        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                           FILED
                          AT KNOXVILLE                   August 9, 1999

                                                        Cecil Crowson, Jr.
                        MAY 1999 SESSION               Appellate C ourt
                                                           Clerk




STATE OF TENNESSEE,            )
                               )
           Appellee,           )   C.C.A. No. 03C01-9805-CC-00181
                               )
vs.                            )   Jefferson County
                               )
JASON CROSS,                   )   Honorable Rex Henry Ogle
                               )
           Appellant.          )   (First Degree Murder, Aggravated
                               )   Kidnapping)
                               )

FOR THE APPELLANT:                 FOR THE APPELLEE:

EDWARD C. MILLER                   JOHN KNOX WALKUP
Public Defender                    Attorney General & Reporter
P.O. Box 416
Dandridge, TN 37725                TODD R. KELLEY
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   ALFRED C. SCHMUTZER, JR.
                                   District Attorney General
                                   125 Court Avenue, Suite 301-E
                                   Sevierville, TN 37862

                                   JAMES L. GASS
                                   Assistant District Attorney General
                                   125 Court Avenue, Suite 301-E
                                   Sevierville, TN 37862




OPINION FILED: _____________


AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                        OPINION

              The defendant, Jason Cross, appeals from his Jefferson County

Circuit Court conviction of first degree murder and aggravated kidnapping. A jury

found him guilty of one count of premeditated first degree murder of the victim,

Jamie Mills, a thirteen-year-old girl, see Tenn. Code Ann. § 3913-202 (a)(1) (1997),

and one count of first degree murder of the same victim committed during the

perpetration of kidnapping her. See Tenn. Code Ann. § 39-13-202 (a)(2) (1997).

The jury also convicted the defendant of the aggravated kidnapping of the victim.

See Tenn. Code Ann. § 39-13-304 (a)(3)(1997). The trial court imposed a conviction

and a life sentence on the felony murder count but entered no judgment of

conviction on the premeditated murder count. It imposed a twelve-year sentence

for aggravated kidnapping, to run consecutively to the life sentence. In this appeal,

the defendant raises the following issues: Whether

              1. The evidence was sufficient to support the convictions;

              2. The trial court erred in not suppressing the defendant’s confession;

              3. The felony murder count should have been dismissed because

       aggravated kidnapping, the predicate felony for the felony murder, is not

       listed in the felony murder statute;

              4. The trial court erred in failing to grant a judgment of acquittal as to

       felony murder because the kidnapping was incidental to the planned killing;

              5. Defendant should have been allowed to offer expert testimony

       about his diminished capacity;

              6. The trial court erred in allowing hearsay statements that were made

       by an indicted co-defendant who was not on trial;

              7. The district attorney improperly argued matters outside the record;

       and

              8. Consecutive sentences were improper.

Based upon oral arguments and this court’s review of the record, the briefs, and the

applicable law, we affirm the judgment of the trial court.




                                          2
             In the light most favorable to the state, the evidence showed that on

the morning of June 5, 1996 the defendant borrowed Danny Guinn’s green Ford

Escort. At about 7:30 pm on that evening, the victim came to the home of Charlie

Williams and asked to use the telephone. She stated she wanted to get a ride to

New Market, but the “number” she called hung up on her. She was excited and

upset and left the Williams house when she heard car tires squalling out on the

road. Williams watched her walk down the road. Later that evening, the defendant

drove the Ford back to the Guinn house. He had blood on his hands and a silver-

colored knife in his pocket. He explained the blood by stating he had to kill a man

over Guinn’s “beeper.” The two men, along with two women who were present at

the Guinn home, went to get beer and stopped along the road, where the defendant

threw the knife away.



              Meanwhile, Archie Mitchell, Roger Spencer, and several other persons

accompanying them entered the police station. Mitchell was upset, agitated and

stated that he had witnessed the defendant stab a girl. He described the murder

location at a railroad track near a “tattoo place” and said that the defendant drove

away from the scene in a green Ford Escort. Officers went to the described location

and found the body of Jamie Mills. She had suffered a deep stab wound in the

chest.



              Later, when the defendant and Guinn returned to Guinn’s house in the

green Ford and found police officers present, the defendant jumped from the car

and ran away. Guinn informed the officers that the defendant had been in the car

and had fled upon seeing the officers. Sometime later, during the early morning

hours of June 6, the defendant appeared at the home of Michael Smith. The

defendant had blood on him and told Smith he was running from the law. A

member of Smith’s family told the police that the defendant was at the Smith home,

and officers arrived and arrested the defendant.




                                         3
              After the defendant was taken into custody and advised of his rights,

Tennessee Bureau of Investigation Agent Steve Richardson took a written

statement in which the defendant confessed to killing the victim. He stated that he,

Mitchell and Spencer picked the victim up around 1:00 pm on June 5. They bought

beer and spent most of the day drinking and driving around. Eventually they went

to Stanley Brown’s house to buy marijuana, but Brown became angry because

Jamie Mills was in the car. They took her up the road and let her out. When the

men returned to Brown’s house, Brown told them that he would pay them “one

ounce of pot to scare Jamie really bad.” Brown stated that she had been “running

her mouth” and giving narcotics information to the police. The defendant and his

companions agreed to scare the victim.



              The men picked up the victim, obtained more beer, smoked marijuana,

and went to a place beside the railroad track “behind the tattoo place in Jefferson

City.” The men and the victim got out of the car. Mitchell asked the victim if she was

wearing a wire, and she said “no.” Mitchell ripped a blue star off of the victim’s tee

shirt. Then, Mitchell and the defendant made the victim sit down and began yelling

at her about being a “snitch.” Mitchell pulled the defendant aside and said they

should “get rid of her.” The defendant “walked over the top of her and stabbed

Jamie in the chest . . . with a butcher knife. Jamie gripped her chest and yelled real

loud.”



              Accompanied by Mitchell and Spencer, the defendant drove the green

Ford to Guinn’s house. In his statement, the defendant admitted to throwing the

knife away. He said, “I had intentions of scaring the girl because I thought she was

a snitch. I got carried away and stabbed her.” After giving his statement, the

defendant directed the officers to the place where they recovered the blood-

smeared knife.



              A pathologist testified that, although the victim suffered some



                                          4
superficial scratches and two non-consequential knife wounds in her abdomen area,

the fatal wound was a knife stab which tore through her chest, heart and lungs and

stopped just before the point of the knife exited through the skin in her back. The

victim died within a minute to a minute and a half after receiving this wound. The

pathologist testified the wound was consistent with a wound that could be made by

the knife which the defendant had thrown away.



              Other forensic evidence established that the victim’s blood was

consistent with blood stains found on the knife and on the keys and the driver’s side

upholstery of the green Ford. Furthermore, a blue cloth star found in the fence row

behind Guinn’s house matched a tear in the victim’s tee shirt.



              Based upon the above evidence, the jury convicted the defendant of

both premeditated and felony murder and of aggravated kidnapping. The trial court

imposed a conviction of felony murder and aggravated kidnapping.



                            1. Sufficiency of the Evidence



              In his first issue, the defendant argues that the evidence fails to

support his felony murder and aggravated kidnapping convictions, as well as the

jury’s finding of guilt of premeditated murder. We disagree.



              It is well established that a jury verdict, approved by the trial judge,

accredits the testimony of the witnesses for the state and resolves all conflicts in

favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.

1978); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the

state is entitled to the strongest legitimate view of the evidence and all reasonable

or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 836 (Tenn. 1978).




                                          5
              Moreover, a verdict against the defendant removes the presumption

of innocence and raises a presumption of guilt on appeal, State v. Grace, 493 S.W.

2d 474, 476 (Tenn. 1973); Anglin v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App.

1977). The defendant has the burden of overcoming this presumption on appeal.

State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).



              Most significantly, where the sufficiency of the evidence is challenged,

the relevant question for an appellate court is whether, after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2782 (1979); Tenn R. App. P. 13. See also,

State v. Williams, 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings based

on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842

(Tenn. Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict

one of a crime. State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).



              In pertinent parts, the Code defines the relevant offenses as follows:

              (a) First degree murder is:
       (1) a premeditated and intentional killing of another;
       (2) a killing of another committed in the perpetration of or attempt to
       perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
       kidnapping, aggravated child abuse or aircraft piracy;
       ...
              (b) No culpable mental state is required for conviction under
       subdivision (a)(2) . . . except the intent to commit the enumerated offenses
       or acts in such subdivision[].

Tenn. Code Ann. § 39-13-202 (1997) (amended 1998).

               (a) Aggravated kidnapping is false imprisonment, as defined in § 39-
       13-302, committed:
       ...
       (3) with the intent to inflict serious bodily injury on or to terrorize the victim or
       another. . . .

Tenn. Code Ann. § 39-13-304.

             (a) A person commits the offense of false imprisonment who
knowingly
      removes or confines another unlawfully so as to interfere substantially with
      the other’s liberty.

Tenn. Code Ann. § 39-132-302 (1997).


                                            6
              As to the felony murder and aggravated kidnapping convictions, the

defendant argues there is insufficient evidence of false imprisonment. He maintains

that the victim voluntarily accompanied the men and that she was stabbed

immediately after she was told to sit down. However, in the light most favorable to

the state, the three men took the victim to an isolated location where they intended

to frighten her “really bad.” They demanded to know if she was wearing a “wire,”

and Mitchell ripped her shirt. They “made Jamie sit down, and [they began] yelling

at her and calling her a snitch.” They then walked back to the car and made the

victim sit down again. After a discussion between Mitchell and the defendant, the

defendant fatally stabbed the victim.



                 This evidence supports a finding that the defendant not only

knowingly removed or confined the victim unlawfully so as to substantially interfere

with her liberty, but also that he intended to terrorize her during the confrontation at

the railroad tracks. We believe this evidence provided the jury an ample basis for

concluding that the defendant committed aggravated kidnapping before and while

the act of homicide was contemplated and carried out.          As such, the evidence

supports the aggravated kidnapping and felony murder convictions.



              Furthermore, the jury was justified in finding the defendant guilty of

premeditated murder.



              “Premeditation involves a previously formed design, or actual intention

to kill.” State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1993) (quoting Lewis v. State,

40 Tenn. 127, 147-48 (1859)) (italics added in Brown). It is the process “of thinking

about a proposed killing before engaging in the homicidal conduct.” Id. at 541.

“[N]o specific period of time need elapse between the defendant’s formulation of the

design to kill and the execution of that plan . . .” Id. at 543. Premeditation presents

a question for the jury to decide, State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App.

1993), and “the cases have long recognized that the necessary elements of first-



                                           7
degree murder may be shown by circumstantial evidence.” Brown, 836 S.W.2d at

541; see also Bullington, 532 S.W.2d 556, 560 (Tenn. 1976); State v. Carter, 970

S.W.2d 509, 516 (Tenn. Crim. App. 1997). Thus, premeditation may be inferred

from the circumstances surrounding the killing. Gentry, 881 S.W.2d at 3.



              The evidence shows that the defendant and Mitchell discussed the

victim’s fate, and the defendant had the opportunity to contemplate the killing before

walking up behind a defenseless child and stabbing her with enough force that the

knife all but exited through her back. Through the recording of the jury’s verdict on

a standard judgment form which pointedly does not impose a conviction for this

offense, the trial court essentially merged the jury’s verdict of premeditated first

degree murder into the conviction of felony murder. State v. Fredrick Sledge, No.

02C01-9405-CR-00089, slip op. at 19 (Tenn. Crim. App., Jackson, Nov. 24, 1997)

(“[A] merger of the counts amounts to nothing more than a procedural assurance

that the record reflects only one judgment of conviction while also preserving the

factual findings for both counts.”), perm. app. granted (Tenn., Mar. 1, 1999). Had

we any reason to reverse the felony murder conviction, we would be imposing the

alternative conviction of premeditated first degree murder. Id.; see Tenn. Code

Ann. § 40-18-111 (1997).



                  2. Failure to suppress the defendant’s confession



              The defendant assigns as error the trial court’s failure to suppress the

defendant’s pretrial confession. The defendant moved for suppression in a pretrial

motion and argued that the defendant’s warrantless arrest was unsupported by

probable cause and that his resulting confession was, therefore, inadmissible.



              The trial court conducted a suppression hearing, at which Agent

Richardson testified that Mitchell came to the police department and stated that he

had seen the defendant stab a young girl at a described location behind the tattoo



                                          8
parlor, near the railroad track. Mitchell indicated that the defendant was driving a

green Ford Escort. The police found the victim’s body in the condition and in the

location that Mitchell reported. Independently of the murder investigation, the police

had learned that the defendant was located at Michael Smith’s residence. The

police went to Smith’s house with the owner’s consent and arrested the defendant.



              Additional information about the defendant’s link to the murder

emerged at trial. When Mitchell visited the police department to report the crime,

he was upset, agitated, and was accompanied by Spencer and a number of other

people. Independently of the on-going investigation on the night of June 5-6, 1996,

the police knew that the defendant had been using Danny Guinn’s green Ford

Escort. Also, members of Guinn’s household or social company had reported that

the defendant had come to the Guinn house that night under suspicious

circumstances. When the police arrived at Smith’s house, blood was visible on the

defendant’s person, and he initially lied about his identity.



              A trial judge’s factual findings on a motion to suppress have the weight

of a jury verdict and are conclusive on appeal unless the evidence preponderates

against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Tuttle, 914

S.W.2d 926, 931 (Tenn. Crim. App. 1995); State v. Woods, 806 S.W.2d 205, 208

(Tenn. Crim. App. 1990). In reviewing a trial court’s denial of a suppression motion,

this court may consider not only the evidence presented at the suppression hearing,

but also the evidence presented at trial. State v. Henning, 975 S.W.2d 290 (1998).

              Mitchell was agitated and upset when he came to the police

department. He came with Spencer and in the company of family and friends. He

imparted three vital pieces of information -- that the defendant fatally stabbed a

young girl, that the killing occurred on the tracks near a certain tattoo place, and that

the defendant drove away in a green Ford Escort. This information was confirmed

by finding the girl in the specified location, killed by an apparent stabbing, and by

police obtaining knowledge that the defendant had Guinn’s green Escort on that



                                           9
evening.



              The defendant argues that, because the police knew that Mitchell and

Spencer were not credible, the “veracity” element necessary to attribute probable

cause to an informant’s tip was not satisfied. See State v. Jacumin, 778 S.W.2d

430, 432, 436 (Tenn. 1989) (as standard for measuring probable cause, court

adopted “Aguilar and Spinelli” two-prong test -- “basis of knowledge” prong and

“veracity” prong); State v. Pulley, 863 S.W.2d 29, 31-32 (Tenn. 1993) (Jacumin two-

prong test applied to analysis of information supplied by tipster or confidential

informant.) Additionally, he argues, without citation to authority, that because the

arresting officer was not identified in the record, probable cause could not be based

upon that officer’s knowledge.



              First, we are not persuaded by the defendant’s Jacumin argument.

The basis of knowledge of Mitchell, the informant, was his presence at the scene

of the crime.    Although the defendant does not challenge the basis of the

informant’s knowledge, the information of an eye-witness, reported at or near the

time of the incident, lends credence to the account. Pulley, 863 S.W.2d at 32.

Also, “[t]he corroboration of several of the details of the reports, such as the identity

of the [perpetrator], the description of the car, and the general location of the

incident, support[s] the informant’s credibility.” Id. In the present case, independent

investigation by the police corroborated Mitchell’s information about the location of

the homicide, the gender and the age of the victim, the method of killing the victim,

and the defendant’s departure from the scene in a green Ford Escort. See State

v. Simpson, 968 S.W.2d 776, 782 (Tenn. 1998) (“A showing that the informant’s

data is reliable may satisfy the credibility prong.”) (citing State v. Ballard, 836

S.W.2d 560, 562 (Tenn. 1992)). Therefore, even if we assume there is a basis in

the record for impugning Mitchell’s credibility,1 the record nevertheless supports the


       1
        The defendant’s claims of illegal arrest hinge largely upon his argument
that two local officers knew that Mitchell and Spencer were not credible. We are
not convinced that the defendant made a showing of this evidence. His “proffer”

                                           10
legality of the arrest based upon the tip being the genesis of probable cause.



              Furthermore, the legality of the arrest is supported by information in

addition to Mitchell’s tip. The defendant fled from an imminent confrontation with

the police. Flight to avoid apprehension in the face of law enforcement officers has

been held to be relevant because it tends to “show guilt, consciousness of guilt, or

knowledge.” Buckingham v. State, 540 S.W.2d 660, 665 (Tenn. Crim. App. 1976);

Mitchell v. State, 3 Tenn. Crim. App. 153, 161, 458 S.W .2d 630, 633 (1970). In fact,

such evidence may be considered by the trier of fact “as one of a series of

circumstances from which guilt may be inferred.” State v. Harris, 839 S.W.2d 54,

74 (Tenn. 1992); State v. Zagorski, 701 S.W.2d 808, 813 (Tenn. 1985).



              Moreover, the officers went to the Smith residence with, at least, a

reasonable suspicion the defendant committed the murder, and their encounter with

the defendant further enhanced their knowledge of the defendant’s culpability,

before the arrest was effected. See Simpson, 968 S.W.2d at 780, 783. When the

officers arrived, the defendant gave a false name, and the homeowner then gave

the police the defendant’s correct name. Also, significantly, blood was visible on the

defendant’s person. The arrest that was then effected was amply supported by

probable cause.



              Next, we agree with the defendant that, although Mr. Smith testified

and described the defendant’s arrest, the record does not identify the officers who

came to the Smith house and made the arrest. However, this lapse in the proof is

inconsequential. The lawfulness of an investigative detention or an arrest does not

depend upon the detaining or arresting officers knowing the “specific facts which led



consisted of an unsigned “stipulation.” Although the court received the
stipulation which stated that the officers, were they present, would testify that
Mitchell and Spencer were untruthful and unreliable, the prosecutor stated that
he did not know what the officers would say if presented as witnesses, and the
trial court did not indicate the weight he placed upon the “proffered” information.
However, assuming that this information was before the trial court, the evidence
fails to preponderate against the trial court’s findings and conclusion.

                                         11
their colleagues to seek their assistance.” United States v. Hensley, 469 U.S. 221,

231, 105 S. Ct. 675, 681 (1985).



              Moreover, we believe that the confession was admissible even if the

defendant, at the time he confessed, was being held in violation of the Fourth

Amendment. The confession was not “obtained by exploitation of [any] Fourth

Amendment illegality.” State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996).

In Huddleston, our supreme court adopted the “fruit of the poisonous tree” analysis

to determine whether a confession taken during a Fourth-Amendment-deficient

custody is “‘sufficiently an act of free will to purge the primary taint of the unlawful

invasions.’” Id. (quoting Brown v. Illinois, 422 U.S. 590, 598, 95 S. Ct. 2254, 2259

(1975) (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416

(1963)).   Our supreme court utilized the following Brown v. Illinois factors in

analyzing the issue: “(1) the presence or absence of Miranda warnings; (2) the

temporal proximity of the arrest and the confession; (3) the presence of intervening

circumstances; and finally, of particular significance, (4) the purpose and flagrancy

of the official misconduct.” Huddleston, 924 S.W.2d at 674-75; see Brown, 422

U.S. at 603-04, 95 S. Ct. at 2261-62.



              In the present case, the defendant was twice given the Miranda

warnings before he gave a statement to the police. Moreover, “temporal proximity”

supports the validity of the confession. There were no “intervening circumstances,”

and this factor weighs in favor of the defendant. See Huddleston, 924 S.W.2d at

675. However, the purpose and lack of flagrancy of any violation weighs heavily in

favor of the state. Unlike the police in Huddleston, the police in the present case

had knowledge, or at least a good faith belief, that probable cause. Accordingly,

three of the four factors support the trial court’s denial of the suppression motion.

Had there been a Fourth Amendment violation in this case, the state has carried its

burden in showing that the confession would be admissible nevertheless.

See Huddleston, 924 S.W.2d at 675.



                                          12
              Thus, we conclude that the defendant’s confession was properly

admitted into evidence.



3. The absence of “aggravated kidnapping” as one of the felonies enumerated in
                          the felony murder statute


              Tennessee Code Annotated section 39-13-202(a)(2), as it was worded

at the time of the homicide in the present case, provided that first degree murder

includes a killing of another committed in the perpetration or attempt to perpetrate

“any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,

aggravated child abuse or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2)

(1997) (amended 1998) (emphasis added). The defendant urges that the felony

murder count in his indictment should be dismissed because the enumeration of

predicate felonies does not include aggravated kidnapping.



              We reject this interpretation of the statute. The plain intent of the

legislature in referring to various predicate felonies such as arson, robbery, burglary

and kidnapping is to refer to the crime generically, and the generic reference

embraces all of the particular offenses that fit within the category. For instance, the

Code proscribes kidnapping, aggravated kidnapping and especially aggravated

kidnapping within a chapter part entitled “Kidnapping and False Imprisonment.” See

Tenn. Code Ann. §§ 39-13-301, 303-05 (1997). Robbery, aggravated robbery and

especially aggravated robbery are all contained within the rubric “Robbery,” see

Tenn. Code Ann. §§ 39-13-401--03 (1997), and the same arrangement exists for

the various grades of “arson” and “burglary.” See Tenn. Code Ann. §§ 39-14-301--

02; §§ 39-14-401--04 (1997). It would be absurd to suppose that the legislature

intended that only the least grades of these various offenses could serve as

predicates for felony murder convictions.       The legislature specified particular

offenses only when it wished to utilize a higher grade of a given offense as a

predicate felony; hence, to serve as a predicate felony, murder must be first degree

murder and child abuse must be aggravated. Tenn. Code Ann. § 39-13-202(a)(2)



                                          13
(1997) (amended 1998). Otherwise, with respect to kidnapping, the offense now

before us, felony murder is indicated by the perpetration or attempt to perpetrate

“any . . . kidnapping,” including aggravated kidnapping. Tenn. Code Ann. § 39-13-

202(a)(2) (1997) (emphasis added).



              4. Invalidity of felony murder conviction based upon
            the incidental relationship of the kidnapping to the homicide


              In his next issue, the defendant argues that the trial court should have

granted his motion for acquittal on the felony murder count because the aggravated

kidnapping, as the predicate felony, was merely incidental to the homicide. Relying

upon State v Anthony, 817 S.W.2d 299 (Tenn. 1991), the defendant argues that,

not only was the kidnapping incidental to the murder, but the kidnapping could not

increase the risk of harm to the victim because the resulting crime was murder.



              In Anthony, the supreme court established the guidelines for

determining whether a defendant may be convicted of kidnapping and another

felony based upon a single criminal episode. Anthony was a consolidation of two

cases, and in both, the defendants robbed business establishments.               Both

defendants forcibly confined employees of the businesses they robbed by requiring

them to remain in the same location or to move to a different location within the

business establishments.      Both defendants were convicted of robbery and

kidnapping offenses.



              In determining whether separate convictions were proper, the supreme

court looked to “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.” Anthony, 817 S.W.2d at 306.




                                         14
              More recently, in State v. Dixon, 957 S.W.2d 532, 534 (Tenn. 1997),

the supreme court stated that, in determining whether separate convictions may

stand, the trial court must first consider “whether the movement or confinement was

beyond that necessary to consummate the [sexual offense].” Dixon, 957 S.W.2d

at 535. In this regard, “it is the purpose of the removal or confinement and not the

distance or duration that supplies a necessary element of aggravated kidnapping.”

Dixon, 957 S.W.2d at 535. If the additional movement or confinement was beyond

that necessary to consummate the offense, the court must then inquire whether that

“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.” Dixon, 957 S.W.2d at 535.



              As charged in the indictment, especially aggravated kidnapping is

false imprisonment for the purpose of terrorizing the victim or another. See Tenn.

Code Ann. § 39-13-304(a)(3) (1997). False imprisonment is the knowing removal

or confinement of another “unlawfully so as to interfere substantially with the other’s

liberty.” Tenn. Code Ann. § 39-13-302(a) (1997).



              The defendant emphasizes the fact that the victim voluntarily left and

rode around with the defendant and his companions and was then confined only to

the extent necessary to kill her. Therefore, he posits separate convictions cannot

stand. On another level, the defendant seems to be suggesting that we should

extrapolate from Anthony a determination that a felony murder conviction is

impermissible when the predicate felony is incidental to the homicide.



              We disagree that Anthony bars separate convictions on the facts of

this case. The defendant and his companions decided to terrorize the victim, and

after they took her to a remote location, they proceeded to do just that, by yelling

and screaming at her and accusing her of “snitching.” She was detained, or

confined, by being forced to sit down twice in the presence of three men who were



                                          15
verbally abusing, if not threatening her. Based upon the defendant’s confession,

aggravated kidnapping had already occurred and was ongoing when the defendant

first decided to kill the victim. This is not a case where the movement of the victim

to a more remote location was accomplished in order for the accused to carry out

his ultimate criminal intent. Rather, the record supports a finding that in this case

the kidnapping occurred prior to formation of the intent to commit the ultimate crime

of murder.



              Thus, the evidence clearly demonstrates that the removal and

confinement were not incidental to the homicide; rather the defendant’s actions

were the proper basis for separate convictions of aggravated kidnapping and

murder. See Dixon, 957 S.W.2d at 533 (separate convictions of aggravated

kidnapping, aggravated assault and attempted sexual battery were upheld where

the defendant assaulted the victim on sidewalk then dragged her behind bushes in

vacant lot and attempted sexual assault). Neither the first degree murder nor the

aggravated kidnapping conviction need be abated. Given our view of the evidence,

we need not fathom any extrapolated argument that a felony murder conviction is

not permissible when its predicate felony is incidental to the homicide.



         5. Trial court’s disallowance of testimony from the defendant’s
        expert witness on the issue of the defendant’s diminished capacity


              At a pretrial hearing, the defendant and the state argued the

admissibility of testimony of Dr. Eric Engum, an expert witness the defendant

proposed to call in order to establish his “diminished capacity” to form criminal

intent. The trial court agreed with the state that the defendant could not use the

expert witness to show that the defendant had “diminished capacity because of

personality disorders or things like this,” and the trial court limited the expert’s

testimony to an opinion about the influence of any alcohol or drugs which the

defendant may have used prior to the homicide.




                                         16
                Doctor Engum is a clinical neuropsychologist and forensic

psychologist. The defendant made no live-witness proffer of the proposed evidence,

but he did offer, and the court received, Dr. Engum’s thorough, written report, which

was based upon a psychological screening interview and an extensive battery of

tests. It revealed the sad history of a young man, a tenth-grade drop-out, whose

childhood was marred by sexual abuse at the hands of his older brother, chronic

academic failure, negligible parenting, chemical abuse, and repeated placements

in juvenile institutions. At the age of twenty-three at the time of sentencing, his brief

adulthood had been marred by drug and alcohol abuse, employment and marital

failures, and numerous burglary, theft and vandalism convictions. Dr. Engum

opined that the defendant demonstrated the following characteristics: (1) attention

deficit disorder, (2) performance in the “dull normal range of intellectual functioning,

. . . consistent with his prior educational and vocational background” (Full Scale IQ

of 86, Performance IQ of 90) ( “clear, logical” thought processes, but with “some

deficits in basic cognitive organization” and a concrete, inflexible “reasoning

process,” although performance was above average when given a “language free

measure[ment] of cognitive ability”), (3) a psychological dependence on marijuana

and a psychological and physiological dependence on alcohol and history of abuse

of hallucinogens, sedative, hypnotic and anxiolytic drugs, (4) a learning disability in

the areas of reading and mathematics and a tested Grade Equivalent of 6.1, (5) a

“depressive disorder not otherwise specified,” and (6) a mixed personality disorder

with avoidant and schizoid features. The defendant reported to Dr. Engum that, on

the day of the killing, he had used marijuana, LSD, and alcohol. With respect to

“any mental disease or defect which might relate to [the defendant’s] state-of-mind

at the time of the commission of the offense,” Dr. Engum opined only that “the

evidence does suggest that Mr. Cross was under-the-influence [sic] of significant

amounts of alcohol as well as . . . [LSD].”



              The defendant alleges that the trial court erred in denying the

defendant the opportunity to prove his “diminished capacity” to intend to kill and



                                           17
kidnap.



              “Diminished capacity” is not a defense in Tennessee. State v. Phipps,

883 S.W.2d 138, 149 (Tenn. 1994). Our supreme court has discouraged the use

of the phrase “diminished capacity” because it poorly reflects the proper use of the

evidence to “negate the existence of the culpable mental state required to establish

the criminal offense.” State v. Hall, 958 S.W.2d 679. 690 (Tenn. 1997), cert.

denied, --- U.S. --- 118 S. Ct. 2348 (1998).



              When a defendant uses expert testimony to prove he or she lacked

the capacity to intend the crime, “the psychiatric testimony must demonstrate that

the defendant’s inability to form the requisite culpable mental state was the product

of a mental disease or defect, not just a particular emotional state or mental

condition.” Hall, 958 S.W.2d at 690 (emphasis added). In Hall, the defendant

asserted trial court error in disallowing his psychiatric expert to testify about his

“diminished capacity” to intend murder. The defense wanted to prove that Hall’s

consumption of alcohol “would have had [an affect] on him with his type of

personality” and that he was under “emotional distress and stress.” Id. At the

sentencing hearing, the expert testified Hall had “a borderline personality disorder

and that such people could have brief episodes of rage during ‘temporary states of

mental illness.’” Id. at 691. Our supreme court rejected Hall’s claim and held that

“[t]hough expert testimony is admissible to show that because of mental disease or

defect, a defendant lacked the capacity to form the mental state required to

constitute the offense. . . , the testimony in this case did not meet that standard.”

Id. at 692.



              The evidence proposed by Hall failed in three respects. First, the

expert did not propose to testify that Hall “lacked the capacity to premeditate and

deliberate the killing because of a mental disease or defect.” Id. at 691. Second,

the expert spoke only abstractly and generally about typical persons with personality



                                         18
types similar to Hall’s type, instead of discussing “the capacity of the particular

defendant on trial.” Id. Third, the “personality type and character traits which [the

expert] gleaned from the test results and a single three hour interview” do not

equate to proof of “a defendant’s capacity to form the mental intent.” Id. (italics in

original).



              Initially, we note that a trial court’s rulings on the admissibility of

evidence are reviewed on appeal under an abuse-of-discretion standard. State v.

Griffis, 964 S.W.2d 577, 594 (Tenn. Crim. App. 1997), perm. app. denied (Tenn.

1997).



              The trial court did not specify the evidentiary basis for its ruling which

limited the proposed expert testimony to showing the effects of voluntary

intoxication on the defendant’s culpability. However, the ruling was implicitly based

upon either Tennessee Evidence Rule 402 or 702, or both. Rule 402 requires that

evidence be relevant as a condition to its admissibility. Rule 702 deals specifically

with expert testimony. If the testimony is based upon scientific, technical or

specialized-knowledge information, the expert witness may testify if his or her

knowledge or opinion “will substantially assist the trier of fact to understand the

evidence or to determine a fact in issue.” Tenn. R. Evid. 702.



              After a review of Dr. Engum’s report, we conclude that the trial court

properly limited the scope of the proposed expert testimony, based upon either

evidence rule. First, the report does not clearly indicate whether the defendant was

hampered by any “mental disease or defect.”            Certainly, the defendant has

limitations and problems, including diagnosed personality disorders; however, he

is neither psychotic, mentally retarded, nor suffering from debilitating brain injury.

Given the Hall requirement that expert testimony of this type be grounded upon

mental disease or defect, the proffer fails to show that the evidence is relevant.

See Tenn. R. Evid. 402.



                                          19
              Secondly, and in this case more importantly, the Engum report set

forth no opinion that the defendant lacked the legal culpability to commit the offense

on trial, except for the opinion that his criminal intent was influenced by the use of

drugs and alcohol. The report is devoid of any evidence that any other condition --

be it his chemical dependency, personality disorder, learning disability, or anything

else -- resulted in the defendant’s incapacity to form the requisite intent to commit

the offenses. As such, the expert evidence as depicted in the report was not of

substantial assistance to the jury. See Tenn. R. Evid. 702. The trial court was

correct in isolating the defendant’s pre-crime drug and alcohol use as the sole

factors which may have influenced his capacity to fulfill the mental elements of

murder and kidnapping.



                6. Admission of out-of-court statements of indicted
                       co-defendant who was not on trial



              In his next issue, the defendant complains of the testimony of a state

witness that Archie Mitchell came into the jail on the night of the killing and reported

that “he’d witnessed a homicide, seen this little girl get killed.” The defendant

objected to the testimony, and following a bench conference, the trial court

sustained the objection and cautioned the jury that it could not use such testimony

as indicating the truth of the matter asserted by the out-of-court declarant, but only

as a basis of understanding why an investigation was commenced.



              The statement was hearsay. See Tenn. R. Evid. 801(c), 802; State

v. James Roy Jernigan, No. 01C01-9709-CC-00414, slip op. at 7 (Tenn. Crim. App.,

Nashville, Sept. 29, 1998). The state advances no hearsay rule exception that

would authorize the use of the statement. Moreover, the criminally accused has the

right to confront those who testify against him. U.S. Const. amend. VI; Tenn. Const.

art. 1, § 9. Admission of an incriminating statement of a non-testifying co-defendant

violates a defendant’s constitutional right of confrontation. Bruton v. United States,

391 U.S. 123, 126, 88 S. Ct. 1620, 1622 (1968); Smart v. State, 544 S.W.2d 109,

                                          20
112 (Tenn. 1976). Although in this case the defendants were not tried jointly, the

statements of a non-testifying co-defendant would generally be inadmissible both

on constitutional and hearsay grounds. See James Ray Jernigan, slip op. at 8.



              In the present case, however, any error in allowing the statement was

undoubtedly harmless beyond a reasonable doubt. See Tenn. R. Crim. P. 52(a);

Tenn. R. App. P. 36(b); Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828

(1967). The comment itself was brief and innocuous. The trial court gave the jury

an immediate remedial instruction. Finally, the evidence of the defendant’s guilt

was overwhelming.



                            7. State’s closing argument



              In this issue, the defendant argues that the following closing-argument

statement of the prosecutor was improper and prejudicial:

              If it wasn’t for the fact that this man right here was confronted with the
              fact that his two other friends had already gone to the police and told
              them what happened, and he was confronted with that, he had no
              choice.

              The defendant objected that his argument was outside the record.



              The review of this issue first entails a determination of whether

prosecutorial misconduct occurred. State v. Pulliam, 950 S.W.2d 360, 367 (Tenn.

Crim. App. 1996), perm. app. denied (Tenn. 1997). That determination initially

requires a decision about whether the challenged conduct is improper. Id. Although

trial courts have discretionary authority to control the argument of counsel and

counsel has wide latitude to argue the facts and reasonable inferences therefrom,

“[c]losing arguments must be temperate, must be based upon evidence introduced

at trial, and must be relevant to the issues at trial.” State v. Coker, 911 S.W.2d 357,

368 (Tenn. Crim. App. 1995). Most of the restrictions fall upon the prosecutor, who

is the representative of the state and whose duty it is not only to seek convictions

but also to achieve justice through proceeding fairly. Id.; Manning v. State, 195

                                          21
Tenn. 94, 257 S.W.2d 6 (Tenn. 1953). The prosecutor’s argument should not be

calculated to inflame the jury. Coker, 911 S.W.2d at 368.



              Once prosecutorial conduct is deemed improper, the appellate court’s

task is to determine “whether the impropriety affected the verdict.” Pulliam, 950

S.W.2d at 367. Prejudice is assessed through analyzing the misconduct in light of

the factors set forth in Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.

1976): (1) the misconduct viewed in context and the facts and circumstances of the

case; (2) any curative measures taken by the court or the prosecutor; (3) the intent

of the prosecutor; (4) the cumulative effect of the misconduct in view of the

consequence of any other errors in the trial; and (5) the “relative strength or

weakness of the case.” Judge, 539 S.W.2d at 344.



              Assuming that the cited argument was not based upon the evidence,

our analysis of the Judge factors results in our finding that no prejudicial error

occurred. Two factors weigh against the state. First, the prosecutor’s remark was

not supported by the evidence. Second, the trial court overruled the defense

objection and took no curative action. However, the other three factors weigh

heavily against the defendant. The remark was brief. Although no trial is perfect,

this transcript contains few potentially prejudicial errors. Finally, the case against

the defendant is very strong. Physical evidence implicated him, and his confession

was palpable and cogent. Against convicting evidence of such magnitude, the

prosecutor’s remark is inconsequential.



                            8. Consecutive sentencing



              In his last issue, the defendant complains about the imposition of

consecutive sentences.



              When there is a challenge to the length, range, or manner of service



                                          22
of a sentence, it is the duty of this court to conduct a de novo review of the record

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. §40-35-401(d) (1997). 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). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this court must affirm the

sentence, “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              In making its sentencing determination, the trial court, at the

“conclusion of the sentencing hearing,” determines the range of sentence and then

determines the specific sentence and the propriety of sentencing alternatives by

considering (1) the evidence, if any, received at the trial and the sentencing hearing;

(2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on the enhancement

and mitigating factors; (6) any statements the defendant wishes to make in the

defendant’s behalf about sentencing; and (7) the potential for rehabilitation or

treatment. Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-

103(5)(1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences was set out

in Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme

court ruled that aggravating circumstances must be present before placement in any

one of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1989),



                                          23
the court established an additional category for those defendants convicted of two

or more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution: “[C]onsecutive sentences should not routinely be

imposed ... and ... the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved.” Taylor, 739 S.W.2d at

230. The Sentencing Commission Comments adopted the cautionary language.

Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor. Consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that one or more of the

following criteria2 exist:

               (1) The defendant is a professional criminal who has knowingly
               devoted himself to criminal acts as a major source of livelihood.

               (2) The defendant is an offender whose record of criminal activity is
               extensive;

               (3) The defendant is a dangerous and mentally abnormal person so
               declared by a competent psychiatrist who concludes as a result of an
               investigation prior to sentencing that the defendant’s criminal conduct
               has been characterized by a pattern of repetitive or compulsive
               behavior with heedless indifference to consequences;

               (4) The defendant 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;

               (5) The defendant is convicted of two (2) or more statutory offenses
               involving sexual abuse of a minor with consideration of the
               aggravating circumstances arising from the relationship between the
               defendant and victim or victims, the time span of defendant’s
               undetected sexual activity, the nature and scope of the sexual acts
               and the extent of the residual, physical and mental damage to the
               victim or victims;

               (6) The defendant is sentenced for an offense committed while on
               probation;

               (7) The defendant is sentenced for criminal contempt.

Tennessee Code Ann. § 40-35-115(b) (1990). In State v. Wilkerson, 905 S.W.2d

933, 937-38 (Tenn. 1995), the supreme court imposed two additional requirements

for consecutive sentencing -- the court must find consecutive sentences are


       2
       The first four criteria are found in Gray. A fifth category in Gray, based
on a specific number of prior felony convictions, may enhance the sentence
range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Commission Comments.

                                          24
reasonably related to the severity of the offenses committed and are necessary to

protect the public from further criminal conduct. At this time, it is unsettled whether

Wilkerson applies to all seven of the statutory categories for consecutive sentencing

or only the “dangerous offender” category. See State v. David Keith Lane, No.

03C01-9607-CC-00259, slip op. at 11 (Tenn. Crim. App., Knoxville, June 18, 1997),

perm. app. granted (Tenn. 1998).



               The trial court imposed consecutive sentences based upon the

defendant being on probation when the present offenses were committed. See

Tenn. Code Ann. § 40-35-115(b)(6) (1997). However, the state concedes that the

defendant had been serving a community corrections sentence, as opposed to

being placed on “probation,” and that our supreme court’s decision in State v.

Pettus, 986 S.W.2d 540 (Tenn. 1999), precludes the use of factor (6) of section 40-

35-115(b) to impose consecutive sentences. We agree. In Pettus, the high court

held that “a community corrections sentence is not equivalent to probation” and will

not support consecutive sentencing based upon factor (6). Pettus, 986 S.W.2d at

54, slip op. at 1.



               Having concluded that the trial court selected an improper basis for

imposing consecutive sentences and having before us a complete trial and

sentencing record, we will now determine de novo whether the sentences should

be imposed to run concurrently or consecutively.



               The presentence report reflects that, while a juvenile, the defendant

was adjudicated guilty of four counts of theft, three counts of burglary, and three

counts of vandalism. The defendant, who was twenty-two years of age when he

killed Jamie Mills and twenty-three when he was sentenced, had been convicted as

an adult of one count of vandalism, five thefts, and seven burglaries. Consequently,

the defendant is “an offender whose record of criminal activity is extensive.” Tenn.

Code Ann. § 40-35-115(b)(2) (1997).            Moreover, we find that the extended



                                          25
incarceration resulting from consecutive sentences is appropriate to the offenses

and is necessary to protect the public. For these reasons, the sentences imposed

by the trial court shall be served consecutively.



              For the reasons explained above, the trial court’s judgment is affirmed.



                                          _______________________________
                                          JAMES CURWOOD WITT, JR., JUDGE




CONCUR:



_________________________________
JOHN EVERETT WILLIAMS, JUDGE



_________________________________
ALAN E. GLENN, JUDGE




                                         26
