State v. Nathan McKissack

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE
FILED
DECEMBER 1998 SESSION February 19, 1999

Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. NO. 01C01-9804-CC-00190

APPELLEE, * WILLIAMSON COUNTY

VS. * Hon. Henry Denmark Bell, Judge

NATHAN MCKISSACK, * (failure to appear)

APPELLANT. *

For Appellant: For Appellee:

Eugene J. Honea Paul G. Summers
Assistant Public Defender Attorney General and Reporter
Twenty-First Judicial District 425 Fifth Avenue North
407-C Main Street, P.O. Box 68 Nashville, TN 37243-0493
Franklin, TN 37065-0068
Todd R. Kelly
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493

Lee Dryer
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937

OPINION FILED: ____________________

AFFIRMED

NORMA MCGEE OGLE, JUDGE

1
 OPINION

On September 30, 1997, a Williamson County jury found the appellant,

Nathan McKissack, guilty of failure to appear. Because the underlying offenses

were felonies, the appellant was convicted of a Class E felony and sentenced to four

years in the Tennessee Department of Corrections as a Persistent, Range III

offender. The trial court ordered that the appellant serve his sentence consecutively

to his eight year sentence for the underlying offenses.

The appellant appeals as of right the judgment of the trial court and raises the

following issues:

(I) Whether the failure to appear statute, Tenn. Code Ann. § 39-

16-609 (1996), is unconstitutional;

(II) Whether the trial court erred by denying the appellant's Motion

in Limine to prohibit the State during trial from impeaching the

appellant with his prior conviction for failure to appear;

(III) Whether the trial court erred by overruling the appellant’s

objection to the State’s recitation of a pattern jury instruction

during closing argument;

(IV) Whether the trial court erred by overruling the appellant's

objection to the State's reference, during closing argument, to

the appellant’s failure to present a defense; and

(V) Whether the trial court erred by imposing consecutive

sentences.

We affirm the judgment of the trial court.

2
 I. Factual Background

In 1996, the appellant was convicted in the Circuit Court for Williamson

County of a felony count of failure to appear and a felony count of forgery. Pursuant

to these convictions, the appellant received an effective sentence of eight years.

However, the appellant was placed in a Community Corrections program in lieu of

incarceration in the Tennessee Department of Corrections.

On February 18, 1997, upon the appellant’s admission to violating the

conditions of his alternative sentence, the Williamson County Circuit Court revoked

the appellant’s Community Corrections sentence and ordered the appellant to report

to the Williamson County Clerk’s office on March 18, 1997, in order to begin serving

his eight year sentence in the Tennessee Department of Corrections. The appellant

failed to report to the Clerk’s office, and on March 24, 1997, the Clerk issued a

warrant for the appellant’s arrest. The appellant was subsequently arrested at his

home, and, on April 14, 1997, a Williamson County grand jury indicted the appellant

for the offense of failure to appear.

Prior to the appellant’s trial, on August 4, 1997, the trial court conducted a

preliminary hearing to address the appellant’s Motion to Dismiss, which alleged that

the statute setting forth the charged offense of failure to appear is unconstitutional.

The trial court also considered the appellant’s Motion in Limine to prohibit the

reading of or showing of the indictment to the jury or prospective jurors, due to the

reference in the indictment to the appellant’s prior conviction for failure to appear.

Following argument by counsel, the trial court denied the Appellant’s Motion to

Dismiss. However, the court ordered that the jury and any prospective jurors be

precluded from viewing the indictment.

3
 At trial, the appellant stipulated that he had previously been convicted of two

felonies and that, on February 18, 1997, the W illiamson County Circuit Court

revoked his Community Corrections sentence for those offenses and ordered him to

report to the Williamson County Jail on March 18, 1997.1 The appellant further

stipulated that, in fact, he failed to appear on that date.

In his opening argument, counsel for the Appellant stated that he hoped to

present evidence that the Appellant had never been convicted of a violent offense or

a drug offense, and that the appellant is a “decent person.” Counsel further stated

that he hoped to present proof that the Appellant possessed a reasonable excuse

for failing to report for service of his prior sentences in accordance with the trial

court’s order.

The State presented the testimony of Judy Mangrum, a Deputy Clerk in the

Williamson County Clerk’s office, and Corporal John Jordan, a supervisor in the

Records Department of the Williamson County Sheriff’s Department. Through Ms.

Mangrum’s testimony, the State introduced into evidence a copy of the trial court’s

order, dated February 18, 1997, revoking the appellant’s Community Corrections

sentence and ordering him to report to the Clerk’s office on March 18, 1997. Ms.

Mangrum further testified that, in fact, the Appellant did not report to the Clerk’s

office on March 18, 1997. She confirmed that, according to the records of the

Clerk’s office, a warrant for the appellant’s arrest was issued on March 24, 1997.

Corporal Jordan further confirmed that the appellant was brought to the Williamson

County Jail pursuant to an arrest warrant. The trial court sustained defense

1
Although defense counsel stated in his opening statement that the appellant
was to appear at the Williamson County Jail, the record reflects that, in fact, the
appellant was to report to the Williamson County Clerk’s office.

4
counsel’s objection to the introduction into evidence and presentation to the jury of

the arrest warrant, which also included a reference to the appellant’s prior conviction

for failure to appear.

Following the presentation of the State’s proof, the trial court conducted a

jury-out hearing in order to address the appellant’s Motion in Limine to prohibit the

State from impeaching the appellant with his prior conviction for failure to appear.

The trial court denied the appellant’s motion. Specifically, the trial court stated that,

because defense counsel had stated during his opening statement that the

appellant is a decent person, counsel had subjected his client to impeachment with

all his prior convictions, including the conviction for failure to appear.

Following the court’s ruling, the appellant declined to testify. Instead, while

the jury remained outside the courtroom, the appellant took the stand for the limited

purpose of making an offer of proof concerning his excuse for failing to report to the

Williamson County Clerk’s office. The appellant testified that he forgot that he had

been ordered to report to the clerk’s office, because he was working at two jobs and

his mother was ill. He stated that he willingly accompanied the detective who came

to his house to execute the arrest warrant. The appellant presented no evidence to

the jury.

Following the close of proof, the State asked that the trial court instruct the

jury that it could not consider the defense of a reasonable excuse. The court denied

the State’s request, opining that the instruction was unnecessary due to the

appellant’s failure to present a defense. The court observed that the State could

argue to the jury that, although defense counsel had stated during opening

statements that the appellant hoped to prove a reasonable excuse, the appellant

5
had not, in fact, presented any evidence of a reasonable excuse.

During closing argument, the State, in fact, argued that, although defense

counsel had stated during his opening statement that the appellant is a decent

person, counsel had presented no evidence to support his statements, nor had

defense counsel presented proof of a reasonable excuse for the offense. The

prosecutor then read the following excerpt from T.P.I. Crim. No. 27.02:

It is a defense to prosecution for the offense of failure to appear that
the person had a reasonable excuse for failing to appear at the
specified time and place. If evidence is introduced supporting this
defense, the state has the burden of proving beyond a reasonable
doubt that the defendant did not have a reasonable excuse for failing
to appear at the specified time and place.

The prosecutor emphasized that the State had the burden of proving beyond a

reasonable doubt the lack of a reasonable excuse only if a defendant presented

proof of a reasonable excuse. Defense counsel timely objected both to the

prosecutor’s comments concerning the appellant’s failure to present a defense and

the prosecutor’s recitation of the pattern jury instruction concerning the defense of

reasonable excuse, which objections were overruled by the trial court. Defense

counsel waived closing argument, and, following deliberation, the jury returned a

verdict of guilty.

On December 8, 1997, the trial court conducted a sentencing hearing, at the

conclusion of which the court imposed a minimum sentence of four years, to be

served consecutively to the appellant’s sentences for the felonies underlying the

instant offense.

II. Analysis

A.

Initially, the appellant challenges the constitutionality of Tenn. Code Ann. §

6
39-16-609, the statute setting forth the offense of failure to appear. The appellant

alleges the following bases to his claim:

1. The statute is sufficiently vague to violate the due process provisions

of the Tennessee and United States constitutions and constitutes an

impermissible delegation of legislative authority to the executive and

judicial branches of government.2

2. The manner in which the statute is applied in Williamson County

violates equal protection provisions of the Tennessee and United

States constitutions.

Courts are charged with upholding, where possible, the constitutionality of

statutes. State v. Joyner, 759 S.W.2d 422, 425 (Tenn. Crim. App. 1987)(citing

Dykes v. Hamilton County, 191 S.W.2d 155, 159 (Tenn. 1945)). This principle is

applicable to statutory provisions which are “inartfully drawn, but which with

reasonably unstrained interpretation can be seen to express the clear intent of the

legislature.” Id. In light of this principle, we turn to the specific standards that must

be applied when determining whether or not a statute is impermissibly vague.

Generally, when a statute is challenged as unconstitutionally vague, this court

must consider whether the statute’s “prohibitions are not clearly defined and are

susceptible to different interpretations as to what conduct is actually proscribed.”

Forbes, 918 S.W.2d at 447-48. See also State v. Lakatos, 900 S.W.2d 699, 701

2
The appellant in his brief does not appear to claim that the statute in the
instant case is overbroad. In contrast to the standard for determining whether or not
a statute is vague, when a statute is challenged as overbroad this court must
evaluate whether or not the statute’s language “literally encompasses
constitutionally protected activity.” State v. Forbes, 918 S.W.2d 431, 448 (Tenn.
Crim. App. 1995). The appellant does not allege any constitutionally protected
activity which would be encompassed by the instant statute, nor do we find that the
instant statute is overbroad.

7
(Tenn. Crim. App. 1994)(citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92

S.Ct. 2294 (1972))(“[i]t is a fundamental tenet of due process that a statute is void

for vagueness if the conduct which it prohibits is not clearly defined”). Vague

statutes implicate due process by failing to provide adequate notice to a criminal

defendant of proscribed conduct and by inviting arbitrary and discriminatory law

enforcement. Forbes, 918 S.W.2d at 448. Accordingly, the standard for

determining whether or not a statute is unconstitutionally vague has also been

articulated by this court in the form of a two part test:

1. The statute “must ‘give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly;’” and
2. The “statute ‘must provide explicit standards’ to prevent ‘arbitrary and
discriminatory enforcement.’”

Lakatos, 900 S.W.2d at 701 (citations omitted).

The statute challenged by the defendant provides, in pertinent parts:

(a) It is unlawful for any person to knowingly fail to
appear as directed by a lawful authority if the
person: ...
(2) Has been lawfully released from custody, with or
without bail, on condition of subsequent
appearance at an official proceeding or penal
institution at a specified time or place; ...
(b) It is a defense to prosecution under this section that: ...
(2) The person has a reasonable excuse for
failure to appear at the specified time and
place ... .

Tenn. Code Ann. § 39-16-609.

The appellant in the instant case contends that this statute is vague, because

the terms “official proceeding” and “reasonable excuse” are ambiguous. Moreover,

the appellant contends that the ambiguity of the statute constitutes an

“unconstitutional delegation of legislative authority and duty.”

8
 The term “official proceeding” must be considered “in the context of the

statements of law contained in the relevant statutes and court rulings.” State v.

Lyons, 802 S.W.2d 590, 592 (Tenn. 1990). The State correctly notes that the term

“official proceeding” is defined in our criminal code. Tenn. Code Ann. § 39-11-

106(25) (1996). The provision states:

“Official Proceeding” means any type of administrative, executive,
legislative or judicial proceeding that may be conducted before a public
servant authorized by law to take statements under oath.

Thus, we note that, in State v. Forbes, 928 S.W.2d at 448, this court concluded that

Tenn. Code Ann. § 39-16-503(a)(2), the statute setting forth the offense of

tampering with or fabricating evidence, provided sufficient notice to the accused of

the prohibited conduct, despite the legislature’s use of the phrase “official

proceeding.”

We conclude that the phrase does not render the failure to appear statute

unconstitutionally vague.3 Moreover, in this case the record reflects that the

Williamson County Circuit Court released the appellant on bail and ordered him to

report to the Clerk’s office in order that the Clerk might process the revocation of his

Community Corrections sentence.4 A person of ordinary intelligence would

understand that failure to appear as ordered by the trial court would constitute

conduct encompassed by the statute at issue in this appeal.

The appellant additionally challenges the use by the legislature of the phrase

3
The appellant argues in his brief that the statute “does not define which
proceedings a defendant is compelled to attend.” However, contrary to the
appellant’s assertion, the statute does provide that the appellant is to attend those
official proceedings which he has been directed to attend by a lawful authority.
Tenn. Code Ann. § 39-16-609(a).
4
Tenn. Code Ann. § 18-6-114 (1997) provides that county clerks are
empowered to take affidavits and administer oaths.

9
“reasonable excuse” in setting forth a defense to failure to appear. Tenn. Code Ann.

§ 39-16-609(b)(2). In evaluating the appellant’s contention, this court should

consider “the natural and ordinary sense of the words of the statute and the ‘use of

common experience.’” Lyons, 802 S.W.2d at 592. Moreover,

[t]he vagueness doctrine does not invalidate every statute which a
reviewing court believes could have been drafted with greater
precision. ... Nor does the fact that a statute ... applicable in a wide
variety of situations, must necessarily use words of general meaning,
because greater precision is both impractical and difficult, render that
statute unconstitutionally vague.

Id. Accordingly, our supreme court has further observed that “the probability that

individuals or courts may disagree on the application of a statute in close factual

situations, is wholly insufficient to support a charge of unconstitutional vagueness.”

Dorrier v. Dark, 537 S.W.2d 888, 893 (Tenn. 1976).

Indeed, this court has previously held that the use of a reasonableness

standard does not render a statute unconstitutionally vague. State v. Cooper, No.

01C01-9708-CR-00368, 1998 WL 668263, at *3 (Tenn. Crim. App. at Nashville,

March 30, 1998)(holding that language “fashioned to lead a victim to reasonably

believe it to be a deadly weapon,” contained in the aggravated robbery statute, is

not unconstitutionally vague). The reasonableness standard “pervades our legal

system and rests with the intelligence, experience, and common sense of judges

and juries.” Id. See also State v. Hurd, 400 N.W.2d 42, 45 (Wis. Ct. App.

1986)(use of the standard of reasonableness does not itself render a statute

unconstitutionally vague). Furthermore, other jurisdictions have approved similar

phrases. See, e.g., Commonwealth v. Love, 530 N.E.2d 176 (Mass. Ct. App.

1988)(phrase “without sufficient excuse” was not unconstitutionally vague); State v.

Timmons, 706 P.2d 1018 (Or. Ct. App. 1985)(phrase “without lawful excuse” in a

criminal nonsupport statute was not unconstitutionally vague). See also Model

Penal Code § 242.8 (Proposed Official Draft 1962)(bail jumping statute utilizes the

10
phrase “without lawful excuse”). We similarly conclude that the phrase “without

reasonable excuse” survives constitutional scrutiny in the instant case.

Finally, in holding that the failure to appear statute is not unconstitutionally

vague, we also reject the appellant’s claim that the manner in which the statute is

applied in Williamson County violates the appellant’s right to equal protection under

the law. The appellant has failed to adequately explain how application of the

statute at issue here creates any class of individuals or targets a class of individuals

for differential treatment. Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988). Law

enforcement authorities and the courts in Williamson County may be called upon to

apply the failure to appear statute differently in different factual circumstances;

however, “things which are different in fact or opinion are not required by either [the

United States or Tennessee constitutions] to be treated the same.” Id. If this were

not true, no criminal statute would survive constitutional scrutiny. Thus, this court

has observed that “state officials enjoy broad discretion in determining what cases

are selected for prosecution. ... That discretion does not violate the principles of

equal protection unless the choice to prosecute is ‘deliberately based upon an

unjustifiable standard such as race, religion or other arbitrary classification.” State v.

Bowen, No. 03C01-9612-CR-00460, 1997 WL 789899, at *6 (Tenn. Crim. App. at

Knoxville, December 23, 1997). This issue is without merit.

B.

The appellant next asserts that the trial court erred by denying the appellant's

Motion in Limine to prohibit the State during trial from impeaching the appellant with

his prior conviction for failure to appear. The appellant specifically contends that the

prejudicial effect of the prior conviction for failure to appear would have outweighed

any probative value pursuant to Tenn. R. Evid. 609.

11
 Tenn. R. Evid. 609(a) provides that a witness, including the accused in a

criminal prosecution, may be impeached by evidence that he has previously been

convicted of a crime if the following procedures are followed:

(1) The witness must be asked about the conviction on cross-examination.
...
(2) The crime must be punishable by death or imprisonment in excess of
one year under the law under which the witness was convicted or, if
not so punishable, the crime must have involved dishonesty or false
statement.
(3) If the witness to be impeached is the accused in a criminal
prosecution, the State must give the accused reasonable notice of the
impeaching conviction before trial, and the court upon request must
determine that the conviction’s probative value on credibility outweighs
its unfair prejudicial effect on the substantive issues.

The appellant in his brief correctly notes that the trial court, during the jury-out

hearing conducted for the purpose of addressing the appellant’s Motion in Limine,

did not articulate his application of the balancing test set forth above. Rather, the

court merely concluded that, because defense counsel had remarked during the

appellant’s opening statement that he hoped to demonstrate that the appellant is a

“decent person,” defense counsel “opened the door” to evidence concerning the

appellant’s prior convictions, including his prior conviction for failure to appear.

Accordingly, it appears that the trial court ruled upon the admission of the

appellant’s prior conviction for failure to appear on the basis of Tenn. R. Evid. 404,

governing the admission of character evidence of the accused in a criminal

prosecution, rather than pursuant to Rule 609. Interestingly, the trial court made this

determination after already ruling on two separate occasions, once pre-trial and

once in response to an objection by defense counsel during the presentation of the

State’s case, that the jury should not be informed that the appellant had previously

been convicted of failure to appear.

12
 Initially, rule 404(a)(1) does provide, generally, that the prosecution may offer

evidence of a pertinent character trait to rebut such evidence offered by the

accused. See also Tenn. R. Evid. 405(a). However, this court has held that,

because opening statements by counsel are not evidence, such statements will not

alone “open the door” for the prosecution to introduce evidence of other crimes.

State v. Traylor, No. 01C01-9104-CC-00124, 1992 WL 14140, at *2-*3 (Tenn. Crim.

App. at Nashville, January 31, 1992). Opening statements by defense counsel

simply provide nothing for the State to rebut. Id. Thus, the trial court erred in

determining that defense counsel had “opened the door” to admission by the State

of the appellant’s prior conviction for failure to appear. 5

Rule 404(b) specifically governs the admission of evidence of other crimes as

substantive evidence. This evidence will only be admissible as relevant to issues

such as motive, intent, identity, rebuttal of accident or mistake defenses, and the

existence of a larger continuing plan, scheme or conspiracy of which the crime on

trial is a part. State v. Hall, 958 S.W.2d 679, 707 (Tenn. 1997), cert. denied,

U.S. , 118 S.Ct. 2348 (1998). As under Rule 609, under Rule 404 the trial court

must comply with certain procedural requirements:

(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.

As noted earlier, the trial court in the instant case failed to comply with these

procedural requirements.

5
In any event, even had defense counsel “opened the door,” the court, under
Tenn. R. Evid. 405, would still have had to determine that the probative value of the
conviction outweighed its prejudicial effect upon the substantive issues.

13
 Although the standard of review of the trial court’s decision concerning the

admissibility of evidence is normally abuse of discretion, our supreme court has held

that the decision of the trial court to admit evidence pursuant to Rule 404(b) should

be afforded no deference unless there has been substantial compliance with the

procedural requirements of the rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997). Thus, this court must review this issue de novo on the basis of evidence

presented at the jury-out hearing.

Because the appellant stipulated at trial that he had failed to appear as

directed by a lawful authority, the only issues remaining at trial were whether or not

the appellant “knowingly” failed to appear and whether or not he possessed a

“reasonable excuse” for failure to comply with the court’s order. The appellant

testified in a jury-out hearing that he would have testified before the jury that he

forgot to appear on the appointed date due to his heavy workload and his mother’s

illness. Thus, the appellant’s prior conviction for failure to appear would have been

highly probative on the issue of the requisite mental element, i.e., whether or not the

appellant “knowingly” failed to appear.

We wish to emphasize that this is not a propensity argument. In other words,

the probative value of the appellant’s prior conviction is not that, having once failed

to appear without reasonable excuse, the appellant was likely to do so again.

Rather, the probative value of the prior conviction is that, having been convicted one

year earlier of failure to appear and sentenced to two years incarceration in the

Tennessee Department of Correction, the appellant was unlikely to forget to appear

at another proceeding as ordered by the court. In this manner, the reasonable

excuse defense as applied in this case is analogous to an accident or mistake

defense in response to which evidence of other crimes may be admitted. While

14
acknowledging that this issue is an extremely close one, we conclude that, pursuant

to Rule 404(b) of the Tennessee Rules of Evidence, the appellant’s prior conviction

was admissible to rebut the appellant’s defense.6

C.

The appellant next argues that the trial court erred by overruling the

appellant’s objection to the State’s recitation of a pattern jury instruction during

closing argument. Because closing argument is a valuable privilege for both the

State and the defense, courts generally afford wide latitude to counsel in presenting

final argument to the jury. State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.), cert.

denied, U.S. , 119 S.Ct. 343 (1998). However, “[a]lthough counsel may

summarize the law during closing arguments, the possibility of misstatement of the

law makes this an undesirable practice.” State v. Croom, No. 3, 1988 WL 63503, at

*3 (Tenn. Crim. App. at Jackson, June 22, 1988)(citing State v. Smith, 626 S.W.2d

283, 285 (Tenn. Crim. App. 1981). Nevertheless, a correct statement of the law by

a prosecutor during closing argument will not constitute error. Id. The prosecutor in

the instant case merely recited to the jury the pattern jury instructions concerning the

defense of reasonable excuse, T.P.I. Crim. No. 27.02, and correctly noted that, in

the absence of proof of reasonable excuse, the State was not required to disprove

6
With respect to Rule 609, the similarity of the prior offense to the crime on
trial would militate against its use for impeachment purposes. See, e.g., State v.
Blanton, 926 S.W.2d 953, 959 (Tenn. Crim. App. 1996). However, “[t]he mere fact a
prior conviction of the accused is identical or similar to the offense for which the
accused is being tried does not, as a matter of law, bar the use of the conviction to
impeach the accused as a witness.” State v. Harris, No. 02C01-9612-CR-00447,
1998 WL 12673, at *5 (Tenn. Crim. App. at Nashville), perm. to appeal denied,
(Tenn. 1998). Rather, the court must analyze the relevance of the prior conviction to
the issue of credibility and balance its relevance against any prejudicial effect upon
substantive issues. Due to the closeness of this issue and the availability to the
prosecution of the appellant’s prior forgery convictions, it may be that the prior
conviction for failure to appear would not have been admissible for impeachment
purposes pursuant to Rule 609.

15
the defense beyond a reasonable doubt. This issue is without merit.

D.

The appellant further argues that the trial court erred by overruling the

appellant's objection to the State's reference, during closing argument, to the

appellant’s failure to present a defense. The appellant specifically objects to the

prosecutor’s comment that, because defense counsel stated in his opening

statement that the appellant is a decent person, defense counsel should have

presented proof in support of his statement. It is constitutionally impermissible for a

prosecutor to comment upon the accused’s silence during the course of trial. State

v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim. App. 1996). See also State v.

Stanley, No. 03C01-9704-CR-00123, 1997 WL 789965, at *14 (Tenn. Crim. App. at

Knoxville, December 23, 1997). Moreover, the prosecutor should refrain from

comments reflecting unfavorably upon defense counsel or tactics employed by

defense counsel at trial. Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.

1995). Nevertheless, this constitutional error may be harmless if it can be

established that this transgression was harmless beyond a reasonable doubt.

Transou, 928 S.W.2d at 960.

In the instant case, the trial court instructed the jury, “[The defendant] is not

required to take the stand in his own behalf, and his election not to testify cannot be

considered for any purpose against him, nor can any inference be drawn from such

fact.” After reviewing the record, we conclude that, beyond any reasonable doubt,

the prosecutor’s comments did not affect the verdict to the prejudice of the

appellant. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). This issue is

without merit.

16
 E.

The appellant's fifth and final complaint is that the trial court erred by ordering

the appellant to serve his sentence for failure to appear consecutively to his

sentences for the underlying offenses.

On December 8, 1997, the trial court conducted a sentencing hearing in the

appellant’s case. Both the State and the Appellant relied upon the pre-sentence

report. The pre-sentence report reflects a history of prior convictions including the

following: one felony conviction for failure to appear, three Class D felony

convictions for forgery, one Class E felony conviction for forgery, and three Class A

misdemeanor convictions for worthless checks. The State asserted the following

enhancement factors: (1) the appellant had a previous history of criminal convictions

in addition to those necessary to establish the appropriate range; (13)(a) the offense

was committed while the appellant was on bail; (15) the defendant abused a

position of private trust owed to his bondsman. Tenn. Code Ann. § 40-35-114

(1997).

The appellant argued, and the State conceded, that mitigating factor (1), that

the appellant’s criminal conduct neither caused nor threatened serious bodily injury,

is applicable in the instant case. Tenn. Code Ann. § 40-35-113 (1997). The

appellant further argued that, on the basis of his offer of proof to the trial court, the

court should apply factor (7), that the appellant was motivated by a desire to provide

necessities for himself and his family, and factor (11), concerning the appellant’s

lack of a sustained intent to violate the law. Finally, the appellant argued that, under

factor (13), the court should give weight to the lack of violent or drug-related activity

17
in the appellant’s criminal history. 7

The trial court concluded that the mitigating and enhancement factors

“balanced out.” He accordingly imposed a minimum sentence of four years.

However, he did further order that the appellant’s sentence be served consecutively

to the appellant’s sentences for the felonies underlying the instant offense. The

court observed that a failure to impose consecutive sentencing would constitute a

failure to impose any punishment at all.

Again, on appeal, the appellant is challenging only the trial court’s imposition

of consecutive sentencing. Generally, when there is a challenge to the manner of

service of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d) (1997). However, this court only applies this presumption if the

record reveals that the trial court adequately considered sentencing principles and

all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing

Commission Comments provide that the burden is upon the appellant to

demonstrate the impropriety of the sentence.

The appellant correctly notes that the trial court failed to state on the record

the rationale for imposing consecutive sentencing, other than the trial court’s

observation that to fail to impose consecutive sentencing would be to fail to impose

any sentence at all. See Tenn. R. Crim. P. 32(c)(2) (“the judgment to make the

sentences ... consecutive shall explicitly recite the judge’s reasons therefor”).

7
We note that the pre-sentence report reflects that, in fact, the appellant has
used cocaine in the past.

18
Nevertheless, upon de novo review and absent the presumption of correctness, we

conclude that the record supports the trial court’s determination.

In the instant case, Tenn. Code Ann. § 39-16-609(f) specifically provides that,

in imposing a sentence for failure to appear, a trial court may order a consecutive

sentence. See State v. Rankin, No. 03C01-9511-CC-00369, 1996 WL 469678, at

*5 (Tenn. Crim. App. at Knoxville, August 19, 1996). Moreover, we note, and it is

undisputed, that the appellant’s record of criminal activity is extensive. See Tenn.

Code Ann. § 40-35-115(b)(2) (1997). When a defendant falls within the statutory

classifications for eligibility to be considered for consecutive sentencing, the only

remaining considerations are whether (1) the sentences are necessary in order to

protect the public from further misconduct by the defendant and whether (2) "the

terms are reasonably related to the severity of the offenses." State v. Wilkerson,

905 S.W.2d 933, 938 (Tenn. 1995). The appellant’s sentence is consistent with

these principles. See, e.g., State v. Noble, No. 02C01-9701-CC-00060, 1998 WL

32681, at *3 (Tenn. Crim. App. at Jackson, January 30, 1998). This issue is without

merit.

III. Conclusion

For the reasons stated above, we AFFIRM the appellant’s conviction for

failure to appear, and we further affirm the sentence imposed.

NORMA MCGEE OGLE, Judge

CONCUR:

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JOHN H. PEAY, Judge

JOSEPH M. TIPTON, Judge

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