### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 12, 2 003 Session
STATE OF TENNESSEE v. CARVIN LAMONT TH OMAS
Direct Appeal from the Criminal Court for Davidson County

No. 2000-D-2269 Steve Dozier, Judge

No. M2002-01716-CCA-R3-CD - F iled May 28, 2003

Th e Davidson County

Grand Jury

returne d an eig

ht count in dictment a

gainst D efenda

nt, Carvin Lamont Thomas, as follow s: count one, espec ially aggr avated r obbery of Darr ell Roundtree; count two , aggravated burg

lary of a habitation; count three, aggrava ted burglary

of a habitation; count four, especially a

ggravated ki dnapp ing of William Swift; count five, especially ag gravated kidnapping of Darr

ell Roundtr

ee; coun t six, espec iall y ag grav ated kidnapping of Derrick Salter; count seven, unlawful possession of a handgun at a plac e op en to the public; a nd count e

ight, possession with the intent to sell .5 gram s o r more of cocaine, a Schedule I I controlled substance. At t he close of the State's proof, the trial court dismissed count three , aggravated burg lary of a habitation, and count five, especially aggravated kidnapping

of Darrell Roundtree. Following a jury trial, Defend ant was c onvicted of counts o ne, t wo, four, seven and the lesser included offe nse of simple possessio n on count

eight. T he trial c ourt d eclar ed a mistrial as to count six. After a sentencing hearing, the trial court sentenced D efendant to ten y ears for the espec ia lly agg ravated robbery convicti on, six y ears fo r the ag grava

te d burglary

conviction, twenty-four

years f or the especia lly aggravated ki dnapping con viction, eleven months and twenty- nine days for the possession of a handgun conviction, and eleven months and twenty -nine days for si mple possession of a Schedule II controlled substance. The trial court ordered the s e ntences for especially aggravated
ro bb er y, aggravat ed bur gl ary and es pe ci al ly a ggr av at ed ki dn ap pi ng to ru n c on se cu ti ve ly. Defendant’s sentences for possession of a ha ndgun and possession of a controlled substance were ordered to run concurrently

with his other sente

nces, fo r an eff ective s entence

of forty ye ars. I n his direct appeal, Defendant challen ges only his c onviction for especially aggravated kidn apping allegi n g that (1) the trial court erred

in not gr anting D efenda

nt’s motion

for judgment of a

cquittal a s to the charge of especi ally ag gravated kidnapping; and (2) D efendant’s conviction for especia lly aggr avate d kidnapping violates due process principles as outlined in the Tennessee Supreme Court's decision in State v. Anthony, 817 S.W.2d 29 9 (Tenn. 1991). We a ffirm the judgmen t of the tr ial cour t. Tenn R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODA LL , J., delivered the opinion of the court , in which J OE G. R ILEY , J., joined. J OSEPH M. T IPTON , J., filed a dissenting opinion.-2-

JayNorman and Matthew May o, Nashvi lle, Tennessee, f or the ap pellant, Carvin

Lamo nt Thomas.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Boucek, Assistant Attorney Genera l; Victor S. Johnson, III , District Attorney Gene ral; Lisa Angela

Naylor, Assistant

District Attorney Genera l; and Pamela Sue Anderson, Assistant District Attorney Gene ral, for the appellee, State of Tennessee.
OPINION

Around 7:00 p.m. on January 31, 2000, e

leven-y ear-ol d Derric

k Dobbins r

eturned home with his neighbor, John Hendricks, after getting a hair cut. When Derrick and Mr. Hendricks reached the front porch, three men, armed with guns and we aring black leather coats, for ced them into the house. Defendant

and L eevale Glenn wor

e panty hose ove r their f aces wh ile Arkie Bry ant w ore a black stocking cap.

Derrick’s mothe

r, Rochelle Dobbins, was in the living room watching a movie. The men ordered Derrick, Mrs. Dobbins and Mr. Hendricks to lay face down on the floor. While Mr. Bry ant
r emainedby the front door to g uard the family me

mbers in the living room, Defen dant and Mr
. Glenn went to the den next to the front room where Mrs. Dobbins’ brother, William Swift, was asleep on the couch. Defendant awakened Mr. Swi ft and or dered him to move on

to the floo

r while holding a gun a

pproximate

ly four inches from his head. Defendant and Mr. Glenn then procee ded to the bedr

oom of Mrs . Dobbins’ oldest so n, Da rr el l R ou nd tr ee . M rs . D ob bi ns ’ d au gh te rs , K et oya and Brittan

y, a nd her co usin, Jerry

Hunt, wer

e in anoth er part of th e house but were not disturbed by t he intrud ers.
Mr. Roundtree heard the men enter the house and went into thehallway to investiga te. When he saw the armed men, he returned to his room where he had be en watc hing a b asketba ll game with his friend, Derrick Salter. Mr. Salter tr ied to clo se the be droom door , but Def endant he ld the door open with his arm and then pushed into the room. De fendant demande d that Mr. Roundtre e give h im
mo ne y. Mr. Roundtree told Defendant he recognized him and Mr. Glenn and that they we re going to go to jail. Defendant responded that he was not g oing to g o to jail be cause Mr . Roundtre e sold drugs, but M r. Roun dtree continued to refuse to give him any money. Defe

ndant did not notice a large bag co ntaining

$41,000 a

nd anothe r plastic sandwich bag with twenty -eight grams of coca ine hidd en beneath Mr. Roundtree’s bed. Defendant fired his g un at the floor, then fired again. As Defendant was leaving

the room, he shot once more across the bed. When Defe ndant laid the gun down to pick up two stacks of m oney and a packet of drugs that were on the be d, Mr. Roundtree lunged for the gun, and he and Defendant started to strugg le. After Mr. Salter joined thefight, Mr. Glenn struck Mr . Roundtre e acros s his fac e with a g un. Mr. Rou

ndtree m anage d to jum p up, but Defendant

shot him in the thigh. The bullet passed through Mr. Roundtree’ s leg and into Mr. Salter’sforear

m.
In response to the gunshots, Mr. Brya nt joined the group in Mr. Roundtree’s bedroom. As
soon as Mr. Bry ant left his post, Mrs. Dobbins ran to the back of the house. Mr. Swift also got up-3-

off the floor. He pulled out a nine millimeter pistol that was stashed between the cushions on the sofa and positione d himself b ehind the stereo s yst

em. The th

ree men started t o leave th e house w ith Mr. Bry ant l eading the way . Once the robbers were in Mr. Swift’s line of vision, he opene d fir e killing Mr. Bry ant. Mr. Swift continued firing his gun as the men tried to flee, and one bullet struck Defendant

in the bac k and exite d his chest. Mr. Glenn was shot in the arm. Both Defendant and Mr. Glenn, ho wever, managed to get o ut of the h ouse and

ran towa rd Allison

Street.

Mrs. Dobbins te stified th at she re cognize d Defen dant immedia tely despite th

e panty hose pulled over his f

ace. Al though s he did not p ersonally k now Defe ndant, Mrs. Dobbins had seen him several times. When the men were in her son’s bedroom, she heard D efendant accuse Mr. Roundtree of talking derogatorily

about Defendant, say

ing that Defendant had taken money fro m a child

. Defendant repeated sever al times that he was going to shoot Mr. Roundtree.

Mr. Roundtree testified that he had known Defendant seven or eight ye ars, an d t he y h ad grownup toge

ther. Alt hough no t c lose friends , Mr. Round tree kne w Defendant well

enough to speak to him when he saw Defendant around town or play ing bas ketball. Mr. Roundtree denied selling drugs with any

regularity

and admitted that he mainly g ambled. When he gambled, he often lent money to the

other player s to cover their bets. If a borrower could not repay a loan in cash, Mr. Roundtree somet imes a ccepte d drugs in li eu of m oney. He al so den ied se llin g drugs to Defendant
or gamblin g with him

but assumed that Defendant knew about his gambling practices from g eneral gossip. Mr. Roundtree also knew Mr. Glenn.

Officer John Walters and Sergeant Dana L yon withthe Metro-Nashville Police Department
were dispatched to the Dobbins home in response to a report of a shooting. When they ar

rived, they found Mr. Bry ant laying

face down on the floor, a gun in his hand and a stocking cap pulled

down
over his face. The officers reque sted medical assistance and conducted a pro tective sweep of the premises

. Sergeant Richard F

oley noticed a trail o f blood leading from the Dobbins’ home, and he followed the drops of blood a few hu n dred y ards to a house loc ated at 1 818 Allison Street. Meanwhile, Officer Charles McEachron spotted a maroon Mu stang a

pproach ing him a t a high ra te of speed. He turned his vehicle around and pursued the ca r as the Mustang headed the wrong way down a one-way

street. The vehicle stopped at the end of the road, and a woman jumped out of the
car shouting that the men inside the car had been shot. When Officer McEachron inspected the c ar, he found Mr. Glenn in the front passenger sea tholding h

is arm and

Defend ant in

the back seat with
a chest wound. Both men were wearing black leather jackets. A Glock 27 semiautomatic .40 caliber pistol was discovered beneath Defenda nt. A second pistol, a .380 semi-automatic, w as found approxima

tely one hundred feet behind the car. The damage to the g un’s magazine plate indicated that the gun had bee

n thrown out of the c ar prior to stopping . The polic e also discover ed two pla stic bags of cocaine in the front passeng er seat and approximately $4,330 on the backseat floorboard.

Officer Earl Hunter found five nine millimeter casings in Mrs. Dobbins’ home, two on the front porch, one casing in the doorway between the kitchen and the den, and two casing s in the den-4-

area. Three nine millimeter live bullets were also found in the den and porch area. Officer Hunter retrieved two .40 caliber casings in Mr. Roundtree’s bedroom, one embedde d in a bulle

t proof ve st. Two more .40 c ali ber cas in gs wer e discove red on the

trail of b lood lead

ing awa y f rom Mrs. Dobbins’s home.

On the basis of this evidence, the j ury convicte d Defendant, among other char ges, of the especia lly aggr avated k idnapping of William Sw ift. Def

endant a rgues t hat the tr ial court erro neously denied his motion for judgment of acquittal on the especially a ggravated kidnapping

charge and that his dual convictions for

especially a

ggravated kidnappin g and e special

ly a ggra vated ro bbery violate due process . Both ch alleng es a re based on the Tennessee Supreme Court’s decision in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). Defendant also questions the sufficiency of the evidence supporting his conviction for especially aggravated kidnapping

. 1. Sufficiency of the Evidence

At the conclusion of the State’s proof and again a fter the sentencing he aring, De fendant moved for a judgment of acquittal on the especi ally ag gra vated kidnapping charge. A lthough the trial court, the State a

nd Defe ndant’s c ounse l ap proached both of Defendant’s motions from an Anthony perspective, the decision as to whether to deny or grant a motion for judgment of acquittal prior to a jury’s ver

dict rests upon the suffi ciency of the State’s evidence. Tenn. R. Crim. P. 29; State v. Cozart , 54 S.W.3d 242, 247 (Tenn. 2 001). The due proc ess concerns addressed in Anthony do not arise

until afte r the ac cused is c onvicted of both kidnapping and robbery

. Id. ; State v. Turner , 41 S.W.3d 663, 671 (Ten

n. Crim. Ap

p. 2000). Although a robbe ry offense , by

its nature , necess arily inv olves some degree of restraint or de tention of the victim, the statutory elements of especia ll y ag gravated

robbery a

nd especially a

ggravated kidnapping

are distinct and separate. Anthony , 8 1 7 S.W.2d at 303. Ev en if we d etermine that Def endant’ s dual con

victions violate du e proce ss under the Anthony standards, that determination does not pr esume tha t the evid ence wa s insuffic ient to support the kidnapping conviction as a matter of law. Anthony , 8 17 S.W.2d at 306. “Rather, the Anthony rule means that separate convictions cannot stand bec ause, even though the evi dence is sufficient to supportboth convictions, principles of due process would be offended by two sepa rate convictions.” Turner , 41 S.W.3d at 671. I nitially , theref

ore, we look to whether the evidence was sufficient to sustain D efenda

nt’s conviction for

esp ecially aggravated kidnapping independent of due processconsider

ations. On challenges to the sufficiency of the evidence, our standard of revie w is whether a rational trier of

fact could have f

ound all th

e essent ial eleme nts of the crim e beyond

a reaso nable doubtwhen viewing the evidence in a lig ht most favorable to the prosecution. State v. Jackson , 52 S.W.3d 661, 666 ( Tenn. Cri m. App. 2001), citing Ja ckson v. Virginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2789, 61 L. Ed. 2d

560 (1979). Questions concerning the cre dibility of witnesses, the weig ht afforded the evidence and the resolution of factual issues ar e left to the jury. State v. Keough , 18 S.W.3d 175, 180-81 (Tenn. 2000) ce rt. denied 531 U.S. 886, 121 S. Ct. 205, 148 L. Ed. 2d 144 (2000). A jury verdic t is accorded great weig ht in criminal trials. Once a jury finds a defendant gu il ty, his presumption of innocence is removed and replaced with a presumption of guilt. State v.-5-

Black , 815 S.W.2d 166, 175 (Tenn. 1991). The de fendant has the burde

n of over coming t his presumption, and the Sta

te is entitled t

o the stro ngest le gitimate

view of th

e evidence along

with all
reasona ble infere nces whi c h may be dra

wn from that evidence. Id.; Stat e v. Tuggl

e , 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts and drawn any reasona ble inferences in favor of the State. State v. S heffield , 676 S.W.2d 542, 547 (Tenn. 1984).

For purposesof Defe

ndant’s c onviction , “espec ially aggr avated k id nap ping” is defined as the false imprisonment of another accomplished with the us e of a deadly

weapon. Tenn. Code Ann. § 39-13-305(a )(1). An accuse d falsely imprisons a

nother pe rson whe n he or she

“knowingly
removes or

confines another unlawfully so as to interfere substantially with the other’s liberty.” Id. § -13-302(a). Defendant arg ues that the evidence does not support a finding that Mr. Swift’s movement

from the couch to th e floor f or appro ximately

twenty seconds s ubstantia

lly interfe red with his liberty.

Based on the testimony offere d at trial, Mr . Swift wa s asleep in the den a

nd not eve

n initially
aware of the robbers’ entry into the house. Mr. Swift testified that one of the masked men awakened him asking, “Who’re

you , who’re

you ?” and orde

red him to get on the floor. During this exchange,
a gun was held approximately four inches from

Mr. Swift’s face. Mr. Roundtree testified that Defendant

was the one who restrained Mr. Swift. Without speaking, Mr. Swift laid down on the floor, and Defendant and Mr. Glenn continued on to Mr. Roundtree’ s bedroom whi le Mr. Bry ant stood guard

at the fr ont door. A

pproximate

ly twenty seconds later, Mr. Swift heard gunshots, and Mr. Brya nt rushed to the back of the house to see what was happening. As soon as Mr. Bryant left his post, Mr. Swift got up and retrieved his nine millimeter gun from the couc h. When the three men returned down the hallway, Mr

. Swift opened fire killing Mr. Bry ant and wounding Defendant and Mr. Glenn.

The statutory elements of e specially ag gravated ki dnap ping do not require a finding that Defendant

moved Mr. Swift any

specific distance or restrained him for any particu lar leng

th of time in order for Defendant 's actions to substantially interfere with Mr. Swift’s liberty. Turner , 41 S.W.3d at 670; see also State v. Dixon , 957 S.W.2d 532, 535 (Tenn. 1997). Mr. Smith was clearly c onfined, albeit for a short period of time, when he was ordered at gunpoint to get on the flo or. His restraint
was insured a s long asMr. Bry ant watched ov er the members of the household. The fact that Defendant

and his partners gravely

miscalculated Mr. Swift’s response to their presence after he was left unguarded

does not negate Defendant’s a ctions resulting in the unlawful confinement of Mr. Swift, as Defe

ndant sug gests . Based upo n our review, the evidence is sufficient to support Defendant’s conviction for the especially aggravated kidnapping

of Mr. Swift.

2. Due Process C onsiderat ions Having determined that the evidence wa s sufficient to sustain Defendant’s conviction for the espe ci al ly aggravated kidnapping of Mr. Swift, we next look to whether Defendant’s dual convictions for especi al ly aggravated robbe ry and especially ag gravated kidnapping violate due processconsiderations. Our courts have long recognized that a separate conviction for a kidnapping-6-

may violate due process if the ki dnappin g offense is “essentially incidental” to the accompany ing
ro bb er y. Anthony , 817 S.W.2d at 306. However, our courts have never interpre ted Anthony as an automatic bar to separate convictions for kidnapping and robbery in all circumstances. Dixon , 957 S.W.2d at 534. Rather, “[t]he Anthony decision should only

prevent the injustice which would occur if a defendant

could be convicted of kidnapping where the only restraint

utilized was that necessary to complete the act of . . . robbery .” Id.

The initial inquiry, therefore , is “whether the confinem ent, mo vement, o r detent ion is essentia lly incidental to the acc ompany ing fel ony

and is not, theref

ore, suf ficient t o support a separate conviction

for kidna pping, o r whethe r it is sig nifican

t enoug h, in and of itself, to warrant independent

prosecution and is, therefore, sufficient to support such a conviction.” Anthony , 817 S.W.2d at 306. If the kidnapping is not nec e ssary to the under lying fe lony, then the restra

int or detention is not incidental and may support a separate conviction. State v. Blouvet, 965 S.W.2d 489, 492 (Tenn. Cr

im. App. 19 97); Dixon , 957 S.W.2d at 535. If the kidnapping is incidental but more than necessary

to accomplish the companion offense, then we mus t continue o ur inquir y a nd ask "whether the additional movement or confinement: (1) prevented the victim from summoning help; (2) lesse ned th e defen dant’ s risk of det ectio n; or ( 3) crea ted a s ignifi cant d ange r or incre ased the victim’s risk of harm.” Id . Needle ss to say, the determination as to whether a kidnapping in a particular situation is incidental to the robbery is highly fact specific. Anthony , 817 S.W.2d at 308.

In Dixon , our supr

eme cour t held tha t,
The Anthony decision should only prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the act o f rape o r robber y. A ccordin gly , any

restraint in addition to that which is necessary to co ns ummate ra

pe or rob bery may support a separate conviction for kidnapping.

Dixon , 547 S.W.2d at 534-35.

In the case sub judice , the record is clear that the three robbe rs had one goal in mind, the robbery of Darr ell Roundtree. Defendant and Mr. Roundtree had gr own up tog ether a

nd, if not c lose friends , were acquaintances. Mr. Roundt ree sai d that although he

never g ambled wi

th Defendant, people, including apparently Defendant, knew that he was a g ambler. When the men en tered the house, they made

no attempt to rob any of the othe r household

members, or evide

nced an y de sire to do so. No attempt was made to restrain Mrs. Dobbins’ cousin, Jerry H unt, or her two daughters who had fled to other p arts of th

e house. The whole

incident took less than two mi nutes, and even had
one of the family member s attempted to call the police, t he perpe trators w ould pres umably have had the time to flee the premises.

Based on these f acts, it is clear that Mr. Swift’s confinement was not incidental or necessary to the main purpose of the intrusion and, indeed, had nothing to do with the robbery. See Blouvet , 965 S.W.2d at 492. Mr. Swift was not even aware that the robbers were in the house until they woke-7-

him up and mad

e him lie on the floor at gunpoint. Because we conclude that Mr. Swift’s kidnapping
was not necessary

to accomplish the robbery, w e need not proceed with the other inquiries sugg ested in Anthony and Dixon . Even if we did consider theremaining inquiries, the restraint lessened Mr. Swift 's ability to summon help and create d a significant danger and risk of harm to Mr. Swift. The defendant’s conviction for especially aggravated kidnapping

is affirmed.
CONCLUSION

After a thoroug h review of the re cord, we

affirm t he judg ment of the

trial cou rt.

___________________________________ THOMAS T. WOODALL , JUDGE