### IN THE SUPREME COURT OF TENNESSEE AT JACKSON April 4, 2001 Sessio

n
STATE OF TENNESSEE v. KERMIT MAURICE COZART
Appeal by Perm

ission from the Cour

t of Criminal Appeal

s Circuit Court for Henry County No. 12354 Julian P. Guinn, Judge

No. W1999-00022-SC-R11-CD - Filed August 31, 2001

We granted review of this case to decide whether a trial court must inst

ruct the jury

based upon this Court’s holding in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). We hold that the trial court properly declined to instruct the jury that it should determine whether the conf inement, movement

, or detention in

herent in t he k idn app ing w as es sen tia lly i nci den tal to t he ac com pan ying r obb ery. Applying the principle s f

irst enunciated in Anthony , we further hold that the dual convictions for aggravated

robbery and aggravated kidnapping in t his case do n ot v iol ate due pro cess . Ac cord ingl y, we affirm the jud

gment of the Cour

t of Criminal Appea

ls.
Tenn. R. App. P. 11 App eal by Permiss

ion; Judgment of the

Court of Criminal A

ppeals Affirmed.

J ANICE M. H OLDER , J., delivered the o pinion of the court

, in which E. R ILEY A NDERSON , C.J., and F RANK F. D ROWOTA , III, A DOLPHO A. B IRCH , J R ., and W ILLI AM M. B ARKER , JJ, joined.
Jim L. Fields, Par

is, Tennessee, f

or the appellant,

Kermit Maurice Co

zart.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pat

ricia C. Kussman, Assistant Attorney General, for the appellee, State of Tennessee

. OPINION

On the afternoon of August 31, 1995, Terry Dale Wilkinson was working as the manager at Essary’sService Station in Pa ris, Tennessee,

when the defend

ant, Kermit Mauri

ce Cozart, drove up to the gasoline pump . After Wilkinson pum ped the gasoline

for Co zart, Coz art demanded the money in Wilkins

on’s pocket. When Wil

kinson turned to

walk away, Cozart left the car, grabbed Wilkinson by the arm, and placed a gun in his ribs. Cozart forced Wilkinson into the service station at gunpoint and to

ok both Wilkinson’s wallet and seven to eight hundred dollars from the station. Cozart then locked

Wilkinson in a storag

e room inside the sta

tion and left.-2-

Approximately

ten minutes later, Wilkinson was freed by another customer, Carolyn Cheek, who heard Wilkinson’s shouts for help. Cheek unloc

ked the padlock on

the storage roo

m door with t he keys Wilkinson gave her through a crack in the door. Cheek ide ntified Cozart as the m an sh e saw leaving the service station when she arrived.

Cozartgave a stateme

nt to Detective Ed

die Snow of the Pa

ris Police Dep artment. In hi s statement, Cozart admitted being armed, robbing the service station, and forcing Wilkinson into the storage room. Cozart was charged with aggravated robbery and aggravated k

id napping. He pled guilty to the charges pursuant

to a plea agreement and received concurrent ten-y ear sentences. The trial co urt subsequently set aside Cozart’s conviction for aggravated kidna pping, finding that Cozart’s attorney incorrectly advised him of his re lease eligibility date.

At Cozart’s new trial on the aggravated kidn app ing charge, he requested a special jury instruction based upon this Court’s op inion in Stat e v. Anthony , 817 S.W.2d 299 (Tenn. 1991). Cozartargued that the jury should be instructed to determine whethe

r the confinemen

t, movement,
or det ent ion inh eren t in the kid nap pin g was ess ent ial ly in cid ent al t o th e acc omp anyi ng ro bbe ry. The trial court declined

to charge the requested instruction. The jury found Cozart guilty of aggravated ki dnapp ing. He was sentenced to serve ten years as a violent off ender and to pay a $25,000 fine. The Court of Criminal Appeals affirmed the conviction and sentence. We granted review.

ANALYS IS

In Anthony , we recognized that a separate

kidnapping conv

ictio n ma y v iolate due proce ss when the kidnapping is

essentially

incidental to

an accompanying felony conviction and not “significant

enough, in and

of itself, to warrant independent prosecution.” Anthony , 817 S.W.2d at 306. The firs t q uestion is whether the movement or confinement used was beyond that necessary to commit the accompanying felony

. St ate v. Dixon , 957 S.W.2d 532, 535 (Tenn. 1997) (citing Anthony , 817 S.W.2d at 306). “If so, the next inquiry is whethe r t he additional movement or confinement: (1) prevented the victim from summoning help; (2) lessened the defendant’s risk of detection; or (3) created a significant danger or increase d the victim’s risk of harm.” Id.

Cozartrequested that

the jury be g

iven a special ins

truction based on t

his Court’s holding

in Anthony

. The instruction requ ested the jury to determine if the confinement, movement, or detention inherent

in the kidnapping was essentially incidental to the accompanying robbery. The trial court denied Cozart’s request for the special instruction. Instead, the trial court

instructed the jury on the e

lements of agg

ravated kidnapp

ing, kidnapping, and false impriso nment.

The proper function of a special instruction is to supply an omission or correct a mis take made in the general c

harge, to pres

e nt a mater ial question not tre ated in the gene

ral charge, o

r to limit, extend, eliminate, or more accura tely defi ne a p rop osi tio n al read y sub mit ted to t he j ury. Chesapeake, O. & S.W.R. Co. v. Foster , 88 Tenn. 671, 13 S.W. 694, 694 (1890). Denial of a special
or additional instruction is error only if the trial court’s jury c harge does not fully and fairly state the applicable

law. State v. Bryant, 654 S.W.2d 3 89, 390 (Tenn. 1983); Stat e v. Th ien Du c Le , 7431 “A person may not be convicted of . . . kidnapping when his criminal purpose is t he commission of [another] offense . . . and his interference wit h the victim's l

iberty occurs immediat ely wi th and in cidental to the commission of that offense, unless the interference exceeds that whi ch is ordinarily inci

dent to commission of the offense which is the objectiv e of his crimina l purpose. ” Ky. Rev. S tat. An n. § 509.050.
-3- S.W.2d 199, 202-03 (Tenn. Crim. App. 1987). On appe al, we review the denial of a special instruction in the context of the entire jury charge, read as a whole. See State v. Phipps , 883 S.W.2d 138, 142 (Te nn. Crim. App. 1994) . We will reverse t he trial court’s r

uling only if

the ju ry wa s unfairly instructe d on the legal issues or w as misled r egarding the applicable law. See id. After careful review of the trial court’s jury charge in this case , we find that denial of the Anthony instruction was proper.

Our decision in Anthony

follows the majority view that broadly-drafted

kidnapping statutes
were not intended to

apply to unlawful restraints of the victim’s liberty occurring incidentally to the commission of another crime and should be narrowly construed. Anthony , 817 S.W.2d at 305. Courts have explained tha t the underly

ing basis for this

m ajority view is the need to protect defendants

from uncurbed prosecutorial zeal, as kidnapping often carries a rela

tively hars

h penalty in comparison to the accompanying offense. See, e.g. , Virgin Islands v. Berry , 604 F.2d 221, 226 (3d Cir. 1979); People v. Daniels , 459 P.2d 225, 237 (Cal. 1969); see generally Chatwin v. United States , 326 U.S. 455, 464 (1946).

The issue of whether

to speciall

y inst ruct the jury on the Anthony holding is one of f

irst impression for this Court. Other jurisdictions, however, have rea ched the logical conclusion that such statutory interpretation articulates a judicially c reated doctrine operating as a matter of law. For example, the Supreme Court of Rhode Island has interpreted its similarly broad kidnapping statute, holdi ng that inorder for there to be a separate charge of kidnapping, the confinement or imprisonmentmust have some “independe nt significance

” exceeding tha

t necessary

to facilitate

the underlying

crime. State v. Innis , 433 A.2d 646, 655 (R.I. 1981). In Statev. Warner , 626 A.2d 205, 207-208 (R.I. 1993), the court then considered the same issue as is now before us. The court held that “the curbing of prosecutorial zeal and the independent significance of a kidnappin g are appropriately

questions of

policy and law . . . .” Id. at 208. The court pointed out that the doctrine does not affect the e

lements of the cri

me of kidnapping an

d is therefore not an issue of fact for the jur y. Id. Instead, the doctrine esta blishes an addition

al legal barri

er to the charg

ing process. Id. The court concluded that implementation of the doctrine is a judicial function because the complex issue must be weighed in light

of prior case law. Id. “Adding this fac tor to the alread

y burdensom

e task of jurors is neither necessary nor desirable in the carrying out of their essential role in deter mining the facts of the case.” Id.

The Supreme

Court of Kentucky reached a similar conclusion. The Kentucky legislature has codifiedan exemption from k idnap ping charges for confinement occurring incidentally to the commission of another crime. Ky. Rev. Stat. Ann. § 509.050. 1 In Calloway v. C ommonwealth , 550 S.W.2d 501, 502 (Ky. 1 97 7), the Supreme Cou rt of Kentucky

considered whet

her the jury

should determine if the interfere

nce with the victim 's liberty exce

eded that which is

ordinarily

incidental to2 A person commits ki dnapping when that

person "knowi

ngly re moves or

confines ano ther unlawfully so a s to interfere substantially wi th the other's l

iberty," Tenn. Code Ann . § 39-13 -302; and the rem oval or co nfinement is committed “(1) Under circumstances exposing the other p e rson to substantial ri sk of bodily injury; or (2) Where the confine ment of an

other is in a condi

tion of involun tary s ervitu

de.” Tenn. Code Ann. § 39-13- 303.
-4- the commission of the other offense. The court reasoned that application of the

exemption statute should not be determined by a jury “inthe absence of standards by which a jury could make such a determination.” Id. at 503. The court considered legislative intent and held that the purpose of the exemption statute was to cur b prosecutorial m

isuse of the kidnap

ping statute

to obtain more severe punishments

for othe r offens es. Id. The court then co ncluded that it was

a judicial functio

n to determine whether a ki dnapping ch arge constitutes an abuse of the statutes under the circumstances of each case. Id.
Hence, holdings similar to the Anthony holding interpret modern kidnapping statu

tes in an effort to curb prosecutorial zeal as a matter of policy and law. The res

ults reached by

the courts in Rhode Island and Ke

ntucky on this

issue are consist

ent with Tennessee cases limiting the jury’s role to resolution of factual issues. Hop kin s v. Nas hvi lle , Ch att ano oga & St. Loui s Ry. , 96 Tenn. 409, 34 S.W. 1029, 1040 (1896) (The province of the jury i s appropriately

limited to questions o

f fact, while questions of

law should be determined by the trial j udge.); see, e.g. , Grove v. State , 211 Tenn. 448, 456, 365 S.W.2d 871, 874 (1963) (The voluntarine ss of a confession

is a question of law to be determinedby

the trial judge; the credibility and weight given to the testimony after the confession is admitted is within the

jury’s prov

ince.); Town of Alamo v. Forcum-James Co. , 205 Tenn. 478, 481-83, 327 S.W.2d 47, 49 (1959) (Questions of law or complicated questions of mixed law and fact
are not suitable for c

onsideration by

the jury.); Nashvill e, Chattanooga & St. Louis R.R. Co. v. Brundige , 114 Tenn. 31, 84 S.W. 805, 805 (1905) (The degree of mental capacity required to make
a valid contract is a question of law for the court; whether a party possesses the require d mental capacity is a que sti on o f fac t fo r th e ju ry. ); State v. Lewis , 36 S.W.3d 88, 94 (Tenn. C rim. App

. 2000) (The jury must resolve factual disputes on the issue of whether a witness is an accomplice, but when the facts are undisputed, the issue is one of law for the trial court .); Beaty v. McGraw ,15 S.W.3d 819, 827 (Tenn. Ct. App. 1998) (The amount of damag es to be awarded

is a question of fa

ct; the proper measure of damages is a question of law to be decided by the court.).

The jury’s role is to determine whether the State has proved beyond a reasonable doubt the essential elements of both kidnapping and the accompanying felony

. Cf. State v. Howard , 30 S. W.3d 271, 277 (Tenn. 2000).

The “essentially

inc ide nta l” i nqu iry r equ ire d by Anthony is not one of the
e lements of the kidnapping statute. 2 It is, instead, part of a due pro

cess analy

sis

. Anthony , 81 7 S.W.2d at 303. The determination of whether due process has b

een violated is pur

ely a question of law. See Lowe v. State

, 805 S.W.2d 3 68, 369 (Tenn . 1991); Billups v. Neb. Dep’t of Corr. Serv. AppealsBd. , 469 N.W.2d 120, 123 (Neb. 1991) (“The determina tion of whether the procedures afforded an individual compo

rt with constitutiona

l requirements

for procedural

due process pre

sents a question of law.”).-5-

Moreover, the due process is sue involved in Anthony does not arise until the convictions for kidnapping and the accompanying felony are rendere

d. We have held that permitting convictions for both kidnapping and the accompanying felony is consistent with the intent of the General Ass emb ly. Anthony , 817 S.W.2d at 306-07 . Upholding that le gislative intent,

we should

permit the jury to return verdic

ts of guilty asto both felonies absent some constitutional violation. Only after those convictions have

occurred, howe

ver, do we apply

constitutional scrutiny. We held in Anthony that dual convictions for

robbery and kidnapping do not violate double jeopardy principles. Id. at 302-03. Anthony

requires a su

bsequen t inquiry to determine if the dual convictions violate due process. The due process inquiry must necessarily occ ur following the jury’s entry of conviction for bothcrimes. We theref

ore agree wit

h the trial court’ s refusal to submit t h e requested A nthony instruction in this case.
Having hel d that the Anthony inquiry is not a jury question, we turn to the application of Anthony to the fa cts of this case. The Court of Criminal Appeals concluded that Cozart’s dual convictions of aggravated kidnapping and aggravated robbery

do not violate due process. We agree. The movement and confinement of Wilkinson was beyond that necessary to c ommit ag gravated rob bery. Dixon , 957 S.W.2d at 535. The confinement in this case both prevented the victim from summoning help and lessened the defe ndant’s r isk of detection. Id. Accordingly, the additional movement and conf

inement rose to a le

vel sufficient to s

upport both convic

tions.

CONCLUSION

Whether a separate ch arge of kidna pping is war ranted when the kidnap ping charge accompanies a charge of a nother crime is a q

uest ion of law, no t fact. Accordingly, the trial court properly declined to instruct the jury on the Anthon y issu e . We also conclude that Cozart’s dual convictions of aggravated kidnapping and aggra vated robber

y do not vi olate due

process. We thereforeaffirm the judgment of the Court of Criminal Appeals and affirm the judgment of the trial court. It appearin

g that Kermit

Maurice Cozart is in

digent, costs of t

his appeal are ta

xed to the State, for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ JANICE M. HOL

DER, JUSTICE