1 

# FILED
February 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. NO. 01C01-9804-CC-00190 APPELLEE, * WILLIAMSON COUN TY VS. * Hon. Henry Denmar k Bell, Judge NATHAN MCKISSACK, * (failure to appear) APPELLANT. *

For Appellant : For Appellee : Eugene J. Honea Paul G. Summers Assistant Public Defender Attorney General and Repor ter Twenty-First Judicial District 425 Fifth Avenue North 407-C Main Street, P.O. Box 68 Nashville, TN 37243-0493 Franklin, TN 37065-0068 Todd R. Kelly Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Lee Dryer Assistant District A

ttorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED: ____________________

AFFIRMED

NORMA MCGEE OGLE, JUD GE2 OPINION
On September 30, 1997, a Williamson County jur y found the appellant, Nathan McKissack, gui lty of failure to appear. Beca use the underlying offenses were felonies, the appellant was convicted of a Cla ss E felony and sentenced to four years in the Tennessee Depar tment of Corrections as a Pers istent, Range III offender. The trial court ordered that the ap pellant serve his sentence consecutively to his eight year sentence for the underlying offenses.
The appellant appeals as of right the judgment of the trial court and raises the following issues: (I) Whether the failure to appear statute, Tenn. Code Ann. § 39- 16-609 (1996), is unconstitutional; (II) Whether the trial court erred by deny ing the appellant's Moti on in Limine to prohibit the State during trial from impeaching the appellant with his prior conviction for failure to appear; (III) Whether the trial court erred by overruling the appellant’s objection to the State’s recitation of a pattern jury i nstruction during closing arg ument; (IV) Whether the trial court erred by overruling the appellant's objection to the State's referenc e, during closing ar

gument, to the appellant’s failure to pre sent a defense; and (V) Whe ther the trial cour t erred by im posing co nsecutive sentences.
We affirm the judgment of the trial court.3 I. Factual Background In 1996, the appellant was con victed in the Circui

t Court for Williamson County of a felony count of failure to appear and a felony count of forger y. Pursuant to these convictions, the appellant received an effectiv e sentence of eight years. However, the appellant was placed in a Community Corrections program in lieu of incarceration in the Tennessee Department of Corrections.
On February 18, 1997, upon the appellant’s admission to v iolating the conditions of his alternativ e sentence, the Williamson County Cir cuit Court revoked the appellant’s Community Corrections sentence and ordered th e appellant to report to the Williamson County Clerk’s office on March 18, 1997, in order to begin serving his eight year sentenc

e in the Tennessee Department of Corr ections. The appellant failed to report to the Clerk ’s office, and on March 24, 1997, the Clerk issued a warrant for the appellant’s arrest. The appellant was subsequently arrested at his home, and, on April 14, 1997, a Williamson County grand jury indict

ed the appellant for the offense of failure to appear.
Prior to the appellant’s t rial, on August 4, 1997, the trial court conducted a preliminary hearing

to address the appellant’s M otion to Dismiss, whi ch alleged that the statute setting forth the c harged offense of failure to appear is unc onstitutional. The trial court also consi dered the appellant’s Motion in Limine to prohibit the reading of or showing

of the indictment to the jury or prospective juror

s, due to the reference in the indictment to the appellant’s prior conv iction for failure to appear. Following argument

by counsel, the trial court denied the Appellant’s M otion to Dismiss. Howev

er, the court ordered that the jury and any prospec

tive jurors be precluded from viewing the indictment.1 Although defense counsel stated i n his opening statement that the appellant was to appear at the Williamson County Jail, the record reflects that, in fact, the appellant was to report to the Williamson County Clerk’s office. 4 At trial, t he appel lant stip ulated t hat he ha d previous ly been con victed of two felonies and that, on February 18, 1997, the W illiamson County Circuit Court revoked his Community Corrections sentence for thos e offenses and ordered him to report to the Williamson County Jail on March 18 , 1997. 1 The appellant further stipulated that, in fact, he failed to appear on that date.
In his opening argument, c ounsel for the Appellant stated that he hoped to present evidence that the Appel lant had never been convi cted of a violent offense or a drug offense, and that the appellant i s a “decent person.” Couns el further stated that he hoped to present proof that the Ap pellant possessed a reasonable excuse for failing to report for ser vice of his prior senten ces in accordance with the trial court’s order.
The State presented the testimony of Judy Mangrum, a Deputy Clerk in the Williamson County Clerk’s office, and C orporal John Jordan, a super visor in the Records Department of the W illiamson County Sheriff’s Department. Through Ms. Mangrum’s testimony, the State introduced into evidence a copy of the trial court’s order, dated February 18, 1997, revoking the appel lant’s Community Corr ections sentence and ordering him to report to the Clerk’s office on March 18, 1997. Ms. Mangrum further testified that, in fact, the App ellant did not report to the Clerk’s office on March 18, 1997. She confirmed th at, according to the recor ds of the Clerk’s office, a warr

ant for the appellant’s arrest was issued on March 2 4, 1997. Corporal Jordan further confir med that the appellant was bro ught to the Williamson County Jail pursuant to an arrest warrant. The trial court sustained defense5 counsel’s objection to the i ntroduction into evidence and presentation to the jury of the arrest warrant, w

hich also included a reference to the appellant’s prior conviction for failure to appear.
Following the pres

entation of the State’s proof, the tri al court conducted a jury-out hearing i n order to address the appell ant’s Motion in Limine to prohibit the State from impeaching the appellant with his prior conv iction for failure to appear. The trial court denied the appel lant’s motion. Specifically, the trial court stated that, because defense counsel had stated duri ng his opening statement that the appellant is a decent person, c ounsel had subjected his cli ent to impeachment with all his prior conv

ictions, including the

conviction for failure to appear.
Following the court’s ruling, the appellant declined to testify. Instead, while the jury remained outside the courtroom, the appellant took the stand for the limited purpose of making an offer of proof concerning his excuse for failing to report to the Williamson County Clerk’s office. The appe llant testified that he forgot that he had been ordered to report to the cl erk’s office, because he was working at two jobs and his mother w

as ill. He

stated that h e willin gly accom panied the det ective who came to his house to execute the ar rest warrant. The appell ant presented no evidence to the jury.
Following the clos

e of proof, the State asked that the tri al court instruct the jury that it could not consider the defense of a reasonable ex cuse. The court denied the State’s request, opini ng that the instruction w as unnecessary due to the appellant’s failure to present a defense. T he court observed that the State could argue to the jury that, although defense counsel had stated during opening statements that the appellant hoped to prove a reasonable excuse, the appellant6 had not, in fact, presented any ev idence of a reasonable excuse.
During closing argument, the State, in fact, argued that, although def ense counsel had stated during hi s opening statement that the appell ant is a decent person, counsel had presented no e vidence to support his s tatements, nor had defense counsel presented proof of a reasonabl e excuse for the offense. The prosecutor then read the follow ing excerpt from T.P.I. Cr im. No. 27.02: It is a defense to prosecution for the offense of failure to appear that the person had a reasonable ex cuse for failing to appear at th e specified time and place. If evidence is introduced supp orting this defense, the state has the burden of proving beyond a reasonable doubt that the defendant did not have a r easonable excuse for failing to appear at the specified time and pl ace. The prosecutor emphasized that the State had the burden of proving beyond a reasonable doubt the lack of a reas onable excuse only if a defendant presented proof of a reasonable excuse. D efense counsel timely objected both to the prosecutor’s comments concer ning the appellant’s failur e to present a defense and the prosecutor’s recitat ion of the pattern jury ins truction concerning the defense of reasonable excuse, which objections were overruled by the trial court. Defense counsel waived clos ing argument, and, follow ing deliberation, the jur y returned a verdict of guilty.

On December 8, 1997, the trial court conducted a sentencing hearing, at the conclusion of which the cour t imposed a minimum sentence of four year s, to be served consecutivel

y to the appellant’s sentenc es for the felonies underlying the instant offense.
II. Analy sis A. Initially, the appella nt challenges the constitutionality of Tenn. Code Ann. §2 The appellant in his brief does not appear to claim that the statute i n the instant case is overbr

oad. In contrast to the standar d for determining whether or not a statute is vague, when a statute is challenged as overbroad this court must evaluate whether or not the statute’s language “ literally encompasses constitutionally protected activity.” State v. Forbes , 918 S.W.2d 431, 448 (Tenn. Crim. App. 1995). The appellant does not allege any const itutionally protected activity whi ch would be encompassed by the instant statute, nor do w e find that the instant statute is over

broad. 7 39-16-609, the statute setting forth the offense of failure to appear. The appell ant alleges th e following

bases to his

claim: 1. The statute is sufficiently v ague to violate the due pr ocess provisions of the Tennessee and United States consti tutions and constitutes an impermissible delegation of legislative authori ty to the executiv

e and judicial branches of gov ernment. 2 2. The manner in which the statute is applied in Williamson County violates equal protec

tion provisions of the Tenness ee and United States constitutions.
Courts are charged w

ith upholding, where po ssible, the constitutional ity of statutes. State v. Joyner, 759 S.W.2d 422, 425 (Tenn. Crim. App. 1987)(citi ng Dykes v. Hamilton County , 191 S.W.2d 155, 15 9 (Tenn. 1945)). This principle is applicable to statutory provisions whic h are “inartfully draw

n, but which with reasonably unstrained interpretation can be seen to ex press the clear intent of the legislature.” Id . In light of this principle, we turn to the specific standards that must be applied when determining whether or not a statute i s impermissibly v ague.
Generally, when a statute is challenged as unconstitutionally vague, this court must consider whether the statute’s “prohibitions are not clearly defined and are susceptible to different interpretations as to what cond uct is actually proscribed.” Forbes , 918 S.W.2d at 447-48. See also State v. Lakatos , 900 S.W.2d 699, 7018 (Tenn. Crim. Ap p. 1994)(citing Grayned v. City of Rockford , 408 U.S. 104, 108, 92 S.Ct. 2294 (1972))(“[i]t is a fundamental tenet of due process that a statute is void for vagueness if the conduct w hich it prohibits is no

t clearly defined”). V

ague statutes implicate due proces s by failing to prov

ide adequate notice to a cri minal defendant of proscribed conduct and by inviting arbitr

ary and discriminator

y law enforcement. Forbes , 918 S.W.2d at 448. Accordingly, the s tandard for determining whether or not a statute is unconstituti onally vague has al so been articulated by this c

ourt in the form of a two part tes t: 1. The statute “must ‘give the person of ordinary intel ligence a reasonable opportunity to know what is prohibited, so that he may act accordingly;’” a nd 2. The “statute ‘must provide e xplicit standards’ to prevent ‘arbitrar y and discriminatory enforcement.’”
Lakatos , 900 S.W.2d at 701 (citation s omitted).
The statute challenged by the defendant provides, in pe rtinent parts: (a) It is unlawful for any per son to knowingly fail to appear as directed by a l awful authority if the person: ... (2) Has been lawfully rel eased from custody, with o r without bail, on conditi on of subsequent appearance at an official proceeding or penal institution at a specified ti me or place; ... (b) It is a defense to prosecution under this section that: ... (2) The person has a reasonable excuse for failure to appear at the specified time and place ... . Tenn. Code Ann. § 39-16-609.
The appellant in the instant case contends tha t this statute is vague, because the terms “official proceeding” and “reasonable excuse” are ambiguou s. Moreover, the appellant contends that the ambig uity of the statute constitute s an “unconstitutional delegat ion of legislative autho rity and duty.”3 The appellant argues in his brief that the statute “does n ot define which proceedings a defendant is compell ed to attend.” However, contrary to the appellant’s assertion, the statute does provide that the app ellant is to attend those official proceedings whi ch he has been directed to attend by a lawful authority. Tenn. Code Ann. § 39-16-609(a).

4 Tenn. Code Ann. § 18-6-114 (1997) provides that county clerks are empowered to take affidavits and administer oaths. 9 The term “official proceeding” must be considered “in the c ontext of the statements of law contained in the relevant statutes and cou rt rulings.” State v. Lyons , 802 S.W.2d 590, 59 2 (Tenn. 1990). The State correctly notes that the term “official proceeding” is

defined in our criminal code. Tenn. Code Ann. § 39-11- 106(25) (1996). The provision states: “Official Proceeding” means any type of administrativ e, executive, legislative or judicial proceeding that may be conducted before a public servant authorized by

law to take statements under oath. Thus, we note that, in State v. Forbes , 928 S.W.2d at 448, this court concluded that Tenn. Code Ann. § 39-16-503(a)(2) , the statute setting forth the offense of tampering with or fabri cating evidence, prov ided sufficient notice to the accus ed of the prohibited conduct, despite the legislature’s us

e of the phrase “official proceeding.”
We conclude that the phrase does not render the fail ure to appear statute unconstitutionally v

ague. 3 Moreover, in this case the record reflects that the Williamson County Circuit Cour t released the appellant on bail and ordered him to report to the Clerk’s office in order that the Clerk might process the revocation of his Community Corrections sentence. 4 A person of ordinary intelligence would understand that failure to appear as ordered by the trial c

ourt would constitute conduct encompassed by the statute at issue in this appea l.
The appellant additionally challenges the use by the legislature of the phra se10 “reasonable excuse” i n setting forth a defense to failure to appear. Tenn. Code Ann. § 39-16-609(b)(2). In evaluating the appellant’s contention, this court should consider “the natural and or dinary sense of the word s of the statute and the ‘use of common experience.’” Lyons , 802 S.W.2d at 592. Moreover, [t]he vagueness doctrin e does not invalidate ev ery statute which a reviewing cour

t believes could have been drafted with greater precision. ... Nor does

the fact that a statute ... applic able in a wide variety of situatio ns, must neces sarily use words of gen eral meaning, because greater precisi on is both impractical and di fficult, render that statute unconstitutionally vague. Id . Accordingly, our

supreme court has further obser ved that “the probabilit

y that individuals or court

s may disagree on the appl ication of a statute in close fact ual situations, is wholly insufficient to support a charge of unconstitutiona l vagueness.” Dorrier v. Dark , 537 S.W.2d 888, 89 3 (Tenn. 1976).
Indeed, this court has previously held that the use of a reasonablen ess standard does not render a statut e unconstitutionally v

ague. State v. Cooper , No. 01C01-9708-CR-00368, 1998 WL 668263, at *3 (Tenn. Cr im. App. at Nashville, March 30, 1998)(holding that language “fashioned to lead a victim to reasonab ly believe it to be a deadly weapon,” contained in the aggravated robbery statute, is not unconstitutionally v ague). The reasonableness stan dard “pervades our leg al system and rests with the intelligence, ex perience, and common sense of judges and juries.” Id

. See also State v. Hurd , 400 N.W.2d 42, 45 (Wis. Ct. App. 1986)(use of the standard of reasonablen ess does not itself render a s tatute unconstitutionally v

ague). Furthermore, other jurisdictions have approved similar phrases. See, e.g., Common wealth v. Lo ve , 530 N.E.2d 176 (Mass. Ct. App. 1988)(phrase “without sufficient excuse” was not unconstitutionally v ague); State v. Timmons , 706 P.2d 1018 (Or. Ct. App. 1985 )(phrase “without l awful excuse” in a criminal nonsupport statute w as not unconstitutionally vague). See also Model Penal Code § 242.8 (Proposed Official Draft 1962)(bail jumping statute utilizes the11 phrase “without law

ful excuse”). We similarly co nclude that the phrase “wi thout reasonable excuse” surv ives constitutional s

crutiny in the instant case.
Finally, in holding that the failure to appear statute is not unconstitution ally vague, we also reject the appellant’s claim that the manner in which the statute is applied in Williamson County viol ates the appellant’s rig ht to equal protection under the law. The appellant has fail ed to adequately explai n how application of the statute at issue here creates any class of individuals or targets a class of individuals for differential treatment. Doe v. Norris , 751 S.W.2d 834, 841 (Tenn. 1988). Law enforcement authorities and the cour ts in Williamson County may be cal led upon to apply the failure to appear statute differen tly in different factual circumstances; however, “things

which are different in fact or opinion are not required by either [the United States or Tennessee constitutions] to be treat ed the same.” Id . If this were not true, no criminal statute would survive constitutional scrutiny. Thus, this court has observed that “state offici als enjoy broad discr etion in determining w

hat cases are selected for prosecution. ... That discretion does not v iolate the principles of equal protection unless the choice to prosecute is ‘deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification.” State v. Bowen , No. 03C01-9612-CR-00460, 1997 WL 789899, at *6 (Tenn. Crim. App. at Knoxville, December

23, 1997). This issue is w ithout merit.

B. The appellant next asserts that the trial court erred by denying the appellant's Motion in Limine

to prohibit the State during trial from impeaching the appel lant with his prior convicti on for failure to appear. The appellant specifically contends that the prejudicial effect of the prior c onviction for failure to appear would have outwei ghed any probative val ue pursuant to Tenn. R. Evid. 609.12 Tenn. R. Evid. 609(a) prov ides that a witness, i ncluding the accused in a criminal prosecution, may be impeached by evidence that he has previously been convicted of a crime if the foll owing procedures ar e followed: (1) The witness must be asked about the conviction on cross -examination.

... (2) The crime must be punishable by death or imprisonment in exc ess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement. (3) If the witness to be impeached i s the accused in a criminal prosecution, the State must gi ve the accused reasonable not ice of the impeaching conviction before trial, and the court upon request must determine that the convicti on’s probative value on credibility outw eighs its unfair prejudicial effect on the substantive issues.

The appellant in his brief corr ectly notes that the tri al court, during the jur y-out hearing conducted for the purpos e of addressing the appellant’s Motion in Limine , did not articulate his appl ication of the balancing test set forth above. Rather, the court merely concluded th at, because defense counsel had remark ed during the appellant’s opening statement that he hoped to demonstrate that the appellant is a “decent person,” defense counsel “opened the door” to evidenc e concerning the appellant’s prior convictions, including his prior conviction for failure to appear.
Accordingly, it ap pears that the trial court ruled upon the admission of the appellant’s prior conv

iction for failure to appear on the basis of Tenn. R. Evid. 404, governing the admiss ion of character evidence of the accused in a criminal prosecution, rather than pursuant to Rule 609. Interestingly, the trial court mad e this determination after already r uling on two separate o ccasions, once pre-tria l and once in response to an objecti on by defense counsel during the presentation of the State’s case, that the jury should not be informed that th e appellant had previously been convicted of failure to appear

.5 In any event, even had defense counsel “opened the door,” the court, under Tenn. R. Evid. 405, woul d still have had to deter mine that the probative v alue of the conviction outweighed its prejudicial effect upon the substantive issues. 13 Initially, rule 404(

a)(1) does provide, g enerally, that the prosec ution may offer evidence of a pertinent charac ter trait to rebut such ev idence offered by the accused. See also Tenn. R. Evid. 405(a). H owever, this court has held that, because opening statements by counsel are not evidence, such statements will not alone “open the door” for the pros ecution to introduce evid ence of other crimes. State v. Traylor , No. 01C01-9104-CC-00 124, 1992 WL 14140, at *2-*3 (Tenn. Crim. App. at Nashville, Januar y 31, 1992). Opening sta tements by defense counsel simply provide nothi ng for the State to rebut. Id . Thus, the trial court erred in determining that defense counsel h ad “opened the door” to admissio n by the State of the appellant’s prior conviction for failure to appear. 5
Rule 404(b) specifically governs the admission of evidence of other crimes as substantive evidence. This evidence will only be admissible as r elevant to issues such as motive, intent, i dentity, rebuttal of accident or mistake defenses, and the existence of a larger c

ontinuing plan, scheme or co nspiracy of which the crime on trial is a part. State v. Hall , 958 S.W.2d 679, 707 (Tenn. 1997), cert. denied , U.S. , 118 S.Ct. 2348 (1998). As under Rule 609, under Rule 404 the trial cou rt must comply with certain procedural requirements: (1) The court upon request must hold a hearing outside the jury’s presence; (2) The court must determine that a materi al issue exists other than conduct conforming with a character trait and must upon request state on the record the material i ssue, the ruling, and the r easons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the dang er of unfair prejudice. As noted earlier, the trial court in the instant case failed to comply with these procedural requirements.14 Although the standard of revi ew of the trial court’s decision concerning the admissibility of evi dence is normally abuse of di scretion, our supreme court has held that the decision of the trial court to admit evidence pursuant to Rule 404(b) should be afforded no deference unless there has been substantial compliance with the procedural requirements of the rule. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997). Thus, this court must r eview this issue de novo on the basis of evidence presented at t he jury-out hearin g.
Because the appellant stipulated at trial that he had failed to appear as directed by a lawful authority, the only i ssues remaining at tria l were whether or not the appellant “knowing ly” failed to appear and w hether or not he possessed a “reasonable excuse” for fail ure to comply with the court’s order. The appell ant testified in a jury-out hearing that he would hav e testified before the jury that he forgot to appear on the appointed date due to his heavy workload and his mother’s illness. Thus, the appellant’ s prior conviction for failure to appear would hav e been highly probative on the issue of the requisite mental element, i.e., whether or not the appellant “knowingl

y” failed to appear.
We wish to emphasize that this is not a propensity argument. In other words, the probative value of the appellant’s prior conviction is notthat, having once failed to appear without reasonabl e excuse, the appellant w as likely to do so ag ain. Rather, the probative v alue of the prior convicti on is that, having been c onvicted one year earlier of failure t

o appear and sentenced to two y ears incarceration in the Tennessee Department of Correction, the appellant was unlik ely to forget to appear at another proceeding as ordered by the court. In this manner, the reason able excuse defense as applied in this case is analogous to an accident or mista ke defense in response to which evidence of other crimes may be admitt ed. While6 With respect to Rule 609, the similarit y of the prior offense to the cri me on trial would militat

e against its use for impeachment purposes. See, e.g., State v. Blanton , 926 S.W.2d 953, 959 (Tenn. Crim. App. 1996). How ever, “[t]he mere fact a prior conviction of the ac cused is identical or s imilar to the offense for which the accused is being tried does not, as a matter of law, bar the use of the conviction to impeach the accused as a witness.” State v. Harris , No. 02C01-9612-CR-00447, 1998 WL 12673, at *5 (Tenn. Crim. App. at Nashvi lle), perm. to appeal denied , (Tenn. 1998). Rather, the cour t must analyze the rel evance of the prior convi ction to the issue of credibility

and balance its relevanc e against any prejudic

ial effect upon substantive issues. D ue to the closeness of this iss ue and the availability to the prosecution of the appellant’s pr ior forgery convi ctions, it may be that the pr ior conviction for failure to ap pear would not have been admi ssible for impeachment purposes pursuant to Rule 609. 15 acknowledging that this issue is an extr emely close one, we con clude that, pursuant to Rule 404(b) of the Tennessee Rul es of Evidence, the appellant’s prior conviction was admissible to rebut the appellant’s defense. 6

C. The appellant next argues th at the trial court erred by overruling the appellant’s objection to the S tate’s recitation of a pattern jury instruction dur ing closing argument. Becaus e closing argument is a valuable privil ege for both the State and the defense, courts gener ally afford wide latitu de to counsel in presenting final argument to the jury

. State v. Cribbs , 967 S.W.2d 773, 783 (Tenn.), cert. denied , U.S. , 119 S.Ct. 343 (1998). How ever, “[a]lthough couns el may summarize the law duri ng closing arguments , the possibility of miss tatement of the law makes this an undesirable practice.” State v. Croom , No. 3, 1988 WL 63503, at *3 (Tenn. Crim. App. at Jackson , June 22, 1988 )(citing State v. Smith , 626 S.W.2d 283, 285 (Tenn. Crim. App. 1981). Nevertheless, a corr ect statement of the law by a prosecutor during cl osing argument wil l not constitute error. Id . The prosecutor in the instant case merely r ecited to the jury the patt ern jury instructi ons concerning the defense of reasonable excuse, T.P.I. Crim. No. 2 7.02, and correctly noted that, in the abse nce of pr oof of r easonab le excuse, the Stat e was not re quired to disprove16 the defense beyond a reasonable doubt. This issue is without merit.

D. The appellant further argues that the trial court erred by overruling the appellant's objection to the S tate's reference, during closing argument, to the appellant’s failure to present a defense. The appellant specificall y objects to the prosecutor’s comment that, becaus e defense counsel stated in his openi ng stateme nt that t he appel lant is a d ecent pe rson, def ense cou nsel shou ld have presented proof in support of his stateme nt. It is constitutionally impermissible for a prosecutor to comment upon the accus ed’s silence during the

course of trial. State v. Transou , 928 S.W.2d 949, 960 (Tenn. Crim. App. 1996). See also State v. Stanley , No. 03C01-9704-CR-00123, 1997 WL 789965, at *14 (Tenn. Crim. App. at Knoxville, December

23, 1997). Moreover, the prosecutor should refrain fr om comments reflecting unfavorabl y upon defense counsel or tacti cs employed by defense counsel at trial. Coker v. State , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). Nevertheless, this constitutional error may be harmless if it can be established that this trans gression was harmle

ss beyond a reasonable doubt. Transou , 928 S.W.2d at 960.

In the instant case, the tri al court instructed the j ury, “[The defendant] is not required to take the stand i n his own behalf, and his elec tion not to testify cannot be considered for any purpose against him, nor can any inference be drawn fro m such fact.” After reviewi ng the record, we conc lude that, beyond any reas onable doubt, the prosecutor’s comments did not affect the verdict to the prej udice of the appellant. Harrington v. State , 385 S.W.2d 758, 75 9 (Tenn. 1965). This issue is without merit.17 E. The appellant's fifth and final complaint i s that the trial court er red by ordering the appellant to serve his sentence for failure to appea r consecutively to his sentences for the underlying offenses.

On December 8, 1997, the trial court conducted a sentencing hearing in the appellant’s case. Both the State and the Appellan t relied upon the pre-sentence report. The pre-sentence repor t reflects a history of pr ior convictions inc

luding the following: one felony co nviction for failure to appear, three Class D felony convictions for forgery, one Class E felony conviction for forgery, and three Class A misdemeanor convictions for worthless checks. The S tate asserted the following enhancement factors: (1) the appell ant had a previous histor y of criminal convic

tions in addition to those necessary to establish the appropriate range; (13)(a) the of fense was committed while the appellant was on bail; (15) the defendant abused a position of private trust owed to his bondsman. Tenn. Code A nn. § 40-35-114 (1997).
The appellant argued, and the State c onceded, that mitigating factor (1), that the appe llant’s cr iminal co nduct ne ither cau sed nor th reatene d serious bodily inju ry, is applicable in the inst ant case. Tenn. Code Ann. § 40-35-113 (1997). The appellant further argued that, on the basis of his offer of proof to the tri al court, the court should apply factor ( 7), that the appellant was motivated by a desire t o provide necessities for himself and his family, and fact or (11), concerning the appellant’s lack of a sustained intent to v iolate the law. Final ly, the appellant argue d that, under factor (13), the court should give weight to the lack of violent or dr ug-related activit

y7 We note that the pre-sentence report reflects that, in fact, the appellant has used cocaine in the past. 18 in the ap pellant ’s crimina l history. 7
The trial court concluded that the mitigating and enhancem ent factors “balanced out.” He accordi ngly imposed a minimum sentenc e of four years. However, he did further order that the appellant’s sentence be served consecutively to the appellant’s sentences for the felonies underlying the instant offense. The court observed that a failur e to impose consecutive sent encing would constit ute a failure to impose any punishment at all.
Again, on appeal, the appellant is challenging only the trial court’s impos ition of consecutive sentencing. Generally, when the re is a challenge to the manner of service of a sentence, it i s the duty of this court to c onduct a de novo

review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this cour t only applies this pr

esumption if the record reveals that the

trial court adequately

considered sentencing pr inciples and all relevant facts and ci rcumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission Comments provide that the burden is upon the appell ant to demonstrate the impropriety of the sentence.
The appellant correctly notes that the trial court failed to state on the record the rationale for imposing consecutive sentencing, other than the trial court’s observation that to fail to impose consecutive sentencing would be to fail to im pose any sentence at all. See Tenn. R. Crim. P. 32(c)( 2) (“the judgment to make the sentences ... consecutive shall explicitly recite the judge’s re

asons therefor”).19 Nevertheless, upon de novo review and a bsent th e presum ption of correctn ess, we conclude that the record suppor ts the trial court’s det

ermination.

In the instant case, Tenn. Code Ann. § 39-16-609(f) specifically provides that, in imposi ng a sente nce for f ailure to appear, a trial cou rt may orde r a consec utive sentence. See State v. Rankin , No. 03C01-9511-CC-00369, 1996 WL 469678, at *5 (Tenn. Crim. App. at Knoxville, August 19, 1996). Moreover, we note, and it is undisputed, that the appellant’s record of criminal activ ity is extensiv

e. See Tenn. Code Ann. § 40-35-115(b)(2) (1997). W hen a defendant falls within the statutory classifications for eligibility to be considered for consecutive sentencing, the only remaining considerations are whether (1) the s

entences are necessary i n order to protect the public from further mi sconduct by the defendant and whether (2) "the terms are reasonably re lated to the severity of the offenses." State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). The appellant’s sentence is consistent with these principles. See, e.g., State v. Noble , N o. 02 C0 1- 97 01 -C C- 00 06 0, 19 98 WL 32681, at *3 (Tenn. Crim. App. at J ackson, January 30, 1998). This issue is without merit.

III. Conclusion For the reasons stated abov e, we AFFIRM the appell ant’s conviction for failure to appear, and we further affirm the sentence imposed.

NORMA MCGEE OGLE, J udge
CONCUR:20 JOHN H. PEAY, Judge

JOSEPH M. TIPT ON, Judge