### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 13 , 2003 Ses sion
STATE OF TENNESSEE v. BIL LY J. COFFELT AND

LYLE T. VAN ULZEN
Direct Appeal from the Criminal Court for Davidson County No. 99-A-552 Randall Wyatt, Jr., Judge

No. M2002-01214-CCA-R3-CD - F iled September 11, 2003

The Defend ants, Billy J. Co ffelt and Ly le T. Van Ulzen, were each convicted of one count of felony escape, two count s of agg

ravate d assault , and three counts o f espec ially aggravated

kidnapping. The trial court subsequently sente ncedboth Defendants to life imprisonment without the possibility of parole on ea ch of

th ei r e sp ec ia ll y ag gravated kidnapping convictions. The De fendants were each sentenced to two years for

their escape co nvictions, a nd to six years for eac h of their aggravate d assault convictions. In this direct appeal, both Def endants contend that their convictions for aggravated

assault and especially

aggravated kidnapping

violate due process, rely ing on State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). Both Def endants a lso alleg e error

withrespect to the trial court’s admission of the identification of the felonies for which they were serving time when they escaped, and with r

espect t o their se ntenceson the kidn apping convicti ons. I

ndividual ly, Coffelt chall enges the suff

iciency of the evidence a

nd the adm

ission of p

roof concerning

two weap ons. Coffelt also alleges that the prosecutor’s closing arg umen t con stituted r

ever sible misco nduc t. We affirm the Defendants’ convictions. We reverse the t r ial court’s finding that the Defendants are repeat violent offenders subject to mandatory sente nces of life imprisonment without the

possibility of par ole, and r

emand thi s matter f

or rese ntencing on the Defendant s’ convictions of e special ly aggravated kidnapping

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Rem

anded

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.
Larry Hoover, Nashville, Tennessee, for the app ellant, Billy J. Coffelt. Cy nthia F. Burnes, Nashville, Tennessee, for the appellant, L yle T. Van Ulzen.

Paul G. Summers, Attorney Gene ral and Repor

ter; David H. Find

ley , Assistan

t Attorne y General ; Victor S. Johnson, Di strict Att

orney Genera l; and Shar

on Brox, A ssistant D istrict At torney Genera l, for the appellee, State of Tennessee.-2- OPINION

The State’s proof established that three correctional off i cers were working at Unit I of the Riverbend Maximum Se curity I nstitution during the early mor ning hours of December 27, 1998. Unit I consisted of four “p ods” that contained prison cells; each cell housed a sing le inmate. A central “pod” wa s used as t he common

area. A lso in the u

nit were a security off

ice, a visitor’s gallery , a control room, and a laundr y r oom. Corpo

ral Bar ry Asberry was in ch arge o f the unit; he
was being assisted by

Officers Amorelle

Williams and Lona Beshe ars. The Defendants were two of the inmates under their care and supervision.

At about t hree a. m. , the Defendants were relea sed from their cells to perform some work. For about an hour and a half, they worked together in the visitor’s gallery waxing the floor. During this time, Officer Williams oversaw their activities. Corporal Asberry was in the security off

ice, and Officer Beshea rs was up stairs in t

he contr ol room. Th

e contro l room con

tained the remote

electro nic deviceswhich ope

ned door s in the unit.

At about 4:30 a.m., the De fendan ts ceas ed work ing on the floor and began to work in the kitchen, preparing breakfasts for those inmates who celebrated Ramadan . At abou t five o’clock, bothDefendants appeare d at the s ecurity off ice. At this time, both Corporal Asberry and Officer Williams were in the office. Defenda nt Van Ulzen accosted Corporal Asberry wi th a hom emade knife known as a “shank.” Defendant Coffelt grabbed Of ficer Williams, pinning her arms behind her back. Office

r Williams te stified th at Van Ul zen held th e shank to Corporal Asberry ’s neck and threatened

her with it. The Defendants told the officers that, if they cooperated, they

would not be harmed. The Defendants took the officers’ radios and

keys; Coffelt arme d himself with a “stun gun” taken from a drawer. The Defe nd ants removed their leg irons, and then handcuff ed Officer Williams’ hands behind her back. The Defenda nts also fastened one of

the sets of leg irons around Corpora l Asberr y’ s hands.

The Defend ants marche d the off icers to t he laundr y r oom, a short distance away . They then had Corpora

l Asberr y r adio to Of

ficer B eshear s, giving

him th e co de to open the two consecutive doors to the control room. Van Ulzen put on Officer Williams’ uniform jacket and covered his head withthe hood. Van Ulzen then went upstairs to the control room and opened the fi

rst of two doors, which Beshears had unlocked in response to the ra dio call. Beshears glanced a t the security ca

mera and saw the jacket that

Van Ulzen was wearing. Thinking that anothe r officer was waiting to be let in the second door, Beshears opened it. V an Ul zen entered the control room and brandished the shank at Beshears. Van Ulzen told Beshea rs that he would not be hurt if he cooperated.

Van Ulzen esc orted B eshear s downsta irs to the laundry room. The Defendants removed

the restraints from Asberry ’s and Williams’ ha nds and the

n locked a ll three of ficers i n the laun dry

room. The laundry r

oom was locked from the outside and could not be opened from the inside.

The officers heard a lot of noise, and then saw other inmates in the common area. They subseque ntly saw several inmates, including the Defenda nts, leaving the uni t through the “sal ly-3-

port,” a pair of doors that led t o the outsi de. At about 5:30 a.m., Officer William Scott Duncan found the three officers in the laundry room. They we

re subsequently r

eleased fro m the laund ry room by Serge ant Staple s.
The prison personnel soon discovered that six inmates had escaped. A ladd er had been erected at the perimeter

fences and pieces of mattresses had been placed over the razor wire topping the fences. All six inmates were captured within thirty -six hours of their escape.

Defendant

Van Ulzen testified at trial, emphasizing that he locked the guard s in the laundry
roomin order

to protec t them f

rom the inmates he subsequently r eleased from their cells. He testified that he used the shank only to convince the guards to cooperate.

Both Defendants were

charg ed with es cape wh

ile serving a felony

sentence; three counts of especia lly aggravated kidnapping ; and three counts of aggr avated assault (with a deadly weapon). Van Ulzen pled guilty to the escape charg e; he ple d not guil

ty to the remaining counts. Coffelt pled notguilty to all counts. The jury convicte d each D efenda

nt of esc ape, thr

ee coun ts of espe cially aggr avated k idnapping , and two c ounts of a ggra vated as sault.

SUFFICIENCY OF THE EVIDENCE We will first

addressDefend ant Coffe lt’s conte ntion that t

he evide nce is not sufficie nt to support his convictions of especially a ggravated kidnapping

and aggravated a ssault. Tenne s see Rule of Appellate Procedure 13(e) presc ribes that “[f]indings of guilt in criminal actions whether by the trial court or jury sha

ll be set aside if the evidence is insufficient to support the findings by the

trier of fact of guilt bey ond a

reasonable doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found theessential elementsof the crime

beyond a re asonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because convic tion by a trier of fact destroy s the presumption of innocence and imposes a presumption of guilt, a convicte d criminal defendant bears the burden of showing that the evidence was insufficient. See McBee v. State , 372 S.W.2d 173, 176 ( Tenn. 196 3); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1999) ; State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 9 1 4 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view o f the evidence as well as all reasonable and legitimate inferences that may be d raw n therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. Likewise, should the reviewing cour t f ind particular conflicts in the trial te st im on y, the court must resolve them in favor of the ju ry v erdict or trial court judgment. See Tuggl e , 639 S.W.2d at 914. All question s involving th e credibility of witnesse s, the weight and value to be given the evidence, and all factual issues are resolve d by the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 78 8, 795 (Te nn. 2000) ; State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).-4-

Coffelt was convicted of two counts of aggravated

assault. This crime is committed when the accuse d intention ally

or knowin gly

causes t he victim t

o reasona bly fear imm inent bodi ly

in ju ry, by the use or display of a

deadly we apon. See Tenn. Code Ann. § 39-13-102(a)(1)(B) . In this case, the proof established that Van Ulzen brandished a homemade knife at Amorelle Williams and Barry As be rr y. Both

of these victims testified that Van Ulzen’s actions caused them to be fearf ul of being hurt. Van Ulzen’s actions were calculated: that is, they were intentional or knowing. Thus, the State esta blished a ll of the e lements of

aggr avated a ssault be

yon d a reas onable do

ubt.

That it was Van Ulzen, ra

ther tha n Coffelt , who bra

ndished th

e knife a vails Coffelt no relief. Our criminal code provides that “[a] person is criminally responsible for an offense committed by the conduct of another if: . . . [a]cting with intent to promote or assist the commission of the offense,
or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or att empts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2). Coffelt a ssisted in restraining the victims and in confining them to the laundry . Coffelt escaped along with Van Ulzen. Coffelt is criminally responsible for the a ggravated assaults committed upon the two victims. This issue is without meri

t. Turning now to Coff

elt’s con tention tha

t the evid

ence is n ot suffic ient to sup port his convictions of espec ially aggr avated k idnapping , th at offens e is committed when the accused “knowingly

removes or confines another unlawfully so as to interfere substantially with the other’s liberty,” and the c onfineme nt is accompl

ished with

a deadly w eapon. See

Tenn. Code Ann. § 39-13- 305(a)(1). The proof in this case established that Lona Beshears, Amorelle W illiams, and Barry As berry were e ach con

fined by the Defe ndants wit

hin the pr ison laund

ry for a pe riod of a t leas t fifteen minutes. This was a substantial interfe rence with their libe

rty . Moreove

r, each of the vic tims
was confined after having been a ccosted with a knife. Although Van Ulzen wielded the knife, Coffelt remains c

riminally responsi ble for V an Ulzen’ s actions i n this re gard. The evid ence is sufficient to support Coffelt’s three convictions of especially a

ggravated kidnapping , and this issue is therefore without merit.

ANTHONY ISSUE We will now address the Defendants’ contention t hat their

convicti ons for e special ly aggravated

kidnapping and escape cannot withstand due proc ess scrutiny under our supreme court’s holding in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991).

In Anthony , our

supreme court addressed “the propriety of a kidnapping conviction where detention of the vic tim

is merely incidental to the c ommission of another felony, such a s robbery or rape.” Id. at 300. The court’s basis for addressing this concern was not the constitutional protections agains tdouble jeopardy, but r ather the court’s “understanding of the constitutional guarantee of due process.” Id. at 306. Thus, the court determined that the propriety of a kidn appin g conviction depends on “whether the confinement, movement, o r detent ion [supporting the kidnapping allegations] is essentially incidental to the a ccompanying

felony and

is not, therefore, sufficient to support a separate conviction for

kidnappin g, or wh

ether it i s signif

icant en ough, in

and of its elf, to warrant independ ent prosecution an d is, ther efore, sufficie

nt to support such a

conviction.” Id. The1 The De fenda nts igno re the c entral iro ny of their a rgum ent: the o nly reason tha t the guards “needed” the

“protection” of being locke d in the laundry was b ecause the D efendants were releasing violent felons.
-5- court further determined that “one metho d of resolving this question is to ask whether the defendant’s conduct ‘substantially incre ased [the] risk of harm over and above tha t necessar ily present in the crime of [the accompany ing felony ] itself.’” Id.

Our supreme court

revisite d these c oncernsin State v. Dixon , 957 S.W.2d 532 (Tenn. 1997). In Dixon , our supr

eme cour t made cle ar that “ any

restraint in addition to that which is necessary to
consumma

te [the accompanying

felony] may

support a separate conviction for kidnapping.” Id. at 535 (emp hasis added). If such a dditional restraint is present, “the next inquiry is whether the additional movement or confinement: (1) prevented the victim from summoning help; (2) lessened the defendant’s risk of detection; or (3) created a significa nt danger or increased the vic tim’s risk of harm.” Id.

Initi ally , we ag

ree with the State that, unlike the crimes of robbery or rape, an escape

does notinherently require the restraint, detention, or confinement of any one. Thus, because no restraint is n ecessary

to accomplish an escape, any restraint used in the commission of an escape “may support a separate conviction for kidnapping.” Id. The conv ictions in t

his case will there

fore pa ss due process muster

so long as the restraint prevented the victims from summoning help, lesse ned the Defendants’ risk of detection, or increa sed the victims’ risk of harm. See id.

We have no difficul t y in holding t

hat the De

fendant s’ three

convicti ons for e special ly aggrav ated kidnappin g are c onstitution ally sound. The

Defend ants arg

ue that lo cking th

e victims in the laund

ry did not af

fect the ir ability to summon he

lp because, once the Defenda nts confiscated their keys and ra

dios, they were

unable to summon help no matter where they were in the unit. The Defendant s make the same argument with respect to reducing their risk of detection: once the victims we

re relie ved of the ir keys and ra

dios, they had no way

of alerting any one to the

escape in progre ss. Finally , the Def endants contend that they

locked th e victims i n the laun dry

for the victims’
ow n p ro te ct io n, th er eb y ac tu al ly decreasing the victim s’ risk of

harm.
We acknowledge that the victims testified that they eachfelt safer

in the laundry than they would hav e out amon gst the e scaping inmates, given that they

had no means of prote ction ag ainst
an assault. We also acknowledge Defenda nt Va n Ulzen’s t

estimony that he lo cked the

victims in the laund ry in order to keep them safe from the other inma

tes. 1 Clearly, howeve

r, the jury did not believe th at this wa s t he so le re as on th at th e D ef en da nt s l oc ke d t he vi ct im s i n t he la un dr y. Moreover, we are

unpersua ded that t he Defe ndants’ a ctions in locking the victims in the laundry did notincrease their risk of harm. Granted, no ha rm actually occ

urred, making Defendant Van Ulzen’s subsequent

testimony conveniently

credible. However, a risk does nothave to be realized in order to be created. Had any

of the other inmates gotten the key s from Van Ulzen, or otherwise gained
accessto the lau ndry, the victims were literally “ sitting ducks” with absolutely no wa y to protect themselve s. Thus, under our supreme court’s opinion in Dixon , we find this is sue to be without merit.2 Our cri minal code pro vides that “[i]t is unlawf ul f or any pers on arrest

ed for, charged wi th, or convict ed of an offense to esca pe fro m a p enal institutio n[.]” T enn. C ode Ann. § 39-1 6-60 5(a) . T hus, an element of th e offe nse th at must be proved b y the Stat e is that the accused was arrested for, charged with, or convict ed of a felony when he or she committe d the esc ape.
-6- ADMISSION OF PRIOR CONVICTIONS Both Defendants complain that the trial court erred in admitting pr oof of the convictions for which they were

incarcerated at the time of their esca pe. 2 Count 1 of th

e indictme

nt against Coffelt states that he “d id in te nt io na ll y, knowing ly, or reck lessly escape from Rive

rbend Ma ximum Securi

ty In stitut ion, having

been held there

for an a rrest, charge , or conviction of a ssault with intent to commit mu rd er , a fe lo ny[ .]” Similar ly, Count 2 of th e indictme

nt alleg es that Va

n Ulzen “d

id in te nt io na ll y, knowingly, or r ecklessly es cape from Riverbend Maximum Security Ins titution, having been held there for an arrest, char ge, or conviction of murder, a fel ony [.]” Over obj ection on behalf of both Def endants, these counts of the indictmen

t were r ead to the jury . Lat

er in the trial, again over defense objection, the trial court ruled that the State could put on proof o f the felonies re ferenc ed in the indictmen

t. Howeve

r, the Sta te agr eed to accept

the Defe ndants’ offers of stipulation as to the specific felonie s refer

red to in th

e indictme

nt.

The Defend ants now conte nd that the

trial cou rt should have allowed the State to prove no
more than that they wer

e each in prison while serving a sentence for a felony, without specify

ing the nature of their crimes. The Defendants rely on our supre me court’s opi nion in State v. James , 81 S.W.3d 751 (Tenn. 2002). In James , our supr eme cour t held
(1) that the defen dant ’s prior felonies constitute relevant evidence establishing the prior-conviction element

of the offense of felony

escape; but (2) that

when the sole purpose of introducing the defenda nt’s prior convictions is to prove the “priorconviction” element of the charged off ense, a nd when th

e defen dant off

ers to stipulate to this element, the probative value of this evidence is, as a matter of law, outweighed

by the risk of unfa

ir prejudice under Tennessee Rule of Evidence 404(b).

Id. at 755. James was not decided until more than two y ears after the Defendants’ tr i al. Prior to James , this C ourt held that, in proving felony escape, the prior felony

conviction was an essential element of the offense and, under those unique circumstanc es, the probative value of the prior conviction “would almost always outwe igh any potential prejudice under Rule 404(b).” State v

. Wingard , 891 S.W.2d 628, 634 (Tenn. Crim. App. 1994). Indeed, the trial cour t in this case relied
on Wingard

in making its ruling. Were it not for the s ubseque

nt James decision, theref

ore, we would find no error by

the trial court in this regard.
However, the James decision overruled Wingard where th e defendant off

ers to stipulate

to his or her pri or offenses

. See 81 S.W.3d at 763 n.7. Thus, we must conclude that the trial court erred in allowing the State to introduce into proof the nature of the fe lonies for which the Defe

ndants were incarcerated a

t the time of their escape.-7-

Such error issubject to harmless error analy sis. See James , 81 S.W.3d at 763. That is, the Defend ants are not entitled to relief on this basis un less the err or compla ined of “ affirma

tively appears to have affected the result of the trial on the mer its.” Tenn. R. Crim. P. 52(a). Whe n examining the ef

fect of an e rror on a defendant’s trial, we eva luate that error in light of all of the other proof introduced at the trial. James , 81 S.W.3d at 763.

In this case, the proof setting forth the Defendants’ c riminal conduct was uncontroverted and overwhe lmingly established the elements of the crimes of which the Defe ndants were convicted. We have no hesitation concluding that the admission of proof of the specific felonies for

which the Defend ants were serving sentences at the time of their esca pes had no impact whatsoever on the jury ’s verdi ct. Acc ordingl y, t his issue iswithout me

rit.

ADMISSIBILI TY OF TWO K NIVES The proof established that , in committing these crimes, Van Ulzen utilized a homemade prison knife known as a “shank.” After the Defendants escaped River bend, searches of the area outside the building whi c h was tra versed b y th

e escap ing inma

tes reve aled two s uch instr uments. No witness identified either of these shanks as the one havin g been u sed by Van U lzen , alth ough there was testimony that one of them looked “similar” to what Van Ulzen had held. In spite of the lack of positive identification, the trial court allowed the two shanks to be introduced into evidence. Coffelt now claims that the trial court’s decision constituted reversible error

.
We r espectf

ully disagr ee. Ruling s on the ad

missibility

of evide nce base d on its r

elevanc e are entrusted to the sound discretion of the trial court and will not be overturned absent a n abuse of that discretion. See St ate v. Du bose , 953 S.W.2d 649, 652 (Tenn. 1997). “[A]n appellate court should fin d an abuse of discretion when it appears that a trial c ourt applied an incorrect leg a l standard, or reached a decision which is ag ainst logic or reasoning that caused a n inj usti ce to the party c omplaining.” State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997). We find no ab use o f discretion in allowing the introduction of the shank identified as being similar to the one used during the commis sion of the

offense s.
Of course, the threshold requirement for the admissibility of evidence is that it be

releva nt. See Tenn. R. Evid. 402. In this case, one of the e l ements of the cr

ime of ag grava

ted assa ult with which the Defendants were charg ed is that the victims reasonably f eared imminent

harm. See Tenn. Code Ann. § 39-13-102(a)(1)(B). Also, a n element of the crim e of esp ecial ly aggravate d kid nappi ng, withwh ic h t he De fe nd an ts we re al so ch ar ge d, is th e u se or di sp la y o f a deadly w eapon. See id. § 39-13-305(a)(1). Thus, the State was en titled to us e demonst rative e vidence in order to establi sh these elements. While admission of the actual shank used wo uld certainly have been “more” relevant, a demonstration of the type of weapon used was certainly appropriate.
Moreover, while we agree with Coffelt that admission of the second shank was irrelevant and needles sly

cumulative, we disagree that the trial cour t ’s erro r in this re gard c onstitutes revers ible
error. As set forth above, a trial court’s erroneous a dmission of evide nce will re sult in a reversal-8-

only if the error affirmatively

appears to have affected the verdict on the merits. No such appearance is indicated here. Coffelt is not entitled to relief on this issue.

PROSECUTORIAL MISCONDUCT Coffelt argue s that he is entitled t o a new trial because of statements made during the pro secutor’s closing a

rgument. To analy ze the prosecutor’s argument, however , we must first review the cl osin g argumen t made by Coffel t’s l awyer, to w hich t he pro secut or was respo ndin g.
Coffelt’ s lawy

er arg ued, in pa rt, that

What we’re t

ry ing or w

hat we wa nted to g et acro ss to you

is just, you know, what the situation was out the

re, why this escape took place, and what led up to this escape. I think that you w ould have to agree with me that there wa s just a real comedy of
errors on th e pa rt of Riverbend. It’s almost a rea l life version of the old show, Hogan’s Heroes , yo

u know, wh

ere the inmates kind of did

whatever they

wanted to do.

. . . But, y

ou know, th

e prison o r the peo ple on duty

that night just didn’t take care of their business. And that’s what happened.

In response to this characterization of the events leading up to the Defendants’ escap e , which the prose cutor descri bed as a defen se of co ntrib utory negl igence, the pr osecu tor st ated t he fol lowi ng:
Whether [the guards] were contributorily negligent or

not, if I pick up a hitchhiker at night, knowing I shouldn’t, y ou tell your children don’t hitchhike a nd don’t pick up hitchhike rs, and that hitchhiker

shoots me or kills me, then what do y ou all say , well, you can’t punish him. You were

stupid enough to, y

ou know, y

our father was st

upid enough t o pick this g

uy u p. He go t what he d

eserve d. No, tha

t’s just wh at y ou call being a nice person and

some mean person taking advantag e of you. And that’s what happened in this situation.

Coffelt acknowledges that no objection was made during this portion of the prosecutor’s argume

nt, but alleg es that the

prosecu tor’s sta tements c onstitute “

plain er ror” en titling hi m to a new t

rial.

We disagree. As our supreme court ha s repeatedly noted, “closing argument is subject to the trial court’s discreti on. Counse l for both the prosecution an d the def ense should be permitted wide latitude in arguing their cases to the jury. Arg ument must be temperate, predicated on evidence introduced during the trial, relevant to the issues being tried, and not oth

erwise improper under the facts or law.” State v. Middlebrooks , 995 S.W.2d 550, 557 (Tenn. 1999) (c itation omitted). I n this case, defense

counsel was comparing the gua rd staff at Riverbend to a bunch of “t el ev is io n c om ed y” nincompoo

ps. The defense was predicated on a “they aske d for it” theory. T he State was entitledto rebut this “defense” with an illustration designed to counter the no tion. Under the facts and circumstances of this case, the Stat e’s reb uttal argument was not improper. This issue is without merit.-9- SENTENCING The trial court sentenced both Defendants to life imprisonment without the po ss ibility of parole on each of their especially a

ggravated kidnapping

convictions on the basis that each Defendant
was a “repeat violent offender.” See Tenn. Cod e Ann. § 40 -35-120. Both Def endants now contend that the trial court erred in doing so. We agr ee.
At the sentencing hearing , the State introduc ed proof

that Van U

lzen had been convicted in 1988 of two counts of se cond deg ree mur der. The State intr

oduced p roof th at Coffelt had been convict ed of armed robbery in 1983, a ssault with

intent to c ommit first

degre e murder

with bodily injury in 1985, a

nd robbe ry with a dea

dly weapon in 1985. However, the State introduced no proof
as to what po

rtion of th

eir sentences for these crimes the Defenda nts were serving at the time the instant offenses were committed.

The Criminal Sentencing Reform Act of 1989 r equire s that a “repeat violent offender” be sentenced to life without the possibility of parole upon conviction of a spec ified violent offense. See Tenn. Code Ann. § 40-35-120(g). E specia lly agg ravated kidnapping is a specified violent offe nse that will trigger a sentence

of life without the possibility of parole upon a finding that the defenda

nt is a repeat violent offender. See id. § 40-35-120(b) - (d). I n this case, the trial court determined that Van Ulzen was a repeat

violent offender based upon his two prior convictions of second degree murder. The trial court found that Coffelt was a repeat violent offe nder based up on his prior conviction of assault with i nten

t to co mmit f

irst d egr ee mu rder . We agree with the trial court tha t each of these predica te offenses qualifies as a “violent offense”for the purpose of determiningwhether a defendant is a repeat vi olent o ffender. However, we re spectfully disag ree with the trial court that these prior offenses satisfy the

statutory definition of “prior conviction” so as to trigger a repeat violent offender sentence.

Section 40-35-120(e) states that, “I n determining the number of prior convictions a defendant has receiv ed: (1) ‘ Prior con viction’ m

eans a de fendant serves and is released from a period of incarceration

for the commission of an offense or offenses so that a d efenda nt must [have ] . . . at lea st
one (1) separate period of incarc eration for the commission o f a predicate offense . . . befor e committing [the offense for which the defendant is being sentenced].” Id. § 40-35-1 20(e)(1)( B) (emphasis added). In this ca se, the State presented no proof at the sentencing he aring that either of the Defendants had p reviou sly served and be en released from a separa

te period of incarceration before committing the instan

t offens es. Indeed, from what little proof is in the record before us, it appears
as though the Defendants were ser ving the sentences they

received on

their predicate offenses at the time they committ ed the instant crimes. Thus, the predicate offenses do not satisfy the narrow definition of “prior conviction” set forth in the statute.

Nor does it assist the State that the Defendants co mmitted th e instant c rimes whi le incarcer at ed. Tenness ee Code A nnotated Section 40 -35-120( e)(2) p rovides t hat “[a]ny

offense design ated as a violent offense pursuant to subsection (b), (c) or ( d) that is committed whi l e incarcerated

. . . shall be considered as a separate pe r iod of inca rcera

tion.” Ha

d the Def endants committed one of the

ir predic ate off

enses while i ncarcerated, we could trea t them as having had a-10-

“separ ate period of

incarceration:” that is, the effect would be to sa tisfy the require

ment of a releas e from a period of incarceration. That the De fendants committed the instant crimes while incarcerated d oes not trigger a “separ

ate period of incarceration” for the purposes of satisfying the definition of their prior

convictions.

In short, the

trial cou rt erre d in determin

ing the D efenda

nts to be repeat violent offenders for the purpose of imposing mandatory sentences of life imprisonment without the possibility of parole. Accord in gl y, we remand this matter to the trial court for a determination of the se ntences to be impo sed up on th e Defen dants for eac h of th eir con victi ons of especi ally aggrava ted ki dnapp ing.

CONCLUSION The Defendants’ convictions are affirme d. We vacate the sentences imposed by the trial court withregard to the Def

endants’ convicti ons of esp ecially aggr avated k idnapping and rema nd this ca use for resentencing for those off enses only.

___________________________________

DAVID H. WEL

LES, JUDGE