Christopher Fielder v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 24, 2014 at Knoxville

CHRISTOPHER FIELDER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 08-03221 John W. Campbell, Judge

No. W2013-02252-CCA-R3-PC - Filed August 22, 2014

The Petitioner, Christopher Fielder, appeals from the Shelby County Criminal Court’s denial
of post-conviction relief, contending that he received the ineffective assistance of counsel
at trial. Specifically, the Petitioner alleges that trial counsel failed to request a jury
instruction on merger of the offenses, tasking it with determining whether the kidnapping of
the victim was beyond that necessary to complete the especially aggravated robbery. After
considering the record and the applicable authorities, we affirm the judgment of the post-
conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OBERT W. W EDEMEYER, J., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Christopher Fielder.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney
General; for the appellee, State of Tennessee.

OPINION
FACTUAL BACKGROUND

This case arose from the December 28, 2007 robbery and kidnapping of Jason Seitz
(the victim). The Petitioner and his two co-defendants, Korry Hernandez and John Karcher,
were indicted on May 13, 2008, for the especially aggravated robbery and especially
aggravated kidnapping, both Class A felonies, of the victim. The Petitioner was later tried
and convicted of both offenses by a Shelby County jury on March 25, 2009. The trial court
sentenced the Petitioner to serve twenty years for each conviction, concurrently, for an
effective twenty-year sentence. See State v. Christopher Fielder, No. W2009-01663-CCA-
R3-CD, 2011 WL 3689134, *1 (Tenn. Crim. App. Aug. 22, 2011), perm. app. denied, (Tenn.
Dec. 13, 2011). The Petitioner then appealed to this court, challenging the sufficiency of the
evidence and “arguing that (1) the trial court improperly applied enhancement factors; (2) the
trial court erroneously failed to apply appropriate mitigating factors; and (3) his sentences
are excessive and disproportionate when compared with the sentences received by his
co-defendants.” Discerning no error, this court affirmed the Petitioner’s convictions and
sentences; our supreme court declined to review this court’s determination. See id.

The following factual background for the Petitioner’s convictions was provided in this
court’s opinion on direct appeal.

The victim, Jason Seitz, testified as follows. On December 28, 2007,
Mr. Seitz went to Korry Hernandez’s house in Memphis to sell cocaine to John
Karcher a/k/a “Droopy.” The sale occurred outside the house in Mr. Seitz’s car
and he left. Approximately two hours later, Mr. Karcher called the victim
again and asked him to bring more cocaine. The victim returned in about thirty
minutes and honked the horn to have Mr. Karcher come outside for the
transaction. A woman came out and told the victim the men were gone but
would return soon, and invited the victim to come inside. Since he had known
Mr. Karcher for some time, the victim went inside and waited.

Soon, Mr. Karcher, [the Petitioner], and Korry Hernandez arrived. They
went into the kitchen. Mr. Hernandez stated he did not like the quality of the
drugs previously brought, and wanted a “tax” for allowing Mr. Seitz to use Mr.
Hernandez’s scales for weighing the cocaine. In order to avoid further
confrontation, Mr. Seitz tossed some cocaine down and started to leave the
house. [The Petitioner] locked the door and blocked Mr. Seitz’s access to the
doorway. The victim made a statement to the effect of “what’s going on” and
was struck by an object in the back of his head. The victim went down on his
knees, and all three of the other men “jumped” on him and commenced to
repeatedly kick and hit him. As the assault continued to take place, the men
threatened the victim, asked him where the rest of his money was, threatened
to kill his family, and took all of his money in his pockets plus his car keys,
drugs, wallet, identification, and his shoes. Despite the victim’s pleas to stop,
[the Petitioner] and the other two men continued the assault.

At Mr. Hernandez’s instruction, [the Petitioner] brought an electric
circular saw, referred to by the witnesses by a brand name, “Skil” saw, to Mr.
Hernandez. While Mr. Karcher was on top of the victim on the floor, [the

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Petitioner] held down the victim’s arm. Mr. Hernandez plugged the saw into
an electrical outlet and turned it on. Mr. Hernandez then threatened to cut off
the victim’s hand. When the victim was able to pull his arm away from the
saw, Mr. Hernandez threatened to cut the victim’s face while holding the
turned-on “Skil” saw near the victim’s head.

By this time, the victim was bleeding profusely. Someone put a
pillowcase over his head to keep the blood from spreading. This obstructed his
vision, but the victim added that “[m]y eyeball had already popped out [of] the
socket and my whole ocular bone was broke. I couldn’t see anyway.” With the
pillowcase still on his head, the victim was taken outside and put into the back
seat of his own vehicle, a 2004 Jaguar. Mr. Karcher restrained the victim in the
car. The victim was then driven away. He complained that his ribs were broken
and he could not breathe. Mr. Karcher continued to hit the victim on the head
and told the victim he was “about to die.” Eventually, the car stopped and the
victim was thrown out. The victim stated he could hear all three men talking.
He was kicked and hit some more after being thrown from his car, and then his
car was driven away. The victim went to a house and “banged” on the door and
told the woman there to call an ambulance. The victim [lay] on the porch until
the ambulance arrived and took him to Methodist Hospital North where he was
treated for his injuries.

The victim testified that as a result of the attack upon him by [the
Petitioner], Mr. Hernandez, and Mr. Karcher, he received twenty-two staples
in his head, he had a dislocated jaw, a broken ocular bone, (his eye actually
“came out”), a broken rib, and he passed blood in his urine for approximately
one month. Regarding pain, the victim said that for the first week after the
incident, he was confined to the couch; “everything” was sore–his head, chest,
neck, back, ribs, and he also hurt internally.

Because [the Petitioner] and the co-defendants threatened the victim
and his family, and because the victim was scared that he might be prosecuted
for selling drugs, he initially lied to police officers about how he was injured.
When confronted by officers that his story did not “add up,” the victim then
told the truth. He identified [the Petitioner] and the co-defendants from
photograph line-ups presented to him, and identified [the Petitioner] at trial.

Heather Bierbrodt, keeper of the patient records for Methodist Hospitals
in Memphis, brought a copy of the victim’s medical records which was made
an exhibit at trial. She testified, concerning injuries noted in the records, that

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the victim had a contusion of the face, an orbital fracture, a laceration to his
scalp, and a contusion to his scalp.

Officer Tyont Shabazz of the Memphis Police Department testified that
he and his partner pulled over, and then chased, two individuals who were in
the victim’s Jaguar vehicle on the night of December 28, 2007. After receiving
a dispatched broadcast of the stolen vehicle and general direction it was
believed to be traveling, Officer Shabazz parked and waited. They saw the
vehicle, pulled in behind it, and confirmed through the license plate number
that it was the vehicle reported as stolen. They turned on the blue lights and the
Jaguar, with two occupants, came to a stop. However, just after Officer
Shabazz exited his patrol car, the Jaguar took off. An ensuing chase resulted
in the Jaguar wrecking through a fence at an apartment complex. The two
occupants, including [the Petitioner], ran off in different directions. The
officers gave chase and momentarily lost sight of [the Petitioner], but
ultimately found him out of breath in a stairwell to a basement door at a
church. [The Petitioner] was taken into custody. No money or drugs were
found in [the Petitioner]’s possession.

John Karcher, one of the co-defendants, testified that he was guilty of
especially aggravated robbery and especially aggravated kidnapping of the
victim. Mr. Karcher stated that he had accepted an effective sentence of “13.5
years at 100%” for his truthful testimony in [the Petitioner]’s trial. Mr. Karcher
had known the victim for about a year prior to the crimes, and had previously
bought cocaine from the victim. Mr. Karcher called the victim both times on
the day of the incident. After the victim came inside the house on his second
trip there to sell cocaine, [the Petitioner] and Mr. Hernandez returned to the
house. The victim and Mr. Hernandez went into the kitchen. They were
arguing about the cocaine previously supplied and Mr. Hernandez said he
wanted the victim to pay a “tax” on the use of Mr. Hernandez’s scales. The
victim threw a bag of cocaine and started to leave. [The Petitioner] then locked
the door and Mr. Hernandez hit the victim in the back of his head. All three
men then started punching and kicking the victim while he was down on the
floor.

[The Petitioner] took money and keys out of the victim’s pockets. Mr.
Hernandez grabbed a “circular saw” and instructed [the Petitioner] to hold
down the victim’s hand. Mr. Hernandez turned on the electric saw and held it
in a threatening manner toward the victim. Someone put a pillowcase over the
victim’s head and placed the victim into the back seat of his car. Mr. Karcher

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and Mr. Hernandez left with the victim in the victim’s car. [The Petitioner]
followed as a passenger in a car driven by Mr. Hernandez’s sister, who was
also at the house. Mr. Hernandez was driving the victim’s car and Mr. Karcher
was in the back seat with the victim. After driving for a while, they stopped
and put the victim out of his vehicle. Then [the Petitioner] and Mr. Karcher
swapped vehicles they were riding in, so that [the Petitioner] left as a
passenger in the victim’s vehicle. Mr. Karcher stated that he saw “a lot of [the
victim’s] blood” on the floor at the house. He reiterated that all three men were
kicking and punching the victim at the house.

The other co-defendant, Korry Hernandez, also testified under the same
plea agreement terms and conditions as Mr. Karcher. Mr. Hernandez also
admitted that he was guilty of the crimes. Mr. Hernandez’s testimony was very
similar to the testimony by Mr. Karcher. Mr. Hernandez admitted hitting the
victim in the back of the head with brass knuckles after the victim pushed [the
Petitioner] when [the Petitioner] had locked the door and was blocking the
victim’s access to the door. Mr. Hernandez confirmed that all three men were
kicking and punching the victim while he was down on the floor. He stated
that there was a lot of blood on the floor and he got a towel to clean it up. Mr.
Hernandez admitted that he turned on the electric Skil saw to frighten and
threaten the victim while Mr. Karcher lay on top of the victim and [the
Petitioner] stepped on the victim’s hand to hold it down. Mr. Hernandez
acknowledged that they took the victim’s money, cocaine, keys, and his cell
phone. Mr. Hernandez also confirmed the other witnesses’ testimony about
taking the victim away, putting him out of his car, leaving in the car, the police
chase, and the wreck.

John Poindexter, an officer with the Memphis Police Department,
testified that he was the case investigator in the victim’s case. In the course of
the investigation, he interviewed the victim. In particular regard to the victim’s
injuries, Officer Poindexter testified that when the victim had to sneeze, he
covered his injured eye because the medical staff had advised him that the
action of sneezing could cause his eye to come out again. He also observed
that the victim had “twenty-four [sic] staples that closed the wounds to his jaw
which was also dislocated below his left eye.” Officer Poindexter stated that
the victim picked out [the Petitioner] and the co-defendants from three
separate photo line-ups (one for each perpetrator). He also interviewed [the
Petitioner] and took a written statement from him. [The Petitioner] admitted
in the statement that he was present when the victim was robbed and
kidnapped, but denied any involvement in the incident. In [the Petitioner]’s

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words, “I witnessed it, but I didn’t participate.” [The Petitioner] did not
mention Mr. Hernandez in his statement to police. [The Petitioner] told police
that “Droopy” (Mr. Karcher) was the only person who hit the victim. [The
Petitioner] stated that Mr. Karcher hit the victim in the back of his head with
brass knuckles, and also kicked him a few times. [The Petitioner] stated that
Mr. Karcher took the stuff out of the victim’s pockets, put a pillowcase over
the victim’s head and shoved the victim into the back seat of the victim’s car,
and drove off. He told the police about getting into the victim’s vehicle after
the victim had already been tossed out, the police chase, and being
apprehended by the police. [The Petitioner] acknowledged that at the house,
“[a]t one point I was standing in front of the door. I think I checked to see if
it was locked and natural instinct to block it so the guy [the victim] couldn’t
get out.”

The State rested its case at the conclusion of Officer Poindexter’s
testimony. [The Petitioner] testified in his defense as follows. He was at Korry
Hernandez’s house on the day the victim was robbed. [The Petitioner] had
been there since spending the previous night at the house. Also present was
Mr. Hernandez, Mr. Hernandez’s sister, and Mr. Karcher. They had been
“partying,” consuming beer, whiskey, marijuana, and cocaine. [The Petitioner]
had known Mr. Hernandez for quite a few years, and had met Mr. Karcher a
week or so before the incident involving the victim. The victim brought
cocaine, left, and some time later was called and asked to bring more cocaine.
[The Petitioner] was temporarily away from the house when the victim came
the second time. He locked the door because there was “drugs in the house.”
He heard Mr. Hernandez and the victim arguing. [The Petitioner] testified that
he walked to the front door as the victim was headed toward the door. [The
Petitioner] stated that he was planning to unlock the door for the victim, but
the victim became aggressive and pushed [the Petitioner]. Mr. Hernandez then
came running toward the victim. The victim hit the ground, and Mr. Karcher
and Mr. Hernandez kicked and beat the victim. [The Petitioner] added that “I
don’t remember exactly whether I physically beat him or not.” [The Petitioner]
did not deny beating the victim, and he did acknowledge that he “might” have
beat the victim.

[The Petitioner] admitted in his testimony that he stepped on the
victim’s hand while the Skil saw was being used. [The Petitioner] denied
taking any property from the victim. [The Petitioner] confirmed that the victim
was placed into the back seat of his own car, and Mr. Karcher also got into the
back seat and Mr. Hernandez drove the victim’s car. Mr. Hernandez told his

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 sister to follow them. [The Petitioner] testified that he got into the car with Mr.
Hernandez’s sister because “[i]t’s not really my house. I wasn’t really
supposed to stay there. I suppose I could have taken off walking or
something.”

[The Petitioner] described how Mr. Karcher dropped the victim out of
the victim’s car and then the car was driven away with only Mr. Hernandez
and Mr. Karcher inside. The two vehicles went to a gas station, and [the
Petitioner] got into the victim’s car along with Mr. Hernandez, and Mr.
Karcher got into the other vehicle. He then testified that he did not tell the
police about Mr. Hernandez’s involvement in his ([the Petitioner]’s) statement
to the police because the police did not already know about Mr. Hernandez
being involved. During cross-examination, [the Petitioner] admitted the he had
made sure the front door of the house was locked and stood at the door to
make sure the victim could not escape. [The Petitioner] also admitted holding
down the victim’s hand so Mr. Hernandez “could scare him” with the Skil saw.
[The Petitioner] confirmed that money (at least $100.00), keys, and “maybe”
a cell phone were taken from the victim.

Id. at *1-5.

After his convictions were affirmed on appeal, the Petitioner filed a petition for post-
conviction relief. Counsel was appointed, and two amended petitions were filed, alleging
numerous bases for relief.1 In the second amended petition, the Petitioner argued that trial
counsel was ineffective for failing to seek a merger of the Petitioner’s offenses and request
a jury instruction requiring the jury to determine whether the kidnapping was incidental to
the robbery. An evidentiary hearing was held on August 2, 2013. The following evidence,
relevant to this appeal, was presented at that hearing.

The Petitioner agreed that his convictions in the instant case arose out of a “drug deal
gone bad.” He testified that he entered the home of one of the co-defendants and that the
victim was inside. The Petitioner explained that he locked the door “because a drug deal was
about to take place.” When he was locking the door, the victim came at him aggressively,
and that was when one of his co-defendants hit the victim in the head; the robbery ensued
thereafter. Once the robbery was complete, the co-defendants placed the victim in the
victim’s car and drove away; he followed as a passenger in one of his co-defendant’s

1
In this appeal, the Petitioner abandons all other bases for relief save the basis alleged in the second amended
post-conviction petition. Therefore, our review of all other grounds for relief has been waived. As such, we
will limit our procedural account and analysis to the sole allegation pursued on appeal.

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relatives’ car. The Petitioner testified that trial counsel never told him that his especially
aggravated robbery and especially aggravated kidnapping convictions could be merged and
that he was never aware of that possibility. On cross-examination, he insisted that he never
participated in removing the victim from the co-defendant’s house, or placing the victim in
the car, or the subsequent “dumping” of the victim out of the car and into someone’s yard.
The Petitioner also explained that he did not ride in the car during that kidnapping or
participate in any other way. However, he did admit that he followed the co-defendants in
a separate car; that, after they dumped the victim, he met the co-defendants at a gas station
and got into the victim’s car; and that he was subsequently apprehended by police after
fleeing the victim’s car.

Trial counsel testified that she had been practicing law since 1999, that she was a
public defender from 1999 to 2009, and that she had tried many cases prior to the
Petitioner’s, noting that she tried nine cases in 2009 alone. Trial counsel further testified that
she did not mention the merger argument to the Petitioner nor did she pursue it, explaining,

Again, legally I couldn’t make that argument because there were two
actual confinements. Because of the confinement in the house, I believe his
testimony in his statement mentioned that when the argument started[,] he
slipped and locked the door at that time. And then there was a removal of the
victim from the house so legally I could not make that argument. There were
two separate incidents where he was actually kidnapped.

The post-conviction court found,

[T]he [P]etitioner presented no testimony that established that trial
counsel’s efforts fell below the standard of competent counsel. The
[P]etitioner offered nothing, except generalizations, concerning errors by trial
counsel. No proof was offered that showed that critical witnesses were
available and could have offered testimony that could have made a difference
at trial. . . . [The] Petitioner has the burden to establish his claims for relief. .
. . [He] has not met his burden of proof on this issue[,] and the claim is denied.

Specifically on the issue of merger, the post-conviction court found that, contrary to
the Petitioner’s assertions,

the facts of the [P]etitioner’s case do not fall within the type of case that was
causing concern in [State v.]Anthony[, 817 S.W.2d 299 (Tenn. 1991)] or [State
v. ]White[, 362 S.W.3d 599 (Tenn. 2012)]. The facts of the [P]etitioner’s case
show that the victim was beaten in his home then placed in a car and removed

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 from the premises. This is not a case where the false imprisonment was
incidental to the Aggravated Robbery. In light of the facts of this case, failure
to charge the jury in line with [the] White decision would have been harmless
error beyond a reasonable doubt. This issue is without merit.

Post-conviction relief was denied, and this appeal followed.

ANALYSIS

On appeal, the Petitioner contends that he received the ineffective assistance of
counsel at trial. Specifically, the Petitioner alleges that trial counsel failed to request a jury
instruction on merger of the offenses, requiring the jury to determine whether the kidnapping
of the victim was beyond that necessary to complete the especially aggravated robbery. The
State responds that the post-conviction court properly denied relief to the Petitioner because
White did not create a new rule of law requiring retroactive application.2

Petitions for post-conviction relief are governed by the Post-Conviction Procedure
Act. Tenn. Code Ann. §§ 40-30-101 to -122. To obtain relief, the petitioner must show that
his conviction or sentence is void or voidable because of the abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The petitioner must prove his factual allegations
supporting the grounds for relief contained in his petition by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(2)(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is clear and convincing when there is no substantial doubt about the
accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998).

The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence in the record preponderates against them. See Nichols v. State, 90 S.W.3d 576, 586
(Tenn. 2002) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)); see also Fields v.
State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The petitioner has the burden of establishing
that the evidence preponderates against the post-conviction court’s findings. Henley v. State,
960 S.W.2d 572, 579 (Tenn. 1997). This court may not re-weigh or reevaluate the evidence
or substitute its inferences for those drawn by the post-conviction court. Nichols, 90 S.W.3d
at 586. Furthermore, the credibility of the witnesses and the weight and value to be afforded

2
The State solely argues the inapplicability of White and does not address the issue under Anthony and its
progeny as argued by the Petitioner in his brief. Although the Petitioner does mention analyzing this case
under White, it is only advanced as an alternative if this court declines to apply the Anthony line of cases.

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their testimony are questions to be resolved by the post-conviction court. Bates v. State, 973
S.W.2d 615, 631 (Tenn. Crim. App. 1997).

Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are regarded as mixed questions of law and
fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). Thus, the post-conviction
court’s findings of fact underlying a claim of ineffective assistance of counsel are reviewed
under a de novo standard, accompanied with a presumption that the findings are correct
unless the preponderance of the evidence is otherwise. Fields, 40 S.W.3d at 458 (citing Tenn.
R. App. P. 13(d)). The post-conviction court’s conclusions of law are reviewed under a de
novo standard with no presumption of correctness. Id.

Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockart v. Fretwell, 506 U.S. 364, 368-72
(1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. See Henley, 960 S.W.2d at 580. The
performance prong requires a petitioner raising a claim of ineffectiveness to show that
counsel’s representation was deficient, thus fell below an objective standard of
reasonableness or was “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. The prejudice prong requires a petitioner to demonstrate that
“there is a reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability means a
probability sufficient to undermine confidence in the outcome.” Id. Failure to satisfy either
prong results in the denial of relief. Id. at 697, 700. The Strickland standard has also been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution. State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland, 466 U.S. at 687; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In reviewing
counsel’s conduct, a “fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. Deference is made to trial strategy or tactical choices if
they are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). “Thus, the fact that a particular strategy or tactic failed or even hurt the defense

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does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

The sole argument advanced on appeal in support of the Petitioner’s ineffective
assistance of counsel claim is that trial counsel failed to request a merger of the Petitioner’s
especially aggravated robbery and especially aggravated kidnapping convictions. Trial
counsel testified that she could not advance this argument because there were two separate
kidnapping incidents surrounding the robbery. Denying post-conviction relief, the post-
conviction court found that the facts of the Petitioner’s case reflected that it did not fall
within the type of case causing the court concern in Anthony or White because the “false
imprisonment was [not] incidental to the Aggravated Robbery.” Although Anthony and its
progeny were overruled by White and are no longer good law, we must analyze this issue
under the former’s dictates because the Petitioner’s trial took place in 2009 and such was the
prevailing law at the time.3

In Anthony, our supreme court first addressed the issue of whether movement
incidental to an underlying crime such as robbery would be sufficient to sustain a separate
kidnapping conviction. Anthony, 817 S.W.2d at 299. Expressing due process concerns, the
court announced that the test of whether the kidnapping should be sustained was “whether
the confinement, movement, or detention is essentially incidental to the accompanying felony
. . . or whether it is significant enough, in and of itself, to warrant independent prosecution.
. . .” Id. at 306. Later, in State v. Dixon, 957 S.W.2d 532, 535 (Tenn.1997), our supreme
court modified Anthony:

In place of the Anthony “essentially incidental” analysis, we crafted an
improved, two-part test in Dixon to determine whether a separate kidnapping
conviction violates due process. First, we must determine if the movement or
confinement of the victim was beyond that necessary to consummate the
accompanying crime. This first prong of the Dixon test is a threshold
determination. A showing that the movement or confinement was merely
helpful to the commission of the accompanying crime will not establish a due
process violation under the first prong of the Dixon test. Rather, the first prong
of the Dixon test focuses on whether the movement or confinement was
necessary to consummate the accompanying crime. If the movement or
confinement was necessary to consummate the accompanying crime, then a
separate kidnapping conviction violates due process, and no further analysis

3
As stated by the post-conviction court and the State, White did not create a new rule of law requiring
retroactive application. See White, 362 S.W.3d at 578. So, as White was decided in 2012, three years after
the Petitioner’s case was tried, its dictates are inapplicable here.

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 is required.

If, instead, the movement or confinement was beyond that necessary to
consummate the accompanying crime, then the second prong must be
addressed. The second prong considers “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.”

The Dixon two-part test fully replaces the Anthony “essentially
incidental” analysis. As we previously have observed, the Dixon test “provides
the structure necessary for applying the principles announced in Anthony.”
Although we adhere to the due process principles adopted in Anthony, we now
make clear that the Anthony analysis should not be used in conjunction with
the Dixon two-part test. The Dixon test should be used exclusively in all future
inquiries.

State v. Richardson, 251 S.W.3d 438, 442-43 (Tenn. 2008) (internal citations omitted).

Applying the Dixon test to the instant case, we must first determine whether the
victim’s movement or confinement was beyond that necessary to consummate the especially
aggravated robbery. Especially aggravated robbery is the intentional or knowing theft of
property from a person, accomplished with a deadly weapon where the victim suffers serious
bodily injury. Tenn. Code Ann. §§ 39-13-401, -403. We also note that, as relevant here,
especially aggravated kidnapping is false imprisonment – knowingly removing or confining
another unlawfully so as to interfere substantially with the other’s liberty – accomplished
with a deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon or where the victim suffers serious bodily injury.
See id. at §§ 39-13-302, -305.

The Petitioner admitted at trial and at the post-conviction hearing that he locked the
victim inside the house just before the robbery commenced. He also admitted that he held
the victim down at some point during the robbery, and he did not deny participating in the
victim’s beating. Further, he agreed that he observed his co-defendants put the victim in the
back of the victim’s car; that he followed in a different car until the co-defendant’s “dumped”
the victim; that he met up with his co-defendants at a gas station, where he then got into the
victim’s car; and that he was subsequently apprehended by police while trying to flee from
that car. The Petitioner continues to emphasize that he did not place the victim in the car
after the robbery, that he was not in the car, and that he generally had no part in this
subsequent “kidnapping.” However, on direct appeal, this court concluded that the Petitioner

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was just as responsible as his co-defendants for this later kidnapping under a theory of
criminal responsibility, and we will not revisit that conclusion on appeal. See Fielder, 2011
WL 3689134, at *10. Thus, the Petitioner’s not being a direct participant in this subsequent
kidnapping is irrelevant to our analysis. As such, we conclude that the victim’s movement
was beyond that necessary to consummate the robbery because the robbery at the house was
completed before the victim was ever removed from the house.

Moving to the second part of the analysis, we must determine 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.” Given the extensive injuries the victim sustained during the robbery, as outlined
above, we conclude that the victim’s being thrown out of his car and left in someone’s yard
both lessened the Petitioner’s risk of detection and created a significant danger and increased
the victim’s risk of harm. See e.g., Richardson, 251 S.W.3d at 444-45 (where our supreme
court reached the same conclusion based on similar facts). Therefore, the especially
aggravated kidnapping conviction for the victim’s post-robbery confinement does not violate
due process. Even if trial counsel would have requested that the trial court dismiss the
especially aggravated kidnapping, arguing that it was incidental to the especially aggravated
robbery offense on due process grounds, the trial court would not have granted such a
request. As such, trial counsel’s tactical decision not to request a dismissal of the especially
aggravated kidnapping offense was neither deficient nor prejudicial to the Petitioner’s case.
The Petitioner is not entitled to relief on this issue.

CONCLUSION

Based upon the foregoing, the judgment of the post-conviction court is affirmed.

_________________________________
D. KELLY THOMAS, JR., JUDGE

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