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State v. Bartlett4/9/1998
lements necessary for all four offenses. The defendant acknowledged having consumed two quarts of beer just prior to his arrest. The jury believed Officer Howell's assertion that the defendant was intoxicated and that he was the operator of the vehicle. Thus, there was sufficient evidence to support the conviction for driving under the influence and driving on a revoked license.
The proof was also sufficient to establish that the defendant had driven recklessly. The video tape of the chase scene established that the defendant ran five stop signs. Officer Howell testified that the defendant exceeded speeds of 100 m.p.h. One vehicle was driven onto the curb in order to avoid a collision. In our view, these actions establish a willful and wanton disregard for the safety of others. Finally, instead of yielding to the blue lights of Officer Howell's police vehicle, the defendant accelerated and sped away from the courthouse square in his attempt to avoid arrest. The defendant took a circuitous route through and out of town in an attempt to evade the police. That evidence was sufficient to support the conviction for evading arrest.
II.
Next, the defendant argues that certain of the testimony was inadmissible and should have been excluded by the trial court. He specifically argues that Rule 404(b), Tenn. R. Evid., requires exclusion of the testimony of Page and Rollins who observed the defendant driving the Sunbird vehicle between 7:00 and 9:00 P.M. on March 4, 1994. He complains that these prior incidents constitute inadmissible character evidence of other wrongs or acts. In response, the state contends the evidence is simply not character evidence.
Generally, the standard of review of evidentiary rulings by a trial court is one of abuse of discretion; however, when the issue regards Rule 404(b), Tenn. R. Evid., the trial court must "upon request" hold a jury out hearing, make a determination of relevancy, and find that the probative value of the evidence is not outweighed by unfair prejudice. Tenn. R. Evid. 404(b)(1),(2),(3). Where a court fails to substantially comply with these requirements, the court's decision is afforded no deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In this instance, defense counsel did not request a jury out hearing and the trial court did not order one. In our view, however, the trial court substantially complied with the rule. Thus, the abuse of discretion standard is applicable.
Rule 404(b) provides as follows: Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury's presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and
(3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b). In several prior cases, our appellate courts have held that the rule operates to exclude evidence of other crimes, wrongs or acts only when they are "wholly independent of that for which [the defendant] is charged." State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993); State v. King, 718 S.W.2d 241 (Tenn. 1986).
Each count of the indictment against the defendant charges that the offense occurred
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