### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Ma y 10, 200 6 S es sio n

STA TE OF TEN NES SEE v. RO BER T L. MITC HELL

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2005-A- 241 Steve R . Dozier , Judge

No. M2005- 01652-CCA -R3-C D - F iled Jun e 1, 2006

Th e de fe nd a nt, Rob e rt

L . M itc he ll, wa s c on vic te d o f e sp e c ia lly a g g ra vate d kidn app ing , tw o c ou nts of ag g ravated ki d n apping , and assault. L ater , the two ag g ravated kidnapping convictions wer e merg ed. The trial court se n t en ce d t h e def endant a s a violent offe nder to twe nty -five y ear s for the espec ially ag g ravated kidnapping
, twelve y ear s for the a g g ravated kidnapping , and ele ven months and twenty -n ine day s for the a ssault. Be cause the kidnapping sentenc es ar e to be se rved

consec utively , the ef

fec tive sentenc e is thirty -se v en y ea rs

. I n this appeal of right, the de fendant claims that (1) the evidenc e is insuff icient to support his kidnapping c onvictions; (2) the trial court

err ed by admitting evide nce of

prior bad a cts; and (3) his sentence is ex cessive. T he judg ments of the trial court are aff

irmed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

G AR Y R. W ADE , P. J

. , d el i v ered the opinion of the court, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

Jay No rm a n, Na sh vil le , T e nn e sse e (o n a pp e a l) ; K a tie Wei ss andGr a ha m Pric ha rd , A ssi stant P ub lic De fe nd e rs (at tria l) , f

or the app e lla nt, Rob e rt

L . M itc he ll.

Paul G . Su mme rs , A tto rn e y Ge ne ra l & Re po rt e r; B re nt C. Ch erry , A ssi stant A tto rn e y Ge ne ra l; Victor S. J ohnson, I I I , District Attorney Gene ral; and Dumaka Shabazz and Rachel Sobrer o, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TSB e c a u se of t he sens i t i ve nat ure o f t hi s case, t he vi ct i m s and t he m i no r chi l d ren wi l l b e ref erred t o b y the ir 1

i nit i als.

-2- On Fe bruary

4th and 5th, 2004, the def endant c omm i t t ed a s er i es of acts ag ainst his wife, C.F.M., who was the prim ary victim of t he crime, and his nine-y ear -old stepdaug hter, B .R.S., which

1 led to the various convictions. The e vents beg an at the f amily home in Davidson County , wher e the defe ndant had not re sided for t h e p re v i o u s three months, and ended at the residenc e of the d e f e n d a n t ' s b r o t h e r , M i c h a e l M a yn ar d
, i n S m i t h C o u n t y.

State’ s P roof

At trial, B.R.S. testified t hat on the m orning of Februa ry 4, 2004, she was at home slee ping when she hear d a "b an g o n the door" and scr eams fr om her mother. She r eca lled that as the defe ndant and he r mother then e ntere d her be droom, the def endant e x claimed that "he was not t here
t o h u rt h er , h e w as j u s tt h er e t o co m e b ac k t o h i s f a m i l y

. " W h en B. R

. S

. n o t i ce d t h at h erm o t h er 's

" he a d w a s h urt," the de fe nd a nt p ull e d th e plu g fr om the te le ph on e a ndwa rn e d, " I f y ou try

a ndc a ll the police, I ' m gonna

snap y our nec k." B .R.S. described he rself a s crying and scar ed and desc ribed the de fe nd a nt a s ma d a nd" y e lli ng in a hig h ton e ." Ac c or din g B .R. S., the de fe nd a nt o rd e re d h e r t o dress be cause they

wer e " g oing f

or a ride." B.R.S. testified that her brother, B .M., and her

sister, R.M., who were in separate bedr ooms, also dressed and joined her a nd her mother
, who had " blood

a ll o ve r h e r h a nd s a nd fa c e ," in the liv ing ro om. B .R. S., wh o sa id that sh e did no t wa nt t o g o w ith the defe ndant beca

use she was fea

rful for herse lf and the others, g ot in the backse at o f t h e s p o rt utilit y vehicle. She rec alled that as her mother and siblings also g ot into the vehicle, the defe ndant direc ted her

to the car g o are a of the vehicle w here she we nt to sleep. Be fore falling aslee p, howeve r, B.R.S. overhe ard the defe ndant announce that her mother’s pa

rents we re de ad. She testified that when she awoke , she was at t he home of her uncle, Michael May nard. B.R.S. reme mbere d that the defe ndant aske d May nard f or a g un and that eve ry one spent the ni g ht at the house. She te stified that sh e wa s in the liv ing ro om with he r mothe r, he r sib lin g s, a nd Ma y na rd fo r " a n hou r or tw o" wh ile
t h e d ef en d an ts l ep t

. B. R

. S

. s t at ed t h at h er m o t h er wa s s t i l l b l ee d i n g wh en t h eyarri v ed at M ay n ar d 's house, but the def

endant ne ver took he r to a hospital, and whe n the police a rrived, he tried to run out the bac k door. B .R.S. t estified that she ha d called the police on a prior occa sion when the de fenda nt had pointed a g un at her

mother and he r uncle

. Seven-y ear -old R.M.
, who on the date of the off ense a lso heard a

"bang " and her mother

scre aming and runni ng , testified that the def endant, who w as " [k] ind of mad" beca use her mother
was not we aring her w edding ring , order ed her to ge t dressed. R.M. re called seei n g b l o od in the ha llw a y a ndthe bathr oo m a nd on he r m oth e r' s f a c e a nda lso no tic e d th a t th e fr on t do or of the ho us e had bee n "kic ked in and br oken." She was in the ba ck of the vehicle w i th B.R.S. as they trave led to May nard' s house. Acc o rd i n g t o R.M., her mother wa s still bleeding when they arrived at May nard' s residenc e and the defe ndant told them to go inside, w here they watche d television. She

rec alled that the de fenda nt whispered to he r that whe n h e fo u n d a g un, he intended to shoot her mother and himself. R.M. testified that she told her mother what the de fendant had said and that her
mothe r l a te r m a de din ne r f or e ve ry on e a t May na

rd ' s h ou se , w he re the y

sp e nt the nig ht.-3-

The victim testified that the de fendant had not lived in their Na s h v i l l e residenc e since November

2003 and that she had paid t he mortgag e and the utilit y bills. S he stated that she thoug ht the de fe nd a nt wa s liv ing wi th his mothe r. Th e vic tim te sti fi e d th a t sh e wa s a wa ke ne d at 5: 00 a .m. on Fe bruary

4, 2004, which wa s a school day , when she hear d "a big bang " and saw the de fendant

e nte r the do or way . Sh e re c a lle d tha t she sc re a me d be c a us e sh e kn e w the de fe nd a nt " wa s the re to kill [her]." She explained that he had repe atedly threatened to do so if she ever left him and also warned that " he wo uldha ng [he r] f ro m a tr e e a nd tie a tir e aro un d [he r] n e c k a ndbu rnit, so it w ou ld m e lt over [her] body ; and then he w o u l d burn [her] to ashes, to where nobody could eve r find [her]." Ac c or din g to the vic tim , the de fe nd a nt fo rc e fu lly pu t his ha nd s ove r he r mou th to stop he r s c re a ms and th en said in a sa

rca stic tone of voice , "H i, honey , I ' m home." She de scribed the defe ndant as having g lazed, red e y es wit h his veins "popping out of his temples." She testified that the def endant g ripped he r and dire cted he r to B.R.S.' s room, explaining that he wanted to se e his children, that he
was not there to hurt he r, that he still loved her, and that he was still wea ring his w edding ring . The victim reca lled that when the de fenda nt then asked w hy she was not wea ring her w edding ring , she

an s we re d t h at s h e h ad t ak en i to ff t h e p r e v i o u s n i gh tp ri o r t o a d o m es t i c v i o l en ce gro u p m ee t i n g. She rec alled th a t th e d e f

e n d a n t r e s p o n d e d b y c a ll in g h e r a " f [* * * ]i n g b it c h " a n d h itti n g h e r in the fac e. Ac cording to the victim, the defe ndant re peate dly asked w hy

she had taken o ff he r ring and if sh e wa s d a tin g a ny on e . Sh e state d th a t he the n w a lke d o ve r t o th e c a lle r i de nti fi c a tio n b ox to s c ro ll throug h the list of caller s, intermittentlyasking , "Who' s t h i s person? I s this som ebody y ou' re f[***] ing? W ho is this person? I don' t know this person." The victim testified that the de fenda nt je rk e d the te le ph on e ou t of the wa ll a ndwa

rn e d B .R. S. n ot t o c a ll the po lic e , w arn ing that he wo uld otherwise " snap [her] neck." She rec alled that th e d ef endant gr abbed he r by

the bac k of her

hair, forc ed her

down the hallway , an d s l am med her head into a nail in the wall, which pierc ed her fore head. T he victim stated that the de fendant's a ng er e scalated and that he called he r " a whor e."

The victim testified that whe n she we nt to th e b at h ro o m t o clea n her he ad wound, the def e n d a n t f o ll o w e d
, c o n ti n u in g to b a d g e r h e r w ith th e q u e s ti o n , " Wh o ar e y o u f [* * * ]i ng ? " She
state d th a t th e de fe nd a nt d ig ita lly pe ne tr a te d h e r, sme lle d h is hand , a ndthe n r e pe a te d th e sa me question ag ain. Acc ording to C.F.M., the def endant a g ain asked her about her missing wedding ring and, dissatisfied with he r answe r, called her "a f[***] ing liar " and hit her in the fa ce. She de scribed the childre n, who wer e ag es nine, six, and two at t he ti me, as crying and s car ed. She re called that when the de fenda nt or dere d them to ge t dressed to g o for " a little ride," the three children a ll dressed hu rr ie dl y , n o te v e n t ak i n g t i m e t o p u tt h e i r s h o e s o n e v e n t h o u g h i tw a s F e b ru ar y

. T h e vic tim explained that she was una ble to ta ke her pur se with her be cause the def endant ha d "his g rip" on her arm. She testified that the defe ndant direc ted B.R.S. and R.M. to move to the back c arg o are a of the vehicle and lie down as he continued to que stion the victim a bout w ho she was dating . She stated that as he w as driving , the def endant hit her

in the ey e and then demande d that she per form ora l sex

on him . Sh e re c a lle d th a t w he n s he a t f ir st r e fu se d, the de fe nd a nt r e mark e d, " Yo u g ot thr e e se c on ds
, b i t ch
, o r y o u [ wo n 't ] h av e a n y t ee t h

. " T h e v i ct i mt es t i fi ed t h at s h e c o m p l i ed wi t h t h e d ef en d an t 's demand e ven thoug h her head was still bleeding and her children w ere in the car . She rec alled that when she asked the defe ndant wher e they wer e g oing, he replied, " I told y ou, bitch, what I

would do to y ou , if y ou e ve r l e ft

me

. . . . I ' ve kil le d y ou r pare nts . I ' ve de c apit a te d th e m. I ' ve a lr e a dy be e n to their house. . . . Now , I ' m taking y ou to where they ' re at to lay y ou down beside the m."-4-

Ac c or din g to the vic tim , th e de fe nd a nt dr ov e to h is b ro the r' s r e sid e nc e a ndup on his arriva l,

announce d, "[L ]ook what I ' ve done to this bitch. I ' m coming to f [***] ing kill her . This f[***] ing whore has take n her ring off. I ' m g onna kil l this bit ch." She testified that the def endant then a sked Ma y na rdfo r h is g un , c on tin ue d to thr e a te n to kil l he r, a nda t on e po int sa id, " [I ]f y ou do n' t g ive me a g un, I ' ll find another way to kill her. I ' ll beat her

head in with a hammer. I ' ll take a c an of c orn and put it in a pill owca se, or I ' m gonna tie her to the back of t hat truck and I ' m gonna pull her behind the truck, like they

did that n[ ****]r in Texas." The victim rec alled that the def endant then g rabbe d her

arm a nd took her to a be droom wher e he " punched" her in the c hest and de manded that she remove her c lothes. She testified that when May nard e ntere d the bedr oom and she motioned for he lp, he left the room without offe ring assistance

. She stated t hat when the def endant f orce d her to ha ve sex, she became wea

k, vomited, and deve loped a mig raine heada che f or which the defe n d an t s u p p li e d L ortab. The victim testified that May nard offer ed her the key s to his truck but warne d that the truck mig ht

no t st art a ndsu g g e ste d th a t the de fe nd a nt mig ht ru n he r of f the ro a d b e c a us e hesti ll h a d th e ke y s to their vehic le. The vic tim ex plained that she trie d to think of way s to escape , but b ec au s e it was raining and neither

she nor the children ha d any coats or shoe s, she did not do so. She ex presse d fea r of c a lli ng 91 1 b e c a us e the de fe nd a nt m ig ht f indou t. S he re c a lle d th a t th e y we re a t May na

rd ' s h ou se "[t]hat whole day

and most of the next day ."

Th e vic tim

te sti fi e d th a t sh e didc a ll h e r w or kp la c e sh ortly

a ft e r h e r a

bd uc tio n a ndle ft

a messag e that she w as si ck an d wo uld not be in to work. She pointed out that the defe ndant " was standing rig ht there a nd that' s what he told m e to s ay ." She a lso telephoned he r mother at the direc tion of the defe ndant, telling he r that she w as s i ck an d was not bring ing the children to he r ho us e wh ic h wa s her no rm a l pra c tic e . T he vic tim la te r c a lle d th e de fe nd a nt' s aun t, S a nd y B ro ok s, and told her that the defe ndant had hurt her, that she ha d been ble eding all day and needed help, and that sh e a nd the c hil dr e n w e re a fr a id f or the ir liv e s. She te sti fi e d th a t th e de fe nd a nt a lso ta lke d to Ms. Brooks a nd said, " Get somebody out there to c lean up the blood, be fore somebody finds it."

The victim rec alled that on the f ollowing morning , May nard handed her the telephone and told he r to c all Ms. B rooks, who then place d a three -wa y call to the victim's pare nts. She stated that she ag ain told her pa

rents that she w as sick and w as not bring in g t h e children to their house. She explained that she did not tell h er p ar en t s t o call the police "[b]ecause I had alr eady

hear d [t he de fe nd a nt] s a y

that he wa s g on na

take me to L ou isv ill e , K e ntu c ky , a ndbe c a us e I wa s in fe ar o f m y lif e . I fi g ur e d h e wo uldgo a he a d a ndkil l me or take of f w ith on e of

the c hil dr e n. " Th e vic tim contende d that she wa s never allowed to use the telephone alone but that she a lso talked to the de fe nd a nt' s c ou sin , Jen nif e r Re e d, a nd a sk e d he r to c ome to he lp he r. Ac c or din g to the vic tim , M s. Reed a g ree d to help but never arrived. She testified that the ordea l f inally came to an end whe n the defe ndant took a nap and May nard a sked her if she wa nted him to call the police . She rec alled that the police a

rrived soon the rea fter and plac ed the de fendant in custody . Whil e ac knowledg ing that the def endant " didn't spend all his tim e watching [her]" at Maynard' s house, she e x plained that she le ft he r r e sid e nc e wi th the de fe nd a nt o nly " [b]e c a us e I

tho ug ht h e wa s g on na kil l me , a ndI wa s a fr a id for my life. I thought, may

be, if I cooper ated with him and did what I was told, instea d of fig hting him, that there wa s a possibilit y that I would live."-5-

On cr oss-examination, the victim m aintained she never saw the de fendant sleep during the ordea l. She acknow ledg ed that she had been in the living room with May nard and the childre n for about thirty minutes w hile the defe ndant was in another room and that Maynard ha d not restra ined her f rom using the telephone. She did claim, however, that May nard told her that the defendant ha d direc ted him to watch the tele phone. The victim, who acknow ledg ed that her head w ound did not requir e s t i t ch es , rec alled that the de fendant took the car key s when he arrived at the Ma y nard residenc e. She testified that she chose not to ca ll out to M aynard' s neig hbors out of fe ar.

When asked if B .R.S. had ever c alled the police befor e, t h e victim related an incident that

occur red in F ebrua

ry 2003 at her

pare nts' house when the de fendant, in an effort to rec oncile a

se pa ratio n, pu sh e d h e r b rot her off th e po rc h in to t he drive way . Sh e re c a lle d th a t w he n a g un fe ll from the coat pocket of her brother, the defe ndant g rabbe d the g un, aimed at he r brother , and pulled the trig g er, but the g un did not discharg e. She testified t hat t he def endant then pointed the g un at her head and said, " Now, bitch, y ou' re g oing w ith me." She state d that she re fused to g o with the defe ndant and he ld onto the porch railing as the de fendant "pulled at [ her], try ing to g et [her] loose; pulled [her] shi rt off, ripped it completely off of [her]." The v i ct i m related that when he r father intervene d, the def

endant went to his truck, held the gun out the window, and warned he r that if she did no t g o wi th him
, he wa s g oin g to sh oo t him se lf

. She state d that B .R. S. c a lle d th e po lic e on thi s

occa sion but acknowledg ed that the c harg es ag ainst the defe ndant wer e ultimately dismiss ed.

The victim also testified about a prior incident whe n s h e fa i l ed to meet the def endant f or lunch at her

workplac e. She stated that a s soon as she saw his fa ce, she knew she "w as g onna g et it" and the defe ndant hit her seve ral times in the fa ce, le aving her w ith bruises, a black ey e, a broke n b l o o d v es s e l i n h e r e y e, an d a c ra ck ed t o o t h

. S h e r ec al l ed th at t h e d ef en d an tre fu s ed t o l et h ergo back to wor

k that day and took her

home instead. She a cknowledg ed that no criminal cha rg es we re pr e sse d a g a ins t th e de fe nd a nt f or thi s in c ide nt.

Offic er Stan Goa d of the Metropolitan Nashville P olice Department was dispatched to the victim's home on F ebrua ry 5, 2004, arrivin g at ap p roxi mately 9:00 a.m. After

speaking to the victim's pa

rents, the of

fice r obser ved blood in the bathroom a nd h al lway , a hole in the wa ll in the hallway , and a br oken door f rame

.

Detec tive Br

uce Pinkerton , wh o also responde d to the dispatch, desc ribed the r esidenc e: "T he fr ont door was pr etty much off the hinge s. The door f acing was laying inside on the floor. I noticed what appea

red to be blood dropping s, when I first walke d in; and they led all throug h the house. Th e r e w a s a n in d e n t[ a t] io n in th e d r y w a ll inth e h a ll w a y

. " H e te s ti f ie d th a t a te lephone appea red to ha ve bee n "snatched" from the wa ll in a child's be droom. De t ec t i ve Pinkerton talked to the victim's father a nd telephoned the defe ndant' s aunt, Sandy Br ooks, in an eff

ort to locate the victim. He reca lled that about t hirty minutes later, Ms. Br ooks returne d the call with the victim on the line. The de tective testified that the victim sa id she was all rig ht " in a faint voice " and informed him that the defe ndant was w ith her. According to the detective, he then spoke with the de fenda nt who s a id
, " We d o n ' t n e e d th e p o li c e

. We ' r e try in g to g e t o u r li f e to g e th e r

. " D e te c ti v e Pi n k erton, who was una

ble to determine from the c onv er s at i o n t h e whe rea bouts of the victim, was g iven-6-

May nard' s telephone numbe r by Ms. Brooks; whe n he ca l l ed back, how ever , he did not g et an

answe r. The de tective then c alled the Smith Count y authorities and a sked them to ch ec k fo r t he victim at May nard' s residenc e. De tective Pinkerton late r lea rned that the victim, the defe ndant, and the childre n wer e at May nard' s house. Dete ctive Pinkerton said he ta lked to the victim two or three day s later a nd she g ave a

ten-pa g e, written statement of what had occ urre d. He had no rec ollection of the victim telling him during the interview that the def endant ha d digitally

penetr ated he r.

J oy ce Sull ivan, the victim' s mother, who baby sat for the victim's y oung est child, testified that in Febr uary 2004, the vi ctim typically broug ht the children to he r house e very morning , wher e the older one s would catc h the school bus. She stated that whe n the victim did not bring the children on Fe bruary

4, 2004, she talked by telephone to the victim "for just about a minute" a nd then talked to her a g ain the next day . Mrs. Sulli van rec alled that when she told the victim that she was c oming to ge t the children be cause they had missed e noug h school, the victim responded in a w hisper fr om which she infe rre d "some thing was terrible wrong ." Mrs. Sulli van testified that she and her husband drove to the vic tim's re sidence wher e they discovere d the broke n front door, a "hole in the wall," and blood in the kitchen, living r oom, hallway , and bathr oom. Mrs. Sull ivan stated that she saw the children' s shoes and c oats in the living room and "w ondere d why they went out in the cold" w ithout them. She rec alled that she te lephoned Sandy Br ooks, who returned her call five to ten minutes later with the victim on the l ine. Mrs. Sulli van st ated she could barely hear the vi ctim on the telephone and that she sounde d like she wa s "dow n in a bar rel." Mrs. Sulli van test ified that the police wer e called and g iven Maynard' s name.

Smit h CountySheriff' s Depa rtment Deputy

Steven Cowan testified that on Febr uary 5, 2004, he wa s dispatched to Maynard' s residenc e, ar riving betwee n 2:00 and 2:30 p

. m

. , t o "inve stigate a fema le being held ag ainst her will." He indicated that he first saw May nard, w ho direc ted him to the back of the house where he found the victim and the de fendant. He desc ribed the vic tim as "ve ry disoriented" and " afr aid," and he notice d bruises and marks on her f orehe ad and e y e. He pointed out that when he asked the victim a question, the defe ndant tried to answe r and he rec alled that the victim beg an to answe r his questions only afte r she was separ ated from the defe ndant. He stated that the victim told him that she wa s being held ag ainst her will and wanted to leave

.

S m i t h C o u n t y

De p u t y R o n n i e N el s o n S m i t h
, wh o al s o re s p o n d ed t o t h e s ce n e at M ay n ar d 's residenc e, testified that he found blood on the defe ndant' s rig ht arm and c hest are a and a mark a nd abra sions on the victim's hea d. He state d that the def endant wa s "somew hat ca lm" but that the vic tim wa s si tti ng wi th h e r h e a d d ow n, a vo idi ng e y e c on ta c t w ith th e off icer s. De pu ty

Smith confirme d that every

time the office rs aske d the victim a question, t h e d efe ndant " would blurt something out . . . try

to answer

a question." He testified that the defe ndant was a rre sted and
tr a ns po rt e d to the sh e ri ff

' s d e pa rt me nt.

Defense P roof

Ms. Reed, the de fenda nt's c ousin, testified as a de fense witness. She claimed she had ca lled May nard on the evening of F ebrua ry 4, 2004, and, whe n she hea rd childre n play ing in the-7-

backg round, aske d him who was there with him. S he re called that May nard informed her that the de fe nd a nt, the vic tim , a ndthe ir c hil dr e n we re the re , a nd that w he n s he the n ta lke d to the de fe nd a nt, he was crying and "ve ry upset." She claimed that she also talked to the victim, who, she observe d, "did not sound upset at a ll in any way ," te lling her

every thing was "okay ." Ms. Reed denied that the victim had asked he r for

help.

Michae l May nard, the defe ndant' s brother, testified that on the morning of Fe bruary 4, 2004, the def endant, the vic tim, and their children c ame to his house around 6:30 or 7: 00 a.m. He r eca lled that he put his "g uns and eve rything up, be cause of the small children" and beca use the de fenda nt and the victim wer e ar g uing. May nard state d that he i n v i ted all of them inside and that he then learned that the de fenda nt had appa rently found anothe r man in the victim's house. He testified that the victim was blee ding and had "a littl e hole" in her head " like a pimple bee n' s popped." He de nied that the def

endant a dmitted ramming he r hea d into a wall. May nard stated that he and the childre n watche d television while the def endant and the vi ctim went to the back bedroom. He claimed that when he hear d a noise, he went to the bedr oom and saw that both the defe ndant and the vic tim had

remove d their pants. He then hear d the victim say , "N ot like this." He de nied that the victim asked him for help. May nard testified that he then returne d to the l iving room, and the de fendant and the victim subsequently

joined him there. Maynard c laimed that the def endant fell aslee p around 9:00 a.m. in one of the bedrooms and sle pt "ninety perc ent of the time" he was there

. He c ontended that he off ere d the victim the key s to either of his two truc ks, which we re in wor king co n d i t i o n , and ins ist e d that sh e c ou ld ha ve le ft if sh e ha d wante d. He c on fi rm e d th a t th e de fe nd a nt andthe vic tim had ar rived in the defenda nt's vehicle and that the defendant had said he wa s not going to let her take the ca r. He testified that he of

fer ed the victim a L ortab, whic h she took " around e vening time," a nd that the victim wa s allowed to use the telephone. May nard denied that he lef t the house while the d ef en d an t and the victim we re there and ref uted the claim that the defe ndant had asked him f or a g un. He a cknowledg ed that he ta lked to his father , J err y May nard, a nd his cousin, J ennife r Reed, by telephone and t hat S andy Br ooks, who l ived i n Davidson C ounty , called and informed him that

a de te c tiv e wa s try ing to r e a c h th e m.

May nard a cknowledg ed that on the second day of the defe ndant' s stay at his residenc e, the vic tim tol d h im that th e de fe nd a nt h a d to uc he d h e r i na pp ro pria te ly . H e a lso a dmi tt ed th at in his initial st atement to the police , he had stated that the defe ndant had rammed the victim's he ad into a wall with a nail but did not mean to do so. He a lso acknowle dg ed that the de fen d an t ex p re s s ed a desire to r eturn to Na shville to clean up the blood at the victim's re sidence . May nard c ontended that he c ou ld n ot r e me mbe r i f the vic tim wa s w e ari ng sh oes w he n s he arrive d at hi s h ou se bu t he did

ac k n o wl ed ge t h at h e ga v e h ers o m e h o u s e s l i p p er s t o we ar w h e n t h eywe n tt o t h e s h er i ff 's de pa rt me nt.

Th e de fe nd a nt t e sti fi e d th a t jus t be fo re the e ve nts le a din g to h is c on vic tio ns , h e ha d b e e n in ja il f or tw o a nd a hal f mon ths on a lle g a tio ns of a g g ra vate d b ur g lary

ma de by the vic tim ' s p are nts

. He c la ime d th a t th e vic tim a ndthe c hil dr e n h a d v isi te d h im i n jail a ndthat he sp ok e to the vic tim on the af ternoon of F ebrua

ry 3rd bef ore he made ba il. He denied that the victim had aske d him not to come home a fter his re lease and cla imed that all of hi s belong ings were at t he victim ' s house. He-8-

state d th a t his y ou ng e r b ro the r p ic ke d h im u p at th e ja il a ndthat th e y we nt t o h is b ro the r' s h ou se in Madison. The de fenda nt claimed that he walked fiftee n miles to the vic tim's house and arrived there betwee n 5:30 and 6:00 a.m. He c ontended tha t when he realized that all of the loc ks had bee n chang ed and a deadbolt had been pl ace d on the front door, he knocked on the door a nd, when no one

a ns we re d, he sa w thr ou g h a wi nd ow that th e vic tim

wa s w ith a

ma n. He a dmi tte d th a t he kic ke d in the front door

and cla imed that the m an tried to hide. He asserted that when he ran after the man, he pushed the victim out of the way , acc identally knocking her into t he wall. The defe ndant claimed that he and the man " scuff led," but the man " g ot loos e an d r[ a] n out the door." The de fenda nt

a c kn ow ledged th at he h it the vic tim in the e y e a ndc on c e de d th a t th e inj urie s to he r e y e a ndc hin could not have be en ca

used by one punch.

The de fenda nt admitted that the victim's he ad wa s bleeding and that she went to the bathroom
to w a sh of

f the blo od . H e de nie d tha t he dig ita lly pe ne tr a te d h e r w hil e the y we re in the bathr oo m. The de fenda nt acknowle dg ed that he a sked the victim why she wa s not w ea ring her w edding ring and why she had a man there
, and asserted that she re plied, "H e' s just a friend." The de fendant stated that he then started sca nning the caller identification box in B.R.S.'s r oom and aske d the victim about

certain telephone numbe rs. He a cknowledg ed that he " threw" the ca ller identification box but denied that he rippe d the telephone from the wall or threatened to sna p B.R.S.' s neck if she called the police. He c laimed that he a nd the victim then went to the living r oom and the c h i l d re n followed. He

a dmi tte d th a t he tol d th e vic tim to g e t B .M

. dr e sse d a ndthat he dir e c te d R. M. to g e t dr e sse d b e c aus e he wa s "ta

king them and leaving." The defenda nt stated t hat B.R.S. was not his daug hter and that he did not require her to g o with him. He contende d that he picke d up B.M. a nd heade d out the door,

a ndthe vic tim

fo llo we d, sa y ing , " Yo u' re no t ta kin g the kid s w ith ou t me ." He state d th a t he pu t B .M

. and R.M. in his vehicle and that the victim a nd B.R.S. g ot in afte r him. He acknow ledg ed that he and the victim wer e ar g uing but de n ied that he told her that he had killed he r par ents or had threatened to kill her. The defe ndant denied that he hit th e v i ct i m wh ile he wa s driving but acknow ledg ed that he a sked her to perform oral sex on him.

The de fenda nt stated that he then dr ove to Maynard' s house, who aske d what had ha ppened and invited t hem i nside. The defenda nt claimed that the victim then voluntarily called he r employ er and her mother. He testified that he and the victim late r went to a bedroom while th e c hildren watche d television and that whe n he aske d to have se x , she re plied, "N o, not like this. It's not rig ht." Th e de fe nd a nt c la ime d th a t w he n he sa id, " Ye a h, le t' s d o it ," a ndre mov e d h is p a nts , th e vic tim a lso

remove d her pa nts. The def endant a cknowledg ed that Maynard came into the room while they wer e ha vin g se x an d a sk e d if

e ve rythi ng wa s a ll rig ht. He state d th a t he a ndthe vic tim the n r e turne d to the living r oom. He said that he later went to a bedroom wher e he sle pt until about 7:00 p.m . The defe ndant ac knowledg ed that he ta lked to his cousin, J ennife r Reed, by telephone outside on the deck

a ndthat he wa s c rying a ndup se t du ri ng the ir c on ve rs a tio n. He state d th a t Ms . Re e d th e n s po ke to the victim outside his presence . The de fendant denied that he he ld the victim ag ainst her will and claimed that his only

intention was to take his childre n, B.M. a nd R.M., to May nard' s house.

The de fenda nt testified that when De tective Pinkerton c alled the nex t day , he explained that the victim's pa re n t s h ad "tried to make something really bad outta this." H e re called that he went-9-

back to slee p and wa s later a wake ned by May nard, w h o t o l d him the police wer e ther e. The defe ndant conf

irmed " what happe ned" and that when Office r C owan asked t he victim if she wa nted to press cha

rg es, he shook his hea d, "like, ' Don' t do this, m an. . .

. We done been t hroug h this

. . . a hundre d times.'" The de fenda nt claimed that whe n he wa s taken int o cu s t o d y , h e thoug ht the char g es ag ainst him wer e for "dome stic assault, because [ the vi ctim] had a knot on her head a nd a bla c k e y e ." Th e de fe nd a nt de nie d ha vin g tol d R.M

. that if he fo un d a g un he wo uldkil l th e vic tim
, claiming someone had "br ainwashe d" his daug hter int o say ing that. The def endant de nied that he had planne d to take the victim ac ross state lines and de nied telling May nard he wanted to clean up the blood at the victims' house.

The de fenda nt also testified about the 2003 incide nt at the Sullivans' home, claiming that he tried to hug the vi ctim as she pushed hi m away

. He state d that the victim's br other thre atene d to ge t his pis tol if

the de fe nd a nt d id not le a ve , els e he wa s g oin g to s ho ot h im. Ac c or din g to the de fe nd a nt, he pushed the victim's brothe r whe n he re turned two minutes later with a pi stol. The defe ndant claimed t h at b ecause he was in dang er, he g rabbe d the g un, pointed it at the victim's brothe r, and g rabbe d the victim, asking her to g o with him. He claimed that the victim's f ather then g rabbe d her by the shirt and pulled her away from the defe ndant, t earing her shirt in the proc ess. The de fenda nt insisted that he then went home and the victim late r informed him he would be arr ested for "pulling that g un on [t hem]."

Se nt e nc ing He ar ing

The victim testified that she and the children had rec eived counseling as a result of the orde al with the defe ndant and ha d moved. She stated that she still experience d fea r and paranoia and has nightmar es about the de fenda nt almost every night. She sa id that she wante d the def endant to ser ve the maxim um time for the crimes he committed. She testified she h as t o constantly rea ssure the

c hil dr e n th a tt h e y

ar e s a f e a n d c o n t e n d e d t h a tt h e d e f e n d a n th a d t h r e a t e n e d h e r o n t h e d a y

o f his

arr est, say ing that even " if he served twenty y ear s, that he would still find [ her] and kill [ her]."

J oy ce Sull ivan t estified that "the whole thi ng has j ust been a t rauma and a nig htmare." She stated the incide nt had traumatiz ed her g randc hildren very much and that they are "totally

differ ent." She related an incide nt when the defe ndant pulled a g un on her husba nd and the victim and knoc ked her dow n on the porc h. She explained that he r husband had counse led with the def endant that day

a nd ha d tr ie d to g e t him int o a dr ug re ha bil itatio n pr og ram. She te sti fi e d that a ft e rw ard, sh e felt "te rrible ter

ror e very day

until [ the def

endant] was ar

rested." She ac k n o wledg ed that she and her husband pre viouslyhad talked to the de fendant about underg oing an exorcism and acknow ledg ed that a n atte mpt e d e xorc ism ha d b e e n p e rf

orme d o n th e de fe nd a nt.

Rob e rt Willa rdMit c he ll, the de fe nd a nt' s f a the r, te sti fi e d th a t he ha d a c los e re la tio ns hip wi th the def endant. He said that B.R.S. called the defe ndant "Daddy " and t hat t he defenda nt did not treat h er an y d i ff

ere ntly than his two biologica l children. He acknow ledg ed that the de fendant and the victim a rg ued "f rom time to time" and that he had seen a bruise on the victim' s fac e and a bite on the defe ndant' s chest. He denied, howe ver, that he had e ver se en them in a phy sical alter cation. He-10-

claimed that both the de fenda nt and the victim had used illeg al drugs and asserted t hat the def endant had supported his familyprior to his incarc eration. Mit chell said that he did not b elieve the de fe nd a nt ha d int e nd e d to hu rt the vic tim
, sa y ing the de fe nd a nt "jus t did n' t want t o lo se his wi fe , h is family and his home."

J ennife r Reed, the defe ndant' s cousin, testified that the def endant a nd the victim married when B .R.S. was "just a baby ." She described t he def endant a s "one of the fine st father s I ' ve eve r known. . . . I ' ve neve r see n him be verba lly or phy sically

abusive to any

of his children."

AN AL YSI S

I. Su ff iciency of the Evid ence

The de fenda nt first arg ues that the e vidence was insuffic ient to support eith er of the kidnapping convictions. On appeal, of course , the state is entitled to the strong est leg itimate view of the e vidence and all reasonable infere nces w hich might be draw n there from. State v. Cabba g e, 57 1 S.W. 2d 83 2, 83 5 (T e nn

. 19 78 ). Th e c re dib ili ty of the wi tne sse s, the we ig ht t o b e give n t heir testimony , and the rec onciliation of conflicts in the proof are matters entr usted to the jury

as the trier of fa ct. B yrg e v. State, 575 S.W .2d 292, 295 (Tenn. Crim. App. 1978). When the s ufficie ncy of the evidenc e is cha lleng ed, the r eleva nt question is whether, a fter r eviewing t h e ev i d ence in the light most favora

ble to the state, a ny

rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. Tenn. R. App. P. 13(e); State v. W illiams, 657 S.W .2d 405, 410 (Tenn. 1983) . Be cause a ver dict of g uilt ag ainst a defe ndant re moves the pre sumption of innocence and ra ises a pre sumption of g uilt, the convicted criminal defe ndant bear s the burden of showing that the evidenc e wa s leg ally

insufficient to sustain a guilty verdic t. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

. A. Especially Aggravate d Kidnap pin g (Count 1)

Especia lly ag g ravated kidnapping is de fined as a false imprisonment " [w] here the victim was

u n d er t h e ag e of thirteen (13) at the time of the remova l or confine ment." Tenn. Code Ann. § 39-13-305( a)( 2) (2003) . Fa lse imprisonment is defined as the " knowing remova l or confinement of another so as to subst an t i al l y

interfe re w ith the other' s liberty ." T enn. Code Ann. § 39- 13-302(a ) (2003).

I n this case, B .R.S., who was only ten y ear s old at the time trial, testified that she wa s

aw ak en ed b y

d ef en d an tb ea t i n g o n t h e d o o r an d h er m o t h er s cr ea m i n g. S h e n o t i ce d t h at h erm o t h er 's head w as injured a nd rec alled that t h e defenda nt threate ned her , say ing, " I f y ou try and ca ll the po lic e , I ' m g on na

sn ap y ou r n e c k, " a ndthe n jerking the te le ph on e ou t of the wa ll. Th e vic tim

corr oborat ed t h at testimony . B.R.S. expressed fe ar of the def endant, who a

ppear ed ang ry

and order ed her

to g et dresse d. Be fore leaving
, B.R.S. saw that her mother had "blood a ll over her hands and fa ce." L ater , she hea rd the de fendant tell her mother that her g randpa rents we re de ad. Unde rD onal d F. P ai ne, di s t i ng ui s hed a dju nct prof es s or a t t he U ni ver s i t y of T enn es s ee C ol l ege of

Law a nd r eport er 2

t o t he T enness ee S up rem e C o urt A d vi sory C o m m i ss i o n o n R ul es o f P ract i ce and P roce d ure, has cri t i ci zed t he " sound di s cr et i on of t he t r i al cour t " s t andar d, ar gu i ng t hat t he adm i s s i on of evi dence i s s t r i ct l y gover ned by t he T enn es s ee R ul es of Evi den ce

. D on al d F. Pai n e, Evi den t i ar y N on s en s e, T en n

. B ar J ou r n al
, J u n e 2005, a t 15.

-11- these c ircumstance s, it is our view that the evidenc e wa s sufficient to support the conviction for the

e sp e c ia lly a g g ra vate d kidn app ing of B .R. S.

B. Aggravate d Kidnap pin g (Count 2)

Ag g ravated kidnapping is de fined as false imprisonment " [w] ith the intent to infli ct serious bo dil y inj ury on or to t e rr orize the vic tim

or a no the r" or

fa lse im pris on me nt " [w]he re the vic tim

su ff e rs bo dil y inj ury ." Te nn . Co de An n. § 39 -1 3- 30 4( a )( 3)
, (4 ) (2 00 3)

. As pr e vio us ly state d, fa lse imp ri so nme nt i s d e fi ne d a s th e " kn ow ing re mov a l or c on fi ne me nt of a no the r so as to s ub stanti a lly interfe re w ith the other' s liberty ." T enn. Code Ann. § 39- 13-302(a ).

The victim had " blood all over he r hands a nd fac e" when first seen by B.R.S. afte r the bre akin. The victim testified that the def endant slammed he r hea d into a wall. A nail pier ced he r fo re he a d. Th e de fe nd a nt a dmi tte d th a t h e kic ke d th e do or in andpu sh e d h e r i nto the wa ll. Acc ording to the victim, the defe ndant had a "g rip" on her arm as he led her to his vehicle and that the ir de pa rtur e wa s so hu rrie d, sh e c ou ld n ot t ake he r p ur se . N e ith e r s he no r the c hil dr e n h a d ti me to p ut o n the ir sh oe s. Whil e in his ve hic le
, the de fe nd a nt str uc k th e vic tim

in h e r e y e , f

or c e d h e r t o perf orm oral se x , told her t hat he had "dec apitated" her parents, and threate ned " to lay [her] down beside them." Acc ording to the victim, the defe ndant transported her an d h er c hildren to the de fe nd a nt' s b ro the r' s h ou se , w he re the y were for ced to stay

un til the ne xt da y . U nd e r the se circ umstances, it is our view that the evidenc e was sufficie nt to support the conviction for a g g ravated k i d n ap p i n g.

II. Testim ony as to P rior Bad Acts

The petiti oner nex t contends that the t rial court err ed by ref using to exclude evidenc e that the defe ndant had on a

previous occ asion threatened the vic tim and her brother because the evidenc e wa s i n ad m i s s i b l e u n d erT en n es s ee R u l e o f E v i d en ce 4 0 4 (b ). T h e s t at e s u b m i t s t h at t h e "[ d ] ef en d an t 's

v i o l en t h i s t o ry wa s o ff

er ed

. . . t o es t ab l i s h wh y

[ C

. F. M

. ] an d [ B. R

. S

. ] d i d n 'tre s i s t[ t h e] [ d ] ef en d an t 's commands to quickly

dress a nd g et in the truck to lea ve with him."

Gene rally , the admission of evidenc e is a matter entrusted to the sound discretion of the trial court, a nd a trial c ourt' s ruling on an evidentiary matter will not be r ev erse d absent a buse of that discretion. State v. Robinson, 146 S .W.3d 469, 490 (Tenn. 2004) (c iting State v. Dubose , 953

2 S.W .2d 649, 652 (Tenn. 1997) ). On a ppeal, " [t ]he abuse of discr etion standard c ontemplates that befor e reve rsal the r ecor d must show that a judge ' applied an inc orre ct leg al standar d, or re ache d a de c isi on wh ic h is a g a ins t lo g ic or re a so nin g that c a us e d a n inj us tic e to the pa rt y c omp la ini ng .' " State-12-

v. Coley
, 3 2 S. W. 3 d 8 3 1
, 8 3 3 ( T e n n

. 2 0 0 0 ) ( q u o ti n g St a te v

. Sh irle y , 6 S. W. 3 d 2 4 3
, 2 4 7 (Tenn. 1999); State v. Shuck, 953 S.W .2d 662, 669 (Tenn. 1997) ).

Te nn e sse e Rul e of

Ev ide nc e 40 4( b) pr ov ide s a s f oll ow s:

Othe r C ri me s, Wro ng s, or Ac ts. Ev ide nc e of

oth e r c ri me s, wrongs, or ac ts is n ot a dmi ss ib le to pr ov e the c ha ra c te r o f a

pe rs on in o rd e r t o s ho w a c tio n in conf o rm ity with the char acte r trait. It may , howeve r, be a dmissibl e for other purposes. The conditions which m u s t b e satisfied before allowing inquiry on

cross-e x amination about spec ific instance s of conduc t are : (1 ) T h e c o u rt u p o n re q u es tm u s th o l d a h ea ri n g o u t s i d e t h e j u ry 's prese nce; (2) The court must de termine that a materia l issue exis ts ot h er than

c on du c t c on fo rm ing wi th a c ha ra c te r t rait a nd mus t uponre qu e st s ta te on the re cord the materia l issue, the ruling , and the r easons f or admitting the e vidence ; and (3 ) Th e c ou rt mus t e xc l u d e t h e e v i d e n c e i f i t s p r o b a t i v e v a l u e is outweig hed by

the dang er of

unfair pr ejudice.

Tenn. R. Evid. 404(b).

Rule 404 was patterned in g reat measure on State v. Parton, 694 S.W .2d 299 (Tenn. 1985)
, wh e re in o ur

su pr e me c ou rt

ru le d th a t e vid e nc e of

oth e r c ri me s is g e ne ra lly

ina dmi ssi ble . T he te rm s of thi s rule e sta

bli sh that c ha

ra c te r e vid e nc e c a nn ot b e us e d to pro ve that a pe rs on ha s a pr op e ns ity
to c omm it a

c ri me . T e nn . R. Ev id. 40 4( b) ; State v. Ad kis so n, 89 9 S. W.2 d 6 26 , 6 46 (T e nn . Crim. App. 1994). Most authorities sug g est that tri al co u rt s t ak e a "r estrictive a pproac h of 404(b)

. . . be c a us e ' oth e r a c t' e vid e nc e c arrie s a sig nif ic a nt p ote nti a l f

or un fair ly inf lue nc ing a

jury ." Ne il P. Cohen et al., Te nnessee L aw of Evidence § 4.04[8] [e] (4th ed. 2000 ). That per haps best explains the tr a dit ion a l po stu re of

the c ou rt s th a t a ny

te sti mon y of oth e r ba d a c ts b y a de fe nd a nt i s n ot u su a lly admissible when used a s substantive evidenc e of g uilt of the crime on tria l. Parton, 694 S.W .2d at 302-03. I n those instances wher e the other conduct or acts are simil ar to the crime s o n t ri al
, t he potential for a

prejudicia l result incre ases. State v. Bor dis, 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995).

Unlike the F eder al rule ba rring such evide nce, our

rule doe s not specifica lly enumer ate the purposes fo r wh i ch s u ch evide nce may be off ere d. State v. Gilliland, 22 S.W .3d 266, 271 (Tenn. 20 00 ). Th e Ad vis ory

Com mis sio n s pe c if

ic a lly omi tte d s uc h a lis t so that la wy e rs a ndjud g e s w ou ld

" ' us e c are in i de nti fy

ing the iss ue s to be a dd re sse d b y the Rul e 40 4( b) e vid e nc e .' " I d. (q uo tin g Ne il P. Co he n e t a l., Te nn e sse e L a w o f E vid e nc e § 4 04 .6 , at 16 9 n .4 57 (3 d e d. 19 95 )). Th erefo re, in

e ve ry c a se in w hic h e vid e nc e of oth e r c rimes
, wr on g s, or a c ts i s o ff

e re d, thetr ia l c ou rt

sh ou ld

car efully scrutinize the rele vance of the e vidence and the r easons f or which it is being offe red. I d. Although Rule 404(b) does not expli citly list these ex ceptions, our courts have he ld that evidence of other c rimes may

be admissible to show motive, intent, guilt y k n o wl edg e, identity of the-13-

defe ndant, abse nce of

mistake, and the e x istence of a common sche me or plan. See , e.g ., Collard v. State, 526 S.W .2d 112, 114 (Tenn. 1975) ; see also Cohen, supra § 4.04[8] (4th ed. 2000). Even if the cha lleng ed evide nce is re levant to an is s u e o ther than c hara cter , it must be excluded if the dang er of unfair prejudice outweig hs the probative value of the other crime e vidence . Tenn. R. Evid. 4 0 4 (b )( 4 ); State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993); see also State v. Z ag orski, 701 S.W .2d 808 (Tenn. 1985) ; State v. Tay lor, 669 S.W .2d 694 (Tenn. Crim. App. 1983)

. During a hea

ring held outside the j ury ' s prese nce, de fense counsel a g ree d with the trial court that a " prima ry iss ue [wa s] w he the r the re wa s a pa rt ic ula r f or c e , th re a t, or fr a ud us e d to a c c omp lis h the fa lse imprisonment." Af ter the he aring , the trial court determined that the defe ndant' s prior violent acts towar d the victim and her brother ha d been pr oved by clea r and convinc ing e vidence and

wer e re levant to the def

endant' s motive and int ent. The trial judge also found that the e vidence had substantial probative va lue.

I n St a te v. Smith, 86 8 S. W.2 d 5 61 (T e nn

. 19 93 ), ou r su pr e me c ou rt ru le d that " vio le nt a c ts indicating the re lationship between the victim of a violent crime and the def endant prior to the commission of the offe nse ar e rele vant to show [the] defe ndant' s hostili ty toward the victim, malice, intent, and a se ttled purpose to harm the victim." 868 S.W .2d at 574 (c iting State v. Turnbill, 640 S.W. 2d40 , 4 6- 47 (T e nn . Crim. Ap p. 19 82 ); State v. Gl e bo c k, 61 6 S.W.2 d 897 , 905 -0 6 ( Te nn . Crim. App. 1981)); se e also State v. Ha ll, 958 S.W .2d 679, 707-08 (Te nn. 1997) (a ppendix).

I n this case, the e vidence showed th at t h e d ef endant ha d committed prior ac ts of violence ag ainst the victim and that she had g ood rea son to b e afr aid of him, explaining why they did not phy sically

resist his command to acc ompany him to his vehicle. The evidenc e showe d a history of

a ng e r o n th e pa

rt of the de fe nd a nt wh e n the vic tim tr ie d to e nd

the ir re la tio ns hip . T he e vid e nc e a lso d em o n s tra t ed a r el at ed
, s et t l ed i n t en tt o h ar mt h e v i ct i m , wh i ch wa s p ro b a t i v e o f t h e d ef en d an t 's motive and intent in brea

king into the vi ctim's residenc e and kidnapping her and the childre n. See State v. Michae l L y nn Stanton, No. E2003-02675-CCA-R3-CD, slip op. 9-10 (Tenn. Crim. App.,

a t K no xvill e , A pr . 1 5, 20 05 ). I n our vie w, the re c or d d e mon str a te s th a t th e pr ob a tiv e va lue of thi s te sti mon y a s to prior

a c ts o utw e ig he d it s p re

jud ic ia l e ff

e c t. T his iss ue is w ith ou t me ri t.

III . Se nt e nc ing A. Length of

Sentence

The defe ndant arg ues that the trial court err ed by imposing the maximum sentenc es for eac h of his convictions and by

ordering the kidnapping sentenc es to be serve d consec utively . When there is a c ha lle ng e to the le ng th, rang e , o r ma nn e r of se rv ic e of a se nte nc e , it is the du ty of thi s c ou rt to conduct a de novo re view with a pr esumption that the det erminations made by the trial court are

corr ect. Te nn. Code Ann. § 40-35- 401(d) ( 2003 ). This presumption is "conditioned upon the

a ff ir ma tiv e sh ow ing in the re c or d th a t th e tr ia l c ou rt con sid e re d th e se nte nc ing princ ipl e s a nda ll rele vant fa cts and c ircumstance s." State v. A shby , 823 S.W .2d 166, 169 (Tenn. 1991); see State v. J ones, 883 S.W.2d 597, 6 0 0 (T en n. 1994). " I f the trial c ourt applies inappr opriate f actor s or otherwise f

ail s t o fo l l o w t he 1989 Sentenc ing A ct, the pre sumption of corre ctness fa lls." State v.-14-

She lto n, 85 4 S.W.2 d 116 , 123 (T e nn . Crim . App . 1 99 2) . T he Se nte nc ing Com mis sio n Co mme nts provide that the bur den is on the def endant to show the impropriety o f t h e s en t ence . Tenn. Code An n. § 4 0- 35 -4 01 , Se nte nc ing Com m' n Co mme nts

.

Our re view re quires an analy sis of (1) the evidenc e, if any , rec eived at the trial and sente ncing hearing; ( 2) the pre sent en ce re p o rt ; (3) the principles of sente ncing and the a rg uments of counse l relative to se ntencing alternatives; ( 4) the nature and char acte ristics of the off ense; (5) any

mitigating or enha ncing fac tors; (6) any statements made by

the def endant in his own beha lf; and (7) the defe ndant' s potential for re habi l i t at ion or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, - 210 (2003); State v. Smith, 735 S .W.2d 859, 863 (Tenn. Crim. App. 1987).

I f the trial court' s finding s of fac t a re adequately

supported by

the re cord, this court may not modify the sentenc e eve n if it would have pref err ed a differ ent result. State v. Fletc her, 805 S.W .2d 785 (Tenn. Crim. App. 1991) . The pre sumption of corre ctness is, howeve r, " conditioned upon the aff irmative showing in the rec ord that the trial c ourt considere d sentenc ing principles and re levant fac ts and circ umstances." Ashby , 823 S.W .2d at 169. The tria l court must place on the rec ord the

rea sons for the se ntence . J ones, 883 S.W.2d at 599.

I n sentenc ing the defe ndant, the trial c ourt first ac knowledg ed the se ntencing g uidelines and advised that it had revie wed the pr esente nce r eport. The trial court imposed the se ntence s based on the following enhanc ing f actor s : (1) the de fendant had a pr evious history of criminal convictions or beha vior in addition to those necessa ry to e stablish the a

ppropriate rang e; (8) the defe ndant has

a h i s t o r y o f

f a i l i n g t o c o m p l y w i t h t h e c o n d i t i o n s o f a s e n t e n c e i n v o l v i n g r e l e a s e i n t o t h e c o m m u n i t y; both of which the co u rt g ave g reat weig ht; and (3) the of fense involved more than one victim, a fac tor to which less we ight wa s g iven. See Te nn. Code Ann. § 40-35- 114(1), ( 3), (8) (2003). The
tri al co u rt d i d n o tfi n d an y m i t i gat i n g fa ct o rs

. On ap p ea l
, t h e d ef en d an td o es n o tch al l en ge f i n d i n gs as to the enha nceme nt fac tors but, instead, cha lleng es the trial c ourt' s failure t o fi n d as mitigating fa c tor s th a t th e defe nd ant did no t c on fi ne the vic tim a ndhe r c hil dr e n o nc e the y arrive d at hi s br oth e r' s h ou se a ndthat he vo lun tari ly re le a se d th e vic tim s.

I n this case, the vic tim testified t hat while they wer e at the de fendant's br other' s house, the defe ndant said in a loud voice that he intended to kil l h er and twice asked f or his brother’ s g un. Seeing a hammer , he threatene d to "be at her head in" or tie he r to the bac k of a truc k and " pull her behind" it. L ater , he took the victim into a bedroom, punc hed her afte r she r efuse d to remove he r

c lothe s, a ndra

pe d he r. As fo r the c la im that th e de fe nd a nt " re le a se d th e vic tim s a liv e ," the vic tim testified that at her

reque st, the d ef

en d ant’s brother contac ted the police, w ho arrived while the de fe nd a nt w a s sl e e pin g . T he po lic e of fi c e rs , n ot the de fe nd a nt, fr e e d t he vic tim s. Un de r the se circ umstances, it is our view that the trial court a cted within its authority by imposing the maximum

se nte nc e s.

B. C ons e c ut iveSe nt e nc ingT he f i rs t fo ur cr i t eri a are fo und in G ray

. A fi f t h c at ego ry in G ray , ba sed o n a s p eci f i c num b er of

pri o r f el o ny 3

con v i ct i on s , ma y e n h an ce t h e s en t en ce r an g e bu t i s n o l on g er a l i s t ed cr i t er i on

. Se e T en n

. Code An n

. § 40- 35

- 1 1 5, S en t en cing C o m m ' n C o m m en t s.

-15- In d e t e rm i n i n g t h a tt h e d e f e n d a n t ’ s s e n t e n c e s f

o r k i d n ap p i n g s h o u l d b e s e r v e d c o n s e c u t i v e l y, the trial court note d that he had an extensive prior criminal history and wa s a dang erous of

fende r. Prior to the enac tment of the C riminal Sentencing Reform Act of 1989, t he limited classifications for the imposition of consec utive sentenc es we re set out in Gray v. State, 538 S.W .2d 391, 393 (Tenn. 1976). I n that case , our supreme court ruled that ag g ravating c ircumstance s must be present befor e plac ement in any

one of the classifications. L ater , in State v. Tay lor, 739 S.W .2d 227 (Tenn. 1987), our hig h court e stablished an additional categ ory for tho s e d ef

endants convicted of two or more statutory offe nses involving sexual a buse of minors. There wer e, howeve r, additional words of caution:

[C]ons e c uti ve se nte nc e s sh ou ld n ot r ou tin e ly be imp os e d .

. . a nd

. . . the a g g re g a te maxi mum of conse cutive terms must be reasona bly related to the seve rity

of the offe nses involved.

Tay lor, 739 S.W .2d at 230. The Sente ncing Commi ssion Com m ents adopted the c autionary la ng ua g e . T e nn . Co de An n. § 4 0- 35 -1 15 , Se nte nc ing Com m' n Co mme nts . T he 19 89 Act is , in

essenc e, the c odification of the holdings in G ray and Tay lor; consec utive sentenc es may be imposed in the discretion of the trial court o n l y u p on a dete rmination that one or more of the following

c ri te ri a e xist:

3

(1 ) Th e de fe nd a nt is a pr of e ssi on a l c ri min a l w ho ha s kno wi ng ly de vo te d h ims e lf

to criminal ac ts as a major sour ce of livelihood; (2) The defe ndant is an off ender whose re cord of

criminal ac tivityis ex tensive; ( 3 ) T h e d e f

e n d a n ti s a

d a n g e r o u s m e n t a l l y ab n o r m a l p e r s o n s o d e c l ar e d b y a

c omp e te nt p sy c hiatr ist

wh o c on c lud e s as a r e su lt o f an in ve sti g a tio n p ri or to sentenc ing that the defe ndant' s criminal conduct has been char acte rized by a pattern of re pe tit ive or

c omp uls ive be ha vio r w ith he e dle ss i nd if fe re nc e to c on se qu e nc e s; (4 ) T h e d efendant is a dang erous of fende r whose be havior indicates littl e or no

re g ard fo r hum a n lif

e , an d no he sit a tio n ab ou t com mit tin g a c ri me in wh ic h th e ri sk to human life is high; (5) The defe ndant i s convicted of two (2) or more statutory

offe nses involving se x ual abuse of a minor with consider ation of the a g g ravating c ircumstance s arising from the relationship betwe en the defe ndant and victim or victims, the t i m e s p an of defe ndant' s undetec ted sexual a ctivity
, the nature and scope of the sexual acts a nd the

e xten t of the re sid ua l, p hy sic a l a ndme nta l dama g e to the vic tim or vic tim s; (6) The defe ndant is sentence d for a n offe nse committed while on probation; or (7 ) T he de fe nd a nt i s se nte nc e d f or c ri min a l c on te mpt

.
Tenn. Code Ann. § 40- 35-115(b)

.-16-

The leng th of the s entenc e, when consec utive in nature, must be " justlydeserved in re lation to the seriousness of the offe nse," Tenn. Code Ann. § 40- 35-102(1) (2003), a nd "no g reater than that deser ved" under the circ umstances, Te nn. Code Ann. § 40-35- 103(2) ( 2003); Sta te v . L ane, 3 S.W.3d 456, 460 (Tenn. 1999)

.

I n Gra y , our supre me court ruled that bef ore c onsecutive se ntencing could be impos ed upon the da ng e ro us of

fe nd e r, c on sid e re d th e mos t su bje c tiv e of the c la ssi fi c a tio ns a ndthe mos t di ff ic ult
to a pp ly , o the r c on dit ion s mu st b e pr e se nt: (a ) that th e c ri me s in vo lve d a g g ra vatin g c ir c ums ta nc e s; (b) that c onsecutive se ntence s are a nece ssary means to pr otect the public f rom the def

endant; and (c) that the t erm reasona

bly relates to the s everity of t he offenses. I n State v. Wil kerson, 905 S.W.2d 933, 938 (Tenn. 1995) , our hig h court re aff irmed th o s ep rin c ip le s , holding that c onsecutive se ntence s cannot be require d of t he dange rous offender "unle ss the t erms reasonably relate[] to the severity of the offe nses committed and are nece ssary in or der to pr otect the public (society ) f ro m fu rther criminal acts by those persons who resort to ag g ravated criminal conduc t." The Wil kerson de cision, wh ic h mo dif

ie d s ome wh a t the stric t fa c tua l gu ide lin e s f or c on se c uti ve se nte nc ing a do pte d inState

v. Woo ds , 8 14 S.W. 2d37 8, 38 0 (T e nn

. Cr im. Ap p. 19 91 ), de sc ri be d se nte nc ing a s a " hu ma n p ro c e ss that neither c an nor should be r educe d to a set o f fi x ed and mechanica l rules." Wil kerson, 905 S.W .2d at 938.

Th e tr ia l c ou rt

or de re d c on se c uti ve se nte nc e s o n th e fo llo wi ng g ro un ds : As to the concurre nt or consecutive nature of [t he sentences,] . . . . his recor d . . . dates ba ck until he' s eig hteen.

M u ch o f t h at re co rd
, I

wi l l ac k n o wl ed ge, [ re l at es t o a s u s p en d ed ]

. . . d ri v er 's license, . . . but, ther e ar e . . . prior a ssaultive convictions and a ctually . . . one

e va din g a nda

se pa rate res isting arr e st .

. . . I me a n, he ' s c on tin ua lly

ha vin g arr e sts

a ndc on vic tio ns . T he ma in i ssu e wi th the Cou rt are the se a ssa

ult ive -t ype be ha vio rs

.
But, I do think, based on the proof that I ’ve he ard, inc luding the othe r

un c ha rg e d a c tiv ity

wh ic h w ou ld b e in the Cou rt ’s min d [in c lud ing ] crimi na l a c tiv ity involving wea

pons, he does have an extensive r ecor d from the poin t o f criminal

a c tiv ity a nd /or c on vic tio ns

.

I also do think, and this decision was only additionally

supported by

the proof here today

from [the victim] about these thre ats on the day he wa s arr ested, I

do think that he is a da ng erous of

fende r that had little or no re g ard f or his children or

his wife. At that time, that day , she was

. . . less than a human being . She was his. Whatever he wa nted to do with he r, he was g onna do and did muc h of it, the oral se x and the thr e a ts a ndthe

-- c a lli ng he r the va ri ou s n a me s.

I doubt, acc ording to [ the victim] , there was no one there, but, it re ally doesn’t

ma tte r. I me a n, in [the de fe nd a nt’ s] min d, he ’s c omi ng in andfi nd ing he r w ith

s o me b o d y

. T h a t p e r s o n n e v e r s u r f a c e d

. So
, if th e r e w a s s o me b o d y th e r e, ther e’s-17-

so me ma n o ut the re that sa w [th e vic tim ] be ing abu se d to the e xten t sh e wa s a ndjus t ch o s e t o n ev erco m e b ac k an d i n q u i re ab o u tan y t h i n g.

B ut, r e g ar d l e s s , [th e d e f

e n d a n t ] j u s tl o s t

. . . c o n tr o l o f h i m s e l f
, b e c a me

e nr a g e d a ndtr e a te d he r in a ma nn e r that’ s tot a lly un a c c e pta

ble a ndob vio us ly

a g a ins t the law a nd deg rading

. . . . I think that indicates that he had little re g ard f or her life and/or subjec ted her

to conduct that plac ed her life at risk.

Along wi t h that particula r fa ctor, I

have to a naly ze what is the term of incar cer ation that should be imposed. Should ther e be consec utive sentenc ing ba sed

on the se ve ri ty

of the of fe ns e s and pr ote c tin g

. . . th e pu bli c fr om any fu tur e ha rm

. . . and that would include [the victim] and her childre n.

Ba sed on that ana ly si s , which is in the ca se of State ve rsus Wil kerson . . . I

me a n, [ th e defend a nt] h a s th ro ug h th e te sti mon y that I ’v e he ard , in dic a te d li ttl e chanc e that he would be able to control his behavior at all. . . . But, his actions in the past throug h these other

events fr om J uly

of ‘03 a nd

. . . the events that we’ve hear d about here that he’s being sentenc ed for

. . . indicate to me that he would be a dang er to [the vic tim ] if

he we re to g e t ou t.

Now, may

be he . . . obviously , if h e ser ves this sentence [he] would be rele a s e d

. A ll I c a n d o h e r e to d a y is a s s u r e [t h e v ic ti m] th a t th a t’ s g o n n a b e a long time from now.

So, based on those fa ctors that I ’m finding that he does h ave an extensive

c ri min a l a c tiv ity

a ndhe is a

. . . d a ng e ro us of

fe nd e r, the Cou rt wi ll r

un the se sentenc es imposed in Counts One a nd Two conse cutive with ea ch other for [an] eff ective thirty -[seven-y ear ] sentenc e and Count Thr ee concur rent with the other

two

a ndthat is a t on e hu nd re d p e rc e nt.

I n determining that the de fendant qualified for consec utive sentenc ing, the trial court f ound that an ex tend e d s e nte nc e re a so na bly re la te d to the se ve ri ty

of the of fe ns e s a ndwa s n e c e ssa

ry to protec t the public ag ainst further criminal conduc t by

the def endant. F urthermor e, the pr esente nce report established t hat t he thi rty -three -y ear -old defe ndant had be en convic ted of e vading arr est, two counts o f aggra vated a ssault, resisting a rre st, two counts of ag g ravated domestic assault, an

un de fi ne d o ff

e ns e , an d six tr a ff

ic of fe ns e s. Hi s a

rr e sts , a s a n a du lt, be g a n in19 91 wh e n h e wa s in his te e ns a ndoc c ur

re d w ith re g ula

ri ty du ri ng the ne xt thi rt e e n y e ars . U nd e r the se c ir c ums ta nc e s, it is our view that the t ri al court did not err by ordering the kidnapping sentenc es to be served

c o n s e c u t i v e l y.

Acc ording ly , the judg ments of the trial c ourt areaff irmed.-18- ___________________________________ GARY R. WADE, PRES I DING JUDGE