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State v. Sharp

Court of Criminal Appeals of Tennessee, Nashville

October 24, 2017


          Session May 10, 2017

         Appeal from the Circuit Court for Maury County No. 24322 Robert L. Jones, Judge.

         A Maury County Circuit Court Jury convicted the Appellant, David Sharp, of evading arrest, a Class E felony, and driving on a revoked license, a Class B misdemeanor. After a sentencing hearing, he received an effective eighteen-month sentence to be served as ninety days in jail and the remainder on supervised probation. On appeal, the Appellant contends that the trial court erred by allowing the State to introduce a photograph into evidence to rebut a defense witness's testimony and that the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties' briefs, we conclude that the trial court erred by admitting the photograph and that the error was not harmless. Therefore, the Appellant's convictions are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed, Case Remanded

          Joshua D. Miller, Columbia, Tennessee, for the appellant, David Sharp.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Brent Cooper, District Attorney General; and Scott Speer, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Robert H. Montgomery, Jr., J., concurred in results only.



         I. Factual Background

         In June 2015, the Maury County Grand Jury indicted the Appellant for driving on a revoked license in count one, leaving the scene of an accident in count two, and evading arrest in count three. The State dismissed count two on the morning of trial.

         At trial, Officer Tanner Babb of the Columbia Police Department (CPD) testified that in the early morning hours of October 18, 2014, he and other officers conducted a "bar check" at Tommy's Tavern on Riverside Drive. He explained that the purpose of a bar check was to make sure there were no problems inside or outside the bar and to "show a [police] presence." After the bar check, the officers left the building. As they were walking through the parking lot to their police cars, Officer Babb heard "a crash." He looked toward the sound, saw a light pole swaying, and stated to the other officers that "somebody just hit that pole with a car." The officers ran toward the wooden pole, and Officer Babb saw a white, Chevrolet Cavalier "still backed up into the pole."

         Officer Babb testified that all of the officers yelled for the driver of the Cavalier to stop. The car "stopped for a second" but then "just took off." Officer Babb said the car's tires were spinning and "throwing" gravel. Other officers were closer to the car than Officer Babb, but he did not know exactly where they were standing. The Cavalier pulled onto Riverside Drive, and Officer Babb, who was standing on Riverside, moved out of the way. He said that he was within thirty-five to forty feet of the car and that he was in fear. The State asked if he was sure the driver of the car saw the officers, and he answered, "I would think so. There was five or six of us standing there pointing flashlights. We were yelling at him. All of us were screaming at him. I would think that the driver of that vehicle saw us." Officer Babb said that Riverside Drive had street lights but that the parking lot was lit by only one light, which was the one hit by the Cavalier. He never saw the driver.

         Officer Babb testified that he ran to his patrol car, activated his car's emergency equipment, and turned onto Riverside. However, his windshield fogged up, so he had to stop in the middle of the road. When his windshield cleared, he looked for the Cavalier on Riverside but could not find it and returned to Tommy's Tavern. Officer Trent Thomson, who was also on the scene, "ran" the first three digits of the Cavalier's license plate and learned it was registered to someone who lived on Bass Drive. The police department's "in-house system" also returned a report associated with the Cavalier, and the report "attached" the Appellant to the vehicle. At that point, Officer Thomson ran the Appellant's driver's license number, and the officers saw the Appellant's driver's license photograph.

         Officer Babb testified that he and another officer decided to go to the residence on Bass Drive. When they arrived, the residence was dark, and the Cavalier was not there. The officers knocked on the front door, and a man answered. The man said he did not know if the Appellant was there because his daughter and the Appellant lived in an apartment downstairs. The officers walked down the driveway to the apartment, and Officer Babb knocked on a set of French doors on the side of the house. Dogs in the apartment were barking and "going nuts." However, no one answered the door or turned on any lights, so the officers left. Officer Babb said he filed warrants for the Appellant's arrest, charging the Appellant with leaving the scene of an accident and eluding in a motor vehicle. The Appellant later spoke with an officer on the telephone and turned himself in to the police.

         On cross-examination, Officer Babb testified that the Cavalier was registered to Christina Sharpe[1] and that it was traveling thirty to forty miles per hour by the time it passed him. Although the parking lot was lit by only one light, the area was "very bright." The incident in the parking lot occurred about 2:00 a.m., and Officer Babb arrived at the home on Bass Drive ten to fifteen minutes later. Officer Babb examined the wooden pole when he returned to Tommy's Tavern, and it did not appear to be damaged.

         Officer Trent Thomson of the CPD testified that he assisted with the bar check at Tommy's Tavern on October 18, 2014. Afterward, the officers were outside talking when they heard "a loud boom." They looked toward the sound and saw a light pole shaking and "the rear end of a white car." The officers ran toward the car and yelled for it to stop.

         Officer Thomson testified that the car pulled out of the parking lot and came toward the officers, who were standing on Riverside Drive. The car was traveling about fifteen miles per hour and slowed but never came to a complete stop. Officer Thomson was standing at the car's front passenger side quarter-panel, near the right front tire, and put his right hand on the hood of the car and his left hand on the windshield. He said the car almost hit the officers and was traveling three to five miles per hour at that time. Officer Thomson continued to order the driver to stop, but the car "waded through the officers" and "sped off very quickly." Officer Thomson looked through the windshield and saw the driver for about three seconds. He identified the Appellant at trial as the driver.

         Officer Thomson testified that his police car was about twenty-five feet away and that he ran to his car. However, by the time he got to his car and "got turned around" to follow the white car, he was unable to catch up to it. He heard over the radio that another officer had obtained a partial license plate number of "212, " so he parked his car and searched the police department's "in-house system" for a matching plate. The search returned only one result and reported that the car was a white Cavalier, which matched the description of the fleeing car. The Cavalier was also "attached to an incident" in which the Appellant was the driver. Based on that information, Officer Thomson obtained the Cavalier's entire license plate number and learned it was registered to Christina Sharpe on Bass Drive. He also learned the Appellant's driver's license number and used the number to obtain the Appellant's Department of Motor Vehicles records, which revealed that the Appellant's driver's license had been revoked. The records showed the Appellant's driver's license photograph, and Officer Thomson immediately recognized the Appellant as the driver of the Cavalier. Officer Thomson showed the photograph to Sergeant Brian Goats and Officer Payton Holland, who also had seen the driver of the Cavalier, and they agreed the Appellant was the driver.

         Officer Thomson testified that he forwarded the information he had obtained to Officer Babb and accompanied Officer Babb to the home on Bass Drive in order "to attempt to make contact." Officer Thomson did not see the Cavalier at the home but spoke with the occupants of the residence. There was no indication anyone was in the downstairs apartment.

         On cross-examination, Officer Thomson testified that after the officers heard the Cavalier hit the pole, they ran toward the Cavalier. He acknowledged that he saw the driver of the Cavalier for only three seconds. Officer Thomson described the driver as a white male with a medium build and short- to medium-length hair. The driver's hair was wavy, and his bangs were "curled a little bit." The driver also had a brown goatee. Although Officer Thomson made eye contact with the driver, he could not remember the color of the driver's eyes.

         Officer Thomson acknowledged that the Cavalier never stopped and that he "kind of reach[ed] out and grabb[ed] at a moving vehicle." Defense counsel asked if he was in fear for his safety, and he answered, "At that moment in time, I was trying to get that vehicle to stop." His flashlight was still on his belt, so he was unable to shine it into the car. He said, though, that "[s]omething was illuminating [the driver's] face whether it be the glow of the street light, whether it be another officer's flashlight." Officer Holland and Sergeant Goats were also at the car's passenger side and were standing to the left of Officer Thomson. Officer Thomson said he did not know where Officer Babb was standing. Officer Babb was the reporting officer for this incident, but Officer Thomson wrote a supplemental report. He acknowledged that he did not write the report until February 8, 2015, the same month the Appellant was arrested, [2] but said he remembered the incident "very vividly" when he wrote it. He also acknowledged testifying at the Appellant's preliminary hearing. Defense counsel played an audio-recorded portion of Officer Thomson's testimony, and Officer Thompson acknowledged stating at the hearing that his left hand was on the Cavalier's side mirror, not the windshield. He also acknowledged that he was not "100 percent sure" where his left hand was positioned on the car.

         Sergeant Brian Goats of the CPD testified that after he assisted with the bar check at Tommy's Tavern on October 18, 2014, he heard "a loud crash" in the parking lot and saw a light pole moving. A white Cavalier had backed into the pole, and police officers started ordering the car to stop. Sergeant Goats, Officer Holland, and Officer Thomson ran to the car's passenger side. Sergeant Goats said that he got within five or six feet of the car and that he probably could have touched it if he had continued running. He said that Officer Holland was in front of him and that he thought Officer Thomson was behind him.

         Sergeant Goats testified that the vehicle stopped briefly after it hit the pole but that it "took off when it saw us running toward it." The car accelerated quickly and left the parking lot "as fast as it could." Sergeant Goats looked through the windshield and saw the driver, whom he identified at trial as the Appellant. From a partial license plate number, Officer Thomson was able to determine the name of the Cavalier's owner and that the Appellant was associated with the vehicle. Officer Thomson also was able to pull up a photograph of the Appellant from his driver's license. Sergeant Goats viewed the photograph and had no doubt the Appellant was the driver. Sergeant Goats searched for the Cavalier in the Riverside Drive area but was unable to find it.

         On cross-examination, Sergeant Goats testified that the incident occurred about 2:00 a.m. The area was lit "[f]airly well, " and "[t]here was a pole with a light on it right there." Sergeant Goats never touched the Cavalier but "was pretty close to it." He said that he ran "more toward the front end of the fender of the passenger's side" and that he could see only Officer Holland, who was to his immediate left and within "an arm's reach" of him. Regarding Officer Thomson, Sergeant Goats stated, "Officer Thomson would be more over to my [right] shoulder or side, you know, peripheral maybe at best, but not directly in my line of sight." When Sergeant Goats got to the Cavalier, he was near the right front tire. He did not know where Officer Thomson was located.

         Sergeant Goats testified that he only saw the Appellant for a few seconds and that the Appellant was wearing a baseball cap. Sergeant Goats stated, "He didn't look the same as he looks exactly today. He did have facial hair that day also, a goatee." The Appellant's hair and goatee were brown, and Sergeant Goats could not see the Appellant's eye color. After Sergeant Goats looked for the Cavalier, he returned to Tommy's Tavern with Officer Babb and made contact with the owner of the business. The bar had surveillance cameras, but they were not operational at the time of the incident. Sergeant Goats said he did not ask anyone in the bar if they had seen the Appellant because he had "three officers who agreed 100 percent that it was him."

         On redirect examination, Sergeant Goats explained that he was sure only about the location of Officer Holland because "he was directly to my left to the point where I could almost touch him." He acknowledged that the incident changed rapidly and that his attention was focused on the Cavalier most of the time.

         Officer Payton Holland of the CPD testified that he assisted with the bar check and heard "a loud commotion come from the front of the business." As the officers went to investigate, they saw that a white Cavalier had hit a pole. Officer Holland, Sergeant Goats, Officer Thomson, and Officer Babb began "moving in that direction." Officer Holland said that Sergeant Goats and Officer Thomson were "directly next to" him and that the three of them had their flashlights out. They were flashing their lights at the driver and saying, "Columbia Police Department." As they got closer to the Cavalier, the car was "not really moving." However, it began to pull away and suddenly accelerated. The car passed Officer Holland, Sergeant Goats, and Officer Thomson and traveled on Riverside Drive toward the downtown area.

         Officer Holland testified that he was able to see into the vehicle, and he identified the Appellant at trial as the driver. He said that the officers got within ten feet of the Cavalier and that he noticed a Planet Fitness sticker in the lower, right-hand corner of the back window and the first three digits of the license plate, 212. The State showed him a photograph of a white Cavalier, and he identified it as the car he saw on October 18, 2014.

         Officer Holland testified that the officers went to their police cars. Officer Holland searched the area for a couple of minutes and radioed the partial license plate number. Officer Thomson used the number to obtain a photograph of the Appellant and showed it to the other officers on his laptop computer. Officer Holland had seen the driver less than fifteen minutes earlier and was able to say the Appellant was the driver. Officer Holland went with other officers to a residence on Bass Drive, but the Cavalier was not in the driveway or behind the house.

         On cross-examination, Officer Holland testified that, like Officer Thomson, he filed his supplemental report on February 8, 2015. He said that despite the passage of time, "[i]t is an adrenaline moment. It's a high intensity moment. You have a car accelerating [past] you. There are some things you just don't forget and [are] able to look in very closely to see distinguishing marks on the person's face." He stated that Sergeant Goats was correct in that Sergeant Goats was near the Cavalier's front passenger wheel. Sergeant Goats was standing between Officer Holland and Officer Thomson. Officer Holland was facing the rear of the Cavalier, so Sergeant Goats and Officer Thomson were behind him. When Officer Holland looked at the driver, the Cavalier was traveling about five miles per hour. However, the car then accelerated very quickly. Officer Holland saw the driver for about three seconds. He was shining his flashlight into the car and had it "constantly at the driver." Other officers also were shining their flashlights, but Officer Holland could not say which officers.

         Officer Holland described the driver as a white male with "a goatee-mustache combo of some sorts." The driver had a "solid head" of hair. The hair was "not long" and was brown or black. Officer Holland checked the address history for the Appellant, and "[o]ne of the addresses that came back was to a Hohenwald address." Therefore, Officer Holland notified the Lewis County Sheriff's Department that the Cavalier could be entering that jurisdiction. About three hours later, the Lewis County notified Officer Holland that a car matching the description and traveling at a high rate of speed was leaving Hohenwald and heading back into Maury County. Officer Holland notified the Maury County Sheriff's Department that the car was returning to Maury County, but he did not know if the sheriff's department attempted to intercept the vehicle. Officers with the CPD checked the residence on Bass Drive several times until 6:00 a.m. to see if the car had returned to the home. At the conclusion of Officer Holland's testimony, the State rested its case.

         Christina Sharpe, the Appellant's girlfriend, testified that she and the Appellant had never been married to each other and that, unlike the Appellant, she spelled her last name with an "e." In October 2014, Sharpe lived in a "split duplex" and owned a white Chevrolet Cavalier. Her parents lived upstairs, and she shared a driveway with them and her brothers. Five or six cars were usually in the driveway, and Sharpe normally parked her car at the end of the driveway, close to the road, because she was "the one in and out most of the time." Sharpe also owned a Dodge pickup truck, which she described as her "work vehicle."

         Sharpe testified that her parents and five brothers, who were at the home on a daily basis, had access to the Cavalier. She stated that she left the keys in the vehicle and that whenever anyone needed to leave, "that's the vehicle they take." The neighbors across the street also used the car if they needed it. Sharpe's father and one of her brothers were regular visitors to bars and taverns, and all of her brothers had a beard or goatee.

         Sharpe testified that on the night of October 17, she and the Appellant went to bed between 10:30 and 11:00 p.m. About 2:00 a.m., Sharpe's mother came downstairs, knocked on Sharpe's bedroom door, and told them that "cops [had been] knocking at her residence upstairs looking for [the Appellant]." Sharpe stated that the Appellant was "freaking out" and that she told him to go back to bed because there was nothing they could do at that time. Later that day, Sharpe spoke with a police officer on the telephone and asked that an officer come to her home. An officer did so, and she told him that the Appellant could not have been the driver because he "wasn't around" that night. Sharpe acknowledged that she lied to the officer. She explained that at the time of the incident, she and the Appellant were having "relationship problems" and that a court order prohibited him from being at her home. Therefore, she did not tell the officer that the Appellant had been in bed with her.

         Sharpe testified that in a previous incident involving Officer Thomson, he misidentified one of her brothers and gave him a ticket "on my other brother's name." Sharpe stated, "I went to court with my brother, because of course I was there and explained to the judge that it was not him, it was the other brother. They eventually charged the other brother and he is on probation." Sharpe acknowledged that her brothers had goatees and looked similar. Sharpe identified a photograph of the Appellant showing him clean-shaven, with short hair, and wearing a baseball cap. She said that she took the photograph at her home on October 13, 2014, and that the Appellant also was clean-shaven on October 18.

         On cross-examination, Sharpe acknowledged that date shown on the photograph, October 13, referred to the date she "posted" the photograph on Facebook. She insisted that she took the photograph that same day but acknowledged that she could have taken the photograph anytime. Sharpe said the Appellant could use her car whenever he needed it. Although many people had access to her car, "[t]hey're not normally out [and] about at 2:00 o'clock in the morning." Sharpe said she left her car in the driveway on the night of October 17 and acknowledged that she did not know where the car was in the early morning hours of October 18. On the morning of October 18, Sharpe's aunt was walking her dog and found Sharpe's Cavalier in an alley "over by Riverside." Sharpe said that her aunt lived about eight blocks from Sharpe's home on Bass Drive and that her aunt was surprised to find the car there.

         Sharpe testified that when she later spoke with a police officer at her home, he told her that her license plate number was "515 something." Sharpe told him, "[N]o, my tag number is 212." The officer then photographed her license plate and obtained her correct license plate number for the first time. The State showed Sharpe a photograph of her car, and she acknowledged that a Planet Fitness sticker was on the rear window.

         Sharpe testified that she told the officer that the Appellant could not have been driving her car on October 18 because she and the car were at a friend's house in Lewisburg. She also told him that she thought the Appellant was in Chattanooga and that she had not seen him for several weeks. Sharpe acknowledged lying to the officer but stated, "I didn't want either of us to get in trouble for being together when we weren't supposed to be, because there was a court order." She said she lied to protect herself, not the Appellant, and that she was "110 percent sure" the Appellant was in bed with her when the Cavalier hit the light pole. She stated that the officers did not investigate the case properly because they should have obtained video from Tommy's Tavern. Had they done so, they would have seen that the Appellant was not there. Sharpe said that she spoke with the owner of the business and that video was available. The State asked if Sharpe ever tried to determine who was driving her Cavalier on October 18, and she answered, "It's not my job to find out who was driving, it's just my job to tell you it wasn't David Sharp." She acknowledged that her brother could have given Officer Thomson the wrong name and stated that while her brothers looked alike, they did not look like the Appellant.

         Cynthia Chapin, Christina Sharpe's mother, testified that the Appellant had been in a relationship with Sharpe for four years. Sharpe and the Appellant lived downstairs in Chapin's basement, which they had turned into a two-bedroom apartment. Chapin explained that when visitors arrived, they would go to the main door upstairs. The door to the basement was on the right side of the home, and "their separate driveway goes to the right side of the house."

         Chapin testified that in October 2014, the Appellant was clean-shaven. In the early morning hours of October 18, Chapin's dog woke her by jumping off the bed. She looked outside, saw the police drive up, and woke her husband. The police told her husband that they were looking for the Appellant because he "had supposedly hit a pole and took off and got away from them." They asked Chapin's husband if the Appellant was present. Chapin knew he was downstairs but did not say anything to the police.

         Chapin testified that after the police left, she ran downstairs, knocked on the door, and called for the Appellant. He came out of the bedroom, and Chapin told him the police were looking for him. She said that the Appellant was wearing shorts, that he was "still asleep, " and that she did not smell alcohol. The Appellant did not seem to know what was going on, and everyone went back to bed.

         On cross-examination, Chapin testified that Sharpe and the Appellant owned one dog, a pit bull. After the officers left Chapin's home, the officers did not go to the downstairs apartment and knock on the door. She said she was sure they did not go downstairs because she would have heard people talking and the pit bull barking. Chapin acknowledged that the Appellant was not supposed to be around Sharpe at the time of the incident. She said police officers continued to come to her home for about ten days, looking for the Appellant. The Appellant was not living there at that time, and she told them where he lived. Chapin had five sons. They did not live with her but visited her home regularly, and she did not discuss the incident with them. She said the Appellant did not hit the light pole at Tommy's Tavern on October 18 because she knew "for a fact he was downstairs."

         Gerald Sharp, the Appellant's father, testified that he had regular contact with the Appellant and that the Appellant was clean-shaven with no mustache or goatee in October 2014. He said he had no idea who was driving the Cavalier on October 18, 2014.

         On cross-examination, Mr. Sharp testified that he defined a goatee as "a chin piece" and that the Appellant had never had a goatee. At some point in his life, though, the Appellant had a full beard. The State showed Mr. Sharp a photograph of the Appellant, and he said the photograph did not show the Appellant with a goatee because the Appellant's face looked "shaded on the sides." The State moved to introduce the photograph into evidence as exhibit nine, and the trial court allowed the photograph into evidence over the Appellant's objection as "[r]ebuttal proof."

         On redirect examination, Mr. Sharp testified that the Appellant was twenty-six years old at the time of trial and that the Appellant was "[m]aybe 19" when he first had facial hair. Defense counsel showed Mr. Sharp exhibit nine. Mr. Sharp said that in October 2014, the Appellant did not have the ...

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