IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 14, 2017 Session

STATE OF TENNESSEE v. STEPHANO LEE WEILACKER

Appeal from the Circuit Court for Montgomery County

No. 40700673 William R. Goodman, III, Judge

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No. M2016-00546-CCA-R3-CD

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Defendant, Stephano Lee Weilacker, was found guilty by a Montgomery County jury of 

especially aggravated kidnapping and aggravated robbery. He received an effective 

twenty-year sentence to be served consecutively to a previous sentence. In this, 

Defendant’s third direct appeal, he argues: that the evidence was insufficient; that the trial 

court permitted a reversible constructive amendment to the indictment; that the trial court 

erred by failing to instruct the jury as provided by White; that the trial court erred by 

denying his motion to suppress evidence found in his vehicle; that the State committed 

prosecutorial misconduct during closing arguments, and that consecutive sentencing was 

improper. We find that all of Defendant’s issues, except for the issues concerning the 

amendment to the indictment and the jury instruction, have been previously addressed by 

this court in Defendant’s two prior appeals and cannot be reconsidered. We find that the 

issue concerning the indictment is waived and that the trial court was not required to 

instruct the jury in accordance with White. Therefore, Defendant’s convictions are 

affirmed. 

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Stephano Lee Weilacker.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant 

District Attorney General, for the appellee, State of Tennessee.

12/08/2017
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OPINION

Background

This is Defendant’s third direct appeal in this case. The facts of this case, as found 

by this court in Defendant’s first direct appeal, State v. Stephano L. Weilacker, No. 

M2010-00497-CCA-R3CD, 2011 WL 743416, at *1-2 (Tenn. Crim. App. Mar. 3, 2011),

which will be referred to as Weilacker I, are as follows:

On June 30, 2006, the Triangle Kwik Stop in rural Montgomery County 

was staffed by Brandi Perry. Ms. Perry observed two young men come 

into the store. One of them was armed with a pistol. The man pointed 

the gun at her, then pointed the gun at Frank Lavarre, a vendor who was 

stocking a display at the store. The man demanded money and 

cigarettes. He ordered Mr. Lavarre to lie on the floor. Ms. Perry 

complied with the request, handing over money and cigarettes. The man 

then shot Mr. Lavarre in the leg.

The men left the market and jumped into the back of a large white car. 

Ms. Sandra Lewis, who was shopping next door at the Food Lion, saw 

two young African-American men leave the market laughing and 

running. Ms. Lewis was alarmed by the situation, so she wrote down the 

license plate number of the car and called the police.

Several days later, Appellant and David Selby were arrested while riding 

in Appellant’s white Mercury Grand Marquis. Police Officer Scott 

Beaubien initiated a traffic stop of Appellant’s vehicle. The weapon 

used in the Triangle Kwik Stop robbery was found in the car. Mr. 

Selby’s fingerprints were found on the pistol.

Appellant, Jacobi K. Allen, and David Selby were indicted by the 

Montgomery County Grand Jury for aggravated robbery and especially 

aggravated kidnapping for their involvement in the Triangle Kwik Stop 

robbery.

At trial, Mr. Selby testified that Appellant called him on the day of the 

robbery and asked him to ride around with him and to go buy some 

fireworks. Appellant was driving his white Mercury Grand Marquis. 

When Mr. Selby got into the car, he stated that there were two other 

younger African-American males in the back seat. As the group passed 

the Triangle Kwik Stop market, Appellant asked the men in the back seat 

if they wanted to make a little money. Appellant told them what to do 
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and provided a pistol to the men. After the men robbed the market, the 

money and cigarettes were divided between Appellant and the two men.

Mr. Selby admitted that his fingerprints were found on the pistol that 

was used in the robbery. He explained that when police initiated the 

traffic stop of the vehicle, Appellant handed Mr. Selby the weapon. Mr. 

Selby then handed the weapon back to Appellant, who placed it under 

the seat.

Appellant presented the videotape from the store security camera in 

support of his defense. The videotape showed that the armed robbery 

was committed by two men other than Appellant.

Weilacker I, at *1-2.

In Weilacker I, Defendant argued that the evidence was insufficient to support his 

convictions; that the trial court failed to properly charge the jury with lesser-included 

offenses; and that the trial court improperly ordered consecutive sentencing. This court 

determined that the trial court improperly ruled on an untimely motion for new trial. This 

court noted that trial counsel had filed for an extension to file the motion for new trial,

but it was filed more than thirty days after the entry of the judgments. This resulted in

Defendant’s notice of appeal also being untimely. 

Defendant’s sufficiency and sentencing issues were considered on the merits. In 

his sufficiency argument, Defendant argued that the accomplice testimony of codefendant David Selby was not sufficiently corroborated. This court summarized the 

corroborating evidence and determined that the “jury clearly determined that the evidence 

introduced at trial corroborated Mr. Selby’s testimony and independently connected 

[Defendant] with the crimes.” Id. at *5. As for sentencing, this court found that the 

length of Defendant’s sentences of ten years for aggravated robbery and twenty years for 

especially aggravated kidnapping were appropriate. This court further found that the trial 

court correctly applied the Wilkerson factors and imposed consecutive sentencing. Id. at 

*6-9.

This court also considered Defendant’s issue concerning jury instructions (whether 

the trial court failed to give all lesser-included offense instructions) under plain error 

review. This court found that Defendant failed to provide an adequate record for review 

by failing to include a copy of the jury instructions in the record on appeal. Therefore, “it 

is not clear what happened in the trial court. Consequently, [Defendant] is not entitled to 

plain error review.” Id. at *6. The supreme court denied Defendant’s application for 

permission to appeal. 

Defendant filed a subsequent petition for post-conviction relief, which the trial 

court granted in part as a delayed appeal and stayed its consideration of Defendant’s 
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remaining post-conviction claims. Defendant did not file a motion for new trial. In the 

delayed appeal, Defendant again argued that the evidence was insufficient; that 

consecutive sentencing was improper; that the trial court erred by denying his motion to 

suppress evidence found in his vehicle; that the State committed prosecutorial 

misconduct during closing arguments, and that the trial court erred by failing to instruct 

the jury as provided by State v. White, 362 S.W.3d 599 (Tenn. 2012). 

On direct appeal, in State v. Stephano L. Weilacker, No. M2013-01532-CCA-R3-

CD, 2014 WL 4402123 (Tenn. Crim. App. Sept. 8, 2014), which will be referred to as 

Weilacker II, this court affirmed Defendant’s convictions, holding that he had waived all 

issues except for sufficiency of the evidence and sentencing because again no timely 

motion for new trial was filed. Id. at *3. This court also agreed with the State that 

Defendant’s issues concerning sufficiency of the evidence and sentencing could not be 

addressed because they were addressed in Weilacker I and therefore the “law of the case 

doctrine” applied. Weilacker II, at *2-3. This court considered Defendant’s remaining 

issues under plain error review since no timely motion for new trial was filed and found 

that Defendant was not entitled plain error relief. Id. at *3-10. 

The supreme court granted Defendant’s application for permission to appeal and 

stated as follows:

For the reasons stated herein, the Court of Criminal Appeals’ judgment 

is vacated, and the case is remanded for further proceedings.

On June 3, 2013, the trial court granted [Defendant] a delayed appeal as 

provided by Tenn. Code Ann. § 40-30-113, because trial counsel 

untimely filed a motion for a new trial as provided by Tenn. Code Ann. § 

40-30-113(a)(3). On appeal, the Court of Criminal Appeals held that 

[Defendant] had waived all issues other than sufficiency of the evidence 

and sentencing, because no timely motion for a new trial was filed. 

[citations omitted]. As a matter of judicial efficiency and to meet the 

ends of justice, we remand this case to the trial court for [Defendant’s] 

counsel to file a proper motion for a new trial. [citations omitted].

Upon remand, [Defendant’s] counsel shall, within thirty days from the 

date of the entry of this order, file a proper motion for a new trial 

regarding [Defendant’s] convictions for especially aggravated 

kidnapping and aggravated robbery. The original trial court shall 

dispose of the motion as if it had been filed under authority of Rule 59 of 

the Rules of Civil Procedure. See Tenn. Code Ann. § 40-30-113(a)(3). 

State v. Stephano L. Weilacker, No. M2013-01532-SC-R11-CD (Tenn. Jan. 20, 2015)(per 

curiam). 
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Thereafter, Defendant filed a timely motion for new trial raising the following 

issues: (1) Defendant was denied due process because the jury instructions failed to 

require the jury to consider whether the restraint of the victim of the especially 

aggravated kidnapping was incidental to the underlying aggravated robbery as required 

by White; (2) Sufficiency of the Evidence (victim did not suffer serious bodily injury and 

no corroboration of Mr. Selby’s testimony); (3) The trial court erred by denying 

Defendant’s motion to suppress; (4) The prosecutor committed prosecutorial misconduct 

by improperly vouching for Mr. Selby’s credibility during closing arguments; (5) 

Consecutive sentencing; and (6) Cumulative error. The trial court considered each issue 

and denied Defendant’s motion for new trial. Defendant filed an untimely notice of 

appeal. He sought waiver of the untimely filing, which this court granted. 

Analysis

Initially, we point out that in this appeal, Defendant argues that “the postconviction Court’s grant of a delayed appeal resulted in a vacating of this Court’s prior 

opinion (Weilacker I) resulting in this being his delayed, first true appeal in this matter.” 

He further argues that the “law of the case doctrine” does not apply in this case “where 

the defendant receives a delayed appeal because, by the plain-language of the statute, the 

prior rulings of the court where the defendant was denied the effective assistance of 

counsel are voided and vacated.” Therefore, Defendant argues that issues relating to 

sufficiency of the evidence and sentencing “should be treated anew by this Court and 

addressed as if no prior ruling had occurred.” He notes that the supreme court’s order 

vacated Weilacker II and that this court should consider all of the issues raised in 

Defendant’s brief “as if no prior opinions had existed in this [c]ase.”

We reject Defendant’s arguments that the post-conviction court’s grant of a 

delayed appeal and the supreme court’s Rule 11 order nullified this Court’s holdings on 

the issues addressed on the merits in Weilacker I and Weilacker II. Defendant cites no 

relevant authority for this proposition, and this Court is unaware of any applicable case 

law that supports it. “[U]nder the law of the case doctrine, an appellate court’s decision 

on an issue of law is binding in later trials and appeals of the same case if the facts on the 

second trial or appeal are substantially the same as the facts in the first trial or appeal.”

Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 

303, 306 (Tenn. 1998); see also State v. Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000).

This doctrine “applies to issues that were actually before the appellate court in the first 

appeal and to issues that were necessarily decided by implication,” but the doctrine does 

not apply to dicta. Memphis Publg. Co., 975 S.W.2d at 306. The doctrine “is not a 

constitutional mandate nor a limitation on the power of a court” but “is a longstanding 

discretionary rule of judicial practice which is based on the common sense recognition 

that issues previously litigated and decided by a court of competent jurisdiction ordinarily 
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need not be revisited.” Id. (citations omitted). Application of the doctrine promotes 

finality, efficiency, consistent results, and obedience to appellate decisions. Id.

There are three “limited circumstances” that may justify a departure from the law

of the case doctrine and subsequent reconsideration of an issue decided in a previous 

appeal:

(1) the evidence offered at a trial or hearing after remand was 

substantially different from the evidence in the initial proceeding; (2) the 

prior ruling was clearly erroneous and would result in a manifest 

injustice if allowed to stand; or (3) the prior decision is contrary to a 

change in the controlling law which has occurred between the first and 

second appeal.

Id.

I. Sufficiency of the Evidence

First, Defendant argues that the evidence was insufficient to support his 

convictions for especially aggravated kidnapping and aggravated robbery because the 

evidence did not corroborate the testimony of co-defendant David Selby. However, this 

issue was raised in both Wielacker I and Weilacker II, and it was decided on the merits in 

Weilacker I. This court determined that there was sufficient corroboration and that the 

“jury clearly determined that the evidence at trial corroborated Mr. Selby’s testimony and 

independently connected [Defendant] with the crimes.” Weilacker I, 2011 WL 743416, 

at *5. Therefore, the “law of the case doctrine” applies, and none of the exceptions in 

Memphis Publ’g Co. apply to this issue. 

II. Constructive Amendment to the Indictment

Defendant contends that the trial court “permitted a reversible constructive 

amendment to the indictment because it did not charge especially aggravated kidnapping 

as it was alleged in the indictment.” However, Defendant concedes that he did not raise 

this issue in his motion for new trial. Therefore, the issue is waived. See Tenn. R. App. 

P. 3(e). We also exercise our discretion and decline to conduct plain error review of this 

issue. Defendant is not entitled to relief. 

III. Jury Instruction on Kidnapping

Next, Defendant argues that the trial court should have instructed the jury on the 

offense of kidnapping in accordance with the supreme court’s decision in State v. White, 

362 S.W.3d 559 (Tenn. 2012). This issue was raised in Weilacker II; however, this court 

did not expressly hold that Defendant was not entitled to relief based on the merits of the 

issue. Concerning this issue, this Court held in part:
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Turning to the instant case, the evidence shows that one of the robbers 

pointed a gun at [Lavarre] and Perry and ordered [Lavarre], but not 

Perry, onto the floor. Pointing the gun at [Lavarre] and then ordering 

him onto the floor prevented him from summoning help; reduced the 

robbers’ risk of detection by preventing passerbys from seeing [Lavarre]; 

and increased [Lavarre’s] risk of harm, as evidenced by his lying prone 

on the floor so that the robbers could shoot him. We note that the 

robbers shot [Lavarre] after Perry had complied with the demand for 

money and cigarettes. Therefore, ample evidence supported the 

appellant’s conviction for the especially aggravated kidnapping of 

[Lavarre]. The appellant has failed to show that consideration of the 

error is necessary to do substantial justice and that the trial court’s 

error was plain error.

Weilacker II, 2014 WL 4402123, at *10 (emphasis added). We find that that the 

language in the last sentence of this Court’s holding only finds that plain error review is 

not appropriate, and as a result, the discussion is merely dicta and is not the law of the 

case. Therefore, we will address this issue on the merits. 

In White, our supreme court addressed due process considerations affecting 

convictions for kidnapping and an accompanying felony such as robbery, rape, or assault. 

The holding of White “was intended to address the due process concerns that arise when a 

defendant is charged with kidnapping a victim and other crimes, such as robbery, rape, or 

assault, that involve some inherent confinement of that victim.” State v. Teats, 468 

S.W.3d 495, 503 (Tenn. 2015). The White court held: 

[T]he legislature did not intend for the kidnapping statutes to apply to the 

removal or confinement of a victim that is essentially incidental to an 

accompanying felony, such as rape or robbery. This inquiry, however, is 

a question for the jury after appropriate instructions, which appellate 

courts review under the sufficiency of the evidence standard as the due 

process safeguard. 

White, 362 S.W.3d at 562. The court determined that the proper inquiry for the jury is 

“whether the removal or confinement is, in essence, incidental to the accompanying 

felony or, in the alternative, is significant enough, standing alone, to support a 

conviction.” Id. at 578. The court further set forth the following jury instruction:

To establish whether the defendant’s removal or confinement of the 

victim constituted a substantial interference with his or her liberty, the 

State must prove that the removal or confinement was to a greater degree 

than that necessary to commit the offense of [insert offense], which is the 

other offense charged in this case. In making this determination, you 
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may consider all the relevant facts and circumstances of the case, 

including, but not limited to, the following factors:

• the nature and duration of the victim’s removal or confinement by the 

defendant;

• whether the removal or confinement occurred during the commission 

of the separate offense;

• whether the interference with the victim’s liberty was inherent in the 

nature of the separate offense;

• whether the removal or confinement prevented the victim from 

summoning assistance, although the defendant need not have succeeded 

in preventing the victim from doing so;

• whether the removal or confinement reduced the defendant’s risk of 

detection, although the defendant need not have succeeded in this 

objective; and

• whether the removal or confinement created a significant danger or 

increased the victim’s risk of harm independent of that posed by the 

separate offense.

Id. at 580-81. The standard of review is the same as that for reviewing the sufficiency of 

the evidence: whether there was any evidence, viewed in the light most favorable to the 

State, from which the jury could infer that the State met its burden of proof in showing 

that the victims’ restraining was not incidental to the accompanying felonies. Id. at 562. 

The supreme court has addressed the issue of whether a White jury instruction 

must be given when a defendant is charged with the kidnapping and robbery of separate 

victims. See State v. Teats, 468 S.W.3d 495 (Tenn. 2015); State v. Williams, 468 S.W.3d 

510 (Tenn. 2015). In Teats, the court determined that

[a] White jury instruction is not required when a defendant is charged 

with the kidnapping and robbery of different victims. The jury 

instruction we articulated in White was intended to address the due 

process concerns that arise when a defendant is charged with kidnapping

a victim and other crimes, such as robbery, rape, or assault, that involve 

some inherent confinement of that victim. Cf. State v. Salamon, 949 

A.2d 1092, 1117 (Conn. 2008) (“Our legislature . . . intended to exclude 

from the scope of . . . kidnapping . . . those confinements or movements 

of a victim that are merely incidental to and necessary for the 
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commission of another crime against that victim.” (emphasis added)). 

Where a defendant is charged with kidnapping and an accompanying 

offense involving some confinement of the same victim, there are 

appropriate due process concerns that the defendant could be convicted 

of two crimes - e.g. robbery and kidnapping - when he has only 

committed one crime - robbery. But where, as in this case, the State 

charged the Defendant with robbing the restaurant manager and 

kidnapping four other employees, the Defendant does not stand the risk 

of being convicted of kidnapping a victim he confined only long enough 

to rob. Simply put, the due process concerns articulated in White are not 

present, as the kidnapping of one or more victims can never be 

“essentially incidental” to an offense perpetrated against a different 

victim or victims. See White, 362 S.W.3d at 580.

Teats, 468 S.W.3d at 503. 

In the present case, we conclude that there are no due process concerns. In 

Defendant’s case, there were two offenses and two convictions, one for each victim. 

Defendant was charged with the especially aggravated kidnapping of Mr. Lavarre and the 

aggravated robbery of Ms. Perry. Although the robbery indictment contains language 

that Defendant kidnapped Mr. Lavarre by the use and display of a deadly weapon to 

“facilitate the commission of a felony, Aggravated Robbery,” this language is merely 

surplusage to the charged offense of especially aggravated kidnapping. “Simply put, 

where a defendant kidnaps one victim while robbing another, the due process concerns 

articulated in White are not present, as the kidnapping of one or more victims can never 

be ‘essentially incidental’ to an offense perpetrated against a different victim or victims.”

Williams, 468 S.W.3d at 516 (emphasis added). Therefore, the trial court was not 

required to instruct the jury in accordance with White. Defendant is not entitled to relief 

on this issue. 

IV. Denial of Motion to Suppress

Defendant argues that the trial court erred by denying his motion to suppress 

evidence found as a result of the search of his vehicle. Again, this issue was raised in 

Weilacker II, and it was addressed on the merits. This court determined that “A clear and 

unequivocal rule of law was not breached, and the appellant is not entitled to plain error 

relief.” This court summarized evidence at the suppression hearing and determined that 

“even if the gun had not been in the officers’ view, it would have been reasonable for 

them to believe that the car contained evidence of the offense of arrest and to have 

conducted a warrantless search of the vehicle pursuant to Gant.” Weilacker II, 2014 WL 

4402123, at *7. Therefore, the “law of the case doctrine” applies, and none of the 

exceptions in Memphis Publ’g Co. apply to this issue. 
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V. Prosecutorial Misconduct

Next, Defendant argues that the State committed prosecutorial misconduct during 

closing argument by improperly vouching for David Selby and arguing facts not in the 

evidence. This issue was raised in Weilacker II and addressed by this court on the merits. 

Therefore, the “law of the case doctrine” applies here also. 

Defendant is not entitled to relief on this issue. 

VI. Sentencing

Finally, Defendant argues that the trial court improperly ordered his effective 

twenty-year sentence for aggravated robbery and especially aggravated kidnapping to run 

consecutively to a sentence that he was already serving in the Department of Correction. 

However, this issue was also raised in both Weilacker I and Weilacker II, and it was 

decided on the merits in Weilacker I. This court determined that the trial court properly 

found Defendant to be a dangerous offender, and the “trial court correctly applied the 

Wilkerson factors on the record.” Weilacker I at *9. Therefore, the “law of the case 

doctrine” applies, and none of the exceptions in Memphis Publ’g Co. apply to this issue. 

Defendant is not entitled to relief. 

CONCLUSION

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

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THOMAS T. WOODALL, PRESIDING JUDGE