State of Tennessee v. Stephano L. Weilacker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 17, 2014

STATE OF TENNESSEE V. STEPHANO L. WEILACKER

Direct Appeal from the Criminal Court for Montgomery County
No. 40700673 Michael R. Jones, Judge

No. M2013-01532-CCA-R3-CD - Filed September 8, 2014

The appellant, Stephano L. Weilacker, was convicted in the Montgomery County Criminal
Court of especially aggravated kidnapping, a Class A felony, and aggravated robbery, a Class
B felony, and received an effective twenty-year sentence to be served consecutively to a
previous sentence. In this delayed appeal, the appellant contends that the evidence is
insufficient to support the convictions, that the trial court erred by denying his motion to
suppress evidence, that the State committed prosecutorial misconduct during closing
arguments, that the trial court erred by failing to instruct the jury as provided by State v.
White, 362 S.W.3d 559 (Tenn. 2012), and that consecutive sentencing was improper.
However, because no timely motion for new trial was filed in this case, we can only review
sufficiency of the evidence and sentencing and the other issues for plain error. Moreover,
because this court addressed sufficiency and sentencing in the appellant’s first direct appeal
of his convictions, they cannot be reconsidered. Finding no plain error in the remaining
issues, the appellant’s convictions are affirmed.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which R OGER A. P AGE, J.,
and J ERRY L. S MITH, S P. J., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Stephano L. Weilacker.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; John
Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
 In June 2007, the Montgomery County Grand Jury indicted the appellant, Jacobi K.
Allen, and David A. Selby for the especially aggravated kidnapping of Frank Levarre and the
aggravated robbery of Brandi Perry. The appellant was tried separately from his co-
defendants, and the jury convicted him as charged on November 24, 2009. The facts at trial
were as follows:

On June 30, 2006, the Triangle Kwik Stop in rural
Montgomery County was staffed by Brandi Perry. Ms. Perry
observed two young men come into the store. One of them was
armed with a pistol. The man pointed the gun at her, then
pointed the gun at Frank Lavarre, a vendor who was stocking a
display at the store. The man demanded money and cigarettes.
He ordered Mr. Lavarre to lie on the floor. Ms. Perry complied
with the request, handing over money and cigarettes. The man
then shot Mr. Lavarre in the leg.

The men left the market and jumped into the back of a
large white car. Ms. Sandra Lewis, who was shopping next door
at the Food Lion, saw two young African-American men leave
the market laughing and running. Ms. Lewis was alarmed by
the situation, so she wrote down the license plate number of the
car and called the police.

Several days later, Appellant and David Selby were
arrested while riding in Appellant’s white Mercury Grand
Marquis. Police Officer Scott Beaubien initiated a traffic stop
of Appellant’s vehicle. The weapon used in the Triangle Kwik
Stop robbery was found in the car. Mr. Selby’s fingerprints
were found on the pistol.

Appellant, Jacobi K. Allen, and David Selby were
indicted by the Montgomery County Grand Jury for aggravated
robbery and especially aggravated kidnapping for their
involvement in the Triangle Kwik Stop robbery.

At trial, Mr. Selby testified that Appellant called him on
the day of the robbery and asked him to ride around with him
and to go buy some fireworks. Appellant was driving his white
Mercury Grand Marquis. When Mr. Selby got into the car, he
stated that there were two other younger African-American

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 males in the back seat. As the group passed the Triangle Kwik
Stop market, Appellant asked the men in the back seat if they
wanted to make a little money. Appellant told them what to do
and provided a pistol to the men. After the men robbed the
market, the money and cigarettes were divided between
Appellant and the two men.

Mr. Selby admitted that his fingerprints were found on
the pistol that was used in the robbery. He explained that when
police initiated the traffic stop of the vehicle, Appellant handed
Mr. Selby the weapon. Mr. Selby then handed the weapon back
to Appellant, who placed it under the seat.

Appellant presented the videotape from the store security
camera in support of his defense. The videotape showed that the
armed robbery was committed by two men other than Appellant.

At the conclusion of the proof, the jury found Appellant
guilty of aggravated robbery and especially aggravated
kidnapping. The trial court, at a sentencing hearing, sentenced
Appellant to ten years for aggravated robbery and twenty years
for especially aggravated kidnapping, to be served concurrently
to each other but consecutively to the sentence in case number
40600977, a previous sentence. The trial court entered the
judgments on December 16, 2009.

State v. Stephano L. Weilacker, No. M2010-00497-CCA-R3-CD, 2011 Tenn. Crim. App.
LEXIS 144, at **2-5 (Nashville, Mar. 3, 2011), perm. to appeal denied, (Tenn. 2011).

On February 4, 2010, the appellant filed a motion for new trial. Although the motion
was untimely, the trial court addressed the appellant’s issues and denied the motion. On
appeal to this court, the appellant argued that the evidence was insufficient to support the
convictions because Selby’s testimony was not sufficiently corroborated, that the trial court
improperly failed to instruct the jury on all lesser-included offenses, and that the trial court
improperly ordered consecutive sentencing. Id. at *2. This court, noting that the appellant’s
notice of appeal also was untimely, held that any issue other than sufficiency of the evidence
and sentencing was waived because the motion for new trial was filed more than one month
after the entry of the judgments. Id. at **7-8. Nevertheless, this court waived the untimely
filing of the notice of appeal to address the issues, including the jury instruction issue for
plain error. Id. at *9. This court held that the evidence sufficiently corroborated Selby’s

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testimony, that the appellant was not entitled to plain error relief because he failed to include
the jury instructions in the appellate record, and that the trial court properly ordered
consecutive sentencing. See id. at *2.

After our supreme court denied the appellant’s application for permission to appeal,
he filed a timely petition for post-conviction relief, arguing, in part, that he received the
ineffective assistance of counsel because trial counsel failed to file a timely motion for new
trial. On June 3, 2013, the post-conviction court granted relief in the form of a delayed
appeal and stayed its consideration of the Petitioner’s remaining post-conviction claims.

The appellant did not file a motion for new trial. In this delayed appeal, he again
argues that the evidence is insufficient to support the convictions and that consecutive
sentencing was improper. He also contends that the trial court erred by denying his motion
to suppress evidence found in his vehicle, that the State committed prosecutorial misconduct
during closing arguments, and that the trial court erred by failing to instruct the jury as
provided by White.

II. Analysis

Initially, we note that the State argues that the appellant has waived all issues other
than sufficiency of the evidence and sentencing because he failed to file a timely motion for
new trial and that he has failed to establish plain error. The State also argues that we cannot
address sufficiency and sentencing because this court addressed them in the appellant’s first
direct appeal of his convictions. We agree with the State.

The appellant’s February 2010 motion for new trial was untimely and, therefore, a
nullity. See Tenn. R. Crim. P. 33(b). Moreover, because the trial court did not have
jurisdiction to hear and determine the merits of the untimely motion, the court’s “erroneous
consideration [and] ruling on a motion for new trial not timely filed . . . [did] not validate the
motion.” State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). Pursuant to Tennessee Code
Annotated section 40-30-113, the post-conviction court granted the appellant’s request for
a delayed appeal. Tennessee Code Annotated section 40-30-113(a)(3) provides that when
a trial court “finds that the petitioner was denied the right to appeal from the original
conviction in violation of the Constitution of the United States or the Constitution of
Tennessee and that there is an adequate record of the original trial proceeding available for
review,” the court can, when no motion for a new trial was filed in the original proceeding,
“authorize a motion to be made before the original trial court within thirty (30) days.” In this
case, the post-conviction court’s order granting the delayed appeal did not specify that the
Petitioner was to file a motion for new trial within thirty days. Although the better practice
would have been for the trial court to have done so, Tennessee Code Annotated section 40-

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30-113(b) provides that “[a]n order granting proceedings for a delayed appeal shall be
deemed the final judgment for purposes of review.” Therefore, the Petitioner should have
filed a motion for new trial. The appellant’s not filing a motion within thirty days of the
post-conviction court’s order means that no timely motion for new trial has ever been filed
in this case. Therefore, we agree with the State that we can only review the appellant’s
claims of sufficiency and sentencing and his remaining claims for plain error.

Regarding the State’s argument that the sufficiency and sentencing issues have been
waived because they have been previously determined, the Petitioner replies that we should
not apply the “law of the case” doctrine to the issues because this court’s sufficiency decision
was based on erroneous facts, the sufficiency issues presented in this delayed appeal are not
identical to the sufficiency issue presented in the original direct appeal, and the post-
conviction court’s granting a delayed appeal “vacates the prior ruling of [this] court as if it
had not previously happened.” We disagree with the appellant.

The law of the case doctrine

is a longstanding discretionary rule of judicial practice which is
based on the common sense recognition that issues previously
litigated and decided by a court of competent jurisdiction
ordinarily need not be revisited. This rule promotes the finality
and efficiency of the judicial process, avoids indefinite
relitigation of the same issue, fosters consistent results in the
same litigation, and assures the obedience of lower courts to the
decisions of appellate courts.

Jefferson v. State, 31 S.W.3d 558, 561 (Tenn. 2000). This court previously ruled on whether
the evidence was sufficient to support the appellant’s convictions and whether consecutive
sentencing was proper. Thus, the issues have been previously determined and cannot be
revisited, and we will proceed with analyzing the appellant’s remaining three issues for plain
error.

Tennessee Rule of Appellate Procedure 36(b) provides that “[w]hen necessary to do
substantial justice, [this] court may consider an error that has affected the substantial rights
of a party at any time, even though the error was not raised in the motion for a new trial or
assigned as error on appeal.” See also Tenn. R. Evid. 103(d). We may only consider an issue
as plain error when all five of the following factors are met:

a) the record must clearly establish what occurred in the
trial court;

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 b) a clear and unequivocal rule of law must have been
breached;

c) a substantial right of the accused must have been
adversely affected;

d) the accused did not waive the issue for tactical
reasons; and

e) consideration of the error is “necessary to do
substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “plain error must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal
quotations omitted).

B. Motion to Suppress

The appellant contends that the trial court erred by denying his motion to suppress
evidence that was obtained as a result of the search of his vehicle. He claims that the police
did not have probable cause to arrest him and that, even if they had probable cause, they
could not search his vehicle incident to arrest pursuant to Arizona v. Gant, 556 U.S. 332
(2009).

At the suppression hearing, Officer Beaubien of the Clarksville Police Department
(CPD) testified that on the afternoon of July 3, 2006, he was on patrol and heard about an
“armed” robbery over the police radio. The broadcast included a description of a suspect
vehicle, a white Mercury Grand Marquis, and the car’s complete license tag number. About
an hour and twenty minutes later, Officer Beaubien was in his patrol car in the parking lot
of the Jehovah Witness Church on Tiny Town Road when he saw a car matching the
description drive by. Three people were in the car. Officer Beaubien pulled onto Tiny Town
Road and tried to catch up with the car. He did not activate his patrol car’s emergency
equipment at that time and saw the suspect car turn onto Summerhaven. He caught up with
the car, requested confirmation of the tag number from dispatch, and confirmed that the tag
number of the suspect vehicle matched the tag number for the car he was following. The car
pulled into a driveway for a home on Summerhaven, and Officer Beaubien reported to
dispatch that he was behind the car. Officer Beaubien said that when backup arrived, he used
the “PA System” to order everyone in the car to raise their hands “because of the incident

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that happened.”

Officer Beaubien testified that the officers got the appellant, who was the driver, and
Jacobi, who was sitting in the front passenger seat, out of the car. Selby, who was sitting in
the back seat, could not get out because his seatbelt was fastened, and he could not unfasten
it without lowering his hands. Officer Beaubien approached the car, allowed Selby to
unbuckle his seatbelt, and had him get out of the car. Officer Beaubien said that after the
three men had exited the car, the officers were walking around it and “looking in from the
driver’s side.” They saw the handle or butt of a pistol underneath the armrest on the front
seat. Officer Beaubien said that the butt of the weapon was in “plain view” and that it was
a .22-caliber gun.

On cross-examination, Officer Beaubien testified that he was not parked in the church
parking lot when he saw the Grand Marquis but had pulled into the lot to speak with another
officer parked there. He said he did not know how fast the Grand Marquis was traveling.
Officer Beaubien followed the Grand Marquis for about a mile before it pulled into the
driveway on Summerhaven, and backup officers arrived about thirty seconds later. A total
of four officers were at the scene. Officer Beaubien said that after the appellant got out of
the Grand Marquis, the officers “took him into custody.” Officer Beaubien did not have his
weapon drawn because he was using the PA system, but the other officers had their weapons
drawn. They did not give Miranda warnings to the appellant but did not ask him any
questions. Officer Beaubien said that the three suspects “kept asking what was going on”
and that he told them that “we’ll get to that later.” He said he did not answer their questions
but did not ask them any questions.

Sergeant Scott Cutler acknowledged that on July 3, 2006, someone named James
Turner was a witness to a robbery at the J & D Flea Market and reported a license tag number
to police. Sergeant Cutler also acknowledged that Turner claimed to have seen individuals
coming out of the flea market. Sergeant Cutler created a photograph array containing the
appellant’s photograph. He said he included the appellant’s photograph because the license
tag number reported by Turner had been connected to the appellant and the police had
arrested the appellant. On the evening of July 3, Sergeant Cutler showed the array to Turner,
and Turner selected the appellant’s photograph.

On cross-examination, Sergeant Cutler testified that Turner had described one of the
suspects and thought he could identify the suspect. The description was for a light-skinned,
African-American male with a large build. Sergeant Cutler said he “put two and two
together,” thought the appellant matched the description, and placed the appellant’s photo
in the array. The appellant had been arrested earlier that day and was in the police office
when Sergeant Cutler prepared the array.

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 Detective William Nalley of the CPD testified that he was the lead detective for the
J & D Flea Market robbery. James Turner had witnessed the suspect vehicle leaving the
scene, had tried to follow it, and had written down the car’s tag number. The tag number
matched the tag number on the appellant’s car. The gun recovered from the appellant’s car
was a .22-caliber. Detective Nalley submitted the gun and shell casings recovered from the
flea market to a laboratory for analysis. He acknowledged that the results showed the casings
had been fired from the weapon. A victim of the flea market robbery, who had been shot in
the head and side, testified at the appellant’s preliminary hearing and identified the appellant
as the shooter. Detective Nalley said he did not know anything about the Triangle Kwik Stop
robbery.

Detective Nalley testified that he interviewed the appellant. The appellant waived his
Miranda rights and gave a statement. At first, the appellant admitted to being involved in the
flea market robbery but denied shooting anyone. Later, he said he accidentally shot one of
the victims. After laboratory analysis showed that the shell casings from the robbery were
fired from the gun found in the appellant’s car, Detective Nalley obtained a search warrant
for the car. During the search, the police collected three t-shirts, a pair of gloves, and other
items. The appellant told Detective Nalley during his interview that he and the other robbers
divided the money from the flea market robbery and that he received $400.

On cross-examination, Detective Nalley testified that when he arrived at the flea
market on July 3, the victims were “lying there bleeding.” They were unable to speak with
him and were transported to Vanderbilt. The police found two shell casings, and the casings
were matched to the appellant’s gun. Fingerprints were on the gun, but they did not match
the appellant.

The defense argued that the trial court should suppress the evidence about the gun
found in the appellant’s car because nothing showed the gun was involved in the Triangle
Kwik Stop robbery and “based on the due process issues.” In a written order, the trial court
found that Officer Beaubien had probable cause to believe that the white Grand Marquis had
been used in an aggravated robbery a short time before the stop and had probable cause to
believe that the men in the car had participated in the robbery. Thus, the officer had probable
cause to stop the car and arrest the appellant. The trial court stated that the officer then
observed the gun in “plain view.” The trial court ruled that the officer could search the car
incident to the arrest without a warrant and denied the appellant’s motion to suppress.

Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, a warrantless search is considered presumptively
unreasonable, thus violative of constitutional protections. See State v. Walker, 12 S.W.3d

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460, 467 (Tenn. 2000). The recognized exceptions to the requirement include (1) a search
incident to an arrest, (2) the plain view doctrine, (3) a consent to the search, (4) a Terry stop
and frisk, and (5) the existence of exigent circumstances. State v. Berrios, 235 S.W.3d 99,
104 (Tenn. 2007).

In this case, the appellant does not contest that Officer Beaubien had probable cause
to stop the vehicle. Instead, he argues that the officer could not search the vehicle incident
to arrest. The appellant relies on Arizona v. Gant, 556 U.S. 332, 351 (2009), in which the
United States Supreme Court held that “[p]olice may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe that the vehicle contains
evidence of the offense of arrest.” However, the appellant’s reliance on Gant is misplaced
in that the holding in Gant involved a search incident to arrest whereas the trial court in this
case found that the gun was in plain view. The appellant does not contest the trial court’s
plain view finding.

In any event, the trial court also found that the officers could search the car incident
to the appellant’s arrest. The evidence at the suppression hearing established that the flea
market robbery involved the shooting of a victim, that a witness observed individuals leaving
the flea market, and that the witness wrote down the license tag number for a suspect vehicle.
The appellant’s car matched the description of the suspect vehicle, and Officer Beaubien
confirmed prior to stopping the appellant’s car that its tag matched that of the suspect
vehicle. Therefore, even if the gun had not been in the officers’ view, it would have been
reasonable for them to believe that the car contained evidence of the offense of arrest and to
have conducted a warrantless search of the vehicle pursuant to Gant. A clear and
unequivocal rule of law was not breached, and the appellant is not entitled to plain error
relief.

C. Prosecutorial Misconduct

Next, the appellant contends that the State committed prosecutorial misconduct during
closing arguments when the prosecutor argued facts outside the record and vouched for
Selby’s credibility. The State argues that the appellant is not entitled to relief. We agree
with the State.

It is well-established that closing argument is an important tool for both parties during
a trial; thus, counsel is generally given wide latitude during closing argument, and the trial
court is granted wide discretion in controlling closing arguments. See State v. Carruthers,
35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments must
be temperate, based upon the evidence introduced at trial, relevant to the issues being tried,

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and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn.
Crim. App. 2003). “The prosecution is not permitted to reflect unfavorably upon defense
counsel or the trial tactics employed during the course of the trial.” State v. Garner Dwight
Padgett, No. M2003-00542-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 938, at *34
(Nashville, Oct. 21, 2004).

In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial
misconduct” that can occur during closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief or opinion as to the truth or falsity
of the evidence or defendant’s guilt; (3) making statements calculated to inflame the passions
or prejudices of the jury; (4) injecting broader issues than the guilt or innocence of the
accused; and (5) intentionally referring to or arguing facts outside the record that are not
matters of common public knowledge. “In determining whether statements made in closing
argument constitute reversible error, it is necessary to determine whether the statements were
improper and, if so, whether the impropriety affected the verdict.” State v. Pulliam, 950
S.W.2d 360, 367 (Tenn. Crim. App. 1996). In connection with this issue, we must examine
the following factors:

“(1) the conduct complained of viewed in context and in light of
the facts and circumstances of the case[;]

(2) the curative measures undertaken by the court and the
prosecution[;]

(3) the intent of the prosecutor in making the statement[;]

(4) the cumulative effect of the improper conduct and any other
errors in the record[; and]

(5) the relative strength or weakness of the case.”

Id. (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

The appellant first complains that the State committed prosecutorial misconduct when
the prosecutor repeatedly stated during closing arguments that the tag number on the
appellant’s car matched the tag number provided by Sandra Lewis on the day of the Triangle
Kwik Stop robbery. He contends that such argument was improper because Officer
Beaubien never testified about the license tag number for the car he stopped on July 3.

Our review of the trial transcript shows that Lewis reported tag number 375 LMG to

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the police. Lewis testified that she had been sure about the first three digits. Officer
Bieaubien identified a photograph of the appellant’s vehicle, and the photograph showed the
car’s tag as 375 LGK. During closing arguments, the prosecutor noted the discrepancy in the
tag number and the number reported by Lewis but argued that all of the evidence amounted
to “bread crumbs that led right to [the appellant].” We conclude that the prosecutor’s
argument was not improper.

The appellant also contends that the prosecutor improperly vouched for Selby’s
credibility during the State’s rebuttal closing argument by stating, “[Selby] knows what is
going to happen to him by me if he gets up there and feeds me a bunch of [bologna]. He has
every reason to tell he truth, because he don’t want to go back to where he was. . . . That’s
why he told the truth.” We agree with the appellant that the prosecutor was vouching for the
Selby’s credibility. However, as noted by the State, the prosecutor made his statements in
response to defense counsel’s stating during his closing argument that Selby “has every
reason to color his testimony to help himself.” Moreover, the trial court instructed the jury
during the charge that statements and remarks by counsel were not evidence. Generally, we
presume that a jury has followed the trial court’s instructions. See State v. Butler, 880
S.W.2d 395, 399 (Tenn. Crim. App. 1994). Finally, the State’s proof against the appellant
was strong. Therefore, we conclude that he is not entitled to plain error relief.

D. White Instruction

Finally, the appellant contends that the trial court erred by failing to instruct the jury
properly on the especially aggravated kidnapping charge in light of State v. White, 362
S.W.3d 559 (Tenn. 2012). The State argues that the appellant is not entitled to relief. We
conclude that the appellant has failed to show plain error.

As the jury was instructed in this case, Tennessee Code Annotated section
39-13-305(a)(1) defines especially aggravated kidnapping as “false imprisonment, as defined
in § 39-13-302 . . . [a]ccomplished 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.” 1 False
imprisonment is defined as the knowing removal or confinement of another unlawfully so
as to interfere substantially with the other’s liberty. Tenn. Code Ann. § 39-13-302(a). Our

1
The record reflects that count 2 of the indictment, which charged the appellant with the especially
aggravated kidnapping of Lavarre, alleged two alternative theories of the crime: by use or display of a deadly
weapon and where the victim suffered serious bodily injury. See Tenn. Code Ann. Ss 39-13-305(a)(1), (4).
However, at the conclusion of the State’s proof, the trial court found that the State had failed to show Lavarre
suffered serious bodily injury and instructed the jury only on especially aggravated robbery by use or display
of a deadly weapon.

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case law reveals a long-standing issue regarding the legitimacy of a kidnapping conviction
when the act(s) establishing the offense occurred during an accompanying felony.

In State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), a jury convicted the
defendant of the armed burglary of a Shoney’s restaurant, the armed robbery of the
restaurant’s manager, and the aggravated kidnappings of the manager and five other
employees. In a split decision, this court reversed all of the aggravated kidnapping
convictions, holding that “[u]nless independent and separate fact patterns for both the armed
robbery and the aggravated kidnapping can be proven, appellant can be convicted of only the
armed robbery.” Anthony, 817 S.W.2d at 301. Our supreme court, citing due process
concerns, held that before a separate kidnapping conviction may be sustained, there must be
a determination of whether the confinement, movement, or detention [was] essentially
incidental to the accompanying felony and [was] not, therefore, sufficient to support a
separate conviction for kidnapping, or whether it [was] significant enough, in and of itself,
to warrant independent prosecution and [was], therefore, sufficient to support such
conviction. Id. at 306. After its own analysis, our supreme court affirmed this court. Id. at
307-08.

Later, in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997), our supreme court
modified the Anthony court’s “essentially incidental” analysis and established a two-prong
test for determining whether a separate conviction for kidnapping violates due process. The
first step concerned a determination of whether the movement or confinement was beyond
that necessary to commit the accompanying felony. Id. If so, the second step concerned
ascertaining whether the additional movement or confinement (1) prevented the victim from
summoning help; (2) lessened the appellant’s risk of detection; or (3) created a significant
danger or increased the victim’s risk of harm. Id.

In White, our supreme court expressly overruled Anthony and its progeny, holding
that “[t]he separate due process test articulated first in Anthony, and subsequently refined in
Dixon . . . , is . . . no longer necessary to the appellate review of a kidnapping conviction
accompanied by a separate felony.” 362 S.W.3d at 578. Instead, the court held 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,” thereby
concluding that a defendant’s constitutional concerns are protected by appellate review of
the sufficiency of the convicting evidence. Id. at 577-78. Therefore, our supreme court
cautioned that “trial courts must ensure that juries return kidnapping convictions only in
those instances in which the victim’s removal or confinement exceeds that which is necessary
to accomplish the accompanying felony.” Id. To effectuate this end, our supreme court
devised the following instruction to be given by trial courts:

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 To establish whether the defendant’s removal or confinement of
the victim constituted a substantial interference with his or her
liberty, the State must prove that the removal or confinement
was to a greater degree than that necessary to commit the
offense of [insert offense], which is the other offense charged in
this case. In making this determination, you may consider all
the relevant facts and circumstances of the case, including, but
not limited to, the following factors:

• the nature and duration of the victim’s removal or confinement
by the defendant;

• whether the removal or confinement occurred during the
commission of the separate offense;

• whether the interference with the victim’s liberty was inherent
in the nature of the separate offense;

• whether the removal or confinement prevented the victim from
summoning assistance, although the defendant need not have
succeeded in preventing the victim from doing so;

• whether the removal or confinement reduced the defendant’s
risk of detection, although the defendant need not have
succeeded in this objective; and

• whether the removal or confinement created a significant
danger or increased the victim’s risk of harm independent of that
posed by the separate offense.

Id. at 580-81 (footnote omitted).

The State argues that the appellant is not entitled to plain error relief because “[p]anels
of this Court have reached differing conclusions on whether the due process concerns
outlined in White are present when the crimes at issue involve two separate named victims”;
therefore, the appellant cannot establish that a clear and unequivocal rule of law has been
breached. We recognize that this court has been split regarding this issue. See State v. Gary
S. Holman, No. E2012-01143-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 65, at *36
(Knoxville, Jan. 27, 2014); but see State v. Josh L. Bowman, No.
E2012-00923-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 735, at **44-45 (Knoxville,

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Aug. 29, 2013), perm. to appeal denied, (Tenn. 2014). Moreover, we note that our supreme
court recently granted applications for permission to appeal in cases where this court has held
that due process concerns were not implicated when the crimes at issue involved separate
victims. See State v. Jerome Maurice Teats, No. M2012-01232-CCA-R3-CD, 2014 Tenn.
Crim. App. LEXIS 18, at *57 (Nashville, Jan. 10, 2014) (holding that “the robbery of a
business establishment in which multiple persons are present does not expand a perpetrator’s
due process protections such that he is free to move and/or detain multiple persons in order
to commit a single robbery without facing kidnapping convictions”), perm. to appeal granted,
(Tenn. 2014); State v. Ricco R. Williams, No. W2011-02365-CCA-RM-CD, 2014 Tenn.
Crim. App. LEXIS 11, at **24-25 (Jackson, Jan. 7, 2014) (stating that “[w]e read White as
requiring the expanded kidnapping instruction only when the jury is required to determine
whether the defendant committed dual offenses of kidnapping and an accompanying crime
for which some measure of detention was necessary against the same victim”), perm. to
appeal granted, (Tenn. 2014). Nevertheless, in this majority’s view, the law is clear and
unequivocal that the due process concerns outlined in White are present regardless of
whether the crimes at issue involve two separate named victims.

Turning to the instant case, the evidence shows that one of the robbers pointed a gun
at Levarre and Perry and ordered Levarre, but not Perry, onto the floor. Pointing the gun at
Levarre and then ordering him onto the floor prevented him from summoning help; reduced
the robbers’ risk of detection by preventing passerbys from seeing Levarre; and increased
Levarre’s risk of harm, as evidenced by his lying prone on the floor so that the robbers could
shoot him. We note that the robbers shot Levarre after Perry had complied with the demand
for money and cigarettes. Therefore, ample evidence supported the appellant’s conviction
for the especially aggravated kidnapping of Levarre. The appellant has failed to show that
consideration of the error is necessary to do substantial justice and that the trial court’s error
was plain error.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the appellant’s convictions
are affirmed.

_________________________________
NORMA McGEE OGLE, JUDGE

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