It is the p o licy o f t h is c o u rt to re fer to vic tim s o f sex u a l as sa u lt b y initials o n ly. 1

T h e lo n g d e la y b e tw e e n th e in d ic tm e n t an d trial w a s c a u se d , i n p a rt, b y the fac t t h a t t h e d e fen d a n t fa iled to 2
appe ar a t a n O ct ober 2001 t r i al da t e an d w as n ot r ea r r es t ed u n t i l D ec embe r 2002. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON Se pte m be r 14, 200 4 S es sio n
ST A TE OF TE N N ES SE E v
. ER IC M A TT HE WS
Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 00-05029 Jam es C. Beasley, Jr ., Judge

No. W2004-00274-C CA-R 3-CD - F iled October 25, 2004

Th e de fe nd a nt, Eric Ma tth e ws , w a s char ged by the She lby

Cou nty Gr a ndJury

in t wo se pa

rate ind ic tme n t s w i the s p e c ia lly a g g ra va te d kidn app ing , a

Cla ss Afe lon y , a g g ra vate d kidn app ing , a Cla ss B fe lon y , a ndtw o co un ts of a g g ra va te d rape , a Clas s B fe lon y , ba se d on e ve nts inv olv ing the vic tim , V.T., that occur

red on A ug ust 14, 1999, in the Whit ehave n are a of Me mphis. Following his 2003 1 trial, he wa s ac q u i t t ed of the rape counts and c onvicted in both the espe cially ag g ravated and 2

a g g r a v a t e d k i d n ap p i n g c o u n t s o f t h e l e s s e r

- i n c l u d e d c h ar g e o f k i d n ap p i n g , a

C l a s s C f

e l o n y. Ap plying fo ur e nh a nc e me nt an d no mitig a tin g fa c tor s, the tr ia l cou rt se nte nc e d the de fe nd a nt a s a Ra ng e I , sta nd ard of

fe nd e r to c on c ur

re nt te rm s of fi ve y e ars in the c ou nty wo rk ho us e . In a

tim e ly appea l to this court, the de fenda nt challeng es bot h the s ufficie ncy of t he evidence and the sentenc ing imp os e d. B a se d on ou r re vie w of the re c or d a ndapp lic able la w, we c on c lud e that th e e vid e nc e is sufficie nt to sustain the convictions but that the t rial court err ed by failing to merg e the kidnapping convictions into a single judgme nt of conviction. We furthe r conc lude that thre e of the four enhanc ement fa ctors we re applied in e rror under the United States Supreme Court’s r ece nt decision in Blake ly v

. Wa s h in g to n , 5 4 2 U

. S.

___ , 1 2 4 S. Ct

. 2 5 3 1 ( 2 0 0 4 ) , w h ic h w a s r e le a s e d a fter the sentenc ing w as imposed in this case. Acc ording ly , we aff irm the convictions, but order that they be merg ed into a sing le conviction and m o d i fy t h e s entence imposed fr om five to four y ear s, to be
serve d in the county

workhouse.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed as Modif ied

A L AN E. G L EN N , J ., delivere d the opi nion of t he court, in which G AR Y R. W ADE , P.J ., and N OR MA M C G EE O G LE , J ., joined.

B re tt B . St e in, Me mph is, Te nn e sse e , f or the app e lla nt, Eric Ma tth e ws

.-2-

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; J

. Ro ss Dy er, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Ge n er al; and Paul Hag erma n and Micha el McCusker, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

. OP IN ION

F AC TS

State’ s P roof

Me mph is Po lic e Of

fi c e r Jose ph ine De nis e Jone s te sti fi e d sh e we nt to 54 00 Hu dg ins Str e e t, the site of an a

partment c omplex in Whi tehave n, at appro x i m at ely 6:00 a.m. on Aug ust 14, 1999, in r e sp on se to a n e y e wi tne ss r e po rt of a n A fric a n- Am e ri c a n ma le dr a g g ing a ha lf -n ud e fe ma le int o an abandoned apa

rtment. When she ex ited her patrol car , she saw the victim, who was nake d from the waist up, run f

rom an a partment building toward he r scr eaming fo r h el p an d an Af rica nAmeric an male f

lee f rom the building. Of

fice r Jones testified a second of fice r pursue d and ca

ptured the suspect, while she rema ined with the victim to conduct her preliminary

investigation.

L inda Davis testified she lived on the g round floor of a four unit apartment building located at 5493 Hudg ins in W hitehaven, in whic h the two upstairs units had bee n occupie d on Aug ust 14, 1999, but the other downstairs unit, located acr oss the hall from her apartment, had been vacant. S he said she wa s visiti ng with a frie nd in her a partment ve ry

early that m o rn i n g when she hear d the
apa rt me nt b uil din g ’s c omm on do or s sl a m sh ut a nd a ma n sa y , “ Com e ba c k h e re .” Curiou s b e c a us e she had not he ard the sound of footst eps on the s tairs, s he looked out her living room window a nd
saw c lothing on the gr ound below. As she was joking about the s ight with her f riend, she he ard a
woman scr eam, looked out he r bac k door, and sa w two nake d men car ry ing a naked woman into the
n ex tap ar t m en tb u i l d i n g.
Davis testified that fif

teen to twenty minutes later she sa w the taller of the two na

ked men return to he r building, e nter the va cant a partment, come out dressed, a nd run off . Next, the second
ma n, wh om s he re c og nize d f ro m th e ne ig hb or

ho oda ndla te r i de nti fi e d a s th e de fe nd a nt, we nt i nto the same a

partment, c ame out dre ssed, g ather ed the c lothing fr om the g round outside, and r eturne d to the building next door. Davis testified she w as initiallyunsure whet h er t o ca l l the police, but twenty -five to thirty

minutes after the men car ried the woman into the building, she called 9- 1-1 and reported the incident. She made a positive c ourtroom identification of the de fenda nt and identified the a ud iot ape of

he r 9 -1 -1 c a ll, wh ic h wa s play e d be fo re the jury a nda dmi tte d a s a n e xhibi t. D a vis acknow ledg ed she he ard nothing unusual and was unawa re of any one in the abandoned apa rtment until she heard the doors to her a partment building slam shut that morning.

Me mph is Po lic e Of

fi c e r K e dzie Whit e te sti fi e d he wa s dis patc he d to the Pr e sid e nti a l We st Apartments in W hitehaven on the morning of August 14, 1999, in response to a 9-1- 1 call that two y ou ng me n w e re dr a g g ing a nake d w oman in to a

va c a nt a pa rt me nt. When he arrive d, the vic tim , who was na

ked and obviously

distraug ht, r an u p to him from an apa rtment, reported what ha d-3-

happene d, and pointed to the def endant. Offic er Whit e testified the de fenda nt ducked be tween the bu ild ing s a ndfl e d w he n th e vic tim po int e d him ou t, bu t Whi te a ndtw o f e llo w o ff ic e rs ma na g e d to captur e him in an aba ndoned apa rtment minutes later.

The victim testified she and a friend, Vane ssa Wil liams, w ere visiti ng Wil liams’ boy friend at his house in Whit ehave n on the eve ning of Aug ust 13, 1999, but left at about 11:30 or midnight afte r he and Wil liams g ot into a fig ht. She said she and Williams were wa lking towa rd their homes in South M emphis when two Af rica n-American men she did not know pul led up beside them in a
car and off ere d a ride . Wil liams spoke to the driver, w hom the victim later i d enti fied a s the defe n d an t , an d t h en called to the victim that they had a ride. She and Williams t hen g ot into the vehicle’ s backse at and the defe ndant bega n driving

. She soon noticed, however, that he was heade d in the wrong direc tion. W hen she pointed it out, the def endant’ s companion in the fr ont passeng er seat showe d her a g un and one of the men said, “B itch, shut up, y ou-all fix ing to g o take c are of us.”

The victim testified she crie d and beg g ed the men to take he r home, but they instead pulled in fro n t o f s ome apa

rtment buildings and f

orce d her a nd Wil liams at g unpoint into a vacant apartment. She said some y oung men in the next apartmen t , who wer e obviously friends of

the defe ndant, ca me to the apa rtment door, g ot something fr om the defe ndant, and a sked to be let in but
wer e turne d away . Next, the defenda nt’s companion took Wil liams to the back r oom and ra ped her , while the def

endant kep t h er wi t h h im in the livi ng room, forc ed her to remove he r clothes, a nd repe atedly

rape d her, both oral l y an d vag inally . The victim testified that one of the def endant’ s friends ta pped on the living room window as the defendant was raping her, but the de fenda nt ignor ed him

. The victim testified that as the de fenda nt force d her to pe rform oral sex, he struck her on the sid e of the he a d, dr a nk a lc oh ol an d sno rt e d co c a ine , an d de sc ri be d what he wa s next g oin g to d o to her. She s a id th e me n s w it c h e d a t o n e p o in t, a n d th e d e f e n d a n t’ s c o mp a n io n r ap e d h e r w hile the d ef en d an tra p ed W i l l i am s

. At a l at erp o i n twh en t h e de fe n d an t wa s b ra ggi n g t o h erab o u th o w t o u gh he wa s, Willi a ms c a me ou t of the ba c k r oo m, p le a de d in te ars to b e tur ne d lo os e , a ndthe n s ud de nly bolted out the door. The victim state d she ran out be hind Wi lliams, coming out of he r t-shirt when
on e of t h e m e n g r ab b e d a t h e r a s s h e f l e d o u t t h e d o o r

. S h e t e s t i f i e d t h a t W i l l i a m s ma na g e d to
esca pe but that the men c aug ht up with h er a fter a block, beat her whe n she re fused to stop strug g ling, c arried her

into the bushes, and for ced he r to perf orm oral sex on one of them a g ain. The men next orde red her to put her clothes on so they could return her to the apartment, but when she pleade d to be taken any wher e but there , fea ring she would be killed inside the apa rtment, they

car ried he r int o the ha llw a y of a n apa rt me nt bu ild ing , wh e re the y a g a in too k turns ra pin g he r, bo th v a g ina lly and ora lly

.
T h e v i c t i mt e s t i f

i e d t h e d e f

e n d a n tt h r e a t e n e d t o k i l l h e r i f s h e c a m e o u to f

t h e h a l l w a y. Nonetheles s , when she saw a police car drive by , she ra n toward it, scr eaming for he lp. The defe ndant and his companion fled at that point, but she poi nted t he defenda nt out to the police and ide nti fi e d h im a g a in w he n h e wa s b ro ug ht b a c k to the sc e ne in a patr ol c ar. Th e vic tim acknow ledg ed she did not see a g un afte r she r an out of the va cant a partment. She insisted, howeve r,-4-

that she re mained frighte ned of bot h m en t h roughout her or deal, a s well as of the ir frie nds, who appea red to he r to want to participate in the ra pe. The victim denied s h e d ra n k alcohol or used
coca ine with the defe ndant, hear d Wil liams a g ree for them to have sex wit h the men in exchang e for
mon e y or dr ug s, or c on se nte d to int e rc ou rs e wi th e ith e r m a n. She te sti fi e d s he nev er fel t free to le a ve the apa

rt me nt. Pat Speck, the coor dinator of nur sing se rvice s at t h e Memphis S exual Assault Resource Center, testified a

g ener al fore nsic exam was per forme d o n t he victim on Aug ust 14, 1999. The victim had abra sions on her right hi p and shoulder, but ther e wa s no trauma noted on he r g enital and anal e x aminations. Howeve r, Speck te stified that in her e x perie nce a s a for en s i c n urse, it was uncommon for wome n complaining of vag inal rape to show injuries to the vag inal are a.
Defense P roof
Twenty -four -y ear -old Tra vis Davis testified that the defe ndant was his cousin. He said he and a f r ie n d , B arr y Si n g le to n , w e r e d r in k in g b e e r o u ts id e th e Pr e s id e n ti a l We s t A p ar tm e n ts at approximately

4:00 or 5:00 a.m. on Aug ust 14, 1999, when t h e d ef endant and Desmond Frase r, a friend f rom the neig hborho o d , ac co m panied by two Afric an-A merica n women, pulled up in front of the a partment building s in a smal l h at ch back c ar, e x ited the vehicle , paire d up, and wa lked laug hing, ta lking, a nd drinking into an empty apartment inside the building. Davis testified the
women wa lked willingly

into the apartment. He said he did not see any wea pon.
Davis testified he and Single ton finished their bee r and the n l o o k ed i n t h e living r oom window of the apartment, wher e they saw the defe ndant and his friend having sex wit h the women. T h e y n e x tw e n tt o t h e ap ar t m e n t ’ s d o o r , k n o c k e d , a n d a s k e d t h e d e f e n d a n tt o g i v e t h e m h i s c ar k e ys so they could listen to the radio. Davis said that afte r sitti ng in the car and listening to the radio for
a wh ile , h e g a ve the c ar k e y s to Sin g le ton wi th ins truc tio ns to re turn the m to the de fe nd a nt andle ft

. He a c kn ow le dg e d he a nd Sin g le ton dr a nk a ndsmo ke d ma ri juana wi th the de fe nd a nt andF ra se r i n the empty apartment before the def endant a nd Fr aser

left to g et the women, but denie d it was eve r his intention t o join the defe ndant and Frase r in having sex wit h the women.
Eig hteen- y ear -old Ba

rry Singleton testified he, Davis, the de fenda nt, and “De smond” rode around in the de fenda nt’s uncle’ s car until the defenda nt and Desmond let him and Da vis out and went to g et some g irls. He said that a bo u t an hour later, he and Da vis were “chilling ” outside the Presidential West Apartments when the defe ndant and Desmond returne d with two women, g ot out of t he car , a n d w a lk e d w ith th e m, “ c o u p le d u p d r in k in g , ” “ la u g h in g a n d jo k in g ” in to a v a cant
apa rt me nt i n th e bu ild ing . D a vis te sti fi e d he a nd Sin g le ton loo ke d thr ou g h the wi nd ow a ndsa w b oth couples ha ving se x in the living room. Af terwa rds, Davis we nt and g ot the defendant’s car key s, and he and D avis sat in the ca r and listened to the r adio for a few minutes, until someone came with a messag e fr om Singl et o n’s mother that she w as looking for him. Singleton testified he left at that point and did not return. He denied there was any plan for the defe ndant to bring the women ba ck for a ll four of them. He further denied he drank alcohol, used drugs, or was in the vac ant apa rtment that ni g ht.-5-

The twe nty -eig ht-y ear -old defe ndant testified he, Singleton, Davis, and “D esmond” met up
a t a bo ut 1 1:3 0 p .m. or

12 :00 a .m. on Au g us t 13 -1 4, 19 99 , a ndro de aro un d d ri nking be e r i n h is
c ou sin ’s c ar u nti l app ro xima te ly 12 :30 or 1:0 0 a. m., wh e n he a ndDe smo nda g re e d to g o g e t so me g irls. After dr opping the others o ff o u t s ide the Presidential West Apartments, he and De smond drove to South Memphis and beg an “riding the w hore tra ck.” When he spotted two women on L atham and V aug hn, he pulled up, told the women that they wer e “trying to kick it for the nig ht,” meaning they

wanted to pa y

the women f

or sexual intercourse , and that they had $10 and be er.
The de fenda nt testified one of the women re sponded by say ing “ cool,” a nd both women g ot int o th e ba c ks e a t. H e sa id tha t on the drive ba c k to Whit e ha ve n, he sto pp e d at a ho us e the vic tim pointed out, where she used the $10 he had g iven her to buy some cra ck cocaine, and at a liquor store wh e re he bo ug ht a

ha lf -p int of “ He nn e sse y .” Up on the ir arrival a t th e apa

rt me nt b uil din g , h e tol d Da vis that he a ndDe smo ndwe re g oin g to “ kic k it fo r a wh ile ” a ndthat D a vis a ndSin g le ton sh ou ld wait for t h em out side. The de fenda nt and Desmond then w ent into the vacant apartment with the
wom e n

. T h e d e f

e n d a n t te s ti f

ie d th e w o me n w e n t w il li n g ly ; n e ith e r h e n o r D e smond had or display ed a g un.
The defe ndant testified he, De smond, and the women smoked c iga rettes a nd drank a lcohol in the living room for

a while. After war ds, Desmond t ook the vi ctim’s friend into the back room for sex, whil e he r emained in the living room to have se x with t h e v i ct i m . He sa id the victim was p er fo rm i n g o ra l s ex o n h i m wh en Da v i s an d S i n gl et o n t ap p ed o n t h e w i n d o w, l au gh i n g an d p o i n t i n g, and then c ame to the door to ge t his car ke y s. After

he had handed the key s over, the victim resumed pe rf or min g or a l se x o n him un til sh e c omp la ine d th a t he r j a w w a s ti re d. He the n s mok e d a c ig are tte while the victim smoked cra ck coc aine. About ten minutes late r, he a nd Desmond switched pa rtners for a bout fifteen minutes, be fore switching back to their orig inal partne rs.
The de fenda nt testified the victim was a g ain per forming oral sex on him when her f riend
came out of the bac k room, complained she neede d to ge t home to h er c hildren, and sudde nly ran ou t, de sp ite his ha vin g tol d h e r h e wo uldtake he r h ome in a min ute . H e sa id the vic tim imm e diate ly ran out a fter he r, followed by Desmond, who chased the w omen all the wa y down the stree t before catc hing the victim and drag g ing her back to the apa rtment. Acc ording to the defe ndant, he wa s halfway to his cousin’s house, having decide d to leave w hen De smond ran af ter the wo m en , when he
rea liz ed he ha d left his id enti fica tion behind. By the time he re turned, De smond had drag g ed the victim into t he apa

rtment hallway . He testified the victim was in the hallway , he wa s on the porch, and Desmond was around the corne r looking for his ide ntification, which he too ha d l ef t b ehind, when the police ar

rived. At that point, the def endant sa id he walke d around the corne r and started home.

The de fenda nt denied he r an fr om poli ce

. He f urther de nied he took part in chasing the victim or drag g ing her back to the apartment, but said he would not char acte rize Desmond’s ac tions in doing so a s “kidnapping .” He testified he thoug ht he had smo k ed cr ack coca ine ea rlier in the
e ve nin g , b ut d e nie d h a vin g smo ke d a ny wi th the vic tim . H e sa id h e lie d in his orig ina l st a te me nt t o police, saying that no one else was invol ved in the i ncident, in order to protec t his companions, who-6-

had not bee n caug ht. Finally , he emphatically denied that he and Desmond had used a gun to kidnap the women a nd bring them back to the a partment to be r aped, te stify ing: “ No. You d on’t rape a cra ck hea d. What y ou rape a cr ack he ad for ? Piece of cra ck she’d do the whole c ourtroom. What y ou g ot to rape a

cra ck hea d for? Come on g et re al.”

Whe n a sk e d b y

the tr ia l c ou rt

to m ake a n e le c tio n w ith re sp e c t to the a g g ra vate d r ape c ou nts of the indictment, the State c hose the fir st vag inal rape that alleg edly occur red in the livi ng room of the va c a nt a

pa rt me nt b y the us e of

a de a dly we apo n, and the la tte r v a g ina l r ape that a lle g e dly
occur red in the ha llway

with both men after

the victim had been captur ed on the stre et and dr ag g ed back to the apartment. After deliberating, the jury convicted the defe ndant of t h e l esser-included offe n s e o f k idnapping in both the ag g ravated and e specia lly ag g ravated kidnapping counts of the indictment, but acquitted him of both counts of ag g ravated ra pe.
Se nt e nc ing He ar ing

The sole e vidence introduced at the defe ndant’s sente nci n g hearing w as his prese ntence
re po rt , w hic h r e fl e c te d th re e pr ior a du lt m isd eme ano r convic tio ns fo r r e sis tin g arr e st, dis or de rl y conduct, and the possession, ma nufac ture, or sale of drug s. The trial court a pplied four e nhance ment fac tors: the defe ndant had a previous history of criminal convictions or criminal behavior in addition to tho se ne c e ssa

ry to e sta bli sh the ra ng e ; th e de fe nd a nt w a s a le a de r i n th e c omm iss ion of a n o ff e ns e inv olv ing tw o o r m or e c ri min a l a c tor s; the de fe nd a nt tr e a te d or a llo we d the vic tim to be tr e a te d w ith exceptional crue lty

during the commi ssion of t he offense; and the offe nse i nvolved a victim and wa s committed to gr atify

the def endant’ s desire for pleasure or excitement. Tenn. Code A nn. § 40-35- 114(2), ( 3), (6) , (8) ( 2003).

The trial c ourt based the application of enhanc ement fac tor (2) on the de fenda nt’s criminal
rec ord and te stimonyhe had use d cocaine; enhanc ement fa ctor (3) on evidenc e that a c odefe ndant had been involved in the incident, which ha d also involved separ ate victims; enhanc ement fa ctor (6) on evidenc e that the victim was subjec ted over the cour se of the long ordea l to “sever al di ffe rent sexual advance s” by

the defendant, was threa tened and intimi dated by him, was beaten, kicke d, and
ma de to p e rf

or m or a l se x in th e bu sh e s, a nd wa s dr a g g e d ba c k to the ha llw a y fo r s e xua l in te rc ou rs e with both men ag ain; and enha nceme nt fac tor (8) on e vidence that the interc ourse took plac e over se ve ra l ho ur s in mul tip le loc a tio ns wi th b othme n, inv olv e d mu lti ple se x ac ts, a ndoc c ur re d, in p art , wh ile the de fe nd a nt w a s sn ortin g c oc a ine , d ri nking c og na c , an d bo ast ing to the vic tim abo ut h is “manhood.”

When defe nse counse l questioned the trial court’s application o f t he latter enhanc ement fac tors in light of the f

act that th e j u ry had ac quitted the defe ndant of the r ape and ag g ravated kid na pp ing c ha rg e s, the tr ia l c ou rt

re sp on de d:

T H E CO U RT : We ll , I

th in k it ’ s my ru li n g , [d e f

e n s e c o u n s e l] , was that if I acc epted [t he def endant’ s] version, appare ntly , the jury
acc epted [the defe ndant’s] versi on, that this is a contrac tual-7- a g re e me nt b e tw e e n [th e vic tim ] an d [ th e defe nd a nt], a ndin m y opinion, he abused the contra ctual ag ree ment and we nt way above and bey ond whateve r t he contr actua l ag ree ment was in the way that he mistreate d her a nd the way that he behaved with reg ard to her, a nd my opinion just ifies the sente nce – [DEFENSE COUNSEL ]: Ver y well, Your H onor.
THE COURT: -- not the f act that he forc efully

had sex ag ainst her, but bec ause the jury has alre ady ruled on that, but the fac t of the kidnapping wi t h t he wa y in which she wa s detained, dr ag g ed back unde r the circ umstances and further the fac t that the g ratification was the c hang ing of

partne rs bac k and for

th, in and out, having sex wi thh e r in th r e e o r

f o u r d if f e r e n t l o c a ti o n s o v e r

a mu lt ip le

- hour p er i o d o f t i m e, t h o s e a re t h e t h i n gs t h e C o u rt ’s co n s i d er i n g. Finding no applicable mitigating fac tors, the trial court enhanc ed the de fenda nt’s sentenc es from the presumptive minimum of three y ear s to f ive y ear s, based on the a

bove four enhanc ement fac tors, and orde red tha t the sentenc es be se rved c oncurr ently in the county

workhouse.

AN AL YSI S

I. Su ff iciency of the Evid ence
As his fi rs t iss ue , the de fe nd a nt c ha lle ng e s the su ff ic ie nc y of the e vid e nc e in s up po rt

of his kidnapping convictions. When the sufficie ncy of the e vidence is challeng ed, the r eleva nt question for this court is “w hether , afte r viewing the evidenc e in t he lig ht most favorable to the prosec ution, any ratio na l tr ie r of fa c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L

. Ed. 2d 560, 573 (1979);
see a lso St ate v. Eva ns, 838 S.W .2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. A pp. P. 13( e) ( “F indings of g uilt in criminal actions whether by the trial court or jury

shall be set aside if the evidenc e is insufficient to support the f indings by the trier of

fac t of g uilt bey ond a re asonable doubt.”). All questions involving the c redibility of witnesses, the we ight a nd value to be g iven the evidenc e, and all fac tual issues are resolved by the trier of fac t. See S tate v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “ A g uiltyverdic t by the jury , approve d by t h e trial judge, a ccr edits the testimony of the witnesse s for the State a nd resolves a ll conflicts in favor of t he theory of t he S tate.” State v. Gra ce, 493 S.W.2d 474, 476 (Tenn. 1973). Our supr eme c ourt stated the r ationale f or this rule:

This well -settled rule rests on a sound f oundation. The trial judge and the jury see the witnesses fac e to f ace , hear their testimony
an d observe their deme anor on the stand. Thus the trial judg e and jury are the primary

instrumentality

of justice to determine the weig htA l t ho ugh t he t ri al co urt ’ s act ual i nst ruct i o ns t o t he jur y were not t rans cri b ed , t he t y p ewri t t en jur y i nst ruct i o ns 3
i ncl uded i n t he r ecor d re f l ect t hat t he cour t i ns t r uct ed t he j ur y t hat t he es s ent i al el ement s of ki dnappi ng wer e: “ ( 1) t hat t he defendan t r emo ved or conf i ned a not her un l awf

ul l y so as t o i nt er fer e s ubs t ant i al l y wi t h t he ot her ’ s l i bert y ; an d (2) t hat t h e r emov al or con f

i n eme n t wa s u n der ci r cu ms t an ce s t h at ex pos ed t h e ot h er t o s u bs t an t i al r i s k of bodi l y i n

j u r y ; a n d ( 3) tha t t h e d e fen d a n t ac te d kn o w ing ly.”
-8-

and credibility to be given to the t estimony of wit nesses. In the trial forum alone is there human atmosphere a nd the totality of the
e vid e nc e c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction rem o v es t he pre sumption of innocence with which a defe ndant is initi ally

cloake d and re place s it with one of g uilt, so t hat on appe al, a convic ted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. The de fenda nt’s only

arg ument on this issue consists of hi s statement that “ba sed upon the alleg ed victim’s t estimony , a rational trier of fac t could not have found the appe llant guilty bey ond
a re asonable doubt.” The St ate arg ues t he proof prese nted at trial wa s sufficient to sustain the jury ’s
ve rd ic ts, in that evi den ce was of fe re d th a t th e de fe nd a nt u nla wf ull y c on fi ne d th e vic tim

so a s to substantially

interfe re w ith her liberty

and his ac tions ex posed her to substantial risk of bodily injury and/or subjec ted her

to a condition of involuntary servitude.

Ki dn app ing oc c ur s w he n a pe rs on “ kn ow ing ly re mov e s o r c on fi ne s a no the r u nla wf ull y so as to interfe re substantially with the other’s liberty ” “( 1) [u] nder c ircumstance s exposi ng the other pe rs on to s ub sta nti a l r isk

of bo dil y inj ury ; or (2) [w] here the confine ment of another is in a condition of involuntary

servitude.” Tenn. Code Ann. §§ 39- 13-302(a ); -303(a ) (1997) (empha sis added). Howeve r, in this case the trial court appare ntly instructed the jury only as to the alternate “ substantial risk of bodily

injury ” portion of the de finition. 3

We conclude that a ra tional jury could have foun d t h e elements of kidnapping be y ond a
rea sonable doubt from the proof presented at trial. Viewe d in the light most favor able to the State, the evidenc e esta

blished that, reg ardle ss of any contra ctual ar rang ement the de fenda nt may have ha d with the victim for sexual intercourse , he held he r in the apa rtment ag ainst her will af

ter she and her friend ha d clea

rly expressed their de sire to leave , chase d her when she fled the a partment, c aug ht her
a blo c k a way , a ndthe n d ra g g e d h e r b a c k to the ha llw a y , wh e re he pr e ve nte d h e r f ro m le a vin g un til the arriva l of

the po lic e . T he defe nd a nt’ s a c tio ns wi th h is a c c omp lic e , in g ra bb ing a t th e vic tim wh e n s he ran f

ro m th e do or

a nddr a g g ing he r d ow n th e str e e t ba c k t o th e apartme nt, ne c e ssa ri ly
e xpos e d h e r t o s ub sta nti a l r isk of bo dil y inj ury , a ndthe pr oo f at tria l sh ow e d sh e did , in f a c t, s us ta in br uis ing to h e r s ho uld e r andhip du ri ng the or deal. W e, th erefo re , c on c lud e that th e e vid e nc e is sufficie nt to sustain the defenda nt’s kidnapping convictions.
Although not r aised by

either pa rty , we note that the trial court f ailed to merg e the kidnapping
c on vic tio ns , in spite of ind ic a tin g a t the c on c lus ion of tr ia l th a t it

wo ulddo so . T he re c or d r e fl e c ts-9-

that the espec ially ag g ravated kidnapping count of the indictment alleg ed the de fenda nt’s use of a firea rm to acc omplish t he kidnapping , and the a g g ravated kidnapping count alleg ed he committed t h e ki d n ap p i n g t o fa ci l i t at e th e f el o n y o f r ap e. Ki d n ap p i n g i s a c o n t i n u i n g o ff en s e. S t at e v

. L egg, 9 S.W .3d 111, 117 (Tenn. 1999) (“So l o n g as t he re moval or conf inement of the vic tim lasts, t he offe nse of f

alse imprisonment continues.”) Notwithstandi n g t he victim’s attempt to esca pe, the defe ndant’s ac tions in confining the victim constituted a continuing cour se of c onduct and, a s such,
a single kidnapping offe nse. There fore , the trial court should ha ve mer g ed the se parate convictions into a single judgme nt of conviction. See State v. B illyHar ris, No. W2003-01911-CCA-R3-CD, 2004 WL 1765532, at *7 (Tenn. Crim. App. Aug. 4, 2004) (citations omitted) (noting that a mer g er of c on vi cti on s is a

pp ro pr ia te in o rd e r t o p ro te c t a g a ins t do ub le je op ard y wh e n ju ry

c on vic ts a defe ndant under

alternate theorie s of same of fense ).

II. Se nt e nc ing

The de fenda nt next contends that the t rial court err ed by apply ing e nhance ment fac tors based on fac ts alleg ed in the mo re s erious off enses with which he was c harg ed rather than the lesserincluded off

enses of which he w as found g uilty . The State re sponds by arg uing that the defe ndant has wa ived the issue by including only a g eneric and g ener al ar g ument in his brief. The State f urther arg ues that all four enhanc ement fac tors wer e supported by the re cord a nd appropriately applied by the tr ia l cou rt

. Ho we ve r, in l ig ht o f the Un ite d St a te s Su pr e me Cou rt ’s re c e nt d e c isi on in B lake ly v. Wash i n gt o n, 542 U.S. ___, 124 S. C t. 2531 (2004), we need not de lve into the specific s of the State’s arg uments on this issue. I n Blakely , the C ourt applied the rule e arlier announce d in Apprendi
v. Ne w Je r s e y , 5 3 0 U

. S

. 4 6 6 , 4 9 0 , 1 2 0 S

. C t

. 2 3 4 8 , 1 4 7 L

. E d

. 2 d 4 3 5 ( 2 0 0 0 ) , t o c o n c l u d e t ha t a
c r i m i n a l d e f

e n d a n t ’ s S i x t h A m e n d m e n t r i g h t t o tr i a l b y j u r y e n c o m p a s s e s t h e r i g h tt o h a v e t h e j u r y, rathe r than the judge , determine the ex istence of any sentenc e enhance ments other than those ba sed
on fa c ts r e fl e c te d in the jury ve rd ic t or a dmi tte d b y the de fe nd a nt. B lake ly , 5 42 U. S. at __ _, 12 4 S. Ct. at 2536-38.

I n this case, e nhance ment fac tors (3), ( 6), and ( 8) we re ba s ed on fa cts that wer e neither
a dmi tte d b y

the defe nd a nt n or

re fl e c te d in the jury

ve rd ic ts. Th us , w e c on c lud e that th e on ly enhanc ement fa ctor a

ppropriate ly

applied under

Blak elywas e nhance ment fac tor (2), w hich was ba sed on th e defend a nt’ s p ri or c on vic tio ns a ndhis a dmi ssi on a t tria l to ha vin g us e d il le g a l dr ug s. We further

conclude that the pre sence of the a ppl i cable enhanc ement fa ctor, c ombined with the
ab s e n c e o f

a n y ap p l i c ab l e m i t i g a t i n g f

a c t o r s , j u s t i f

i e s a n e n h a n c e d s e n t e n c e o f f o u r y e ar s

. In
a c c or da nc e wi th this de te rm inatio n, we mod if y the de fe nd a nt’ s f

ive -y e ar s e nte nc e to f

ou r y e ars , to be ser ved in conf

inement as orde red by

the trial court.

CO NC LU SION

We conclude the evidenc e is sufficie nt to s u stain the kidnapping convictions, but that the trial court erre d b y

f a il in g to me r g e th e s e p ar a te c o n v ic ti o n s in to a s in g le ju d g me n t o f

c o n v ic ti o n

. We further conclude that b ec au se three of the four enhanc ement fa ctors we re ina ppropriate ly

applied, the defendant’s sentence should be modi fied to four y ear s. Acc ording ly , we a ffirm the de fenda nt’s-10-

conviction, re duce the s en tence from five to four y ear s, and re mand to the trial court for further proce eding s consistent with this opi nion.

___________________________________ ALAN E. GL

ENN, JUDGE