### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs F ebruary

16, 2005
STATE OF TENN ESSEE v. AARON T. JAMES
Appeal from the Criminal Court for Davidson County No. 98-D-2345 J. Randall Wyatt, Jr., Judge

No. M2004-00808-CCA-R3-CD

The defendant, Aaron T. James, was convicted of es pecial ly agg ravated kidnapping and the trial court im pos ed a sen ten ce o f si xt y years . In this appeal, he asserts (1) that the evidence is insuffi cient; (2) that the trial court erred by limiting the questioning of a witness; (3) that the trial court erred by refusingto provide a jury instruction on the defense of necessity; (4) tha

t the trial court committed plain error by permitting the state to make improper commen tar y on the law during

closing argume nt; and (5) t

hat the tr ial cour t erred by ordering

th at the defenda

nt serve the sentence he received in this case consecutively to the sentence for a previous conviction. The judg ment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., deliveredthe opinion of the court, in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined.
Gary Ta mkin, Assistant District Public Defender, and Wendy S. Tucker, Na shville, Tennessee (at trial), and Jeffrey A . DeVasher, Assistant District Public Defender (on appe al), f or the ap pellant, Aaron T. James.

Paul G. Summers, Attorney Gene ral & Reporter; Preston Shipp, Assistant Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

InMarch of 1998, the defendant and a co-defenda nt, Tony Bobo, attempted to e scape from Riverbend

Maximum Secu

rity Prison. They first cut throug h the fence in the exercise yar d before commandeering

a delivery tr

uck being driven by

Department of

Correction employee

Anna Blithe. Bobo, who was armed with a prison-made knife, dire cted the victim into the cab of the truck and thendrove into the perimeter fence. The pair was apprehe nded when guards overtook them before they were able to penetrate the outermost security fence.-2-

At trial, Mark Hawo od, who w as working "mobile patrol" at Riverbend on the day of the attempted escape, descr ibed the f

acility as comple

tely surround ed by two fenc es equipp ed with concertina

and razor wires and sensors. He testified that the two fences are appr oximately twelve feett all and thirty fee

t apart. Hawood recalled that he was in his patrol vehic le when he saw a delivery truck speeding toward the fence . According to Hawood, the truck kn ocked the interior perimeter fence "completely

down." He stated that the driver then put the truck in reve rse, drove around a s if looking

for a wa y to exit, and then returned and struck the fence in the same location. Hawood testified that he and

another correctional

officer opened fire on the vehicle a nd continued to fire until the vehicle came to a stop. The defendant was the first to exit the truck, followed by the victim, whom Hawood described as "hy sterical," and finally

Bobo.

Lieutenant

Billy James McCleskey, who was employed by the Department

of Correction as
aninstitutional investigator and int ernal affairs liaison officer, testified that because both the defendant and Bobo were c lassifie d as maximum s ecurity inmates, they were

allowed only one hour each day outside th eir

cells. Lieutenant

McCleskey stated that whe n maximum security inmates are released from their cells for recreation, they are placed i

nside indi vidual re creatio

n cage s, which he described as two set s of four

expanded

steel ca ges wit h a walk way in the ce

nter. Du ring his investigation, Lie ut en an t M cC le sk ey disc overed t hat the de fendant

had cut a hole in his

exercise cage, entered into Bobo's cag e and then cut a hole i n Bobo's cage for entry into the exercise y

ard. The lieutena

nt testifie d that he f

ound a " prison-ma

de knife ," or " shank," that was a pproximate ly s ix inches long and one inch wide in the driver' s side floorboard of the delivery truck.

The victim, An

na Blithe , a store

keeper at Riverb end, test

ified tha t on the da

y of the offe nse she was delivering

supplies to Unit 2, where the defendant and Bobo were inca rcerated. She recalled that she turned off the ig ni ti on , p ut th e k eys in her pocket, and locked the doors before e xiting the truck. As she walked toward the gate, she he ard the fence rattle, saw the defenda nt and Bo bo jump
over the fence, and "froze" a s Bobo "stuck a sharp object up t o [her] neck." She testified that the defendant got into the truck first and she went in next so as to be seated between the defendant and Bobo, who was driving. When the victim asked the defe ndant why

he was do ing this, he responded, "[G]ot too much time, got too much time. We've got to get out of here." She stated that the defendant assured her that she would not be harme d.

The victim confirmed

that Bobo drove the truck into the perimeter fenc e, knocking it down,
a nd then b acked up in order to gain more spee d. She estimated that the truck was traveling approxima

tely fifty miles per hour when it struck the fence a sec ond time, clearing the first fence and partiall y tearing down the second. According to the victim, she then heard thumping sounds and the defendant instructed her

to get down before convincing Bobo to surrender. The victim testified that the defendant opened

the passenger side door and lay on the ground as she ran from the truck. She stated tha t the def endant ne ver ga ve any indication that he w as being held ag ainst his will. During cross-examination, the victim conceded that Bobo had threatened her with the knife, had ordered her into the truck, and had driven the truc k into the fence. She also acknowledged that the defendant repeatedly

expressed a desire to surrender.-3-

Bobo, as a witness for the defense, testified that prior to the attempted escape, he had been convicted of "s ev er al " m ur de rs , m an sl au gh te r, fo ur co un ts of ro bb er y, "and several other charg es." He stated tha

t two of his

murder convictions were the result of killing other inmates, one of whom he bludgeoned with a dumb bell and one of whom he sta

bbed with a shank. He recalled that he met the defendant when the two were housed tog ether in the m ax imum security unit at Riverbend. According

to Bobo, he discussed the escape with the de fendant

on two occ asions pr

ior to the day of the offense. Bobo testified that "[t]he plan was to . . . open up the exercise cage s, . . . go out throu gh the hole . . . and to go over the fences, y ou know, and just go on from there." Bobo c laimed that the pair pl anned to c limb over the fences by going over the pole to avoid setting off the alarms. He contended that the defendant was unaware of his "backupplan," which was to "gra b the truck and to go through the fences." Bobo also insisted that the defendant did not know that he was carry ing the shank.

Bobo explained that he decided to carry out the alternate plan because "it took so long to g et the hole in the cages." He stated that the defendant did not want to take the truck and "a cted like he wanted to go back." Bobo claimed that he threatened the defenda nt with his weapon saying , "If y our word ain't w orth n othi ng, your li fe ain't worth nothing." Bobo testified that he directed the defendant to go under the fence betwe en the exercise yard and the

truck and then ordered both the victim and the defendant to get into the truck. According to Bobo, he started the truck and immediately began driving toward the fence. He testified that when he struck the second fence, the truc k became stuck
on the pole and the defendant told Bobo that "it was over ." Bobo c laimed tha t he ref used to surrender and did notterminate the attempted escape until gunfire f rom correctional officers "busted the engine block." Bobo further contende d that if th e defen dant had r efused t o accomp any

him in the truck, he would have "hurt him." Bobo admitted that he pled guil ty t o a ggr av at ed ro bb er y, aggr avated k idnapping , and atte

mpted esc ape in connection with the incident. During cross-e

xamination, he acknowledg ed that he and the de fendant

h a d discussed escaping even befo re they

were transferred to their cell block in Unit 2. Bobo claimed that they planned to scale the fences, which were topped with razor wire and equipped with alarms, with no extrapadding under their clothing to protect them. He a cknowledged that

during the investigation prior to the trial, he did not in form inve stigato rs that he threate ned the de fendant

.
I The defendant

first asserts that the evidence is insufficient to support

the convi ction bec ause the pro of e st abl is hed th at h e wa s ac ti ng u nde r du res s. In the alternative, the defendant contends that the evidence is sufficient only to support a conviction for the lesser included offense of facilitation of especi ally ag gravated kidnapping and asks this court to modified his conviction. The s tat e submits that the jury was fr ee to reject the defense theory and to disregard the testimony of Bobo that he forc ed the defend ant to parti cipat e in th e kidn appin g.
Onappeal, of cours e, the sta te is entitled to the strongest legitimate view of theevidence and all reasonable inferences which mig ht be drawn therefrom. State v. Cab bage , 571 S.W.2d 832, 835 (Tenn. 197 8). Th e credibility of the w itnesses, the weight to be given their testimony, and the-4-

reconciliation

of confl icts in the proof are matters entrusted to the jury as the trier of fact. Byrg e v. State , 575 S.W.2d 292, 295 (Tenn . Crim. App . 1978). Wh en the suf ficienc y of the evide

nce is challenged, the relevant question is whether , after

reviewi ng the e vidence in the lig ht most favorable to the state, any r

ational trier of fact

could have found

the essential elements of the crime bey ond a
reasona ble doubt. Te

nn. R. App. P. 13(e); State v. Will ia ms , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning

the credibility of the witnesse s, the weight and value of the evide nce, as well
as all factual issues raised by the e vidence are resolved by

the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption

of guilt, the convicted criminal defendant bear s the burden of showing that the evidenc e was legally

insuffic ient to sustain a guilty ver dict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

To obtain a conviction for especially aggravated kidnapping , the state must prove that the defendant knowingly re

moved or confi ned the vi ctim unlawfully so as to inte

rfere substantia

lly w ith her liberty and that the re

moval or confinement was accomplished by the use of a deadly

weapon or that the victim suffered serious bodily injury. Tenn. Code Ann. §§ 39-13- 302(a), -305(a).

The state's theory

was that the defendant wa s c riminally responsi ble for B obo's c onduct. Tennessee Code Annotated section 39-11-401 provides that "[a] p erson is c

riminally responsible as
a party to an off

ense if the offense is committed by the person's own conduct, b y the conduct of another for which the person is criminally responsible, or by both." Tenn. Code A nn. § 39- 11- 401(a). Generally , a person is criminally re sponsible for the conduct of another if:

Acting with inten

t to promote

or assist the commission of the of fense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense[.] Tenn. Code Ann. § 39-11-402(2).

The defendant

contends that he was merely

present during the offense and that he was acting under duress because he had been threa tened by B obo. The evidence adduced at trial established that the defendant, in tandem with Bobo, cut a hole in his exercise cag e and escaped into the prison y ard. From there, he followed Bobo to the delivery truck. After Bobo grabbe d the victim and held a shank to her throat, the defendant took the ke ys t o the truc k and unlo cked the door. He

was the f irst to enter the truck, sitting on the passenger side with the victim in the center a nd Bobo in the driver’s seat. The victi

m testifi ed that it was not until the prison guards began firing on the truck that the defendant suggested surrendering . The victim recalled that it was the defendant who explained that the two had kidnap ped h er and taken the truck because they had "too much time." While Bobo claimed that he forced

the defe ndant to pa

rticipat e in the kidnapping by thre atening to kill him, the jury was free to reject this testimony

. See Tenn. Con st. art. I , § 19; Byrg e , 57 5 S.W.2d at 295. Becau se the trial court properly ins tr ucted the jury on the de fense of duress, see Tenn. Code Ann. § 39-11-504, the defe nd ant was not deprived of the benefit of his defense the ory. Similarly , the defendant had the benefit of a jury instru ction on th e lesser included offense of fac ilitation of-5-

especia lly aggravated robbe

ry. The jury chose to ac credit the testimony of the state' s witnesses, as
was its prerogative. See State v. Sum merall , 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). Under these circumstances, it is our view that the evidence is sufficie nt to support the conviction.

II The defendant next contends that the tr ial court erred by prohibiting the defendant from eliciting testimony that Bobo rec eived a sentence of life without parole for his convictions relative to the attempted escape. The state submits that the length of B obo's sentence was not relevant to any issue at trial and that permitting Bobo to testify regarding his sentence

would inform the jury of

the penalty the def

endant faced.

"Relevant evidenc e" is evidence "having any tendency to make

the existence of any

fact that is of conse quence

to the det

erminati on of the a

ction more

probable or less pr obable than it

woul d have been without

th e ev id enc e." Ten n. R . Ev id . 40 1. In State v. Forbes , this court discussed the st an da rd of

re vi ew of

a t ri al co ur t' s d et er mi na ti on of re le va nc y:
"Bec ause an assessment of whether a piece of evidence is relevant requires an understandingof the case’s theory and other evidenc e as well

as a familiarity with the evidence in question, appellate courts give grea t deference to a trial judge' s decision
on relevance issues. Often it is stated that a trial court 's decision on relev ance wi ll be reversed only

for an abuse of discretion. . . ."

918 S.W.2d 431, 449 (Tenn. Crim. A pp. 1995) (quoting Neil P. Cohen et. al., Tennessee Law of Evidence § 401.5 (2d ed. 1990)).

Prior to the trial, the state filed a motion asking the tri al court t o prohibit any testimony regarding the sentence Bobo received in the c ase. The trial court granted the motion, ruling that Bobo's sentenc e was not

releva nt. During

the cros s-examina

tio n of Bobo, the prosecutor asked, "Now, even before this incident happened, y our sentences were such that y ou would have nev e r gotten out o f pri son, correct?" Bobo answered in the affirma tive. At that point, defense counsel obje cted and arg ued that t he state had opened the door to quest ioning a bout Bobo 's l ife withou t parole sente nce. The trial court disagreed, concluding , "I don't think that [a] question about something before this incident happened opens the door to what the penalty was in this case[.]" The trial court also observed that "the [j]ury is not allowed to know the [r]ange of [p]enal ty when it's exactly identical in this case."

Inthis appeal, the defendant again asse rts that the state "opened the door" to qu e stioning about the sentence Bobo received f or hi s role in the offenses by asking about the sentence he was facing at the time of the incident. The defendant arg ues that the question gave the mistaken impression that Bobo was not eligible for parole prior to his g uilty pleas in this case.

Inour view, any e

vidence regarding

Bobo's sentence, either before or after the crime at issue,
was irrelevant. That Bobo faced a life time in the penitentiary prior to the escape attempt had no-6-

bearing on the issue of the defendant's guilt. Similarly , that Bobo received a sentence of life without the possibility of parole for his role in the atte mpted esc ape did

not tend to make the existence of any fact more pro bableor less probable. See Tenn. R. Evid. 401. Further , it is our vi ew that the state d id not open the door to t

he admiss ion of evi dence o f Bobo' s life without parol e senten ce for t h e charges resulting

from thiscase. The prosecu tor did not

imply that Bob o was ine ligible f or parol e prior to the attempted escape and established only that Bobo was serving a life sentenc e for one of his murder c onviction s. The sta te's que st io ning did not mislead the jury a nd did not misrepresent the facts of the case. See ge nerally State v. Bray , 669 S.W.2d 684, 687 (Tenn. Crim. App. 1983). Inany eve

nt, however, the proof of the defendant's g uilt was abundant. It is our view that any e

rror caused by the trial court' s ruling can be c lassifie d as harm less, having

had no ef fect on t he verdi ct. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

III The defendant also contends that the trial court erred by failing to pr

ovide a jury

instruction
on the defense

of nece ssity . The stat

e submits that the tri al court did not err because the defense of necessity wa s not raised by the proof

. Under the United States and Tennessee Constitutions, a defendant has a constitutional right to trial by jury

, which dictates that all issues of fact be tried and dete rmined by

twelve ju rors. U.S. Const. amend VI; Tenn . Const. ar t. 1, § 6; see State v. Bobo , 814 S.W.2d 353, 356 (Tenn. 1991); Willardv. State , 174 Tenn. 642, 130 S.W.2d 99 (1939). This right encompasses the de fendant’s right to a correct and complete charg e of the law. State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Inconsequence, the trial c ourt has a duty “to give

a complete charge of the

law appli cable to

the fac ts of a case.” State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986); see State v. Forbes , 793 S.W.2d 236, 249 ( Tenn. 199 0); see also Tenn. R. Crim. P. 30.

Our law requ

ires that all of the

elements of each offense be descr ibed and d

efined i n connection

with that offense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). When the evidence in the record fairly raises or supports the existence of a defense, the trial court is compelled to instruct the jury on the issue. Manning v. State , 500 S.W.2d 9 13, 915-1 6 (Tenn. 1973); see also Almonrode v. State , 567 S.W.2d 1 84, 187 (Tenn. 1978). As part of its instruction, the trial court must inform the

jury that any reasona ble doubt on th e existenc e of the d efense require s acquitta

l. Tenn. Code Ann. § 39-11-2 03(c); State v. B ult , 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998); State
v

. Shro pshire , 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993). This court has added that “due process requires that a criminal defendant be af forded a meani ngful oppor tunity to prese nt a comp lete defense , which in cludes th e right

to have th e jury

instructe d rega

rding f undame nta l defenses raised by

the evidence.” State v. Nevens , No. M2000 -00815-C CA-R3-CD(Tenn. Cr im. App., at N ashville, Apr. 27, 2 001); see also Tenn. Code Ann. § 39-11-203(c), (d).

Whether the evidence has raised a defe nse and, therefore, requires a jury instruction depends upon an examina

tion of the

evidenc e in a lig

ht most favorable t

o the defe ndant. Bult , 989 S.W.2d at 733 . Tennes see Code

Annotate d section

39-11-60 9 provide s that "c onduct isjustified if . . . [t]he person reasonably

believes the conduct

is immediately necessar

y to avoid imminent

harm and . . .-7-

[t]he desirability and urg ency of a voiding the harm

clearly outwe igh, according to ordinary standards of reasonableness, the harm sought to be preve n ted b y the law prosc

ribing the conduct." As observe d in the Sen

tencing Commission Co mments:
This section codifies the common law defense of nece ssity. I t excuses criminal liability in those exceedingly rare situations whe re crimina l activity is an objectiv ely

reasona ble response

to an extreme

situation. For examp le, the ne cessity defense would bar a trespass conviction for a hiker, strande d in a snowstorm, who spends the night in a vacant cabin rather tha n risking death sleeping in the open.

Tenn. Cod

e Ann. § 39 -11-609, Sentenci ng Commiss ion Comment s.
Necess ity has trad itionally been use d appropriately

when the extreme si

tuation isbrought on by something other than a human act. Neil P. Cohen et al., Prevalence and Use of Criminal Defens es: A Preliminary Study, 60 Ten n. L. Rev. 957, 966 (1993). Examples of necessity include
a s hip violati

ng an e mbargo law to avo id a storm, a pharma cist providing me dication with out a prescription

to alleviate someone's suffering dur ing an emergency

, or one of two shipwrecked sailors pushing the other

off the f loat to sav e his own li fe. 11 Da vid L. Ray bin, Tennessee Practice§ 28.118 (1985 & Supp. 1997). This court has held that in order for a defen dant to be entitled t o the defe nse of necessity, he “

mus t show an immediately nec essary a ction, justifiable because of an imminent threat, where the action

is the only

means to avoid the harm.” State v. Watson , 1 S.W.3d 676 (Tenn. Crim. App. 1999) (citing State v. Green , 915 S.W.2d 827, 832 (Tenn. Crim. App. 1995) ).

In thi s case, t

he trial c ourt prov

ided an in struction

on the def

ense of d uress:
Included in the def

endant' s plea of

not guilt

y is his plea that his a cts constituti ng the o ffense

charg ed were

the resu lt of dure ss. Duress is a defense to prosecution where: (1) the defendant is threatened with harm which is pr esent, imminent, impend ing, and of such a nature as to induce a well-grounded

apprehension of death or serious bodily injury if the act is not done; (2) the threate

ned harm is continuou s throug

hout the time the act is being committed; (3) the harm is one from which the defendant cannot withdraw in safety; and (4) the desirab il ity and urgency of avoidi

ng the harm clea

rly outweigh, accord

ing to ordinar

y st andards of reas onablene ss, the harm so ught to be prevented by the law proscribing the conduct. * * *-8- This defense is unavailable to a person who intentionally, knowingly, o r reckle ssly becomes involved i

n a situation in which it was probable that the person would be subjected to compulsion.

The trial court refused, however, to provide an instru ction on th e defen se of nece ssity , ruling that it had not been fairly

raised by the pr

oof.

In State v. Green , this court held that "the defenses of duress and necessity are similar

both informand in the policy supporting the availability of both defe nses." 995 S.W.2d 591, 606 (Tenn. Crim. App. 1998). This cour t ruled t hat because the statutory provision is a codification of the
common law, common law distinctions between the defenses of nece ssity and duress are instructive.

"Dure ss was said to excuse criminal conduct where the actor wa s under an unlawful threat of imminent death or serious bodily injury , which threa t caused

the actor to engage in conduct violating the literal te rms of the

criminal law. While

the defe nse of duress covered the situation where the co e rcion had its source in the actions of other human bei

ngs, th e d ef

en se of ne ce ss it y, or choice of evils, traditionally covered the situation where physica l forc es beyond the a ctor's control rendered illeg al conduct the lesser of two evils. Thu s, where A destroy ed a dike because B threa tened to k ill him if he did not, A wou

ld argu e that he acted un der dure ss, whereas if A destroy ed the dike in order to p rotect more valua ble prope rty from floo ding, A c ould clai m a defense of necessity ."

Id. (quot ing United States v. Bailey , 444 U.S. 394, 409-10 (1980)). The defense o f neces sity is gener ally only available whe

n nonhuman acts prompt the illegal action. State v. Jason C. Polston , No. W2003-02556-CCA-R3-CD (Tenn. Crim. App., at Jackson, Aug. 19, 2004).

The proof ad

duced a t trial, in the lig

ht most favorable t

o the defendant, established that after the de fendant and Bobo freed themselves fr om the exercise cages, Bobo dec ided that the y shoul d take the deliver

y truck. Bobo testified that the defendant did not want to take the truck and expre ssed a desire to abandon the escape. B obo claimed that at that point, he threatened t h e defendant with the shank, saying , "If y our word ain't worth nothing, y our life ain't worth nothing." It was Bobo's contention that he directed the de fendant to unlock the delivery truck after they

had taken the keys from the victim. Both Bobo and the victim test ified that it was the defendant who suggested that they surrende

r when the guards bega

n firing on the truck. Under th ese cir cumstanc es, an instruction on duress was warranted and was giv en by

the trial court. The same

cannot be

said for the defense of

necessi ty. There w as no proo f that the defenda nt was co mpelled to

particip ate in the kidnapping by a

ny nonhuman act. The

only proof w as tha t Bobo forced the defenda nt to particip ate in a secondary plan of e scape. In our view, the trial cou rt did not e

rr by refusin g to pr ov id e a n i ns tr uc ti on on th e d ef en se of ne ce ss it y.-9- IV The defendant next contends that the trial cou rt erred by permitting the state to make improper commentary on the la w during closing argument . Because h e did not make a contemporaneous objectio n at tria l and did no t raise the issue in a motion for a new trial, the defendant asks this court to review the issue under the plain er ror doctrine. Initially , as the defendant concedes, there was no objection during the prosecutor's closing argument and he did not raise the issue of improper argume nt in a motion for

new tria l. Appella

te relief is g eneral ly not availa ble when a party has "fa iled to tak

e whate ver act ion was re asonably availab le to prevent or nullify the ha rmful effect

of any error. " Tenn. R. App. P. 36 (a); see State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when the defenda nt fails to make a contem

poraneo us object ion); see also State v. Jenkins , 733 S.W.2d 528, 532 (Ten n. Crim. App. 1987); State v. Rhoden , 739 S.W.2d 6, 11-12, 18 (Tenn. Cr im. App. 19 87). Whether prope rly assigned or not, however, th

is court ma

y c onsider p lain

error upon the record

under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. O gle , 666 S.W.2d 58 (Tenn. 1984).

Before an error may

be so rec ognized, it must be " plain" a nd must af

fect a "substa ntial rig ht" of the accused. The word "plain" is synony mous with "clear" or equiva lently "o bvious." United States v. Olano , 507 U.S. 7 25, 732 (1 993). Plai n error is not mere ly e

rror tha t is conspicuous, but especia lly egregious error tha

t stri kes at the fairness, integrity , or public reputation of judicial procee dings. See State v. Wooden , 658 S.W.2d 5 53, 559 (T enn. Crim . A pp. 1983). In State v. Adkisson , 899 S.W.2d 6 26, 639 (T enn. Crim. App. 1994), this court defined "substantialright" as
a right of "fundamental proportions in the indictment process, a r ight to the proof of every

element of the offense

and . . . c onstitutional in

nature." In tha

t case, this court established five factors to be applied in determining whether an error is plain: (a) The record must clea

rly establish what occ urred in the trial court; (b) a cl ear and

unequivo cal rule

of law mus t have be en brea ched; (c) a su bstantial right of the acc used must h ave bee

n advers ely

affec ted; (d) the accused [must not have waived] the issue for tactical rea sons; and (e) consideration of the error must be " necessary to do substantial justice."

Id. at 641 -42 . Our supreme court character ized the Adkisson test as a "clear and meaning ful standard" and emphasized that each of the five factors must be present before an e rror qualifies as plain error. State v. Smi

th , 24 S.W.3d 274, 282-83 (Tenn. 2000).

Trial courts ha

ve substa ntial discretiona

ry authority in deter mining th e propri ety

of fin al argume nt. Although counsel is generally given wide lat itud e, courts must restrict any improper argume nt. Sparks v. State , 563 S.W.2d 5 64 (Tenn . Crim. App . 1978). G eneral ly speaking, closing argument "must be temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent t o the issu es being tried ." State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978). For example, our supreme court has ruled that argument that " that defense counsel wa s 't ry ing to throw sand in the

ey es of the

jury' and ' blowing smoke in the face

of the jur y' " is improper

argume nt.-10-

State v. West , 767 S.W.2d 387, 395 (Tenn. 1989). To merit a new trial, however, the argume nt must be so inflammatory

or improp er as to a

ffect the verdic

t. Harrington v. State , 215 Tenn. 338, 385 S.W.2d 758 (1965). In Judge v. St ate , this court

articulated the factors to be considered in making that determination: (1) the conduct c omplaine d of view ed in the c ontext and t he light of the fa cts a n d circumstances of the case; (2) the curative measures undertake n by the court and the

prosecution; (3) the in tent of the

prosecu tor in maki

ng the im proper s tatement s; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength or wea kness of the case. 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

Inthis case, the defendant complains that theprosecutor's comment on the consideration of the lesser included offenses was improper. He c ontends that the prosecutor's argume nt thatthe jury must unanimous ly a

gree t hat the de fendant

is not gui lty o f the gr

eater o ffensebefore considering the lesser offenses is in direct conflict with our supreme court's decision in State v. El y , 48 S.W.3d 710 (T enn. 2001). Th e state su bmits that the commen

t was not im

proper b ecause

it was a correc t summary of the jury instruct

ion s provided by the trial cour t and that the jury instructions were a correct statement of the law. During closing argument, the prosecutor made the followingstate ment r egardin g the ju ry's consider ation of the lesser

included offense s: Now, the Judge

is . . . req

uir ed by the law to give you w hat's called lesser included offenses. It star

ts of with [e ]speciall

y [a]ggra vated [k]idnapping . And it goes down

to [a]ggra

vate d [k]id

napp ing a

nd [k]i d napping . And ther e's a w hole laundry list of things there

. But here's what I 'm going to tell y ou about that. And that is that the law requires you

to conside

r the cha

rged o ffense

first, [e]sp eci ally [a]ggr avated [k] idnap ping. If

you find him g

uilty bey ond a rea sonable

do ub t o f t ha t, un an im ou sl y, theny our wor k is done, which is what the verdict should be. Your work is done. You enter that on the ballet form. And then you report o ut. If

you unanimous ly conclude that he is not guilty of that offense , then y

ou may procee d to the next lowest offense. If y

oudo not unanimously conclude that he is not guilty of that off

ense, then you cannot move down to the ne xt one.

It is well establish ed that " the cour

ts are the proper s ource f

rom which

[the jury is] to get the law." Dale v. St

ate , 18 Tenn. 551, 555 (1837). The trial court has the duty to charge the law relative to the case. See Cordell v. State , 207 Tenn . 231, 338 S. W.2d 615, 61 8 (1960); see also Tenn. Const.-11-

art. I, § 1 9. "I

t is the func

tion of the

trial cou rt, and no t that of c ounsel, to instruct or advise

the jury
as to matters of law." State v. David Ivy, No. W2003-00786 -CCA-R3-DD (Tenn. Crim. App., at Jackson, Dec. 30, 2004).

Counsel should refrain from attempting to instructthe jury on the law. See Smith v. State , 626 S.W.2d 283, 285 (Tenn. Crim. App. 1981) ( "It is theprovince of the trial judge to state to the jury the lawof the case, and it is not alway s advisable to counsel to do so in fina l argument beca

use of the possib ility

of error in

their summation. "). In this case, how ever, the prosecutor's commentar y was not an incorrect statement of the law. See State v. Rutherford , 876 S.W.2d 118, 120 (Tenn. Crim. App. 1993) (holding that jury instruction requ iring sequential consideration of the lesser included offenses was pro per); see also State v. Letivias Prince , No. M1998 -00005-C CA-R3-CD (Tenn Crim. App. , at Nash

ville, Aug . 10, 2000) . Furth er, th e trial court provided the correct instruction regarding the consider ation of the lesser included offenses. See State v. Smi t h , 893 S.W.2d 908, 914 (Tenn. 1994) (the jury is presumed to follow the instructions of the tria l court). Under these ci rcumstan ces, it is o

ur view that the co mment was not so inflammatory as to have affected the verdict. See Harrington , 385 S.W.2d at 759 . In consequence , the error does not qualify as "plain."

V As his final issue, the defenda nt asser ts that the trial cou rt erre d by

orderin g that he serve hi s sentence consecutively to the f ifty-y ear sentence that he was serving at the time of the offense. The state submits that consecutive sentencing was proper because of the defenda nt's extensive criminal record and because the def endant qualifies as a dangerous off ender.

When there i s a chal lenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered

the sente ncing principle s and all relevant facts and circumst ances." State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); see State v. Jones , 883 S.W.2 d 597, 60 0 (Tenn. 1994). "I f the trial court applies inappropriate factors or otherwis e fails to f

ollow the 1 989 Sente

ncing A ct, the pr

esumption

of corr ectness falls." Sta te v. Shelton , 854 S.W.2d 11 6, 123 (Te nn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sen tence. Ten n. Code Ann. § 40- 35-401, Se

ntencing Commission Co mments.

Our review requires an analy

sis of (1) the evidence, if any, received at the trial and sentencing hearin g; (2) the presente

nce rep ort; (3) t

he princ iple s of sentenc ing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the of fense; (5) any

mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 4 0-35- 102, -103, -210; State v. Smi

th , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).1 The firs t four cri teria are f ound in Gray . A fif

th category i n Gray , based on a specific number of prior felony convictions, may en hanc e the sen tence range but is no longe r a listed c riterion

. See Te nn. Co de A nn. § 4 0-3 5-11 5, Sentencing C omm ission Com ments.
-12- Prior to th e enact

ment of the

Criminal Se

ntencing Reform A ct of 1989 , the limite d classifications for the imposition of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that ca se, our supre me court ruled tha t agg ravatin g circ umstance s must be present before placement in any one of the c lassifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), our high court established an additiona l categ ory for those defendants convicted of two or more statutory

offenses involving sexual abuse of minors. There were, however, additional words of caution: [C]onsecutive sentences should notroutinely be imposed . . . and . . . t he agg regat e maxi mu m of consecutive terms must be reasonably related to the severity

of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cau tionary language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in essence, the codif

ication o f the hold

ings in Gray

and Taylor ; consecutive sentences may be imposed i n the discretion of the trial court only upon a determination that one or more of the f ollowin g criteri a 1 exist: (1) The def

endant is a profe ssional criminal wh o has know

ingly devoted h

imself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive; (3) Th e d ef

en da nt is a d an ge ro us me nt al ly a bn or ma l p er so n s o d ec la re d b y a competent

psychiatrist who concl

ud es as a r

esult of a

n investig ation prior to sentencingthat the defendant's criminal conduct has been

characterized by

a pattern of repe titive or c ompulsive

behavior with heed

less indif ferenc e to conse quence s; (4) The defend ant is a dangerous offender w hose behavior indicates little or no regard for human

life, an d no hesita

tion about committing

a crime i n which th e risk to human life is high; (5) The def

endant is convicted of

two (2) or more statutory

offenses involving sexual abuseof a minor

with consi deratio n of the a ggra vating c ircumsta

nces ar isin g from the relation ship betwe en the de fendant and victi

m or victim s, th e time spa n of defend ant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residu

al, phy sical and mental d

amage to the vic tim or vict

ims; (6) The defendant is sentenced for a n offense committed while on probation; or (7) The d efenda nt is sente nced for criminal contempt

. Tenn. Code Ann. § 40-35-115(b).-13-

The length of

the sentence, when consecutive in nature, must be "justly dese rved in relation to the seriousnes s of the offense," Tenn. Code Ann. § 40-35-102( 1), and "no greater tha n that deserved" under the circumstances, Tenn. Code Ann. § 40- 35-103(2 ); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

The tria l court or dered c onsecuti

ve sente nces on the followi

ng gr ounds: The [c]ourt is of the opinion that you do have to look at the entire matter to determine whether

th is man will be considered a dangerous offe nder or not. The offense that he's he re about , even though I think y ou could acknowledge that Tony Bobo was probably, ma

ybe, more of

the dominant person between these two, and if there were a leader betwee n the two, you would probably think that Tony Bobo was that person.

Even though that is the case, I

think ther e's ple nty of evide nce in thi s case that

. . . [the defendant] went along willingly with the s ame purpose as Mr. Bobo, knowing that this was a dangerous situation, kidnapping [the victim], and that even thou gh he may have

. . . attempted to shield the [victim] when . . . the thing was . .

. gone wrong, and they

were not going to be able to g et through these two fences they
were trying

to get through . . . then he may have had more of a conciliatory approach

. . . . There's no question b ut that this scheme or this effort to escape from the penitentiary with Mr. B obo was something that was very , very dang erous, and that that . . . applies in this case. Not only that, but . . . [the def

endant] . . . a few month s after t his offense, ap pa re nt ly, on Dece

mber the 27th of . . . 1998, alo

ng with five othe r inmates , overpowered officers at the maximum security, Unit 1, and exited this unit. Using
a ladder, they

scaled the perimeter defenses on the e ast side of the compound. And
so it's obvi ous that [the

defenda nt] not only

on this occ asion, wh ere this t ruck was running aroun d ther e, kep t runn ing in to th e fence a nd goi ng into the per imeter, or wherever he was going, there was anothe r thing in the same y

ear . . . . A nd ob vi ou sl y, with the convi ction[s] tha t he has f

or [s]econd

[d]egre e [m]urder , [e]specia ll y [a]ggravated

[k]idnapping, and

[a]ggravated [r]obbery

and other offenses that hewas on, it's obvi ous, he' s in a cat egory of a per son that y

ou would have to consider

to be a dangerous offender. Inaddition to

that, . . . in the Cod

e, . . . 40- 35-115(2 ), I t

hink, obvio

usly , this defendant is an offender whose re cord of criminal activity is extensive. . . .

The trial court

also agreed with the prosecutor' s statement that "he would pose a threat to the safety of the public and that the length of the sentence is commensur ate with . . . that in mind."

As a career offender

convicted of a Class

A felony , the def endant w as sente

nced to si xty ye ars, the only

sentence provided

for by statute. See Tenn. Code Ann. §§ 40-35-108 ("A defenda nt who is found by the

court bey ond a reasonable doubt to be a caree r offender shall receive the2 T he record established that the defendant was involved in a second daring escape attempt only months af

ter the o ffense

in this cas e

. -14- maximum sentenc e within the applicable Range I II ."); -112 ("A 'Rang e II

I' sentenc e is . . . [f]or a Class A felony, not less than forty (40) nor

more than sixty (60) y

ears[.]"). The trial court ordered that the defendant serve his sentence conse cutive to the fifty-y ear sentence he was serving at thetime of the offense, concluding that the defe ndant was a dangerous offen der an d that his record of criminal activity was e

xtensive.

In Gray , our supreme court ruled that before conse cutive sentencing could be imposed upon the dange rous off ender, c onsidere d the most su bjective of the cl assifica

tions and t

he most dif

ficult to apply, other

conditions must be present: (a) that the crimes in volved ag grava ting cir cumstanc es; (b) that consecutive sentences are a ne cessary means to protect the public from the defendant; and (c) that the te

rm reasonably

relates to the sev erity

of the offenses. In State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995), our high court reaff irmed those principles, holding that con secutive sentences cannot be require d of the da

ngero us offen der "un less the te rms reas onably

relate[] to the severity of the offe nses commit ted and are necessary in order to protect the public (society ) from further criminal acts by those persons who re sort to aggravated cr

iminal conduct." The Wilkerson decision, whichmodified somewhat the strict factual guidelines for consecutive se ntencing adopted in State
v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing asa "huma n proces s that neither can nor should be reduced to a set of fixed and mecha nical rules." 905 S.W.2d at 938.

Alth ough the ruling with regard to the Wilkerson factors could have been more specific, the trial court made the appropriate findings. Fur ther, the record

supports the finding that the defendant is a dangerous offender. A lready c onvicted of second degree murde r, especially

ag grav ated kidn appin g, and aggravated r obbery, the de fendant planned a prison escape with Bobo, who ha d already be en co nv ic te d o f f

ou r c ou nt s o f m ur de r, vo lu nt ar y m ans laughter, especially aggravated kidn appin g, and

aggravated robbe

ry, among other offenses. As was made clear by bo th the def

ense and the prose cution at

trial, B obo had a

reputat ion as a da

ngero us man, one

justly deserved. The two thenkidnapped the victim at knife point, commandeered the delivery truck, and crashed

it into the perimeter fence. They

stopped only when they

were greeted by

a hail of gunfire. The risk to the life of the victim and the other correctional officers was considerable. Additionally, the defendant has
a history of violen t offens es. 2 In our

view, the de fendan t's behavior demonstrated he had little or no regard for hu man li fe and n o hesi tati on abo ut com mitt ing a crimein which the risk to human life was high. Th e effe ctive se

ntence r easonab ly relates to the seriousness of the offense. Finally, it is our view that the agg regat e term, 1 10 years, is

necessa ry to protect the public

from this d

efenda nt. Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE