### IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE January 7 , 201 5 Sessio n Heard at Greeneville 1



### STATE OF TENNESSEE v. LARRY JERELLER ALSTON, KRIS THEOTIS YOUNG, AND 

### JOSHUA EDWARD WEBB

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 94647 Mary B eth L e i bowitz , Judge

No. E2012

- 00431

- SC

- R11

- C D

– Filed May 5, 2015

We granted review in this case to determine whether a jury instruction based on our decision in State v. White , 362 S.W.3d 55 9 (Tenn. 201 2 ), must be given when a
defendant is charged with the offenses of kidnapping and aggravated burglary. The
defendants threatened the victim with guns and took her purse as she was getting into her
car outside of her residence. The defendants forced the victim to enter her home and
followed her inside. They forced the victim to sit on her couch while they r ansack ed her
home

. Police apprehended the defendants as they attempted to flee. The defendants were
indicted for aggravated robbery of the victim‟s purse, agg ravated burglary of the victim‟s

home

, especially aggravated kidnapping, and possession of a firearm with the intent to go armed during the commission of a dangerous felony. A jury convicted the defendants of
all charge s

. T he trial court set aside the gu ilty verdicts for especially aggravated kidnapping and aggravated burglary, finding that these convictions , in conjunction with the aggravated robbery convictions , violated principles of due process. The trial court
also dismissed the firearms convictions

. T he Court of Criminal Appeals rever sed and
reinstated the verdicts . Up on appeal, we remanded the case to the Court of Criminal Appeals for consideration in light of our holding in State v. Cecil , 409 S.W.3d 599 (Tenn. 2013), which made our holding in White applicable to cases in t he appellate process . On remand, the intermediate appellate court reached the same result . We hold that a
kidna p ping charge accompanied by a n aggravated burglary charge does not, standing
alone , warrant a White jury instruct ion. However, the trial court erred by not giving a

1 We heard oral argument i n this case on January 7 , 2015, at the Niswonger Performing Arts Center in Greeneville, Tennessee, as a part of the Court‟s S.C.A.L.E .S. ( S upreme C ourt A dvancing L egal

E ducation for S tudents) project.- 2

-

White jury instruction based on the especially aggravated kidnapping and aggravated robbery charges, but the error was harmless beyond a reasonable doubt

.

Tenn. R. App. P. 11 Appeal by Permission; Judgm ent of the Court of Criminal Appeals Affirmed

SHARON G. LEE, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK, GARY R. WADE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined. JEFFREY S. BIVINS, J., filed a separate concurring opinion

, in which HOLLY KIRBY, J., joined

.

Mike Whalen, Knoxville, Tennessee, for appellant, Joshua Edward Webb; Sherif Guindi, Knoxville, Tennessee, for appellant, Larry Jereller Alston; and Robert R. Kurtz, Knoxville, Tennessee, for appellant, Kris Theotis Young

.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and Jeffrey D. Zentner, Assistant Attorney General for the appellee, State of

Tennessee.

OPINION

I. Facts and Procedural History

On April 15, 2010, Larry Jereller Alston, Kris Theotis Young, and Joshua Edward Webb (collectively “the Defendants”) accosted Carolyn Sue Maples (“the victim”)
outside of her Knoxville residence , taking her purse at gunpoint . The Defendants then
forced the victim to enter her ho use and followed her inside

. They pushed the victim onto a couch, told her not to move, and began ransacking the residence. They emptied
the contents of her pocketbook onto a table

, and one of them demanded the personal
identifica tion number for her bank card. Police arrived shortly thereafter and apprehended the Defendants as they attempted to flee. The D efendants were indicted for aggravated robbery of the victim‟s purse, 2 aggravated burglary of the victim‟s home, 3

2 The aggravated robbery indictment provided that the Defendants “did unlawfully, knowingly, by putting [the victim] in fear, take from the person of [the victim], a purse and its contents .” (emphasis added).

3 The aggravated burglary indictment provided that the Defend ants “did unlawfully and knowingly enter the habitation of [the victim] without her effective consent, not open to the public[ and] did commit [t] heft .”- 3

-

especially aggravated kidnapping, an d possession of a firearm with the intent to go armed during the commission of a dangerous felony.

During a three

- day trial in October 2011 , eight witness es testified for the State. Ashley Dawn Hill , a neighbor of the victim‟s, testified that on April 15, 2010, she was sitting on he r front porch on Chicago Avenue when she saw three men walking down the middle of the street. As they approached the victim‟s house, the men unsuccessfully tried to stop a vehicle. Ms. Hill saw the men walk up to the victi m as she was getting into her
car and heard one of the men say , “ Excuse me. ” Ms. Hill looked down momentarily and then heard the victim scream. When she looked up, she saw one of the men reach into the victim‟s car and grab her purse. T he victim got out of her car and ran to her house

, and the men followed her inside. At that point, Ms. Hill telephoned 91 1. The jury heard

a recording of Ms. Hill‟s 911 call

, which was consistent with her trial testimony.

The victim testified that on April 15, 2010, ar ound 1:45 p.m., she left her home to get into her car , which was parked on the street, and saw three men , later identified as the Defendants, walking toward her. As she was getting into the car, one of the men asked if she knew a certain girl. The victim told him that she did not and turned to get in to the car.
She testified

, “ The next thing I know there were guns to my head. ” O ne of the men demanded that she give them her pocketbook and “get to the house.” She recalled that
two of the men had pistols a nd the other had a sawed off shotgun stuffed down his pants. As she put it, “ the big one

, ” later identified as Mr. Young, was the one who took her

purse. After obtaining the purse, t he men then “ pushed [the victim ] to go open the door
to the house

. ” The victim was frightened and shaking so badly that it w as difficult to unlock the door, but once she did, the men pushed her inside.

O nce inside the house, the men pushed the victim onto the living room couch and
told her “not to move .” O ne of t he men said, “Don‟t let her out, ” and t hey then began ransacking her home. As the victim recalled, “ They wanted my money; they wanted my jewelry; they wanted anything I had. ” The men dumped the contents of her pocketbook

on to a table, taking $140 cash and her b ank card. One of the Defendants demanded that
she give him her “ bank number

. ” C onfined to the couch , she complied with his demands

. S everal minutes later

, as one of the Defendants was carry ing a flat

- screen television out
the front door , he noticed that the police had arrived

. U pon seeing the police, the man shouted, dropped the television, and ran toward the kit chen

. As he ran away

, the victim escaped out the front door

.

Officer Amanda Bunch of the Knoxville Police Department ( “ KPD ” ) was the first
officer to arrive at the scene. She testified that on April 15, 2010, around 1:40 p.m., she responded to a call from Chicago Avenue indicating that “ three males [had] force[d] a lady back into her house at gunpoint. ” When Officer Bunch arrived, she took position
behind a tree in front of the victim‟s house and waited for backup. From her location , she
could see movement inside the house

. A round the same time as her backup arrived, the- 4

-

front door of the house opened and a black male carrying a television began to exit.

U pon noticing the police, the man dro p p ed the televisio n and ra n back into the house. At that point, two officers went to the back of the residence, while Officer Bunch moved
closer to the front, taking a position behind a Jeep

. She coul d still see movement in the house and began shouting, “[G] et on the ground ; g et on the ground

. ” A t which point, t he
victim approached the door, saying

, “ [I] t ‟ s me ; i t‟s me. ” Officer Bunch motioned for the
victim to come out of the house, and the victim r an out.

Also responding to the scene were KPD Officers Tim othy Riddle, Jonath a n Stevens, Dean Ray, and Russ ell Whitfield, who all testified at trial. As these officers explained , Mr. Alston was initially taken in to custody at the back of the house, whi le Mr. Young and Mr. Webb remained inside. They were apprehended when Officer Ray
released a police dog inside the house

, driving the two of them out

. Police searched Mr.
Alston and recovered $110 in cash and the victim ‟ s bank card. On Mr. Webb , police
found two five

- dollar bills, a lighter, his wallet, a gold

- type of bracelet, and a prescription pill bottle bearing the victim‟s name

. Mr. Young had a black cell phone, his wallet, and $25 in cash. Officer Whitfield of the KPD Forensic Unit took photogra phs and collected
evidence at the scene. The photographs

, several of which depict ed the victim‟s house in disarray

, were entered into evidence. Among the items collected from the house and
made exhibits at trial were a Ruger pistol, a High Point nine mil limeter pistol, and a Stevens .20 gauge pump

- action, sawed

- off shotgun

.

At the conclusion of the State‟s proof, the D efendants moved to dismiss the charges of especially aggravated kidnapping and aggravated burglary based upon due

process principles a rticulated in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991), and subsequent case law

. The trial court reserved ruling on the issue until after the j ury rendered its verdicts. The D efendants presented no proof.

The jury convicted the Defendants of especia lly aggravated kidnapping, aggravated burglary, aggravated robbery, and possession of a firearm with the intent to go armed during the commission of a dangerous felony. T he trial court set aside the verdicts for especially aggravated kidnapping and aggrava ted burglary, finding that these
convictions , in conjunction with the aggravated robbery convictions , violated principles of due process. The trial court also set aside the verdicts for possession of a firearm with the intent to go armed during the commis sion of a dangerous fel ony . The trial court
reasoned that the firearms convictions could not stand in light of the dismissal of the especially aggravated kidnapping and aggravated burglary convictions

, which were the predicate dangerous felonies for the f irearms offenses

.- 5

-

The State appealed, and t he Court of Criminal Appeals reversed the trial court‟s judgments , finding that separate convictions for each of the offenses did not violate principles of due process or double jeopardy. 4 State v. Alston , No.
E2012

- 00431

- CCA

- R3

- CD, 2013 WL 2382589, at *15 (Tenn. Crim. App. May 30, 2013). O n appeal to this Court, we remanded the case to the Court of Criminal Appeals for consideration in light of our holding in Cecil , 409 S.W.3d 599, which applied the requiremen t of a jury instruction pursuant to White , 362 S.W.3d 55 9 , to cases already in the appellate process on the date White was issued

. 5 On remand, the Court of Criminal Appeals reached the same result

. State v. Alston , No. E2012

- 00431

- CCA

- R3

- CD, 2014
WL 5858 59, at *6 (Tenn. Crim. App. Feb

. 13, 2014). W e granted the Defendants‟ application for permission to appeal to determine whether a jury instruction pursuant to White must be given when a defendant is accused of a kidnapping accompanied by a n aggravated bu rglary. In addition, we address whether the erroneous failure to instruct the jury in this case

, pursuant to White

, was harmless beyond a reasonable doubt

.

II. Analysis

A.

To address the issues in this appeal, it is helpful to review the development of th e law giving rise to the jury instruction required by White , 362 S.W.3d at 578. In 1991, in Anthony , this Court recognized that a period of confinement, technically m eeting the definition of kidnap p ing, often accompanies crimes such as robbery, rape , and assault

. 817 S.W.2d at 305

. K idnap p ing, which is defined in terms of false imprisonment, is the
unlawful removal or confinement of another so as to interfere substan tially with the
other ‟ s liberty

. 6 Tenn. Code Ann. § 39

- 13

- 302(a) (1990). A s this Court noted in

4 As to the fire arms offenses, the Court of Criminal Appeals found that

, while the trial court erred in dismissing the convictions on the grounds stated, the failure of the indictment to specify which predicate dangerous felony applied to the firearms offenses render ed th ose indictments fatally defective. Accordingly, the Court of Criminal Appeals affirmed the trial court‟s dismissal of the charges of possession of a firearm with the intent to go armed during the commission of a dangerous felony. Alston

, 2013 WL 2382589, at *15. As this holding has not been challenged in this appeal

, we do not disturb the Court of Criminal Appeals‟ dismissal of the se charges

.

5 This case was tried October 24

- 26, 2011, and the State filed its notice of appeal on February 17,
2012. W e i ssued our decision in White on March 9, 2012.

6 Kidnapping is proscribed at three levels under our statutory scheme, with each level based upon the definition of false imprisonment. Kidnapping, a Class C felony, is a false imp risonment “ [u]nder
circu mstances exposing the other person to sub stantial risk of bodily injury

. ” Tenn. Code Ann. § 39

- 13

- 303 (2008 ). Aggravated kidnapping, a Class B felony, is a false imprisonment committed:

(continued ...)- 6

-

Anthony

, “ the offense of kidnapping defined in thes e statutes at times could literally
overrun several other crimes.” Anthony , 817 S.W.2d at 303 (quoting People v. Levy

, 204 N.E.2d 842, 844 (N.Y. 1965))

. The Court identified robbery, rape, and a ssault as potential offenses that, when accompanied by a kidna p ping charge, could give rise to due

process concerns

. Id. (quoting Levy

, 204 N.E.2d at 844) ( “ It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place. ” ). Based on these concerns, the Court concluded that a separate kidnapping conviction cannot be supported when “ the confinement, movement, or detention [was] essentially incidental t o the accompanying felony. ” See i d. at 306 , 307 (emphasizing that “ [t]he test is not whether the detention was

an „ integral part or essential element ‟ of the [accompanying offense] , but whether it was

„ essentially incidental ‟ to that offense ” ).

Later

, in State v. Dixon , th is Court modified the “ essentially incidental ” analysis by clarifying that “ any restraint in addition to that which is necessary to consummate rape or robbery may support a separate conviction for kidnapping. ” 957 S.W.2d 532 , 535 (Te nn. 1997). Under Dixon

, the inquiry became (1) whether the movement or confinement of the victim was beyond that necessary to consummate the accompanying crime; and (2) whether the additional movement or confinement prevented the victim from summoning he lp , lessened the defendant‟ s risk of detection, or created a significant

(...continued)

(1) To facilitate the commission of any felony or flight thereaft er; (2) To interfere with the performance of any governmental or political function; (3) With the intent to inflict serious bodily injury on or to terrorize the victim or another; (4) Where the victim suffers bodily injury; or (5) While the defendant is in possession of a deadly weapon or threatens the use of a deadly weapon.

Tenn. Code Ann. § 39

- 13

- 304(a)

- (b)(1) (1990 ). Especially aggravated kidnapping, a Class A felony, is a false imprisonment :

(1) Accomplished 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; (2) Where the victim was under the age of thirteen (13) at the time of the removal or confinement; (3) Committed to hold the victim for ransom or reward, or as a s hield or hostage; or (4) Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39

- 13

- 305(a)

- (b)(1) (1990 ).- 7

-

danger or increased the victim‟ s risk of harm. 7 Id. ; see also State v. Richardson , 251 S.W.3d 438, 442

- 43 (Tenn. 2008) (recognizing that the Dixon test replaced the Anthony

“ essentia lly incidental ” analysis). Under this framework, t he jury‟s role was limited to determining whether the State had proven the elements of kidnapping and the accompanying felony beyond a reasonable doubt. State v. Cozart , 54 S.W.3d 242, 247 (Tenn. 2001). The “ essentially incidental ” analysis was not considered as one of these elements but was a question to be determined exclusively by the trial court and reviewed de novo on appeal. Id. ( “The determination of whether due process has been violated is purely a question of law.”).

In 2012, in White , we found that the Anthony / Dixon framework had proven unworkable, and we expressly overruled Anthony and the entire line of cases that
included a separate due process analysis o n appellate review

. White

, 362 S .W.3d at 578.

W e determined instead that the question of whether a kidnapping was “ essentially
incidental ” to an accompanying offense is a question of fact for a properly instructed jury. Id. at 577 (finding that the question of “ whether the evidence, be yond a reasonable doubt, establishes each and every element of kidnapping, as defined by statute, is a question for the jury properly instruc ted under the law ” )

. This finding by a jury

, along
with a reviewing court ‟ s “ assess[ment] [of] the sufficiency of the convicting evidence

, ” is sufficient to protect the defendant ‟ s due process rights. Id. at 577

- 78.

We identified t he proper inquiry for t he jury as “ 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. T o facilitate this
determination , w e provided a jury instruction

, 8 which was subsequently adopted by the

7 T he distance of the victim‟ s movement and the duration and place of the victim ‟ s confinement
were factors to be considered when deter mining if the movement or confinement was beyond that necessary to consummate the accompanying crime, and the second prong of the analysis was to be addressed only if the threshold inquiry in the first prong was satisfied. Dixon , 957 S.W.2d at 535.

8 I n White , we set forth the following instruction:

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 great er 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, t he following factors:

• the na ture 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;

(continued ...)- 8

-

Tennessee Pattern Jury Instruction Committee. See 7 Tenn. Prac. Pattern Jury Instr.

T.P.I.

- Crim. 8.01

- .03, 8.05. T his instruction did not create a new standard for kidnapping, but “ merely provid[ed a] definition for the element of the offense requiring
that the removal or confinement constitute a substantial i n terference with the victim‟ s liberty. ” Cecil , 409 S.W.3d at 607 (quoting White , 362 S.W.3d at 578) (internal quotation mark omitted)

. Later , in Cecil , we held that the absence of this instruction, when warranted, results in instructional error that must be subjected to constitutional
harmless error revi ew. 409 S.W.3d at 610. W e have also identified certain crimes

— such

as robbery, rape, and assault

— that, when charged along with kidnapping, would warrant
this instruction. See Anthony

, 817 S.W.2d at 303 ( quoting Levy , 204 N.E.2d at 844 ) (“[T]he offense of kidnapping

. . . could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault.”). However, w e have never considered whether the White instruction applies when the accompanying charge is aggravated burglary

.

B.

We first turn to the question of whether to extend the requirement of a White jury instruction to cases involving a kidna p ping charge accompanied by a n aggravated burglary charge

. The Defendants assert that they are entitled to a White instruction on both the ag gravated robbery and aggravated burglary charges, noting that this Court has
never limited this requirement to only cases of robbery, rape , and assault . Conversely, the State argues that a White instruction is unnecessary for cases involving a kidnapping accompanied only by aggravated burglary, as it is not among the type of offenses to the

person , like robbery, rape, and assault, which often inherently involve some period of
confinement.

T his question presents an issue of first impression and requires interpretation of a criminal statute. When interpreting statutes, our primary function is to carry out

(...continued)

• whether t he interference with the victim‟ s liberty was inherent in the nature of the separate offense;

• whether the removal or confinement prevented 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‟ s risk of harm independent of that posed by the sepa rate offense.

White , 362 S.W.3d at 580

- 81.- 9

-

legislative intent without broadening the statute beyond its intended scope. Shore v.

M aple Lane Farms, LLC , 411 S.W.3d 405, 420 (Tenn. 2013) (citing State v. Strode , 232 S.W.3d 1, 9 (Tenn. 2007)). We begin by focusing on the words of the statute, presuming that each word has its own meaning and purpose. Keen v. State , 398 S.W.3d 594, 610 (Tenn. 2012) (citing U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co. , 277 S.W.3d 381, 386 (Tenn. 2009))

. “ If the statutory language is clear and unambiguous, we apply the

statu te‟ s plain language in its normal and accepted use. ” Keen , 398 S.W.3d at 610. Only when statutory language is ambiguous, do we look any further. Id. In addressing an issue of first impression, we often review the decisions of other states and other authorities to assist our analysis. State v. Hawkins , 406 S.W.3d 121, 131 (Tenn. 2013) (citing Parrish v. Marquis , 172 S.W.3d 526, 530 (Tenn. 2005)).

In Tennessee, aggravated burglary is a property crime that involves either (1) the unauthorized entry into or the unlawful concealment within a habitation with the intent to
commit a fe lony, theft, or assault; or (2) the unauthorized entry into a habitation and the subsequent commission of or the attempt to commit a felony, theft, or assault. Tenn. Code Ann. § § 39

- 14

- 402 (a)(1)

, - 402(a) (2),

- 403 (a) (2006)

. 9 U nlike the offense s of
robber y, rape , and assault , the offense of aggravated burglary does not inherently involve
the confinement of a victim. Tenn. Code Ann. § 39

- 14

- 40 3 ; see also State v. Ralph , 6 S.W.3d 251, 255 (Tenn. 1999) (“Burglary is an offense against the security interest i n possession of property. . . .”); State ex rel. Wooten v. Bomar , 352 S.W.2d 5, 7 ( Tenn. 1961) (“At common law, burglary was regarded as an offense against the habitation.”); cf. Tenn. Code Ann. § 39

- 13

- 401(a) (“Robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear.”); Tenn.
Code Ann. § 39

- 13

- 302(a) (“A person commits the offense of false imprisonment who knowingly removes or confines another unlawfully so as to interfere substantially w ith
the other ‟ s liberty.”).

9 Tennessee Code Annotated section 39

- 14

- 402 provides, in pertinent part:

(a) A person commits burglary who, without the effective consent of the property owner: (1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault; (2) Remains concealed, with the intent to commit a felony, theft or assault, in a building; (3) Enters a building and commits or attempts to commit a felony, th eft or assault; or (4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

Tenn. Code Ann. § 3 9

- 14

- 402. Tennessee Code Annotated section 39

- 14

- 403(a) provides that “[a]ggravated burglary is burglary of a habitation as defined in §§ 39

- 14

- 401 and 39

- 14

- 402.”- 10

-

Noting the differences between the offense of aggravated burglary and those of robbery and rape, in 2011, the Court of Criminal Appeals did not extend the due process requirements of Anthony to a case involving a kidnapping ac companied by a n aggravated burglary. State v. Shelby

, No. M2006

- 02582

- CCA

- R3

- CD, 2011 WL 795834, at *4 (Tenn. Crim. App. Mar

. 8, 2011) ( “While every robbery or rape involves some detention of the victim, not every burglary involves kidnapping.”) ; see als o State v. Monroe , 827 N.E.2d 285, 299 (Ohio 2005) (refusing to merge aggravated burglary and kidnapping, as the two offenses “are not allied offenses of similar import”); People v

. Chronis , 619 N.Y.S.2d 156, 157 (N.Y. App. Div. 1994) (finding that “[an] a bduction was discrete from [a] burglary as the latter crime had been fully completed when the defendant forced the victim at knifepoint into a car”). But see State v. Davis , No. M2011

- 02075

- CCA

- R3

- CD, 2012 WL 5947439, at *6 (Tenn. Crim. App. Nov. 16, 2012 ) (finding, in a case involving charges of especially aggravated kidnapping, aggravated burglary, and aggravated robbery, that the proof was subject to different interpretations as to whether the
defendant ‟ s confinement or removal of the victims was essent ially incidental to the accompanying felonies) ; State v. Ozevin

, No. CA2012

- 06

- 044 , 2013 WL 1397272, at *3 (Ohio Ct. App. Apr

. 8, 2013) (merging the offenses of kidnapping and aggravated burglary in a state where aggravated burglary is an offense r equir ing an occupied

structure ) ; Braggs v. State , 789 So. 2d 1151, 1153 (Fla. Dist. Ct. App. 2001) (finding that kidnapping was incidental to the offense of burglary with an assault)

.

Moreover, Tennessee courts have declined to extend the due process requirements
of Anthony in a number of other contexts. See, e.g.

, Ralph , 6 S.W.3d at 254

- 55 (declining
to extend Anthony to separate convictions for automobile burglary and theft); State v.

Perrow , No. M2003

- 00319

- CCA

- R3

- CD , 2004 WL 193059, at *10

- 11 (Tenn. Crim. App

. Jan. 2 8, 2004 ) (declining to extend Anthony to separate convictions of aggravated burglary, aggravated rape, and aggravated assault); State v. Waters , No.
M2001

- 02682

- CCA

- R3

- CD, 2003 WL 213777 , at *14 (Tenn. Crim. App. Jan. 30, 2003) ( declining to extend Anthony to separate offenses for aggravated burglary

, aggravated

rape , and aggravated robbery ” ); State v. Cowan , 46 S.W.3d 227, 234

- 35 (Tenn. Crim. App. 2000) ( declining to extend Anthony to separate convictions for attempted first degree murder, aggravat ed burglary

, and attempted especially aggravated robbery).

W e hold that a kidnapping charge accompanied by a n aggravated burglary charge

, standing alone, does not warrant a White instruction. I n Anthony

, the rationale underlying
this C ourt ‟ s due proce ss concern was that, inherent to certain offenses, such as robbery,

rape, and assault, there exists a period of confinement of a victim that might also satisfy the elements of kidnapping. White , 362 S.W.3d at 578; Anthony

, 817 S.W.2d at 305.
Th is same pe riod of confinement is not inherent to the offense of aggravated burglary

, which is only an offense against property. As such, the concerns that are implicated when kidnapping is charged along with the offenses of robbery , rape, and assault, which
are cri mes against persons, are not implicated when a defendant is charged with kidnapping along with the offense of aggravated burglary. T here is no danger that the- 11

-

kidnapping statute “ could literally overrun ” the crime of aggravated burglary

, see Anthony , 817 S.W.2d at 303, and we decline to extend the instructional requirements of
White when kidna p ping and aggravated burglary are charged. 10

C.

We next turn to th e question of whether it was error for the trial court not to instruct the jury pursuant to the re quirements of White with regard to the kidnapping charge as accompanied by the aggravated robbery charge

, and if so, whether that error was harmless beyond a reasonable doubt

. In Cecil , we held that the absence of the White
instruction , when warranted, re sults in constitutional error. 11 Cecil , 409 S.W.3d at 610 (citing State v. Faulkner , 154 S.W.3d 48, 60 (Tenn. 2005)) ( noting that the failure to properly instruct the jury pursuant to White is a “failure to instruct the jury on a material
element of an off

ense , ” resulting in constitutional error )

. The requirement of a White jury instruction applies to cases that were already in the appellate pipeline at the time White
was issued. Cecil , 409 S.W.3d at 608.

I n addition to the aggravated burglary and fire arms charges, the Defendants were charged with especially aggravated kidnapping and aggravated robbery, a pairing of crimes clearly warranting a White instruction, as these were the offenses at issue in White

. White , 362 S.W.3d at 564. However, the trial court did not instruct the jury pursuant to
White

, 12 and this q u alified as constitutional error

. S ee Cecil , 409 S.W.3d at 610 (citing
Faulkner , 154 S.W.3d at 60) . Accordingly, w e must determine whether this error was harmless beyond a reasonable doubt. Cecil , 409 S.W.3d at 610 (citing State v. Rodriguez

, 254 S.W.3d 361, 371 (Tenn. 2008) ) ( “ The existence of a non

- structural constitutional

10 We do not decide in this case whether a White instruction is required when a kidnap ping c harge is accompanied by a charge of especially aggravated burglary. Because this case does not require determination of that question, we leave the issue for another day.

11 Although we noted in White that a sufficiency of evidence review would serve as the due process safeguard on appeal, “ [ o ] nly when the jury is properly instructed can appellate review of the sufficiency of the convicting evidence satisfy [this] safeguard.” Cecil , 409 S.W.3d at 609.

12 The Defendants requested the following special ju ry instruction, which the trial court denied:

If you find that the defendants moved [the victim] from the driveway to the interior of her home, you must then first determine if that movement was necessary to accomplish the robbery in this case. If you fi nd that the movement of [the victim] was necessary to accomplish the robbery in this case, then you should find the defendant not guilty of the charge of especially aggravated kidnapping and all its lesser included offenses.

We note the similarity between this requested instruction and the jury instruction articulated in White

.- 12

-

error requires reversal unless the State demonstrates beyond a reasonable doubt that the
error is harmless. ” )

.

A n i nstructional error is harmless whenever “ it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. ” Rodriguez , 254 S.W.3d at 371 (quoting State v. Allen , 69 S.W.3d 181, 190 (Tenn. 2002)) (internal
quotat ion marks omitted). “ [ T ] he touchstone of this inquiry is whether a rational trier of fact could interpret the proof at trial in different ways.” Cecil , 409 S.W.3d at 610 (citing
White , 362 S.W.3d at 579).

In White

, we were unable to conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the instructional error. White , 362 S.W.3d at
580 n.20. The proof in White established that t he defendant , brandishing a gun, attacked

a woman from behind in the women‟s restroom, for cing her “ down on all fours ” and kicking her. Id. at 579. The defendant then took the victim‟s keys in an attempt to open the restaurant ‟ s safe and ordered her to remai n in the restroom. Id. He then returned, and after determining that she had an addit ional set of keys

, forced her to the safe at gunpoint.
Id. The defendant was convicted of burglary, aggravated robbery, and especially aggravated kidnapping. Id. at 562. Based on these facts, w e determined that “ th[e] proof could be interpreted in diff erent ways ” and remanded the case for consideration by a properly instructed jury. Id. at 579.

Similarly, in Cecil

, we were unable to find beyond a reasonable doubt that the failure to properly instruct the jury was harmless. Cecil , 409 S.W.3d at 612. Cecil involved a physical altercation between two former lovers , wherein the defendant was
convicted of assault and false imprisonment. Id. at 601, 603

. The two had exchanged multiple blows over the course of one to two hours, with the victim claiming that she tried to leave several times during the altercation. Id. at 601

- 02. Based on this evidence

, it was unclear whether the confinement of the victim was substantial enough to support a separate conviction for false imprisonment , and we determined tha t the proof could be interpreted in different ways. Id. at 612.

Conversely, t he Court of Criminal Appeals has, in a number of cases, deemed the
omission of a White instruction harmless beyond a reasonable doubt. For instance, i n State v. Keller

, a cas e wherein the defendant and his accomplices kicked in the door of a
house and threatened the victims with deadly force, before removing and confining the victims with the intention of using them as hostages in an attempt to rob a third party, the
intermedi ate appellate court found that the absence of a White instruction was harmless beyond a reasonable doubt. Keller

, No. W2012

- 00825

- CCA

- R3

- CD, 2013 WL 3329032,
at * 4 (Tenn. Crim. App. June 27, 2013). The court noted that “ the movement and
confinement of th e victims was not done for purposes of a ccomplishing assaults upon
them

, ” and thus

, “the victims ‟ kidnappings were separate from

— not „ incidental ‟ to

— the commission of the aggravated assaults. ” Id. at * 4

- 5. Further, in State v. Hulse

, the Court- 13

-

of Crimina l Appeals determined that the absence of a White instruction was harmless beyond a reasonable doubt where the defendant

, after raping the victim, chased her with a boxcutter, grabbed her by the ankles, pulled her down a sidewalk, and prevented her from

sum moning help. Hulse

, No. E2011

- 01292

- CCA

- R3

- CD, 2013 WL 1136528, at *14 (Tenn. Crim. App. Mar. 19, 2013). The court found that this conduct was not inherent to the offense of rape

, a crime that had already been completed, and thus

, it went “ well beyond that necessary to consummate the [accompanying offense]

. ” Id.

As noted by the Court of Criminal Appeals in this case, t he common factor in
Keller and Hulse was that the accompanying felony was complete d before the removal or
confinement constituting the kidnapping. Alston , 2014 WL 585859, at *3. Conversely,
in White and Ceci l

, it was difficult, based on the proof

, to clearly pinpoint the completion of the accompanying felonies . T hus

, it was not easily establish ed in White or Cecil
whether the conduct c onstituting the kidnapping s was beyond that necessary to
consummate th e other offense s

. Cecil , 409 S.W.3d at 611; White , 362 S.W.3d at 580

.

In this case, the proof at trial established that the Defendants accosted the victim
as she was getting into her car outside of her residence. The Defendants pointed guns at
the victim and demanded her purse, which she immediately relinquished. After obtaining her purse, the Defendants then ordered the victim into her own house at gunpoint, pushed
her onto a co uch, and told her not to move. According to the victim , one of the
Defendants said, “ Don ‟ t let her out, ” and they began ransack ing her house

. The criminal episode ended when the police arrived

.

T he Court of Criminal Appeals found that this evidence est ablished beyond a reasonable doubt that the removal of the victim from her driveway and confinement
within her house were beyond that necessary to accomplish the aggravated robbery as charged in the indictment

, and thus

, the failure to give a White instruc tion was harmless beyond a reasonable doubt

. Alston , 2014 WL 585859, at *6. The Defendants argue

, however, that the aggravated robbery was not completed upon the taking of the victim‟s

purse , but rather, the taking of the purse was part of one ongoing ro bbery. T he
Defendants assert , therefore, that the proof as to whether the kidna p ping was incidental to
the aggravated robbery could be interpreted in different ways by a fact finder and was not harmless beyond a reasonable doubt

. We disagree.

T he Def endants completed the offense of aggravated robbery

, as charged in the
indictment and established by the proof at trial

, before proceeding to commit the especially aggravated kidnapping by order ing the victim into her house and confining her

to the couch

. Notably, u nlike the aggravated burglary, especially aggravated kidnapping, and firearms indictments, the aggravated robbery indictment specified that it related only
to the “ tak[ing] . . . of [the victim‟s]

. . . purse and its contents. ” Once the Defenda nts had taken the victim‟s purse

, the offense of aggravated robbery was complete . T he
Defendants‟ subsequent actions were in addition to the initial robbery, and though their- 14

-

conduct may have supported an additional robbery charge , the jury could only con sider
the charges the State chose to pursue. See State v. Terrell

, No. 02C01

- 9701

- CC

- 00001, 1997 WL 467038, at *2 (Tenn. Crim. App. Aug. 15, 1997) (hol ding that “ [a] prosecutor may choose, consistent with Anthony , to charge only kidnapping when confronted by factual scenarios contemplated

. . . in Anthony ”); see also State v. Gaskell , No. 285, 1992 WL 73189 (Tenn. Crim. App. Apr. 13, 1992 ). L ikewise, on appellate review, we do not consider hypothetical offenses that were not charged and not considered by the jury

.

We hol d that by taking the victim‟s purse, the Defendants fully completed the aggravated robbery

, as charged in the indictment and established by the proof at trial

, before beginning the commission of the especially aggravated kidnapping. As such, the conduct constituting the kidnapping was “ beyond that necessary to consummate [ the accompanying ] offense. ” Keller

, 2013 WL 3329032, at *4 ; see also Hulse

, 2013 WL 1136528, at *14. Given these facts, it is clear that a rational trier of fact coul d not interpret this proof in different ways, see Cecil , 409 S.W.3d at 610 (citing White , 362 S.W.3d at 579), and thus, even if a White instruction had been given , the result would have been the same. Accordingly, w e hold that the absence of a White instr uction was harmless beyond a reasonable doubt.

Conclusion

We hold that a kidnapping charge accompanied by a n aggravated burglary charge does not, standing alone , warrant a jury instruction pursuant to White

. However

, because
of the especially ag gravated kidnapping and aggravated robbery charges, the absence of a White instruction in this case amounted to error , but we hold this error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment of the Court of Criminal Appeals

, rei nstate the Defendants‟ convictions for e specially aggravated kidnapping and aggravated burglary , and remand the case to the trial court for sentencing

. It appearing from the record that the Defendants are indigent, the c osts of this appeal are
assessed to the State of Tennessee

.

_________________________________ SHARON G. LEE, CHIEF JUSTICE