# FILED

August 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, ) No. 03C01-9704-CR-00138 ) Appellee ) ) HAMILTON CO UNTY V. ) ) HON. DOUGLAS A. MEYER, ALBERT CHRI STIAN PADGETT, ) JUDGE ) Appellant. ) (Especially Agg ravated Kidnapping, ) Aggravated Rape, Ag gravated ) Robbery, Theft) ) )

For the Appellant: For the Appellee: Alan R. Beard John Knox Walkup 737 Market Street, Suite 601 Attorney General and Repor ter Chattanooga, TN 37402 Timothy F. Behan Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493

William H. Cox, III District Attorney General C. Leland Davis Assistant District A

ttorney 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge2 OPINION
The appellant, Albert Christian Padgett, appeals as of right his convictions in the Hamilton County Cri minal Court of especially aggravated kidnappin g, two counts of aggravated rape, two counts of aggravated robbery, and theft over $1,000. He received an effective sentence of 103 years. Appellant argues on appeal: (1) that the trial court

erred in allowing

separate convictions for aggravated rape and especially aggrav ated kidnapping based upon the same criminal episode; (2) that the trial court

erred in allowing

two convictions for aggravated rape when bo

th rapes occurred at the same time and involved the same victim; and (3) that the trial court

erred in failing to ins

truct the jury on the defense of necessity. After a t horough r eview of th e record, we find no reversible error. Acc ordingly, we affirm the judgment of the trial cour t. Sometime after 11:00 p.m. on September 30, 1994, the victim, Carol Hi ll, was walking to her home on N orth Chamberlain Avenue in Chattanooga. At that time, she and her boyfr

iend were l iving ac ross the str eet from her pa rents in the same neighborhood where the victim spent her childhood. W hen she was approximately 400 yards from her home, the v ictim noticed the headlight s of a car approaching from behind. The car swerv ed over toward her and pulled alongside wher e she was walking. Th e passen ger, a blac k male whos e face was partially c overed by a bandana, displayed a sawed -off shotgun and ordered her to dro p to her knees. The victim fell down on the street and the passenger g ot out of the car and began rummaging through her purse. The passenger found five dollars and to ld the driver, who was standing nea rby, “We can use this for gas money. ” While continuing to point the gun at her, the passenger then ordered the victim t o get into the backseat of the1 The victim identified the appellant from a photo lineup prior to trial and also made an in-court identi ficati on. 3 car. He also got into the backseat, and the driver, later identified as appellant , 1 began to drive. The men then direct ed the victim to get undr essed. As she was doing so, appellant drove sever

al blocks to Glenwood D rive and then turned in to a secluded alleyway. Appellant joined the vict im and the passenger in the backseat and the men proceeded to rape the victi m. While appellant anally penetrated the v ictim, the passenger forced her to perform fellatio. Appe llant then ordered the victim to turn over and he vaginall

y raped her. Follow

ing these acts, the men told the victim to get dressed and appellant resumed his position at the wheel. H e drove the victim bac k to where they initial ly accosted her and the pas senger pushed the victi m out of the moving car. As the ca r drove away, the rear tire ran over the victim’s le ft leg. The victim ran to a nearby residence, but was unable to garner any response from the residents. Fearing the men would come back for her, she h id in the yard until she was abl e to stop an ap proaching cab, which took her the

short dist

ance home where she called the police. Appellant was apprehended several weeks later in Volusia County, Flori da and was returned to Tennessee. Appellant was later in dicted for the aggravat ed robbery of Carol Hil l, the especially aggr

avated kidnapping of Carol Hill, one count of aggr avated rape by anal penetration, and one count of aggr avated rape by vag inal penetration. Based on events that occurred pri or to the abduction of Ms. Hil l, appellant was also i ndicted for the aggrav

ated robbery

of Joseph Sims

and theft ove r $1,000 for s tealing a c

ar from a restaurant parking lot. When the indictments were read to the jury at trial, appellant pled g uilty to the theft of the automobile, the aggrav ated robbery of Joseph Sims, and the aggravated rape of Carol Hill by

vaginal penetration. The remaining charges w ere tried by a jury

. At the conclusion of the proof, the ju ry returned verdi cts finding appellant gui lty of the2 For the Class A felonies, appellant was sentenc ed as a Range I standard offender. However, because of his pr

evious recor

d, appell ant was classi fied a Range II multipl e offender for the remaining convicti ons. 4 aggravated robbery of Carol Hill, the especially aggravated kidnapping of Carol Hill, and the aggravated rape of Carol Hill by anal penetration. At a subsequent sentencing hearing, appellant received the maximum sente nce for each offense. 2 He was sentenced to twenty-five years for the especially aggravated kidnapping , twenty-five y ears on each of the aggrav ated rapes, twenty years for each aggrav

ated robbery, and eight y ears for theft over $1,000. The especially aggr

avated kidnapping sentence was ordered to be serv ed concurrently to the aggravated robber

y of Carol Hill, but the remaining sentences w ere ordered served consecutively for an effective sentence of 103 years. Appellant first argues that the separate convictions for especially agg ravated kidnapping and aggrav ated rape violate his due p rocess rights. He c ontends that the kidnapping was essenti ally incidental to the rape, and therefore, a separate conv iction is unconstitutional. We cannot agree. Appellant relies upon State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). In Anthony , the court recogniz ed that due process of law w ill not permit a kidnapping conviction where th e detention of the victim is merely incidental to the commission of another felony, such as robber y or rape. Id. at 306. In order to determine w hether the confinement, movement, or detention is significant enough in and o f itself to warrant an independent prosecution, the court must de termine whether the defendant’s conduct substantially increased the risk of harm over and above that necessarily present in the accompanying felony. Id. Recently, our supreme court elaborated on the relevant considerations in determining whether sep arate convictions for r

ape and kidnapping violat e a defendant’s due process rights

. State v. Dixon , 957 S.W.2d 532 (Tenn. 1997). In Dixon , the defendant accosted the victi m on a well-lit side walk, assaulted her, and3 The defendant was also convicted of aggravated assaul

t, but the court omitt

ed it fr om the Anthony analysi s because it cl early was not inci dental t o either the aggravated kidnapping or attempted sexua l battery. Dixon , 957 S.W.2d at 535. 5 then dragged her into a v acant lot behind overgr own vegetation w

here he attempted to sexually assault her

. Id. at 533. In holding that the defendant’ s convictions for aggravated kidnapping and attempted sexual battery did not violate due process, 3 the court first considered whether the movement or restraint was beyond that necessary to consummate the accompanying s exual assault. Id. at 535. The supreme court also found it relevant that the defendant’s movement or confinement of the vict im: (1) prevented the victim from summoning help; (2) lessened the defendant’s risk of detection; or (3) created a significant danger or increased the victim’s risk of harm. Id. Applying those considerations to the instant case, we hold that appellant’s conduct was sufficient to w arrant separate convict ions for the kidnapping and rape. The confinement of the victim and the attenda nt movement was unnecessary to consummate the rape. See id. The victim was accosted on the street in a wellpopulated neighborhood and robbed of her personal belongings. She was then forced into a waiting car, transported several bl ocks, and brutally raped. Neither confining the victim in the car no r transporting her w as requisite to the rape. Had appellant and his companion so desired, they could have perpetrated the s exual assault on the
street. It is also apparent that the mov ement prevented the victi m from summoning help. Id. Appellant removed the v ictim from familiar surroundi ngs on a public street only a short distance from he r home. Had the sexual offenses been committed on the sidewalk, there w

ould have been a far greater potential for the victim’s rescue. Also, because appellant confined the victim in the car, any cries for help were likely unheard. In addition, the movement lessen ed the appellant’s risk of detec tion. Id. Appellant drove the car to a secluded location and pulled off the main thoroughfare4 The only i njuries t he victi m suffered were an abrasi on to her knee and a spr ained ankle. 6 into a dark alley. The pos sibility of discov

ery in that location w

as far less than in the well-populated neighbor hood where the victim knew many of the residents. Although the victim di d not sustain serious inj uries, we believe, as did the Dixon court, that by lessening the risk of detection, appella nt increased the risk of harm to the victi m. 4 Id. Certainly the potential for harm was great since the perpetrators were armed with a shotgun. Al l the relevant factors sup port separate convicti ons. Appellant’s case is sig nificantly different from the scenar io in Anthony

in which the confinement was incidental to the accompan ying felony. Here, appellant’s confinement of the victim cannot be co nsidered incidental to the r ape. See State v. Michael Eugene D uff , No. 03C01-9501-CR-00008 ( Tenn. Crim. App. at Knoxvi lle, February 8, 1996), perm. app. denied (Tenn. 1996) (affirming convi ctions for aggravated kidnapping and aggravated rape w here defendant moved victim from s ide of road to dark parking lot of closed restaurant). As ou r supreme court stated, Anthony is not meant to provide the rapist a free kidnapping merely because he also committed rape. Dixon , 957 S.W.2d at 534. Accordingly, w e find that the confinement and movement of the victi m supports an independent convi ction for especially aggravate d kidnapping. Appellant contends that his tw o convictions of aggr

avated rape violate principles of double jeopardy because they both occurred at the same time and involved the same vi ctim. He argues that only one conviction of aggr avated rape was appropriate under the circumstances. Appellant’s iss ue is without merit. While the double jeopardy clause of the Fifth Amendment generally provi des protection against multipl e prosecutions and convic tions, appellant’s argument specifically implicat

es multiplicity, the protection against multipl e punishments for the same offense. State v. Phillips , 924 S.W.2d 662, 664 (Tenn. 1996). The evil soug ht7

to be avoided in such cases is the improper division of conduct into discrete of fenses, thereby creating sev

eral offenses out of a single offense. Id. at 665. “Although separate acts of intercourse may be so rela ted as to constitute one criminal offense, generally rape is not a continuous offense, but ea ch act of intercourse constitutes a distinct and separate off ense.” Id. At 664 (quoting 75 C.J. S. Rape § 4 (1952 & Supp. 1995)). Additionally, both vaginal and anal intercourse are separately defined by Tennessee Code Annotated section 39-13-501( 7) as discrete types of sexual penetrati on prohibited by Tennessee Code Annotated section 39-13- 502. Nevertheless, it is conceivable that separate acts of intercourse may be so related as to constitute one c riminal offense. Id. In order to ensure that sex ual offenses, such as those presented in appe llant’s case, are not multi plicitous, the following factors should be considered: (1) the natur e of the act; (2) the area of the victim’s body inv

aded by the sexually

assaultive behavior; (3) the time elapsed between the discrete conduc t; (4) the accused’s intent, in the sense that the lapse of time may indicate a newly formed intent to again seek sexual gratification or inflict abuse; and (5) the cumulativ e punishment. Id. at 665. No single factor is determinative of the issue. The two co unts of a ggravated r ape in ap pellant ’s indictm ent spec ified two methods of sexual penetration: anal and vaginal. The victim’s testimon y clearly supports two separate act s. Initially, appell ant instructed the vict im to get on her hands and knees in the backseat of the car. He positione d himself behind the victim and penetrated her anally. The victim was forced to perform fellatio on the codefendant simultaneously. At some point, these acts stopped and appell ant instructed the victim to turn ov

er, at which time he enter ed her vaginally.Considering that the two acts involv

ed differing body positions and that appellant invaded different areas of the victim’s body eac

h time, we consider the ac ts to be discrete. The tw o convictions of aggravated rape are not multiplicitous.8 Appellant also contends that the trial court erred in d enying his request to instruct the jury on the defense of necessity. He all eges the instruction w as warranted in the face of his own testimony that he was fearful of the armed co-d efendant and that after the robbery of Joseph Si ms, he no longer wanted to participate. We agree with the trial court

’s ruling that there w

as no evidence to support the charge. It is incumbent upon a trial court to give the jur y a complete charge of the l aw based upon the facts of the case. State v. Harbison , 704 S.W.2d 314, 31 9 (Tenn.),
cert. denied , 476 U.S. 1145, 106 S.Ct. 2261, 90 L. Ed.2d 706 (1986) (citation omitted). With regard to necessity, the jury should be so instructed where admissible evidence fairly raises the defense. State v. Culp , 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994). The burden then falls on the st ate to prove beyond a reas onable doubt that the defense does not apply. Id. ; State v. Hood , 868 S.W.2d 744, 748 (Tenn. Crim. App. 1993). The defense of necessity provide s that criminal conduct is justified if: (1) the person reasonably believ es the conduct is immediately necessary to avoid i mminent harm; and (2) the desirabil ity and urgency of av oiding the harm clearly outweigh, according to ordinary

standards of reasonableness, the ha rm sought to be prevented by the law proscri bing the conduct. Tenn. Code Ann. §39-11-609 (1991). The defense of necessity is applic able in “exceedingly

rare situations wher

e criminal activity is an obj ectively reasonable response to an extreme sit uation.” Tenn. Code Ann. §39-11-609 Sentencing Commi ssion Comments. In support of that defense, appellant test ified that the aggression the codefendant showed during the per petration of the first aggr avated robbery indic

ated to him that he would not go home al ive. He testified that he w as scared and before they saw Ms. Hill, he told the co-defendant that he no long er wanted to participate in the criminal enterprise. With regar d to the rape, appellant testified that the co-defendant told him “Come back here and g et some.” He testified that the w ay the co-defendant motioned the gun and “the look i n his eye” scared him. Although expressing his fear9

of the co-defendant, appellant stated that he did not believe he woul d “blow his brains out.” Such testimony fails to show that appellant was threate ned with imminent bodily harm or that the des irability and urg ency clearly outw eighed the harm of committing the crime. Appellant never testified that the co-def endant threatened him with bodily harm, or

that he attempted to harm him. In cont rast, his testimony demonstrated that he was high on crack cocaine that night, had planne d to commit robberies in order to obtai n more drugs, and partici pated voluntarily i n the criminal enterprise. As a result , the trial court was under no duty to charge the defense of necessity. See State v. Scotty Davenport , No. 01C01- 9611-CR-00 477 (Tenn. Cr

im. App. at Nashville, February 18, 1998). Our review of the record indicates that the proof presented at trial sustains each of appellant’s convictions and that appellant was not ent itled to an instruction on the defense of necessity. The judgment of the trial court is affirmed in all respects.

_______________________________ William M. Barker, Judge

CONCUR:

____________________________ Joseph M. Tipto n, Judge

____________________________ Curwood Wi tt, Judge