             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           FEBRUARY 1999 SESSION
                                                       FILED
                                                         June 15, 1999

                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    C.C.A. NO. 02C01-9801-CR-00022
             Appellee,             )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. L. T. LAFFERTY,
WILLIE J. CUNNINGHAM,              )    JUDGE
                                   )
             Appellant.            )    (Aggravated Robbery & Especially
                                        Aggravated Kidnapping)



FOR THE APPELLANT:                      FOR THE APPELLEE:


A C WHARTON                             JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

TONY N. BRAYTON                         GEORGIA BLYTHE FELNER
Asst. Public Defender                   Asst. Attorney General
       (On Appeal)                      Cordell Hull Bldg., 2nd Fl.
                                        425 Fifth Ave., North
TIMOTHY ALBERS                          Nashville, TN 37243-0493
Asst. Public Defender
201 Poplar Ave., 2nd Fl.                WILLIAM L. GIBBONS
Memphis, TN 38103                       District Attorney General
       (At Trial)
                                        CHARLES W. BELL, JR.
                                        Asst. District Attorney General
                                        201 Poplar Ave., 3rd Fl.
                                        Memphis, TN 38103




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was found guilty by a jury of aggravated robbery and

especially aggravated kidnapping. The trial court sentenced the defendant to a term of

ten years for aggravated robbery and a term of twenty years for especially aggravated

kidnapping. These sentences were to be served in the Tennessee Department of

Correction and were to run consecutively. The defendant now appeals and presents the

following issues for our review:

       1. Whether the trial court erred in admitting evidence of another alleged crime

       committed by the defendant;

       2. Whether the facts of the case support convictions for both aggravated

       robbery and especially aggravated kidnapping; and

       3. Whether the trial court erred in ordering the defendant’s sentences to be

       served consecutively rather than concurrently.



              The proof at trial established that on October 10, 1996, the victim, Xandra

Todd, went to a store on Getwell Street to fill a prescription. After parking her car, a

burgundy Chevrolet Caprice, the victim noticed a shadow behind her car. Since she was

preparing to get out of her car, her driver’s side door was partially open and the window

was halfway down. She turned and saw the defendant walking up the driver’s side of her

car with his hand in his pants. The victim “realized that something wasn’t right” and put

the car in drive. At this point, the defendant put his arm in the partially open door and

said, “If you pull off I’m going to blow your brains out.” The defendant had a gun in his

hand and told the victim to “scoot over.” The victim testified that she moved over to the

passenger side of the car and tried to open the door. The defendant told the victim that

if she got out of the car he would “blow [her] brains out.” The defendant sat in the driver’s



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seat and drove the victim’s car out of the parking lot. The defendant told the victim that

if he found out the police were looking for him, he would find her and kill her. The

defendant asked the victim for money, but she claimed she did not have any. The victim

testified that while she was held captive in the car, the defendant pointed the gun at her

several times and threatened to kill her. The victim further stated that the defendant

threatened her life after she looked at him. The victim testified that she was able to get

a good look at the defendant’s face and looked at him several times to make sure she

could identify him later. The defendant ultimately released the victim in a school parking

lot.



              At trial, the State presented Fernando Boyd to testify as to the defendant’s

whereabouts after the robbery on Getwell Street. Mr. Boyd testified that on October 10,

1996, the defendant picked him up in a burgundy Chevrolet Caprice. According to Mr.

Boyd, the two men drove to Holly Springs, Mississippi. They stopped at a gas station in

Holly Springs. The two men saw a young lady pumping gas into a car whereupon the

defendant told Mr. Boyd something to the effect of, “I’m going to get that bitch like I got

that one on Getwell.” The defendant walked over to the young lady, spoke with her, and

she went inside the store. The defendant then sat in her car and the young woman in the

passenger seat of the car went into the store. The defendant drove away in the car and

Mr. Boyd followed the defendant in the burgundy Chevrolet Caprice.              The men

subsequently encountered a road block, and although the defendant was allowed through

the roadblock, Mr. Boyd was instructed to pull over to the side of the road because he did

not have a driver license. Mr. Boyd waited a few minutes and then pulled back onto the

highway. A car chase ensued and Mr. Boyd was subsequently apprehended. According

to Mississippi Highway Patrol Officer Barrett, during the chase there was a report over

the radio that the driver of the Chevrolet Caprice was wanted with regard to a carjacking



                                            3
in Holly Springs and was armed.



              The defendant now contends that the trial court erred in admitting evidence

of the Mississippi carjacking. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity with the character trait.” Nonetheless, such evidence may be admissible to

prove identity (including motive and common scheme or plan), intent, knowledge,

completion of the story, opportunity, or preparation, or to rebut a claim of mistake or

accident if asserted as a defense. See State v. McCary, 922 S.W.2d 511, 514 (Tenn.

1996); see also State v. Ray Anthony Nelson, No. 03C01-9706-CR-00197, Hamilton

County (Tenn. Crim. App. filed September 9, 1998, at Knoxville). The conditions that

must be satisfied before allowing evidence of other crimes, wrongs, or acts are:

              (1) The court upon request must hold a hearing outside the jury’s
              presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and the
              reasons for admitting the evidence; and

              (3) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The trial court must also find “clear and convincing” evidence that

the defendant committed the other crime. State v. Hall, 958 S.W.2d 679, 707 (Tenn.

1997); McCary, 922 S.W.2d at 514; see State v. Parton, 694 S.W.2d 299, 303 (Tenn.

1985); Tenn. R. Evid. 404 Advisory Commission Comment.                When a trial court

substantially complies with the procedural requirements of this rule, its determination will

not be overturned absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652

(Tenn. 1997). W here a court fails to substantially comply with this rule’s procedural

requirements, the court’s decision is afforded no deference. Id.




                                             4
              Here, the trial court held a jury-out hearing, during which Mr. Boyd’s

testimony was proffered.      The trial court determined that proof of the Mississippi

carjacking was offered to prove identification, intention, and guilty knowledge, all

contested issues in this case. The trial court further found that the probative value of this

evidence outweighed any danger of unfair prejudice. The trial court did not, however, find

that there was clear and convincing evidence that the carjacking in Mississippi actually

occurred. The initial question, then, is whether the trial court substantially complied with

the procedural requirements of Rule 404(b), even though it failed to determine that there

was clear and convincing evidence of the Mississippi carjacking.



              In State v. Ray Anthony Nelson, No. 03C01-9706-CR-00197, Hamilton

County (Tenn. Crim. App. filed September 9, 1998, at Knoxville), a panel of this Court

determined that even though the trial court failed to conduct a clear and convincing

analysis, the court still substantially complied with the procedural requirements of Rule

404(b) because “there was no real question” or dispute that the events occurred. Here,

the defendant never specifically argued to the trial court that the State failed to prove by

clear and convincing evidence that the events in Mississippi occurred. The defendant,

however, never conceded he committed carjacking in Mississippi. Given that, we are

reluctant to hold that there is no dispute that the carjacking in Mississippi occurred. See

Nelson, No. 03C01-9706-CR-00197 (defendant conceded previously abusing the victim).

Thus, we review de novo the trial court’s decision to admit evidence of the Mississippi

carjacking under Rule 404(b). DuBose, 953 S.W.2d at 652.



              The defendant challenges the trial court’s ruling that evidence of the

Mississippi carjacking was admissible to establish identity, intent, and guilty knowledge.

Mr. Boyd testified that the defendant said about a woman pumping gas into her car, “I’m



                                             5
going to get that bitch like I got that one on Getwell,” and then proceeded to drive away

in the woman’s car after she and her passenger entered the gas station. When Mr. Boyd

was later apprehended, the burgundy Chevrolet Caprice he was driving was identified as

the one previously stolen on Getwell Street from the victim in this case. The defendant’s

statement to Mr. Boyd in conjunction with his actions prove the defendant had the intent

to rob the victim of her car, and it also proves he had guilty knowledge of the events

surrounding the charged aggravated robbery. The trial court did not abuse its discretion

in finding that the evidence, which was relevant to prove that the crimes charged in this

case were committed, was admitted for a purpose other than to show the defendant’s

character. See Tenn. R. Evid. 404(b) Advisory Commission Comment.



              The defendant argues that the admission of the alleged Mississippi

carjacking was more prejudicial than probative. He contends that the State could have

introduced evidence of the defendant’s statement to Mr. Boyd and evidence regarding

how the victim’s car was recovered without detailing the alleged carjacking in Mississippi.

However, to do so would have taken the events in Mississippi out of context and

potentially would have misled the jury. As explained above, the defendant stated an

intent to treat the woman pumping gas in Mississippi as he treated the Getwell Street

victim. Through his subsequent actions, the defendant showed what he meant: that he

took the victim’s car on Getwell Street like he took the woman’s car in Mississippi. While

the evidence regarding the alleged carjacking in Mississippi was prejudicial to the

defendant, the trial court did not abuse its discretion in determining that the probative

value outweighed the prejudicial effect because the circumstances surrounding the act

in Mississippi helped to prove and explain the charged crime.



              The defendant also argues that the State failed to prove by clear and



                                            6
convincing evidence that the defendant committed a carjacking in Holly Springs,

Mississippi. He claims that because there was no evidence he was charged with

carjacking in Mississippi and because the alleged Mississippi carjacking victim did not

testify, the record does not sufficiently prove that a crime actually occurred. To the

contrary, the evidence showed the defendant intended to take the car in Holly Springs

in the same manner he took the one in this case, that is, by force. The evidence also

showed the defendant took the car in Holly Springs only after the driver and her

passenger exited it and entered the gas station. Moreover, the evidence showed that a

carjacking involving a burgundy Chevrolet Caprice and an armed suspect was reported

in Holly Springs. This constitutes clear and convincing evidence that the defendant

committed the carjacking in Holly Springs, Mississippi, as described by Mr. Boyd on the

witness stand. See Wrather v. State, 169 S.W.2d 854, 858 (Tenn. 1943)(cited in Parton,

694 S.W.2d at 303).



              Despite our de novo standard of review, we conclude that the trial court

properly admitted evidence of the Mississippi carjacking under Rule 404(b) because the

evidence was offered for a purpose other than to prove character, the evidence was more

probative than prejudicial, and the record contains clear and convincing evidence that the

events occurred. Even assuming this evidence was improperly admitted, though, any

resulting error was harmless given the substantial evidence of guilt, including the victim’s

identification of the defendant. Tenn. R. Crim. P. 52(a). Thus, the defendant has not

shown entitlement to appellate relief on this issue.



              The defendant next contends that the evidence does not support

convictions for both aggravated robbery and especially aggravated kidnapping.

Specifically, the defendant argues that any confinement in this case was essentially



                                             7
incidental to the aggravated robbery of the victim and therefore does not constitute a

separate kidnapping offense under the rule set out in State v. Anthony, 817 S.W.2d 299,

306 (Tenn. 1991). In Anthony, the Tennessee Supreme Court formulated the following

test to determine whether each conviction can stand on its own:

              [W]hether 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. . . . [O]ne method of resolving this question is to
              ask whether the defendant’s conduct “substantially increased [the]
              risk of harm over and above that necessarily present in the crime
              of robbery itself.”

Id. at 306 (citation omitted).



              In the case at bar, the defendant pointed a gun at the victim when she was

about to get out of her car and told her to “scoot over” into the passenger seat. When the

victim attempted to escape by way of the passenger door, the defendant told her if she

tried to get out of the car he would kill her. The defendant then sat in the driver’s seat

and drove out of the parking lot. After driving for approximately five to seven minutes, the

defendant released the victim from the car. In light of the foregoing, the especially

aggravated kidnapping was not “essentially incidental” to the aggravated robbery of the

victim. The defendant would not allow the victim to get out of the car. The defendant

pointed the gun at the victim several times thereby increasing the risk of harm to the

victim. The defendant threatened the victim’s life several times while she was held

captive in the car. It was certainly not necessary to force the victim to stay in her car in

order to steal her car. As such, the defendant’s convictions for aggravated robbery and

especially aggravated kidnapping are affirmed.



              The defendant next contends that the trial court erred in ordering his



                                             8
sentences to be served consecutively rather than concurrently. The defendant argues

that the trial court erroneously found him to be a “dangerous offender” as set out in

T.C.A. § 40-35-115(b)(4), that there were no aggravating circumstances that would justify

imposition of consecutive sentences, and that the trial court improperly relied upon

several charges pending against the defendant in sentencing the defendant.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-

401(d) Sentencing Commission Comments. This presumption, however, “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). As we find that the trial court erred in several aspects of the

defendant’s sentencing, our review of the defendant’s sentence is de novo upon the

record without a presumption of correctness.



              The trial court may, in its discretion, impose sentences to run concurrently

or consecutively. T.C.A. § 40-20-111(a). Consecutive sentences may be appropriate

where the trial court finds, by a preponderance of the evidence, that 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.” T.C.A. § 40-

35-115(b)(4). In the case at bar, the trial court found that based on the nature of the

crime, the defendant was a dangerous offender. In making the decision to classify the

defendant as a dangerous offender, the trial court took “judicial knowledge” of the fact

that the defendant had three cases of crimes of a similar nature pending for disposition

for trial or a plea. This Court has previously held that the “mere fact that a charge is



                                            9
pending, without more, furnishes neither evidence of criminal conduct nor proof that the

defendant is a dangerous offender.” State v. John Allen Chapman, No. 01C01-9604-CC-

00137, Grundy County (Tenn. Crim. App. filed September 30, 1997, at Nashville). As

such, consideration of the pending charges against the defendant was improper.

However, because there was sufficient evidence to find the defendant a dangerous

offender absent consideration of the pending charges, the trial court’s error was

harmless.



              In light of the fact that the defendant threatened the victim’s life several

times and pointed the gun at her head several times, we find ample proof that the

defendant’s behavior indicated little or no regard for human life and no hesitation about

committing a crime in which the risk to human life was high. Therefore, the trial court did

not err in finding that the defendant was a dangerous offender. See State v. Wilkerson,

905 S.W.2d 933, 938 (Tenn. 1995).



              After finding a defendant is a dangerous offender, the only remaining

considerations for determining his or her eligibility for consecutive sentencing are whether

the sentences are necessary in order to protect the public from further misconduct by the

defendant and whether the terms are reasonably related to the severity of the offenses.

Wilkerson, 905 S.W.2d at 938. The defendant was nineteen years old at the time of

sentencing and had a lengthy juvenile record including a conviction for rape and two

convictions for theft of a motor vehicle. In light of the defendant’s criminal history and his

lack of concern for the life of his victim, we find that consecutive sentences are necessary

in order to protect the public from further misconduct by the defendant. We further find

that an aggregate sentence of thirty years is reasonably related to the severity of the

offenses of especially aggravated kidnapping and aggravated robbery. Accordingly, the



                                             10
trial court did not err in ordering the defendant’s sentences to run consecutively.



              For the foregoing reasons, we affirm the defendant’s convictions and

consecutive sentences.




                                                        JOHN H. PEAY, Judge


CONCUR:




JOE G. RILEY, Judge




JAMES C. BEASLEY, Sr., Special Judge




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