         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON           FILED
                         DECEMBER 1999 SESSION
                                                     March 8, 2000

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE,           *    No. W1999-00022-CCA-R3-CD

            Appellee,         *    HENRY COUNTY

VS.                           *    Honorable Julian P. Guinn, Judge

KERMIT MAURICE COZART,        *    (Aggravated Kidnapping)

            Appellant.        *



FOR THE APPELLANT:                 FOR THE APPELLEE:

JIM L. FIELDS                      PAUL G. SUMMERS
111 East Wood Street               Attorney General & Reporter
Paris, TN 38242
                                   PATRICIA C. KUSSMAN
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   ROBERT “GUS” RADFORD
                                   District Attorney General
                                   P. O. Box 686
                                   Huntingdon, TN 38344




OPINION FILED: _______________


AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                  OPINION


      The defendant, Kermit Maurice Cozart, appeals from a guilty verdict

returned against him by a Henry County jury for Aggravated Kidnapping, a Class

B felony. The trial court sentenced the defendant to ten years at 100% as a

violent offender for the aggravated kidnapping. The defendant contends that the

trial court erred in failing to give the defendant’s requested special jury

instruction. The defendant had requested that the trial court specifically charge

the jury on aggravated kidnapping in the context of a robbery in accordance with

the language of State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The defendant

contends that the court’s instruction left the jury without guidance sufficient to

decide whether the defendant should stand convicted for the offense of

aggravated kidnapping.     After careful review, we AFFIRM the instruction,

judgment, and sentence from the trial court.



                    PROCEDURAL HISTORY AND FACTS


      The defendant was originally charged in 1995 with the aggravated robbery

and aggravated kidnapping of Terry Wilkinson at Essary’s Service Station in

Paris, Tennessee. The defendant entered a negotiated guilty plea to the charges

on January 22, 1996. Pursuant to the agreement, the trial court sentenced the

defendant on the counts of aggravated robbery, aggravated kidnapping and

evasion, as a Range I standard offender, to an effective sentence of ten years to

be served at 30%.



      However, when the defendant learned that Tennessee Code Annotated §

40-35-501(i) required him to serve 100% of his aggravated kidnapping sentence

as opposed to the 30% release eligibility that his negotiated plea provided, he



                                       -2-
filed a petition for post-conviction relief alleging ineffective assistance of counsel.

He requested that his guilty plea to the count of aggravated kidnapping be set

aside.      The trial court granted the defendant’s requested relief finding that

counsel had incorrectly advised him of his release eligibility date.



         At the defendant’s new trial for aggravated kidnapping, he requested

special jury instructions clarifying the distinction between an aggravated robbery

with incidental forced movement from an aggravated robbery and a kidnapping.

The requested instructions were based upon Anthony, 817 S.W.2d 299, and, in

relevant part, read as follows:

         Whether the confinement, movement or detention is essentially
         incidental to the accompanying felony and is not, therefore,
         sufficient to support a separate conviction for kidnapping or whether
         it is significant enough in and of itself to warrant independent
         prosecution and is, therefore, sufficient to support such a
         conviction.




         The trial court denied the defendant’s request and charged the jury as

follows:

           I charge you that any person who commits an aggravated
           kidnapping is guilty of a crime. For you to find the defendant guilty
           of this offense, the State must have proven beyond a reasonable
           doubt the existence of the following essential elements: One, that
           the defendant intentionally or knowingly removed or confined Terry
           Wilkinson unlawfully so as to interfere substantially with his liberty;
           two, that the defendant acted to facilitate the commission of any
           felony or flight thereafter; and three, that the felony was
           aggravated robbery, which is defined as the theft of property from
           the person of another by violence or by putting the person in fear
           accomplished by a deadly weapon.


         The jury returned a guilty verdict against the defendant as charged and

fined him $25,000.        He was sentenced to ten years in the Department of

Correction as a violent offender.




                                            -3-
       This conviction, as well as the aggravated robbery conviction, arose from

the following incident. On August 31, 1995, Terry Wilkinson was working as the

manager of Essary’s Service Station in Paris, Tennessee. Around 12:30 p.m.,

the defendant drove a dark blue Mazda into the station. After the victim filled the

defendant’s car with gas, the defendant told the victim to “give me all the money

in your pocket.” Not believing the defendant was a threat, the victim turned and

walked away.     The defendant grabbed the victim’s arm and stuck a semi-

automatic pistol to his rib cage.



       The defendant then escorted the victim inside, holding his gun on the

victim’s ribs the entire time. Once inside, the defendant took between $700 and

$800 from the station and the victim’s billfold. After he had the money, the

defendant forced the victim into a storage room in the back of the station. The

defendant padlocked the steel door to the storage room and left. The victim was

unable to free himself without assistance and was unable to use a phone to

summon help.



       Carolyn Cheek, a regular customer at Essary’s, saw the defendant as he

was pulling out of the station. When she arrived at Essary’s, she wondered why

no one was there to help her.       Because she was late for work, she began

pumping her own gas. Mr. Wilkinson, who had been in the storage room for

approximately ten minutes, heard one of the pumps operating and called out to

her. Ms. Cheek thought she heard something and stopped. Because she could

not see anyone, she resumed pumping gas, and Mr. Wilkinson called out again.

The third time Mr. Wilkinson yelled, Ms. Cheek went into the station.          Mr.

Wilkinson was able to open the door approximately one inch and hand Ms.

Cheek the keys to the padlock. She unlocked the door and let him out of the

storage room.

                                        -4-
                                   ANALYSIS


      The crux of the defendant’s argument is that this jury should have been

instructed that if the kidnapping was essentially incidental to the accompanying

felony (i.e., aggravated robbery), then convictions for both offenses cannot stand.



      Where the trial court’s instructions on a matter are proper, its denial of a

special request is not error. See Shell v. State, 584 S.W.2d 231, 235 (Tenn.

Crim. App. 1979). The trial judge carries a positive duty to issue “a complete

charge on the law applicable to the facts of a case.” See State v. Phipps, 883

S.W.2d 138, 149 (Tenn. Crim. App. 1994); see also State v. Teel, 793 S.W.2d

236, 249 (Tenn. 1990) (an accused has a constitutional right to a correct and

complete charge of the law). A defendant is entitled to have every issue of fact

raised by the evidence and material to his defense submitted through proper

instructions to the jury, as well as, upon request, an instruction “which outlines

the defense theory of his case.” See Phipps, 883 S.W.2d at 149-50. However,

this Court reviews contested jury instructions in the context of the entire charge,

and if those instructions as a whole correctly, fully, and fairly set forth the

applicable law, then denial of a special instruction is not error. See id. at 142;

see also State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987).



      The defendant’s argument centers around the holding of Anthony, 817

S.W.2d 299 (Tenn. 1991).        A due process case, Anthony focuses critical

attention, in the kidnapping/robbery context, upon the extent and effect of the

additional movement or confinement: Is the additional movement or confinement

essentially incidental to the accompanying robbery or significant enough, in and

of itself, to warrant independent prosecution?




                                        -5-
       As a matter of law and not fact, this is to be determined by a judge and not

a jury. But first, this Court would be remiss not to note that the decisions in

Anthony and its companion cases involved statutory offenses under the pre-1989

Criminal Code. When, in 1989, Tennessee enacted a new criminal code, the

continuing force and relevance of many pre-1989 decisions became somewhat

questionable.    However, in this case, as both Tennessee’s pre-1989 and

Tennessee’s current kidnapping statute are of similar focus, Anthony’s relevance

continues. See Tenn. Code Ann. §§ 39-13-301 to -305; see also State v. Dixon,

957 S.W.2d 532, 533 (Tenn. 1997).



       Considering Anthony, we now review the defendant’s arguments and

conclude that the Tennessee Criminal Pattern Jury Instruction 8.02, as given in

this case, accurately states the law and is a proper instruction. The State is

correct in its reliance on the holdings contained in Dixon.        In Dixon, Justice

Holder, writing for the majority, opined that “any restraint in addition to that which

is necessary to consummate rape or robbery may support a separate conviction

for kidnapping.” Id. at 535. Further, the decision in Dixon is relevant to our

instant inquiry regarding the relevance to other factors: (1) the distance removed

and (2) the duration of the confinement. The defendant argues that the building

where the robbery occurred was small and that the victim was not forced to move

more than eight to ten feet before being locked in a small storage room. In the

same vein, the defendant argues that the victim was confined for only ten

minutes before being discovered and freed. Dixon states:

       Aggravated kidnapping statutes do not require a particular duration
       or place of confinement; it is purpose of removal or confinement
       and not distance or duration that supplies a necessary element of
       aggravated kidnapping.




                                         -6-
 Id. at 535.       Therefore, the defendant’s arguments emphasizing the distance

 removed and the duration of confinement are not dispositive. Our analysis

 continues.



            Instead, Dixon does set forth the standard used to determine whether the

 victim’s movement or confinement was beyond that necessary to consummate

 the underlying felony.            To determine whether the additional movement or

 confinement rise to a level sufficient to support separate convictions, Dixon

 focuses upon three questions:

        (1) Whether the movement or confinement prevented the victim
            from summoning help;
        (2) whether the movement or confinement lessened the defendant’s
            risk of detection; or
        (3) whether the movement or confinement created a significant
            danger or increased the victim’s risk of harm.

Id. at 535. Each of these questions looks to the effect or purpose of the

additional movement or confinement.



        In this case, we conclude that factors (1) and (2), as enumerated above,

apply. 1 The victim, trapped in the small storage room, was unable to summon

help, and the defendant’s escape was thereby facilitated. Therefore, we find that

the additional movement and confinement in this case rise to a level sufficient to

support separate convictions.



        Finally, during oral argument defense counsel asked this Court to

sentence the defendant to ten years at 30%, the same amount the District

Attorney General was originally willing to accept as an appropriate sentence.

This panel is compelled to observe, as did the trial court, that it is the Legislature

that sets the sentences, and a District Attorney General may not agree to a

        1
          We disagree with the state regarding application of factor (3). Any potential danger inhering
from the pres ence o f a “poss ibly inflamm able furn ace” with in the she d is entirely too s peculative .

                                                   -7-
sentence not provided for by the Legislature. Such is an illegal sentence and

cannot be enforced.



                               CONCLUSION


      We AFFIRM the trial court’s judgment and sentence.




                                       ______________________________
                                      JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_______________________________
GARY R. WADE, Presiding Judge




_______________________________
NORMA McGEE OGLE, Judge




                                     -8-
