# FILED
May 15, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1997

STATE OF TENN ESSEE , ) ) No. 02C01-9602-CR-00061 Appellee ) ) SHELBY COU NTY vs. ) ) Hon. JAMES C. BEASLEY, SR. , Judge JOHNNY L. SMITH , ) ) (Two Counts Especially Aggravated Appellant ) Kidnapping; Two Counts Aggravated Robbery; One Count Agg ravated Burglary; One Count A ggravated Sexual Ba ttery) For the Appellant : For the Appellee : WALKER GWINN CHARLES W. BU RSON Assistant Public Defender Attorney General and Repor ter 201 Poplar, Suite 2-01 Memphis, TN 38103 DEBORAH A . TULLIS Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y A.C. WHARTON Nashville, TN 37243-0493 District Public Defender WILLIAM GIBBONS District Attorney General AMY WEIRICH Asst. District Attor

ney General Third Floor Criminal Justice Comple x

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The d ual conv ictions stem from the fact tha t the offen se involve d two victim s. Specifical ly, the tri al court i mposed the followi ng sentences: especi ally aggravated r

obbery, 30 years each count ; aggravated robbery, 16 years each count ; aggravated burglary, 8 years;and agg rava ted s exu al bat tery, 16 years . The cour t orde red th at all of the s ente nce s run conc urre ntly, with th e exc eptio n of th e 8 yea r sen tenc e for aggr avate d bur glary, w hich was to run cons ecu tively. 2 OPINION
The appellant, Johnny L. Smith, w as convicted by a Shel by County jury of two counts of especially aggravated kidnappin g, two counts of aggr avated robbery, one count of aggr avated burglary, and one count of aggravated se xual battery. At the sentencing hearing, the trial court imposed an effe ctive sentence of thirty-eight ye

ars in the Department of Corr ection. 1 In this appeal as of right, the appellant contends that the ev idence is insufficient to suppor t his convictions and that his convictions for especially agg ravated kidnapping v iolate the holding of our supreme court in State v. Anthony , 817 S.W.2d 299 (Te nn. 1991).
After review, the judg ment of the trial court is affirmed.

I. Background
The victims, Gregory Stone and Kisha Reed, along with their two small children, shared an apartment i n Memphis. On the date of October 1 2, 1994, Mr. Stone and Ms. Re ed were asl eep in th eir upsta irs bedro om, while t he two children, ages two an d one, were asleep in the dow nstairs living area. During the early morning hour s, the front door of their apartment w as kicked open, awakening the sleeping family. Four to five men, brandishing a variet y of weapons, entered the home.

In the master bedroom, the men forced Stone onto the floor and covered3

his head with a blanket and a pillow, while Ms. Reed was forced to l ay on the floor. One man, the apparent leader, demanded "money and guns." The "leader" then began to hit Stone upo n his head with a weapon , as he continued his demand for money. Stone informed the leader that he had no money, but he did have a gold and diamond C adillac pendant, worth $10, 000. Stone was restrained with a tel ephone cord, and the "leader" instr ucted the other men to look for valuables.

Ms. Reed remained on the floor as ordered, while the "lead er" insisted that she too reveal monies or valuables. Reed informed hi m that she only had her "bill money." With a gun aimed at her head, Reed was forced down stairs to the location where she ke pt this money. Once the money was retrieved, R

eed was returned upstairs.
Upstairs, Ms. Reed sat on her bed with her two children as the intruders continued to ransack her home, l ooking for valuables. When the "leader" noti ced her watching them, he or dered her upon her stomach whe reupon she was physically rest rained with a telephone cor d. While Ms. Reed was bound and on the floor, the leader told her that he was going to have sex with her. However, after making brief sexual c ontact with the victim, he returned to the planned robbery. No penetration was attempted.
Stone was then placed in the closet in the children's room, while Ms. Reed and her t wo chi ldren w

ere plac ed in her bedroom

closet . The int ruders

then left in Stone's 1983 Nissan 300SX . After their departure, Stone was able to free himself and the others. The family then called th e police from a neighbor's residence.4 At trial, the appellant presented an alibi defense. The appellant’s girlfriend testified that, at the time of the robbe ries, she and the appellant were in bed. Ms. Reed testified that, immediately following the offense, she recognized the “leader” as the man to w hom Stone had provided transpor tation approximately two months previously. A t the police station, she id entified the appellant from a photographic l ineup. At trial, Ms. R eed again identified the appellant as the perpetrator of the offense in this case.

II. Sufficiency

of the Evidence
In his first issue, the appel lant challenges the sufficienc y of the convicting evidence. Specifically, he contends that, because the only proof offered linking him to the charged offenses is the unc orroborated testimony of Ms . Reed, the proof is insufficient to establis h his identity as the per petrator of these offenses. We disagree.
An accused challenging the sufficiency of evidence on appeal has the burden of proving that the ev idence is insufficient. Id . In determining the sufficiency of the evidence, this court does not reweig h or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, the State is entitled to the str ongest legitimate vi ew of the evidence and all legitimate or reasonable inferences w hich may be drawn there from. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate cou rt's duty to affirm the conviction if the evid ence viewed under these standards was sufficient for any rational trier of fact to hav e found the essential elements of the offense bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13 (e).5 Again, the only chall enge raised as to the sufficienc y of the convicting evidence relates to Ms . Reed's identification of the appel lant as the perpetrator of the offenses. Immediately after the inci dent, Ms. Reed stated to Mr. Stone that she recognized the perpetrator as being "that du de you gave a ride to that day." From this identific ation, Stone was able to name th e perpetrator as the appellant. L

ater that mor

ning, Reed positivel

y identifie

d the appellant from a photographic line-up at th e police station.

In State v. Strickland , 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993), this court held that the testimony of a victim identifying the perpetrator is suff icient in and of itself to support a convi ction. See also State v. Shelton , No. 01C01- 9505-CC-00144 (Tenn. Crim. Ap p. at Nashville, Mar. 22, 1996), perm. to appeal denied, concurring in results only , (Tenn. Nov. 12, 1996). M oreover, the credibility of eyew

itness testimony identify ing the accused as the perpet rator of the criminal offense for which he stands trial is a ques

tion of fact for the determination of the jury upon c onsideration of all competent proof. Strickland , 885 S.W .2d at 87 (citing State v. Crawford , 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)); see also State v. Williams , 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). Although the appellant presented an alibi defense, i.e., the testimony of his girlfriend, the jur

y, by returning a guilty verdic t, accredited the testimony of Ms. Reed. Accordingl

y, we conclude that the evidence is sufficient for a r ational trier of fact to find the appellant guilty beyond a reasonable do ubt. This issue is without merit.

III. Anthony Issue2 The appellant raises no Anthony

issue wit h respect to h is conviction for aggr avated sex ual ba ttery.

3 The offenses of aggravated kidnapping in the conso lidated cases of Anthony and Mar tin were committed in 1986 and 1988. The offense i n Coleman was com mitte d in 19 88. A t the tim e these offenses wer

e committed, the cor e element of the o

ffense of aggrav

ated kidnappi ng proscribed the conduct of one who unlawfully "seizes,confines, inveigl es, enti ces, decoys, abducts, conceal s, kidnaps or carries away another. .. ." Tenn. Code Ann. § 39-2-301 ( 1985 Supp.). 6 The appellant, in his next i ssue, contends that his conv ictions for especially aggravated kidnapping are improper, because the kidnappings were merely incidental to hi s primary purpose of armed r obbery and, thus, cannot withstand scrutiny

under the rule announced in Anthony , 817 S.W.2d at 299. 2 Anthony was our supreme court’ s first decision specifical ly addressing the i ssue of whether movement incidental to an underlying crime such as robbery would be sufficient to sustain a separate kidnappin g conviction. Expressing a concern for the constitutional guaranty of due process, the court ann ounced that the test of whether the kidnapping s hould be sustained was “w hether the confinement, movement, or detention is ess entially incidental t

o the accompanying felony .

. . or whether it is si gnificant enough, in and of itse lf, to warrant independent prosecution . . . .” Anthony , 817 S.W.2d at 306. Again, in State v. Coleman , 865 S.W.2d 455 (Tenn. 1993), our supreme court held that the offense of aggravated kidnapping could not stand i n view of convicti ons returned for aggrav ated robbery and aggrav

ated rape, based upon the due process principles announced in Anthony

.
At this juncture, it is

important to note that the decisi ons in Anthony and its companion cases, State v. Martin , 817 S.W.2d at 299, and Coleman , involved statutory offenses under the pre- 1989 Criminal Code. 3 The court’s focus in these ca ses was “whet her the co nfinem ent, move ment or d etentio n is essen tially incidental to the accompanyi ng felony.” In 1989, Tennessee en acted a new criminal code, adopted, in l arge part, from the MODEL PENAL C ODE , which included the graded offenses of false imprisonment, k idnapping, aggrav

ated kidnapping4 Tenn. Code Ann. § 39-13-3 05 defines especi ally aggravated ki dnapping as fal se impriso nme nt . . . :

(1) Accomplished with a deadly weapon or by di splay of any arti cle used or fashioned t

o lead the v icti m to reasonably believe it to be a deadly

weapon; (2) Where the victi m was under the age of thi rteen at the time of the rem oval or co nfinem ent; (3) Committed to hol d the victim for ransom or regard, or as a shiel d or hostage; or

(4) W here the vic tim s uffe rs se rious bodily in jury.
5 The C ode co mm ents pro vide the fo llowing illustration s: Thus , for exam ple, the rob ber who forces his victim to mov e from one roo m to ano ther in orde r to fin d a ca shb ox or open a saf e tec hnic ally m ay com mit kidnapping as well as robbery. This reasoning raises the po ssibility of cumulative penalti es or of highe r sanctions for kidnappi ng, even thoughthe “removal” of the victi m to another place was part and parcel of the robber

y and not an independent wr

ong. Simil arly,many instances of forcibl e rape invol ve some coerce d mo vem ent of the v ictim or u nlawful res traint for eno ugh tim e to com plete the sex act. Again, t he actor may be l iable f or both kidnapp ing and rape, even thou gh su ch as porta tion o r dete ntion of the victim is a cr imin ologic ally insignificant ci rcumstance in a course of conduct constitutingrape. Defi niti on of kidnapping t

o exclude such cases i s a task of specia l subtl ety for , unless partic ular c are is take n, trivia l aspe cts o f rob bery, r ape , or so me othe r crim e will end up classified as the most serious version of kidnapping.

. . . The MODEL PENAL CODE ’ S response to t hese concerns is t o retain kidnapping as an aggravated felony but t o restri ct its scope to cases of subst antialremoval or confinement for cer

tain specified purposes. MODEL PENAL CODE 212.1(2)(3).

7 and especially aggra vated kidnappin g. 4

The drafters of the MODEL CODE recognized that a bro adly-drawn kidnapping statute could potentially sweep within its scope conduct that is unlawful, but which shou ld be punished as some other cr ime. 5 MODEL PENAL CODE §212.1. The Code’s approach to this concern was to define the crime in terms that iden tify a distinct kin d of wrongful act or harm. The sta tutory language of our kidnapping statute adopts this rational. Thus, the focus of our kidnapping offenses is upon the specific harm thre atened as opposed to movement, confinement or detention. Under our current criminal code, before a conviction can occur for any of the enumerated k idnapping offenses, there must be proof of an unlawful removal or c onfinement of another so as to “ interfere substantially ” with the other’s liberty, coupled with specific conduct that causes or threatens a specific harm. Tenn. Code Ann. § 39- 13-302 (1989). In the case before u s, the specific harm targeted w as “accomplished with a deadly weapon.” Tenn. C ode Ann. § 39-13-305(1).6 This test was f irst pr omulgated by t he Kansas Supreme Court in State v. Buggs , 547 P.2d 72 0, 731 (K an. 1976 ). See also Faison v. State , 426 So .2d 963 ( Fla. 1983 ). 8 The enactment of new statutory offenses o f kidnapping have not, however, obviated the guarantees of due process and fundam ental fairness addressed in Anthony . Reiterating this principle, we hold that the analysis employed in determining the propriety of a kidnapping conviction committed in the course of another felony shoul d focus on the specific harm of the “kidnapping” sought to be prevented in conjunction with the specific facts of each individual case, rather

than considering the general elements of “false imprisonment,” which ar e present in any grade o f the offense.
Accordingly, based upon the due process concerns announced in Anthony , and the legislativ e focus of our current kidnapping statutes, we adopt the three part test utiliz ed by other jurisdictions with similar statutory language. 6 Moreover, we note tha

t this test was cited to, with approval, i n Anthony , 817 S.W.2d at 306. See also State v. Robinson , No. 01C01-9207-CR-00234 ( Tenn. Crim. App. at Nashvil le, July 22, 1993). Unde r this test: [I]f a taking or confinement is al leged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or c onfinement: 1. Must not be slight, inc onsequential and merely i ncidental to the other crime ; Buggs , 547 P.2d at 731. The question shoul d not focus upon incidental movement from point A to point B, but,rather, upon whether the c onfinement or removal "interfere[d] substantially" with the other's liberty. Tenn. C ode Ann. § 39-13-302(a). In other words, there can be no kidnapping where the only confinement involved is the sort that, although not nece ssary to the underly

ing felony, is likely to naturally accompany it. Berry v. State , 668 So.2d 967, 969 (Fla. 1966). 2. Must not be o

f the kind inh erent in the nature of the o ther crime ; Buggs , 547 P.2d at 731. To satisfy thi s prong the confinement must not be the7 The supreme court, in Anthony , suggested t hat “one method” of resolvi ng the questi on of “whether t he confinement is necessaril y inci dental t o the accompanying f elony, ” is to ask “whether the d efen dan t’s co ndu ct su bsta ntially inc reas ed th e risk of ha rm over and a bove that n ece ssa rily present in the crime of robbery itself.” Id . at 30 6. W e con clud e tha t this in quiry is nece ssa rily inheren t within each prong o f the test se t forth abo ve.

8 It is the legi slature’s role “t o proscribe andprevent conduct that unj ustifi ably and inexcusably

causes or threat

ens harm to indi vidual,property or publi c interest

for which pr

otectio n through the criminal law is appropriate.” Tenn. Code An n. § 39-11-101(1) (1989). 9 sort inherent in the underl ying offense. For example,it is not necessary to tie up the victim in order to commit a robbery. Berry , 668 So. 2d at 969. And, 3. Must have significance independent of the other crime in tha t it makes the other crime substanti ally easier of commission or substantially lessens

the risk of detection

. Buggs , 547 P.2d at 731. “[T]he determinati on of whether the confinement makes the other crime substantiall y easier of commission or substantially lessens the risk of detection does not depend upon the accomplishment of its purpose. The question is whether the initial confinement was intended to furthe r either of these objectives.” Berry , 668 So. 2d at 9 70 (quoting Ferguson v. State , 533 So.2d 763, 764 (Fla. 1988)). There can be no bright-line rule for determining whether the “removal” or “confinement” of a victim to another place is part and parcel of the accompanying felony, or whether it will support an independent criminal offense. The test remains a subjectiv e one, based upon the facts of each case. 7
Again, in the case before us, the appellant was charged with especially aggravated kidnapping by use of a deadly weapon , Tenn. Code Ann. § 39-13- 305(a)(1). Applying

the above stated principl es to the present case, we hold that the conduct of the appellant constituted especially agg ravated kidnapping as contemplated by our legi slature. 8 The appellant, armed and accompanied by four others, entered the bedroom of the sl eeping victims, thre atened them with a weapon, beat the husband upon his he ad with the weapon, and ti ed them up with telephone cord, w hile the others ransacked th e premises for valuables. Before leaving the home, the appellant ordered that the victims be placed in separate closets, barric aded with furniture. Fir st, this confinement was not s light,10

inconsequential, or merel y incidental to the cri me of robbery. The act of tying both victims with c

ord and placing them in separ ate closets "interfere[d] substantially” with their liberty. Second, it was not necessary to tie the victims in order to commit the robberies . Third, the binding of the v ictims had independent significance because it made the robberies easier to comm it and substantially lessened the risk of detection.This issue is, therefore, w ithout merit.
For the foregoing reasons , the judgments of convicti on are affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ JOE B. JONES, Pres iding Judge

__________________________________ JOE G. RILEY, Judge