IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
October 19, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9801-CC-00025
Appellee, )
) GILES COUNTY
VS. )
) HON. ROBERT L. JONES,
JIMMY LEGG, ) JUDGE
)
Appellant. ) (Aggravated Kidnapping)
FOR THE APPELLANT: FOR THE APPELLEE:
RAYMOND W. FRALEY, JR. JOHN KNOX WALKUP
JOHNNY D. HILL, JR. Attorney General and Reporter
205 East Market Street
P. O. Box 572 LISA A. NAYLOR
Fayetteville, TN 37334-0572 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
ROBERT C. SANDERS
Assistant District Attorney General
10 Public Square
P. O. Box 1619
Columbia, TN 38402-1619
OPINION FILED:
CONVICTION REDUCED TO FALSE IMPRISONMENT
JOE G. RILEY,
JUDGE
OPINION
The defendant, Jimmy Legg, was convicted by a Giles County jury of
aggravated kidnapping and sentenced by the trial court to a term of eight (8) years
in the Department of Correction. On appeal, he raises the following issues for our
review:
1. whether the evidence was sufficient to support
the verdict;
2. whether prosecutorial misconduct deprived him
of a fair trial;
3. whether the trial court erred in disallowing
defense counsel to question the alleged victim as to
bias;
4. whether the trial court erred in permitting the
introduction of certain medical records;
5. whether the trial court erred by instructing the
jury to disregard a portion of defense counsel's final
argument; and
6. whether the trial court erred in failing to charge
aggravated assault and simple assault as lesser
included offenses.
After a careful review of the record, we reduce the conviction to false imprisonment.
FACTS
In October of 1993, defendant’s wife, the victim, was separated from the
defendant. The victim resided with her daughter across the Tennessee line in
Athens, Alabama. The defendant maintained a residence in Giles County,
Tennessee.
The defendant arrived at the victim’s Alabama residence at approximately
8:00 a. m. on October 19. Upon being reassured by the defendant that nothing was
going to happen to her and that the defendant just wanted to talk, the victim and
their daughter got in the truck with the defendant. Defendant drove a short distance
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to the barn and asked the daughter to get out of the truck. The victim also tried to
exit the vehicle but was pulled back by the defendant. The defendant drove off with
the victim.
While driving around, the defendant questioned the victim as to “what [she]
had been doing.” Whenever she would try to answer him, the defendant struck her
with his fist. The defendant also threatened her with a gun and told her that he was
going to kill her.
The defendant drove the back roads of Alabama. At some point the
defendant stopped for gasoline. The defendant eventually crossed into Tennessee
and secured a motel room at the Sands Motel in Giles County. The victim testified
that the defendant did not beat her while at the motel. The victim did not realize she
was in Tennessee until the next morning, October 20. The victim’s face was
swollen and bruised extensively about her eyes.
On October 20 someone at the motel called the Giles County Sheriff’s
Department concerning the condition of the victim. Upon seeing the officers, the
defendant told the victim to enter the bathroom and be quiet. One of the officers
spoke with the victim through the bathroom door which was partially open. The
victim refused to come out and insisted her facial injuries were the result of an
automobile accident and a subsequent fall. She refused to go with the officers and
repeatedly asked them to leave. The victim testified that she did not leave with the
officers because she feared the defendant would shoot her and/or the officers.
The officers inspected the inside of the truck and found numerous spots of
blood. The officers found no evidence that the truck had been involved in any kind
of accident. Nevertheless, the officers left the motel.
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The defendant decided to pay for another night’s lodging at the motel. He
informed the victim that when he got back, he “was going to pick up where we left
off.” When he left the room, the victim feared the assaults would recommence and
exited the room. She sought the assistance of a motel patron several doors down.
The authorities were summoned, and the victim was eventually taken by ambulance
to the hospital where she was released after treatment.
Photographs were taken of the victim at the sheriff’s department on October
20. These photographs reveal extensive bruising and swelling of the victim’s face.
The defendant testified at trial that the victim willingly went with him. He
denied striking her and stated her injuries were caused when he suddenly hit his
brake while driving. He further testified she fell at the gas station and injured her
nose and eyes. In summary, the defendant denied any forcible confinement or
assault upon the victim.
The jury was charged as to the indicted offense of especially aggravated
kidnapping with serious bodily injury and the lesser offenses of aggravated
kidnapping, simple kidnapping and false imprisonment. The jury convicted the
defendant of the lesser offense of aggravated kidnapping.
SUFFICIENCY OF THE EVIDENCE
In separate portions of his brief, defendant alleges the state failed to
establish venue in Giles County and failed to prove the elements of aggravated
kidnapping beyond a reasonable doubt. The state, on the other hand, contends the
victim was falsely imprisoned in Alabama, received “bodily injuries” there, and the
false imprisonment continued into Tennessee where it was consummated. Thus,
the state argues that venue was proper in Giles County, and the evidence supports
the conviction for aggravated kidnapping.
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A. Venue/Jurisdiction
The defendant contends the state failed to establish venue in Giles County.
He insists there was a complete absence of proof as to any assault occurring in
Giles County, and the victim’s confinement terminated when she failed to escape
at the gas station when she had an opportunity to do so.
The crucial issue in this case is not so much one of venue as it is territorial
jurisdiction. Tenn. R. Crim. P. 18(d) provides that, assuming this state has
“jurisdiction,” offenses committed wholly or partly outside this state may be
prosecuted in any Tennessee county in which an element of the offense occurs.
This provision establishes venue if, and only if, this state has jurisdiction.
Tenn. Code Ann. § 39-11-103 provides that an offense commenced outside
this state and consummated in this state may be prosecuted in the county where
the offense was consummated. This statute relates to jurisdiction.
The removal and confinement of the victim certainly commenced in Alabama.
The assaults leading to personal injury all occurred in Alabama. The confinement
of the victim continued while the victim was in Tennessee.
Tennessee’s jurisdiction statute, Tenn. Code Ann. § 39-11-103(b)(1), limits
our jurisdiction where an offense involves actions committed in both Tennessee and
another state. If an offense is “commenced” outside this state and “consummated”
in this state, Tennessee has jurisdiction. Tenn. Code Ann. § 39-11-103(b)(1).
However, if the offense is “consummated” in another state where it also
“commenced,” Tennessee does not have jurisdiction.
The state’s position at trial was that this kidnapping episode began in
Alabama and terminated in Tennessee with the arrest of the defendant. However,
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our jurisdiction statute is not based upon the termination of the episode. Our statute
is based upon the consummation of the “offense,” not the episode. For an offense
commenced outside the state, the consummation of the “offense” must be in
Tennessee for jurisdictional purposes. See Jones v. State, 409 S.W.2d 169, 171-
72 (Tenn. 1966) (discussing consummation of an “offense” relative to venue).
The indictment alleged especially aggravated kidnapping “[w]here the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-305(a)(4). At trial it was the
state’s theory that the victim was assaulted in Alabama where she received her
personal injuries with her confinement continuing into the state of Tennessee. The
state insists the defendant was properly convicted of the lesser offense of
aggravated kidnapping “[w]here the victim suffers bodily injury.” Tenn. Code Ann.
§ 39-13-304(a)(4).
We are constrained to conclude that the “offense” of aggravated kidnapping
was consummated in Alabama, not Tennessee. The elements of aggravated
kidnapping are (1) removal or confinement substantially interfering with liberty, and
(2) the victim suffers bodily injury. Tenn. Code Ann. § 39-13-302(a), 304(a)(4).
Both elements were met in Alabama; thus, the offense was consummated in
Alabama. The fact that the victim’s confinement extended into Tennessee does not
mean the aggravated kidnapping was “consummated” here.1
This Court is aware of the general rule that a “continuing crime,” although
complete in the jurisdiction where first committed, may continue to be committed,
and may also be punished in another jurisdiction. 22 C.J.S Criminal Law §
161(b)(1989). However, the Tennessee statute forbids jurisdiction if the offense is
both “commenced” and “consummated” outside this state. Tenn. Code Ann. § 39-
11-103(b)(1). In this case the offense of aggravated kidnapping was commenced
and consummated in Alabama.
1
We are aware of nothing that would preclude a prosecution in Alabama.
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The recent case of State v. Lon Mitchell Pierce, Jr., C.C.A. No. 03C01-9703-
CR-00117, Sullivan County (Tenn. Crim. App. filed September 10, 1998, at
Knoxville), is distinguishable. In Pierce the defendant participated in the theft of an
automobile in Florida. Eventually, a high speed chase ensued in Tennessee
resulting in the death of a Tennessee police officer. The defendant was convicted
of felony murder in Tennessee, the underlying felony being the theft of the
automobile. This Court concluded Tennessee had jurisdiction of the felony murder
as the defendant exercised control over the stolen car in Tennessee, and the death
occurred in Tennessee. Pierce is distinguishable since the homicide was
consummated in Tennessee and not outside this state. Although the original theft
of the automobile was in Florida, it continued into Tennessee by defendant’s
exercise of control over the automobile. However, the homicide was committed in
Tennessee. Thus, jurisdiction was proper. If the homicide had been committed in
Florida and the defendant fled to Tennessee and exercised control over the
automobile in Tennessee, then Tennessee would not have jurisdiction over the
felony murder.
We, therefore, conclude that Tennessee did not have jurisdiction over the
offense of aggravated kidnapping involving bodily injury. Nevertheless, Tennessee
has jurisdiction over false imprisonment since this offense was committed within this
state. See Tenn. Code Ann. 39-11-103(a). Furthermore, venue was proper in Giles
County as the location of the unlawful confinement. See T. R. Crim. P. 18(a).
B. Sufficiency of the Evidence - False Imprisonment
False imprisonment is a lesser included offense of aggravated kidnapping.
Thus, when the jury found the defendant guilty of aggravated kidnapping, that
finding necessarily included a finding of the elements of false imprisonment. We
now examine the sufficiency of the evidence for false imprisonment in order to
determine whether the conviction may be reduced.
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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).
Accordingly, it is the appellate court's duty to affirm a 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, 317, 99 S.Ct. 2781, 2789, 61 L.
Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
Defendant’s primary contention is that the victim had numerous opportunities
to escape the alleged confinement, yet she did not do so. He contends the victim’s
testimony was so inherently incredible, so contrary to the teachings of basic human
experience, and so completely at odds with common sense that no reasonable
person could believe her beyond a reasonable doubt.
Although the victim conceded that there were times she was out of the
defendant’s presence, she chose not to attempt an escape because he was only
gone a short period of time. She further testified she feared the defendant because
of the previous threats. For this reason also, she did not go with the police officers
upon their first visit to the motel. She finally escaped and sought assistance
because the defendant told her that “upon his return to the motel room, he would
pick up where they left off.”
The jury rejected the testimony of the defendant and accredited the
testimony of the victim. It was the jury’s prerogative to do so. According to the
victim’s testimony, the defendant confined her unlawfully in Giles County so as to
substantially interfere with her liberty. The evidence was sufficient to establish false
imprisonment.
PROSECUTORIAL MISCONDUCT
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Defendant contends that prosecutorial misconduct on three (3) separate
occasions should have resulted in a mistrial being declared by the trial court. The
determination of whether to grant a mistrial rests within the sound discretion of the
trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). The reviewing court
should not overturn that decision absent an abuse of discretion. State v. Hall, 947
S.W.2d 181, 184 (Tenn. Crim. App. 1997). Our review of prosecutorial misconduct
consists of considering five factors to determine whether the prosecutor’s
statements affected the verdict. State v. Davis, 872 S.W.2d 950, 953-54 (Tenn.
Crim. App. 1993); Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
These are (1) the conduct complained of viewed in the context and in light of the
facts and circumstances of the case; (2) any curative measures undertaken by the
court and the prosecution; (3) the intent of the prosecutor in making the improper
statement; (4) the cumulative effect of the improper conduct and any other errors
in the record; and (5) the relative strength and weakness of the case. Judge, 539
S.W.2d at 344.
A. Voir Dire
Defendant contends the prosecutor engaged in misconduct during voir dire
when he made reference to a prior case in which a man was acquitted of an alleged
assault upon his wife. Upon objection by the defendant, the trial court prohibited the
prosecutor from making reference to a specific prior case. The prosecutor then
clarified his question and asked jurors if they could follow the law even if the
defendant and the victim were married.
The prosecutor had no improper intent, and this line of questioning of
potential jurors was indeed relevant. Furthermore, defendant has demonstrated no
prejudice. Tenn. R. App. P. 36(b).
This issue is without merit.
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B. Blood Splattering
Defendant next complains of two instances in which the prosecutor
improperly referred to “blood splattering” evidence. In a pre-trial motion, the trial
court deferred ruling as to whether the investigating officer could be qualified as an
expert on blood splattering. The trial court further instructed counsel that the matter
was not to be mentioned to the jury pending a jury-out hearing.
During opening statement the prosecutor advised the jury that the
investigating officer would be testifying about blood splatters as an expert witness.
There was no objection by the defendant. The issue is waived. State v. Seay, 945
S.W.2d 755, 762 (Tenn. Crim. App. 1996).
Ultimately, the officer testified only as to his factual observations of the blood
found in the truck. We conclude the defendant was not prejudiced by the
prosecutor’s reference in opening statement to the investigating officer as an expert
witness in blood splattering.
Defendant further complains the prosecutor disregarded the court’s pre-trial
instructions by asking the investigating officer about the blood found in the vehicle.
The trial court determined that the officer could testify as to his observations but not
offer expert opinion. The witness then testified about his observations of the blood
found in the truck’s interior. There was no prosecutorial misconduct, nor was the
defendant prejudiced. Tenn. R. App. P. 36(b).
This issue is without merit.
VICTIM BIAS
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Defendant contends the trial court erred in disallowing questions as to the
alleged victim’s bias. The trial court excluded testimony from the victim regarding
an alleged offer by the victim to discontinue prosecution in exchange for the sum
of $25,000. The trial court found the testimony related to an offer of compromise
and was not admissible under Tenn. R. Evid. 408. We agree with the defendant’s
contention that the evidence was admissible under Tenn. R. Evid. 616 in order to
show bias of a witness.
The proffered testimony of the victim arguably revealed that she agreed to
terminate prosecution for a payment of $25,000. The money was not paid, and
prosecution proceeded. In her divorce complaint the victim requested $25,000, but
ultimately was awarded only $5,000.
A. Tennessee Rules of Evidence 408
Tenn. R. Evid 408 is inapplicable. In the criminal context, the rule expressly
states that offers of compromise are inadmissible in an attempt to “prove liability for
... a criminal charge or its punishment.” See N. Cohen, D. Paine & Sheppeard,
Tennessee Law of Evidence, § 408.2 (3d ed. 1995). However, in this instance the
offer of compromise was not sought to be introduced to prove guilt of a criminal
charge; but rather to show a witness’ bias or prejudice. The rule expressly provides
that it does not exclude evidence being offered for this purpose. Thus, Tenn. R.
Evid. 408 has no applicability.
B. Tennessee Rules of Evidence 410
The state contends Tenn. R. Evid. 410 prohibits the introduction of this
evidence. This rule prohibits the introduction of statements made in the course of
plea discussions with a prosecuting attorney which do not result in a guilty plea.
Statements by a victim of a crime made to defense counsel are not covered by the
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rule.
C. Tennessee Rules of Evidence 616
This testimony regarding possible bias of the victim was admissible pursuant
to Tenn. R. Evid. 616 which provides that a witness may be cross-examined as to
bias or prejudice against a party. See State v. Reid, 882 S.W.2d 423, 428 (Tenn.
Crim. App. 1994). Further, cross-examination as to bias of a witness against the
accused involves the constitutional right of confrontation. See Davis v. Alaska, 415
U.S. 308, 316-17, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Reid, 882
S. W. 2d at 428. Thus, the trial court erred in limiting the cross-examination of the
victim.
D. Harmless Error Analysis
Having found error, we must now determine whether the error was harmless.
A violation of the right to confrontation may be deemed harmless if this Court may
confidently say, based on the whole record, that the constitutional error was
harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673,
681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); Chapman v. California, 386 U.S.
18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
We conclude the error was harmless beyond a reasonable doubt. In
subsequent examination of the victim, she conceded that she sought $25,000 in her
divorce action and received only $5,000. She was thoroughly cross-examined as
to her hostility toward the defendant. Evidence of her confinement in Giles County
based upon fear and threats was overwhelming. In light of the entire record, we
conclude this evidentiary error was harmless beyond a reasonable doubt. Tenn. R.
App. P. 36(b).
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This issue is without merit.
MEDICAL RECORDS
Defendant contends the trial court erred in admitting certain medical records
under the business records exception to the hearsay rule. See Tenn. R. Evid.
803(6). At trial the defendant contended the introduction of the medical records
without explanation was prejudicial to the defendant in reference to the victim’s
injuries. The defendant also objected to the introduction of the victim’s statements
on the medical report that she had been assaulted and beaten. Defendant suffered
no prejudice as to the medical report’s description of her injuries. Furthermore, the
victim’s statements on the medical report that she had been assaulted and beaten
were cumulative and harmless.
This issue is without merit.
FINAL ARGUMENT OF DEFENSE COUNSEL
Defendant next contends the trial court improperly sustained the state’s
objection to a portion of defense counsel’s final argument. During the cross-
examination of the victim, defense counsel asked if the victim told the Tennessee
prosecuting authorities that “the Alabama Court had enjoined [her] from intimidating,
aggravating, harassing, threatening, or assaulting Jimmy Legg.” The victim replied
that she had not. There was no independent proof offered as to whether there was
such an order. During final argument defense counsel stated that the victim “had
to be enjoined and restrained from a Court in Alabama.” The prosecutor objected
and stated there was no evidence to support this statement. The trial court noted
that the victim had testified she did not advise prosecuting authorities of such an
order; however, the trial court concluded that her testimony did not establish that
there was in fact such an order in existence.
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We agree with the trial court’s determination. Furthermore, if there was error,
it was clearly harmless. Tenn. R. App. P. 36(b).
FAILURE TO CHARGE LESSER OFFENSES
Finally, defendant contends the trial court erred by failing to instruct the jury
on the offenses of aggravated assault and assault as lesser included offenses of
especially aggravated kidnapping. In light of the reduction to false imprisonment,
we decline to address this issue.
CONCLUSION
The conviction for aggravated kidnapping is vacated and reduced to false
imprisonment. Defendant is sentenced to 11 months and 29 days. The case is
remanded for entry of a modified judgment.
_____________________________
JOE G. RILEY, JUDGE
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CONCUR:
______________________________
JOSEPH M. TIPTON, JUDGE
______________________________
THOMAS T. WOODALL, JUDGE
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