# FILED
March 8, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON DECEMBER 1999 SESSION

STATE OF TENN ESSEE, * No. W1999-00022-CCA-R3-CD

Appellee, * HENRY COU NTY VS. * Honorable Julia n P. Guinn, Judge KERMIT MAURICE COZART, * (Aggravated Kidnapping)

Appellant. *

FOR THE APPELLANT : FOR THE APPELLEE : JIM L. FIELDS PAUL G. SUMMERS 111 East Wood Street Attorney General & Repor ter Paris, TN 38242 PATRICIA C. KUSSMAN Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 ROBERT “GUS” RADFORD District Attorney General P. O. Box 686 Huntingdon, TN 38344

OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON

The defendant, Kermit Maurice Coz art, appeals from a gui lty v erdict returned against him by a Henry County jury for Aggravated Kidnapping, a Class B felony. The trial court sentenced the defendant to te n years at 100% as a violent offender for the aggravated ki dnapping. The defendant contends that the trial court erred in failing to give the defenda nt’s requested special jury instruction. The defend ant had request ed that the tria l court specific ally charge the jury on aggravated kidnapping in the co ntext of a robbery in accordance with the langu ag e of State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). The defendant conte nds that the court’s instruc tion left the jury wi

thout guidance sufficient t o decide whethe r the def e ndant sho uld stand convicted for the offense of aggravatedkidnapping. After careful r eview, we AF FIR M the instruction, judgment, and sentence from the tri al court.

PROCEDURAL HISTORY AND FACTS
The defendant was originally charged in 1995 with the aggravated robbery and aggravated kidnappin g of Terry Wilkinson at Essary’ s Service Sta t ion in Paris, Tennessee. The defendant entered a negotiated guilty plea to

the charges
on January 22, 1996. Pursuant to the agreement, the t rial court sentenced the defendant on the counts of aggravate d robbery, aggrav

ated kidn app ing and evasion, as a Range I standard offender, to an effective sentence of ten years to be served at 30%.

Howev er, whe n the defendant learned that Tennessee Code Ann otated § 40-35-501(i) required him to serv e 100% of his aggr ava ted kidnapping sentence
a s oppos ed to the 30% release eligibility that his negotiated pl ea provided, he-3- filed a petition for post-convi ction relief alleging ineffective assistance of counsel. He requested t hat his guilty plea to the count of aggravated k idnapping be set aside. The tri al cour t grant ed the de

fe ndant’s requested relief finding that counsel had incorrectly advised him of his release eligibility date.

At the defendant’s new tri al for aggravated kidnapping , he requested special jury instructions clarifying the distinction between a n agg ravated robbery with incident al force d moveme nt from a n aggravate d robbery and a kidnapping. The requested instructions were based upon Anthony , 817 S.W .2d 29 9, and, in relevant part, read as foll ows: Whether the confinement, movement or detention is essen tially incidental to the a ccompan ying felony and is not , therefore, sufficientto support a separate convi ction for kidnapping or w hether it is significant enough in and of itself to warrant independ en t prosecution and is, therefore, sufficient to support such a conviction.

The trial court denied the defendant’ s request and cha rge d the jury as follows: I charge you that any perso n who commits an aggravated kidnapping is guilty of a crime. Fo r yo u to find the defendant guilty of this offense, the State must have proven beyond a reasonable doubt the existence of the following essential elements: One, that the defendant intentionally or know ingly removed or confined Terry Wilkinson unlawfully so as to interfere substantia lly wi th his libe rty; two, that the defendant ac ted to f acilitate the commission of any felony or flight thereafter; and three, that the felony was aggravatedrobber

y , which is defined as the th eft of property from the person of another by viol ence or by putting the per son in fear accomplished by a deadly weapon.
The jury returned a gui lty verdict aga inst the defendant as charged and fined him $25,000. He was sentenced to ten years in the Department of Correction as a viol ent offender.-4- This con viction, as well as the agg ravated robbery conv iction, arose from the following incident. On August 31, 1995, Terry Wilkinson w as working as the
mana ger of Essary’s Servi ce Station in Paris, Tennessee.Around 12:30 p .m. , the defendant drove a dark blue Maz da into the sta tion. After the victim fil led the defendant’s car with gas, the de fendant told the victim to “g ive me all the money in your pocket.” Not bel ieving the def endant was a threat, the v ictim turned and walked away. The defendant grabbed the victim’s arm and stuck a semi
automatic pistol to his ri b cage.

T he defendant then escorted the victim inside, holding his gun on t h e victim’s ribs the entire time. Once inside, the defendant took betw een $700 and $800 from the station and the v ic tim’s billfold. After he had the money, the defe nd ant forced the victim into a s torage room in the back of the st ation. The defen dant padlocked the steel door to the storage room and left. T he vict im wa s unable to free h imself without assistance and was unable to use a phone to summon help.
Carolyn Cheek, a regular customer at Essary’s, saw

the defendant as he
was pulling out of the

station. When she arrived at Essary’s, s he wondered why
no one was there to help her. Becaus e she was late for wor k, she began p ump ing her own gas. Mr. Wilkinson, who had been in the storage room for approximately ten min u tes, heard one of the pumps operating and called out to her. Ms. Cheek thought she hear d something and stoppe d. Becau se she could not see anyone, she resumed pump ing ga s, and Mr. Wilkinson called out again. The third time M r. Wilkinson yelled, Ms. Cheek went into the station. Mr. Wilkinson was able to open the door appr oximately one i nch and han d Ms. Cheek the keys to the padlock. She unlocked the door and let him out of the storage room.-5- ANAL YSIS
The crux of the defendant’s argument is that this jury s hould have be en instructed that if the kidnapping was essentially incident

a l t o the accompanying felony (i.e., aggrav

ated robbery), then conv ictions for both offenses cannot stand.

Where the trial court’s instructions on a matter a re prope r, its d enial of a special request is not error

. See Shell v. State , 584 S.W.2d 231, 235 (Te nn . Crim. App. 1979). The trial judg e carries a positiv e du tyto issue “a complete charge on the law applicable to the facts of a ca se.” See State v. Phipps , 883 S.W.2d 138, 149 (Tenn. Crim. Ap p. 1994); see also State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990) (an accused has a constitutional right to a corr ect an d complete charge of the law). A defendant is entitled to have every issu e o f fact raised by the evidence and material to his d ef ense submitted through proper instructions

to the jury, as well as, upon request, an instructio n “which outlines the defense theory of his case.” See Phipps , 883 S.W.2d at 149-50 . However , this Court reviews c

ontested jury instructions in the context of the enti re charge, and i f those i nstructions as a whole correc tly, fu lly, a nd fairly set fo rth th e applicable law, then denial of a special instruction is not error. See id. at 142;
see also State v. Bohanan , 745 S.W.2d 892, 89 7 (Tenn. Crim. App. 1987).

The defendant’s argument cen ters ar

ound the holding

of Anthony , 817 S.W.2d 299 (Tenn. 1991). A due process c ase, Anthony

focus es cr itical attention, in the kidnapping/r obb ery context, upon the ex tent and effect of the additional movement or confinement: Is the additional mov e ment or confinement
essen tiallyincidental to the accompanyi ng robbery or sig nificant enough, in an d of itself, to warrant independent prosecution?-6- As a matter of law and not fact, this is to b e determined by a judge and not
a jury. But first, this

Court would be remiss not to note that

t he decisions in Anthony and its companion cases involvedstatutory offenses under the pre- 1989 Criminal Code. When, in 1989 , Te nnessee en acted a new criminal cod e, the continuing force and relevance of many pre-1 9 89 decisions became somewhat questionable. However, in thi s case, as bot h Tenn essee’s pre-1989 and Tennessee’s current kidnapping statute are of similar focus, Ant hony ’s r elevance continues. See Tenn. Code Ann. §§ 39-13-301 to -305; see also State v. Dixon , 957 S.W.2d 532, 533 (Tenn. 1997).
Considering Anthony , we now revie w t he def endant’s arguments and
c onclude that the Tennessee Criminal Pattern Jury Instruction 8.02, as given i n this case, accurately state s the law and is a proper instruction . The St ate is correct in its reliance on the holdings co n tained in Dixon . In Dixon , Justice Holder, writi ng fo rthe majority, opined that “any restraint in addition to that which is necessary to consum mate rape or robbery may support a separate convic tion forkidnapping.” Id. at 535. Further, the decis ion in Dixon is relevant to our instantinquiry regarding the relevance to other f actor s: (1) the distance remov ed and (2) the

durati on of the con finement. The defendant argues that the buil ding where the robbery occurred was small a nd that t he victim wa s not for ced to mo ve more than eight to ten feet before being l ocked in a small storage room. In the
same vein, t he defendant argues that the vic tim was confined for only t en minutes before being discov ered and freed. Dixon states: Aggravatedkidnapping statutes do not require a particular dura ti on or pl ace o f confinement; it is purpose of remova l or confinement and not distance or duration that supplies a necessary el ement o f aggravated kidnap ping.1 We disagree with the st ate regardi ng applicat ion offactor (3) . Any potentialdanger inher ing from the pres ence o f a “poss ibly inflamm able furn ace” with in the she d is entirely too s peculative

. -7- Id. at 535. Therefore, the defendant’s argum ents emphasizing the distance removed and the duration of confinement a re not dispositive. Our analysis continues.
Instead, Dixon does set forth the standard used to determine w hether the victim’s movement or confinement was bey ond that necessary to c onsumm ate the underlying felony. To determine whether the additional movement or confinement rise to a level sufficie nt to support separate convi ctions, Di xon focuses upon three questions: (1) Whether the movement o r conf inement prev ented the vi ctim from summoning help; (2) whether the movement or confinement lessened the defen dant’s risk of detection; or (3) whether

the mov

ement or

confi neme nt created a significant danger or i ncreased the victim’s risk of harm

. Id. at 535. Each of these question s looks to the effect or purpose of the additional movement or confinement.

In th is ca se, we conclude that factors (1) and (2), as enumerated abov e, apply. 1 The victim, trapped in the small storage room, w as una ble to summon help, and the defendant’s escape was thereby faci litated. Therefore, we find that the addition al moveme nt and co nfinem ent in thi s case rise to a leve l suffi cient to support separate convictions.
Finally, during oral argument de fense counsel asked this Court to sentence the defend ant to ten years at 30%, the same amount the District Attorney General was origi nally willing to accept as an a ppropria te sentence. This panel is compelled t o ob serve, as did the trial court, that it is the Legislature that sets the sentences, and a Dis t rict Attorney General may not agree to a-8- sentence not pro vided for by the Legislature. S uch is an illegal sent ence and cannot be enforced.

CONCLUSION We AFFIRM the trial court’s judg ment and sentence.

______________________________ JOHN EVERETT W ILLIAMS, Judge
CONCUR:

_______________________________ GARY R. WADE , Presiding Judge

_______________________________ NORMA McGEE OGLE, Judge