IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 10, 2006 Session

STATE OF TENNESSEE v. ROBERT L. MITCHELL

Direct Appeal from the Criminal Court for Davidson County

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

No. M2005-01652-CCA-R3-CD - Filed June 1, 2006

The defendant, Robert L. Mitchell, was convicted of especially aggravated kidnapping, two counts

of aggravated kidnapping, and assault. Later, the two aggravated kidnapping convictions were

merged. The trial court sentenced the defendant as a violent offender to twenty-five years for the

especially aggravated kidnapping, twelve years for the aggravated kidnapping, and eleven months

and twenty-nine days for the assault. Because the kidnapping sentences are to be served

consecutively, the effective sentence is thirty-seven years. In this appeal of right, the defendant

claims that (1) the evidence is insufficient to support his kidnapping convictions; (2) the trial court

erred by admitting evidence of prior bad acts; and (3) his sentence is excessive. The judgments of

the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.

GLENN, JJ., joined.

Jay Norman, Nashville, Tennessee (on appeal); Katie Weiss and Graham Prichard, Assistant Public

Defenders (at trial), for the appellant, Robert L. Mitchell.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Dumaka Shabazz and Rachel Sobrero,

Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

FACTS
Because of the sensitive nature of this case, the victims and the minor children will be referred to by their 1

initials.

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On February 4th and 5th, 2004, the defendant committed a series of acts against his wife,

C.F.M., who was the primaryvictim of the crime, and his nine-year-old stepdaughter, B.R.S., which 1

led to the various convictions. The events began at the family home in Davidson County, where the

defendant had not resided for the previous three months, and ended at the residence of the

defendant's brother, Michael Maynard, in Smith County.

State’s Proof

At trial, B.R.S. testified that on the morning of February 4, 2004, she was at home sleeping

when she heard a "bang on the door" and screams from her mother. She recalled that as the

defendant and her mother then entered her bedroom, the defendant exclaimed that "he was not there

to hurt her, he was just there to come back to his family." When B.R.S. noticed that her mother's

"head was hurt," the defendant pulled the plug from the telephone and warned, "If you try and call

the police, I'm gonna snap your neck." B.R.S. described herself as crying and scared and described

the defendant as mad and "yelling in a high tone." According B.R.S., the defendant ordered her to

dress because they were "going for a ride." B.R.S. testified that her brother, B.M., and her sister,

R.M., who were in separate bedrooms, also dressed and joined her and her mother, who had "blood

all over her hands and face," in the living room. B.R.S., who said that she did not want to go with

the defendant because she was fearful for herself and the others, got in the backseat of the sport

utility vehicle. She recalled that as her mother and siblings also got into the vehicle, the defendant

directed her to the cargo area of the vehicle where she went to sleep. Before falling asleep, however,

B.R.S. overheard the defendant announce that her mother’s parents were dead. She testified that

when she awoke, she was at the home of her uncle, Michael Maynard. B.R.S. remembered that the

defendant asked Maynard for a gun and that everyone spent the night at the house. She testified that

she was in the living room with her mother, her siblings, and Maynard for "an hour or two" while

the defendant slept. B.R.S.stated that her mother wasstill bleeding when they arrived at Maynard's

house, but the defendant never took her to a hospital, and when the police arrived, he tried to run out

the back door. B.R.S. testified that she had called the police on a prior occasion when the defendant

had pointed a gun at her mother and her uncle.

Seven-year-old R.M., who on the date of the offense also heard a "bang" and her mother

screaming and running, testified that the defendant, who was "[k]ind of mad" because her mother

was not wearing her wedding ring, ordered her to get dressed. R.M. recalled seeing blood in the

hallway and the bathroom and on her mother's face and also noticed that the front door of the house

had been "kicked in and broken." She was in the back of the vehicle with B.R.S. as they traveled

to Maynard's house. According to R.M., her mother was still bleeding when they arrived at

Maynard's residence and the defendant told them to go inside, where they watched television. She

recalled that the defendant whispered to her that when he found a gun, he intended to shoot her

mother and himself. R.M. testified that she told her mother what the defendant had said and that her

mother later made dinner for everyone at Maynard's house, where they spent the night.
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The victim testified that the defendant had not lived in their Nashville residence since

November 2003 and that she had paid the mortgage and the utility bills. She stated that she thought

the defendant was living with his mother. The victim testified that she was awakened at 5:00 a.m.

on February 4, 2004, which was a school day, when she heard "a big bang" and saw the defendant

enter the doorway. She recalled that she screamed because she knew the defendant "was there to kill

[her]." She explained that he had repeatedly threatened to do so if she ever left him and also warned

that "he would hang [her] from a tree and tie a tire around [her] neck and burn it, so it would melt

over [her] body; and then he would burn [her] to ashes, to where nobody could ever find [her]."

According to the victim, the defendant forcefully put his hands over her mouth to stop her screams

and then said in a sarcastic tone of voice, "Hi, honey, I'm home." She described the defendant as

having glazed, red eyes with his veins "popping out of his temples." She testified that the defendant

gripped her and directed her to B.R.S.'s room, explaining that he wanted to see his children, that he

was not there to hurt her, that he still loved her, and that he was still wearing his wedding ring. The

victim recalled that when the defendant then asked why she was not wearing her wedding ring, she

answered that she had taken it off the previous night prior to a domestic violence group meeting.

She recalled that the defendant responded by calling her a "f[***]ing bitch" and hitting her in the

face. According to the victim, the defendant repeatedly asked why she had taken off her ring and

if she was dating anyone. She stated that he then walked over to the caller identification box to scroll

through the list of callers, intermittently asking, "Who's this person? Is this somebody you're

f[***]ing? Who is this person? I don't know this person." The victim testified that the defendant

jerked the telephone out of the wall and warned B.R.S. not to call the police, warning that he would

otherwise "snap [her] neck." She recalled that the defendant grabbed her by the back of her hair,

forced her down the hallway, and slammed her head into a nail in the wall, which pierced her

forehead. The victim stated that the defendant's anger escalated and that he called her "a whore."

The victim testified that when she went to the bathroom to clean her head wound, the

defendant followed, continuing to badger her with the question, "Who are you f[***]ing?" She

stated that the defendant digitally penetrated her, smelled his hand, and then repeated the same

question again. According to C.F.M., the defendant again asked her about her missing wedding ring

and, dissatisfied with her answer, called her "a f[***]ing liar" and hit her in the face. She described

the children, who were ages nine, six, and two at the time, as crying and scared. She recalled that

when the defendant ordered them to get dressed to go for "a little ride," the three children all dressed

hurriedly, not even taking time to put their shoes on even though it was February. The victim

explained that she was unable to take her purse with her because the defendant had "his grip" on her

arm. She testified that the defendant directed B.R.S. and R.M. to move to the back cargo area of the

vehicle and lie down as he continued to question the victim about who she was dating. She stated

that as he was driving, the defendant hit her in the eye and then demanded that she perform oral sex

on him. She recalled that when she at first refused, the defendant remarked, "You got three seconds,

bitch, or you [won't] have any teeth." The victim testified that she complied with the defendant's

demand even though her head was still bleeding and her children were in the car. She recalled that

when she asked the defendant where they were going, he replied, "I told you, bitch, what I would do

to you, if you ever left me. . . . I've killed your parents. I've decapitated them. I've already been to

their house. . . . Now, I'm taking you to where they're at to lay you down beside them."
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According to the victim, the defendant drove to his brother's residence and upon his arrival,

announced, "[L]ook what I've done to this bitch. I'm coming to f[***]ing kill her. This f[***]ing

whore has taken her ring off. I'm gonna kill this bitch." She testified that the defendant then asked

Maynard for his gun, continued to threaten to kill her, and at one point said, "[I]f you don't give me

a gun, I'll find another way to kill her. I'll beat her head in with a hammer. I'll take a can of corn and

put it in a pillowcase, or I'm gonna tie her to the back of that truck and I'm gonna pull her behind the

truck, like they did that n[****]r in Texas." The victim recalled that the defendant then grabbed her

arm and took her to a bedroom where he "punched" her in the chest and demanded that she remove

her clothes. She testified that when Maynard entered the bedroom and she motioned for help, he left

the room without offering assistance. She stated that when the defendant forced her to have sex, she

became weak, vomited, and developed a migraine headache for which the defendant supplied Lortab.

The victim testified that Maynard offered her the keys to his truck but warned that the truck might

not start and suggested that the defendant might run her off the road because he still had the keys to

their vehicle. The victim explained that she tried to think of ways to escape, but because it was

raining and neither she nor the children had any coats or shoes, she did not do so. She expressed fear

of calling 911 because the defendant might find out. She recalled that they were at Maynard's house

"[t]hat whole day and most of the next day."

The victim testified that she did call her workplace shortly after her abduction and left a

message that she was sick and would not be in to work. She pointed out that the defendant "was

standing right there and that's what he told me to say." She also telephoned her mother at the

direction of the defendant, telling her that she was sick and was not bringing the children to her

house which was her normal practice. The victim later called the defendant's aunt, Sandy Brooks,

and told her that the defendant had hurt her, that she had been bleeding all day and needed help, and

that she and the children were afraid for their lives. She testified that the defendant also talked to

Ms. Brooks and said, "Get somebody out there to clean up the blood, before somebody finds it."

The victim recalled that on the following morning, Maynard handed her the telephone and

told her to call Ms. Brooks, who then placed a three-way call to the victim's parents. She stated that

she again told her parents that she was sick and was not bringing the children to their house. She

explained that she did not tell her parents to call the police "[b]ecause I had already heard [the

defendant] say that he was gonna take me to Louisville, Kentucky, and because I was in fear of my

life. I figured he would go ahead and kill me or take off with one of the children." The victim

contended that she was never allowed to use the telephone alone but that she also talked to the

defendant's cousin, Jennifer Reed, and asked her to come to help her. According to the victim, Ms.

Reed agreed to help but never arrived. She testified that the ordeal finally came to an end when the

defendant took a nap and Maynard asked her if she wanted him to call the police. She recalled that

the police arrived soon thereafter and placed the defendant in custody. While acknowledging that

the defendant "didn't spend all his time watching [her]" at Maynard's house, she explained that she

left her residence with the defendant only "[b]ecause I thought he was gonna kill me, and I was afraid

for my life. I thought, maybe, if I cooperated with him and did what I was told, instead of fighting

him, that there was a possibility that I would live."
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On cross-examination, the victim maintained she never saw the defendant sleep during the

ordeal. She acknowledged that she had been in the living room with Maynard and the children for

about thirty minutes while the defendant was in another room and that Maynard had not restrained

her from using the telephone. She did claim, however, that Maynard told her that the defendant had

directed him to watch the telephone. The victim, who acknowledged that her head wound did not

require stitches, recalled that the defendant took the car keys when he arrived at the Maynard

residence. She testified that she chose not to call out to Maynard's neighbors out of fear.

When asked if B.R.S. had ever called the police before, the victim related an incident that

occurred in February 2003 at her parents' house when the defendant, in an effort to reconcile a

separation, pushed her brother off the porch into the driveway. She recalled that when a gun fell

from the coat pocket of her brother, the defendant grabbed the gun, aimed at her brother, and pulled

the trigger, but the gun did not discharge. She testified that the defendant then pointed the gun at her

head and said, "Now, bitch, you're going with me." She stated that she refused to go with the

defendant and held onto the porch railing as the defendant "pulled at [her], trying to get [her] loose;

pulled [her] shirt off, ripped it completely off of [her]." The victim related that when her father

intervened, the defendant went to his truck, held the gun out the window, and warned her that if she

did not go with him, he was going to shoot himself. She stated that B.R.S. called the police on this

occasion but acknowledged that the charges against the defendant were ultimately dismissed.

The victim also testified about a prior incident when she failed to meet the defendant for

lunch at her workplace. She stated that as soon as she saw his face, she knew she "was gonna get

it" and the defendant hit her several times in the face, leaving her with bruises, a black eye, a broken

blood vessel in her eye, and a cracked tooth. She recalled that the defendant refused to let her go

back to work that day and took her home instead. She acknowledged that no criminal charges were

pressed against the defendant for this incident.

Officer Stan Goad of the Metropolitan Nashville Police Department was dispatched to the

victim's home on February 5, 2004, arriving at approximately 9:00 a.m. After speaking to the

victim's parents, the officer observed blood in the bathroom and hallway, a hole in the wall in the

hallway, and a broken door frame.

Detective Bruce Pinkerton, who also responded to the dispatch, described the residence:

"The front door was pretty much off the hinges. The door facing was laying inside on the floor. I

noticed what appeared to be blood droppings, when I first walked in; and they led all through the

house. There was an indent[at]ion in the drywall in the hallway." He testified that a telephone

appeared to have been "snatched" from the wall in a child's bedroom. Detective Pinkerton talked

to the victim's father and telephoned the defendant's aunt, Sandy Brooks, in an effort to locate the

victim. He recalled that about thirty minutes later, Ms. Brooks returned the call with the victim on

the line. The detective testified that the victim said she was all right "in a faint voice" and informed

him that the defendant was with her. According to the detective, he then spoke with the defendant

who said, "We don't need the police. We're trying to get our life together." Detective Pinkerton,

who was unable to determine from the conversation the whereabouts of the victim, was given
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Maynard's telephone number by Ms. Brooks; when he called back, however, he did not get an

answer. The detective then called the Smith County authorities and asked them to check for the

victim at Maynard's residence. Detective Pinkerton later learned that the victim, the defendant, and

the children were at Maynard's house. Detective Pinkerton said he talked to the victim two or three

days later and she gave a ten-page, written statement of what had occurred. He had no recollection

of the victim telling him during the interview that the defendant had digitally penetrated her.

Joyce Sullivan, the victim's mother, who babysat for the victim's youngest child, testified that

in February 2004, the victim typically brought the children to her house every morning, where the

older ones would catch the school bus. She stated that when the victim did not bring the children

on February 4, 2004, she talked by telephone to the victim "for just about a minute" and then talked

to her again the next day. Mrs. Sullivan recalled that when she told the victim that she was coming

to get the children because they had missed enough school, the victim responded in a whisper from

which she inferred "something was terrible wrong." Mrs. Sullivan testified that she and her husband

drove to the victim's residence where they discovered the broken front door, a "hole in the wall," and

blood in the kitchen, living room, hallway, and bathroom. Mrs. Sullivan stated that she saw the

children's shoes and coats in the living room and "wondered why they went out in the cold" without

them. She recalled that she telephoned Sandy Brooks, who returned her call five to ten minutes later

with the victim on the line. Mrs. Sullivan stated she could barely hear the victim on the telephone

and that she sounded like she was "down in a barrel." Mrs. Sullivan testified that the police were

called and given Maynard's name.

Smith County Sheriff's Department Deputy Steven Cowan testified that on February 5, 2004,

he was dispatched to Maynard's residence, arriving between 2:00 and 2:30 p.m., to "investigate a

female being held against her will." He indicated that he first saw Maynard, who directed him to the

back of the house where he found the victim and the defendant. He described the victim as "very

disoriented" and "afraid," and he noticed bruises and marks on her forehead and eye. He pointed out

that when he asked the victim a question, the defendant tried to answer and he recalled that the

victim began to answer his questions only after she was separated from the defendant. He stated that

the victim told him that she was being held against her will and wanted to leave.

Smith County Deputy Ronnie Nelson Smith, who also responded to the scene at Maynard's

residence, testified that he found blood on the defendant's right arm and chest area and a mark and

abrasions on the victim's head. He stated that the defendant was "somewhat calm" but that the

victim was sitting with her head down, avoiding eye contact with the officers. Deputy Smith

confirmed that every time the officers asked the victim a question, the defendant "would blurt

something out . . . try to answer a question." He testified that the defendant was arrested and

transported to the sheriff's department.

Defense Proof

Ms. Reed, the defendant's cousin, testified as a defense witness. She claimed she had called

Maynard on the evening of February 4, 2004, and, when she heard children playing in the
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background, asked him who was there with him. She recalled that Maynard informed her that the

defendant, the victim, and their children were there, and that when she then talked to the defendant,

he was crying and "very upset." She claimed that she also talked to the victim, who, she observed,

"did not sound upset at all in any way," telling her everything was "okay." Ms. Reed denied that the

victim had asked her for help.

Michael Maynard, the defendant's brother, testified that on the morning of February 4, 2004,

the defendant, the victim, and their children came to his house around 6:30 or 7:00 a.m. He recalled

that he put his "guns and everything up, because of the small children" and because the defendant

and the victim were arguing. Maynard stated that he invited all of them inside and that he then

learned that the defendant had apparently found another man in the victim's house. He testified that

the victim was bleeding and had "a little hole" in her head "like a pimple been's popped." He denied

that the defendant admitted ramming her head into a wall. Maynard stated that he and the children

watched television while the defendant and the victim went to the back bedroom. He claimed that

when he heard a noise, he went to the bedroom and saw that both the defendant and the victim had

removed their pants. He then heard the victim say, "Not like this." He denied that the victim asked

him for help. Maynard testified that he then returned to the living room, and the defendant and the

victim subsequently joined him there. Maynard claimed that the defendant fell asleep around 9:00

a.m. in one of the bedrooms and slept "ninety percent of the time" he was there. He contended that

he offered the victim the keys to either of his two trucks, which were in working condition, and

insisted that she could have left if she had wanted. He confirmed that the defendant and the victim

had arrived in the defendant's vehicle and that the defendant had said he was not going to let her take

the car. He testified that he offered the victim a Lortab, which she took "around evening time," and

that the victim was allowed to use the telephone. Maynard denied that he left the house while the

defendant and the victim were there and refuted the claim that the defendant had asked him for a

gun. He acknowledged that he talked to his father, Jerry Maynard, and his cousin, Jennifer Reed,

by telephone and that Sandy Brooks, who lived in Davidson County, called and informed him that

a detective was trying to reach them.

Maynard acknowledged that on the second day of the defendant's stay at his residence, the

victim told him that the defendant had touched her inappropriately. He also admitted that in his

initial statement to the police, he had stated that the defendant had rammed the victim's head into a

wall with a nail but did not mean to do so. He also acknowledged that the defendant expressed a

desire to return to Nashville to clean up the blood at the victim's residence. Maynard contended that

he could not remember if the victim was wearing shoes when she arrived at his house but he did

acknowledge that he gave her some house slippers to wear when they went to the sheriff's

department.

The defendant testified that just before the events leading to his convictions, he had been in

jail for two and a half months on allegations of aggravated burglary made by the victim's parents.

He claimed that the victim and the children had visited him in jail and that he spoke to the victim

on the afternoon of February 3rd before he made bail. He denied that the victim had asked him not

to come home after his release and claimed that all of his belongings were at the victim's house. He
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stated that his younger brother picked him up at the jail and that they went to his brother's house in

Madison. The defendant claimed that he walked fifteen miles to the victim's house and arrived there

between 5:30 and 6:00 a.m. He contended that when he realized that all of the locks had been

changed and a deadbolt had been placed on the front door, he knocked on the door and, when no one

answered, he saw through a window that the victim was with a man. He admitted that he kicked in

the front door and claimed that the man tried to hide. He asserted that when he ran after the man,

he pushed the victim out of the way, accidentally knocking her into the wall. The defendant claimed

that he and the man "scuffled," but the man "got loose and r[a]n out the door." The defendant

acknowledged that he hit the victim in the eye and conceded that the injuries to her eye and chin

could not have been caused by one punch.

The defendant admitted that the victim's head was bleeding and that she went to the bathroom

to wash off the blood. He denied that he digitally penetrated her while they were in the bathroom.

The defendant acknowledged that he asked the victim why she was not wearing her wedding ring

and why she had a man there, and asserted that she replied, "He's just a friend." The defendant stated

that he then started scanning the caller identification box in B.R.S.'s room and asked the victim about

certain telephone numbers. He acknowledged that he "threw" the caller identification box but denied

that he ripped the telephone from the wall or threatened to snap B.R.S.'s neck if she called the police.

He claimed that he and the victim then went to the living room and the children followed. He

admitted that he told the victim to get B.M. dressed and that he directed R.M. to get dressed because

he was "taking them and leaving." The defendant stated that B.R.S. was not his daughter and that

he did not require her to go with him. He contended that he picked up B.M. and headed out the door,

and the victim followed, saying, "You're not taking the kids without me." He stated that he put B.M.

and R.M. in his vehicle and that the victim and B.R.S. got in after him. He acknowledged that he

and the victim were arguing but denied that he told her that he had killed her parents or had

threatened to kill her. The defendant denied that he hit the victim while he was driving but

acknowledged that he asked her to perform oral sex on him. 

The defendant stated that he then drove to Maynard's house, who asked what had happened

and invited them inside. The defendant claimed that the victim then voluntarily called her employer

and her mother. He testified that he and the victim later went to a bedroom while the children

watched television and that when he asked to have sex, she replied, "No, not like this. It's not right."

The defendant claimed that when he said, "Yeah, let's do it," and removed his pants, the victim also

removed her pants. The defendant acknowledged that Maynard came into the room while they were

having sex and asked if everything was all right. He stated that he and the victim then returned to

the living room. He said that he later went to a bedroom where he slept until about 7:00 p.m. The

defendant acknowledged that he talked to his cousin, Jennifer Reed, by telephone outside on the deck

and that he was crying and upset during their conversation. He stated that Ms. Reed then spoke to

the victim outside his presence. The defendant denied that he held the victim against her will and

claimed that his only intention was to take his children, B.M. and R.M., to Maynard's house.

The defendant testified that when Detective Pinkerton called the next day, he explained that

the victim's parents had "tried to make something really bad outta this." He recalled that he went
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back to sleep and was later awakened by Maynard, who told him the police were there. The

defendant confirmed "what happened" and that when Officer Cowan asked the victim if she wanted

to press charges, he shook his head, "like, 'Don't do this, man. . . . We done been through this . . .

a hundred times.'" The defendant claimed that when he was taken into custody, he thought the

charges against him were for "domestic assault, because [the victim] had a knot on her head and a

black eye." The defendant denied having told R.M. that if he found a gun he would kill the victim,

claiming someone had "brainwashed" his daughter into saying that. The defendant denied that he

had planned to take the victim across state lines and denied telling Maynard he wanted to clean up

the blood at the victims' house.

The defendant also testified about the 2003 incident at the Sullivans' home, claiming that he

tried to hug the victim as she pushed him away. He stated that the victim's brother threatened to get

his pistol if the defendant did not leave, else he was going to shoot him. According to the defendant,

he pushed the victim's brother when he returned two minutes later with a pistol. The defendant

claimed that because he was in danger, he grabbed the gun, pointed it at the victim's brother, and

grabbed the victim, asking her to go with him. He claimed that the victim's father then grabbed her

by the shirt and pulled her away from the defendant, tearing her shirt in the process. The defendant

insisted that he then went home and the victim later informed him he would be arrested for "pulling

that gun on [them]."

Sentencing Hearing

The victim testified that she and the children had received counseling as a result of the ordeal

with the defendant and had moved. She stated that she still experienced fear and paranoia and has

nightmares about the defendant almost every night. She said that she wanted the defendant to serve

the maximum time for the crimes he committed. She testified she has to constantly reassure the

children that they are safe and contended that the defendant had threatened her on the day of his

arrest, saying that even "if he served twenty years, that he would still find [her] and kill [her]."

Joyce Sullivan testified that "the whole thing has just been a trauma and a nightmare." She

stated the incident had traumatized her grandchildren verymuch and that they are "totally different."

She related an incident when the defendant pulled a gun on her husband and the victim and knocked

her down on the porch. She explained that her husband had counseled with the defendant that day

and had tried to get him into a drug rehabilitation program. She testified that afterward, she felt

"terrible terror everyday until [the defendant] was arrested." She acknowledged that she and her

husband previously had talked to the defendant about undergoing an exorcism and acknowledged

that an attempted exorcism had been performed on the defendant.

Robert Willard Mitchell, the defendant's father, testified that he had a close relationship with

the defendant. He said that B.R.S. called the defendant "Daddy" and that the defendant did not treat

her any differently than his two biological children. He acknowledged that the defendant and the

victim argued "from time to time" and that he had seen a bruise on the victim's face and a bite on the

defendant's chest. He denied, however, that he had ever seen them in a physical altercation. He
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claimed that both the defendant and the victim had used illegal drugs and asserted that the defendant

had supported his family prior to his incarceration. Mitchell said that he did not believe the

defendant had intended to hurt the victim, saying the defendant "just didn't want to lose his wife, his

family and his home."

Jennifer Reed, the defendant's cousin, testified that the defendant and the victim married

when B.R.S. was "just a baby." She described the defendant as "one of the finest fathers I've ever

known. . . . I've never seen him be verbally or physically abusive to any of his children."

ANALYSIS

I. Sufficiency of the Evidence 

The defendant first argues that the evidence was insufficient to support either of the

kidnapping convictions. On appeal, of course, the state is entitled to the strongest legitimate view

of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their

testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier

of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the

evidence is challenged, the relevant question is whether, after reviewing the evidence in the light

most favorable to the state, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). Because a verdict of guilt against a defendant removes the presumption of innocence

and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that

the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191

(Tenn. 1992).

A. Especially Aggravated Kidnapping (Count 1)

Especiallyaggravated kidnapping is defined as a false imprisonment "[w]here the victim was

under the age of thirteen (13) at the time of the removal or confinement." Tenn. Code Ann. §

39-13-305(a)(2) (2003). False imprisonment is defined as the "knowing removal or confinement of

another so as to substantially interfere with the other's liberty." Tenn. Code Ann. § 39-13-302(a)

(2003). 

In this case, B.R.S., who was only ten years old at the time trial, testified that she was

awakened by defendant beating on the door and her motherscreaming. She noticed that her mother's

head was injured and recalled that the defendant threatened her, saying, "If you try and call the

police, I'm gonna snap your neck," and then jerking the telephone out of the wall. The victim

corroborated that testimony. B.R.S. expressed fear of the defendant, who appeared angry and

ordered her to get dressed. Before leaving, B.R.S. saw that her mother had "blood all over her hands

and face." Later, she heard the defendant tell her mother that her grandparents were dead. Under
Donald F. Paine, distinguished adjunct professor at the University of Tennessee College of Law and reporter

2

to the Tennessee Supreme Court Advisory Commission on Rules of Practice and Procedure, has criticized the "sound

discretion of the trial court" standard, arguing that the admission of evidence is strictly governed by the Tennessee Rules

of Evidence. Donald F. Paine, Evidentiary Nonsense, Tenn. Bar Journal, June 2005, at 15.

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these circumstances, it is our view that the evidence was sufficient to support the conviction for the

especially aggravated kidnapping of B.R.S.

B. Aggravated Kidnapping (Count 2)

Aggravated kidnapping is defined as false imprisonment "[w]ith the intent to inflict serious

bodily injury on or to terrorize the victim or another" or false imprisonment "[w]here the victim

suffers bodily injury." Tenn. Code Ann. § 39-13-304(a)(3), (4) (2003). As previously stated, false

imprisonment is defined as the "knowing removal or confinement of another so as to substantially

interfere with the other's liberty." Tenn. Code Ann. § 39-13-302(a). 

The victim had "blood all over her hands and face" when first seen by B.R.S. after the breakin. The victim testified that the defendant slammed her head into a wall. A nail pierced her

forehead. The defendant admitted that he kicked the door in and pushed her into the wall.

According to the victim, the defendant had a "grip" on her arm as he led her to his vehicle and that

their departure was so hurried, she could not take her purse. Neither she nor the children had time

to put on their shoes. While in his vehicle, the defendant struck the victim in her eye, forced her to

perform oral sex, told her that he had "decapitated" her parents, and threatened "to lay [her] down

beside them." According to the victim, the defendant transported her and her children to the

defendant's brother's house, where they were forced to stay until the next day. Under these

circumstances, it is our view that the evidence was sufficient to support the conviction for aggravated

kidnapping.

II. Testimony as to Prior Bad Acts

The petitioner next contends that the trial court erred by refusing to exclude evidence that the

defendant had on a previous occasion threatened the victim and her brother because the evidence was

inadmissible under Tennessee Rule of Evidence 404(b). The state submits that the "[d]efendant's

violent history was offered . . . to establish why [C.F.M.] and [B.R.S.] didn't resist [the] [d]efendant's

commands to quickly dress and get in the truck to leave with him."

Generally, the admission of evidence is a matter entrusted to the sound discretion of the trial

court, and a trial court's ruling on an evidentiary matter will not be reversed absent abuse of that

discretion. State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004) (citing State v. Dubose, 953 2

S.W.2d 649, 652 (Tenn. 1997)). On appeal, "[t]he abuse of discretion standard contemplates that

before reversal the record must show that a judge 'applied an incorrect legal standard, or reached a

decision which is against logic or reasoning that caused an injustice to the party complaining.'" State
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v. Coley, 32 S.W.3d 831, 833 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn.

1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

Tennessee Rule of Evidence 404(b) provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing inquiry on

cross-examination about specific instances of conduct are:

(1) The court upon request must hold a hearing outside the jury's

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state

on the record the material issue, the ruling, and the reasons for

admitting the evidence; and

(3) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Rule 404 was patterned in great measure on State v. Parton, 694 S.W.2d 299 (Tenn. 1985),

wherein our supreme court ruled that evidence of other crimes is generally inadmissible. The terms

of this rule establish that character evidence cannot be used to prove that a person has a propensity

to commit a crime. Tenn. R. Evid. 404(b); State v. Adkisson, 899 S.W.2d 626, 646 (Tenn. Crim.

App. 1994). Most authorities suggest that trial courts take a "restrictive approach of 404(b) . . .

because 'other act' evidence carries a significant potential for unfairly influencing a jury." Neil P.

Cohen et al., Tennessee Law of Evidence § 4.04[8][e] (4th ed. 2000). That perhaps best explains

the traditional posture of the courts that any testimony of other bad acts by a defendant is not usually

admissible when used as substantive evidence of guilt of the crime on trial. Parton, 694 S.W.2d at

302-03. In those instances where the other conduct or acts are similar to the crimes on trial, the

potential for a prejudicial result increases. State v. Bordis, 905 S.W.2d 214, 232 (Tenn. Crim. App.

1995).

Unlike the Federal rule barring such evidence, our rule does not specifically enumerate the

purposes for which such evidence may be offered. State v. Gilliland, 22 S.W.3d 266, 271 (Tenn.

2000). The Advisory Commission specifically omitted such a list so that lawyers and judges would

"'use care in identifying the issues to be addressed by the Rule 404(b) evidence.'" Id. (quoting Neil

P. Cohen et al., Tennessee Law of Evidence § 404.6, at 169 n.457 (3d ed. 1995)). Therefore, in

every case in which evidence of other crimes, wrongs, or acts is offered, the trial court should

carefully scrutinize the relevance of the evidence and the reasons for which it is being offered. Id.

Although Rule 404(b) does not explicitly list these exceptions, our courts have held that evidence

of other crimes may be admissible to show motive, intent, guilty knowledge, identity of the
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defendant, absence of mistake, and the existence of a common scheme 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 challenged evidence is relevant to an issue other than character, it must be excluded if the

danger of unfair prejudice outweighs the probative value of the other crime evidence. Tenn. R. Evid.

404(b)(4); State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993); see also State v. Zagorski, 701

S.W.2d 808 (Tenn. 1985); State v. Taylor, 669 S.W.2d 694 (Tenn. Crim. App. 1983).

During a hearing held outside the jury's presence, defense counsel agreed with the trial court

that a "primary issue [was] whether there was a particular force, threat, or fraud used to accomplish

the false imprisonment." After the hearing, the trial court determined that the defendant's prior

violent acts toward the victim and her brother had been proved by clear and convincing evidence and

were relevant to the defendant's motive and intent. The trial judge also found that the evidence had

substantial probative value.

In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), our supreme court ruled that "violent acts

indicating the relationship between the victim of a violent crime and the defendant prior to the

commission of the offense are relevant to show [the] defendant's hostility toward the victim, malice,

intent, and a settled purpose to harm the victim." 868 S.W.2d at 574 (citing State v. Turnbill, 640

S.W.2d 40, 46-47 (Tenn. Crim. App. 1982); State v. Glebock, 616 S.W.2d 897, 905-06 (Tenn. Crim.

App. 1981)); see also State v. Hall, 958 S.W.2d 679, 707-08 (Tenn. 1997) (appendix). 

In this case, the evidence showed that the defendant had committed prior acts of violence

against the victim and that she had good reason to be afraid of him, explaining why they did not

physically resist his command to accompany him to his vehicle. The evidence showed a history of

anger on the part of the defendant when the victim tried to end their relationship. The evidence also

demonstrated a related, settled intent to harm the victim, which was probative of the defendant's

motive and intent in breaking into the victim's residence and kidnapping her and the children. See

State v. Michael Lynn Stanton, No. E2003-02675-CCA-R3-CD, slip op. 9-10 (Tenn. Crim. App.,

at Knoxville, Apr. 15, 2005). In our view, the record demonstrates that the probative value of this

testimony as to prior acts outweighed its prejudicial effect. This issue is without merit.

III. Sentencing

A. Length of Sentence

The defendant argues that the trial court erred by imposing the maximum sentences for each

of his convictions and by ordering the kidnapping sentences to be served consecutively. When there

is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to

conduct a de novo review with a presumption that the determinations made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v.

Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or

otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v.
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Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments

provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code

Ann. § 40-35-401, Sentencing Comm'n Comments.

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel

relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating

or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210

(2003); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If the trial court's findings of fact are adequately supported by the record, this court may not

modify the sentence even if it would have preferred a different result. State v. Fletcher, 805 S.W.2d

785 (Tenn. Crim. App. 1991). The presumption of correctness is, however, "conditioned upon the

affirmative showing in the record that the trial court considered sentencing principles and relevant

facts and circumstances." Ashby, 823 S.W.2d at 169. The trial court must place on the record the

reasons for the sentence. Jones, 883 S.W.2d at 599. 

In sentencing the defendant, the trial court first acknowledged the sentencing guidelines and

advised that it had reviewed the presentence report. The trial court imposed the sentences based on

the following enhancing factors: (1) the defendant had a previous history of criminal convictions

or behavior in addition to those necessary to establish the appropriate range; (8) the defendant has

a history of failing to comply with the conditions of a sentence involving release into the community;

both of which the court gave great weight; and (3) the offense involved more than one victim, a

factor to which less weight was given. See Tenn. Code Ann. § 40-35-114(1), (3), (8) (2003). The

trial court did not find any mitigating factors. On appeal, the defendant does not challenge findings

as to the enhancement factors but, instead, challenges the trial court's failure to find as mitigating

factors that the defendant did not confine the victim and her children once they arrived at his

brother's house and that he voluntarily released the victims.

In this case, the victim testified that while they were at the defendant's brother's house, the

defendant said in a loud voice that he intended to kill her and twice asked for his brother’s gun.

Seeing a hammer, he threatened to "beat her head in" or tie her to the back of a truck and "pull her

behind" it. Later, he took the victim into a bedroom, punched her after she refused to remove her

clothes, and raped her. As for the claim that the defendant "released the victims alive," the victim

testified that at her request, the defendant’s brother contacted the police, who arrived while the

defendant was sleeping. The police officers, not the defendant, freed the victims. Under these

circumstances, it is our view that the trial court acted within its authority by imposing the maximum

sentences.

B. Consecutive Sentencing
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony

3

convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,

Sentencing Comm'n Comments.

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In determining that the defendant’s sentences for kidnapping should be served consecutively,

the trial court noted that he had an extensive prior criminal history and was a dangerous offender.

Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications

for the imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d 391, 393

(Tenn. 1976). In that case, our supreme court ruled that aggravating circumstances must be present

before placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn.

1987), our high court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however, additional words

of caution:

[C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate

maximum of consecutive terms must be reasonably related to the severity of the

offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary

language. Tenn. Code Ann. § 40-35-115, Sentencing Comm'n Comments. The 1989 Act is, in

essence, the codification of the holdings in Gray and Taylor; consecutive sentences may be imposed

in the discretion of the trial court only upon a determination that one or more of the following

criteria exist: 3

(1) The defendant is a professional criminal who has knowingly devoted himself to

criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant's criminal conduct has been characterized by a pattern

of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no

regard for human life, and no hesitation about committing a crime in which the risk

to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual

abuse of a minor with consideration of the aggravating circumstances arising from

the relationship between the defendant and victim or victims, the time span of

defendant's undetected sexual activity, the nature and scope of the sexual acts and the

extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).
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The length of the sentence, when consecutive in nature, must be "justly deserved in relation

to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1) (2003), and "no greater than that

deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2) (2003); State v. Lane, 3 S.W.3d

456, 460 (Tenn. 1999).

In Gray, our supreme court ruled that before consecutive sentencing could be imposed upon

the dangerous offender, considered the most subjective of the classifications and the most difficult

to apply, other conditions must be present: (a) that the crimes involved aggravating circumstances;

(b) that consecutive sentences are a necessary means to protect the public from the defendant; and

(c) that the term reasonably relates to the severity of the offenses. In State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding that consecutive sentences

cannot be required of the dangerous offender "unless the terms reasonably relate[] to the severity of

the offenses committed and are necessary in order to protect the public (society) from further

criminal acts by those persons who resort to aggravated criminal conduct." The Wilkerson decision,

which modified somewhat the strict factual guidelines for consecutive sentencing adopted in State

v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process

that neither can nor should be reduced to a set of fixed and mechanical rules." Wilkerson, 905

S.W.2d at 938.

The trial court ordered consecutive sentences on the following grounds:

As to the concurrent or consecutive nature of [the sentences,] . . . . his record

. . . dates back until he's eighteen.

Much of that record, I will acknowledge, [relates to a suspended] . . . driver's

license, . . . but, there are . . . prior assaultive convictions and actually . . . one

evading and a separate resisting arrest . . . . I mean, he's continually having arrests

and convictions. The main issue with the Court are these assaultive-type behaviors.

But, I do think, based on the proof that I’ve heard, including the other

uncharged activity which would be in the Court’s mind [including] criminal activity

involving weapons, he does have an extensive record from the point of criminal

activity and/or convictions.

I also do think, and this decision was only additionally supported by the proof

here today from [the victim] about these threats on the day he was arrested, I do think

that he is a dangerous offender that had little or no regard for his children or his wife.

At that time, that day, she was . . . less than a human being. She was his. Whatever

he wanted to do with her, he was gonna do and did much of it, the oral sex and the

threats and the--calling her the various names.

I doubt, according to [the victim], there was no one there, but, it really doesn’t

matter. I mean, in [the defendant’s] mind, he’s coming in and finding her with

somebody. That person never surfaced. So, if there was somebody there, there’s
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some man out there that saw [the victim] being abused to the extent she was and just

chose to never come back and inquire about anything.

But, regardless, [the defendant] just lost . . . control of himself, became

enraged and treated her in a manner that’s totally unacceptable and obviously against

the law and degrading . . . . I think that indicates that he had little regard for her life

and/or subjected her to conduct that placed her life at risk. 

Along with that particular factor, I have to analyze what is the term of

incarceration that should be imposed. Should there be consecutive sentencing based

on the severity of the offenses and protecting . . . the public from any future harm .

. . and that would include [the victim] and her children.

Based on that analysis, which is in the case of State versus Wilkerson . . . I

mean, [the defendant] has through the testimony that I’ve heard, indicated little

chance that he would be able to control his behavior at all. . . . But, his actions in the

past through these other events from July of ‘03 and . . . the events that we’ve heard

about here that he’s being sentenced for . . . indicate to me that he would be a danger

to [the victim] if he were to get out.

Now, maybe he . . . obviously, if he serves this sentence [he] would be

released. All I can do here today is assure [the victim] that that’s gonna be a long

time from now.

So, based on those factors that I’m finding that he does have an extensive

criminal activity and he is a . . . dangerous offender, the Court will run these

sentences imposed in Counts One and Two consecutive with each other for [an]

effective thirty-[seven-year] sentence and Count Three concurrent with the other two

and that is at one hundred percent.

In determining that the defendant qualified for consecutive sentencing, the trial court found

that an extended sentence reasonably related to the severity of the offenses and was necessary to

protect the public against further criminal conduct by the defendant. Furthermore, the presentence

report established that the thirty-three-year-old defendant had been convicted of evading arrest, two

counts of aggravated assault, resisting arrest, two counts of aggravated domestic assault, an

undefined offense, and six traffic offenses. His arrests, as an adult, began in 1991 when he was in

his teens and occurred with regularity during the next thirteen years. Under these circumstances, it

is our view that the trial court did not err by ordering the kidnapping sentences to be served

consecutively.

Accordingly, the judgments of the trial court are affirmed.
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___________________________________ 

GARY R. WADE, PRESIDING JUDGE