### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs N ove m be r 27, 200 7
STATE OF TENNESS EE v . AYATOLAH W . WALLACE

Direc t Appeal from the Cr im inal Cou rt for Bradley County Nos. 04-204, 04-205, 04- 206 Carr oll L. Ross, Ju dge

No. E2007-00150-CC A-R3- CD - F iled Fe bruary 7, 2008

The de fenda

nt, Ay atolah W. Wallac e, was convicted of three counts of ag g ravated kidnapping and sentenc ed to six teen y ear s in the Depa rtment of Corre ction as a Rang e I I , violent offe nder. H e ar g ues that his convictions must be ov er t u rned in lig ht of State v. Anthony , 817 S.W .2d 299, 301 (Tenn. 1991), which preclude s dual convictions for kidnapping and anothe r ac company ing f elony when the
mov e me nt o r c on fi ne me nt s up po rt ingthe kid na pp ingc ha rg e is m e re ly

inc ide nta l to that r e qu ir e d to
com mi t t h e a c c o mp an y in g f

e lo n y

. B e c a

u s e th e d e f

e n d an t w a s c o n v ic te d

o n ly o f a g g r avate d kid na pp ing , h ow e ve r, An tho ny is i na pp os ite . We a ff

ir m th e jud g me nts of

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE and D. K ELLY T HOMAS , J R ., J J ., joined. Richard Hug hes, District Public Defe nder; John P

. For tuno, Assistant Publ ic Def ender (on appe al); Sean Willi ams and Way

ne Carte r, Assistant Public Def ender s (at trial), for the appe llant, Ay atolah W. W allace

. Robert E. Cooper, Jr., At t o rn ey General a nd Reporter ; J ames E. Ga y lord, Assistant Attorney Gene ral; Robert Steve B ebb, District Attorne y Gene ral; and Dorothy Atwell and W y lie Richardson, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS At trial, Amy

Ashe testified that on D ece mber 18, 2003, she wa s separ ated f rom her husba

nd, the late De nnis Allen Ashe. Ms. Ashe w ent to her husba nd ’s ap ar tment to confront him afte r lear ning that another woman had been seen entering the apartment. Mr. Ashe r efuse d to allow her int o the a pa rtme nt so sh e we nt a c ro ss the str e e t “ to sp y .” She sa w tw o bla c k ma le s and

a wh ite ma le-2-

approa ch the apar

tment; the black males enter ed while the white male rema ined outside. A f ew minutes later, one of the blac k males eme rg ed and spoke with the white male, then both e ntere d the apar tment.

Ms. Ashe re turned to the a partment a

nd, as she a

pproac hed the door, hear d muffled
sc re a min g a nd

so un ds of

a str ug g le . M r. As he op e ne d the do or , pull e d his wif e int o th e a

pa rtme nt, and told the three men, “My wife is her e now, you all just need to please leave , just please leave.” Ms. As he la te r le arn e d tha t the thr e e me n we re Pa tr ic k L e e Jone s, Ti mot hy Sa xe, and

the de fe nd a nt. She no tic e d th a t Mr . A sh e ’s pa nts we re on

wr on g sid e ou t and

his sh ir t w a s to rn and sa w M e lis sa Mo a ts s itt ingon

the c ou c h c ry

ing . M s. As he te sti fi e d tha t th e de fe nd ant a nd Jone s b oth

ha d k niv e s; J ones’ knife was five to six inches long . The de fenda nt told J ones that no one was to le ave a nd then forc ed Mr. Ashe to g o upstairs with him. W hile the def endant a nd Mr. Ashe w ere upstairs, Ms. Ashe he ard Mr . Ash e te ll the de fe nd ant that he d id n ot h a ve any mon e y , to wh ic h th e de fe nd ant r e pe a te dly replied, “ You owe me $450.00 and y ou are a nar c and na rcs g et dea lt with.” Mr. Ashe the n said, “Stop it man, stop it. What’s wrong with y ou? Stop it . Why do Iowe you money , what do I owe y ou money

for? I f I owe you money

then what do I

owe it to y ou for? ” Ms. Ashe be g an cr y ing a nd asked Jones and Saxe to allow her to leave to see he r son, but they ref used. Saxe approac hed her and punched he r on the a

rm. Then the defe ndant and Mr. Ashe desce nded the stairs in a strug g le, and Ms. Ashe noticed that Mr. Ashe wa s bleeding from his nec k. Mr. Ashe attempted to dial 9-1-1, but J ones re moved the phone c ord from the wall and cut it. The de fenda nt then forc ed Mr. Ashe back upstairs. Shortly there afte r, Offic er Parks of the Cleveland Police D epar tment arrive d, and Ms. Ashe tol d h im that th e de fe nd ant w a s h old ingMr . A sh e up sta ir s. As Of fi c e r Par ks a sc e nd e d the sta ir s to investigate, J ones and Saxe ran out the f ront door.

On c ro ss- e xami natio n, Ms. As he te sti fi e d th a t no ne of the thr e e me n f

or c e d th e ir

wa y int o the apa rtment. She said she wa s not living with he r husband at the time of the incident bec ause he h a d a dr u g p r o b le m. Sh e te s ti f

ie d th a t l a te r o nth e n ig h t o f

th e in c id e n t s h e id e n ti f

ie d Jo n e s an d

Sa xe from a phy sical line-up, and sever al months late r she identified all three men in a photog raphic lineup.
Melissa Moats testified that she knew Dennis Ashe beca use they used drug s toge ther. She said she “[p]artially ” reme mbere d the eve ning of Dec ember

18, 2003, and wa s “pre tty drunk” at the time. That nig ht, she was visiting Mr . Ashe to buy drug s when she he ard a knock on the door . She testified t hat M r. Ashe answe red the door, there was a commotion, and a blac k male ca me upstairs
and dr a g g e d h e r down

the sta ir s b y

he r h a ir , h old inga

kn if e to h e r t hr oat. S he sa id a

wh ite ma le blo c ke d th e do or

a s a se c on d b la c k ma le de ta ine d M r. As he wi th a kn if e

. As the me n a

rgue d, Ms. As he c a me to the do or and the me n all ow e d he r i ns ide . M s. Mo a ts t e sti fi e d th a t sh e did no t tr y to leave beca

use she wa s afr aid. On cross-e x amination, she acknow ledg ed that she did not r emember how she a rrived at Mr. Ashe’s a

partment or w hat time the eve nts in question took pl ace

. Timothy Sax e, a c odefe ndant, tes t i fi ed that he pled guilty to kidnapping c harg es and w as se nte nc e d to e ig ht m on ths in ja il and pr ob a tio n in re tur n fo r h is truthf

ul t e sti mony

a bo ut t he e ve nts of De c e mbe r 1 8, 20 03

. He sa id the de fe nd ant an d J on e s pic ke d him up fr om his ho us e and tol d h imS a x e ’s testim o n y ind ic a te d tha t t h e d e fen d a n t i s a lso kn o w n a s “B la c k .” 1

-3- they wer e g oing to g et some marijuana . When the three men ar rived a t Mr. As h e’ s re s i d ence , he wait ed o u t s i d e while the othe r two sea rche d Mr. Ashe’ s truck and e ntere d the apa rtment. After approximate l y

ten to fiftee n minutes, Sax e wa lked inside and he ard the defe ndant y ell, “You owe me money ,” a n d M r. As he re ply , “I don’t know what y ou are talking a bout, Idon’t owe you no m o n ey

. ” Jones searc hed the a partment while the defe ndant hit Mr. Ashe in the fa ce, de manding money . When Ms. Ashe knocke d on the door, the de fenda nt was on top of Mr. Ashe, stra ng ling a nd hitting him. Ms. Ashe attempted to sepa rate the two men, but Saxe pulled her aw ay . When the police ar rived, Saxe ran out the f

ront door.

Sax e re called that both J ones and the defe ndant ca rried knive s that night. He testified that the vic tim s a

pp e are d s c are d a

nd tr ie d to le a ve , b ut Jone s wou ld not le t the m. He sa id h e ha d n o r ole in the incident and wa s only there to buy drug s. On cross-e x amination, Sax e testified that he c arr ied a pocke tknife with him that night but did not display it. Although unsure, he said he believed Mr

. Ashe a llowed J on es an d the def endant into the apa

rtment and that they

did not force their wa

y in.

Offic er B ill P arks of

the Cleveland Pol i ce Department testified that he w as ca lled to Mr. Ashe’s a partment on Dec ember 18, 2003, to inve stigate a disconne cted 9- 1-1 ca ll. W hen he a rrived, he sawtwo m ales to hi s rig ht and two fe males sitting on a c ouch. He rec og nized Ms. Ashe, who
sa id, “ He ’s up sta ir s w ith Al le n [Ash e ].” Mr . Ash e the n eme rg e d f ro m up sta ir s and

sa id, “ Ge t hi m, g et him, it’s Bla ck

. . . he’s ge tting out the window.” Offic er Parks asce nded the stairs as the two 1 males to his rig ht exi ted throug h the front door. When he arrived upstairs, the bedroom window was op e n, bu t he did

no t se e any on e . H e ra

n d ow n th e sta ir s and ou tsi de and e mba rk e d on a fo ot p ur su it with Office r Steve Ross. The two office rs appre hended Saxe, and Of fice r Parks wa s returningto the
a p art m e n tc o mp l e x w h e nh e n o t i c e d a d ar k p u r p l e c ar h e h a d

s e e nt h e d e f

e n d an tdr i v i n g p r e v i o u s l y. He discove red the defe ndant hiding inside the vehicle a nd took him int o custody

.
Detect i v e K ev i nFe l t o no f t h e C l ev el an d P o l i ce De p ar t m en tt es t i fi edt h at h e o b s er v eda patr ol office r conduct a “show-up” at the cr ime scene in which Mr. and Ms. Ashe identified the de fenda nt and Saxe as two of their a ssailants. He late r display ed a photog raphic line-up to Ms. As h e from wh ic h s he ide nti fi e d Jon e s a s th e thi rd a ssa ila nt.

The defenda

nt testified t hat on the day of the incide nt he re ceive d a ca ll from Mr. Ashe, w ho wi sh e d to purc ha se dr

ug s f ro m him

. He we nt to Mr

. As he ’s a pa rtme nt, so ld h im c oc a ine , a nd le ft

. He late r re ceive d a second phone call from Mr. Ashe reque sting more drug s and aske d J ones to drive him back to Mr. Ashe ’s apa rtment; they picked up Sax e on the way . When the three arr ived at the apar tment complex, M s. Ashe was standing outside and ac companied Mr . Ashe a nd the def

endant int o th e a pa rtme nt. Th e de fe nd ant te sti fi e d th a t Mr . a nd Ms. As he be g an a

rguin g a bo ut M s. Mo a ts. He too k M r. As he a sid e and a sk e d f or pa y me nt fo r the dr

ug s h e pr e vio us ly

de liv e re d. Mr . A sh e fi rs t
re sp on de d th a t he did

no t ha ve a ny mon e y and the n to ld t

he de fe nd ant h is m on e y

wa s u ps ta ir s. When he and Mr. A she we nt upstairs to retrie ve the money , the def endant he ard Jones say , “B lack,-4-

police out her e.” H e jumped out of t h e b ed ro om window beca use he w as ca

rry ing a n ounce of
coca ine. The de fenda

nt testified that he did not car ry a knife to Mr. Ashe’s a

partment that nig ht.

After deliberation, the jury

found the de fenda

nt guilty of the a ggra v at ed k idnapping s of Dennis Allen Ashe , Amy

D. Ashe, a

nd Melissa Kay

Moats. The trial court sentenced him on each count to six teen y ear s in t h e De p ar t ment of Corre ction, with all three se ntence s to be serve d
concur rently

. AN AL YSI S

Th e de fe nd ant p re se nts fo r o ur re vie w “ wh e the r the fa c ts o n w hic h th e kid na pp ingc ha rg e [s] [are] based ar e an integ ral part or essential element of the other f

elony being committed.” He a

rg ues that the conf

inement of the vic tims whi c h s u p ports the ag g ravated kidnapping char g es wa s incidental to the commission of an ag g ravated robbe ry wh i ch took place simultaneously . He c ontends that “wit h o u t separate ac ts interrupting the robbe ry , defe ndant should not have be en convic ted of kid na pp ing .” Th e State argue s th a t th e de fe nd ant’ s convic tio n co mpo rt s w ithdu e pr oc e ss b e c a us e he wa s convicted only of ag g ravated kidnapping , and not a g g ravated robber y

. As we sha ll ex plain,
we a g ree with the State.

Th e de fe nd ant r e lie s o n St a te v. An tho ny , 8 17 S.W. 2d 29 9 (T e nn . 199 1) , in arguin g tha

t hi s ag g ravated kidnapping convictions must be dismiss ed. There , Anthony and an a ccomplice robbed
a re sta ur ant i n K no x Coun ty . Wh ile the a c c omp lic e de ta ine d thre e e mpl oy e e s b e hin d th e re sta ur a nt, Anthony enter ed and or dere d a mana g er and a waitress to acc ompany him to the office to open the safe

. After retrie ving the contents of the sa fe, A nthony encounte red a

nother e mploy ee le aving the restroom a

nd order ed him to return to the r estroom and remain t here

. Then he and his ac complice depar ted the res t au ra n t

. Ant hony was c onvicted of the arme d robber y of the store manag er, the
arme d burg lary

of the re staurant, a

nd the ag g ravated kidnapping s of all s ix employ ees. I d. at 301. Th e T e n n e s s e e Su

p r e me Co u rt u

p h e ld th is c o u r

t’ s r e v e r s a l o f

e a c h o f A n th o n y ’ s a g g rava ted kidnapping convictions, holding that du e process principles pr eclude dual convictions whe re the

“ c on fi ne me nt, mov e me nt, or de te nti on is es se nti a lly inc ide nta l to the a c c omp anyingfe lony a nd is not, theref

ore, suf ficient to support a se parate conviction for kidnapping . . . .” I d. at 306.

The c ase at bar is distinct from Anthony beca use t he defenda

nt in the present appea l was not convicted of

another offe nse in addition to kidnapping

. As the State corr ectly argues, this court has previously

held that there must be separ ate c onvictions before Anthony can be applicable : [T] he Anthony analy sis only applies whe n there are convic tions for two off enses and one off ense is e s s e n ti a ll y in c id e n ta l to th e o th e r

. . . . T h e A n th o n y r u le d o e s not mean that when a kidnapping is e ssentially incidental to a r obbery , the evidenc e of the kidnapping is insufficient to support a conviction as a matter of law beca use any remova l or confine ment is too short or inc onsequential to establish the e lements of the offe nse. Rather , the Anthony rule mea ns that separ ate c onvictions cannot stand-5-

be c a u s e , e v e nt h o u g h t h e e v i d e n c e i s s u f f i c i e n tt o s u

p p o rtb o t h c o n v i c t i o n s, pr inc ipl e s o f d

ue pr oc e ss w ou ld b e of

fe nd e d b y tw o s e pa rate c on vic tio ns

. State v. Turner , 41 S.W .3d 663, 671 (Tenn. Crim. App. 2000) (empha sis in original).

As in Turner , the Anthony rule is inapplicable in this ca se bec ause the defe ndant was trie d and convicted only of the ag g ravated kidnapping s. There fore , the defe ndant’s argument is without
me ri t.

CO NC LU SION

Ba sed upon the for eg oing a uthorities and r ea s o n i n g, the judg ments of the trial c ourt are aff irmed.

___________________________________ AL AN E. GL ENN, JUDGE