### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Decem ber 4, 2001 Session
STATE OF TENNE SSEE v. RAYM OND GR IFFIN Appeal from the Criminal Court for Shelby County Nos. 98-09629 – 98-09631 Joseph B. Dailey, Judge

No. W2000-01332-CCA-R3-CD - Filed Mar ch 15, 2002

G ARY R. W ADE , P.J ., con curri ng and d issen ting.
I agree with the m ajor ity opinion except that I would hold that the defendant’s dual convictions for the especially aggravated kidnapping

and aggr avated r obbery of La rry Smith do not violate due process. I would, ther efore, affirm the especially aggravated kidnapping

conviction.
In Anthony , our supreme co u rt ackno wledge d that a pe riod of c onfineme

nt of the victim freque ntly accompanies such crimes as robbery and established that

whether a separ ate kidnapping conviction can be supported depends upon "whether the conf inement, movement , or dete ntion [was] essentia lly incidental to the accompany ing felony . . . ." 817 S.W.2d 299, 305 (Tenn. 1991). Later, in State v. Dixon , our high court clarified its ruling in Anthony :

Anthony and its proge

ny, however , are not

meant to provide the rapist a free kidnapping merely bec ause he also committed rape. The Anthony decision should only prevent the injustice which would occur if a defenda nt could be c onvicted of kidnapping where the only restraint utilized was that necessary to complete the act of rape or robbery

. Accord

ingly , any restraint in additi on to that which is necessary to con summ ate rap e or rob bery may supp ort a s eparat e conv icti on for kidn appin g.
957 S.W.2d 532, 534-35 (Tenn. 1997) (emphasis added). Where the confinement is bey ond that necessary for the accompany

ing felony, the next inquiry is whether it (1) prevented the victim from summoning

help; (2) lessene d the def endant' s risk

of detection; or (3) created a significant danger or increased the victim's risk of harm. Id. at 535. Here, the majority concludes tha tthe bindin g of Smith ’s hands with duct tape was esse ntially incidental to the ag grava ted robbe ry and, ther efore, that the d

efenda nt’s sepa rate co nvicti on for especia lly aggravated kidnapping

is violative of d ue process and Anthony . In my view, however, the facts wa

rrant se parate convicti ons. The r

ecord de mo nstrate s that the defendant and two accomplices accoste d the vict im in his driveway just as he a rrived home from work. The three men blockedthe victim’s vehicle with their own and held the victim at gunpoint. Rat her than robbing-2-

the victim as h

e sat in histruck, the men for ced him in side his ho me at gunpoint and then b ound him withduct tape. When the victim had difficulty unlocking the door, one of the assailants suggested they shoot him.
In my view, the confinement of thevictim in this instance was beyond that nec essary f or the commission of the robbery . In State v. Claude Douglas Copeland , No. 01C01-9410-CR-00366, slip op. at pp. 8-9 (Tenn. Crim. App., at Nashv ille, Sept. 27, 1995), a panel of this court approved of se pa ra te co nv ic ti on s f or ro bb er y an d k id na pp in g w it h i nt en t t o c om mi t r ob be ry:

[T]he defenda

nt's conduct of . . . forcin g [th e vict im] in t he tr unk[] substantia lly increased the victim's risk of harm. I f the defendant had only

wanted to steal the

victim'swallet a

nd car, h e could ha

ve left h im on the st

reet wh ere he robbedhim. It is evident from these facts that the robbe ry could have

been completedwithout fo rcing the victim into . . . the trunk at knife point. Thus, the ki dn ap pi ng wa s n ot in ci de nt al to th e r ob be ry b ut ra th er in ad di ti on to th e r ob be ry. Here, the defendant and

his companions could have completed the robbery of Larry Smith without forcing him

at gunpoint into his residence or binding him with duct tape. B y f

orcing Smith into his residence at gunpoint, the robbers both lessened their chance s of detection and increased the risk of harm to Smith, whose nervous fumbling encouraged one robber to exhort the others to “shoot him.” By binding Smith, the robber s further lessened their risk of detection and hindere d any potential attempt by Smith to summon help. Furthermore, althoug h Smith was able to unbind himself, he testified that when he attempted to telephone for help, he discovered that the robbers had cut all but one of the telephone lines. I would, there fore, uphold the separate co nviction f or espec ially aggravat ed kid nappi ng.

____________________________________ GARY R. WADE, PRESIDING JUDGE