             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                               JANUARY 1998 SESSION
                                                            August 14, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                   )    No. 03C01-9704-CR-00138
                                      )
      Appellee                        )
                                      )    HAMILTON COUNTY
V.                                    )
                                      )    HON. DOUGLAS A. MEYER,
ALBERT CHRISTIAN PADGETT,             )    JUDGE
                                      )
      Appellant.                      )    (Especially Aggravated Kidnapping,
                                      )    Aggravated Rape, Aggravated
                                      )    Robbery, Theft)
                                      )
                                      )


For the Appellant:                         For the Appellee:

Alan R. Beard                              John Knox Walkup
737 Market Street, Suite 601               Attorney General and Reporter
Chattanooga, TN 37402
                                           Timothy F. Behan
                                           Assistant Attorney General
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493


                                           William H. Cox, III
                                           District Attorney General

                                           C. Leland Davis
                                           Assistant District Attorney
                                           600 Market Street, Suite 310
                                           Chattanooga, TN 37402




OPINION FILED: ___________________



AFFIRMED



William M. Barker, Judge
                                          OPINION


       The appellant, Albert Christian Padgett, appeals as of right his convictions in

the Hamilton County Criminal Court of especially aggravated kidnapping, two counts

of aggravated rape, two counts of aggravated robbery, and theft over $1,000. He

received an effective sentence of 103 years.

       Appellant argues on appeal:

       (1) that the trial court erred in allowing separate convictions for
       aggravated rape and especially aggravated kidnapping based upon the
       same criminal episode;

       (2) that the trial court erred in allowing two convictions for aggravated
       rape when both rapes occurred at the same time and involved the same
       victim; and

       (3) that the trial court erred in failing to instruct the jury on the defense of
       necessity.

After a thorough review of the record, we find no reversible error. Accordingly, we

affirm the judgment of the trial court.

       Sometime after 11:00 p.m. on September 30, 1994, the victim, Carol Hill, was

walking to her home on North Chamberlain Avenue in Chattanooga. At that time, she

and her boyfriend were living across the street from her parents in the same

neighborhood where the victim spent her childhood. When she was approximately

400 yards from her home, the victim noticed the headlights of a car approaching from

behind. The car swerved over toward her and pulled alongside where she was

walking. The passenger, a black male whose face was partially covered by a

bandana, displayed a sawed-off shotgun and ordered her to drop to her knees. The

victim fell down on the street and the passenger got out of the car and began

rummaging through her purse. The passenger found five dollars and told the driver,

who was standing nearby, “We can use this for gas money.” While continuing to point

the gun at her, the passenger then ordered the victim to get into the backseat of the




                                              2
car. He also got into the backseat, and the driver, later identified as appellant,1 began

to drive. The men then directed the victim to get undressed. As she was doing so,

appellant drove several blocks to Glenwood Drive and then turned in to a secluded

alleyway.

        Appellant joined the victim and the passenger in the backseat and the men

proceeded to rape the victim. While appellant anally penetrated the victim, the

passenger forced her to perform fellatio. Appellant then ordered the victim to turn

over and he vaginally raped her. Following these acts, the men told the victim to get

dressed and appellant resumed his position at the wheel. He drove the victim back to

where they initially accosted her and the passenger pushed the victim out of the

moving car. As the car drove away, the rear tire ran over the victim’s left leg.

        The victim ran to a nearby residence, but was unable to garner any response

from the residents. Fearing the men would come back for her, she hid in the yard until

she was able to stop an approaching cab, which took her the short distance home

where she called the police. Appellant was apprehended several weeks later in

Volusia County, Florida and was returned to Tennessee.

        Appellant was later indicted for the aggravated robbery of Carol Hill, the

especially aggravated kidnapping of Carol Hill, one count of aggravated rape by anal

penetration, and one count of aggravated rape by vaginal penetration. Based on

events that occurred prior to the abduction of Ms. Hill, appellant was also indicted for

the aggravated robbery of Joseph Sims and theft over $1,000 for stealing a car from a

restaurant parking lot.

        When the indictments were read to the jury at trial, appellant pled guilty to the

theft of the automobile, the aggravated robbery of Joseph Sims, and the aggravated

rape of Carol Hill by vaginal penetration. The remaining charges were tried by a jury.

At the conclusion of the proof, the jury returned verdicts finding appellant guilty of the


        1
          The victim identified the appellant from a photo lineup prior to trial and also made an in-court
identification.

                                                      3
aggravated robbery of Carol Hill, the especially aggravated kidnapping of Carol Hill,

and the aggravated rape of Carol Hill by anal penetration.

        At a subsequent sentencing hearing, appellant received the maximum sentence

for each offense.2 He was sentenced to twenty-five years for the especially

aggravated kidnapping, twenty-five years on each of the aggravated rapes, twenty

years for each aggravated robbery, and eight years for theft over $1,000. The

especially aggravated kidnapping sentence was ordered to be served concurrently to

the aggravated robbery of Carol Hill, but the remaining sentences were ordered

served consecutively for an effective sentence of 103 years.

        Appellant first argues that the separate convictions for especially aggravated

kidnapping and aggravated rape violate his due process rights. He contends that the

kidnapping was essentially incidental to the rape, and therefore, a separate conviction

is unconstitutional. We cannot agree.

        Appellant relies upon State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In

Anthony, the court recognized that due process of law will not permit a kidnapping

conviction where the detention of the victim is merely incidental to the commission of

another felony, such as robbery or rape. Id. at 306. In order to determine whether the

confinement, movement, or detention is significant enough in and of itself to warrant

an independent prosecution, the court must determine whether the defendant’s

conduct substantially increased the risk of harm over and above that necessarily

present in the accompanying felony. Id.

        Recently, our supreme court elaborated on the relevant considerations in

determining whether separate convictions for rape and kidnapping violate a

defendant’s due process rights. State v. Dixon, 957 S.W.2d 532 (Tenn. 1997). In

Dixon, the defendant accosted the victim on a well-lit sidewalk, assaulted her, and



        2
         For the Class A felonies, appellant was sentenc ed as a Range I standard offender. However,
because of his previous record, appellant was classified a Range II multiple offender for the remaining
convictions.

                                                    4
then dragged her into a vacant lot behind overgrown vegetation where he attempted to

sexually assault her. Id. at 533. In holding that the defendant’s convictions for

aggravated kidnapping and attempted sexual battery did not violate due process, 3 the

court first considered whether the movement or restraint was beyond that necessary

to consummate the accompanying sexual assault. Id. at 535. The supreme court also

found it relevant that the defendant’s movement or confinement of the victim: (1)

prevented the victim from summoning help; (2) lessened the defendant’s risk of

detection; or (3) created a significant danger or increased the victim’s risk of harm. Id.

          Applying those considerations to the instant case, we hold that appellant’s

conduct was sufficient to warrant separate convictions for the kidnapping and rape.

The confinement of the victim and the attendant movement was unnecessary to

consummate the rape. See id. The victim was accosted on the street in a well-

populated neighborhood and robbed of her personal belongings. She was then forced

into a waiting car, transported several blocks, and brutally raped. Neither confining

the victim in the car nor transporting her was requisite to the rape. Had appellant and

his companion so desired, they could have perpetrated the sexual assault on the

street.

          It is also apparent that the movement prevented the victim from summoning

help. Id. Appellant removed the victim from familiar surroundings on a public street

only a short distance from her home. Had the sexual offenses been committed on the

sidewalk, there would have been a far greater potential for the victim’s rescue. Also,

because appellant confined the victim in the car, any cries for help were likely

unheard.

          In addition, the movement lessened the appellant’s risk of detection. Id.

Appellant drove the car to a secluded location and pulled off the main thoroughfare



          3
          The defendant was also convicted of aggravated assault, but the court omitted it from the
Anthony analysis because it clearly was not incidental to either the aggravated kidnapping or attempted
sexua l battery. Dixon, 957 S.W.2d at 535.

                                                   5
into a dark alley. The possibility of discovery in that location was far less than in the

well-populated neighborhood where the victim knew many of the residents.

       Although the victim did not sustain serious injuries, we believe, as did the Dixon

court, that by lessening the risk of detection, appellant increased the risk of harm to

the victim.4 Id. Certainly the potential for harm was great since the perpetrators were

armed with a shotgun. All the relevant factors support separate convictions.

       Appellant’s case is significantly different from the scenario in Anthony in which

the confinement was incidental to the accompanying felony. Here, appellant’s

confinement of the victim cannot be considered incidental to the rape. See State v.

Michael Eugene Duff, No. 03C01-9501-CR-00008 (Tenn. Crim. App. at Knoxville,

February 8, 1996), perm. app. denied (Tenn. 1996) (affirming convictions for

aggravated kidnapping and aggravated rape where defendant moved victim from side

of road to dark parking lot of closed restaurant). As our supreme court stated,

Anthony is not meant to provide the rapist a free kidnapping merely because he also

committed rape. Dixon, 957 S.W.2d at 534. Accordingly, we find that the

confinement and movement of the victim supports an independent conviction for

especially aggravated kidnapping.

       Appellant contends that his two convictions of aggravated rape violate

principles of double jeopardy because they both occurred at the same time and

involved the same victim. He argues that only one conviction of aggravated rape was

appropriate under the circumstances. Appellant’s issue is without merit.

       While the double jeopardy clause of the Fifth Amendment generally provides

protection against multiple prosecutions and convictions, appellant’s argument

specifically implicates multiplicity, the protection against multiple punishments for the

same offense. State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996). The evil sought




       4
           The only injuries the victim suffered were an abrasion to her knee and a sprained ankle.

                                                     6
to be avoided in such cases is the improper division of conduct into discrete offenses,

thereby creating several offenses out of a single offense. Id. at 665.

       “Although separate acts of intercourse may be so related as to constitute one

criminal offense, generally rape is not a continuous offense, but each act of

intercourse constitutes a distinct and separate offense.” Id. At 664 (quoting 75 C.J.S.

Rape § 4 (1952 & Supp. 1995)). Additionally, both vaginal and anal intercourse are

separately defined by Tennessee Code Annotated section 39-13-501(7) as discrete

types of sexual penetration prohibited by Tennessee Code Annotated section 39-13-

502.

       Nevertheless, it is conceivable that separate acts of intercourse may be so

related as to constitute one criminal offense. Id. In order to ensure that sexual

offenses, such as those presented in appellant’s case, are not multiplicitous, the

following factors should be considered: (1) the nature of the act; (2) the area of the

victim’s body invaded by the sexually assaultive behavior; (3) the time elapsed

between the discrete conduct; (4) the accused’s intent, in the sense that the lapse of

time may indicate a newly formed intent to again seek sexual gratification or inflict

abuse; and (5) the cumulative punishment. Id. at 665. No single factor is

determinative of the issue.

       The two counts of aggravated rape in appellant’s indictment specified two

methods of sexual penetration: anal and vaginal. The victim’s testimony clearly

supports two separate acts. Initially, appellant instructed the victim to get on her

hands and knees in the backseat of the car. He positioned himself behind the victim

and penetrated her anally. The victim was forced to perform fellatio on the co-

defendant simultaneously. At some point, these acts stopped and appellant instructed

the victim to turn over, at which time he entered her vaginally. Considering that the

two acts involved differing body positions and that appellant invaded different areas of

the victim’s body each time, we consider the acts to be discrete. The two convictions

of aggravated rape are not multiplicitous.

                                             7
       Appellant also contends that the trial court erred in denying his request to

instruct the jury on the defense of necessity. He alleges the instruction was warranted

in the face of his own testimony that he was fearful of the armed co-defendant and

that after the robbery of Joseph Sims, he no longer wanted to participate. We agree

with the trial court’s ruling that there was no evidence to support the charge.

       It is incumbent upon a trial court to give the jury a complete charge of the law

based upon the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.),

cert. denied, 476 U.S. 1145, 106 S.Ct. 2261, 90 L.Ed.2d 706 (1986) (citation omitted).

With regard to necessity, the jury should be so instructed where admissible evidence

fairly raises the defense. State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App.

1994). The burden then falls on the state to prove beyond a reasonable doubt that

the defense does not apply. Id.; State v. Hood, 868 S.W.2d 744, 748 (Tenn. Crim.

App. 1993).

       The defense of necessity provides that criminal conduct is justified if: (1) the

person reasonably believes the conduct is immediately necessary to avoid imminent

harm; and (2) the desirability and urgency of avoiding the harm clearly outweigh,

according to ordinary standards of reasonableness, the harm sought to be prevented

by the law proscribing the conduct. Tenn. Code Ann. §39-11-609 (1991). The

defense of necessity is applicable in “exceedingly rare situations where criminal

activity is an objectively reasonable response to an extreme situation.” Tenn. Code

Ann. §39-11-609 Sentencing Commission Comments.

       In support of that defense, appellant testified that the aggression the co-

defendant showed during the perpetration of the first aggravated robbery indicated to

him that he would not go home alive. He testified that he was scared and before they

saw Ms. Hill, he told the co-defendant that he no longer wanted to participate in the

criminal enterprise. With regard to the rape, appellant testified that the co-defendant

told him “Come back here and get some.” He testified that the way the co-defendant

motioned the gun and “the look in his eye” scared him. Although expressing his fear

                                            8
of the co-defendant, appellant stated that he did not believe he would “blow his brains

out.”

        Such testimony fails to show that appellant was threatened with imminent

bodily harm or that the desirability and urgency clearly outweighed the harm of

committing the crime. Appellant never testified that the co-defendant threatened him

with bodily harm, or that he attempted to harm him. In contrast, his testimony

demonstrated that he was high on crack cocaine that night, had planned to commit

robberies in order to obtain more drugs, and participated voluntarily in the criminal

enterprise. As a result, the trial court was under no duty to charge the defense of

necessity. See State v. Scotty Davenport, No. 01C01-9611-CR-00477 (Tenn. Crim.

App. at Nashville, February 18, 1998).

        Our review of the record indicates that the proof presented at trial sustains each

of appellant’s convictions and that appellant was not entitled to an instruction on the

defense of necessity. The judgment of the trial court is affirmed in all respects.



                                                 _______________________________
                                                 William M. Barker, Judge


CONCUR:


____________________________
Joseph M. Tipton, Judge


____________________________
Curwood Witt, Judge




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