IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 2, 2012

STATE OF TENNESSEE v. BENNIE OSBY

Appeal from the Criminal Court for Shelby County

No. 11-02364 James C. Beasley, Jr., Judge

No. W2012-00408-CCA-R3-CD - Filed November 2, 2012

The defendant, Bennie Osby, appeals his Shelby County Criminal Court jury convictions of

especially aggravated kidnapping, attempted second degree murder, aggravated robbery, and

employing a firearm during the commission of a felony, arguing that the evidence was

insufficient to support his convictions. Discerning no reversible error, we affirm the

judgments of the trial court.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR, J., delivered the opinion of the Court, in which JEFFREY S.

BIVINS and ROGER A. PAGE, JJ., joined.

Barry W. Kuhn (on appeal), and Michael Johnson (at trial), Assistant District Public

Defenders, for the appellant, Bennie Osby.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Betsy

Weintraub, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The convictions in this case arose from events that transpired on October 21,

2010, in Memphis. At trial, Marlon Toney testified that he and long-time friend Eric Moody

were sitting in Mr. Moody’s truck outside Mr. Toney’s residence at 4440 Cimmaron when

they observed a “suspicious guy” walking in the neighborhood. Mr. Toney said that the man

first walked to Walter Edwards’ house and then walked back down past Mr. Toney’s house,

this time followed by another man. The two men then walked out of Mr. Toney’s line of

sight, and just as Mr. Moody asked Mr. Toney if he knew the men, “they was running up
towards the car with guns drawn on [Mr. Toney and Mr. Moody].” Mr. Toney identified the

defendant as the man who came to his side of the truck, pointed a gun at him, and ordered

him out of the vehicle. Mr. Toney said that the defendant ordered him to lie on the ground,

and he complied. The defendant then searched Mr. Toney’s person as he lay on the ground.

After he completed the search, the defendant ordered both Mr. Toney and Mr. Moody to

stand, and then the defendant and his compatriot “marched” Mr. Toney and Mr. Moody into

Mr. Toney’s backyard.

Once in the backyard, the perpetrators ordered the victims onto the ground a

second time and “started duct-taping [their] hands behind [their] backs.” The other

perpetrator asked Mr. Toney his name, and when he responded that his name was Marlon,

the man said, “[Y]ou’re the one I want to talk to,” and then placed a piece of duct tape over

Mr. Moody’s mouth. The other perpetrator then asked Mr. Toney, “[W]here’s the money

at?,” and Mr. Toney replied, “[T]he only money that I have is in my pocket.” The other

perpetrator then removed $150.00 from Mr. Toney’s pocket. Mr. Toney explained that he

had seen the other perpetrator at Walter Edwards’ house earlier that evening and that he had

counted out “a nice piece of money” to loan to his daughter from his unemployment benefits

and placed it in his pocket while in Mr. Edwards’ carport. Mr. Toney said that the other

perpetrator demanded to know where the remainder of the money was and that he told the

man that he had no more money. At that point, the other perpetrator accused him of lying

and struck Mr. Toney in the back of the head with his handgun and kicked him in the face.

Mr. Toney testified that the other perpetrator asked him if he had more money

in the house and that, when he said he did not, the other perpetrator asked who was in the

house. Mr. Toney said that he told the other perpetrator that his mother, his son, and his

granddaughter were in the house asleep. The other perpetrator then told the defendant that

he was “fixin’ to go in the house” and told Mr. Toney that he would kill anyone in the house

who got up. When the other perpetrator opened the front door to the house, however, Mr.

Toney’s “real large pit-bull” came to the door and scared him. The other perpetrator returned

to where Mr. Toney and Mr. Moody lay on the ground and told the defendant that he was not

going inside the house because of the dog. The defendant then used his cellular telephone

to call someone to pick them up. As they waited, the other perpetrator told Mr. Toney to take

off his “jogging suit” and give it to him. The defendant took Mr. Toney’s telephone and

ordered Mr. Toney and Mr. Moody “to go down to the edge of the fence and jump over the

gate and lay down.” Mr. Toney said that they complied with the defendant’s order.

Mr. Toney testified that he was able to escape from his bonds because “really

it was real cheap duct tape.” He and Mr. Moody jumped back over the fence “[a]lmost

immediately” and started walking toward the fleeing perpetrators. When he got close to the

men, he began yelling for help. At that point, both men turned around and began shooting

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at Mr. Toney. Mr. Toney said that he immediately began running back toward his house.

Mr. Toney testified that he saw the defendant fall to the ground, get up, and run away

limping.

Mr. Toney testified that police were called to his residence and that he told

police about the defendant’s limping. He said that police showed him two photograph arrays

and that he identified the defendant as the person who first pulled him from Mr. Moody’s

truck at gunpoint. He was unable to identify the other perpetrator from the second array. Mr.

Toney recalled that he identified the defendant as the perpetrator during the preliminary

hearing as the defendant sat with five or six other men.

Eric Moody testified that as he sat in his truck with Mr. Toney talking and

listening to the radio, he “noticed some guys walking up and down the street.” Sometime

later, he saw the two men “walking fast” toward his vehicle, and he asked Mr. Toney if he

knew the men. Before Mr. Toney, who was sending a text message on his cellular telephone,

could answer, “the guy had a pistol in [Mr. Moody’s] face” and ordered Mr. Moody to get

out of the truck. He said that the man ordered him onto the ground and then patted him

down. Another man ordered Mr. Toney to the ground and patted him down. The first man

took Mr. Moody’s wallet and his cellular telephone and then demanded more money. He

said that the men forced him and Mr. Toney into Mr. Toney’s backyard, where they bound

their hands behind their backs with duct tape.

When Mr. Moody insisted that he did not have any more money, the man struck

him with a pistol and placed duct tape over his mouth. Mr. Moody identified the defendant

as the man who held Mr. Toney at gunpoint. Mr. Moody said that the other perpetrator

threatened to enter Mr. Toney’s house and that when Mr. Toney begged him not to do so, the

man kicked Mr. Toney. The man attempted to enter the house but came back into the

backyard when he encountered Mr. Toney’s pit bulldog. The men then forced Mr. Moody

and Mr. Toney to jump over the fence at the rear of Mr. Toney’s backyard but not before the

other perpetrator forced Mr. Toney to give him his “jogging suit.” After they jumped the

fence, the men told them to lie down and count to one hundred. Mr. Toney, he said, did not

obey the command and jumped back over the fence almost immediately. Within a few

seconds, Mr. Moody heard gunshots and Mr. Toney’s saying, “[T]hat n***** shooting at

me.”

Mr. Moody said that he remained on the ground for several seconds after the

gunfire ended and then walked to the front of Mr. Toney’s house. Mr. Toney was there with

his mother, his son, and his sister. Mr. Toney’s mother told them that she had telephoned

police.

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Mr. Moody said that police showed him a photograph array, but he was unable

to identify either perpetrator from any of the arrays shown to him. Mr. Moody testified that

he recognized the defendant immediately when he came to testify at the defendant’s

preliminary hearing.

Candis Bowman testified that on October 21, 2010, she was living at the

Presidential West apartment complex with her children and their father, the defendant. She

said that she and the children left the apartment with Ms. Bowman’s mother’s boyfriend to

go grocery shopping at approximately 8:00 p.m. and that the defendant stayed at the

apartment. Ms. Bowman testified that she was gone for approximately three hours and that

the defendant was not home when she returned from the store. She said that she put the

children to bed and began to unload her groceries. Approximately 10 to 15 minutes later,

Ms. Bowman heard gunshots. Within seconds, the defendant knocked on the door and told

her that he had been shot. She said that the defendant told her to run a bath and that he then

sat in the tub full of water. He refused her offer to call the ambulance. She observed gunshot

wounds to the defendant’s left shoulder and right hip as he soaked in the bathtub for nearly

two hours.

At that point, Ms. Bowman became concerned and telephoned the defendant’s

sister “[b]ecause [she] had no information on [the defendant] besides his name and [his

sister] knows more about him.” The defendant’s sister came to the apartment and told Ms.

Bowman to telephone for help. The defendant claimed that he had been shot by unknown

assailants while using the telephone outside their apartment.

During cross-examination, Ms. Bowman said that she had seen the defendant

standing outside using the telephone when she returned from the store and that she had

waved to him. She said that the defendant did not appear to be in any distress as he stood

outside. She said that she lay down in the bed for an hour after the defendant got into the

bathtub because she was nine months pregnant.

During redirect-examination, Ms. Bowman acknowledged that the statement

she provided to police did not indicate that she had seen the defendant standing outside upon

her return from the grocery store.

Memphis Police Department (“MPD”) OfficerJonathan Chalk testified that he

went to Ms. Bowman’s apartment in response to her call that the defendant had been shot.

He saw a gunshot wound to the back of the defendant’s left shoulder and to his right hip.

The defendant told Officer Chalk that he had been standing outside using the telephone when

he was shot by unknown assailants. Officer Chalk examined the area where the defendant

claimed to have been standing, but he found no blood,shell casings, bullets, or any other item

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that indicated that a shooting had taken place at that location.

MPD Sergeant George Cave interviewed the defendant at the hospital, and the

defendant told Sergeant Cave that he had been shot by unknown assailants while standing

outside his apartment complex.

MPD Sergeant Veronica Wimbley, the lead investigator in the robbery of Mr.

Toney and Mr. Moody, testified that she considered the defendant as a suspect in the robbery

after cross-referencing Mr. Toney’s statement that one of the perpetrators had been shot with

the list of shootings that were reported in Memphis on that date. Accordingly to Sergeant

Wimbley, only a single shooting was reported on that night, and the defendant was the

victim. Based on that information, she included the defendant’s photograph in an array that

she displayed to both Mr. Toney and Mr. Moody. Mr. Toney identified the defendant as one

of the perpetrators, but Mr. Moody did not identify any individual from the array.

Sergeant Wimbley interviewed the defendant following his release from the

hospital. She also interviewed Ms. Bowman on that same day. Sergeant Wimbley testified

that Ms. Bowman told her that she did not see the defendant from the time she left to go to

the grocery store until he knocked on the door to tell her that he had been shot.

At the conclusion of Sergeant Wimbley’s testimony, the State rested, and the

defendant presented the testimony of Shelby County Sheriff’s Department Deputy Eddie

Gross. Officer Gross testified that semi-automatic weapons eject shell casings when fired.

He admitted during cross-examination, however, that he had heard that some people attach

bags or other receptacles to their weapons to catch the casings.

Based upon the foregoing proof, the jury convicted the defendant as charged

of two counts of especially aggravated kidnapping, two counts of aggravated robbery,

attempted second degree murder, and employing a firearm during the commission of

attempted second degree murder. Following a sentencing hearing, the trial court found the

defendant to be a repeat violent offender for purposes of the especially aggravated

kidnapping convictions and, based upon that finding and its finding that the defendant was

a dangerous offender, the trial court imposed consecutive sentences of life without the

possibility of parole for those convictions. The trial court found the defendant to be a career

offender for the remainder of the convictions and imposed sentences of 30 years each for the

defendant’s convictions of aggravated robbery and attempted second degree murder and a

sentence of 15 years for the conviction of employing a firearm during the offense of

attempted second degree murder. The court ordered partially consecutive service of the

sentences for a total effective sentence of life without the possibility of parole plus 105 years’

incarceration.

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The defendant filed a timely but unsuccessful motion for new trial challenging

the sufficiency of the convicting evidence followed by a timely notice of appeal. In this

appeal, the defendant challenges the sufficiency of the convicting evidence and argues that

his convictions of especially aggravated kidnapping violate principles of due process.

The defendant challenges the sufficiency of the convicting evidence for each

of his convictions. We review the defendant’s claim mindful that our standard of review is

whether, after considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). “[D]irect and circumstantial

evidence should be treated the same when weighing the sufficiency of such evidence.” State

v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

Especially Aggravated Kidnapping

The defendant contends that the evidence was insufficient to support his

convictions of especially aggravated kidnapping because the State failed to establish that the

removal and confinement of the victims went beyond that necessary to accomplish the

aggravated robbery. The State asserts that the evidence supports the separate convictions of

kidnapping.

As charged in this case, especially aggravated kidnapping is “false

imprisonment, as defined in § 39-13-302 . . . [a]ccomplished with a deadly weapon or by

display of any article used or fashioned to lead the victim to reasonably believe it to be a

deadly weapon.” T.C.A. § 39-13-305(a)(4) (2006). “A person commits the offense of false

imprisonment who knowingly removes or confines another unlawfully so as to interfere

substantially with the other’s liberty.” Id. § 39-13-302(a).

The evidence adduced at trial established that the defendant and another man

forced Mr. Moody and Mr. Toney at gunpoint from Mr. Moody’s truck, searched them, took

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their money, and then forced them into Mr. Toney’s backyard. There, Mr. Toney and Mr.

Moody were bound and beaten before being ordered to scale a fence at the rear of the yard.

Under these circumstances, the evidence supports the defendant’s convictions of especially

aggravated kidnapping.

Moreover, the defendant effectively concedes that he restrained the victims,

arguing only that “[t]he restraint of the victims was only that necessary to effectuate the

robbery.” We turn now to this specific claim.

A. State v. Anthony and Progeny

In State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), our supreme court for the

first time considered “the propriety of a kidnapping conviction where detention of the victim

is merely incidental to the commission of another felony, such as robbery or rape.” State v.

Anthony, 817 S.W.2d 299, 300 (Tenn. 1991). Based on principles of due process, the high

court acknowledged that a period of confinement technically meeting the definition of

kidnapping frequently accompanies such crimes as robbery and rape and concluded that a

separate kidnapping conviction cannot be supported when “the confinement, movement, or

detention [was] essentially incidental to the accompanying felony.” Anthony, 817 S.W.2d

at 305. Specifically, Anthony required reviewing courts to determine “whether the

confinement, movement, or detention is essentially incidental to the accompanying felony

and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether

it is significant enough, in and of itself, to warrant independent prosecution and is, therefore,

sufficient to support such a conviction.” Id. at 306.

Since its decision in Anthony, the supreme court has issued a series of cases

addressing the ruling. First, in State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the court

observed:

Anthony and its progeny, however, are not meant to provide the

rapist a free kidnapping merely because he also committed rape.

The Anthony decision should only prevent the injustice which

would occur if a defendant could be convicted of kidnapping

where the only restraint utilized was that necessary to complete

the act of rape or robbery. Accordingly, any restraint in addition

to that which is necessary to consummate rape or robbery may

support a separate conviction for kidnapping.

Id. at 534-35. The Dixon court also added a second level of inquiry to the Anthony analysis,

concluding that where the confinement is beyond that necessary for the accompanying

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felony, a court must next determine “whether the 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 increased the victim’s risk of harm.” Id. at 535.

Finally, the Dixon court emphasized that the focus of any Anthony inquiry should be on “the

purpose of the removal or confinement and not the distance or duration.” Id.

The supreme court again revisited Anthony in the context of a kidnapping

conviction in State v. Fuller, 172 S.W.3d 533 (Tenn. 2005), wherein the court emphasized

that “‘the determination of whether a detention or movement is incidental to another offense

is highly dependent on the facts in each case.’” State v. Fuller, 172 S.W.3d 533, 538 (Tenn.

2005) (quoting Anthony, 817 S.W.2d at 306). The court also ruled that the Anthony test is

not “outcome determinative,” noting that the victim in Fuller had been able to summon help

despite being bound with duct tape. Then, in State v. Richardson, 251 S.W.3d 438 (Tenn.

2008), the supreme court completely abandoned the “essentially incidental” analysis of

Anthony and replaced it with the two-part test established in Dixon:

The Dixon two-part test fully replaces the Anthony “essentially

incidental” analysis. As we previously have observed, the Dixon

test “provides the structure necessary for applying the principles

announced in Anthony.” Although we adhere to the due process

principles adopted in Anthony, we now make clear that the

Anthony analysis should not be used in conjunction with the

Dixon two-part test. The Dixon test should be used exclusively

in all future inquiries.

Id. at 443 (citation omitted). The court emphasized, “[N]o bright line exists for making the

threshold determination in the first prong of the Dixon test. The inquiry is fact-driven.” Id.

B. State v. White

Most recently, in State v. White, 362 S.W.3d 559 (Tenn. 2012), our supreme

court again addressed the precedent originally developed in Anthony and held “that whether

the evidence, beyond a reasonable doubt, establishes each and every element of kidnapping,

as defined by statute, is a question for the jury properly instructed under the law.” State v.

White, 362 S.W.3d 559, 577 (Tenn. 2012). In so holding, the court expressly overruled

Anthony, Dixon, and all their progeny,specifically concluding that “[t]he separate due process

test articulated first in Anthony, and subsequently refined in Dixon and its progeny, is,

therefore, no longer necessary to the appellate review of a kidnapping conviction

accompanied by a separate felony.” Id. at 578. Instead, the court held, the jury’s finding

beyond a reasonable doubt all the elements of kidnapping coupled with the reviewing court’s

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“task . . . of assessing the sufficiency of the convicting evidence” is sufficient to protect the

defendant’s due process rights. Id. The court determined that the inclusion of false

imprisonment, which requires that removal or confinement substantially interfere with the

liberty of another, as a “‘building block’” for all kidnapping convictions under the current

version of the Code prevents the criminalizing of the type of “trivial restraints” contemplated

by Anthony under the previous version of the kidnapping statutes. Id. at 576.

Although it overruled the line of cases that required a legal, as opposed to a

factual due process evaluation, the court retained the requirement that the State establish that

the removal or confinement of the victim went beyond that necessary to accomplish the

accompanying offense, classifying it as a question of fact to be determined by a jury “properly

instructed under the law.” Id. at 577. Given this holding, the court determined that

[w]hen jurors are called upon to determine whether the State has

proven beyond a reasonable doubt the elements of kidnapping,

aggravated kidnapping, or especially aggravated kidnapping,

trial courts should specifically require a determination of

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. Despite overruling Anthony and despite dismissing for a second time the

“essentially incidental” test adopted by Anthony, the court determined that the requirement

that the removal or confinement be more than essentially incidental to the other offense

informs the “definition for the element of the offense requiring that the removal or

confinement constitute a substantial interference with the victim’s liberty.” Id. Having thus

concluded, the court ruled that, to protect the defendant’s due process rights, the jury should

be instructed that it must determine that the removal or confinement of the victim was

“significant enough, standing alone” to support a conviction of kidnapping before imposing

one when an overlapping felony accompanies the kidnapping charge. Id. The supreme court

also developed a jury instruction to facilitate the jury’s determination of whether the removal

or confinement was essentially incidental to the accompanying offense. See id. at 580-81.

The court found that the White jury had not been instructed on the “key” element of false

imprisonment, that “substantial interference with the victim’s liberty” required “a finding

1

. . . that the victim’s removal or confinement was not essentially incidental to the

The supreme court left the offense of false imprisonment out of the list of offenses for which the 1

new instruction is required. We assume, however, that because substantial interference with liberty is a

necessary element of false imprisonment, such an instruction is required for that offense when it is charged

along with another felony.

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accompanying felony offense.” Id. at 580. The supreme court granted White a new trial on

the basis of the “instructional error.” Id.

2

C. Timing and Applicability

Having recounted the history of the due process requirement first developed

in Anthony, we must now determine whether the ruling in White is applicable to this case.

The jury in this case, tried in 2011, was not provided with the instruction envisioned by our

supreme court. In White, the supreme court classified its ruling as one that clarified existing

law rather than “creating a new standard for kidnapping” and stated that the ruling “does not

articulate a new rule of constitutional law or require retroactive application.” Id. at 578. The

court’s statement that the ruling is not entitled to retroactive application would, at first blush,

suggest that it is applicable only to those cases tried after March 9, 2012, the date on which

the opinion was filed. We note, however, that the court has remanded a number of cases for

reconsideration in light of its ruling in White, see, e.g., State v. Robert Fusco, No. M2012-

01724-SC-R11-CD (Tenn. Mar. 23, 2012),suggesting that it intended retroactive application

of the ruling to those already-tried cases in the appellate pipeline, that is pending direct

appeal, at the time it was filed and that its use of the word “retroactive” was intended to

prevent use of the ruling for collateral attack. The court opted for similar, limited

retrospective application of its ruling in State v. Burns, 6 S.W.3d 453, 471 (Tenn. 1999), a

case that also involved jury instruction error. Wiley v. State, 183 S.W.3d 317, 327 (Tenn.

2006). Accordingly, we will utilize the ruling in White to analyze the issue presented here.

Having decided that the ruling in White is applicable to this case, we must next

determine how that ruling should be applied here. As discussed, in White, our supreme court

dispensed with the separate due process analysis required by Anthony and its progeny and

held that determination of guilt beyond a reasonable doubt “by a jury properly instructed

under the law” followed by appellate review of the sufficiency of the convicting evidence

safeguards the defendant’s due process rights. See White, 362 S.W.3d at 577-78.

In making its ruling in White, however, our supreme court emphasized

repeatedly that the question of whether the evidence has sufficiently established a separate

kidnapping conviction is a question of fact to be determined by a “jury properly instructed

under the law.” White, 362 S.W.3d at 577, 579, 580 (emphasis added). Indeed, the court

noted on four separate occasions that what had formerly been analyzed as a due process issue

by the appellate courts was an issue of fact to be determined by a jury that was given the

Interestingly, however, the instruction developed by the supreme court does not utilize the term 2

“essentially incidental.”

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benefit of the instruction later crafted by the court. See id. Thus, the court classified the

specific error in White as one of jury instruction error, ruling, “Because the jury was not

properly instructed on the question of whether the victim’s removal or confinement was

essentially incidental to an accompanying felony, the Defendant is entitled to a new trial on

the especially aggravated kidnapping charge.” Id. at 580.

1. Fairly Raising the Issue

When the issue at hand is the omission of a jury instruction, the situation

presented in both White and the present case, the appellate court’s first task is to determine

whether the evidence fairly raised the issue. In general, the trial court is obliged to instruct

the jury on the rules of law that apply to the issues at trial. Poe v. State, 370 S.W.2d 488, 489

(1963). The duty of the trial court to charge the jury arises when an issue is fairly raised by

the evidence. No duty to charge on that issue arises when the evidence fails to fairly raise

it. See State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995); State v. McPherson,

882 S.W.2d 365, 374 (Tenn. Crim. App. 1994); see also T.C.A. § 39-11-203(c) (“The issue

of the existence of a defense is not submitted to the jury unless it is fairly raised by the

proof.”).

We are aware that, in White, the court said that its first task in applying the

rules to the facts of that case was to “determine whether the evidence presented in this case

is sufficient to sustain a conviction [of] . . . kidnapping.” White, 362 S.W.3d at 579.

However, we think that the court had in mind determining the adequacy of evidence to fairly

raise the issue of whether the removal of the victim constituted a substantial interference with

her liberty. First, the determination of whether the issue is fairly raised is, as noted above,

time-honored and traditional. Second, the court otherwise acknowledged that the sufficiency

of the evidence could not be evaluated in the absence of proper jury instructions on the

affected issue. Third, in concluding its remarks on this first task of review, the court said that

the character of the victim’s removal or confinement “could be interpreted in different

ways[,] and[] therefore, the determination of whether the removal or confinement . . .

constituted a substantial interference with her liberty was a question of fact for the jury to

resolve.” Id. This statement is strongly suggestive of the “fairly raised” language contained

in the case law.

3

The use of the term of art “sufficiency of the evidence” imports a mandate of due process such that, 3

when the convicting evidence is legally insufficient, the charge is dismissed. See Jackson v. Virginia, 443

U.S. 307, 324 (1979). Similarly, when the proof may be interpreted to support a conviction offense, as the

court seemed to indicate in White, the conviction must be affirmed. Id. The grant of a new trial could never

be the disposition of a question on the sufficiency of the evidence. Moreover, we cannot fathom that the

White court intends to dismiss a charge of kidnapping based upon a finding that the evidence did not establish

(continued...)

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In the present case, we determine that the issue of whether the defendant

substantially interfered with the victim’s liberty in the face of companion charges of

aggravated robbery and attempted second degree murder was fairly raised by the evidence.

2. Determination of Error

Having determined that the evidence fairly raised the issue of whether the

defendant substantially interfered with the victim’s liberty apart from the other felony

charges, we move on to the task of determining whether the trial court erred by failing to give

the jury the instruction promulgated in White. This task is readily accomplished. The issue

was fairly raised; yet, the court did not give the mandated instruction in this case that was

tried in 2011 and on appeal when White was filed. Therefore, based upon the case law, the

failure to instruct was error.

Our next task is to determine whether the error is reversible or is harmless

beyond a reasonable doubt. To determine the harmfulness of the error, we still do not

address the “sufficiency of the evidence” in the Jackson sense but evaluate the harmful effect

of the absence of the required jury instruction. For this reason, we did not analyze the issue

in this case as part of our analysis of the sufficiency of the evidence above but instead

consider here the harmful effect of the trial court’s failure to instruct the jury that the “key

element – the substantial interference with the victim’s liberty – [requires] a finding by the

jury that the victim’s removal or confinement was not essentially incidental to the

accompanying felony offense.” White, 362 S.W.3d at 580; see also id. n. 20 (indicating that

the issue is subject to constitutional harmless error analysis by stating that remand for a new

trial was warranted in White because the court could not “conclude beyond a reasonable

doubt that the jury verdict would have been the same absent the instructional error”).

(...continued) 3

substantial interference vis-a-vis the elements of another charged – but overlapping – offense when the jury

was not instructed to determine the character of such interference. Because the due process issue at stake

is now deemed a factual issue to be determined by the trier of fact and not a legal issue to be determined by

the trial court, see White, 362 S.W.3d at 577, an appellate court that embarks upon determining the

“sufficiency of the evidence” on this issue despite the absence of the necessary, enabling instruction usurps

the role of the trier of fact. Furthermore, even though the end result of an appeal may not depend upon the

nicety of the process used, the appellate court should nevertheless strive to keep its processes of review in

proper alignment. A review of the “sufficiency of the evidence” requires an assessment of the evidence in

the light most favorable to the State, see, e.g., State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App.

2003); contrarily, to determine whether the evidence fairly raises a defensive issue, “a court must, in effect,

considerthe evidence in the light mostfavorable to the defendant, including all reasonable inferences flowing

from that evidence,” State v. Blackmon, 78 S.W.3d 322, 331 (Tenn. Crim. App. 2001); State v. Bult, 989

S.W.2d 730, 733 (Tenn. Crim. App. 1998).

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The jury in this case was not instructed that it must find “that the victim’s

removal or confinement was not essentially incidental to the accompanying felony offense.”

Thus, the same jury instruction error that attended Jason Lee White’s conviction exists here.

Unlike the error in White, however, the error in this case can be classified as harmless beyond

a reasonable doubt. Proof that the victims’ removal or confinement went beyond that

necessary to accomplish either of the accompanying felonies was overwhelming, and we

conclude that the jury’s verdict would have been the same had it been properly instructed.

Attempted Second Degree Murder

“Second degree murder is . . . [a] knowing killing of another.” T.C.A. § 39-13-

210(a)(1).

A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

(3) Acts with intent to complete a course of action or

cause a result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes

them to be, and the conduct constitutes a substantial step toward

the commission of the offense.

Id. § 39-12-101(a).

The proof in this case showed that Mr. Toney jumped back over the fence into

his yard after the perpetrators left and began yelling for help. As he chased the assailants,

both the defendant and the other perpetrator fired shots at him. The defendant suffered a

gunshot wound. This evidence was sufficient to support the defendant’s conviction of

attempted second degree murder.

Aggravated Robbery

“Aggravated robbery is robbery as defined in § 39-13-401 . . . [a]ccomplished

with a deadly weapon or by display of any article used or fashioned to lead the victim to

reasonably believe it to be a deadly weapon.” Id. § 39-13-402(a)(1). “Robbery is the

intentional or knowing theft of property from the person of another by violence or putting the

person in fear.” “A person commits theft of property if, with intent to deprive the owner of

property, the person knowingly obtains or exercises control over the property without the

owner’s effective consent.” Id. § 39-14-103(a).

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Both Mr. Toney and Mr. Moody testified that the defendant and the other

perpetrator took money from them at gunpoint. Mr. Toney testified that his clothing was also

stolen during the encounter. This evidence supports the jury’s verdict.

Employing a Firearm During Commission of a Felony

“It is an offense to employ a firearm during the [c]ommission of a dangerous

felony.” T.C.A. § 39-17-1324(b)(1). As charged in this case, attempted second degree

murder is a dangerous felony. See id. § 39-17-1324(i)(1)(B).

4

Again, the evidence was overwhelming that the defendant used a firearm

during the commission of his attempt on Mr. Toney’s life.

Conclusion

Because the trial court’s failure to properly instruct the jury on the elements of

especially aggravated kidnapping was harmless beyond a reasonable doubt and because the

evidence was otherwise sufficient to support each of the defendant’s convictions, the

judgments of the trial court are affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

Although especially aggravated kidnapping is also classified as a dangerous felony in Code section 4

39-17-1324, the statute precludes a separate conviction for employing a firearm during the commission of

a dangerous felony where “possessing or employing a firearm is an essential element of the underlying

dangerous felony as charged,” as was the case here. Id. § 39-17-1324(c). 

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