IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 5, 2012

STATE OF TENNESSEE v. THEOTUS BARNETT

Appeal from the Criminal Court for Shelby County

No. 11-00038 James C. Beasley, Judge

No. W2012-00048-CCA-R3-CD - Filed May 22, 2013

The defendant was convicted of especially aggravated kidnapping, a Class A felony, and

aggravated robbery, a Class B felony. He was sentenced to twenty-five years for the

kidnapping conviction and to a consecutive ten years for the aggravated robbery, for a total

effective sentence of thirty-five years. On appeal, the defendant claims that: 1) the evidence

is insufficient to support his conviction; 2) the trial court erred by failing to apply a

mitigating factor at sentencing; and 3) the trial court erred by imposing consecutive

sentences. After a careful review of the record, we find no error and affirm the judgments

of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which CAMILLE R.

MCMULLEN and JEFFREY S. BIVINS, JJ., joined.

Stephen Bush, District Public Defender; and Barry Kuhn, Assistant Public Defender,

Memphis, Tennessee, (on appeal); and Rusty White, Assistant Public Defender, Memphis,

Tennessee, (at trial), for the appellant, Theotus Barnett.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Flemming and Kirby May,

Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION

FACTS AND PROCEDURAL HISTORY

On January 1, 2011, the defendant, Theotus Barnett, was indicted on one count of

especially aggravated kidnapping in violation of Tennessee Code Annotated section 39-13-

305 and one count of aggravated robbery in violation of Tennessee Code Annotated section

39-13-402. The charges against the defendant resulted from an incident that occurred at a

U-Store-It facility on September 11, 2010. At the defendant’s trial on September 19-21,

2011, the State presented the testimony of five witnesses.

The victim, Ashley Rankin, testified that on September 11, 2010, she was working

alone at a U-Store-It facility located on Austin Peay Highway in Shelby County. She

testified that she was eight months pregnant at the time. She testified that between 9:30 a.m.

and 10:30 a.m. that morning, the defendant (whom she identified in open court) entered the

facility indicating that he was a potential client. He looked at several storage units. Ms.

Rankin testified that the defendant was wearing a blue baseball cap with a star logo in the

middle, a pale blue button-down shirt, and blue jeans. She testified that after he finished

looking at the storage units, she wrote down the various prices for him. The defendant told

her that he would make a decision that afternoon and perhaps return later in the day.

The victim testified that the defendant returned to the facility around 12:30 p.m. and

asked to see one of the storage units again. She took the defendant to look at the unit again.

As they were re-entering the office, the defendant placed her in a choke hold. The victim

testified that she panicked and began to struggle, at which point the defendant started

punching her. She testified that the defendant pulled her to the floor and repeatedly hit her

in the face. The defendant also told her that he could shoot her and “nobody would hear a

thing.” The victim testified that she eventually ceased struggling out of fear for the safety

of her unborn child.

The victim testified that the defendant instructed her to go sit in a chair in a nearby

break room. Once there, the defendant asked her about the money in the facility’s cash

register, and they walked to the front together and retrieved the cash before returning to the

break room. The defendant then began to interrogate the victim concerning accounts with

the company. The victim informed him that she could not access client accounts. The victim

testified that the defendant started asking her about the facility’s surveillance system, and

they again walked to the front office, where she turned off all of the cameras at the

defendant’s request. The victim testified that the defendant demanded to see her

identification, and she walked back to the break room, retrieved her purse, and gave him an

unspecified identification card belonging to her.

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The victim testified that the defendant instructed her to sit back down in the chair in

the break room. The victim surmised that some customers had just arrived. The defendant

informed her that “they’re not leaving,” and the victim informed him that “usually they will

leave after a few minutes if they don’t see anybody coming out front.” However, the

customers did not leave. Instead, they walked around the building and knocked on the doors

and windows.

The victim testified that the defendant began to hit her in the head again, and then he

hit her in the back with the point of his gun, knocking her to the ground. The defendant then

threatened to kill her, and told her that he had her identification and that he knew where she

lived. The defendant told her that if she said anything to anyone concerning the robbery, he

would kill her and her whole family. The victim testified that the defendant hit her in the

head with his gun a total of eight times. The victim testified that the defendant abruptly

stopped hitting her in the head and pulled out a knife and held it to her neck. She testified

that she told the defendant “after you’ve done all this . . . now you’re going to cut me,” and

the defendant put the knife away.

The victim testified that she told the defendant that the customers were not going to

leave unless someone went outside to service them. She testified that she instructed the

defendant concerning how to access the facility’s computer system and look up client

accounts. She testified that the defendant asked her if there was any blood on him, and she

told him “no.” She testified that the defendant went to the front of the store. The victim

testified that she did not call out for help because the defendant had told her that if she did

so, he would shoot the customers and then return and shoot her. The victim testified that the

defendant returned after approximately five minutes and instructed her to give a fake

description and license tag number to the police. She testified that the defendant told her that

if she failed to do so, he had a partner who would know where she lived and where she

worked and would “get” her. The defendant then placed the victim’s cell phone down on a

table and told her to give him twenty minutes to escape.

The victim testified that the minute that she was sure that the defendant was gone, she

locked the doors to the office. Then she pressed the facility’s panic button and turned the

surveillance cameras back on. She testified that she realized that the police would need to

be able to enter the building in order to assist her, so she unlocked the front doors and then

collapsed. Someone entered the room shortly afterward, raised her up, and told her that he

was calling 911. She testified that the police arrived sometime afterward, but she could not

remember much of what happened next due to her trauma. The victim testified that she was

transported by ambulance to the hospital. She testified that she was treated for six or seven

lacerations to the head which required “a lot of stitching” to close.

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The victim testified that the entire incident lasted from one to two hours. The victim

testified that only five minutes elapsed between the time that the defendant placed her in a

choke hold and the time that she gave the defendant the money from the cash register. The

victim estimated that five to ten minutes passed between the time that the defendant took the

money from the register to the time that the customers first arrived. The victim estimated that

only two or three minutes passed between the time the defendant left the facility and the time

that someone came in to assist her.

The victim testified that two days after the incident, the police came to her house and

showed her a photographic array. She testified that she identified the defendant as her

attacker from this array, which was entered into evidence.

On cross-examination, the victim testified that she was seeing a psychiatrist

concerning her memory loss due to post-traumatic stress disorder. The victim also admitted

that she could not testify for certain concerning the amount of time that passed during the

incident. The victim testified that she might have been knocked unconscious for periods of

time by one or more of the defendant’s blows. The victim testified that the defendant wore

a hat and sunglasses throughout the incident. The victim denied that the police had shown

her a single photograph of the defendant before they showed her the photographic array

containing his picture.

Ms. Sherita Douglas testified that she went to the U-Store-It facility on Austin Peay

on September 11, 2010, to pay a bill on a storage unit that her mother had rented there. She

testified that she arrived at the facility between 12:00 p.m. and 12:30 p.m., with her two

children in tow. She testified that she had been to this particular facility on prior occasions

to pay her mother’s bills. When she arrived and found that the front door to the office was

locked, she waited outside because she knew from past experience that an employee might

arrive to unlock the door if she waited for a few minutes. She testified that after waiting

about ten minutes, she called her mother to confirm that the facility ought to be open, and

then she walked around the building, knocking on its doors and windows. She testified that

she saw a gold Tahoe or Yukon model SUV in the parking lot near the office as well as

another vehicle parked further away.

Ms. Douglas testified that after she had been at the facility for twenty-five or thirty

minutes, she set off her car alarm in an effort to attract an employee. About five minutes

after she set off the alarm, another car pulled into the parking lot, and a gentleman and his

son got out. She asked them if they worked at the facility, and they informed her that they

did not. The new arrival also circled the building knocking on doors and windows.

Afterward, the man and his son slipped through a gate and searched the facility’s lot. By the

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time they returned from this fruitless endeavor, an hour had passed since Ms. Douglas had

arrived at the facility.

Ms. Douglas testified that she became concerned that something unusual was

happening and called the police. She informed the police thatshe was not sure that “anything

was going wrong,” but that she was “very concerned” because she had been outside of the

facility for an extended period and no one had arrived. Ms. Douglas testified that shortly

after she placed her call to the police another gentleman “came and opened the door and he

fanned us in.” She testified that this individual was wearing a Dallas Cowboys’ hat, a blue

shirt, and blue jeans. She testified that this individual appeared to be nervous. The

individual informed her that he had been sick and had been suffering from diarrhea all day,

and he explained that he had not heard anyone at the door.

Ms. Douglas entered the building with her children. Ms. Douglas testified that she

was not able to pay her mother’s bill because the individual who had let her in was not able

to pull up her account. She testified that she noticed blood on this individual’s right hand and

informed him that he was bleeding. She testified that she became convinced that something

was “not right,” and she tried to get the attention of the male customer to draw his attention

to the individual’s wound. Ms. Douglas testified that she told the individual that she needed

to call her mother because the amount owed on her account was not right, and he told her to

go outside to get better reception. However, she did not leave because she did not want to

leave her children alone in the building with the stranger. Eventually, she found an

opportunity to have a private conversation with the other customer, and they discussed the

blood they saw on the individual behind the counter. She told the other customer she was

going to go get her children and call the police. She spoke with the man behind the counter

again, who told her to come back in an hour when his supervisor would be there and he

would be able to help her. She left the building, drove across the street, and called the police.

Ms. Douglas testified that three or four minutes after she left, the man behind the

counter left the building, got into the gold-colored Tahoe or Yukon SUV, and drove away

at a speed well in excess of sixty-five miles per hour. She testified that she wrote down the

license tag number of the SUV. From the stand, she identified the defendant as the man she

saw behind the counter and driving the SUV.

Ms. Douglas testified that after the defendant left the storage facility, she returned to

the building and waited for the police to arrive. She did not re-enter the facility. She spoke

with police at the scene. Ms. Douglas testified that on September 13, 2010, the police

showed her a photographic array at her home. She testified that she identified the defendant

from this photographic array, which was entered into evidence.

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On cross-examination, Ms. Douglas testified that she was inside of the facility with

the defendant for a total of five or six minutes. She testified that the defendant wore a hat

and sunglasses the entire time. She also denied that the police had shown her a single shot

photograph of the defendant prior to the time that they showed her the photographic array.

She testified that she was very certain of her identification of the defendant because she was

extremely concerned and nervous during the long minutes that she and her children spent in

the room with him. She testified that sunlight was entering the room from the outside and

that this light allowed her to see the shape of the defendant’s eyes and the fact that he had a

scar under one eye. After her testimony was completed, the court permitted the defendant

to stand in front of the jury for inspection to determine whether or not he had a scar under

one eye.

Mr. Anthony Boyd testified that on September 11, 2010, he and his son went to the

U-Store-It facility on Austin Peay Highway to rent a storage unit. When they arrived, there

were three individuals trying to get inside the facility to make a payment on a storage unit.

He testified that he walked around the facility twice in a fruitless attempt to gain entry. He

testified that the “young lady” in front informed him that she was concerned that something

was wrong. The young lady also pointed out that there was a car parked in the back of the

parking lot where the employees normally parked. Mr. Boyd testified that he also saw a

gold-toned Yukon SUV parked in front of the building. As he and his son went to walk

around the building for a third time, the young lady yelled to him that someone was inside,

and they entered the building.

Mr. Boyd testified that once inside, he overheard the conversation between the young

lady and the gentleman who had let them in. The gentleman was explaining to the young

lady that he could not access the facility’s computer system because the female employee on

duty had taken ill, and he had just taken her to the hospital. He testified that while the man

was attempting to access the computer, he noticed “blood droppings” on the man’s pants.

He also noticed that the young lady was trying to signal to him under the counter. He

suggested that the young lady go outside to call her mother to determine the amount owed

on the unit. He caught the woman and they briefly conversed about the blood that they saw

on the man behind the counter. He told the woman to leave and call the police, and he went

to the counter and started asking the man questions about a storage unit.

Mr. Boyd identified the defendant in open court as the man behind the counter that

day. He testified that the defendant was wearing a wrinkled hat and a wrinkled blue jean

shirt. He testified that he spoke with the defendant for several minutes, and during that time

the defendant’s story kept changing. At first, the defendant claimed that he had diarrhea.

Later, he claimed that the young lady who worked there had become sick and had been

rushed to the hospital. The defendant first claimed that the girl’s boyfriend would return so

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that he could leave, and he later indicated that he was waiting for someone else. Mr. Boyd

testified that the scene continued until “it was just getting a little crazy.” He testified that he

eventually told the defendant that he would just return on Monday.

Mr. Boyd testified that he followed the young lady across the street to watch what

would happen. The defendant emerged from the facility less than two minutes later. Mr.

Boyd told the young lady to call 911, and then he went back to the facility. As he returned,

the defendant appeared to panic and sped away. Mr. Boyd testified that he followed the

defendant long enough to obtain his vehicle license tag number.

Mr. Boyd testified that he returned and re-entered the building. He saw the victim

raise her bloody head over the counter and ask for help. He testified that victim had dried

blood all over her head and appeared to have been injured “for quite a while.” He testified

that the victim passed out after requesting assistance.

Mr. Boyd testified that he gave a statement to the police when they arrived. He also

gave the police the license tag number of the gold-colored SUV. He testified that the police

showed him a photographic array later that day, but the array that he was shown did not

contain a picture of the perpetrator, and he informed the police of this fact. He testified that

the police showed him a second photographic array sometime later, and he identified the

defendant as the perpetrator from that second array, which was entered into evidence. Mr.

Boyd testified that he was “100 percent” certain that he had correctly identified the

perpetrator from the second photographic array.

On cross-examination, Mr. Boyd testified that he was positive that he was at the

facility for a total of an hour and a half on the day in question. Mr. Boyd testified that he

never saw the individual behind the counter without his sunglasses or a hat on. Mr. Boyd

was also cross-examined extensively concerning his prior statement to police, in which he

mentioned that the defendant had claimed to have had diarrhea on the day in question but did

not mention that the defendant “kept changing his story.”

Following thistestimony, the defendant’s ex-girlfriend, Ms. Sharon Mayhue, testified

that in September of 2010 she drove a 2004 Chevy Tahoe. She testified that the papers listed

the SUV as silver, but it was actually a “shimmery” color that appeared to be gold. She

testified that on September 11, 2010,she drove her vehicle to the grocery store approximately

10:00 a.m. or 11:00 a.m. and returned home about half-an-hour to an hour later. She testified

that her vehicle had last been cleaned two or three weeks previously and that the car was in

“junkie” condition. She testified that she noticed that her vehicle’s license tag was missing

when she returned home with her groceries. Ms. Mayhew testified that the police came to

visit her two days later and asked her questions about her vehicle.

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Officer Terry Johnson of the Memphis Police Department testified that he was one

of the first responders to the scene of the incident. He testified that he arrived at the storage

facility around 1:30 p.m. and that he discovered Ms. Douglas and Mr. Boyd at the scene

speaking to another officer. He testified that he entered the front building and discovered the

victim lying on the floor in a puddle of blood. He testified that another room located down

the hallway “had blood all over everything, on the floor and walls.” He testified that the

victim was lapsing in and out of consciousness and that she had so much blood on her head

that it was impossible to see her wounds. Officer Johnson testified that he secured the crime

scene, and after the paramedics arrived, he interviewed the witnesses.

Following this testimony, the victim’s medical records were entered into evidence by

stipulation of the parties. In addition, the parties stipulated that the security video system at

the U-Store-It was not operating from 12:40 p.m. to 1:38 p.m.

Sergeant James A. Taylor, a Memphis Police Officer assigned to the Federal Bureau

of Investigation (FBI) violent crime task force, testified that he investigated the crimes that

occurred at a U-Store-It on Austin Peay Highway on September 11, 2010. Sergeant Taylor

testified that, as the assigned case officer, he was responsible for handling the case “from the

cradle to the grave.” Sergeant Taylor testified that he interviewed the witnesses and received

the license tag number of a vehicle that was seen leaving the scene. Sergeant Taylor testified

that after running that tag number he discovered that an individual named “Reggie Price” had

once received a ticket while driving that vehicle. He showed a photographic array containing

Mr. Price’s picture to one of the witnesses, but the witness did not identify Mr. Price as the

perpetrator. After further research, Sergeant Taylor determined that the car at issue was

registered to an individual named “Ms. Sharon Mayhue.” He interviewed Ms. Mayhue, who

informed him that she owned the vehicle at issue and that she had parked it on Friday,

September 10, 2010, and did not return to it until the following Sunday, when she took it to

Walmart to get some groceries and discovered that the license plate was missing. Sergeant

Taylor testified that he asked for Ms. Mayhue’s permission to search the car, and she

consented.

Sergeant Taylor testified that the vehicle appeared to have been recently detailed; its

seats were still slick with Armor All and its running boards had a “silicone” shine. Sergeant

Taylor testified that the vehicle was extremely clean inside and out. Sergeant Taylor testified

that he asked Ms. Mayhue if anyone else had access to her vehicle, and she replied that the

defendant, “her ex-boyfriend of the past six days,” also had access.

Sergeant Taylor testified that he prepared a photographic array containing the

defendant’s picture and showed it to the victim and the other witnesses. He testified that the

victim identified the defendant as the perpetrator, and the other witnesses identified the

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defendant as the individual they saw at the crime scene. He testified that an arrest warrant

for the defendant was issued, and the defendant was arrested on September 17, 2011.

Sergeant Taylor testified that he interviewed the defendant following his arrest. After

being advised of and waiving his Miranda rights, the defendant gave a statement, in which

he acknowledged robbing the victim at the time and place in question. The defendant stated

that no one else had participated in the robbery. The defendant stated that he was wearing

a black hat with a star, a light blue shirt, and blue jeans during the robbery, and he was

carrying a .32 caliber handgun loaded with two bullets. The defendant claimed that he had

stolen approximately $300.00. Sergeant Taylor authenticated the defendant’sstatement from

the stand, and it was entered into evidence.

On cross-examination, Sergeant Taylor testified that there was no audio or video

recording of the defendant’s statement. Sergeant Taylor testified that he did not request any

DNA testing of the blood found at the crime scene because he felt that such testing would

be a waste of money in light of the defendant’s confession. Sergeant Taylor acknowledged

that he had shown a picture of the defendant to Ms. Mayhue and that Ms. Mayhue had

claimed that the individual depicted was not the defendant. Sergeant Taylor denied that he

ever told Ms. Mayhue that he would charge her as an accessory if she did not sign any papers

that he put in front of her.

Following this testimony, the State rested. The defendant was advised of and waived

his right to testify in his own defense pursuant to the procedures established in Momon v.

State, 18 S.W.3d 152, 162-64 (Tenn. 1999). The jury returned a verdict finding the

defendant guilty as charged. The defendant was sentenced to twenty-five years as a Range

I, violent offender for the especially aggravated kidnapping conviction and to ten years as a

Range I, standard offender for the aggravated robbery. Finding that the defendant was a

dangerous offender who had no hesitation about committing a crime where the risk to human

life was high, the trial court ordered the defendant to serve his sentences consecutively, for

an overall effective sentence of thirty-five years.

The defendant filed a timely motion for new trial, the trial court denied the motion,

and a timely notice of appeal was filed. Satisfied that the matter is properly before this court

for review, we proceed to consider the defendant’s claims.

ANALYSIS

The defendant claims that the evidence is insufficient to support his convictions for

especially aggravated kidnapping and aggravated robbery. The defendant also claims that

the trial court erred by failing to apply a statutory mitigating factor at sentencing and by

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sentencing him to consecutive sentences. For the reasons that follow, we deny the

defendant’s claims for relief and affirm the judgments of the trial court.

I. SUFFICIENCY OF THE EVIDENCE

The defendant claims that the evidence is insufficient to support his convictions for

especially aggravated kidnapping and aggravated robbery. “When the sufficiency of the

evidence is challenged, the relevant question is whether, after reviewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011); Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Because a guilty verdict

removes the presumption of innocence and replaces it with a presumption of guilt, on appeal

a defendant bears the burden of showing why the evidence is insufficient to support the

conviction.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012). In assessing whether the

defendant has carried this burden, we afford the State the strongest legitimate view of the

evidence. See id. All reasonable and legitimate inferences that may be drawn from the

evidence are drawn in favor of the State. See id. “The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are matters

entrusted to the jury as the trier of fact.” State v. Campbell, 245 S.W.3d 331, 335 (Tenn.

2008). A reviewing court “neither re-weighs the evidence nor substitutes its inferences for

those drawn by the jury.” Wagner, 382 S.W.3d at 297.

The defendant in this case challenges his convictions for especially aggravated

kidnapping and aggravated robbery. As relevant to the charges in the indictment,

“[e]specially aggravated kidnapping is false imprisonment . . . [a]ccomplished with a deadly

weapon or by display of any article used or fashioned to lead the victim to reasonably believe

it to be a deadly weapon.” T.C.A. § 39-13-305 (a)(1) (2010). “A person commits the offense

of false imprisonment who knowingly removes or confines another unlawfully so as to

interfere substantially with the other’s liberty.” T.C.A. § 39-13-302(a). “Robbery is the

intentional or knowing theft of property from the person of another by violence or putting the

person in fear.” T.C.A. § 39-13-401. Robbery is aggravated if it is “[a]ccomplished with a

deadly weapon or by display of any article used or fashioned to lead the victim to reasonably

believe it to be a deadly weapon.” T.C.A. § 39-13-402(a)(1).

The victim’s direct testimony contains all of the evidence necessary for a reasonable

jury to have found the essential elements of both crimes beyond a reasonable doubt. The

victim testified that on September 11, 2010, the defendant entered her place of employment

and assaulted her from behind. The victim testified that the defendant threatened to shoot

her with a gun and that she feared for her life and for the life of her unborn child. The victim

testified that the defendant demanded money from the facility’s cash register, and she gave

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the money to him. The victim testified that afterward, the defendant ordered her to go into

another room and again assaulted her by hitting her with his fists and with a firearm. The

victim testified that the defendant continued to keep her in that room for approximately ten

additional minutes untilsome customers arrived. The victim testified that after the customers

arrived, the defendant left her alone in the room but told her that if she attempted to seek

help, he would shoot both her and the customers. The victim testified that after the

customers left, the defendant continued to imprison her long enough to threaten her life and

the lives of her family if she did not provide police with a false description of the perpetrator

and a false license tag number.

With respect to the defendant’s conviction for especially aggravated kidnapping,

viewed in the light most favorable to the State, this testimony standing alone provides a

sufficient basis for a reasonable jury to have found beyond a reasonable doubt that the

defendant knowingly interfered with the victim’s liberty (by moving her back and forth

between the front office and break room of the U-Store-It facility and by preventing her from

leaving the facility) and that he accomplished this task using a deadly weapon, a firearm.

With respect to the defendant’s aggravated robbery conviction, the victim’s testimony

standing alone likewise provides a sufficient basisfor a reasonable jury to have found beyond

a reasonable doubt that the defendant committed theft (by stealing $300.00 from the store’s

cash register), that he committed the theft by employing means of violence (choking, hitting,

and striking the victim with a gun) and/or placing the victim in fear (by threatening her life

and the life of her unborn child), and that he accomplished these tasks by using a deadly

weapon (the aforementioned firearm). Although it is not critical to our decision, we further

note that the victim’stestimony concerning the essential elements of both crimesissupported

in varying degrees by: 1) the store’s surveillance system, which was offline for a period of

time generally corroborative of the victim’stestimony; 2) the testimony of eyewitnesses, who

placed the defendant at the crime scene during the time period in question, saw blood on his

body and clothes, and saw the wounded victim plead for help after he left; and 3) the written

confession that the defendant subsequently provided to the police. The defendant is not

entitled to relief on his claim that the evidence is insufficient to support his convictions.

In his reply brief, the defendant also seeks to raise a claim that the trial court erred by

failing to properly instruct the jury. The defendant’s sufficiency argument in his initial brief

cites to State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and State v. Dixon, 957 S.W.2d 532,

535 (Tenn. 1997), for the proposition that “[i]f the kidnapping is merely incidental to the

offense of robbery, [the defendant] cannot be found guilty of kidnapping as a separate

offense” without violating due process. These two cases were recently overruled by State

v. White, 362 S.W.3d 559, 578 (Tenn. 2012), in which our supreme court re-categorized this

formerly due process-type claim as one concerning a failure to properly instruct the jury. In

White, after conducting a thorough review of Anthony, Dixon, and other past decisions, our

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supreme court explained: “While the Court in Anthony rested its holding on constitutional

grounds, legislative intent and the strict construction of criminal statutes were also guiding

principles.” Id. at 576. After considering various amendments to the criminal code during

in the intervening years, the court ultimately concluded that “the kidnapping statutes,

‘construed according to the fair import of their terms,’ Tenn. Code Ann. § 39-11-104, and

coupled with their derivation from the Model Penal Code, evince a legislative intent to

punish as kidnapping only those instances in which the removal or confinement has criminal

significance above and beyond that necessary to consummate some underlying offense, such

as robbery or rape.” Id. at 576-77. Consequently, our supreme court directed trial courts to

“ensure that juries return kidnapping convictions only in those instances in which the

victim’s removal or confinement exceeds that which is necessary to accomplish the

accompanying felony,” and provided trial courts with model instructions to give to juries to

assist in this task. Id. at 578.

The defendant, who was tried in 2011, obviously neither requested nor received the

jury instructions required by White, which was filed in 2012. The defendant’s notice of

appeal was filed on January 3, 2012, and his appeal was pending on March 9, 2012, when

the decision in White was filed. Although the White court stated that its ruling did not require

retroactive application, see id. at 578, our court has determined that limited retroactive

application is appropriate with respect to cases that were already on appeal when White was

decided. State v. David Earl Scott, No. E2011-00707-CCA-R3-CD, 2012 WL 5503951, at

*11 (Tenn. Crim. App. Nov. 14, 2012), perm. app. denied (Tenn. Mar. 5, 2013).

As an instruction-related error, any White error that might have been committed by

the trial court would be subject to constitutional harmless error analysis. See White, 362

S.W.3d at 580 n.20 (“Because we cannot conclude beyond a reasonable doubt that the jury

verdict would have been the same absent the instructional error, we cannot find the error

harmless.” (emphasis added)). Upon review of this record, we are able to conclude that any

White error that might have occurred was harmless beyond a reasonable doubt. The victim’s

testimony—undisputed at trial and supported by the parties’ joint stipulation concerning the

duration of time that the facility’s surveillance system remained offline—reflects that the

defendant completed the aggravated robbery within the first five minutes of the ordeal, but

he continued to hold the victim captive for well over an hour afterward. During this time,

he moved her from room to room in an effort to disarm the facility’s surveillance system,

threatened and beat her repeatedly, and held her captive while he engaged in an extended

discussion with customers directed toward encouraging them to leave—all in an effort to

increase his odds of effectuating a successful escape. The victim’s testimony is supported

by the testimony of two other eyewitnesses, who engaged in extended interaction with the

defendant and provided important corroboration of the general timeline. In light of this

undisputed proof presented by the State, we conclude beyond any reasonable doubt that,

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properly instructed, the jury would still have concluded that the victim’s confinement went

well beyond that necessary to accomplish the robbery, and its verdict would have been the

same.

Consequently, we hold that any errorstemming from the trial court’sfailure to provide

the jury with a White instruction was harmless beyond a reasonable doubt. The defendant’s

claim that the evidence is insufficient to support his convictions—which we have construed

as also raising a claim that the trial court erred by failing to properly instruct the jury as

discussed in White—is without merit.

II. SENTENCING ISSUES

The defendant claims that the trial court erred by failing to properly consider a

statutory mitigating factor during sentencing and by imposing consecutive sentences. When

an accused challenges the length and manner of service of a sentence, this court reviews the

trial court’s sentencing determination under an abuse of discretion standard accompanied by

a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). This

court will uphold the trial court’s sentencing decision “so long as it is within the appropriate

range and the record demonstrates that the sentence is otherwise in compliance with the

purposes and principles listed by statute.” Id. at 709-10. The party challenging the sentence

imposed by the trial court has the burden of establishing that the sentence is erroneous.

T.C.A. § 40-35-401 (2010), Sentencing Comm’n Comments; State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

The defendant claims that the trial court erred by failing to consider the fact that the

victim was released alive as a mitigating factor at sentencing. The law governing especially

aggravating kidnapping provides that: “If the offender voluntarily releases the victim alive

or voluntarily provided information leading to the victim’s safe release, such actions shall

be considered by the court as a mitigating factor at the time of sentencing.” T.C.A. § 39-13-

305(b)(2). The record from the sentencing hearing is clear that the trial court found that no

statutory mitigating factors applied on the facts of this case.

We are not convinced that the trial court erred by failing to apply this mitigating factor

in light of the facts of this case. The defendant’s release of the victim was only “safe” and

“voluntary” in the loosest sense of the terms. His presence at the crime scene had been

detected by multiple witnesses. He was prevented from escaping without arousing their

suspicion for an extended period of time, and he was eventually given only a narrow window

of time in which to make his escape after they left the front office and went across the street.

Using one or both of the two bullets that he possessed to kill the victim would almost

certainly have aroused additional unwanted attention. Before fleeing the crime scene, the

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defendant forcibly obtained the victim’s identification, beat her severely, and promised to

return and kill her and her entire family if she reported that he was the perpetrator. The

defendant’s decision to flee the crime scene without slaying the victim under these

circumstances can hardly be considered an intentional “release” of the victim at all, much

less a safe release of the voluntary sort that we believe the legislature intended for courts to

consider as a mitigating factor. This court has not hesitated to hold that section 39-13-

305(b)(2) is inapplicable when the facts of the case indicate that the defendant released the

victim only after being compelled by circumstances to do so, or when the defendant did not

release the victim in a safe manner. See, e.g., State v. Christopher Fielder, No.

W2009-01663-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 663, at *38 (Tenn. Crim. App.

Aug. 22, 2011) (“We do not feel that forcing a severely injured victim into the back of his

own vehicle with a pillowcase over his head, and continuing to beat him until arrival at a

destination where he is ‘tossed’ from the vehicle and left alone, without a vehicle, meets the

statutory definition of voluntary release of the victim.”).

Even if the trial court had erred by failing to apply this mitigating factor, the defendant

would still not be entitled to any relief. The law is clear that “a trial court’s misapplication

of an enhancement or mitigating factor does not remove the presumption of reasonableness

from its sentencing decision.” Bise, 380 S.W.3d at 709. A defendant’s sentence will be

upheld if it is within the appropriate range and generally complies with the principles and

purposes of sentencing. Id. at 709-10. After reviewing the record in this case and

considering the relevant sentencing statutes, we conclude that the defendant’s twenty-fiveyear-sentence for especially aggravated kidnapping satisfies these criteria.

Finally, the defendant challenges the trial court’s decision to impose consecutive

sentences. Tennessee Code Annotated section 40-35-115(b)(4) provides that a trial court

may order sentences to run consecutively if it finds by a preponderance of the evidence that,

“[t]he 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.” When ordering consecutive sentences pursuant to this factor, trial courts are directed

to make two additional findings: 1) that the terms imposed are reasonably related to the

severity of the offenses committed; and 2) that consecutive sentences are necessary in order

to protect the public from further criminal acts by the offender. State v. Wilkerson, 905

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

The defendant argues that the trial court did not make the second Wilkerson finding.

The defendant also argues that this factor does not apply to him; in light of his criminal

history, or rather his lack thereof, consecutive sentencing was not necessary to protect the

public from further criminal acts committed by him.

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The transcript of the sentencing hearing makes clear, however, that the trial court in

fact found that both Wilkerson factors were satisfied. As the trial court stated, “I think that

the criteria is met, that confinement for an extended period of time is necessary to protect

society from this defendant’s unwillingness to lead a productive life and resort to criminal

activity in furtherance of that anti-social lifestyle. . . .” Prior to making this finding, the trial

court did express a certain degree of “heartburn” about finding that the second Wilkerson

factor was present in light of the fact that the defendant had no prior criminal record. The

parties argued back-and-forth over the issue. However, the record is clear that the trial court

ultimately resolved the issue against the defendant.

The facts of this case support the trial court’s conclusion. The absence of a prior

criminal record will often be a compelling factor in the defendant’s favor when a trial court

considers the issue of consecutive sentencing. However, it is not, standing alone, entirely

dispositive of the Wilkerson inquiry. As the trial court found, the defendant expressed no

remorse for his crimes. The defendant committed his crimes pursuant to a “well thought out

and well planned scheme.” The high degree of violence employed against the victim (which

left the entire break room covered in blood) and the callous manner in which the defendant

executed his crimes (against an eight-month pregnant woman and her unborn child), all

indicate that, as the trial court found, this particular defendant exhibits an exceptional degree

of depravity. On the facts of this case, the trial court was within its discretion to find that

extended confinement was necessary to protect society from the danger posed by the

defendant’s potential to engage in future criminal conduct, even in the absence of any prior

criminal record. We affirm the trial court’s imposition of consecutive sentencing.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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