         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    August 14, 2001 Session

                STATE OF TENNESSEE v. MICHAEL J. MCCANN

                        Appeal from the Circuit Court for Lewis County
                           No. 5992C     Timothy L. Easter, Judge



                    No. M2000--2990-CCA-R3-CD - Filed October 17, 2001


The Defendant, Michael J. McCann, was convicted by a jury of one count of aggravated criminal
trespass on a habitation; two counts of assault; two counts of aggravated assault; one count of
aggravated sexual battery; and two counts of especially aggravated kidnapping. After a hearing he
was sentenced as a Range II multiple offender on the aggravated assaults, and as a Range I offender
on the remaining convictions, to an effective sentence of thirty years. In this appeal as of right, the
Defendant contends that his kidnapping convictions must be reversed and dismissed as violative of
his due process rights under State v. Anthony; that the trial court erred in not requiring the State to
elect between the proof presented in support of two sexual offenses charged; that the Defendant’s
two assault convictions should have been merged into one of the aggravated assault convictions; that
the prosecutor made improper and prejudicial remarks during closing argument; that his sentence
is excessive; and that he received ineffective assistance of counsel. We reverse and dismiss one of
the Defendant’s assault convictions. In all other respects, the judgment of the trial court is affirmed.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Joel Kachinsky, Summertown, Tennessee, for the appellant, Michael J. McCann.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Ron Davis, District Attorney General; and Jeffrey L. Long, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                            OPINION


                                              FACTS

        The victims Rebekah Guzy and David Williams testified that, at about two a.m. on
September 29, 1998, the Defendant, accompanied by Adam Graves and Craig Azcarate, kicked and
opened the front door of the house in which the victims were living. Ms. Guzy and Mr. Williams
were acquainted with the Defendant, and Mr. Williams had seen the Defendant the previous
afternoon in the parking lot of a store. At that time the Defendant asked Mr. Williams what he was
doing, and Mr. Williams responded that he was going home, and that he’d be drinking. At the time
the Defendant and his cohorts entered the house, Ms. Guzy was in the living room with Carlis
Howard; Mr.Williams was in the kitchen; and Jamie Brown was elsewhere in the house. When the
Defendant entered the residence, he pointed a revolver at Ms. Guzy; when Mr. Williams started to
enter the living room from the kitchen, the Defendant pointed the gun at Mr. Williams. The gun was
loaded with three bullets.

        The Defendant told Mr. Brown to join them in the living room; he told Mr. Howard and Mr.
Brown to sit on the couch. The Defendant demanded money, claiming that Mr. Williams owed him
fifty dollars. Ms. Guzy and Mr. Williams protested that they had none and did not owe him any.
After repeated demands, the Defendant told Ms. Guzy and Mr. Williams to undress and lie on the
floor. When they complied, the Defendant searched their clothes. The Defendant repeatedly pointed
the pistol at Ms. Guzy and Mr. Williams as they lay on the floor, at times holding it to their heads.
When Mr. Williams raised his head from the floor, Graves slapped him.

         At some point the Defendant told Mr. Howard and Mr. Brown that they could leave, and told
them not to say anything to anyone. The two men left. The Defendant began stroking Ms. Guzy on
her breasts and thighs as she lay naked on the floor, and told her she could “work out” the money.
When she refused, the Defendant got her up from the floor and took her into a back bedroom. He
gave the pistol to Azcarate and told him to watch Mr. Williams. In the bedroom, the Defendant
lowered his pants and again tried to talk Ms. Guzy into having sex with him. When she refused, she
testified, he pinned her arms to the bed and raped her. He did not, however, ejaculate, according to
Ms. Guzy.

        While the Defendant was in the bedroom with Ms. Guzy, Graves and Azcarate stayed with
Mr. Williams. At one point they tied his hands and legs with a microphone cord, and Graves and
Azcarate stepped out the back door for a short time. When they reentered the house, Mr. Williams
had managed to free one of his hands. Azcarate told Mr. Williams to get up and sit on the couch.
Mr. Williams complied. Azcarate then took Mr. Williams out onto the back porch, where they
remained for a few minutes. They then reentered the house. Azcarate walked down the hall and
yelled at the Defendant to “hurry up.”




                                                -2-
        Eventually the Defendant left the bedroom and the four men stood near the back door at the
end of the hall. Graves kept telling Mr. Williams to shake his hand. When Mr. Williams extended
his hand, Graves hit him in the face. Mr. Williams backed up three steps, and the three other men
then attacked him. Mr. Williams fell to the floor and the men kicked him in the body and head. The
Defendant kept threatening to kill Mr. Williams. The Defendant told Mr. Williams to get to his
knees; when Mr. Williams did so, the Defendant thrust the barrel of the pistol into Mr. Williams’
mouth. When Mr. Williams gagged, the Defendant told him that if he threw up, the Defendant
would kill him. The attackers dumped flour on Mr. Williams’ head, and the Defendant told him he’d
be back in fourteen days for his money. The three men then left, and Ms. Guzy and Mr. Williams
heard three gunshots a short time later.

        Mr. Williams and Ms. Guzy remained in the house for about an hour because Ms. Guzy was
afraid to leave. The men had told her during the attack that they had watched the house for some
time before coming in. Eventually Mr. Williams and Ms. Guzy drove to Ms. Guzy’s mother’s house,
and Ms. Guzy’s mother called the police. Mr. Williams and Ms. Guzy were subsequently treated
at the hospital where a rape kit was performed on Ms. Guzy. Mr. Williams was treated for a
fractured cheekbone, a fractured jawbone, and crushed sinus cavities.

      Testing done on evidence obtained from the rape kit indicated the presence of semen in Ms.
Guzy’s vaginal tract that had been deposited within twenty-four hours; however, there was not
enough sperm present in the sample to conduct DNA testing. Sperm found on Ms. Guzy’s
underwear matched Mr. William’s DNA profile.

        The Defendant testified, admitting that he had entered the house and demanded money from
Mr. Williams. He acknowledged pointing the gun at Mr. Williams but denied pointing it at Ms.
Guzy. He denied telling the victims to disrobe and lie on the floor. He repeatedly denied raping or
touching Ms. Guzy in a sexual manner. He stated that he told Ms. Guzy she could leave the living
room if she wanted to avoid seeing him “whip” Mr. Williams, and that she then went to a back room.
He explained that he later went to the room where Ms. Guzy was to “comfort” her by telling her they
weren’t going to kill Mr. Williams. The Defendant admitted kicking Mr. Williams once, but denied
putting the gun in his mouth. The Defendant admitted firing the pistol three times when he and his
cohorts left the house.

        For his role in this criminal episode, the Defendant was charged with one count of aggravated
rape; four counts of aggravated assault; one count of especially aggravated burglary; one count of
aggravated sexual battery; and two counts of especially aggravated kidnapping. The first count of
aggravated assault arose out of the Defendant’s pointing the pistol at Ms. Guzy and Mr. Williams
when he entered their residence. The second charge of aggravated assault arose out of Graves
striking Mr. Williams with his fist. The third charge of aggravated assault arose out of the Defendant
and his cohorts hitting and kicking Mr. Williams while he was on the floor. The fourth charge of
aggravated assault arose out of the Defendant thrusting the barrel of the pistol into Mr. Williams’
mouth. At the close of the State’s proof, the trial court reduced the second and third charges of
aggravated assault to assault, and reduced the charge of especially aggravated burglary to aggravated


                                                 -3-
burglary. The jury acquitted the Defendant of the aggravated rape charge and found him guilty of
the first and fourth charges of aggravated assault, two assaults, one aggravated criminal trespass
against a habitation, one aggravated sexual battery, and two especially aggravated kidnappings.


                      I. PROPRIETY OF ESPECIALLY AGGRAVATED
                                 KIDNAPPING CONVICTIONS
         In his first issue, the Defendant contends that his especially aggravated kidnapping
convictions cannot stand under the due process analysis set forth in State v. Anthony, 817 S.W.2d
299 (Tenn. 1991). In Anthony, our supreme court addressed the issue of “the propriety of a
kidnapping conviction where detention of the victim is merely incidental to the commission of
another felony, such as robbery or rape.” Id. at 300. In the subsequent case of State v. Dixon, 957
S.W.2d 532, 535 (Tenn. 1997), our supreme court set forth a two prong inquiry for the determination
of this issue. The first prong requires us to decide “whether the movement or confinement [of the
victim] was beyond that necessary to consummate” the accompanying felony. Id. If so, the second
prong requires us to decide “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
significant danger or increased the victim’s risk of harm.” Id. We note that, in Dixon, our supreme
court stated that “any restraint in addition to that which is necessary to consummate [the
accompanying felony] may support a separate conviction for kidnapping.” Id. (emphasis added).

         The Defendant was convicted of two counts of aggravated assault by display of a deadly
weapon: one count for pointing a pistol at both victims when he entered the house, and one count
for subsequently putting the barrel of the pistol in Mr. Williams’ mouth. Aggravated assault is
committed when the perpetrator intentionally or knowingly causes another to reasonably fear
imminent bodily injury, accomplished with a deadly weapon. See Tenn. Code Ann. §§ 39-13-
101(a)(2), -102(a)(1)(B). The Defendant was also convicted of two counts of assault: one count for
Graves hitting Mr. Williams in the face, and one count for the Defendant hitting and kicking him
thereafter. Assault is committed when the perpetrator intentionally, knowingly or recklessly causes
bodily injury to another. See id. § 39-13-101(a)(1). The Defendant was also convicted of one count
of aggravated sexual battery. Aggravated sexual battery is committed when an accused has unlawful
sexual contact with a victim where force or coercion is used to accomplish the act and the accused
is armed with a weapon. See id. § 39-13-504(a)(1). The Defendant committed aggravated sexual
battery upon Ms. Guzy when he stroked her breasts and the inside of her thighs while she lay naked
on the living room floor and he continued to hold the pistol. The Defendant was also convicted of
two counts of especially aggravated kidnapping by display of a deadly weapon: one count for each
victim. The elements of this crime are the knowing removal or confinement of another unlawfully
so at to interfere substantially with the other’s liberty, accomplished with a deadly weapon. See id.
§§ 39-13-302(a), -305(a)(1)

       The Defendant argues that his activities constituted a continuous attempted aggravated
robbery, and that any detention of the victims was incidental to that offense. However, the
Defendant was neither charged with, nor convicted of, attempted aggravated robbery. Accordingly,


                                                -4-
we decline his invitation to analyze the Anthony issue on that basis. Rather, we must determine
whether his restraint of the victims’ liberty was incidental to the accompanying assaults and/or, with
respect to Ms. Guzy, the aggravated sexual battery.

        We look first to the Defendant’s restraint of Mr. Williams. The Defendant’s initial
aggravated assault upon Mr. Williams consummated upon the Defendant entering the house and
pointing his gun at Mr. Williams. He followed this action with ordering Mr. Williams to disrobe and
lie naked on the floor. While Mr. Williams was thus immobilized, the Defendant continued to point
his gun at him, keeping him restrained on the floor. The restraint continued when the Defendant
took Ms. Guzy into the back room, handed the gun to Azcarate, and told Azcarate to watch Mr.
Williams. This restraint of the victim was beyond that necessary to commit the initial aggravated
assault, and was further not necessary or incidental to the subsequent assaults. Mr. Williams testified
that he was kept restrained for approximately thirty minutes while the Defendant had Ms. Guzy in
the back room, and the subsequent assaults did not occur until after the Defendant had returned to
the main part of the house. Thus, we turn to the second prong of the Dixon analysis: did the
confinement prevent Mr. Williams from summoning help; lessen the Defendant’s risk of detection;
or create a significant danger or increase Mr. Williams’ risk of harm? We have no trouble
concluding that forcing someone to lie naked on the floor at gunpoint both reduces the ability to
summon help and increases that person’s risk of harm, simply because such a position makes the
person an easier target to shoot and maim or kill. It is much more difficult to take evasive action
while lying on the floor than while standing or even sitting. Likewise, Mr. Williams’ ability to
summon help was decreased and his risk of harm was increased when he was tied up. Accordingly,
we hold that the Defendant’s especially aggravated kidnapping of Mr. Williams was not incidental
to any of the accompanying assaults upon him.

         We turn now to the confinement of Ms. Guzy. Again, the Defendant had already committed
his initial aggravated assault prior to ordering Ms. Guzy to undress and like naked on the floor. This
restraint was therefore not incidental to the aggravated assault upon her. Nor, in our opinion, was
it incidental to the aggravated sexual battery that commenced after the Defendant had ordered her
to disrobe and lie on the floor. The proof at trial indicated that the Defendant ordered the victims
to undress so that he could search their clothes for money after they told him that they didn’t have
any. He continued to hold them at gunpoint for some period of time while he repeated his demands
for money. He did not begin committing the aggravated sexual battery upon Ms. Guzy until it
became clear that he was not going to get any money, and he decided that he could get his money’s
worth by Ms. Guzy “working it out” with him. Thus, there was some period of time during which
the Defendant restrained Ms. Guzy at gunpoint which was not incidental to either the initial
aggravated assault, or to the subsequent aggravated sexual battery.

        Thus, we consider the second prong of the Dixon analysis: did the Defendant’s confinement
of Ms. Guzy on the living room floor prevent her from summoning help, lessen the Defendant’s risk
of detection, or increase her risk of harm? For the same reasons set forth above with respect to Mr.
Williams, we find that the Defendant’s actions in restraining Ms. Guzy both prevented her from
summoning help and increased her risk of harm. The restraint therefore supports a separate


                                                 -5-
conviction for the especially aggravated kidnapping of Ms. Guzy. Accordingly, we hold that the
Defendant’s convictions for especially aggravated kidnapping do not violate his due process rights
under Anthony and this issue is therefore without merit.

                                 II. ELECTION OF OFFENSES
        In his next issue the Defendant contends that the trial court erred by not requiring the State
to elect which proof it was relying on in support of the aggravated sexual battery charge. He
contends that some members of the jury may have convicted him of aggravated sexual battery based
upon his touching Ms. Guzy in the living room, and some of them may have convicted him of the
crime based on his conduct in the bedroom, thereby violating his constitutional right to a unanimous
verdict. See Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973) (finding that the right to a
unanimous jury verdict is “fundamental, immediately touching the constitutional rights of an
accused”). The State responds that it elected the offense upon which it was relying during its closing
argument.1

         In this case the State submitted proof of two episodes of conduct which would have
supported a conviction for aggravated sexual battery: when the Defendant touched Ms. Guzy’s
breasts and thighs as she lay naked on the living room floor while he held a pistol, and when he later
pinned her to the bed in the back room and, according to Ms. Guzy’s testimony, engaged in
intercourse. See Tenn. Code Ann. § 39-13-504(a)(1), (a)(3)(A). Where the proof at trial indicates
that the defendant has committed multiple instances of the charged crime against the victim, the
prosecution must elect the particular instance for which the conviction is sought. See State v.
Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001) (quoting State v. Brown, 992 S.W.2d 389, 391 (Tenn.
1991)). “The paramount importance of the election requirement is that it protects a defendant’s right
to a unanimous jury verdict under the Tennessee Constitution by ensuring that jurors deliberate over
and render a verdict based on the same offense.” Id. Accordingly, when the prosecution offers
evidence of multiple discrete acts, each of which would support a conviction of the charged offense,
the trial court should require the prosecution to elect which proof it is relying upon in seeking the
conviction. See Burlison, 501 S.W.2d at 804. In this case, the trial court failed to do so.

        Nevertheless, during his summation, the prosecutor did, in effect, elect which proof he was
relying upon in support of the aggravated sexual battery charge. At the beginning of his closing
argument, the prosecutor summarized each of the counts against the Defendant. With respect to the
aggravated sexual battery charge, the prosecutor stated, “Count 7, aggravated sexual battery, fondling
Rebekah on the floor in the front room while she was naked.” This Court has previously held that
a prosecutor’s closing argument may effectively serve as an election of offenses. See State v.
William Dearry, No. 03C01-9612-CC-00462, 1998 WL 47946, at *13 (Tenn. Crim. App., Knoxville,
Feb. 6, 1998). We find an effective election of offenses in this case, as well. Accordingly, this issue
is without merit.



         1
           The State also contends that the Defendant has waived this issue by failing to include it in his motion for new
trial. See Tenn. R .App . P. 3(e). Nevertheless, we cho ose to address this issue on its merits.

                                                           -6-
                         III. MERGER OF ASSAULT CONVICTIONS
        In his next issue the Defendant contends that his two convictions for simple assault should
have been merged with his conviction for the aggravated assault arising from his placing the pistol
in Mr. Williams’ mouth. The Defendant contends that Graves’s hitting Mr. Williams in the face;
the subsequent kicking of Mr. Williams by each of the three men; and the placing of the gun in Mr.
Williams’ mouth “was one continuing assault” and that the three convictions are therefore
multiplicitous. See State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996) (“Multiplicity concerns the
division of conduct into discrete offenses, creating several offenses out of a single offense.”) The
State disagrees.2

        Multiple convictions and/or punishments for the same offense violate the federal and state
constitutional prohibitions against double jeopardy. See U.S. Const. amend. V; Tenn. Const. Art.
I, § 10. In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), our supreme court established a
framework for determining whether a defendant has received multiple punishments for the “same
offense.” The reviewing court must consider (1) the statutory elements of the offenses, (2) the
evidence used to prove the offenses, (3) whether there were multiple victims or discrete acts, and (4)
the purposes of the respective statutes. Id. at 381.

         We agree with the Defendant that the two convictions of assault should be merged into a
single conviction. A defendant can commit assault in any of three ways: by intentionally, knowingly
or recklessly causing bodily injury to the victim; by intentionally or knowingly causing the victim
to reasonably fear imminent bodily injury; or by intentionally or knowingly causing physical contact
with the victim that a reasonable person would regard as extremely offensive or provocative. See
Tenn. Code Ann. § 39-13-101(a). In this case, both of the assaults with which the Defendant was
charged were based on the Defendant’s causing bodily injury to Mr. Williams. Both charges arose
out of a short period of time during which one of the perpetrators struck Mr. Williams in the face,
followed by all three perpetrators kicking Mr. Williams when he subsequently fell to the floor. That
is, both convictions arose out of a single attack. In State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App.
1994), the defendant attacked the victim in her residence with a knife, cutting her arm. When she
tried to flee, the defendant chased the victim outside and there cut her on the leg. The defendant was
convicted of two counts of aggravated assault. This Court reversed and set aside one of the
convictions on double jeopardy grounds, finding that the multiple stab wounds arose out of a single
act. Id. at 13. In setting aside one of the convictions, this Court noted, “we find nothing in the
[aggravated assault] statute to indicate that the legislature intended for defendants to be punished
separately for each blow or injury.” Id. We think the Pelayo analysis applies to the Defendant’s
dual assault convictions. Accordingly, we reverse his conviction of assault based on Count 3 of the
indictment and dismiss that charge.



         2
          The State also conten ds that the De fendant has w aived this issue for failure to raise it in his motion for new
trial. Neverthe less, we choo se to addr ess this issue on the merits. See Tenn. R . Crim. P. 52(b); State v. Epps, 989
S.W.2d 742, 74 5 (Tenn . Crim. App . 1998) (a pplying the p lain error do ctrine to add ress whether th e defenda nt’s dual
conviction s violated do uble jeop ardy princip les, even whe re the defend ant failed to raise the issue in the trial co urt.)

                                                             -7-
       We find, however, that the remaining assault conviction need not be merged into the
aggravated assault conviction. Applying the Denton analysis, we first note that each of these
offenses required an element that the other one did not. That is, the assault (as charged in this case)
required proof of bodily injury, whereas the aggravated assault (as charged in this case) did not. The
aggravated assault, on the other hand, required the use or display of a deadly weapon; the assault did
not. This initial determination therefore indicates that the two offenses should not be considered one
for double jeopardy purposes.

        Next, we consider the evidence used to prove the offenses. Clearly, the evidence relied upon
by the State to prove the assaults was different than that used to prove the aggravated assault. The
assaults were based on the attackers’ hitting and kicking Mr. Williams; the aggravated assault was
based upon the Defendant sticking a gun barrel in Mr. Williams’ mouth. This factor, too, supports
separate offenses. Similarly, the offenses were committed by discrete acts: a third factor weighing
in favor of two different crimes.

        Finally, a comparison of the purposes of the respective statutes reveals that both statutes are
aimed at prohibiting behavior which causes injury and/or fear of imminent injury. However, the
portions of the statutes charged in this case are aimed at different evils: attacking a fellow human
being with only one’s hands (or feet), and attacking a fellow human being with a deadly weapon.
The potential levels of harm inherent in each of these forms of attack are, generally speaking, vastly
different. We have no trouble concluding, then, that the legislature intended that a defendant who
uses both of these levels of attack, even on a single victim during a single episode, should be subject
to separate convictions and separate punishments. Accordingly, we find without merit the
Defendant’s contention that his convictions for assault and aggravated assault should be merged.

                             IV. IMPROPER SUMMATION BY STATE
        In his next issue the Defendant contends that the trial court should have granted him a
mistrial, or at least have issued a curative instruction, following a portion of the prosecutor’s closing
argument. We agree with the State that the Defendant has waived this issue because he did not
object at the time that the prosecutor made the allegedly improper remarks. See Tenn. R. App. P.
36(a); State v. Smith, 42 S.W.3d 101, 112 (Tenn. Crim. App. 2000). Moreover, the Defendant’s
contentions fail on the merits.

          During his summation, defense counsel argued that Graves and Azcarate were treated more
favorably by the State in the prosecution of these crimes than was the Defendant. Azcarate testified
at trial that he had pled guilty to especially aggravated burglary and aggravated assault in connection
with the attack on the victims, and received an effective sentence of thirteen years. The State
dismissed the charges against him for aggravated rape, three additional counts of aggravated assault,
aggravated sexual battery, and two counts of especially aggravated kidnapping. Graves testified that
he was facing the same charges as was the Defendant, but had not yet gone to trial or otherwise
resolved these charges. In response to the Defendant’s argument, the prosecutor stated:
                  And he talks about all this unequalness, about Mike McCann being
                  singled out. Who was the leader of this enterprise? Who had the gun


                                                  -8-
                when they came into the house? Who told the other two to go to the
                residence to begin with? Who kicked the door open? Who gave the
                orders to undress? Who fondled Rebekah? Who ordered her to the
                back room? Who forced her legs open, climbed on top of her, held
                her arms back and raped her? Who said he’d be back? Who said to
                get down because he’d fire shots? Who fired the shots? By his own
                admission, who ordered the other two to untie David? Who was in
                control? Who had seven convictions already? It’s time for his time
                of [sic] reign and [sic] terror to end, and I ask you to end it today.

It is the latter two sentences about which the Defendant complains.

       Trial courts have substantial discretionary authority in determining the propriety of final
argument, and although counsel is generally given wide latitude, trial judges must restrict any
improper commentary. See Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). Closing
arguments must be temperate, must be based upon evidence introduced during trial, and must be
relevant to the issues at trial. See State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). The State
should refrain from argument designed to inflame or incite the emotions of the jury. See Coker , 911
S.W.2d at 368.

       When a prosecutor makes improper comments during closing argument, we must determine
“whether the impropriety ‘affected the verdict to the prejudice of the defendant.’” State v. Bigbee,
885 S.W.2d 797, 809 (Tenn. 1994) (quoting Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)).
The factors to aid us in making this determination include:
               (1) the conduct complained of viewed in light of the facts and
               circumstances of the case;
               (2) the curative measures undertaken by the court and the
               prosecution;
               (3) the intent of the prosecutor in making the improper arguments;
               (4) the cumulative effect of the improper conduct and any other errors
               in the record; and
               (5) the relative strength and weakness of the case.

Id. (quoting State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984)). Furthermore, because the Defendant
waived this issue at trial, this Court will not grant relief on this issue unless the alleged prosecutorial
misconduct rises to the level of “plain error,” affecting a “substantial right” of the accused. See
Tenn. R. Crim. P. 52(b); State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994).

         In this case, the prosecutor’s reference to the Defendant’s prior convictions followed by an
entreaty that the jury end his “reign of terror” was improper argument. The Defendant’s prior
convictions had been admitted at trial for impeachment purposes only: not as substantive evidence
that he had a bad character, or as proof that he deserved to be convicted of the present charges. The
trial court should have issued a curative instruction sua sponte, but failed to do so. Nevertheless, we


                                                   -9-
do not think that this portion of the State’s argument was so inappropriate as to have affected the
jury’s verdict to the Defendant’s prejudice. The jury acquitted the Defendant of aggravated rape, one
of the most serious charges he faced, and convicted him of a lesser included offense of the charge
of aggravated burglary. Clearly, the jury was not determined to convict the Defendant at all costs.
The State’s case against the Defendant was strong, including testimony by both of his codefendants.
Although not raised on appeal, the evidence was more than sufficient to support the Defendant’s
convictions in this case. The cumulative effect of the improper argument and other errors in the
record is simply not so prejudicial as to require this Court to set aside the jury’s verdict. This issue
is without merit.

                                        V. SENTENCING
        The Defendant complains about his sentence, contending that the trial court erred in
classifying him as a Range II multiple offender with respect to two of his convictions, and in refusing
to apply any mitigating factors. The Defendant further contends that the trial court erred in ordering
partially consecutive sentences.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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). It is the Defendant’s burden to demonstrate that his sentence is improper. Id.

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).




                                                  -10-
        At the sentencing hearing the State introduced the presentence report and queried the
Defendant about his prior convictions.3 The Defendant admitted to having committed the four prior
felonies listed. The trial court, prosecutor and defense counsel each questioned the Defendant about
whether the four prior felonies had been committed on different days, as the presentence report was
unclear: two of the felonies list the date of event and the date of conviction as the same. The
remaining two felonies (sales of marijuana) list event dates of August 14, 1993 and September 10,
1993, with conviction dates of February 21, 1994. When asked by the trial court whether the two
event dates for these two felonies were correct, the Defendant replied, “They seem correct, yes, sir.”
The Defendant subsequently testified that he couldn’t specifically remember whether the marijuana
offenses occurred on different dates.

        The trial court determined the Defendant to be a Range II multiple offender for purposes of
sentencing him on the aggravated assault convictions. A defendant may be sentenced as a multiple
offender if he or she has received a “minimum of two (2) but not more than four (4) prior felony
convictions within the conviction class, a higher class, or within the next two (2) lower felony
classes, where applicable.” Tenn. Code Ann. § 40-35-106(a)(1). Aggravated assaults of the type
committed by the Defendant are Class C felonies. See id. § 39-13-102(d). The Defendant’s
marijuana convictions are Class E felonies. See id. § 39-17-417(g)(1). Thus, the Defendant’s prior
felonies render him eligible for multiple offender status as to the aggravated assault convictions.4

        However, to be considered separate “prior felony convictions,” the marijuana sales could not
have been committed “as part of a single course of conduct within twenty-four (24) hours.” Id. § 40-
35-106(b)(4). This is the reason for the trial court’s concern in determining whether the Defendant’s
sales of marijuana occurred on different days.

        The trial court concluded that the Defendant’s prior felonies arose from events occurring on
different days, in spite of some conflicting testimony from the Defendant. The Defendant now asks
us to second-guess the trial court’s finding of fact with respect to this issue. We decline to do so.
The trial court had not only the Defendant’s own testimony on which to base its decision, but the
presentence report, as well. As this court has previously noted, a presentence report is reliable
hearsay. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997). The presentence report in
this case indicates two different event dates for the two prior felony convictions at issue. Thus, we
hold that the evidence, while not without some ambiguity, is sufficient to support the trial court’s
determination that the Defendant is, beyond a reasonable doubt, a multiple offender with respect to
the aggravated assault convictions. Accordingly, this issue is without merit.


         3
           The presentenc e report lists the fo llowing prior convictions : three th efts up to $500; criminal trespassing;
assault; felony burglary of auto; three felony sales of marijuana; contributing to the delinquency of a minor; misdemeanor
escape; an d misdem eanor stalking .

         4
          The Defendant is not eligible for multiple offender status on the especially aggravated kidnapping or the
aggravated sexual battery convictions, because those are Class A and Class B felo nies, respectiv ely. See Tenn. Code
Ann. § 39-13-305(b)(1), -504(b). The Class E prior felonies are not within the next two lower felony classes of these
felonies and therefore do no t qualify the Defendant as a multiple offender w ith respect to these convictions.

                                                          -11-
         In sentencing the Defendant for the aggravated assault convictions, the trial court determined
that three enhancement factors applied: the Defendant has a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range; the Defendant
was a leader in the commission of an offense involving two or more criminal actors; and the crimes
were committed while the Defendant was on release status from a prior felony conviction. See Tenn.
Code Ann. § 40-35-114(1), (2), (13). The trial court found that no mitigating factors applied.
Accordingly, the trial court sentenced the Defendant to the maximum term of ten years on each of
the aggravated assault convictions.5 The trial court applied the same enhancement factors to the
especially aggravated kidnapping convictions, Class A felonies,6 and again applied no mitigating
factors. Accordingly, the trial court sentenced the Defendant to the maximum term of twenty-five
years7 on each of these convictions. The trial court applied the first and third of these three
enhancement factors, and no mitigating factors, to the aggravated sexual battery conviction, a Class
B felony. 8 Accordingly, the trial court sentenced the Defendant to a mid-range term of ten years9 on
this conviction.10

        The Defendant does not challenge the trial court’s application of the enhancement factors;
rather he complains that the trial court erred in failing to apply two mitigating factors. The
Defendant asserts that the trial court should have mitigated his sentences on the basis that the
Defendant, who was twenty-four years old at the time he committed these offenses, lacked
substantial judgment in committing the crimes because of his youth. See id. § 40-35-113(6). He
also asserts that, as to his especially aggravated kidnapping convictions, the trial court should have
considered as a mitigating factor that he voluntarily released the victims alive. See id. § 39-13-
305(b)(2).

        The record simply does not support a finding that the Defendant, because of his “youth,”
lacked substantial judgment in committing these crimes. This issue is without merit. However, we
agree with the Defendant that the trial court should have considered in mitigation of the Defendant’s
sentences on the especially aggravated kidnapping convictions, that he voluntarily released the
victims alive. The especially aggravated kidnapping statute mandates consideration of this factor
in sentencing. See id. We note, though, that the Sentencing Commission Comments to this


         5
             The Ra nge II sentenc e for a Class C felony is six to ten yea rs. See Tenn. Code Ann. § 40-35-112 (b)(3).

         6
             See Tenn. Code Ann. § 39-13-305 (b)(1).

         7
             The Range I sentence for a Class A felony is fifteen to twen ty-five years. See Tenn. Code Ann. § 40-35-
112(a)(1).

         8
             See Tenn. Code Ann. § 39-13-504 (b).

         9
             The Range I sentence for a Class B felony is eight to twelve ye ars. See Tenn. Code Ann. § 40-35-112 (a)(2).

         10
            On each of the Defendant’s remaining misdemeanor co nvictions for assault and aggravated c riminal trespass
on a habita tion, the trial cour t sentenced th e Defend ant to eleven mo nths, twenty-nine d ays at seventy-five p ercent, to
be served concurre ntly. The D efendant d oes not co mplain ab out these sente nces.

                                                            -12-
provision state that the court is required to consider “the voluntary safe release of the victim”
(emphasis added). Here, the proof established that both victims suffered physical and/or
psychological injuries from the crimes committed in conjunction with the kidnappings, which
required treatment following their release. Thus, although marginally applicable, we do not believe
that this mitigating factor would have been entitled to much, if any, weight. See State v. Winford
Lee Pipkin, No. 01C01-9605-CR-00210, 1997 WL 749430, at *8 (Tenn. Crim. App., Nashville, Dec.
4, 1997) (finding factor entitled to little, if any, weight where victim raped five times during course
of kidnapping and victim “suffered in several ways following the commission of the criminal acts.”)
Accordingly, the Defendant is entitled to no reduction in his sentences on the especially aggravated
kidnappings on the basis of this mitigating factor.

        Finally, the Defendant contends that the trial court erred in ordering his sentences for the two
aggravated assaults and the aggravated sexual battery to run consecutively to each other, for an
effective sentence of thirty years. The trial court ordered partial consecutive sentencing on the basis
that the Defendant is an offender whose record of criminal activity is extensive, and that he 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. See Tenn. Code Ann. § 40-35-
115(b)(2), (4). With respect to finding the Defendant a dangerous offender, the trial court further
found that an extended sentence was necessary to protect the public against further criminal activity
by the Defendant, and that the length of his sentence was reasonably related to the severity of the
crimes he committed. See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        The Defendant contends that his consecutive sentences cannot be justified “[c]onsidering the
nonviolent nature of [his] previous crimes and the disparity of the length of [his] sentence compared
to the sentences of his [c]odefendants.” We respectfully disagree. Including the convictions arising
from his attack on Ms. Guzy and Mr. Williams, the Defendant has already committed nineteen
crimes for which he has been convicted. While we agree with the Defendant that most of his prior
crimes were nonviolent, the instant attack makes clear that the Defendant has “graduated” to violent
crimes made even more dangerous by the use of a deadly weapon. The record supports the trial
court’s determination that the Defendant is an offender whose record of criminal activity is
extensive, and this factor alone is sufficient to support consecutive sentencing. See Tenn. Code Ann.
§ 40-35-115(b).

        We also agree with the trial court that the Defendant is a dangerous offender within the
meaning of the consecutive sentencing statute. He committed these crimes with a loaded pistol and
two cohorts in a manner that made it virtually impossible for the victims to escape or obtain help.
They were literally at the Defendant’s mercy while he attacked them in their own house in the middle
of the night and held them captive at gunpoint. When the Defendant did not get the money he
demanded, he resorted to physically assaulting Mr. Williams and sexually assaulting Ms. Guzy.
Moreover, the Defendant committed the instant crimes while on release status: making clear that
he cannot be trusted to restrain himself while at large. The Defendant’s acts were reprehensible and
society must be protected from further attacks of this nature. The effective length of the Defendant’s
sentence is “justly deserved in relation to the seriousness of the offense[s]” and “no greater than that


                                                 -13-
deserved” under the circumstances. See id. §§ 40-35-102(1), -103(2); State v. Lane, 3 S.W.3d 456,
460 (Tenn. 1999). Accordingly, we find no error in the trial court’s ordering partial consecutive
sentences for the Defendant, and this issue is therefore without merit.

        With respect to Graves’ and Azcarate’s sentences, Azcarate testified that he pled guilty to
aggravated assault and especially aggravated burglary, receiving sentences as a Range I standard
offender of three years and ten years incarceration, respectively. The record also contains a copy of
the judgments entered against Azcarate, indicating that the sentences were ordered to run
consecutively for an effective term of thirteen years. Additionally, pursuant to the Defendant’s
motion for consideration of post-judgment facts, the Defendant filed with this Court a copy of
judgments entered against Graves, indicating that he pled guilty to aggravated assault and especially
aggravated burglary and was sentenced as a Range I standard offender to three and nine years,
respectively, with the sentences to run concurrently.

         We acknowledge that one of the purposes of the Criminal Sentencing Reform Act of 1989
is to eliminate “unjustified disparity in sentencing.” See Tenn. Code Ann. § 40-35-102(2); State v.
Juan Jerome Bryant, No. 01C01-9805-CR-00217, 1999 WL 308649, at *5 (Tenn. Crim. App.,
Nashville, May 18, 1999). The Defendant has failed to demonstrate, however, how the differences
between his sentences and those of his codefendants are “unjustified.” There is nothing in the record
to inform this Court about the proof presented at the codefendants’ sentencing hearings, or about the
findings of fact underlying the sentencing courts’ determinations. Moreover, the Defendant’s role
in these crimes was significantly greater than that of Graves or Azcarate. Based on the information
before us, we decline to find that the Defendant is entitled to have his sentences reduced on the basis
of the sentences his codefendants received. This issue is without merit.

                       VI. INEFFECTIVE ASSISTANCE OF COUNSEL
        Finally, the Defendant complains that he received ineffective assistance of counsel at trial.
However, the Defendant failed to raise this issue in his motion for new trial. Accordingly, this issue
is waived on direct appeal. See Tenn. R. App. P. 3(e); State v. Slater Belcher, No. 03C01-9608-CC-
00299, 1997 WL 749392, at *6 (Tenn. Crim. App., Knoxville, Nov. 26, 1997). “Moreover, we have
previously warned defendants and their counsel of the dangers of raising the issue of ineffective
assistance of trial counsel on direct appeal because of the significant amount of development and fact
finding such an issue entails.” Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999).
To be successful on a claim of ineffective assistance of counsel, a defendant must prove by clear and
convincing evidence that his counsel’s performance was deficient in some way, and that the deficient
performance actually prejudiced the defense. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
Here, the Defendant failed to raise the issue in his motion for new trial and was therefore in no
position to present proof of his lawyer’s performance at the hearing on that motion. Given that we
have no findings of fact from the trial court before us on this issue, it is inappropriate for us to
consider the issue. See Belcher, 1997 WL 749392, at *6. However, the Defendant may raise this
issue in an appropriate post-conviction proceeding if he is so inclined. Id.




                                                 -14-
                                       CONCLUSION
        The Defendant’s conviction for assault on Count 3 of the indictment is reversed and the
judgment imposing sentence thereon is vacated. In all other respects, the judgment of the trial court
is affirmed.




                                              ___________________________________
                                              DAVID H. WELLES, JUDGE




                                                -15-
