1 The judgments refl ect confl ict s conce rning whi ch cou nts are t echn ical ly s et t o run cons ecuti vely a nd

con curr ently with on e anot her. For example , t he judgmentfor c ount four st ates that

it s se ntence shoul d be run
con secu tively to co unt fiv e; ho we ver, th e jud gm ent fo r cou nt five states tha t it is to be r un concurr entl y with c ount four (but con secu tively to cou nt on e). Fu rtherm ore, the j udg ment forcount s ix makes no mention a t al l of count f ive a nd indic ates tha t cou nt six is to run concurrentl y with it self . While both t he briefs of the defens e and the State agree that the defendant ’s e ffec ti ve sent ence i s t wenty-t hree years, the j udgments s hould be c orrec ted t o avert any f utur e confus ion. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M ay 15, 2001
STATE OF TENNESSEE v. JOH N R. BLACK Direct Appeal from the Criminal Court for Davidson County

No. 99-A-396 Steve Dozier, Judge

No. M2000-01286-CCA-R3-CD- Filed April 16, 2002

A Davidson County gra nd jury indicted the def en dant forone count of aggrava ted kidn appin g, one count of aggrava ted r ape, three counts of agg ravated assault, and one count of assault. At the close of a jury trial, he stood convicted of aggrava ted kidnapping, two aggra vated assaults, and one s impleassault. He subsequently rec eived a sixteen year sentence for the agg

ravated kidn appin g; seven yea

rs each for the two aggrava

ted assaults; and eleven months and twenty -nine da ys for the assault. The trial court also set count one to run consecutively to count five resulting in an effective sentence

of twenty -three

ye ars. 1 The case is presently before this Court following the trial court’s denial of the defendant’s motion for a new tria l. Through this appeal the defendant ave rs that (1) the e vidence is insuffi cient to su

pport his conviction for aggrava ted kidnapping; (2) the trial court erred in allowin g the Sta

te to present photographic evidence to the jury ; and (3) the trial court erred by permitting the State to amend fo r a seco nd time the indictmen

t charging him wi

th aggravated

rape. After reviewing

these issues, we find that none merit relief but remand the case for correction of the

judgmen ts. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Affir med and Remanded.
J ERRY L. S MITH , J., delivered the opinion of the court, in which J OHN E VERETT W ILL IAMS an d N ORMA M C G EE O GLE , JJ., joined. Monte D. Watkins, Nashville, Tennessee, for appellant, John R. Black.2 By the vi cti m’s account the a ssaul ti ve behavi or began on Se ptember 21, 1998, and con tinue d inte rm ittently alm ost un til the arriv al of th e po lice in th e early mo rnin g ho urs o f Sep tem ber 2 6th. -2- Paul G. Summers , Attorne y Gener al & Repor

ter; Jenn ifer L. Sm

ith, Assista

nt Attorne

y Gener al; Victor S. Johnson, District Attorney General; and Rachelle A. Laisnez , Assistant District Attorney General, for appellee, State of Tenne ssee. OPINION
Factua l Background
It is undisput

ed that the defendant and E loise Ada

ms, the vic ti m, h ad developed a relationship. It is a

ls o undispute d that the defendant, who was in his late thirties, had been living withthe victim, who was in her mid-sixties, at the Vine Hill high-rise prior to and during the dates involved with the charge d offens es. Furthermore, the defenda nt acknow ledgesthat he hit the victim withan open hand on more than one occasion on Friday , September 25,1998, because of her allege d involvement

with anoth

er man. H owever , the vict

im’s testim

ony recallsan ordeal 2 lasting for several da ys during w

hich, amo ng othe

r things , the def

endant st ruck her numeroustimes with his fist; repeat edly called her derogatory

names; rape d her; de manded that she change her phone number (which a representative of Bell Sout h conf irmed tha t she did) ; confine d her in th e apart ment; “ransacked

[her] house;” kicked her; and threatened her with a bee r bottle. After h earing

all the proof, the jury convicted the defendant of

the afor ementioned four c

harge s, which ultimately

led to this appeal. Sufficiency of the Evidence
Throu gh his first is su e t he defe ndant cha llenge s the suff

iciency of the ev idence t o sustain his aggravated kidnapping conviction. Within this challenge he combines a traditional sufficiency argument with a State v. Anthony , 817 S.W.2d 2 99 (Tenn . 1991), is sue; thus, we wil l ad dress the issues as raised.
When a defendant challenges the suf ficiency of

the evidence, this Court

is obliged to review that claim according to certain we ll-s ettled principles. A verdict of guilty , rendered by a jury and approved by the trial judge, accredits the testimony of the Sta te’s witnesses and resolve s all conf licts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Ten n. 1994); State v. Ha rris , 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty re

moves this presumption “and replaces it with one of guilt.” Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with

the defe ndant to de

monstrate the insufficiency

of the convicting evidence. Id . The relevant question the reviewing court must answer is whether a ny rationa

l trie r of fact could have found the accused gu

ilty of every element of the offense bey ond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris , 839 S.W.2d at 75. In ma king this decision, we are to accord the State the stronge st legitimate view of theevidence as well as all reasonable and legitimate infer ences that may-3-

be dra wn ther efrom. See Tuggl e , 639 S.W.2d at 914. As such, this Court is precluded from reweighing or reco nsid ering t he evi dence i n eval uatin g the co nvict ing proof. S tate v. Morgan , 929 S.W.2d 380, 383 (Tenn. Cr im. App. 19 96); State v. Matthews , 805 S.W.2d 7 76, 779 (T enn. Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews , 805 S.W.2d at 779.
As previous ly no ted, the d

efenda nt’s cha llenge involves a

ggra vated kid napping . This off

ense requires proof of:
false imprisonment, as defined in § 39-13-302, committed: (1) To facilita te the commission of

any felony or flig

ht thereafter; (2) To interfere with the performance of any g overnmental or political function; (3) With the inte nt to inflict serious b odily injury on or to te

rrorize t he victim o

r anothe r; (4) Whe

re the vi ctim s uffers bodily in ju ry; or (5) Whil e the def endant isin possession of a deadly w eapon or threatens the use of a deadly

weapon.
Tenn. Code Ann. § 39-13-304(a). According to the indictment involved in the de fendant’s case, the Statesought to

prove tha

t the victim “suffe

red bodil y in jury as a r esult of the offense,” thereby proceeding under subsection (4). See Tenn. Code Ann. § 39-13-304(a)(4). Further more, Tennessee Code Ann ot ated section 39-13-302 states that “[a] person commits the offense of false imprisonment who knowing ly r

emoves or

confine s another

unlawfully s o as to inte

rfere substantia

lly with t he other's liberty .” Tenn. Code Ann. § 39-13-302(a).
With this back

ground the defe ndant cit es State v . An thony

to support

his claim t

hat this particular aggr avated k idnapping convicti on should n ot stand in conjunct ion with the

assault offense s. Through Anthony , the Tennessee Supreme Court stated that the essential determin ation to be made in a case

such as th

is is
whether the confinement, movement, or detention [involved in the individual’s case] is essentially incidental to the ac companying felony and is not, there

fore, sufficient to support a

separa te conviction for k

idnapping , or whet

her it is significant enough, in and of itself, to warrant independent prosecution and is, there f ore, suf fic ient to support such a conviction.
Id. at 306. Thereafter, our supreme cour t added“that one

method of

resolvin g this que stion is to a sk whether t he defendan t’s conduct ‘substantially incre ased [the] risk of harm over and above that necessa rily presen t in t he [at tendi ng] crime . . . itself.’” Id. (quot ing State v. Rollins , 605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)).
In State v. Dixon , 957 S.W.2d 5 32 (Tenn. 1997), the supreme court further re fined the approach to be taken when analyzing these issues. See id. at 535. The reviewing court must asce

rtain “whether the movem

ent or co nfineme

nt was be yond that nec essary

to consummate the act of” the ac comp anying

offense. Id. “If so, the next inquiry is whether the additional movement or-4-

confine ment: (1) prevented

the victim from summoning help; (2) lessened the defendant’s risk of detection; or (3) created a significa nt danger or

increased the victim’s risk of harm.” Id. The Dixon court clearly sta

ted that the intent is not to provide a defendant with “a free ki d napping merely because he [or she] also committed” the primary off ense, but rather

is mer ely to “preve

nt the injustice which would occur if a defendant could be convicted of kidnappingwhere the only restraint utilized was that necessary to complete the act of” the accompany ing crime. See id. at 334. Turning to the facts of the case presently before us, the defendant avers that acts relative to confinement

in this case were “only

incidental to the aggravated a ssault.” We respectfully disa gree. The defend ant asks us to limit our consideration of the proof of kidnapping to testimony concerning the defe

ndant’s a ct of dra gging the victim back into h er apartment on September 26; however, in its closing, the prosecution clearly de lineated for the jury the time frame involved as beginning when the

defenda nt arrive s “home f

rom work with his beer

Friday a fternoon [, the 25 th ,] until he drags her

back into the apartment” on the 26 th

. The victim testifie d that she could not have left her apartment

after the defendant came home on September the 25 th

. She explained that at that time the defendant remained in the front of

the residence (where the mea ns to exit was located); “was in a rage”; an d inform ed her that she was “not going a nywhere .” On this evening, the defendant kickedthe victim

under the chin with his steel-toed shoes causing a wound that re quired stitches and left a scar. Also during this time he threa tened he r with a beer bottle, stating, “I

should mess up your face so nobody else would want y ou.” Becau se the victim was afraid that if the defendant struck her withthe bottle

he would render her unconscious, the victim began working her way toward the door. After she succeede d i n running outside screaming for a br ief period of time, the defendant caug ht her, placed his hand over her mouth, and pulled her back into the apartment. Thereafte r, a neighbor who had se en and heard t his fr om th e hous ing tower op posite the victim’s, called 911 at approximately 2:30 a.m.
We find that

the extended period of confinement involved here we nt beyond that needed to commit the assaults. See id. at 306. Moreover, the reco rd wou ld support a finding that the ki dnapping was to pre

vent the victim fro m summoning help and t

o lessen h

is detec tio n as th e perpetr ator of th e assaul ts on the vi ctim.
In su m, we find the proof mor e than ad equate t o sustain th

e jury ’s finding

of guilt as to aggravated

assault. Additiona

lly, for the r

easons ou tl ined above, Anthony

and its progeny

do not require the setting aside of this conviction. See , e.g. , Dixon , 532 S.W.2d a t 535-36; State v. Michael J. McCann , No. M2000 --2990- CCA-R3-CD , 2001 WL 1246383, a

t *3-*5 (Te nn. Crim. App. at Nashville, Oct. 17, 2001) ; State v. Danyelle D ewain Parker , No. M2000-00405-CCA-R3-CD, 2001 WL 427654, a

t *9-*10 ( Tenn. Crim. App. at Nashville, Apr. 26, 2001). This issue, therefore, lacks merit.3 The poli ce t ook thes e photogr aphs i n the e arl y hours of Septe mber 26 th at the h ops ital. -5- Admissio n of Photog raphs
The defenda

nt next asse

rts that the trial court should not have admitted photographs showing the victim’s injuries because the danger o f resulting unfair prejudice outweig hed the potential probative value of the exhibits. To support this contention, the d efen dant turns to the rationale of State v. Banks , 564 S.W.2d 947 (Tenn. 1978).
As we begin our analy sis, we note well established p r ecedent providing “that trial courts have broaddiscreti on in dete

rmining the admiss ibility

of evidence, and their rulings will not be reversed absent an abuse of that discretion.” State v. McLeod , 937 S.W.2d 867, 871 (Tenn. 1996). Moreover, the Tennessee Rules of Evidence em bo dy, and our courts traditionally ha ve acknowledged, “a policy of liberality in the admission of evidence i n both civi l and criminal cases.” Banks , 564 S.W.2d at 949; State v. Robinson , 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995) . To be admissible, evidence must satisfy the

threshold determination of relevancy mandatedby Tennessee

Rule of Evidence 401. See , e.g. , Banks , 564 S.W.2d at 949. Rule 401 defines “relevant evidence” a s being “evidence having any tendency to make

the existence of any f

act that is of

consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant “evidence may be excluded if its probative value is substantially outweig hed by [, among other considerations,] thedange r of unfa ir prejud ice.” Te nn. R. Evid. 403; see also , e.g. , Banks , 564 S.W.2d 951.
Prior to the admission of the contested photographs in the instant case, the trial judge conducted

a jury-out hea

ring after which he made a se ries of fi n dings. Upon reviewing the photogr aphs, the trial court disallowed two as being cumulat ive an d initially admitted one for identification purposesonly until medic al testimo ny a ssured the relev ance of this p hotograph. Furthermore, t he tri al court described in some detail the relevance of each of the seven other photographs admitted. Finally, speaking about the group of photographs permitted, the lower court declared that they “more a

ccurately and with more clarity, de pict and show [the] injuries” than did the victim ’s verba

l descriptions.
After rev iew in g th e re cor d, w e ag ree . In order to capture the variety

of injuries suffered, the photographs depict the victim’ s arms as w ell as he r face from diff erent a ngles. 3 Furthermore, expert medical testimony called

in this case

indicate d that swe

lling an d bruising

offer in sight into

the time that has passed since the infliction of a particular injury . For example, swelling and redness indicates newer injuries while purple bruising sometimes indicates older ones. The medical expert testified that the ph otogra

phs show “inju

r[ies] in dif

ferent stagesof heali ng.” On e photog raph dep icts swollen lips and fresh bl ood, indic ating a newer in jury , while

dark purple discoloration on both sides of the victim’s mouth is in another picture. As aforementioned, theprosecu tion’s ve rsion of e vents involved abuse inflicted over a series of day s. The defendant denied committing any misconduct except on Friday, Septe

mber 25 th

. The photographs therefore be ar on the credibility of the witnesses as well as directly illustrating the injuries resulting from thedefendant’s assaults upon the victim

.4 It a ppears that the dates involved in the amend men t varied three to four days; the tri al court gran ted th e

amendm ent fi ve days before t rial ; and the amendment charged no differ ent nor additional off ense. -6- Fi na ll y, although unpleasant, the photographs are not so gruesome as to crea te undue prej udic e. We find no abuse of discretionin the trial court’s conclusion that the probativ e value o f these e xhibits outweighed the danger of unfair prejudice. Allowing a Sec

ond Amen dment of the Aggr avated K idnapping Indict

ment Finally , the defe

ndant con tends tha t the tria l court e rred in p ermitting

the prosecution to amend, five days be

fore trial, the dates involved in the aggravate d kidnapping count. He asserts that these dates represented “a material va riance” resulting in prejudice to the defendant and that allowing this secondamendment “usurp[ed] the authority of the grand jury .” In response, the State a vers that the defenda

nt has wa ived this is sue by

failing to include the transcript of the hearing reg arding the second motion to amend.
Pursuant to Tennessee Rule of Criminal Proce dure 7( b), “[a]n indictment, presentment or i nformation ma y be amended in all cases with the consent of the defe ndant. If no additional or different offense is thereby

charged and no substantial rights of the defendant are

thereby pr

ejudiced, the court may per

mit an amendment without the defendant’s consent before jeopardy a

ttaches.” Id. Moreover, the trial

court’s decision

concer ning whe ther to a llow an am

endment i s not to be disturbed by this Court absent a showing of an abuse of discretion. See , e.g. , State v. Daniel Ray Styles , No. E2001-0090 5- CCA-R3-CD, 2001 WL 1231511, at *3 (Tenn. Crim. App. at Knoxville, Oct. 17, 2001); see also State v. Kennedy , 10 S.W.3d 280, 283 (Tenn. Crim. App. 1999). Upon review, we agree

that the record

present ed is inad equate t o addres s a questi on of abu se of discretion. For example, the record does include the trial cour t’s minute entry rela

t ive to th e decision to grant this second motion to amend. 4 However, the entry merely notes that

both parties were present and then states that “this cause came to be he ard by the Court upon the State’s motion to amend indictment: after due consideration and all th e eviden ce intro duced, s aid motion i s granted.” We have no

accessto the ev idenc e prese nted i n or an y specifi c find ings fr om th is hea ring. The need for a transcript of the hearing on this motion becomes even more appare nt upon reviewing the trial court’s findings at the new trial motion hearing. Mor e particularly , at the latter hearing the trial court referred to “a leng thy di scussion” that was had on the contested motion to amend the indictmen t. The trial court also found that the defendant had not been prejudiced by

this amendment because counsel had been “we ll aware” of the allegations involved in “that par ticular week. ”
Th e a pp el la nt (i n t hi s c as e, th e d ef en da nt ) b ea rs th e d ut y of

pr ep ar in g a re co rd th at co nv eys “a fair , acc urat e, an d com

plete acc ount o f wha

t tra nspir ed [in the tr ial c ourt] with re spect to the issues” that form the basis for the appeal. Statev. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993); see also Tenn. R. A

pp. P. 24(b ); State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). The failure to do so re sults in a w aiver of these issues and a presumption that the trial court ruled correctly

. State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993).5 As afor ementione d, t he defenda nt also as sert s that all owing the Stat e the opportuni ty t o amend an indi ctment a sec ond ti me invades the pr ovince of the grand j ury. Neve rthe les s, he concede s t hat one amendment does not do so, and we see no pr ovisi on in t he above-c it ed rul e li miti ng the pr osecution t o one amendment. Furthe rmore, we obs erve that the defe nda nt cites n o au thor ity sup por ting th is con cluso ry state me nt. -7- Without the omitted transcript, this court lacks the ability to adequately review the matter. As a result, w e must pre sume that t he trial j udge a

cted cor rectly and conc lude that

the defe ndant is not entitled to relief based upon this issue either. 5
Conclusion
For the fo re go in g r ea so ns we fi nd th at th e d ef en da nt ’s is su es do no t m er it re li ef . A cc or di ng ly, the judgment of the trial court is AFFIRMED. Howeve

r, the case is REMANDED for the correction of the judgment forms as noted supra
.

___________________________________ JERRY L. SMITH, JUDGE