### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecember

4, 2001 STATE OF TENNESSEE v. DONALD MAYS Direct Appeal from the Criminal Court for Shelby County Nos. 99-10842, 43 Joseph B. Dailey, Judge

No. W2001-00030-CCA-R3-CD - Filed February 7, 2002

The Appellan

t, Donald May s, appealsthe verdict of a Shelby County jury

finding him guilty of

one count of agg ravate d robber

y a nd two cou

nts of esp ecially

agg ravated kidnapping. May s was sentenced to 30 years for aggravate d robbery a nd to 60 years on e ach count of kidnapping. The kidnapping sentences were ordered to be se rved con curren

tl y, but consecutive to the a ggravated robbery sentence, for an effective se ntence of 90 y ears. On ap pe al , M ays raises the following issues for our review: (1) whether the evidence presented at trial is sufficient to support the verdict; (2) whether there was a material variance betwee n the indictment and the proof ; and (3) whether

May s’ two convictions for kidna pping c onstitute d

ouble jeo pardy . After r

eview, w e find Ma

ys’ multiple convictions for kidnapping vi ol ate double jeopardy principles. Accordingly , one count of kidnapping is dismissed. In all other respects, the remaining judgme nts of conviction are affirmed. Tenn. R. App. P. 3; Judgment of the Criminal Court is Vacated and Dismissed in Part; Affirmed in Part.
D AVID G. H AYES , J., delivered the opinion of

the court, in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined.
AC Wharton, Jr., Shelby County Publi c Defe nder; W. Mark Wa

rd, Assist ant Shelby

County Publi c Defend er, Memphis, Tennessee, f or the Ap pellant, Donald Ma

ys. Paul G. Summers, Attorney General and R epor ter; Mich ael Moor e, Solicito

r Gener al; Patric ia C. Kussmann, Ass istant Attorney Gene ral; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the Appellee, State of Te nnessee.-2- OPINION
Factual Ba

ckground
On June 17,1999, at approximately 8:00 a.m., Viola Ta ylor and her n

ineteen -y ear-ol d daughter, Dayton Smith, drove into downtown Memphis to pay a bill. Ms. Tay

lor park ed her c ar in an alley nea

r the rear entrance

of the Jeffe rson Bui lding and entere d the build ing to pa y the bill. Miss Smithwaited in the front passenger seat of the 1991 Toyota Corolla. The front windows were rolled down an d t he ve hi cl e w as un lo ck ed . M s. Ta ylo r l ef t t he ke ys in the ignition

so her da ughter could listen to the radio.
As Miss Smith waited in the vehicle, the Appellan t approa ched the car fr om behind, got into the driver’ s seat, and “pulled a gun” on Miss Smith. The Appellant commandeered the vehicle and as he drove away , he explai ned that he had just gotten out of jail and needed some money . The Appell ant asked Smith if she wanted to accompany him, but she replied “no.” The Appellan t de mandedthat Smith give him “e very thing [she ] had.” Smith

complied

and ga ve him t wo ring s worth approximately $500. As the Appellant drove, he searched Smith by g

ra bbing he r bra and trying to loo

k down her

shirt. Despite S mi th’s rep eated r

equests t o let her out of the

vehicle , the Appe

llant con tinued to drive recklessly. The

Appellant did not stop at intersections and travele d at a high rate of speed. Smithtestified that she repeatedly asked the Appellant to slow down because she was frightene d, buthe refu se d. As the Appellant slowed down to proceed through an inter section on Lauderdale, Smithopened th

e door to t

he vehic le and jumpe d out. Although she injured her arm and leg , she managed to run bac

k to Jeffer son wher

e her mot her was waiting with a security of ficer and the Memphis Police. Approximat

ely two weeks later, the Ap pellant approached Derrick Houston, a re sident of West Memphi s, Arkansas, and discussed rental of the stolen Toy ota. The Appellant offered to let Houston rent his car for an hour. Houston agreed and rented the car for $9 and a r ock of cocaine. Houston and his girlfriend spent the night riding around in the vehicle. At approximately 4:30 a.m., Houston was pulled over by law enforcement officers in Arka nsas for driving a stol en vehi cle. Houston informed officers that he had rented the car from the Appe llant. At trial, Houston identified the Appellant as the person who had rented him the stolen vehicle.
In August of

1999, Mis s Smith was s hown a photo line-up consisting

of six men. Smi

th immediate

ly identified the Appellant as being the person who kidnapped he r andstole her

mother’s vehicle. Smith testif

ied that sh

e had no doubt that th

e Appella nt was th e person who committed these crimes. A week prior to trial, Tay lor was changing a flat tire w hen she disco vered a

white glove under her spare tire in the trunk of the car. The name “May s” was written on the glove.-3- I. Double Je

opardy
The Appellant

was indicted upon two separa te cou nts o f espec iall y aggravated kidn appin g. Count 1 charged that the Appellant did unlawfully “re

move” the victim by use of a deadly we apon, while Count 2 cha

rged th at the App ellant did “confine” the vi ctim by

use of a dea

dly weapon, both violations of T ennesse e Co de Annotated § 39-13-305. The offense of especially ag gravated kidnapping is committed when a person “knowingly removes or confines another unlawfully so as to in te rf er e s ub st an ti al ly w it h t he ot he r’ s l ib er ty, ” Tenn. C ode Ann. § 39-13-30 2(a), a nd “is accomplishedwith a deadly we apon . . .,” Tenn. Code Ann. § 39-13-305(a)(1). The Appellant was convictedunder bo th counts o f the indictment. He contends , howeve

r, that d ual c onvictions for especia lly aggravated kidnapping

violate th e double jeopardy pr

ovisions of both the Tennessee and United States Cons tit utions. Spe cifically, he arg ues that p ermitting

both convictions to s tand, in effec t, allows the State to create “separate cr iminal offenses arising from one kidna pping.”The State concedes the error.
Constitutional provisions protect a person from more than once being placed in jeopardy

of conviction of a crime. U.S. Const. amends. V, XIV; Te nn. Const. a rt. I , § 10. For

offense s to support multiple c onviction s, they must be “w

holly separa te and dis tin ct.” Stat e v. Goins , 705 S.W.2d 648, 650 (Tenn. 1986).
In State v. Phillips , 924 S.W.2d 662 (Tenn. 1996), our supreme court se t forth pr inciples t o be co ns id er ed wh en de te rm in in g i ss ue s o f d ou bl e j eo pa rd y: (1) A single o ffense

may not be divided into separate parts; genera lly, a s in gle wrongful act may

not furnish the basis for more than one criminal prosecution; (2) If each offense charg ed requires proof of a fact not required in proving the other, the offenses are not multiplicitous; and (3) Where time and location separate and distinguish the commission of the offense s, the offenses cannot be said to have arisen out of a single wrongful act.
Id. at 665.
The State concedes th at separ ate convictions for kidnapping are not warra nted because the sameevidence was us ed to prov e bothoffenses, and both charges re lated to and grew out of one criminal epi sode. Only one period of continuous unlawful confinement occurred. The victim’s confinement began

when the Appellant entered the vehicle, pointed a g un at the victim, and drove off with the vi ctim in

the passenger seat. Confinement continued until the victim jumped from the car as the Appellant slowed near a stop sign. A single, wrongful act may not fur

nish a basis for more than one criminal prosecution. Phillips , 924 S.W.2d at 665. Because we find double jeopardy

has1 Robbery is the “ intent ional or knowing t heft of prope rty f

rom the per son of a nother by viol ence orputt ing the person in fear.” Tenn. Cod e Ann . § 39-13-40 1(a). Robbery becomes aggravat ed when it

is accompli shed wit

h a dea dly weapon or by di spla y of any arti cle used orfas hioned t o lea d the vi cti m to reas onably be li eve it to be a d ead ly weapo n or wh ere the victim suffers seri ous bodily injury. Tenn. Co de An n. § 39-13-4 02(a)(1) and (2). -4- occurred, we vacate and dismiss Count 1 of the Appellant’s convictions for especially aggravated kidnapping and the accompany ing sentence. II. Sufficiency of the Evidence
The Appellant argues that the evidence presented at trial is insuffi cient to su pport the verdict

. As such, we examine the App ella nt’s remaining conviction for especially aggravated kidnapping under Co un t 2 of

th e i nd ic tm en t a nd hi s c on vi ct io n f or ag gr av at ed ro bb er y und er a sufficiency review of the evidence. 1 The Appellan t conte nds that the evidence of hisidentity as the culprit is insu ffic ient

under the Jackson

v. Virgini

a standar d. The Ap

pellant a sserts tha

t his convi ction is based solely upon one e

yewitness identification, De rrick Houston.
A jury conviction removes the presumption of innocence with which a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicte d defendant has the burden of demonstrating that the e

vidence is insufficient. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determ ining the sufficiency of the evidence, this Court does not reweigh or reevaluat e th e evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). L ikewise, it is not the

duty of this Courtto revisit

questionsof witnes s credibility on appea l, that function being within the province of the trier of fact. See gen erally State v. Adkins , 786 S.W.2d 642, 646 (T enn. 1990 ); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Inste ad, the de fendant must estab lish that the evide nce pre sented a

t trial wa s so deficient that no reasonable trier of fact could have found the essential elements of the offense bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2 789 (1979 ); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e).
In the present case, Miss Smith testified at trial that the Appellant entered her vehicle, “pulled a gun on her,” and demanded any thing of monetary

value. The Appellant took Smith’s jewelry. As the Appellan

t w as d riving, Miss Smith asked the Appellant to let her out of the vehicle, but he refused. The Appellant finally jumped f r om the car as it was moving in order to escape . Two months after the incident, Smith positively identified the Appe llant as the person who kidnappedher and took her

mother’s vehicle. Smith testified that she had no doubt whatsoever that the Appellant was her kidnapper. Furthermore, Houston testified that he had “rented” the stolen vehicle from the Appellant only hours before being pulled over by law e

nforcement officers. Finally , Taylor testified that she found a

glove b earing

the Appellant’s la st

name under the spare tire. Taking the evidence presented at t ri al in the li ght most f

avorabl e to the Sta

te, we find that the

evidenc e was cle arly sufficient to support

the Appellant’s convictions for aggr avated robbery

and especially

aggravated kidnapping. This is sue is with out merit.-5- III. Indict

ment
The Appellan

t argue s that a

material variance exists between the proof established at trial a nd the indictmen

t that cha rges him w i th aggravated robbe ry. Specifica

lly, he contends that he wa s charged with robbery by

violence, but

that the evidence introduced at trial only established that the robbery was committed by putting the victim in fea r. See Tenn. Code Ann. § 39-13-401(a) (robbery “is the intentional or knowing theft of property fr

om the person of another by violence or

putting the person in fear”).
As corr ec tl y asserted by the Appellant in his brief, “a material variance oc curs when a prosecutor

attempts t

o rely at trial o n theorie s and evidence that are not fairly embraced in the allegations of the indictment.” State v. Mayes , 854 S. W.2d 63 8, 64 0 ( Te nn . 1 99 3) . C on ve rs el y, where th e p ro of

an d t he in di ct me nt su bs ta nt ia ll y c or respond, there is no variance. Our robber y statute may be applied in two wa ys: (1) a taking

of goods by

violence; or (2) a taki n g of goods by putting the person in fear.
In the present case, the indictment charging the Appellant with ag gravated robbery read in releva nt part: [Thatthe Appell ant], a nd be fo re th e f in di ng of th is in di ct me nt , d id un la wf ul ly, kn ow in gl y, and viole

ntly , by use of a d eadly weapon, to wit: a pisto l, obtain from the person of Day

ton Smith, tw o rings a

nd a motor

vehicle , all over

the valu e of on e thousand dollars but under the value of ten thousand dollars of the proper goods and chattelsof Day

t on Smith, in violation of T.C.A. 39-13-402, against the peace and dignity of the State of

Tennessee.
In support of his argument that a material variance exists, the Appellan

t cites State v. F

itz , 19 S.W.3d 213 (Tenn. 2000), wherein our supreme court he ld that violence, as used

in th e o ff en se of ro bb er y, is evi dence of phy sical force unlawfully exercised so as to damage, injure, or abuse. Id. at 217

. Black’s Law

Dictionary def

ines abuse as “phy sical maltreatment.” B LACK ’ S L AW D ICTIONARY 11 (5 th ed. 1979).
In Fitz , the defendant entered a convenience store and asked to write a check. When the clerk openedthe cash

regist er, the d efenda nt shoved t

he cler k with both h ands, knoc king him into a cigar ettedi sp la y. The defendant then grabbed mone y out of the cash r

egister drawer and fled. O ur suprem e court held that the defendant’s actions were suf ficient to establish that the rob bery wa s committed with violence. Fitz , 19 S.W.3d at 217.

In thi s case, the Appellant unlawfully entered Smith’s vehicle and began driving . After demanding her jewelry , the Appellant grabbed Smith’s bra and looked down her shirt in an attempt to “searc h” her f or mo re mo ney. Althoug

h acknowledging that the question is close, we c onclude that the Appellant’s touching of the victim in a private area constituted physical forc e so as to abuse-6-

and, thus, fulfills the definition of robbery committed with violence. Accordingly , we find that there was no variance between the indictment and the proof e stablished at trial and that t he evidence presented at trial was sufficient to support the Appellant’s conviction for aggra vated robbe ry through the use of violence, i.e. phy sical force unlawfully exercised so as to abuse.

CONCLUSION
After review, we find that the Appellant’s two convict ions for especially

aggravated kidnapping violate the double jeopardy pro visio ns of both the United States and Tennessee Constitutions. Thus, the judgment of conviction for especially aggravated kidnapping

as returned under Count 1 is vacated and dismissed. The Appellant’s remaining convictions fo r e special ly aggravated kidnapping

and aggravated r

obbery ar e affirmed.

___________________________________ DAVID G. HAYES, JUDGE