IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
December 15, 1997
FOR PUBLICATION
Cecil Crowson, Jr.
Appellate C ourt Clerk
Filed: December 15, 1997
STATE OF TENNESSEE, )
)
Appellant, ) HAMILTON CRIMINAL
)
v. ) Hon. Douglas A. Meyer
)
RICKY MICHAEL DIXON, ) No. 03S01-9704-CR-00043
)
Appellee. )
FOR APPELLANT: FOR APPELLEE:
John Knox Walkup Jerry S. Sloan
Attorney General & Reporter Chattanooga
Michael E. Moore
Solicitor General
Elizabeth T. Ryan
Assistant Attorney General
OPINION
APPELLATE COURT REVERSED HOLDER, J.
OPINION
The appellant, Ricky Michael Dixon, was convicted of aggravated
kidnapping, aggravated assault, and attempted sexual battery. He was
sentenced to twenty years for aggravated kidnapping, fifteen years for
aggravated assault, and eleven months and twenty-nine days for attempted
sexual battery. The sentences were ordered to run concurrently. The appellate
court reversed the aggravated assault and attempted sexual battery convictions
pursuant to State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We reverse the
appellate court and affirm the convictions.
BACKGROUND
On September 6, 1992, the victim was walking home along a lighted
street when the defendant approached her from behind and grabbed her. 1 She
testified that the defendant "pinned [her] down with one of his arms and covered
[her] mouth with the other." He lifted her and "slammed [her] to the ground." He
positioned his hands around her neck and began choking her. He then dragged
her approximately thirty to forty feet from the illuminated sidewalk into or behind
foliage growing on the back of an adjacent vacant lot.2
After the defendant dragged the victim into the bushes on the vacant lot,
he forced her to pull down her jeans. He then removed her underwear. The
defendant was unable to engage in sexual intercourse as the victim resumed
1
W hile the continuing validity of State v. Anthony under the 1989 Criminal Code has been
question ed, see e.g., State v. Jo hnny L. Sm ith, CC A No . 02C 01-9 602 -CR -000 61 (T enn . Crim .
App., Jackson, M ay 15, 1997), the due process principles of Anthony and the te st design ed to
implem ent them are equ ally applicable to kidnap ping con victions un der the law in effect bo th
before and after the effective date of the 1989 Criminal Code Revision.
2
The distance was estimated in court by the prosecutor walking away from a witness
toward the rear of the courtroom. While argument of counsel is not evidence, the prosecutor
noted du ring argu men t that this distan ce app eared to be appr oxim ately thirty to forty feet.
2
efforts to ward off the assault. He, however, grabbed her by the hair and forced
her to perform fellatio on him.
The victim attempted to flee to a nearby house to summon help. The
defendant pulled her back and began beating her causing a facial fracture. He
then removed her remaining garments. He positioned himself on top of her and
began choking her again until she ceased fighting. The victim testified that the
defendant digitally penetrated her. She then thrust her fingers into the
defendant's eyes and "ran screaming" and unclothed to a nearby house.
The defendant testified. His version of the events in question conflicted
with that of the victim. He asserted that the victim informed him he could spend
the evening at her home. As they were walking toward her house, the victim and
the defendant stopped at a vacant lot located approximately four houses from
the victim's home. They walked into the lot and sat down. He alleged that the
victim began to perform consensual oral sex on him. They then exchanged
words and a physical confrontation ensued.
A jury convicted the defendant of aggravated kidnapping, aggravated
assault, and attempted sexual battery. The Court of Criminal Appeals found that
kidnapping was essentially incidental to both aggravated assault and attempted
sexual battery pursuant to State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The
appellate court reversed the aggravated assault and attempted sexual battery
convictions.
3
ANALYSIS
This court has recognized that separate kidnapping convictions may
violate due process when kidnapping is essentially incidental to other offenses
for which a defendant has been convicted. In State v. Anthony, 817 S.W.2d 299
(Tenn. 1991), this Court heard consolidated appeals and delineated the standard
for determining whether kidnapping was essentially incidental to an underlying
offense. In Anthony, the defendants were convicted of robbing a Shoney's
Restaurant. The restaurant had just closed. Behind the establishment there
were three employees emptying garbage into a dumpster. The defendants
approached the three outside employees and forced them at gun-point to lie on
the ground. One defendant remained with the three outside employees while the
other defendant entered the restaurant.
The defendant entering the restaurant initially encountered two additional
employees inside the restaurant. The defendant ordered, at gun point, the two
employees to an office in the back of the restaurant. When they arrived at the
office, the defendant demanded that the safe be opened. The defendant was
then informed that the safe was in the front of the restaurant by the cash register.
The defendant then instructed one of the employees to lie on the floor of the
office as he and the other employee went to the front of the restaurant. After
taking money from the safe, the defendant encountered a third employee exiting
a restroom. The defendant pointed his gun at the employee and instructed him
to "get back in the men's room and stay there." The defendants then fled the
scene. The entire episode lasted approximately five minutes.
State v. Martin, the case consolidated with Anthony, also involved a
kidnapping conviction in conjunction with an underlying robbery conviction. In
4
Martin, the defendant entered an insurance agency. He then robbed, at gun
point, two people inside the agency. After receiving approximately $ 200, he
ordered both victims into a bathroom where they remained until the defendant
exited the building. The entire episode lasted approximately four minutes.
The defendants in both Anthony and Martin were convicted of aggravated
kidnapping and armed robbery. The issue with which we were confronted in
Anthony was whether movements or confinements merely incidental to robbery
should sustain separate kidnapping convictions. We held that a kidnapping
conviction violated due process when predicated on movement or confinement
that was merely incidental to an accompanying felony and not "significant
enough, in and of itself, to warrant independent prosecution." Id. at 306. We
reversed the kidnapping convictions holding that the kidnappings were
essentially incidental to the robberies based on the following findings: (1) the
removal or confinement did not substantially increase the risk of harm to the
victims; (2) the victims' movement was slight; (3) the confinement was brief; and
(4) the victims "were not harmed in any way." Id. at 307.
Approximately one year later, this Court applied Anthony to a case in
which the defendant had been convicted of aggravated rape, aggravated
robbery, and aggravated kidnapping. In State v. Colemen, 865 S.W.2d 455
(Tenn. 1993), the defendant robbed a store. He forced the victim at gun point to
empty the cash register's contents into a bag. He then ordered the victim to the
back of the store and into a "side room" where he raped her at gun point. This
Court reversed the kidnapping conviction finding that the abduction was
essentially incidental to the robbery.
5
Anthony and its progeny, however, are not meant to provide the rapist a
free kidnapping merely because he also committed rape.3 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 of rape or robbery. Accordingly, any restraint in addition to that
which is necessary to consummate rape or robbery may support a separate
conviction for kidnapping.
In the case now before this Court, Dixon was charged with kidnapping for
seizing or confining the victim to "facilitate the commission of any felony or flight
thereafter, or to terrorize the victim or another, or where the victim suffered
serious bodily injury . . . ." Our current aggravated kidnapping statute does not
require a particular distance of removal or any particular duration or place of
confinement. One commits aggravated kidnapping who knowingly removes or
confines another "so as to interfere substantially with the other's liberty": (1) to
facilitate the commission of any felony or flight thereafter; (2) with intent to inflict
serious bodily injury on or to terrorize the victim or another; or (3) where the
victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-305. Accordingly,
3
See Coram v. Com mon wealth , 352 S.E.2d 532 (Va. Ct. App. 1987) (moving victim 20
feet into bushes to facilitate rape attempt constituted kidnapping because the movement
increased the possibility of harm to victim by lessening the chance that the crime would be
detecte d); Lee v. Sta te, 932 S.W.2d 756 (Ark. 1996) (affirming kidnapping where man grabbed
woman from lighted sidewalk and dragg ed her approxim ately 1 block to back of building where
there wa s no light to ra pe her); State v. Jones, 575 A.2d 216 (Conn. 1990) (grabbing jogger from
center of road and dragging he r completely off road provided sufficient movem ent for kidnapping);
Davis v. S tate, 348 S.E.2 d 730 , 732 (Ga . Ct. A pp. 1 986 ) (aff irm ing k idnap ping w here victim
forcibly carrie d to area behind h er hous e prior to rap e); State v. Davidson, 335 S.E.2d 518 (N.C.
Ct. App. 1985) (moving victims 35 feet at gun point prior to binding them constituted kidnapping
and rob bery bec ause m ovem ent was unnec essary to c omp letion of rob bery); Harris v. S tate, 774
S.W.2d 121 (Ark. 1989) (affirming kidnapping conviction where defendant twice chased and
dragge d victim b ack into building); State v. Richmond, 827 P.2d 743 (Kan. 1992) (holding
dragging victim from front of house and to bedroom lessened risk of detection and binding her
during se cond ra pe sup ported s eparate kidnap ping con viction); State v. Rich, 305 N.W.2d 739
(Iowa 1981) (dragging victim into vacant restroom lessened rick of detection and binding her
wrists no t norm ally incident to rap e); State v. Lykken, 484 N.W.2d 869 (S.D. 1992) (holding
confine men t of four ho urs not n ecess ary to com plete individua l acts of rap e which la sted fifteen to
twenty m inutes su pported conse cutive se ntence s for kidn apping a nd rape conviction s); State v.
Gordon, 778 P.2d 1204 (Ariz. 1989) (holding confinement in victims apartment, beating, and rape
suppo rted con secutive senten ces for kidnap ping and rape); State v. Warner , 626 A.2d 205 (R .I.
1993) (finding four or five hour detention on boat sufficient to support separate kidnapping
conviction ); Faison v. State , 399 So. 2d 19 (Fla. 3d DCA 1981) (moving victim front room to back
of building to lessen risk of detection supported separate rape con viction).
6
it is the purpose of the removal or confinement and not the distance or duration
that supplies a necessary element of aggravated kidnapping.
Dixon grabbed the victim from behind and slammed her onto the ground.
He then dragged her from a sidewalk along a lighted street across a vacant,
empty and unlit lot to a location concealed from the road by foliage. He then
beat and forcefully undressed the victim. The victim testified that Dixon forced
her to perform fellatio on him and that he digitally penetrated her before she was
able to break free. She then ran unclothed to a nearby house to summon help.
Initially, we note that the kidnapping was not incidental to the aggravated
assault. The brutal beatings were not necessary for the commission of either the
kidnapping or the attempted sexual battery. Likewise, the movement to the back
of the vacant lot was not necessary for commission of the aggravated assault.
Accordingly, the aggravated assault was an act independent of both the
kidnapping and the attempted sexual battery and should not have been
reversed.
We must now decide whether the movement or confinement was beyond
that necessary to consummate the act of attempted sexual battery. Anthony,
817 S.W.2d at 306. If so, the next inquiry is whether the additional movement or
confinement: (1) prevented the victim from summoning help; (2) lessened the
defendant's risk of detection; or (3) created a significant danger or increased the
victim's risk of harm. Id.
We find that the defendant's act of dragging the victim approximately thirty
to forty feet after the initial assault was beyond that necessary to complete the
attempted sexual battery. Had Dixon confined and attempted to sexually
7
penetrate the victim where he initially physically assaulted her, the confinement
would have been merely incidental to the attempted sexual battery. Dixon's
movement of the victim to the back of a dark lot, however, exceeded that
restraint necessary to consummate the act of attempted sexual battery.
Accordingly, we now focus on the second inquiry.
The evidence introduced at trial indicates that Dixon did not choose the
back of the vacant lot behind the bushes for the personal comfort of himself or
the victim during the attempted sexual battery. He forcefully dragged the victim
to the secluded location to avoid detection. The investigating officer testified that
the entire incident would have been visible from the street had Dixon not
removed the victim from the location where he initially assaulted her. The officer
testified that Dixon's movement of the victim to the back of the dark and vacant
lot, however, precluded one from visually witnessing the assault from the street.
Accordingly, we find that Dixon's movement of the victim lessened the risk of
detection and substantially increased the risk of harm to the victim. See Coram
v. Commonwealth, 352 S.E.2d 532 (Va. 1987) (moving victim 20 feet into bushes
to facilitate rape attempt constituted kidnapping because the movement
increased the possibility of harm to victim by lessening the chance that the crime
would be detected).
The circumstances of the present case are distinguishable from both
Anthony and Coleman. In Anthony, the movement or confinement did not
exceed that normally incident to robbery. In Coleman, while there was
movement which exceeded that necessary to consummate the act of rape, there
was no finding that the movement decreased the probability of detection,
prevented the victim from summoning help, or increased the risk of harm. In the
case now before us, we have testimony that the movement lessened the risk of
8
detection. The lessened risk of detection increased the risk of harm to the
victim. Moreover, the victim sustained serious bodily injuries.
The judgment of the Court of Appeals reversing the aggravated assault
and attempted sexual battery convictions is reversed, and the convictions are
reinstated. Cost of this appeal shall be taxed to the defendant, Ricky Michael
Dixon, for which execution may issue if necessary.
Janice M. Holder, Justice
Concurring:
Anderson, C.J.
Drowota, J.J.
Dissenting:
Reid and Birch, J.J.
9