IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 29, 2013 Session Heard at Cookeville

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STATE OF TENNESSEE v. TERRANCE ANTONIO CECIL

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Maury County

No. 20194 Robert L. Jones, Judge

No. M2011-01210-SC-R11-CD - Filed August 12, 2013

The defendant was convicted of false imprisonment and assault. The trial court imposed

concurrent sentences of six months, with all but sixty days suspended to probation. More

than one year after the trial but while the defendant’s case was pending in the Court of

Criminal Appeals, this Court filed its opinion in State v. White, 362 S.W.3d 559 (Tenn.

2012), which requires, on grounds of due process, trial courts to provide a more specific

instruction on kidnapping charges as to whether the removal or confinement of a victim is

essentially incidental to any accompanying offense. The Court of Criminal Appeals held in

this instance that, although the White instruction was not provided at trial, the jury was

correctly instructed and the evidence was sufficient to support both convictions. We granted

review to determine whether the absence of the White instruction warrants a new trial.

Because the omission of the instruction required by White cannot be classified as harmless

beyond a reasonable doubt, the conviction for false imprisonment is reversed and the cause

remanded for a new trial.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed in Part and Reversed in Part; Case Remanded to the Circuit

Court for Maury County

GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER,

CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

Kevin Richard McGee, Nashville, Tennessee, and Larry Samuel Patterson, Jr., Columbia,

Tennessee, for the appellant, Terrance Antonio Cecil.

Oral argument was heard in this case on May 29, 2013, in Cookeville, Putnam County, Tennessee, 1

as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Rachel West Harmon, Assistant Attorney General; Leslie E. Price, Senior Counsel; Mike

Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

At approximately 3:30 a.m. on June 26, 2010, police officers in Maury County,

Tennessee, responded to an “open-line 911 call” from 607 1⁄2 Santa Fe Pike, later identified

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as the trailer residence of Terrance Antonio Cecil (the “Defendant”). The police arrived at

the scene, knocked on the door and windows, and waited several minutes before the

Defendant allowed them to enter the residence. When the police walked into the back

bedroom, they found the victim, Robyn Robledo, who appeared to have swelling on her eye,

shoulder, and temple. After interviewing both the victim and the Defendant, the police

arrested the Defendant and called an ambulance to transport the victim to a hospital. Later,

a Maury County grand jury indicted the Defendant for domestic assault and false

imprisonment.

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At the trial on February 10, 2011, Officer Keith Fall of the Columbia Police

Department testified that he arrived at the Defendant’s trailer at 3:38 a.m. Although he was

not the first officer on the scene, no one else had entered the trailer before his arrival.

According to Officer Fall, he knocked on the door of the trailer and waited for approximately

ten minutes before the Defendant answered. When Officer Fall asked the Defendant if

anyone else was inside, he answered that his “old lady” was also there but that everything

was “okay.” The Defendant then allowed Officer Fall to enter his residence in order to speak

with the victim, and, when Officer Fall found the victim lying on the bed in a bedroom at the

back of the trailer, the victim motioned to Officer Fall in a manner that he interpreted as a

request to speak privately. He escorted the victim into the living room while the Defendant

remained in the bedroom with other officers. After speaking with the victim and observing

slight discoloration and swelling around her eye, and bruises on the right side of her temple

and on her right shoulder, Officer Fall called an emergency medical services unit to transport

the victim to Maury Regional Hospital and placed the Defendant under arrest for domestic

assault and false imprisonment.

At trial, the testifying officer explained that an “open-line 911 call” is “where a caller calls 911 and 2

the dispatcher’s answering the phone and nobody answers back, [and the dispatcher says] what’s your

emergency and there’s . . . an open line, but nobody responding to the dispatcher’s questions.”

 See Tenn. Code Ann. §§ 39-13-111 (domestic assault), -302 (false imprisonment) (2010).

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The victim testified that she had been dating the Defendant off and on for seven

months at the time of their altercation. She explained that they had been engaged to marry

but had broken off and then renewed the engagement several times throughout their

“complicated relationship.” The victim recalled that on the day prior to his arrest, she and

the Defendant had exchanged angry text messages. After leaving her place of work shortly

after 10:00 p.m., she first drove to her home to shower. Afterward, she traveled to the

Defendant’s residence in order to confront him about his infidelity, to return her set of

engagement rings, and to end their relationship. The victim estimated that she arrived at the

Defendant’strailer around midnight and recalled that Shaun Walls, a friend of the Defendant,

answered the door. According to the victim, she walked into the Defendant’s bedroom and

engaged him in a conversation that began cordially but escalated into an argument when the

Defendant became rude. She recalled that they quarreled for “quite some time,” and that

when she eventually tried to leave the trailer, the Defendant said, “[Y]ou’re not going

anywhere.” She stated that the Defendant then “came after” her, “grabbed” her, and threw

her on the bed, where they began hitting one another. After an exchange of multiple blows,

she was able to “kick[] [the Defendant] hard enough to get him off of [her].” When she

again attempted to leave, however, the Defendant “grabbed” her by the hair and threw her

to the floor. The victim recounted that the Defendant “slid” her into the bathroom,

“slammed” her against the bathtub, and threatened to “kick [her] in [the] face.” According

to the victim, the Defendant eventually “let [her] get up and that was pretty much it.” She

estimated that she attempted to leave a total of three times during the altercation and that the

Defendant struck her “over a dozen times.”

The victim further acknowledged that she had ripped the shirt the Defendant had been

wearing during the altercation, and that when he went to the laundry room to put on another

shirt, she used her cell phone to call 911, turning off the backlight and volume so the

Defendant could neither see the phone nor hear the dispatcher’s voice. She testified that she

“didn’t want [the Defendant] to get even more mad that [she] had called the police” and

further explained that she stayed in bed with the Defendant while they both “calmed down.”

The victim stated that approximately fifteen minutes passed before the police arrived. She

recalled that when they initially heard the knock at the door they speculated that it may have

been a neighbor. When there was no response to the knocks on the door, however, the police

began “banging on the windows” and said, “[T]his is the police, open up the door.” She

testified that the Defendant “wouldn’t let [her] get up and answer the door” and that “a good

ten minutes” passed before he finally responded. After being separated from the Defendant,

the victim provided a statement to the police, who examined her injuries. As she was taken

to the hospital by ambulance, she learned that the Defendant had been taken into police

custody. The victim underwent several tests at the hospital, including a CAT scan and an Xray. She testified that she had a large knot on her right shoulder and that her right temple,

ear, and eye were swollen from being “hit about five times” on the head. She also developed

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bruising and swelling in her upper neck, throat, jaw, and chin areas, and, after the incident,

she returned to the hospital on two different occasions for treatment of “major headaches,”

blurred vision, and other symptoms in her right eye.

The victim estimated that the actual physical altercation with the Defendant lasted

about an hour and a half. She did not recall inflicting any wounds. The victim admitted that

she contacted the Defendant several months after the incident, claiming that she was seeking

financial assistance rather than attempting to rekindle their relationship. She explained that

as a single mother of three children with no family or friends in the area, she had relied on

the Defendant for financial assistance in the past.

On cross-examination, the victim acknowledged several inconsistencies between her

testimony on direct examination and the statementshe had provided to the police on the night

of the altercation. She admitted that her testimony was equivocal as to whether she could

have left the Defendant’s residence before, during, or immediately after the altercation, and

recalled that she had blacked out during the altercation, not because of a blow by the

Defendant, but “because [she] was in a rage.” She could not, therefore, recall “who hit first”

and was uncertain about some of the other details. When asked whether the Defendant had

a bloody lip, she responded, “Well, me punching him several times, I’m sure . . . he got

bloody somewhere.” She conceded that when she was younger, she had been given the

nickname “Gangstaboo” because of her involvement in “a lot of fighting situations,” during

which she had a tendency to black out because of her “anger state of mind.” The victim also

acknowledged that three days after the altercation, she sent a text message to the Defendant

stating, “If I get in trouble for being around you, I’m beating your ass again.” She further

stated that several weeks after the incident she “got drunk and . . . ended up over at [the

Defendant’s] house,” and that in November or December of 2010 she again returned to the

Defendant’s residence with other friends. The victim was also shown a text message that she

sent to the Defendant on November 26, 2010, some five months after the altercation: “[C]an

I come lay with you tonight, . . . I want to be in your arms, I mean that[.]” She acknowledged

thatshe had been prescribed Xanax and Celexa for anxiety attacks and recalled taking Celexa

on the morning before the encounter that led to the Defendant’s arrest, but denied consuming

any alcohol or taking any Xanax or “off-the-street drugs.”

Shutane “Shaun” Walls, who had been “good friends” with the Defendant for fifteen

or sixteen years, testified in his defense. He recalled that he arrived at the Defendant’s trailer

between 12:00 and 12:30 a.m. on June 26, 2010, and that the victim arrived about an hour

or an hour and a half later. According to Walls, when he answered the door for the victim,

“she just went straight back into [the Defendant’s] room.” Walls recalled that the victim

remained in the bedroom with the Defendant for some fifteen or twenty minutes, left the

trailer, and then returned some five minutes later. After watching television for another

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fifteen minutes, Walls retired to a second bedroom located on the opposite end of the trailer

and fell asleep. He estimated that an hour had passed before he discovered that the police

were in the living room. He claimed that upon seeing the police, he went back to sleep

because he “didn’t want no part of it.” Although Walls admitted that he was a “pretty sound

sleeper,” he testified that he did not hear any argument, screaming, yelling, or fighting

between the victim and the Defendant.

Rachel Thomas, who was dating Walls in 2010, also testified for the defense. She and

the victim had become friends while working together at Sun Tan City, but they had not been

in close contact since the incident. Although she was in Seattle at the time of the altercation,

Thomas recalled that the victim had sent her a text message detailing her version of the

events. Thomas acknowledged that, after the incident, she saw the victim’s bruises on her

right shoulder, cheek, and eye, and she also testified thatshe was present when the victim and

the Defendant went into his bedroom together shortly after Thanksgiving in 2010. Donna

Howell testified that she had been friends with the victim at the time of the incident and had

previously lived with her. Although called as a witness for the defense, on crossexamination, Howell identified several photographs depicting the victim’s injuries, and she

recalled observing the victim’s injuries on the day following the altercation.

At the conclusion of the proof, the jury returned verdicts of guilt for assault and false

imprisonment. On March 4, 2011, the trial court sentenced the Defendant to concurrent

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sentences of six months, with sixty days to be served in confinement and the remaining four

months suspended on each sentence, followed by ten months on supervised probation. The

trial court later denied the Defendant’s motion for a new trial. On direct appeal to the Court

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of Criminal Appeals, the Defendant challenged the sufficiency of the evidence, alleged a

sentencing error, and argued that the trial court committed plain error by failing to instruct

the jury on the lesser included offenses of attempted assault and attempted false

See Tenn. Code Ann. §§ 39-13-101 (assault), -302 (false imprisonment) (2010). As noted, the 4

grand jury indicted the Defendant on charges of domestic assault and false imprisonment. On the petit jury’s

verdict form, however, the word “domestic” was struck from the assault charge. The record reflects that the

trial court had determined before trial “that this was not a domestic type situation,” the case proceeded on

a simple assault charge, and the jury returned verdicts of guilt as to simple assault and false imprisonment,

both of which are Class A misdemeanors. See id. §§ 39-13-101(b)(1), -302(b).

In his motion for a new trial, the Defendant raised four issues, which we have summarized as 5

follows: (1) whether the evidence was sufficient to support his convictions of simple assault and false

imprisonment; (2) whether the trial court erred by considering his prior charges, which did not result in

convictions, during the sentencing hearing; (3) whether the trial court should have instructed the jury on the

lesser included charges of attempted assault and attempted false imprisonment; and (4) whether the jury

selection process violated his right to a fair and impartial trial by a jury of his peers because there was an

inadequate representation of African Americans.

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imprisonment. The Court of Criminal Appeals found no error on the issues presented, State

v. Cecil, No. M2011-01210-CCA-R3-CD, 2012 WL 2674521, at *1 (Tenn. Crim. App. July

6, 2012), but did address our recent holding in State v. White, 362 S.W.3d 559, 580-81

(Tenn. 2012), which requires trial courts, under circumstances such as these, to provide a

specific instruction to the jury designed to ascertain whether the nature of the confinement

constitutes a substantial interference with the victim’s liberty. Although the instruction

required by our opinion in White (which was filed more than one year after the trial in this

case) was not provided, the Court of Criminal Appeals found no error and ruled that the

evidence sufficiently supported the assault and false imprisonment convictions. Cecil, 2012

WL 2674521, at *6-7. Although the Defendant raised several issues on appeal to this Court,

we granted review to determine whether the instruction recently adopted in White requires

a new trial.

II. Analysis

In the order granting this appeal, we stated the issue as “[w]hether, in analyzing the

sufficiency of the evidence in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), the

Court of Criminal Appeals erred in holding that the jury was correctly instructed and that the

[Defendant’s] due process rights were not violated.” While the Defendant argues error and

further contends that if the instruction set out in White had been given the jury would not

have convicted him of false imprisonment, the State concedes that the Court of Criminal

Appeals erred by holding that the trial court correctly instructed the jury on the false

imprisonment charge. The State argues, however, that the instructional error was harmless

beyond a reasonable doubt. In order to appropriately consider this issue, we have reviewed

the history of this area of the law, our holding in White, and several opinions by the Court

of Criminal Appeals that have addressed the White instruction, particularly those that

conducted a harmless error analysis.

A. History

False imprisonment, which has been described as the definitional “building block” of

our kidnapping offenses, is committed when a person “knowingly removes or confines

another unlawfully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann.

§ 39-13-302(a); see Melanie A. Prince, Comment, Two Crimes for the Price of One: The

Problem with Kidnapping Statutes in Tennessee and Beyond, 76 Tenn. L. Rev. 789, 791

(2009);see also Tenn. Code Ann. § 39-13-302 sentencing commission cmts. (describing false

imprisonment as “the basic offense for the kidnapping statutes”). “[F]alse imprisonment is

meant to ‘broadly address[] any situation where there is an interference with another’s

liberty,’” White, 362 S.W.3d at 574-75 (second alteration in original) (quoting Tenn. Code

Ann. § 39-13-302 sentencing commission cmts.), while the increasingly serious levels of

kidnapping consist of false imprisonment plus a combination of aggravating factors, such as

a risk of bodily injury or use of a deadly weapon, that may elevate the crime to kidnapping,

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aggravated kidnapping, or especially aggravated kidnapping, see Tenn. Code Ann. §§

39-13-303 to -305 (2010). Because the basic element of false imprisonment—removing or

confining so as to interfere substantially with another person’s liberty—serves as the

foundation for each of the kidnapping offenses as defined by our statutes, it follows that our

review in this instance requires consideration of not only our statutory scheme but also the

related kidnapping opinions of this Court over the past twenty-two years.

In State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), the Court considered, as issues of

first impression, “the propriety of a kidnapping conviction where detention of the victim is

merely incidental to the commission of another felony, such as robbery or rape,” and “what

legal standard should be applied in deciding whether a separate conviction for kidnapping

can be sustained.” Id. at 300. At the time, kidnapping was defined as a “false

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imprisonment . . . [u]nder circumstances exposing the other person to substantial risk of

bodily injury.” Tenn. Code Ann. § 39-13-303(a)(1) (1990) (amended 2008). False

imprisonment was defined then as it is today—i.e., the unlawful removal or confinement of

another so as to interfere substantially with the other’s liberty. Id. § 39-13-302(a) (1990).

As the Court in Anthony observed, “[l]iterally construed, the offense of kidnapping defined

in these statutes at times could . . . overrun several other crimes, notably robbery and rape,

and in some circumstances assault, since detention and sometimes confinement, against the

will of the victim, frequently accompany these crimes.” 817 S.W.2d at 303. The problem

with the kidnapping statutes identified in Anthony was resolved on state constitutional

principles of due process, with the Court concluding that the “kidnapping statutes do not

apply to unlawful confinements or movements incidental to the commission of other

felonies.” Id. at 305; see also id. at 306 (“We rest this holding not on a concern for

constitutional protection against double jeopardy, but on our understanding of the

constitutional guarantee of due process. In this regard, we note specifically the provisions

of [a]rticle I, section 8 of the Tennessee Constitution.”). While directing courts to construe

the kidnapping statutes narrowly so as to be fundamentally fair and consistent with due

process rights, the Court defined the relevant test as

whether the confinement, movement, or detention is essentially incidental to

the accompanying felony and is not, therefore, sufficient to support a separate

Since Anthony was decided, this Court has tended to use the specific terms “kidnapping” and 6

“accompanying felony” when discussing these issues. We have also mentioned rape and robbery as the most

common examples of these accompanying felonies. Of course, because each of the kidnapping offenses is

rooted in the definition of false imprisonment, our decisions as to any of the kidnapping offenses would apply

with equal force to the offense of false imprisonment. Likewise, the additional offense that may accompany

the false imprisonment, kidnapping, aggravated kidnapping, or especially aggravated kidnapping offense will

not always be a felony and will not always be rape or robbery. Indeed, the Defendant in this instance was

convicted of false imprisonment and the accompanying offense of assault, a Class A misdemeanor.

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conviction for kidnapping, or whether it is significant enough, in and of itself,

to warrant independent prosecution and is, therefore,sufficient to supportsuch

a conviction.

Id. The Court emphasized 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.” Id. at 307.

Six years after the Anthony ruling, in State v. Dixon, this Court modified the

“essentially incidental” due process analysis. 957 S.W.2d 532 (Tenn. 1997). In Dixon, the

Court properly observed that “Anthony and its progeny . . . are not meant to provide the rapist

a free kidnapping merely because he also committed rape,” and described the “essentially

incidental” standard as designed to “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 rape or robbery.” Id. at 534-35. The Court further stated

that “any restraint in addition to that which is necessary to consummate rape or robbery may

support a separate conviction for kidnapping.” Id. at 535. Accordingly, the two-part Dixon

test addressed (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 help, lessened the defendant’s risk of

detection, or created a significant danger or increased the victim’s risk of harm. State v.

Richardson, 251 S.W.3d 438, 442-43 (Tenn. 2008). Under the first prong of the Dixon test,

the distance of the victim’s movement and the duration or place of the victim’s confinement

were identified as factors to be considered when determining if the movement or

confinement was beyond that necessary to consummate the accompanying crime. Id. at 443.

The second prong was to be addressed only if the threshold inquiry in the first prong was

satisfied. Id. at 442. When each of the criteria was met, a separate kidnapping conviction

was permitted to stand. In Richardson, we explicitly recognized the Dixon two-part test as

a replacement for the Anthony “essentially incidental” analysis. Id. at 443.

Just last year, in State v. White, we revisited our rulings in this area of the law and

determined that the separate due process test articulated first in Anthony, and subsequently

refined in Dixon and its progeny, was not the most workable manner of addressing a

kidnapping conviction that accompanied a separate offense. White, 362 S.W.3d at 578.

After overruling Anthony and the entire line of cases that included a separate due process

analysis in appellate review, we adopted a standard under which trial courts have an

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Id. at 570, 578 (overruling, among other cases, State v. Cozart, 54 S.W.3d 242 (Tenn. 2001), and 7

State v. Fuller, 172 S.W.3d 533 (Tenn. 2005)). In Cozart, 54 S.W.3d at 244, the trial court rejected the

(continued...)

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obligation to fully instruct the jury on the statutory language of the kidnapping statutes,

holding 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,” White, 362 S.W.3d at 577, with the appellate courts assessing the sufficiency

of the convicting evidence as the ultimate component of due process protections, id. at 578.

We further explained that

[w]hen jurors are called upon to determine whether the State has proven

beyond a reasonable doubt the elements of kidnapping, aggravated kidnapping,

or especially aggravated kidnapping, trial courts should specifically require a

determination of 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. In our view, an instruction of this

nature is necessary in order to assure that juries properly afford constitutional

due process protections to those on trial for kidnapping and an accompanying

felony.

Id. We also cautioned, however, that our decision “should not be construed as creating a new

standard for kidnapping. Instead, we . . . merely provid[ed a] definition for the element of

the offense requiring that the removal or confinement constitute a substantial interference

with the victim’s liberty.” Id. We then provided an appropriate instruction as to the

“substantial interference” element, which wassubsequently adopted by the Tennessee Pattern

Jury Instruction Committee:

To find the defendant guilty of [especially] [aggravated] [kidnapping] [false

imprisonment], you must also find beyond a reasonable doubt that the removal

or confinement was to a greater degree than that necessary to commit the

offense(s) of _________ as charged [or included] in count(s) _________. In

making this determination, you may consider all the relevant facts and

circumstances of the case, including, but not limited to, the following factors:

(...continued) 7

defendant’s request for a special jury instruction based on Anthony. Adhering to the view that the due

process analysis stemming from Anthony was “purely a question of law,” this Court agreed with the trial

court’s refusal to submit the requested instruction to the jury. Id. at 247. In Fuller, this Court stated that the

first Dixon prong did “not replace the ‘essentially incidental’ test,” but was merely a “threshold

determination,” and that the Dixon analysis as a whole “provide[d] the structure necessary for applying the

principles announced in Anthony.” Fuller, 172 S.W.3d at 537. The Court also explained that satisfaction

of the second Dixon prong was not dependent upon “the ultimate success of the confinement,” id., and

“emphasize[d] that ‘the determination of whether a detention or movement is incidental to another offense

is highly dependent on the facts in each case,’” id. at 538 (quoting Anthony, 817 S.W.2d at 306).

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(a) the nature and duration of the alleged victim’s removal or confinement by

the defendant;

(b) whether the removal or confinement occurred during the commission of the

separate offense;

(c) whether the interference with the alleged victim’s liberty was inherent in

the nature of the separate offense;

(d) whether the removal or confinement prevented the alleged victim from

summoning assistance, although the defendant need not have succeeded in

preventing the alleged victim from doing so;

(e) whether the removal or confinement reduced the defendant’s risk of

detection, although the defendant need not have succeeded in this objective;

and

(f) whether the removal or confinement created a significant danger or

increased the alleged victim’s risk of harm independent of that posed by the

separate offense.

Unless you find beyond a reasonable doubt that the alleged victim’s removal

or confinement exceeded that which was necessary to accomplish the alleged

_________ and was not essentially incidental to it, you must find the defendant

not guilty of [especially] [aggravated] [kidnapping] [false imprisonment].

7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 8.01–.03, 8.05 (footnote omitted) (citing White,

362 S.W.3d at 578-81). In White, we concluded that even though the jury instructions by the

trial court tracked the language of the relevant kidnapping statute, they were deficient

because “they did 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.” 362 S.W.3d at 580. Determining

that “th[e] proof could be interpreted in different ways,” we reversed the conviction and

remanded for a new trial so that the trial court could properly instruct the jury to consider,

as a question of fact, whether the removal or confinement of the victim constituted a

substantial interference with her liberty, id. at 579, 581.

B. Application of White

In the seventeen months since our ruling in White, the Court of Criminal Appeals has

grappled with a variety of kidnapping cases that were in the “appellate pipeline” at the time

the opinion in White was filed. Initially, our decision did not “creat[e] a new standard for

kidnapping,” and, in consequence, “d[id] not articulate a new rule of constitutional law or

require retroactive application.” Id. at 578. There was a question as to whether this Court

intended White to be applied to any cases that were pending direct appeal or to be limited to

those trials held after the filing of the White opinion on March 9, 2012. As the Court of

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Criminal Appeals properly observed in State v. Osby, our statement in White was not

intended to preclude consideration of the newly required instruction in cases already in the

variousstages of the appellate process. No. W2012-00408-CCA-R3-CD, 2012 WL 5381371,

at *7 (Tenn. Crim. App. Nov. 2, 2012) (“We note . . . that the [supreme] court has remanded

a number of cases for reconsideration in light of its ruling in White, suggesting that it

intended . . . application of the ruling to those already-tried cases in the appellate pipeline,

that is[,] pending direct appeal[] at the time it was filed[,] and that its use of the word

‘retroactive’ was intended to prevent use of the ruling for collateral attack.” (citation

omitted)), perm. app. denied (Tenn. Mar. 5, 2013). Because this case was on direct appeal

at the time White was decided, the issue has been preserved, and the Defendant is entitled

to the benefit of our ruling. See Lease v. Tipton, 722 S.W.2d 379, 379 (Tenn. 1986) (per

curiam) (adopting the “pipeline approach,” which applies a new legal principle “to the

litigants at bar, to all actions pending on the date the decision announcing the change

becomes final[,] and to all causes of action arising thereafter”).

Relying upon the separate due process analysis articulated in Anthony, the Defendant

argued to the Court of Criminal Appeals that the false imprisonment was “essentially

incidental” to the assault, and, therefore, the evidence was insufficient to support both

convictions. Cecil, 2012 WL 2674521, at *5 & n.2. The Court of Criminal Appeals found

this argument to be without merit because Anthony had been overruled by White, and made

the following further observation:

For the Defendant’s argument to succeed under White, we would have to

conclude that the conduct by the Defendant that “removed or confined” the

victim unlawfully so as to “interfere substantially” with the victim’s “liberty”

did not exceed that which was necessary to accomplish the assault. See [Tenn.

Code Ann.] § 39-13-302 (2010). . . . The evidence is sufficient beyond any

reasonable doubt that the Defendant committed the offense of falsely

imprisoning the victim. The evidence is also clearly sufficient to support the

jury’s verdict that the Defendant assaulted the victim.

Id. at *6. The Court of Criminal Appeals found no error at all, concluding that “[t]he jury

was correctly instructed.” Id. at *7.

Although some panels of the Court of Criminal Appeals have similarly administered

a simple sufficiency of the evidence analysis in post-White cases, other panels of the court

have properly found that the absence of the White instruction constitutes error. Compare

State v. Savage, No. M2011-00666-CCA-R3-CD, 2012 WL 4054814, at *15-16 (Tenn. Crim.

App. Sept. 17, 2012), perm. app. denied (Tenn. Jan. 22, 2013); Cecil, 2012 WL 2674521, at

*6-7, perm. app. granted (Tenn. Nov. 29, 2012); and State v. Young, No.

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E2012-00726-CCA-RM-CD, 2012 WL 2465156, at *11-13 (Tenn. Crim. App. June 28,

2012), perm. app. denied (Tenn. Nov. 21, 2012), with State v. Scott, No. E2011-00707-

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CCA-R3-CD, 2012 WL 5503951, at *13 (Tenn. Crim. App. Nov. 14, 2012) (observing that

this Court “acknowledged [in White] that the sufficiency of the evidence could not be

evaluated in the absence of proper jury instructions on the affected issue”), perm. app. denied

(Tenn. Mar. 5, 2013); and Osby, 2012 WL 5381371, at *8 & n.3 (same). While we did state

in White that “[o]ur task . . . of assessing the sufficiency of the convicting evidence qualifies

as the ultimate component of th[e due process] constitutional safeguard,” 362 S.W.3d at 578,

we also declined to review the sufficiency of the evidence because the jury had not received

an adequate instruction, id. at 579. We explained that the jury, whose primary obligation is

to ensure that a criminal defendant has been afforded due process, must first be properly

instructed under the law in order to determine whether the State has proven the defendant’s

guilt as to each and every element of kidnapping beyond a reasonable doubt. Id. at 577. In

our view, therefore, providing the definition of the “substantial interference” element to the

jury is essential to afford the protections of due process. Only when the jury is properly

instructed can appellate review of the sufficiency of the convicting evidence satisfy the due

process safeguard.

9

Although the Court of Criminal Appeals found that the jury was correctly instructed

in this case, we must disagree. The State has properly conceded this point. The same

instructional error that existed in White is present in this case—the jury was not adequately

charged on the question of whether the victim’s removal or confinement, as an element of

false imprisonment, was essentially incidental to the assault. In White, we held that even

10

In Young and Savage, although we denied the defendants’ applications for permission to appeal, 8

we also designated those opinions of the Court of Criminal Appeals “not for citation.” See Tenn. Sup. Ct.

R. 4(E). As indicated, we granted review in this case to determine “[w]hether, in analyzing the sufficiency

of the evidence in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), the Court of Criminal Appeals erred

in holding that the jury was correctly instructed and that the [Defendant’s] due process rights were not

violated.”

 As the Court of Criminal Appeals has observed, 9

[b]ecause the due process issue at stake is now deemed a factual issue to be determined by

the trier of fact and not a legal issue to be determined by the trial court, an appellate court

that embarks upon determining the ‘sufficiency of the evidence’ on this issue despite the

absence of the necessary, enabling instruction usurps the role of the trier of fact.

Osby, 2012 WL 5381371, at *8 n.3 (emphasis added) (citation omitted).

The instruction on assault required the jury to find that the State had proven “beyond a reasonable 10

doubt that the [D]efendant intentionally, knowingly, or recklessly caused bodily injury to another.” The

(continued...)

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though the jury instructions tracked the language of the kidnapping statute, they were

erroneous because “they did 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.” 362 S.W.3d

at 580 (emphasis added).

Of importance, “[t]he failure to instruct the jury on a material element of an offense

is a constitutional error subject to harmless error analysis.” State v. Faulkner, 154 S.W.3d

48, 60 (Tenn. 2005) (emphasis added) (citing State v. Ducker, 27 S.W.3d 889, 899 (Tenn.

2000)); see also State v. Garrison, 40 S.W.3d 426, 434 (Tenn. 2000) (holding that “harmless

error analysis is appropriate when evaluating omissions of an essential element of an offense

from the jury charge”). In consequence, the lack of the instruction set out in White, while

entirely understandable because the trial predated our ruling, qualified as constitutional error.

The Court of Criminal Appeals should have addressed whether the error was harmless

beyond a reasonable doubt. See State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)

11

(“The existence of a non-structural constitutional error requires reversal unless the State

demonstrates beyond a reasonable doubt that the error is harmless.”). In order to determine

whether an instructional error is harmless, the appellate court must ask “whether it appears

beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained.” Id. (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002)) (internal quotation

marks omitted); see also White, 362 S.W.3d at 580 n.20 (“Because we cannot conclude

beyond a reasonable doubt that the jury verdict would have been the same absent the

instructional error, we cannot find the error harmless.”). As we observed in White, the

touchstone of this inquiry is whether a rational trier of fact could interpret the proof at trial

in different ways. 362 S.W.3d at 579.

In a number of cases, the Court of Criminal Appeals, having addressed the omission

(...continued) 10

instruction on false imprisonment required the jury to find that the State had proven beyond a reasonable

doubt “(1) that the [D]efendant removed or confined another unlawfully so as to interfere substantially with

the other’s liberty,” and (2) that “the [D]efendant acted knowingly.” The trial court further instructed the

jury as follows:

The crime charged in each count is a separate and distinct offense. You must decide each

charge separately on the evidence and the law applicable to it. The [D]efendant may be

found guilty or not guilty of any or all of the offenses charged. Your finding as to each

charge must be stated in your verdict.

 Of course, if the jury does receive the instruction required by White, or if the failure to provide 11

a White instruction is determined to be harmless error, then appellate review of the sufficiency of the

evidence will be appropriate. See White, 362 S.W.3d at 578.

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of the White instruction, conducted proper analyses and remanded for new trials. See, e.g.,

State v. Davis, No. M2011-02075-CCA-R3-CD, 2012 WL 5947439, at *6 (Tenn. Crim. App.

Nov. 16, 2012) (reversing conviction and remanding for new trial because the evidence was

subject to differing interpretations and the jury was not instructed on the definition of

“substantial interference”); State v. Raymer, No. M2011-00995-CCA-R3-CD, 2012 WL

4841544, at *7 (Tenn. Crim. App. Oct. 10, 2012) (reversing conviction and remanding for

new trial because the evidence was subject to differing interpretations and the proper jury

instruction could have changed the outcome of the trial); State v. Powell, No.

E2011-00155-CCA-R3-CD, 2012 WL 1655279, at *9 (Tenn. Crim. App. May 10, 2012)

(same). In contrast, the Court of Criminal Appeals has also issued several opinions that

12

illustrate when the failure to provide the White instruction may be deemed harmless beyond

a reasonable doubt. In State v. Keller, while addressing the absence of the White instruction

as to an especially aggravated kidnapping conviction, the court concluded that the

instructional error was harmless beyond a reasonable doubt because it was “clear that the

movement and confinement of the victims was not done for purposes of accomplishing

assaults upon them.” No. W2012-00825-CCA-R3-CD, 2013 WL 3329032, at *5 (Tenn.

Crim. App. June 27, 2013). The court found that “the record reflects that after the victims

had been subjected to threats of deadly force, they were further removed and confined with

the intention that they be used as hostages in support of the defendant’s efforts to rob [a third

party].” Id. at *4. Likewise, in State v. Hulse, the Court of Criminal Appeals determined

that the absence of the White instruction was harmless beyond a reasonable doubt where the

defendant, after raping the victim, chased her with a boxcutter, grabbed her ankles, pulled

her down a sidewalk, and prevented her from summoning help. No. E2011-01292-CCA-R3-

CD, 2013 WL 1136528, at *14 (Tenn. Crim. App. Mar. 19, 2013). Finding that these actions

were not inherent in the crimes of rape or aggravated rape, which had already been

completed, the court held that “[t]he only reasonable conclusion to be drawn from the

evidence is that the [d]efendant’s actions were well beyond that necessary to consummate

the rape.” Id.

The circumstances here are not so certain. The proof in this case demonstrated that

sometime after midnight on June 26, 2010, the victim drove to the Defendant’s residence and

walked directly into his bedroom to confront him about his infidelity and to break off their

relationship. At some point she left the residence, but chose to return. An argument ensued

and the two exchanged multiple blows over the course of one to two hours. The victim

acknowledged that she “blacked out” when she got angry, and she could not recall “who hit

first.” She maintained that at some point the Defendant threw her onto the bed, but she also

While we recognize that the Court of Criminal Appeals did not explicitly state that it was applying 12

a harmless error analysis, it is clear that the principles applied in these opinions were consistent with those

we adopted in White and have applied in this instance.

-14-
admitted that she threw punches and bloodied the Defendant’s lip. When the Defendant left

the bedroom to replace his shirt that was torn during the struggle, the victim was able to use

her cell phone to dial 911 and, without making a complaint, alert the police dispatcher of her

location. Eventually, the Defendant and the victim both “calmed down” and the physical

altercation ceased. According to the victim, she lay in bed with the Defendant for some

fifteen minutes and planned to leave after he fell asleep, but when the police arrived at the

residence, the Defendant “wouldn’t let [her] get up and answer the door.” She acknowledged

that they initially believed the knock at the door may have come from a neighbor, and that

the Defendant answered the door after approximately ten minutes. The victim estimated that

she attempted to leave three times during the course of the altercation.

A harmless error analysis is necessarily imprecise, requiring that appellate courts

assess the cold, written record rather than seeing and hearing the witnesses firsthand.

Because of these limitations, we cannot say that the omission of the White instruction

qualified as harmless beyond a reasonable doubt. The victim offered conflicting testimony

asto who initiated the physical altercation, whethershe inflicted wounds upon the Defendant,

and when she may have been able to leave the Defendant’s residence. The trial judge

expressed doubts about the propriety of a separate conviction for false imprisonment, making

the following observations at the sentencing hearing:

[O]n the false imprisonment case there’s evidence that the victim went out of

the residence one time and then returned. But I guess the overall evidence

suggests that that occurred before the injuries were inflicted, before the assault

actually occurred.

These two offenses are so intertwined that I think it would be

inappropriate to order a consecutive sentence. Because very much like a

burglary and robbery might involve a detention of a person against their will

for some period of time, it might not justify a separate conviction or . . .

consecutive sentences for the kidnapping or false imprisonment aspect of that.

And there might not have been a holding or detaining against the victim’s will,

but for the [D]efendant’s reluctance to let officers see her in the condition she

was in at that time, emotionally and physically.

(Emphasis added.) Similarly, when discussing his role as the thirteenth juror at the hearing

on the motion for a new trial, the trial judge expressed doubt as to whether the confinement

was substantial enough to support a separate conviction for false imprisonment:

I do want to affirmatively express at this time, as the [thirteenth] juror,

that the evidence was strong enough to have satisfied this Judge beyond a

-15-
reasonable doubt . . . of both the assault and the false imprisonment. And yet,

the injuries were not horrible and the victim did take herself voluntarily to his

residence, at a very late hour of the night, and left the mobile home . . . at least

once during the evening, went to her car, and came back in voluntarily.

. . . .

[T]he point being, she went there voluntarily, she stayed there, she went out,

she returned voluntarily, and that probably cut both ways. It showed that at

least . . . earlier during the time frame she was there, she was not being falsely

imprisoned.

But it did appear from the record that she was being, maybe, held

against her will at the time the officers were trying to get [their] attention, even

though she’d used her phone to summon the officers by dialing 911 and

leaving the line open . . . .

(Emphasis added.)

The record supports this assessment. On one hand, the evidence could support a

finding that the Defendant intended only to assault the victim, and that any removal or

confinement of the victim—such as dragging her into the bathroom—was in furtherance of

that goal, making it essentially incidental to the assault. On the other hand, the evidence

could support a finding that the removal or confinement of the victim was greater than that

necessary to accomplish the assault, particularly in light of the victim’s implication that the

Defendant may have prevented her from answering the door when the police arrived. From

our review of the record, it is impossible to determine beyond a reasonable doubt whether

there was a removal or confinement of the victim that was not essentially incidental to the

assault. We cannot, therefore, conclusively say that a properly instructed jury would have

found that the Defendant’s actions toward the victim constituted a substantial interference

with her liberty. See White, 362 S.W.3d at 579 (“In our view, this proof could be interpreted

in different ways and, therefore, the determination of whether the removal or confinement

of [the victim] constituted a substantial interference with her liberty was a question of fact

for the jury to resolve.”).

III. Conclusion

The Court of Criminal Appeals erred by conducting a sufficiency of the evidence

analysis rather than a harmless error review. Because the question of whether the removal

or confinement of the victim was essentially incidental to the accompanying offense of

assault is one for the jury to decide as a matter of fact, and the proof in this case could be

-16-
interpreted in different ways, we cannot conclude that the absence of the White instruction

was harmless beyond a reasonable doubt. The conviction for false imprisonment is reversed

and the cause is remanded for a new trial. The judgment of the Court of Criminal Appeals

is affirmed in all other respects. Costs of this appeal are taxed to the State of Tennessee.

_________________________________

GARY R. WADE, CHIEF JUSTICE

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