IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
August 14, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 03C01-9704-CR-00138
)
Appellee )
) HAMILTON COUNTY
V. )
) HON. DOUGLAS A. MEYER,
ALBERT CHRISTIAN PADGETT, ) JUDGE
)
Appellant. ) (Especially Aggravated Kidnapping,
) Aggravated Rape, Aggravated
) Robbery, Theft)
)
)
For the Appellant: For the Appellee:
Alan R. Beard John Knox Walkup
737 Market Street, Suite 601 Attorney General and Reporter
Chattanooga, TN 37402
Timothy F. Behan
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
William H. Cox, III
District Attorney General
C. Leland Davis
Assistant District Attorney
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
The appellant, Albert Christian Padgett, appeals as of right his convictions in
the Hamilton County Criminal Court of especially aggravated kidnapping, two counts
of aggravated rape, two counts of aggravated robbery, and theft over $1,000. He
received an effective sentence of 103 years.
Appellant argues on appeal:
(1) that the trial court erred in allowing separate convictions for
aggravated rape and especially aggravated kidnapping based upon the
same criminal episode;
(2) that the trial court erred in allowing two convictions for aggravated
rape when both rapes occurred at the same time and involved the same
victim; and
(3) that the trial court erred in failing to instruct the jury on the defense of
necessity.
After a thorough review of the record, we find no reversible error. Accordingly, we
affirm the judgment of the trial court.
Sometime after 11:00 p.m. on September 30, 1994, the victim, Carol Hill, was
walking to her home on North Chamberlain Avenue in Chattanooga. At that time, she
and her boyfriend were living across the street from her parents in the same
neighborhood where the victim spent her childhood. When she was approximately
400 yards from her home, the victim noticed the headlights of a car approaching from
behind. The car swerved over toward her and pulled alongside where she was
walking. The passenger, a black male whose face was partially covered by a
bandana, displayed a sawed-off shotgun and ordered her to drop to her knees. The
victim fell down on the street and the passenger got out of the car and began
rummaging through her purse. The passenger found five dollars and told the driver,
who was standing nearby, “We can use this for gas money.” While continuing to point
the gun at her, the passenger then ordered the victim to get into the backseat of the
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car. He also got into the backseat, and the driver, later identified as appellant,1 began
to drive. The men then directed the victim to get undressed. As she was doing so,
appellant drove several blocks to Glenwood Drive and then turned in to a secluded
alleyway.
Appellant joined the victim and the passenger in the backseat and the men
proceeded to rape the victim. While appellant anally penetrated the victim, the
passenger forced her to perform fellatio. Appellant then ordered the victim to turn
over and he vaginally raped her. Following these acts, the men told the victim to get
dressed and appellant resumed his position at the wheel. He drove the victim back to
where they initially accosted her and the passenger pushed the victim out of the
moving car. As the car drove away, the rear tire ran over the victim’s left leg.
The victim ran to a nearby residence, but was unable to garner any response
from the residents. Fearing the men would come back for her, she hid in the yard until
she was able to stop an approaching cab, which took her the short distance home
where she called the police. Appellant was apprehended several weeks later in
Volusia County, Florida and was returned to Tennessee.
Appellant was later indicted for the aggravated robbery of Carol Hill, the
especially aggravated kidnapping of Carol Hill, one count of aggravated rape by anal
penetration, and one count of aggravated rape by vaginal penetration. Based on
events that occurred prior to the abduction of Ms. Hill, appellant was also indicted for
the aggravated robbery of Joseph Sims and theft over $1,000 for stealing a car from a
restaurant parking lot.
When the indictments were read to the jury at trial, appellant pled guilty to the
theft of the automobile, the aggravated robbery of Joseph Sims, and the aggravated
rape of Carol Hill by vaginal penetration. The remaining charges were tried by a jury.
At the conclusion of the proof, the jury returned verdicts finding appellant guilty of the
1
The victim identified the appellant from a photo lineup prior to trial and also made an in-court
identification.
3
aggravated robbery of Carol Hill, the especially aggravated kidnapping of Carol Hill,
and the aggravated rape of Carol Hill by anal penetration.
At a subsequent sentencing hearing, appellant received the maximum sentence
for each offense.2 He was sentenced to twenty-five years for the especially
aggravated kidnapping, twenty-five years on each of the aggravated rapes, twenty
years for each aggravated robbery, and eight years for theft over $1,000. The
especially aggravated kidnapping sentence was ordered to be served concurrently to
the aggravated robbery of Carol Hill, but the remaining sentences were ordered
served consecutively for an effective sentence of 103 years.
Appellant first argues that the separate convictions for especially aggravated
kidnapping and aggravated rape violate his due process rights. He contends that the
kidnapping was essentially incidental to the rape, and therefore, a separate conviction
is unconstitutional. We cannot agree.
Appellant relies upon State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In
Anthony, the court recognized that due process of law will not permit a kidnapping
conviction where the detention of the victim is merely incidental to the commission of
another felony, such as robbery or rape. Id. at 306. In order to determine whether the
confinement, movement, or detention is significant enough in and of itself to warrant
an independent prosecution, the court must determine whether the defendant’s
conduct substantially increased the risk of harm over and above that necessarily
present in the accompanying felony. Id.
Recently, our supreme court elaborated on the relevant considerations in
determining whether separate convictions for rape and kidnapping violate a
defendant’s due process rights. State v. Dixon, 957 S.W.2d 532 (Tenn. 1997). In
Dixon, the defendant accosted the victim on a well-lit sidewalk, assaulted her, and
2
For the Class A felonies, appellant was sentenc ed as a Range I standard offender. However,
because of his previous record, appellant was classified a Range II multiple offender for the remaining
convictions.
4
then dragged her into a vacant lot behind overgrown vegetation where he attempted to
sexually assault her. Id. at 533. In holding that the defendant’s convictions for
aggravated kidnapping and attempted sexual battery did not violate due process, 3 the
court first considered whether the movement or restraint was beyond that necessary
to consummate the accompanying sexual assault. Id. at 535. The supreme court also
found it relevant that the defendant’s movement or confinement of the victim: (1)
prevented the victim from summoning help; (2) lessened the defendant’s risk of
detection; or (3) created a significant danger or increased the victim’s risk of harm. Id.
Applying those considerations to the instant case, we hold that appellant’s
conduct was sufficient to warrant separate convictions for the kidnapping and rape.
The confinement of the victim and the attendant movement was unnecessary to
consummate the rape. See id. The victim was accosted on the street in a well-
populated neighborhood and robbed of her personal belongings. She was then forced
into a waiting car, transported several blocks, and brutally raped. Neither confining
the victim in the car nor transporting her was requisite to the rape. Had appellant and
his companion so desired, they could have perpetrated the sexual assault on the
street.
It is also apparent that the movement prevented the victim from summoning
help. Id. Appellant removed the victim from familiar surroundings on a public street
only a short distance from her home. Had the sexual offenses been committed on the
sidewalk, there would have been a far greater potential for the victim’s rescue. Also,
because appellant confined the victim in the car, any cries for help were likely
unheard.
In addition, the movement lessened the appellant’s risk of detection. Id.
Appellant drove the car to a secluded location and pulled off the main thoroughfare
3
The defendant was also convicted of aggravated assault, but the court omitted it from the
Anthony analysis because it clearly was not incidental to either the aggravated kidnapping or attempted
sexua l battery. Dixon, 957 S.W.2d at 535.
5
into a dark alley. The possibility of discovery in that location was far less than in the
well-populated neighborhood where the victim knew many of the residents.
Although the victim did not sustain serious injuries, we believe, as did the Dixon
court, that by lessening the risk of detection, appellant increased the risk of harm to
the victim.4 Id. Certainly the potential for harm was great since the perpetrators were
armed with a shotgun. All the relevant factors support separate convictions.
Appellant’s case is significantly different from the scenario in Anthony in which
the confinement was incidental to the accompanying felony. Here, appellant’s
confinement of the victim cannot be considered incidental to the rape. See State v.
Michael Eugene Duff, No. 03C01-9501-CR-00008 (Tenn. Crim. App. at Knoxville,
February 8, 1996), perm. app. denied (Tenn. 1996) (affirming convictions for
aggravated kidnapping and aggravated rape where defendant moved victim from side
of road to dark parking lot of closed restaurant). As our supreme court stated,
Anthony is not meant to provide the rapist a free kidnapping merely because he also
committed rape. Dixon, 957 S.W.2d at 534. Accordingly, we find that the
confinement and movement of the victim supports an independent conviction for
especially aggravated kidnapping.
Appellant contends that his two convictions of aggravated rape violate
principles of double jeopardy because they both occurred at the same time and
involved the same victim. He argues that only one conviction of aggravated rape was
appropriate under the circumstances. Appellant’s issue is without merit.
While the double jeopardy clause of the Fifth Amendment generally provides
protection against multiple prosecutions and convictions, appellant’s argument
specifically implicates multiplicity, the protection against multiple punishments for the
same offense. State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996). The evil sought
4
The only injuries the victim suffered were an abrasion to her knee and a sprained ankle.
6
to be avoided in such cases is the improper division of conduct into discrete offenses,
thereby creating several offenses out of a single offense. Id. at 665.
“Although separate acts of intercourse may be so related as to constitute one
criminal offense, generally rape is not a continuous offense, but each act of
intercourse constitutes a distinct and separate offense.” Id. At 664 (quoting 75 C.J.S.
Rape § 4 (1952 & Supp. 1995)). Additionally, both vaginal and anal intercourse are
separately defined by Tennessee Code Annotated section 39-13-501(7) as discrete
types of sexual penetration prohibited by Tennessee Code Annotated section 39-13-
502.
Nevertheless, it is conceivable that separate acts of intercourse may be so
related as to constitute one criminal offense. Id. In order to ensure that sexual
offenses, such as those presented in appellant’s case, are not multiplicitous, the
following factors should be considered: (1) the nature of the act; (2) the area of the
victim’s body invaded by the sexually assaultive behavior; (3) the time elapsed
between the discrete conduct; (4) the accused’s intent, in the sense that the lapse of
time may indicate a newly formed intent to again seek sexual gratification or inflict
abuse; and (5) the cumulative punishment. Id. at 665. No single factor is
determinative of the issue.
The two counts of aggravated rape in appellant’s indictment specified two
methods of sexual penetration: anal and vaginal. The victim’s testimony clearly
supports two separate acts. Initially, appellant instructed the victim to get on her
hands and knees in the backseat of the car. He positioned himself behind the victim
and penetrated her anally. The victim was forced to perform fellatio on the co-
defendant simultaneously. At some point, these acts stopped and appellant instructed
the victim to turn over, at which time he entered her vaginally. Considering that the
two acts involved differing body positions and that appellant invaded different areas of
the victim’s body each time, we consider the acts to be discrete. The two convictions
of aggravated rape are not multiplicitous.
7
Appellant also contends that the trial court erred in denying his request to
instruct the jury on the defense of necessity. He alleges the instruction was warranted
in the face of his own testimony that he was fearful of the armed co-defendant and
that after the robbery of Joseph Sims, he no longer wanted to participate. We agree
with the trial court’s ruling that there was no evidence to support the charge.
It is incumbent upon a trial court to give the jury a complete charge of the law
based upon the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.),
cert. denied, 476 U.S. 1145, 106 S.Ct. 2261, 90 L.Ed.2d 706 (1986) (citation omitted).
With regard to necessity, the jury should be so instructed where admissible evidence
fairly raises the defense. State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App.
1994). The burden then falls on the state to prove beyond a reasonable doubt that
the defense does not apply. Id.; State v. Hood, 868 S.W.2d 744, 748 (Tenn. Crim.
App. 1993).
The defense of necessity provides that criminal conduct is justified if: (1) the
person reasonably believes the conduct is immediately necessary to avoid imminent
harm; and (2) the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought to be prevented
by the law proscribing the conduct. Tenn. Code Ann. §39-11-609 (1991). The
defense of necessity is applicable in “exceedingly rare situations where criminal
activity is an objectively reasonable response to an extreme situation.” Tenn. Code
Ann. §39-11-609 Sentencing Commission Comments.
In support of that defense, appellant testified that the aggression the co-
defendant showed during the perpetration of the first aggravated robbery indicated to
him that he would not go home alive. He testified that he was scared and before they
saw Ms. Hill, he told the co-defendant that he no longer wanted to participate in the
criminal enterprise. With regard to the rape, appellant testified that the co-defendant
told him “Come back here and get some.” He testified that the way the co-defendant
motioned the gun and “the look in his eye” scared him. Although expressing his fear
8
of the co-defendant, appellant stated that he did not believe he would “blow his brains
out.”
Such testimony fails to show that appellant was threatened with imminent
bodily harm or that the desirability and urgency clearly outweighed the harm of
committing the crime. Appellant never testified that the co-defendant threatened him
with bodily harm, or that he attempted to harm him. In contrast, his testimony
demonstrated that he was high on crack cocaine that night, had planned to commit
robberies in order to obtain more drugs, and participated voluntarily in the criminal
enterprise. As a result, the trial court was under no duty to charge the defense of
necessity. See State v. Scotty Davenport, No. 01C01-9611-CR-00477 (Tenn. Crim.
App. at Nashville, February 18, 1998).
Our review of the record indicates that the proof presented at trial sustains each
of appellant’s convictions and that appellant was not entitled to an instruction on the
defense of necessity. The judgment of the trial court is affirmed in all respects.
_______________________________
William M. Barker, Judge
CONCUR:
____________________________
Joseph M. Tipton, Judge
____________________________
Curwood Witt, Judge
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