IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 24, 2013 Session

STATE OF TENNESSEE v. TRAVEI PRYOR

Direct Appeal from the Criminal Court for Knox County

No. 96358 Jon Kerry Blackwood, Judge

No. E2012-02638-CCA-R3-CD - Filed December 18, 2015

A Knox County Criminal Court Jury convicted the appellant, Travei Pryor, of eleven counts

of aggravated kidnapping, a Class B felony; four counts of aggravated robbery, a Class B

felony; four counts of aggravated burglary, a Class C felony; one count of employing a

firearm during the commission of a dangerous felony, a Class C felony; one count of

possessing a firearm during the commission of a dangerous felony, a Class C felony; and one

count of criminal impersonation, a Class B misdemeanor. After a sentencing hearing, he

received an effective twelve-year sentence. On appeal, the appellant claimed that the

evidence was insufficient to support his convictions of employing and possessing a firearm

during the commission of a dangerous felony and that the trial court committed reversible

error by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn.

2012). This court concluded that the trial court’s failure to instruct the jury pursuant to White

constituted reversible error, reversed his eleven convictions of aggravated kidnapping,

remanded the case to the trial court for a new trial as to those offenses, and affirmed the

appellant’s remaining convictions. The Tennessee Supreme Court granted the State’s

application for permission to appeal and remanded the case to this court for reconsideration

in light of the supreme court’s recent opinions in State v. Teats, 468 S.W.3d 495 (Tenn.

2015), and State v. Williams, 468 S.W.3d 510 (Tenn. 2015). After revisiting the issue

pertaining to the White instruction, we conclude that the appellant’s convictions of

aggravated kidnapping in counts 13 and 14 and counts 20 and 21 must be reversed and the

case remanded to the trial court for a new trial as to those offenses. The appellant’s

remaining convictions are affirmed. However, upon remand, the trial court is to merge the

appellant’s convictions in counts 7 and 8, counts 9 and 10, counts 11 and 12, counts 15 and

16, and counts 17 and 18.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed in Part and Reversed in Part, and the Case is Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER, J., joined. JOHN EVERETT WILLIAMS, J., concurred in part and dissented in

part.

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, Travei Pryor.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney

General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In January 2011, the appellant and his two codefendants, Walter Patrick and Paul

Gillespie, were charged in a multi-count indictment with eleven counts of especially

aggravated kidnapping, four counts of aggravated robbery; four counts of aggravated

burglary; one count of employing a firearm during the commission of a dangerous felony;

and one count of possessing a firearm during the commission of a dangerous felony. In

addition, the appellant and Patrick were charged with criminal impersonation. The

appellant’s case was severed from that of his codefendants.

At trial, twenty-year-old Landry Stanton testified that he used to attend Carter High

School in Knox County and played football and basketball for Carter High for three years.

During that time, he played against the appellant, who attended Austin East High School.

Landry said that he was not around the appellant very often and “didn’t really know him”

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but that he knew the appellant’s face and had heard the appellant’s voice. On the morning

of September 17, 2010, Landry was in his home on Asheville Highway. He shared the home

with his brother, Brett Stanton, and Robert Gorman, both of whom were in their bedrooms.

Three additional people were in the house: Vanessa Griph, Brett’s girlfriend, was in Brett’s

bedroom with him, and Josh Cox and Paul St. Aubin were sleeping on couches in the living

room.

Landry testified that about 9:00 a.m., he awoke and started getting ready for work. He

said that while he was in the bathroom, he heard a “big bang” in the living room and heard

someone say, “‘Get the f*** on the ground.’” Landry said that he panicked, that he walked

out of the bathroom, and that a male pointed a gun at him. Landry immediately recognized

the male’s face and voice as that of the appellant. The appellant told him to go into the living

Because two of the witnesses share a surname, we will refer to them by their first names

1

for clarity.

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room and get on the floor, and Landry did as he was told. He said that Brett “peek[ed]” out

of Brett’s bedroom to see what was going on and that the appellant told Brett to come into

the living room and get on the floor. Brett did as the appellant instructed, and the appellant

asked him if anyone else was in the house. Brett told the appellant that his girlfriend was in

his bedroom. The appellant told Brett to get her and bring her into the living room, which

Brett did. Landry said that when Robert Gorman “poke[d]” his head out of his bedroom, the

appellant told Gorman to get on the ground. The appellant wanted to know where the

“weed” and money were and took Brett back to Brett’s bedroom. The appellant took eighty

dollars and two Mason jars containing marijuana from Brett’s room. Then the appellant

brought Brett out of the bedroom and left with a second male, who also had a gun and had

been standing by the front door during the robbery. Landry did not recognize the second

male but had seen him previously.

Landry testified that during the robbery, Josh Cox was lying on the living room floor

and Paul St. Aubin was lying on one of the living room couches with “his face in the couch.”

As the robbers were leaving the home, they grabbed Cox’s wallet off a table. Landry

described the appellant’s gun as “all black.” He said that it was not a revolver and that the

appellant’s pointing the gun at him was “[o]ne of the scariest things that ever happened in

[his] life.” The robbers fled in an older-model Ford truck, and Brett telephoned 911. At first,

the victims did not reveal to the police that the robbers had taken marijuana. However, they

later told Detective Colin McLeod about the stolen drugs.

On cross-examination, Landry testified that one of the Mason jars was one-half full

of marijuana but that the second jar was only one-quarter full. When Brett telephoned 911

after the robbery, he did not report that the robbers had taken marijuana. A police officer

arrived at the scene, and the victims also did not tell him that the robbers had taken

marijuana. Hours later, Detective McLeod arrived and confronted the victims about the

marijuana. At that point, they admitted marijuana was involved. Landry said that the

appellant was wearing a black hoodie over the appellant’s face during the robbery but that

he was still able to recognize the appellant. He acknowledged that the robbery lasted no

more than five minutes.

Twenty-three-year-old Josh Cox testified that on the morning of September 17, 2010,

he was lying on a living room couch by the front door. Paul St. Aubin was asleep on a couch

across from Cox. Cox said he was sleeping when two males kicked in the front door. At

first, Cox did not realize what was happening. He said that by the time he realized what was

going on, one of the males was “already through the house.” The other male was standing

by the front door. Cox got onto the floor. He said that Landry Stanton appeared and that the

appellant told Landry to get on the floor. Brett and Robert Gorman came out of their

bedrooms, and Landry told Gorman what was going on. Gorman also got on the floor. The

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appellant moved Brett and Vanessa Griph out of Brett’s bedroom, escorted Brett back into

the bedroom, and told him to get the “weed” and money. The appellant was holding a gun

and told the victims that he was going to start shooting if they moved. Cox was terrified. He

said that he heard the Mason jars containing marijuana “clink” together and that the two

robbers left the house. In addition to marijuana, Cox thought the appellant took money out

of Brett’s bedroom. The second robber took Cox’s wallet, which had been on a stand in front

of the couch. Sometime after the robbery, Cox received a telephone call from the Knoxville

TVA Employees Credit Union in downtown Knoxville and was told that his wallet had been

found outside. Detective McLeod later returned Cox’s wallet to him.

On cross-examination, Cox testified that when police officers arrived, he spoke with

them but did not tell them that marijuana was involved. He said he had “grown up with

guns” and was certain that the appellant used a real gun during the robbery. However, he did

not know if the gun was cocked. He acknowledged that his wallet contained credit cards and

that no one used the cards.

Jessica Hurd testified that she was a former service member representative for the

Knoxville TVA Employee’s Credit Union located at Wall Avenue and Gay Street in

Knoxville. Sometime in the summer of 2010, a person gave Jason Cox’s wallet to Hurd.

Hurd said she telephoned Cox and spoke with his mother, who informed Hurd that the wallet

had been “taken.” While Hurd was at lunch, Detective McLeod came to the credit union and

picked up the wallet.

Twenty-four-year-old Brett Stanton testified that he graduated from Carter High

School in 2006. In September 2010, Brett was living in a house on Asheville Highway with

his brother, Landry, and Robert Gorman. Brett said he knew the appellant “through sports

where [Landry] played against him.” Landry also had played basketball with Carjuan Hayes

for four or five years, and Hayes had been to their home three or four times to play video

games. Brett did not know Walter Patrick.

Brett testified that on September 17, 2010, he was lying in bed and heard a “big bang.”

He left his bedroom and saw the appellant and Patrick holding guns. The appellant pointed

a gun at Brett and told him to get on the floor. Brett was terrified and did what he was told.

The appellant started screaming, wanting to know if anyone else was in the house. Brett told

the appellant that his girlfriend was in the back room, and the appellant made Brett bring

Vanessa Griph out of the bedroom. The appellant told Griph to get on the floor and told

Brett to go back into the bedroom. Brett said the appellant asked him “where the weed was”

and that he pointed to two Mason jars on the floor. One jar contained about one ounce of

marijuana, and the other contained a couple of grams of marijuana. The appellant took the

jars and grabbed seventy to ninety dollars that was on a futon in the bedroom. Brett said that

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the appellant was covering the appellant’s mouth with a shirt during the robbery but that the

appellant dropped the shirt a couple of times. The appellant and Patrick left in an oldermodel white truck.

On cross-examination, defense counsel played Brett’s 911 call for the jury. Brett

acknowledged that he lied to the 911 operator by not revealing that the robbers had taken

marijuana. He also acknowledged that he did not mention the marijuana until Detective

McLeod confronted him a couple of hours after the robbery. The appellant was holding a

black handgun during the robbery. Brett said that he did not know much about guns but that

the appellant’s gun “looked pretty real to me.” Defense counsel asked him, “But no way of

telling me for certain it was a real gun?” Brett answered, “Under the circumstances, I would

believe that it’s a real gun, hundred percent.” He said that the robbery “seemed like it

[lasted] forever” but acknowledged that it probably lasted five minutes or less.

Twenty-four-year-old Robert Gorman testified that he used to attend Carter High

School and did not know the appellant. On September 17, 2010, Gorman was living in a

house on Asheville Highway with Landry and Brett Stanton. That morning, Gorman was

asleep in his bedroom when he heard a “big loud bang.” He got up to see what was going

on and saw two males with black guns. He said that one of the males told him to get on the

floor and that he did as he was told. The male asked, “‘Is there anybody else in the house?’”

Brett answered that his girlfriend was in his bedroom. After Vanessa Griph came out of

Brett’s room, Gorman heard the male say, “‘Where’s the weed? Where’s the money?”

Gorman was scared, stayed on the floor, and did not see what was happening. However, he

said, “I’m guessing he’s--he’s got the weed, and he’s got the money, and he’s leaving.”

On cross-examination, Gorman testified that he did not talk with the police when they

first arrived at the scene. However, Gorman later spoke with an investigator and told him

about the marijuana.

Twenty-four-year-old Paul St. Aubin testified that he used to attend Carter High

School and did not know the appellant. On September 17, 2010, St. Aubin was at the home

of Brett and Landry Stanton and was sleeping on a couch. A male kicked in the front door

of the home, and he and another male came inside. St. Aubin said that each male was

holding a gun and that he “immediately knew what was happening.” The males told him,

“‘Lay down. Don’t move.” St. Aubin was scared, remained lying on the couch, and “put

[his] hands out.” He said that one of the males was walking through the house and “clearing

everybody out.” The second male was standing at the front door. St. Aubin said that he

never saw their faces and that they asked, “‘Where’s the money? Where’s the weed at?”

On cross-examination, St. Aubin testified that he did not give a statement when the

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police arrived and did not tell them about the marijuana. He acknowledged that he did not

know whether the robbers’ guns were real and that they left the home as soon as they got the

marijuana and money. St. Aubin could not identify the appellant as one of the robbers.

Twenty-three-year-old Vanessa Griph testified that she used to attend Carter High

School and did not know the appellant. On the morning of September 17, 2010, Griph was

at the home of her boyfriend, Brett Stanton. Griph said she was lying in bed and heard a “big

bang.” Brett opened the door, turned around, and told Griph to call 911. Griph looked out

the bedroom window and saw a white truck that she had not seen previously. She said that

she dialed 911 and started to put her clothes on but that by that time, the appellant had arrived

at the bedroom door and “was waiving a gun in [her] face.” She said that the gun was black

and that she was trying to pay attention to the appellant’s face but that he “had his shirt up.”

The appellant told Griph to go into the living room and get on the floor, and she did as she

was told. Griph identified the appellant in court as the male who pointed the gun at her and

made her get on the floor.

On cross-examination, Griph acknowledged that after the appellant moved everyone

into the living room, he took Brett back into the bedroom. The appellant got the marijuana

from the bedroom and left the house. Griph said that she had never seen a gun prior to that

day and did not know if the appellant’s gun was real but that it “didn’t look fake to me.” She

acknowledged that no one told the first officers on the scene about the marijuana.

Officer Terry Pate of the Knoxville Police Department (KPD) testified that on

September 17, 2010, he was patrolling the area of Dandridge Avenue and was two miles or

less from the Green Hills Apartments. Officer Pate began looking for a white pickup truck

related to the robbery, learned other officers had stopped the truck, and went to the truck’s

location. The people in the truck told the officers that they had come from an apartment in

the Green Hills Apartments, so Officer Pate and other officers went to the apartment to

conduct a “knock and talk.” Officer Pate said that when they arrived, he remained “one floor

down” and that a window to the apartment was above him. Officer Pate heard a commotion

and “some shuffling going on.” When the apartment door opened, he heard officers order

the people in the apartment to come outside. Officer Pate went to the apartment to assist and

smelled marijuana. He said that three or four people, including Walter Patrick and Carjuan

Hayes, came out of the apartment and that the officers conducted a protective sweep of the

apartment to make sure no one else was inside.

Officer Pate testified that the officers received permission to search the apartment.

During the search, they found a glass Mason jar in the back bedroom where Officer Pate had

heard shuffling. Officer Pate said the type of marijuana in the jar was commonly referred to

as “buds” and was “high-end marijuana.” He said it weighed twenty-seven grams, which was

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considered one ounce “in the street,” and was worth $350 to $700. The officers also found

a Glock gun case. Two gun magazines and a plastic bag were in the case, and the plastic bag

contained about thirty rounds of .40-caliber ammunition. On cross-examination, Officer Pate

acknowledged that the appellant was not in the apartment and did not live there.

Officer Nathaniel Skellenger of the KPD testified that on November 3, 2010, he

received a report of shots fired in the Mechanicsville area. He went to the area and saw a

white Ford Crown Victoria with two malesstanding beside it. Officer Skellenger approached

them and asked if they had heard gunshots. One of the males, who turned out to be the

appellant, told Officer Skellenger that his name was Wilmarcus Glasper. The other male,

who was Dominic Lane, told Officer Skellenger that the car was his and gave Officer

Skellenger permission to search it. In the glove compartment, Officer Skellenger found a

bottle of hydrocodone and a loaded Glock Model 22 .40-caliber pistol. The pistol contained

twelve rounds of ammunition, and one round was in the chamber. On cross-examination,

Officer Skellenger acknowledged that he arrested the appellant for criminal impersonation.

At the conclusion of Officer Skellenger’s testimony, the State rested its case. The

appellant did not present any witnesses, and the jury convicted him as follows: Counts 1

through 4, alternative theories of aggravated burglary of Landry Stanton’s habitation; counts

5 and 6, employing a firearm during the commission of a dangerous felony and possessing

a firearm during the commission of a dangerous felony, respectively; counts 7 and 8,

alternative theories of aggravated robbery against Brett Stanton; counts 9 and 10, alternative

theories of aggravated robbery against Josh Cox; counts 11 and 12, aggravated kidnapping

as a lesser-included offense of alternative theories of especially aggravated kidnapping

against Vanessa Griph; counts 13 and 14, aggravated kidnapping as a lesser-included offense

of alternative theories of especially aggravated kidnapping against Josh Cox; counts 15 and

16, aggravated kidnapping as a lesser-included offense of alternative theories of especially

aggravated kidnapping against Paul St. Aubin; count 17, aggravated kidnapping as a lesserincluded offense of especially aggravated kidnapping against Robert Gorman; counts 18 and

19, aggravated kidnapping as a lesser-included offense of alternative theories of especially

aggravated kidnapping against Landry Stanton; counts 20 and 21, aggravated kidnapping as

a lesser-included offense of alternative theories of especially aggravated kidnapping against

Brett Stanton; and count 22, criminal impersonation.

After a sentencing hearing, the trial court merged the appellant’s aggravated burglary

convictions in counts 1 through 4 and his employing/possessing a firearm during the

commission of a dangerous felony convictions in counts 5 and 6. The trial court sentenced

the appellant to consecutive sentences of six years for aggravated burglary, a Class C felony,

and six years for employing a firearm during the commission of a dangerous felony, a Class

C felony. The trial court sentenced the appellant to eight years for each of his aggravated

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kidnapping convictions, a Class B felony, and six months for his criminal impersonation

conviction, a Class B misdemeanor, and ordered that those convictions be served

concurrently with the six-year sentence in count 1 for a total effective sentence of twelve

years.

II. Analysis

A. Sufficiency of the Evidence

The appellant claims that the evidence is insufficient to support his convictions for

employing and possessing a firearm during the commission of a dangerous felony because

the evidence fails to show that he used an authentic firearm during the robbery; because the

victims’ lying to the police about the stolen marijuana demonstrates that they were not

credible; and because the Glock gun box, ammunition, and pistol found after the robbery

were never connected to him. The State argues that the evidence is sufficient. We agree

with the State.

“When the sufficiency of the evidence is challenged, the relevant question is whether,

after reviewing the evidence in the light most favorable to the State, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011);see also Jackson v. Virginia, 443 U.S. 307, 319

(1979); Tenn. R. App. P. 13(e). “Because a guilty verdict removes the presumption of

innocence and replaces it with a presumption of guilt, on appeal a defendant bears the burden

of showing why the evidence is insufficient to support the conviction.” State v. Wagner, 382

S.W.3d 289, 297 (Tenn. 2012); see also State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The State must be afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn therefrom. See Wagner, 382 S.W.3d at 297; State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). The jury, as the finder of fact, is responsible for

assessing the credibility of the witnesses, deciding the weight to accord their testimony, and

reconciling any conflicts in the proof. See Wagner, 382 S.W.3d at 297; State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). On appeal, this court cannot re-weigh the evidence or draw

any inferences from it other than those drawn by the jury. See Wagner, 382 S.W.3d at 297;

Cabbage, 571 S.W.2d at 835. A guilty verdict can be based upon direct evidence,

circumstantial evidence, or a combination of both. “The standard of review ‘is the same

whether the conviction is based upon direct or circumstantial evidence.’” Dorantes, 331

S.W.3d at 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

As charged in the indictment, it is an offense to possess a firearm with the intent to

go armed during the commission of a dangerous felony or employ a firearm during the

commission of a dangerous felony. Tenn. Code Ann. § 39-17-1324(a), (b)(1). The trial court

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instructed the jury that the “dangerous felony” in this case was aggravated burglary. See

Tenn. Code Ann. § 39-17-1324(i)(1)(H).

Taken in the light most favorable to the State, the evidence shows that on the morning

of September 17, 2010, the appellant and Walter Patrick kicked open the door to the home

of Landry Stanton, Brett Stanton, and Robert Gorman. The appellant had a handgun, pointed

it at the three residents and their three guests, and forced all but one of them onto the living

room floor. He also threatened to “start shooting” if anyone moved. Josh Cox testified that

he had “grown up with guns” and was certain the appellant’s gun was real. Brett Stanton

testified that the appellant’s gun looked authentic and that he thought it was real “[one]

hundred percent.” In fact, nothing indicates that the weapon used by the appellant was

anything but a real firearm. See State v. Billy J. Blankenship, No.

E2011-01550-CCA-R3-CD, 2012 WL 5356288, at*8 (Tenn. Crim. App. at Knoxville, Oct.

31, 2012) (concluding in defendant’s appeal of his robbery and theft convictions that

testimony by bank employees and still photographs taken during bank robbery “revealed

nothing to indicate that the gun in Blankenship’s hand was anything other than an actual

firearm capable of shooting bullets”). Asfor the appellant’s claim that the victims’ testimony

about the gun was not credible, the credibility of the witnesses is within the purview of the

jury. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “the

weight and credibility of the witnessess’ testimony are matters entrusted exclusively to the

jury as the trier[ ] of fact”). The jury obviously accredited the victims’ testimony. Therefore,

we conclude that the evidence, regardless of whether the pistol found after the robbery was

linked to the appellant, is sufficient to support the convictions.

B. White Instruction

The appellant contends that the trial court committed reversible error by failing to

instruct the jury properly on the especially aggravated kidnapping charges in light of State

v. White, 362 S.W.3d 559 (Tenn. 2012). The State concedes that the trial court erred as to

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the appellant’s aggravated kidnapping convictions in counts 13 and 14 involving Josh Cox

and his aggravated kidnapping convictions in counts 20 and 21 involving Brett Stanton but

argues that the trial court’s error was harmless. We agree with the State that the trial court

should have given a White instruction with regards to the appellant’s especially aggravated

We note that White was decided after the appellant’s trial and after the appellant filed his

2

motion for new trial. However, the appellant raised White in his amended motion for new trial, and his

case was in the “‘appellate pipeline’” when the supreme court issued its opinion. State v. Robert Jason

Burdick, No. M2012-01071-CCA-R3-CD, 2013 WL 2642313, at *12 (Tenn. Crim. App. at Nashville,

June 11, 2013) (quoting State v. Bennie Osby, No. W2012-00408-CCA-R3-CD, 2012 WL 5381371, at *7

(Tenn. Crim. App. at Jackson, Nov. 2, 2012), perm. to appeal denied, (Tenn. 2013)). 

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kidnapping charges in counts 13, 14, 20, and 21. However, under the facts of this case, we

cannot say that the trial court’s error was harmless beyond a reasonable doubt. Therefore,

the appellant’s aggravated kidnapping convictions in those four counts must be reversed and

the case remanded to the trial court for a new trial on those offenses.

Relevant to this case, Tennessee Code Annotated section 39-13-305(a)(1) defines

especially aggravated kidnapping as “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.” False imprisonment is defined

as the knowing removal or confinement of another unlawfully so as to interfere substantially

with the other’s liberty. Tenn. Code Ann. § 39-13-302(a). The jury ultimately convicted

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the appellant of aggravated kidnapping, which, as defined in this case, is false imprisonment

“[c]ommitted . . . [w]hile the defendant is in possession of a deadly weapon or threatens the

use of a deadly weapon.” Tenn. Code Ann. § 39-13-304(a)(5). Our case law reveals a

long-standing issue regarding the legitimacy of a kidnapping conviction when the act(s)

establishing the offense occurred during an accompanying felony.

In State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), a jury convicted the

defendant of the armed burglary of a Shoney’s restaurant, the armed robbery of the

restaurant’s manager, and the aggravated kidnappings of the manager and five other

employees. In a split decision, this court reversed all of the aggravated kidnapping

convictions, holding that “[u]nless independent and separate fact patterns for both the armed

robbery and the aggravated kidnapping can be proven, appellant can be convicted of only the

armed robbery.” Anthony, 817 S.W.2d at 30. Our supreme court, citing due process

concerns, held that before a separate kidnapping conviction may be sustained, there must be

a determination of

whether the confinement, movement, or detention [was]

essentially incidental to the accompanying felony and [was] not,

therefore, sufficient to support a separate conviction for

kidnapping, or whether it [was] significant enough, in and of

itself, to warrant independent prosecution and [was], therefore,

sufficient to support such conviction.

Id. at 306. After its own analysis, our supreme court affirmed this court. Id. at 307-08.

Later, in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997), our supreme court

Counts 11, 13, 15, 18, and 20 alleged that the defendants removed the named victims, and 3

counts 12, 14, 16, 17, 19, and 21 alleged that the defendants confined the named victims.

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modified the Anthony court’s “essentially incidental” analysis and established a two-prong

test for determining whether a separate conviction for kidnapping violates due process. The

first step concerned a determination of whether the movement or confinement was beyond

that necessary to commit the accompanying felony. Id. If so, the second step concerned

ascertaining whether the additional movement or confinement (1) prevented the victim from

summoning help; (2) lessened the appellant’s risk of detection; or (3) created a significant

danger or increased the victim’s risk of harm. Id.

In White, our supreme court expressly overruled Anthony and its progeny, holding

that “[t]he separate due process test articulated first in Anthony, and subsequently refined in

Dixon . . . , is . . . no longer necessary to the appellate review of a kidnapping conviction

accompanied by a separate felony.” 362 S.W.3d at 578. Instead, the court 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,” thereby

concluding that a defendant’s constitutional concerns are protected by appellate review of

the sufficiency of the convicting evidence. Id. at 577-78. Therefore, our supreme court

cautioned that “trial courts must ensure that juries return kidnapping convictions only in

those instancesin which the victim’sremoval or confinement exceedsthat which is necessary

to accomplish the accompanying felony.” Id. To effectuate this end, our supreme court

devised the following instruction to be given by trial courts:

To establish whether the defendant’s removal or confinement of

the victim constituted a substantial interference with his or her

liberty, the State must prove that the removal or confinement

was to a greater degree than that necessary to commit the

offense of [insert offense], which is the other offense charged in

this case. In making this determination, you may consider all

the relevant facts and circumstances of the case, including, but

not limited to, the following factors:

• the nature and duration of the victim’s removal

or confinement by the defendant;

• whether the removal or confinement occurred

during the commission of the separate offense;

• whether the interference with the victim’sliberty

was inherent in the nature of the separate offense;

• whether the removal or confinement prevented

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the victim from summoning assistance, although

the defendant need not have succeeded in

preventing the victim from doing so;

• whether the removal or confinement reduced the

defendant’s risk of detection, although the

defendant need not have succeeded in this

objective; and

• whether the removal or confinement created a

significant danger or increased the victim’srisk of

harm independent of that posed by the separate

offense.

Id. at 580-81 (footnote omitted).

The State argues that White is inapplicable to the aggravated kidnappings of Vanessa

Griph in counts 11 and 12; Paul St. Aubin in counts 15 and 16; Robert Gorman in count 17;

and Landry Stanton in counts 18 and 19 because the victims of the aggravated robberies were

Brett Stanton in counts 7 and 8 and Josh Cox in counts 9 and 10. The State contends that

“[s]ince the other aggravated kidnapping victims were not victims of aggravated robbery,

those kidnapping offenses did not ‘accompany’ the robbery offenses as contemplated in

White.” Using that same rationale, the State concedes that the trial court erred by failing to

instruct the jury on the “substantial interference” element outlined in White for the

kidnappings of Cox in counts 13 and 14 and Brett Stanton in counts 20 and 21. However,

the State argues that the trial court’s error was harmless.

Until recently, this court was in disagreement as to whether a White jury instruction

was required when the charges of kidnapping and the accompanying offense did not involve

the same victim. However, in State v. Teats, 468 S.W.3d 495, 503 (Tenn. 2015), and State

v. Williams, 468 S.W.3d 510, 516 (Tenn. 2015), our supreme court expressly held that a

White instruction is not required when the kidnapping and the accompaning offense involve

different victims. As the court explained in Teats,

Where a defendant is charged with kidnapping and an

accompanying offense involving some confinement of the same

victim, there are appropriate due process concerns that the

defendant could be convicted of two crimes—e.g. robbery and

kidnapping—when he has only committed one crime—robbery.

But where, as in this case, the State charged the Defendant with

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robbing the restaurant manager and kidnapping the four other

employees, the Defendant does not stand the risk of being

convicted of kidnapping a victim he confined only long enough

to rob. Simply put, the due process concerns articulated in

White are not present, as the kidnapping of one or more victims

can never be “essentially incidental” to an offense perpetrated

against a different victim or victims. See White, 362 S.W.3d at

580.

Teats, 468 S.W.3d at 503.

In this case, the trial court instructed the jury on especially aggravated kidnapping as

follows:

Any person who commits the offense of especially

aggravated kidnapping is guilty of a crime.

For you to find the defendant guilty of this offense, the

state must have proven beyond a reasonable doubt the existence

of the following essential elements:

(1) that the defendant knowingly removed or

confined another unlawfully so as to interfere

substantially with the other’s liberty; and

(2) that the confinement or removal was

accomplished with a deadly weapon or by display

of any article used or fashioned to lead the alleged

victim to reasonably believe it was a deadly

weapon.

Pursuant to Teats and Williams, the trial court did not err by failing to give a White

instruction as to the appellant’s especially aggravated kidnapping charges in counts 11 and

12, involving Vanessa Griph; 15 and 16, involving Paul St. Aubin; count 17, involving

Robert Gorman; and counts 18 and 19, involving Landry Stanton. The court should have

given a White instruction, though, with regard to the appellant’s especially aggravated

kidnapping charges in counts 13 and 14, involving Josh Cox, and counts 20 and 21, involving

Brett Stanton, because Cox and Brett Stanton were also the named victims of the aggravated

robberies in counts 9 and 10 and counts 7 and 8, respectively. Although the trial court

instructed the jury in accordance with the pattern jury instruction in effect at that time, it “did

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not define the key element—the substantial interference with the victim’s liberty—as

requiring 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. Given the facts

of this case, we conclude that the issue of whether the appellant substantially interfered with

the liberty of Cox and Brett Stanton in the accompaniment of aggravated robbery was fairly

raised by the evidence, and, therefore, that the trial court failed to instruct the jury properly

on the especially aggravated kidnappings of those two individuals.

We must now determine the effect of the error. The error at issue is a non-structural

constitutional error; accordingly, the test to determine whether the error is harmless is

“‘whether it appears beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” State v. Climer, 400 S.W.3d 537, 556 (Tenn. 2013)

(quoting State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)).

The evidence at trial shows that on the morning of September 17, 2010, the appellant

and Patrick were armed with handguns and burst into the home of Landry Stanton, Brett

Stanton, and Robert Gorman. The appellant ordered everyone into the living room and

threatened to shoot them if they moved. After everyone was secured in the living room, the

appellant took Brett to Brett’s bedroom to get the money and two Mason jars containing

marijuana. Meanwhile, Patrick continued to hold the victims in the living room. When the

appellant came out of the bedroom, Patrick grabbed Cox’s wallet off a table, and the two of

them left the residence immediately. Given that the defendants’ confinement of Cox and

Brett Stanton occurred during the accompanying robbery, that the confinement was limited

primarily to the living room, and that the confinement ended as soon as the defendants

exercised control of the marijuana and money, we conclude that whether the appellant’s

confinement of the two individuals was essentially incidental to the accompanying

aggravated robbery was subject to different interpretations by the jury and was not harmless

beyond a reasonable doubt. Therefore, the appellant’s aggravated kidnapping convictions

in counts 13, 14, 20, and 21 must be reversed and the case remanded for a new trial on those

offenses.

We note that during the appellant’s sentencing hearing, the trial court merged his

conviction of possessing a firearm during the commission of a dangerous felony in count 6

into his conviction of employing a firearm during the commission of a dangerous felony in

count 5. According to the judgments of conviction for the aggravated burglary convictions

in counts 1 through 4, the trial court also merged counts 2, 3, and 4 into count 1. However,

the trial court failed to merge the appellant’s convictions for the aggravated robbery of Brett

Stanton in counts 7 and 8, his convictions for the aggravated robbery of Josh Cox in counts

9 and 10, his convictions for the aggravated kidnapping of Vanessa Griph in counts 11 and

12, his convictions for the aggravated kidnapping of Paul St. Aubin in counts 15 and 16, and

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his convictions for the aggravated kidnapping of Landry Stanton in counts 18 and 19. The

dual aggravated robbery convictions were based upon alternative theories of committing

robbery by violence or putting the victim in fear, and the dual aggravated kidnapping

convictions were based upon alternative theories of false imprisonment by removal or

confinement. See Tenn Code Ann. §§ 39-13-402(a)(1), -401(a), -304(a)(5), -302(a). When

a jury convicts under alternative theories, the trial court must merge the convictions. See,

e.g., State v. Cribbs, 967 S.W.2d 773, 778 (Tenn. 1998) (discussing merger of convictions

for first degree premeditated and felony murder). We note that the trial court also should

4

have merged the appellant’s dual convictions in counts 13 and 14 and counts 20 and 21,

which were based upon alternative theories of aggravated kidnapping. However, given our

conclusion that those convictions must be reversed, the trial court’s failure to merge the

counts is a non-issue.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we conclude that

the trial court’s failure to instruct the jury pursuant to White in counts 13 and 14 and counts

20 and 21 constitutes reversible error. Therefore, those four convictions of aggravated

kidnapping must be reversed and the case remanded to the trial court for a new trial as to

those offenses. The appellant’s remaining convictions affirmed. However, upon remand,

the trial court is to merge the appellant’s convictions in counts 7 and 8, 9 and 10, 11 and 12,

15 and 16, and 18 and 19.

_________________________________

NORMA McGEE OGLE, JUDGE

Our supreme court recently debunked this court’s repeated holdings that a trial court must 4

impose a single judgment of conviction for merged counts. State v. Marquize Berry, No. W2014-00785-

SC-R11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order). 

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