State v. Hamilton, 498 S.W.3d 7, 19 n.7
(Tenn. 2016); State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (concluding that
Hooper did not apply when the denial of probation was based on multiple factors). The
court here likewise relied on the circumstances of the offense as well as the need for
deterrence in its decision to deny diversion, and accordingly, Hooper does not apply. Id.While we agree with the Defendant (and the trial court) that the Defendant
certainly introduced proof that some of the diversionary factors weighed in his favor, the
trial court properly considered all of the necessary factors and placed its weighing of the
factors on the record. We cannot conclude that the trial court abused its discretion.
CONCLUSION
Based on the foregoing, the judgments of the trial court are affirmed.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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