         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 6, 2001 Session

             STATE OF TENNESSEE v. JAMES HALL SCHLEGEL

                   Direct Appeal from the Circuit Court for Henry County
                            No. 12990 Julian P. Guinn, Judge



                   No. W2000-02597-CCA-R3-CD - Filed January 28, 2002


The defendant, James Hall Schlegel, was convicted by a Henry County jury of kidnapping. The trial
court imposed a four-year sentence, with one year to be served in confinement and the remainder to
be served in the Community Corrections program. On appeal, the defendant raises the following
issues: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court
erred by failing to charge the lesser-included offense of false imprisonment; and (3) whether the
defendant’s sentence was proper. We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODALL , J., joined.
GARY R. WADE, P. J., concurred in results only.

Teresa McCaig Marshall (at trial) and Victoria L. DiBonaventura (on appeal), Paris, Tennessee, for
the appellant, James Hall Schlegel.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

       Near midnight on Christmas, 1999, as Rhonda Crawford was traveling alone on a rural road
from her parents’ home to her home, she encountered a car blocking the road. She slowed to drive
around the vehicle, when the defendant “appeared out of nowhere” and tapped on her car. The
victim, through the closed window, asked the defendant, “Is someone hurt? Do I need to call
someone?”

       The defendant did not reply, but instead reached for the door handle to the driver’s door.
When it would not open, he opened the back door and climbed into the backseat, which was filled
with Christmas presents and food. The victim told the defendant to get out of her car. The defendant
told the victim, “You’d better call 911.” The victim told the defendant to leave her “Christmas stuff”
alone, and the defendant replied, “Well, what’s more important, the Christmas stuff or you?”

        The victim testified the defendant put his hands around her throat and told her to drive before
someone got hurt. She stated that when he grabbed her throat, she released the steering wheel,
causing the car to go “every which way.” The defendant then loosened his grip, and she attempted
to get control of the car. She said she continued to tell the defendant to get out of the car.

       According to the victim, the defendant asked her if she knew where a specific person lived,
and she replied that she did not know that person. The victim stated she dialed 911 on her cell phone
and asked the defendant if they needed to call someone regarding his car, which remained in the
middle of the road. She said she handed the phone to the defendant, who began “chit-chatting” on
the phone. The victim stated she tried to jump out of the car while he was talking, but her seat belt
prevented her from exiting the opened door. She said the defendant then threw the phone, which
bounced off the dashboard, and began choking her. As she tried to free herself, the car “swerved all
over the road,” and the defendant loosened his grip.

         The victim testified she smelled alcohol on the defendant’s breath, but that he was able to
talk, instruct the victim how to drive, and knew where he wanted to go. The victim testified that
each time they would reach a gravel road or driveway, the defendant would tell her to turn onto it.
When the defendant instructed her to turn onto Buck Ranch Road, a gravel road with no lights on
it, she passed it and “that really made him mad.” She stated the defendant “really got hold of her,”
and she again released the steering wheel and lost control of the vehicle. He then “let up,” allowing
her to regain control of the car. When the victim realized the defendant was not familiar with the
roads or the area, she decided to drive to her home. When she stopped at her house, the defendant
said, “What are you slowing down for? Don’t slow down here. Don’t stop. Don’t stop.” The
victim said she jumped out the car with her keys in hand and went straight into her house.

       Upon entering the house, the victim screamed to her sleeping husband. Her husband, Philip
Crawford, jumped up and ran outside. Philip Crawford testified that when he went outside, he
observed the defendant sitting in the backseat of the car. He stated he saw the defendant move
quickly from the backseat to the driver’s seat and reach for the ignition, but the keys had been
removed by the victim. Crawford said he repeatedly asked the defendant his name and what he was
doing in the car. The defendant did not reply.

        The victim took her husband a shotgun and called 911. Philip Crawford pointed the shotgun
at the defendant and continued to question him, but received no response from the defendant. The
defendant mumbled “a couple of prayers” when Crawford pointed the shotgun at the defendant.
Crawford continued to hold the defendant at gunpoint until law enforcement arrived.

        Clyde Sulcer of the Henry County Sheriff’s Department arrived at the Crawford residence
at about 12:24 a.m. Sulcer testified that, for the most part, the defendant complied with his
instructions. Another officer had to assist Sulcer with handcuffing the defendant. Sulcer transported
the defendant to the jail, and the defendant spoke little during the ten-minute drive.

                                                 -2-
        Sulcer testified the defendant smelled of alcohol, and a breath alcohol test indicated the
defendant had a breath alcohol level of .14 %. Sulcer found no drugs on the defendant, but Sulcer
opined the defendant appeared to be under the influence of an intoxicant. The officer stated the
defendant was able to provide most of his basic information for the standard booking procedure,
including his name, place of birth, date of birth, address, phone number, etc. However, after the
defendant learned he would be charged with kidnapping, he began to behave as if he were more
inebriated and asked odd questions. Sulcer described the defendant as being “in and out of reality.”

       Officer William Vandiver testified that he could tell the defendant had been drinking when
he observed the defendant at the jail after his arrest. Officer Vandiver testified the defendant
responded appropriately to his questions and instructions.

       The defendant testified he had a long term substance abuse problem. He stated that on
Christmas, 1999, he attended a party at a friend’s home, where he drank 12 beers and took LSD at
approximately 10:30 or 11:00 p.m. The defendant stated that while he was under the influence of
the drug, he believed he was dead and demons were trying to take him to hell. He said he drove
away from the party and abandoned his car when he began to hear voices, which he believed were
coming from his car.

        The defendant said he recalled seeing Rhonda Crawford’s car coming down the road. He
said he was unable to respond to her offers to call someone to assist him, but he wanted to tell her
that he needed help. The defendant admitted he opened the door to her car and sat down in the
backseat. He recalled leaning up, putting his hands on the victim’s shoulders, and telling her, “Just
drive and no one is going to get hurt.” He testified that he was unable to recall anything else
regarding the incident until he was in the Crawfords’ driveway with Philip Crawford pointing the
gun at him. He stated that while he could not recall the victim’s fear, he was “sure she was scared
to death.”

         The defendant further testified his hallucinations continued after law enforcement arrived.
He stated he recalled getting into the patrol car, but had no recollection of answering questions at
the jail. The defendant apologized to the victim, stated he did not intend to terrorize her, and
indicated he understood “how scared she had to have been.”

        The remainder of the witnesses for the defense testified regarding the defendant’s substance
abuse problems and the treatment he was receiving. Dr. Maury Wilton Smith, a specialist in
addiction medicine, opined the defendant’s behavior during the booking process, as he observed it
on videotape, indicated the defendant was severely intoxicated.

       The defendant was indicted for aggravated kidnapping. A jury convicted him of the lesser-
included offense of kidnapping.



                             SUFFICIENCY OF THE EVIDENCE

                                                -3-
       The defendant contends the evidence was insufficient to support his conviction for
kidnapping. The offense of kidnapping occurs when a person knowingly removes or confines
another unlawfully so as to interfere substantially with the other’s liberty under circumstances
exposing the victim to substantial risk of bodily injury. Tenn. Code Ann. §§ 39-13-302(a),-
303(a)(1). The defendant argues there were no facts from which a rational trier of fact could
conclude the victim’s confinement exposed her to substantial risk of bodily injury. We do not agree.

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial
judge accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This
court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant
demonstrates that the facts contained in the record and the inferences which may be drawn therefrom
are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a
reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is
the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was
sufficient for any rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

        The victim testified the defendant repeatedly choked her, causing her to lose control of the
vehicle each time. Further, the victim made an unsuccessful attempt to escape from the car in which
she opened the door of the moving vehicle and prepared to jump, only to be restrained by the seat
belt. We conclude a rational trier of fact could have found the defendant not only confined the
victim to her vehicle, but also placed her in substantial risk of bodily injury. This issue lacks merit.


             JURY CHARGE REGARDING LESSER-INCLUDED OFFENSES

         The defendant contends the trial court erred by failing to charge the jury as to the lesser-
included offense of false imprisonment. Prior to trial, the defendant moved the trial court to charge
the jury as to all lesser-included offenses. The trial court entered an order granting the motion, but
the order did not specify lesser-included offenses to be charged. During trial, defense counsel
requested that the jury be charged on kidnapping as a lesser-included offense of aggravated
kidnapping. The trial court indicated the issue would be resolved the following day. The next day
the trial court announced on the record, out of the presence of the jury, it had allowed the parties to
review the jury instructions, and neither party had made any special requests or objections. The trial
judge also stated he would charge the jury regarding kidnapping as a lesser-included offense, based
upon the request of both the defendant and the state. The trial court then asked both the state and
defense counsel if it correctly stated their positions, and both the state and defense counsel separately
replied, “Yes, sir.”


                                                  -4-
        The record reflects that no request for a charge on false imprisonment was made. There was
no objection to the jury charge after it was given. The record reflects a different attorney was
retained by defendant prior to the filing of the motion for new trial. The motion for new trial filed
by the new attorney does not include the failure to charge false imprisonment as alleged error. The
record reflects this issue has never been addressed to the trial court. It was raised for the first time
on appeal.

         The failure to include this issue in the motion for new trial ordinarily waives the issue. Tenn.
R. App. P. 3(e); see State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995). However, Tenn. R. Crim.
P. 52(b) grants the court the authority, in its discretion, to correct plain error otherwise waived.
Therefore, we must determine if the error alleged by the defendant is “plain error.” The appellate
courts have recognized that plain error may be applied to the failure of the trial court to charge the
jury as to lesser-included offenses. See State v. Williams, 977 S.W.2d 101, 110 n.6 (Tenn. 1998);
Wright v. State, 549 S.W.2d 682, 686 (Tenn. 1977). However, whether or not an appellate court
should recognize and grant relief based upon plain error depends upon the facts and circumstances
of each case. State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). Accordingly, we decline to hold
that failure to charge the jury regarding a lesser-included offense is always per se plain error.

        There are five factors which must be present for a court to determine “plain error” exists:
        (a) the record must clearly establish what occurred in the trial court; (b) a clear and
        unequivocal rule of law must have been breached; (c) a substantial right of the
        accused must have been adversely affected; (d) the accused did not waive the issue
        for tactical reasons; and (e) consideration of the error is “necessary to do substantial
        justice.”

Smith, 24 S.W.3d at 282 (citing State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.
1994)). Complete consideration of all five factors is unnecessary if at least one is absent. Id. at 283.
Furthermore, the plain error must be such that it probably changed the outcome of the trial.
Adkisson, 899 S.W.2d at 642.

        First, the record is somewhat unclear as to what occurred in the trial court. The record does
indicate counsel for both parties and the trial court conferred off the record regarding the jury charge;
the defendant and the state requested an instruction on simple kidnapping; and the defendant voiced
no objection to the instructions given to the jury. Because of the unrecorded conference, the record
does not contain the full discussion regarding possible lesser offenses.

        Tenn. R. Crim. P. 30(a) provides that the trial court should, prior to argument, inform counsel
of its proposed actions upon special jury requests and respond to other inquiries concerning the
charge. We believe the rule contemplates an “on the record” discussion. The trial court should
ensure the recording of conferences; otherwise, complete review may be precluded. See State v.
Hammons, 737 S.W.2d 549, 551 (Tenn. Crim. App. 1987); see also State v. Blaine M. Wright,
C.C.A. No. 03C01-9401-CR-00388, 1995 WL 728535, at **9-10 (Tenn. Crim. App. Dec. 11, 1995,
at Knoxville), perm. to app. denied (Tenn. 1996). Because the record is unclear, we are reluctant
to find plain error.

                                                  -5-
       Second, we are unable to find the trial court’s failure to charge the jury as to false
imprisonment breached a clear and unequivocal rule of law. We are not unmindful that the trial
court has a mandatory duty to instruct the jury as to lesser-included offenses regardless of whether
a defendant has requested it. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001). However, in the
case sub judice, it is questionable whether the proof presented at trial justified a charge on false
imprisonment. A defendant commits false imprisonment when he or she knowingly removes or
confines another unlawfully so as to interfere substantially with the person’s liberty. Tenn. Code
Ann. § 39-13-302(a). However, when a defendant commits the offense of false imprisonment under
circumstances exposing the victim to substantial risk of bodily injury, he or she commits the greater
offense of kidnapping. Tenn. Code Ann. § 39-13-303(a)(1). In this case, the victim’s
uncontroverted testimony was that the defendant caused her to lose control of the car when he
choked her, and that she attempted to eject herself from the moving vehicle. The defendant did not
contradict this testimony, but, instead, said he was unable to recall most of the incident due to his
intoxication. Under these facts, it is questionable whether a jury charge on false imprisonment was
necessary.

       Third, we acknowledge the alleged error in question would affect a substantial right of the
accused since an erroneous failure to instruct on lesser-included offenses is an error affecting the
accused’s constitutional right to a jury trial. State v. Ely, 48 S.W.3d 710, 726-27 (Tenn. 2001).

         Fourth, it is unclear whether defendant did not request a charge on false imprisonment for
tactical reasons because the discussion on jury charges is not in the record. However, it is clear that
defendant affirmatively acquiesced in not charging false imprisonment. He now takes an
inconsistent position. Relief should not be afforded a party who is responsible for, or fails to take
action to prevent, an error. Tenn. R. App. P. 36(a); Adkins v. State, 911 S.W.2d 334, 346 (Tenn.
Crim. App. 1994); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993); see also State v.
Elesa D. McDaniels, No. E2000-02790-CCA-R3-CD, 2001 WL 1343852 (Tenn. Crim. App. Nov.
1, 2001, at Knoxville) (holding defendant’s affirmative acquiescence in failing to charge lesser-
included offense waives the issue).

       Finally, we are unable to conclude that consideration of the alleged error is necessary to do
substantial justice, especially in light of the overwhelming evidence establishing kidnapping.

        In summary, the record is unclear; it is, at the very least, questionable whether a charge on
false imprisonment was justified by the evidence; the defendant affirmatively acquiesced in the
failure to charge false imprisonment; and, in light of the overwhelming evidence of guilt of
kidnapping, it is unnecessary to find plain error to accomplish substantial justice. For these reasons,
the failure to charge false imprisonment was not plain error. Defendant is entitled to no relief on this
issue.


                                            SENTENCE



                                                  -6-
       The proof at sentencing established the defendant had six prior convictions, four of which
occurred while the defendant was on unsupervised probation for a shoplifting conviction in the
Commonwealth of Kentucky. All of his convictions, except for the shoplifting conviction, were
misdemeanors directly related to his use or possession of alcohol or drugs. At sentencing, the
defendant testified regarding his progress in the Teen Challenge program, where he was receiving
treatment for his substance abuse problem. The parties stipulated the defendant was a Range I
standard offender, which carries a range of punishment of three to six years for this Class C felony.
See Tenn. Code Ann. § 40-35-112(a)(3).

        The trial court found three enhancement factors were applicable: factor (1) (the defendant
has a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range); factor (8) (the defendant has a previous history of unwillingness
to comply with the conditions of a sentence involving release in the community); and factor (16) (the
crime was committed under circumstances under which the potential for bodily injury to the victim
was great). Tenn. Code Ann. § 40-35-114(1), (8), (16). It further found that no mitigating factors
were applicable.

       The trial court stated it enhanced the defendant’s sentence one year based on the
enhancement factors and sentenced the defendant to four years with one year to be served in
confinement in the county jail and the remainder to be served in the Community Corrections
program. The defendant argues the trial court incorrectly applied enhancement factors (8) and (16)
and thereby erred in enhancing his sentence by one year.

       This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999).

        If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-
210(c) provides that the presumptive sentence shall be the minimum sentence within the applicable
range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788
(Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should enhance the
minimum sentence within the range for enhancement factors and then reduce the sentence within the
range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e); State v. Arnett, 49 S.W.3d 250,
257 (Tenn. 2001). No particular weight for each factor is prescribed by the statute, as the weight
given to each factor is left to the discretion of the trial court as long as the trial court complies with
the purposes and principles of the sentencing act and its findings are supported by the record. State
v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App.
2000); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should
there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence
above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967 S.W.2d at
806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).



                                                   -7-
        While the defendant argues the trial court erred in applying enhancement factor (8), we
disagree. The proof, which included the defendant’s testimony and the pre-sentence report, clearly
established the defendant was convicted of four offenses during the period of time he was on
probation for a shoplifting conviction. However, the state concedes, and we concur, the trial court
improperly applied enhancement factor (16) (the crime was committed under circumstances under
which the potential for bodily injury to the victim was great). Since the offense of kidnapping
requires the defendant to expose the victim to a substantial risk of bodily injury, enhancement factor
(16) is an element of kidnapping and, thus, cannot be applied to enhance the defendant’s sentence.
See Tenn. Code Ann. § 40-35-114.

        Despite this misapplication, we determine that the remaining enhancement factors were
sufficient to support the enhancement of the defendant’s sentence by one year. Although not
specifically raised by the defendant, we further conclude the trial court did not err in requiring one
year of confinement.1 Thus, we decline to disturb the sentence as ordered by the trial court.


                                                   CONCLUSION

         Accordingly, we affirm the judgment of the trial court.



                                                                   ___________________________________
                                                                   JOE G. RILEY, JUDGE




         1
           W e note from the discussion at the motion for new trial that the trial court may have intended for the defendant
to serve the one year “day for day” without the benefit of any credits. This court has held that a trial court cannot deny
a defenda nt the statutory right to earn good conduct credits under Ten n. Co de A nn. § 41-2-111(b). See State v. James
Kevin Underwood, No. E2000-01945-CCA-R3-CD, 2001 WL 872436, at *3 (Ten n. Crim. App. Aug. 2, 2001, at
Knoxville) (holding that defendant sentenced to six months in jail, day for day, is entitled to earn goo d condu ct credits);
State v. Frank R. Clark, No. M 2000-0 0862-C CA-R 3-CD , 2001 W L 839 607, at **3-4 (Tenn. Crim. App. July 25, 2001,
at Nashville), perm. to app. filed (Tenn. Sept. 13, 2001). Therefore, the defendant’s sentence of one year of confinement
doe s not o perate to preclud e app licable conduc t credits.

                                                            -8-
