# FILED
June 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9708-CR-00330 Appellee, ) ) SULLIVAN COUNTY VS. ) ) HON. PHYLLIS H. MILLER, LULA J. FLANIGA

N, ) JUDGE

) Appellant. ) (Aggravated Kidnappi ng ) and Aggravated Assault)

FOR THE APPELLANT : STEPHEN M. WALLACE District Public Defender TER RY L. JOR DAN Assistant District P ublic Defender P.O. Box 839 Blountville, TN 37617-0839 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MICHAEL J. F

AHEY, II Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General EDWARD E. WILSON Assistant

District Attorney

General P.O. Box 526 Blountville, TN 37617-0526

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The defendant, Lula J. Flanigan, w as convicted by

a Sullivan County jury

of
one (1) count of aggravated kidn apping and three (3) counts of aggravated assault. The trial c ourt sentenced her to concurr ent terms of eleven (11) y ears for aggravated kidnapping and six (6) years for each aggravated ass aul t conviction. On appeal, defendan t cont ends that the trial court er red in failing to merge h er aggravated kidnapping conviction with o ne conviction for aggr avated assault as

the kidnapping was merely incide ntal to the assault. See State v. Anthony , 817 S.W.2d 299 (Tenn. 1991).She further c laims that t he trial co urt erred i n imp osing her sentences. A fter a re view of the record before this Court, we find no reversible error. Therefore, the judgment of the trial court is affirmed.

FACTS

In 1996, defendant was an employee of an App lebee’s restaur ant in Kingsport, Tennessee. On Febru a ry 20, defendant had a disagreement with MelindaParrott, the assistant manag er of App lebee’s , concerning defendant’s employment

duties. Although Parrott asked defendant to stay after her s hift so that the two could w

ork out their d ifferenc

es, defen dant left

that afternoon without seeing Parrott. The next day, when Parrott arriv ed at work, she once agai n told defendant that she needed to speak with defendant after h er work shift ended. Inst ead, defendant resigned and left the restaurant at approx imately 10:30 a.m. Defendant wentto her residence, wher e she consumed an excessive amount of vodka. Approximately two hours later, defendant got her gun and returned to Applebee ’s. When defendant returned, Parrott was helping wait tables

during thelunch hour. Defendant approached Parrott and asked to speak

with her. When Parrott answered that she was busy at that time, defendant replied, “you’ re going to talk to
me now, bitch.” Inorder to avoid a scene, Parrott followed defendant to the kitchen3

area, where defendant pushed Parr ott to the floor. When Parrott demanded that defendant leave, defendant brandished her g un and led Parrott at gunpoint to the outside “dock” area behind the restaurant. On th eir way

outside, defendant and Parrott passed Shawn Spears, an Applebee’s employee. Parrott told Spears that defendant had a gun, and Spears followed them outside. Rebecca Steven s, a waitr ess, saw de fendant fire a gun towardsParrott and, out of fear that defendant had shot Parrott, also went outs ide to the “dock” area. Parrotttestified that aftershe and defendant reached the “dock” area, defendant told Par rott th at “she had bullets in the gun, and she was going to use them.” Spears stepped in front of Parrott and tried to calm defenda nt, an d defendant fired a shot into the air. Sh e p ointed h er gun at Parrott, Spears and Stevens, demanded that they step away from her and fired another shot into the air. Subseque ntly, defendant’s sister, also an Applebee’s employee, came outside and
was able to calm defendant. Defendant thenleft through a back gate and was later apprehended. Approximately one and one-half (1 1⁄2) hours after the incident, defendant’s blood alcohol level was

tested and found to be 0.33%. At tria l, the parties stipulated that defendant’s blood alcohol lev el was 0.20% at 7:38 p.m., appr oximately seven (7) hours after the incident. Defendant testified on her own behalf at t r ial. Sh e stated that she was an alcoholic and was suic idal at the time of

the offenses. She testified that after she resigned on February 21, she went to her apartment and began drinking v odka. She was angry w

ith herself for quitting her job and contemplated committing suicide. She did not recall much of what happen ed when she returned to Applebee’s; however, she testified that she did not intend to kil l Parrott. Dr. Kenneth E. Ferslew, a tox icologist, testified for

the defense as well. Dr. Ferslew stated that defendant’s blood alcohol level w ould have been approximately 0.3 58% at the time of the incident. He further testified that defendant woul d experience a change in m ood and personality, a los s of inhibition and might1 The jury fo und defendant not guilty of the attempted murd

er of Parrott but g

uilty of aggravated assault upon Parrott. The parties reco gnized, as does this Court, that aggravated

assault is not ordinarily a lesser grade or lesser included offense of attempted first degree murder. See State v. Trusty , 919 S.W.2d 305, 307 (Tenn. 1996). However, unlike Trusty , the indictment in this case contained language alleging an aggravated assault. The parties agreed, therefore, that aggrava ted assault should be charged to the jury. Under this indictment, this was proper and was not in violation of Trusty . 919 S.W.2d at 312-13. 4 demonstrate personality tr aits that she would not othe rwise exhibit. Defendant was charged with one (1) count of attempted first degree murder of Parrott, one (1) count of aggra vated assault of Spears, one ( 1) count of aggravated assault of Stevens andon e (1) count of aggravat ed kidnapping of Parrott. The jury found defendant guilty of three (3) counts of aggravated assault 1 and one (1) count of aggravated kidnapping. The trial court sentenced defendant to concurrent terms of eleven (11) years for aggr avated kidnappingand six (6) years fore ach aggravated assault conviction. From these convictions and sentences, defendant brings this appeal.

STATE V. ANTHONY

In her first issue, defendant claims that the trial cou rt erred in sustaining her aggravated kidnapping convicti on when she was conv icted of the agg ravated assault of Parrott arising out of the same facts. She contends that the aggravated kidnapping is “essentially incidental” to the aggravated assault under S tate v. Anthony , 817 S.W.2d 299 (Tenn. 1991). Therefore, sheargues that her conviction foraggravated kidnappin g must merge with her conviction f or aggravated assault of Parrott. In State v. Anthony , our Supreme Court addressed the issue of whether dual convictions

of armed robb ery and aggr avated k idnapping a rising ou t of the same criminal episode could constitutional ly stand as a matter of due process. The Court held that when kidnapping is “essentially incidental” to another offense, due process p rohibits a co nviction for kidnapping

. Id . at 306-307. The test to be applied is whether, under the facts of each case, “the confinement, movement or detention is essentially incidental to the accompanying felony and is not, therefore, s ufficient to5

support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to w a rrant independent prosecution a nd is, therefore, sufficient to support such a conviction.” Id . at 306. The determina tion of whether the convictions

for kidnapping and the linked felony can stand is fact specific, as there is no prohibition against c onvictions for

both offenses “simply because they arise out of the same criminal episode.” Id . at 307. In the late r case o

f State v. Dixon , the Supreme Court clarified its holding in Anthony , stating: The Anthony

decision should only prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the ac t of rape or robbery. Accordingly, any restraint in additio n to tha t which is necessary to consummate rape or robbery may support a separate conviction for ki dnapping. 957 S.W.2d 532, 534-35 (Tenn. 1997). The Court determined that the resolution of an Anthony

issue is ba sed upon two inquirie s. First, the court must decide
w hether the “movement o r confinement was beyond that necessary to consummate” the associated felony. Id. at 535. If this can be answer ed in the affirmative, th e n the next inquiry becomes “whether the additional movement or confinement: (1 ) preven ted the vi ctim from summoning help; (2) l essened the defendant’s risk of detection; or (3) created a significant danger or increased the v ictim’s risk of harm.” Id. (citing Anthony , 817 S.W.2d at 306). If both prongs are met, du al convictions for kidnapping and the additional felony are proper. In the case sub judice , we find that defendant’s con victions for the aggravated kidnapping and ag gravate d assault upon Parrott are appr opriate. Defendant led Parrott at gunpoint from the kitchen to the “dock” ar ea outside, thereby substantially interfer

ing with her liber

ty. Tenn. Code Ann. § 39-13-302. The kidnapping was not

essentially incident

al to the assault, as the movement from the kitchen to the “dock” was not necessary to commit the aggravated as sault. Furthermore, we find that forcibly moving Parr ott o utside could have prev ented Parrottfrom sum mon ing help, lessened the defendant’s risk of detection, and increased Parrott’s r

isk of harm. Defendant argues that the aggra vated kidnapping conv iction should not be6

upheld because the detention was not lengthy and Parrott was moved only a short distance. However, “it is the purpose of the removal or confin emen t and not the distance or duration that supplies a necessary element of aggravated kid napping.” State v. Dixon , 957 S.W.2d at 535. T herefore, we conclude that the tri al co urt properly upheld both convictions of aggravated kidnapping and aggravated assault of Parrott. See State v. Joseph Tipler , C.C.A. No. 02C01-9611-C R-00384, Shelby County (Tenn. Crim. App. filed January 30, 1998, at Jackson). This issue is without merit.

SENTENCING

Next, defenda nt claims that the trial c ourt erred in imposing h er sentences foraggravated kidnappin g and aggravated ass ault. She argues that the trial court imposed excessive sentences due to the misapplication o f enhancement and mitigating factors. She also contends tha t t he trial court erroneousl y failed to consider that she is a favorable candi date for al ternative sentencing for her aggravated assault convictions. A. This Court’s review

of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presu mption is conditioned upon an affirmative sho wing in the

record that the trial ju dge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directi ves, there is no presumpti on of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997). The burden is upon the appealing party to show that the se nte nce is impro per. Tenn. Code Ann. § 40-35-401(d) Se ntencing Commission Comments

. I n conducting our revi ew, we are requi red, pursuant to Tenn. Code Ann. § 40- 35- 210, to consid er the following f actors in senten cing: (1) [t]he evidence, if any, r eceived at the trial and the s entencing hearing; (2) [t]he presentence report; (3) [ t]he principles

of sentencing7 and argu men ts as to sentencing alter natives; (4) [t]he natur e and characteristics of the criminal cond u ct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating fa ctors in §§ 40-35- 113 and 40-35- 114; and (6) [a]ny state me nt th e defendant wishes to make in hi s own behalf abo ut sentencing. If no mitigating or enh ancement factors for sentencing ar e present, Tenn. Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum sentence within the applicable range. See State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). H owever, if such factors do exist, a trial court should start at the minimumsentence, enhance the minimum sentence within the range forenhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No partic ular weight for each factor is prescribed by the statute, asthe weight given to each factor is

left to the discretion of the trial court as long as the tr

ial court complies with the purposes and princ iples of the sentencing act and its findi ngs are supported by the record. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see

Tenn

. Code Ann. § 40-35-210 Sentencing Commission Comme nts. Nevertheless, should there be no mitigating fact ors, butenhancement factors are present, a trial cou rt may set the sentence ab ove the mi nimum with in the range. Tenn. Code Ann. § 40-35-210(d); see Manning v. State , 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994). B. The trial court found that the follow ing enhancemen t factor s applied for all offenses: (1) that defendant had a pr e vious history of cr iminal convictions or behavior, Tenn. Code Ann. § 40-35-114(1); (2) that defendant had no hesitation about committing a crime wh en the risk to human life was hi gh, Tenn. Code Ann. §4 0-35-114(10); and (3) that the crime w

as c ommitted under circumstances under which the potential for bodily injury to a vict im was great, Tenn. Code Ann. § 40-35-114(16). The trial court found no applicable mitigating factors. C.8 The record supports the tri al court’s finding that defendant has a previous historyof criminal convictions and criminal behavior. Tenn. C ode Ann. § 40-35- 114 (1). The pre-senten ce report indicates that defendant has numerous convictions fordriving under the i nfluence. Furthermore, defendant testified that she previously used illegal drugs. The trial court properly considered this enhancement factor. D. Defendant contends that the trial court erred in applying Tenn. Code Ann. § 40-35-114(10) an d (16) to her convicti ons for aggravated kid napping and aggravated assault. She argues that by co mmittin g these offenses with a deadly weapon, one necessarily creates a high risk to human life and a great potential for bodily injury. This Court has previously held that Tenn. Code Ann. §40-35-114(10) and (16) cannot be used as enhancement facto rs f or the offenses of aggravated assault and aggravated kidnappi ng as they are inherent in the offenses. See State
v. Hill , 885 S.W.2d 357, 36 3-64 (Tenn. Crim. App. 1994); State v. Kern , 909 S.W.2d 5, 7-8 (Tenn. Crim. App. 1993). However, where there is evidence of individuals in the vicinity subject to injury in addition to the victim, the us e of these fact ors is proper. State v. Si ms , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). With rega rd to aggravated kidn apping, there was testimony that appr oximately 100

patrons were in the

restaurant as well
as numerous employees in the kitchen and di ning a rea. There were many other people who potentially could have been in jured by defendant’s actions. Furthermore, as to the aggravated a ssaults, the trialcourt found that enhancement factors ten (10) and sixteen (16) would apply because, “[t]here were other people coming an d even [defendant’s] sister c ame to the door. There were so many people around, it was lunch time, this was in a, a small little [fenced-in] area. An y b ulle t could have gotten, gone awry there and it w as just a great danger to everyone.”

We find that the trial court pr operly applied these enhancement factors. E. Defendant also contends that the trial court fail ed to consider in mitigat ion that she voluntarily r

eleased Parrott alive. Tenn. Code Ann. § 39-13-3 04(b)(2)2 Toni Harrell was in the Sullivan County

jail with d efendant after defendant was arrested on the present charges. Harrell testified that defend an t told her that she was “not finished” with Parrott and that she intended to shoot Parrott on the day in question. 9 providesthat if, after committing an aggravated kidnapping, the off ender “voluntarily releases the victim alive . . . such actions shall be considered by the court as a mitigating factor a t the time of sente ncing.” Ho weve r , under the present facts, defendant chose to abandon her course of ac tion only in response to her sister’s persistent pleading. This factor would be entitled to little weight.

F. Defendant also contends that the trial court should have found in mitigation that she accepted responsibility for her actions, showed remorse after the incident and was highly int

oxicated at the time of the incide nt. The trial court specifically found that defendant did not accept responsibilit y for her actions

in that defendant relied on h er ove r-consumption of alcohol as an excuse for her behavior. Addition ally, the trial court noted that there was testimony at trial that defendant had threatened Parrott’s life while incarcerated for the present charges. 2 Furthermore, voluntary intox ication is not

a proper mitigating ci rcumstance. A defendant’s sentence may be mitig ated if th e d efendant was suffering fro m a “mental or physical conditi on that significantl y reduc ed [her] culpability for the offense; however, the voluntary use of intox icants does not

fall within the

purview of this factor .” Tenn. Code Ann. § 40-35-113(8) (emphasis added ). We agre e with the trial cour t that none of the above is an approp riat e mitigating factor under the present facts. G. The trial court appropriat ely applied three (3) enhancement facto rs in determining defendant’s s ent ences. Even though the tr ial court should have appl ied defendant’s voluntary “release” of Parrott in mitigation, that factor would be entitled to little weight. Moreov

er, no other mitigating

factors are supported by the evidence. Accordin gly, defendant’s sentences of eleven (11) years for aggravated kidnappin g and six (6) years

for each aggravated ass ault conviction are appr opriate. This issue has no merit.10 H. Defe ndant also suggests that the trial court erred in fai ling to consider alternat ive sentencing. However, when imposing defendant’s sentences, the trial court noted that because defendant’s sentences w ere to run concurrently, it would be “ridicul ou s” to consider alternative sentencing. We agree. Defen dant is statutorily ineligible for alternative sentencing for her aggra vated kidnapping conviction. See

Tenn. Code Ann. §§ 40-35-303(a), 40- 36-106(a). She is, therefore, required to s erve that sentence in incarcerat ion. Because the trial cour t ordered that defendant’s six (6) y ear sentencesfor aggravated assaul t run concurrently with her eleven (11) year sentence for aggravated kidnapping, it would serve no purpose to consider alternative sentencing for defendant’s aggravated assault convictions. This issue is without merit.

CONCLUSION

We find that due process is not offended by defendant’s convicti ons for both aggravated kidnapping and aggrav ated assault of Parrott. Furthermore, we find that defendant received proper sentences for her convictions. Acc ordingly, the judg ment of the trial court is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

JOSEPH M. TIPTON, JUDG E11

CURWOOD WITT, JUDGE