IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE, ) FOR PUBLICATION
FILED
)
December 20, 1999
Appellant, ) FILED: _____________________
)
Cecil Crowson, Jr.
v. ) GILES CIRCUIT
Appellate Court Clerk
)
JIMMY LEGG, ) HON. ROBERT L. JONES
) JUDGE
Appellee. )
) No. M1998-00479-SC-R11-CD
For the Appellant: For the Appellee:
Paul G. Summers Raymond W. Fraley, Jr.
Attorney General & Reporter Fayetteville, Tennessee
Michael E. Moore Johnny D. Hill, Jr.
Solicitor General Fayetteville, Tennessee
Kim R. Helper
Assistant Attorney General
Nashville, Tennessee
OPINION
COURT OF CRIMINAL APPEALS
REVERSED AND REMANDED BARKER, J.
We granted the appeal in this case to address whether the State of Tennessee
has territorial jurisdiction pursuant to Tennessee Code Annotated section 39-11-
103(b)(1) to prosecute a charge of aggravated kidnapping that was commenced in
Alabama. For the reasons stated herein, we hold that section 39-11-103(b)(1) permits
the exercise of territorial jurisdiction over a continuing offense where any essential
element of the offense is continued and committed in Tennessee. We also hold that
the General Assembly intended that the offense of aggravated kidnapping to sanction
a continuing course of conduct, and that at least one element of that crime was proven
to have occurred in Tennessee. Finally, we hold that the appellee was not entitled to
a jury instruction on assault or aggravated assault because the evidence was legally
insufficient to support a conviction in Tennessee. Therefore, this case is remanded to
the Giles County Circuit Court for reinstatement of the appellee’s conviction and
sentence for aggravated kidnapping.
BACKGROUND
The appellee, Jimmy Legg, married Martha Legg for a second time in July of
1990. Three years later in October of 1993, the couple separated, and Ms. Legg went
to live in nearby Athens, Alabama. About a week after the separation, the appellee
traveled from his home in Giles County, Tennessee to see his wife in Alabama. When
the appellee found his wife, he told her that his sister had been in an automobile
accident and that he needed to talk to someone. Although Ms. Legg testified that she
was concerned that the appellee might be violent, she agreed to get into the truck with
him after he assured her that nothing was going to happen. Ms. Legg also insisted
that their daughter get into the appellee’s truck with her.
2
After the appellee drove a short distance, he stopped and asked his daughter
to get out of the truck to deliver a message to her brother. As the daughter stepped
out of the truck, Ms. Legg also tried to get out of the truck. However, the appellee
pulled Ms. Legg back into the truck, locked the doors, and sped away. While driving in
Alabama, the appellee repeatedly questioned Ms. Legg about why she left him and
with whom she had been. Every time Ms. Legg tried to answer the appellee’s
questions, he would hit her in the face around the eyes. Ms. Legg also testified that
the appellee hit her with a pistol and that on several occasions, he held the pistol to
her head while threatening to shoot her.
The appellee finally stopped later that afternoon at the Sands Motel in Giles
County, Tennessee and rented a room for the night. Shortly thereafter, two police
officers came to the defendant’s room after being dispatched on a “welfare check.”
One of the officers talked to the appellee while the other officer went inside the room
to talk to Ms. Legg, who had shut herself in the bathroom. When the officer
questioned Ms. Legg about her injuries, she replied that she and the appellee were
involved in an automobile accident. Although the officer offered to take her to the
hospital, Ms. Legg refused to go, and she requested several times for the officers to
leave. Ms. Legg later testified that she was afraid to leave the motel room because
her husband told her that he would shoot her.
The next morning, the appellee left the hotel room to pay lodging for another
night. Ms. Legg testified that as he left, the appellee stated that he was “going to
finish what he started” when he returned. Believing this statement to mean that the
appellee would return to “beat [her] some more,” Ms. Legg ran out of the motel room
and asked a nearby guest of the motel for help. The guest called the police and an
ambulance, and Ms. Legg was taken to a local hospital.
3
On July 11, 1994, the Giles County grand jury returned an indictment charging
the appellee with one count of especially aggravated kidnapping. During a two-day
jury trial, the State introduced evidence showing that Ms. Legg sustained severe
physical injuries, but the State could not establish that any of her physical injuries
actually occurred in Tennessee. The jury returned a guilty verdict on the offense of
aggravated kidnapping, and the appellee was sentenced by the circuit court to serve
eight years in the Department of Correction.
On appeal, the appellee argued among other things that the State failed to
establish proper venue in Giles County because the State introduced no proof that
physical injury occurred in Tennessee. Framing the issue as one of territorial
jurisdiction, the Court of Criminal Appeals held that the State of Tennessee lacked
jurisdiction because the offense was both commenced and consummated in Alabama
as contemplated by Tennessee Code Annotated section 39-11-103(b)(1). The court
reduced the appellee’s conviction to false imprisonment and modified his sentence to
eleven months and twenty-nine days. The State of Tennessee then sought review in
this Court arguing that the Court of Criminal Appeals erred in holding that the offense
of aggravated kidnapping was consummated in Alabama.
Although the Court of Criminal Appeals may have been correct in stating that
the offense was technically consummated in Alabama, we disagree with the
conclusion of the intermediate court that the State lacked jurisdiction in this case.
Rather, we conclude that the General Assembly fully intended for the courts of this
state to exercise territorial jurisdiction pursuant to section 39-11-103(b)(1) over
continuing offenses carried into Tennessee.
4
TERRITORIAL JURISDICTION
It is elementary that before a court may exercise judicial power to hear and
determine a criminal prosecution, that court must possess three types of jurisdiction:
jurisdiction over the defendant, jurisdiction over the alleged crime, and territorial
jurisdiction. The basic requirement that a court possess territorial jurisdiction, which
recognizes the power of a state to punish criminal conduct occurring within its borders,
is embodied in the constitutional right to a trial “by an impartial jury of the county in
which the crime shall have been committed.” See Tenn. Const. art. I, § 9; see also
U.S. Const. amend. VI. As such, the concept of territorial jurisdiction reflects that “[a]
state’s criminal law is of no force and effect beyond its territorial limits . . . .” See
Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 658-59 (Tenn. 1990).
At common law in Tennessee, the courts required that the locus in quo of the
crime occur within Tennessee before territorial jurisdiction could attach. One example
of this requirement may be seen in State v. Evans, 1 Tenn. (1 Over.) 211 (1806), in
which a defendant was convicted for theft in a settlement where the state boundary
between Tennessee and Kentucky was not precisely marked. In affirming the
conviction, the Supreme Court stated that general opinion confirmed that “the locus in
quo was within this State . . . .” Id. at 220. Nevertheless, if the crime actually occurred
“without the limits of this State[, the Court] clearly should not have jurisdiction.” Id.
Thirty-eight years later, the Supreme Court reaffirmed the notion of territorial
jurisdiction by stating that where the conduct occurred completely outside the state,
Tennessee could exercise no jurisdiction over the offense. See Simpson v. State, 23
Tenn. (4 Hum.) 455, 465 (1844) (stating that if the proof showed “that the larceny was
committed beyond the limits of this State, . . . [then the defendant was] guilty of no
violation of the criminal code”); cf. Restatement of Conflicts § 425 (1934) (stating that
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there can be no territorial jurisdiction where the conduct and its results both occur
outside a state’s territory).
Tennessee modified this common law rule by statute in 1858 and conferred
jurisdiction on the courts to adjudicate crimes “commenced without this State [and]
consummated within its boundaries . . . .” See Tenn. Code § 4973 (1858). This
statute was retained by the General Assembly in its original wording until the last
major revision of the criminal code in 1989.1 As part of the 1989 criminal code
revision, the legislature reworded the statute to read, “When an offense is commenced
outside this state and consummated in this state, the person committing the offense is
liable for punishment in this state in the county in which the offense was
consummated, unless otherwise provided by statute.” Tenn. Code Ann. § 39-11-
103(b)(1) (1997).
Although the parties in this case do not dispute that the offense of aggravated
kidnapping was “commenced” in Alabama, territorial jurisdiction nevertheless requires
that the offense be “consummated” in Tennessee. Therefore, resolution of whether
the circuit court properly possessed territorial jurisdiction depends upon the point at
which the General Assembly contemplated that crimes are “consummated.” See
State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993) (stating that the primary purpose of
this Court in statutory interpretation “is to ascertain and carry out the legislative intent
without unduly restricting or expanding the statute’s coverage beyond its intended
1
Cf. Tenn. Code Ann. § 40-1-102 (Supp. 1983); Tenn. Code Ann. § 40-102 (1952); Tenn. Code
§ 11473 (Williams 1934); Tenn. Code § 6934 (S hannon 1896); Tenn. Code § 5801 (Milliken & Vertrees
1884); T enn. Co de § 497 3 (Tho mps on & Ste ger 187 1); Ten n. Code § 4973 ( 1858).
Our research further indicates that the General Assembly borrowed this statute from a virtually
identical statute found in the Alabama Code of 1852, which stated as follows:
When the commission of an offense commenced without this state, is consummated within
its boundaries, the person committing the offense is liable to punishment therefor in this
state, although h e was o ut of the sta te at the co mm ission of th e offens e charg ed, if he
consummated it in this state, through the intervention of an innocent or guilty agent, or by
any other means proceeding direc tly from him self; a nd in s uch cas e, the jurisd iction is in
the county in which the offense was consummated, unless otherwise provided by law.
See Ala. Cod e § 3362 (1852).
6
scope”). In ascertaining the intent of the legislature in this regard, we should look to
“the general purpose to be accomplished [by the statute],” Tidwell v. Collins, 522
S.W.2d 674, 676 (Tenn. 1975), and to “the natural and ordinary meaning of the
statutory language,” State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998).
We have not previously addressed when an offense is considered to be
consummated within the meaning of section 39-11-103(b)(1). The intermediate court
held that a crime is consummated essentially when the last element necessary for
commission of the crime is satisfied. Although we agree that in most cases a crime is
completed when all the elements are met, this general rule does not invariably follow
in cases of continuing offenses:
[A]s a general rule, a crime committed partly in one jurisdiction and partly
in another is punishable only in the courts of the jurisdiction in which it was
consummated. However, a continuing crime, although complete in the
jurisdiction where first committed, may continue to be committed, and may
also be punished, in another jurisdiction.
22 C.J.S. Criminal Law § 161(b) (1989) (emphasis added) (citations omitted).
The natural and ordinary meaning of the term “consummate” is “to finish by
completing what was intended; bring or carry to upmost point or degree; carry or bring
to completion.” See Black’s Law Dictionary 317 (6th ed. 1990). Based upon this
meaning, we do not believe that the General Assembly intended to deny our courts
jurisdiction over continuing offenses that are carried into this state. Along with
Missouri, Tennessee shares the distinction of bordering more states than any other
state in the union,2 and forty-two of Tennessee’s ninety-five counties share a common
border with another state. Given the growing transient nature of our society, it
becomes increasingly probable that many offenses commenced in a foreign state will
2
Both T ennes see an d Misso uri share a com mon border w ith eight othe r states.
7
be continued into Tennessee. These facts alone make continuing offenses that are
commenced in other states of special consequence to the administration of criminal
justice in Tennessee, and this state has a unique interest in ensuring the ability to
prosecute and punish continuing offenses that are carried across its borders.
The appellee argues that because courts are bound to strictly construe criminal
statutes in favor of the defendant, the Court of Criminal Appeals was correct in stating
that section 39-11-103(b)(1) forbids jurisdiction in the case of continuing offenses. We
disagree. Although the common law required courts to give statutes a strict
construction, the provisions of the criminal code now are to “be construed according to
the fair import of their terms, including reference to judicial decisions and common law
interpretations, to promote justice, and effect the objectives of the criminal code.”
Tenn. Code Ann. § 39-11-104 (1997). The interpretation of section 39-11-103(b)(1)
urged by the appellee would allow a defendant guilty of a continuing offense under
Tennessee law to go unprosecuted merely because the elements of that offense,
although continuing in nature and present in Tennessee, were first satisfied in another
state. We do not believe that the language of the statute compels such an
interpretation or that the General Assembly intended for the statute to work such an
absurd result.
We hold that when an offense is continuing in nature and has continued into
Tennessee from another state, the offense is deemed to have both commenced and
consummated anew in Tennessee so long as any essential element to the offense
continues to be present in Tennessee. As such, Tennessee Code Annotated section
39-11-103(b)(1) does not defeat territorial jurisdiction in the case of a continuing
offense from a court that is otherwise properly vested with jurisdiction over the
8
defendant and the offense.3 Therefore, in order to determine whether the circuit court
properly possessed territorial jurisdiction in this case, we need to consider two
questions: whether the General Assembly intended for the offense of aggravated
kidnapping to constitute a continuing offense, and if so, whether any essential element
of that offense in this case has occurred in Tennessee.
CONTINUING OFFENSES
An offense may be considered a continuing offense only when “the explicit
language of the substantive criminal statute compels such a conclusion, or the nature
of the crime involved is such that [the legislature] must assuredly have intended that it
be treated as a continuing one.” Toussie v. United States, 397 U.S. 112, 115 (1970).
Therefore, in deciding whether the General Assembly intended for an offense to
constitute a continuing offense, this Court will look to the statutory elements of the
offense and determine whether the elements of the crime themselves contemplate a
continuing course of conduct. Cf. State v. Hoxie, 963 S.W.2d 737, 743 (Tenn. 1998)
(discussing requirements for finding continuing offenses so as to render the election of
offenses requirement inapplicable).
A person commits the offense of aggravated kidnapping when that person (1)
“knowingly removes or confines another unlawfully so as to interfere substantially with
the other's liberty,” Tenn. Code Ann. § 39-13-302; and (2) the unlawful removal or
confinement is committed:
3
The doctrine of continuing offenses states that every moment an offense is continued, the offense
is com mitted a new. Therefore, our holding that a continuing offense carried into Tennessee from another
state is commenced and consummated anew in Tennessee does not logically extend to non-continuing
offenses. Non-continuing offenses are consummated when th e last elem ent of the o ffense is satisfied. See
Jones v. State, 409 S.W .2d 169, 1 71 (Te nn. 1966 ) (holding c rime o f receiving stolen pro perty is
consummated for venue purposes w hen all the elements are m et). Where satisfaction of the last element
of a non-continuing offense occurs outside of Tennessee, then this state is clearly without territorial
jurisdiction to prosecute that offense when that offense was also commenced outside of Tennessee.
9
(1) To facilitate the commission of any felony or flight thereafter;
(2) To interfere with the performance of any governmental or
political function;
(3) With the intent to inflict serious bodily injury on or to terrorize
the victim or another;
(4) Where the victim suffers bodily injury; or
(5) While the defendant is in possession of a deadly weapon or
threatens the use of a deadly weapon.
See id. § 39-13-304(a). As evidenced by both the elements and nature of aggravated
kidnapping, it is clear to us that the General Assembly intended for this offense to
sanction a continuing course of conduct.
As is the case with kidnapping offenses generally in Tennessee, aggravated
kidnapping essentially consists of the offense of false imprisonment plus the existence
of one additional element. The offense of false imprisonment was clearly intended to
punish a continuing course of conduct. The very use of the terms “removes” or
“confines” contemplates a continued state of being restrained. Consequently, an act
of removal or confinement does not end merely upon the initial restraint, and a
defendant continues to commit the crime at every moment the victim’s liberty is taken.
In fact, under the present statute, no period of removal or confinement is
capable of being reasonably divided into multiple segments with various points of
termination. Cf. State v. Rhodes, 917 S.W.2d 708, 713 (Tenn. Crim. App. 1995)
(finding the offense of driving under the influence to be a continuing offense in part
because it would be “impossible under the present statute reasonably to divide into
more than one segment any one period of continuous driving under a continuing state
of intoxication”). So long as the removal or confinement of the victim lasts, the offense
of false imprisonment continues. Therefore, because the statute itself contemplates
that the victim’s removal or confinement is one continuous event, we conclude that the
10
General Assembly intended for the offense of aggravated kidnapping to punish a
continuing course of conduct.4
Because aggravated kidnapping is a continuing offense, the State needed only
to show that at least one element of the crime continued into Tennessee for territorial
jurisdiction to properly attach. W e find that the State has met this burden. Although
the State concedes that there is no evidence that any bodily injury occurred in
Tennessee, the evidence is more than sufficient to establish that Ms. Legg was
unlawfully removed or confined within this state so as to interfere substantially with her
liberty. While the appellee argues that Ms. Legg had a number of opportunities to
escape and was therefore not confined, this Court will not reweigh or reevaluate the
evidence presented where the evidence is sufficient for conviction beyond a
reasonable doubt. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The
resolution of factual issues raised by the evidence is within the sole province of the
jury, State v. Burns, 979 S.W.2d 276, 287 (Tenn. 1998), and as evidenced by the
verdict, the jury was satisfied that Ms. Legg was confined by the appellee. Therefore,
4
Our conclusion that aggravated kidnapping is a continuing crime is further reinforced by the fact
that several other states with similar statutes have held or stated that kidnapping is a continuing crime. See,
e.g., Crum p v. State , 625 P.2d 857, 863 (Alaska 1981) (holding that kidnapping is a continuing offense under
a statute that “encompasses the holdin g of th e victim for an un lawful purp ose as well as abd uction”); State
v. Jones, 916 P.2d 1119, 11 23 (Ariz. Ct. App. 1995) (stating that “[b]ecause kidnapping involves interfering
with the vic tim’s liberty, it c ontin ues until th at liberty is restored”); State v. Gomez , 622 A.2d 1014, 1016
(Conn. 1993 ) (hold ing under a statute requiring the abduction or restraint of the victim that “[b]ecause
kidnapping involv es int erfe ring w ith the victim ’s liber ty, it continues until that liberty is resto red”); People v.
Phillips, 541 N.E.2d 1298, 1307 (Ill. App. Ct. 1989) (stating tha t “[k]idnapp ing is a con tinuing offe nse”); Idle
v. State, 587 N.E.2d 712, 716 (Ind. Ct. App. 1992) (stating that “[b]ecause kidnapping—like
confinement—involves the e lem ent o f unla wful d eten tion, it is a continuing crime; that is, it is c ontin uou sly
com mit ted so long a s the unla wful dete ntion lasts” ); State v. Zimmer , 426 P.2d 267, 286 (Kan. 1967)
(holding that “[k]idnaping, which involves the detention of another, is a continuing o ffense ”); State v.
Hutchinson, 661 P.2 d 1315 , 1322-2 3 (N.M . 1983) (s tating that “[k ]idnapping is defined as the ‘unla wful
taking, restraining or confining of a person, by force or deception’” and that “[k]idnapping which involves the
detenti on of anoth er, is a con tinuous o ffense ”); State v. W hite, 492 S.E.2d 48, 51 (N.C. Ct. App. 1997)
(stating that “[c]ommon sense dictates that the offense of kidnapping should encompass the entire period
of a victim’s confinement from the time of the initial act of restraint or confinement until the victim’s free will
is regained” under statute pro hibiting the un lawful con finem ent, restra int or rem oval of the victim); State v.
Tucker, 512 S.E.2d 99, 105 (S.C. 1999) (stating that “[k]idnaping is a continuing offense. The offense
commences when one is wrongfully deprived of freedom and co ntinues u ntil freedom is restored .”); Kem ple
v. State , 725 S.W.2d 483, 485 (Tex. Ct. App. 1987) (stating that “[k]idnapping is a ‘continuing offense.’ The
abduction does not ‘occur’ at on ly one time , but rather is a continu ous, on going ev ent.”); State v. Dove, 757
P.2d 990, 994 (W ash. Ct. A pp. 1988) (stating that because “kidnapping involves the element of unlawful
detention, it is a continuing crime—it is continuously committed as long as the unlawful detention of th e
kidnapped person lasts”).
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we conclude that the State has met its burden in showing that at least one essential
element of the continuing offense of aggravated kidnapping was continued into
Tennessee.
JURY INSTRUCTION ON ASSAULT AND AGGRAVATED ASSAULT
Finally, the appellee argues that the circuit court erred in failing to instruct the
jury on the offenses of assault and aggravated assault as lesser-included offenses of
especially aggravated kidnapping. 5 Irrespective of whether the crimes of assault and
aggravated assault are lesser-included offenses of especially aggravated kidnapping,
however, we conclude that the appellee was not entitled to such an instruction.
Before a defendant is entitled to an instruction on a lesser included offense, the
offense must actually be a lesser-included offense of the offense charged, and the
proof in the record must be legally sufficient to support a conviction on the lesser-
included offense. See State v. Burns, __ S.W.3d __ (Tenn. 1999). In this case, the
appellee is not entitled to such an instruction because he has not shown that the proof
is legally sufficient to support a conviction in Tennessee on the charges of assault or
aggravated assault.
Unlike aggravated kidnapping, the elements of the crime of assault do not
contemplate a continuing course of conduct. See Tenn. Code Ann. §§ 39-13-101 to -
102 (1997). Rather, the crime itself contemplates that it is consummated or
completed the moment bodily injury occurs. Because there was no proof that any
bodily injury occurred in Tennessee, the evidence was legally insufficient to support a
conviction in this state for assault or aggravated assault based upon bodily injury. See
5
Although the Court of Criminal Appeals declined to address this issue because it reduced the
app ellee’s conviction to false imprisonment, we choose to address the issue ourselves in the interest of
judicial eco nom y.
12
generally Burns, __ S.W.3d __. Therefore, we hold that the appellee was not entitled
to an instruction on assault or aggravated assault even if those offenses were lesser-
included offenses of especially aggravated kidnapping.
CONCLUSION
To summarize, we hold that Tennessee Code Annotated section 39-11-
103(b)(1) permits the exercise of territorial jurisdiction over continuing offenses when
at least one element of the offense is continued and therefore committed in
Tennessee. We also hold that the General Assembly intended for the crime of
aggravated kidnapping to punish a continuing course of conduct and that the State
introduced evidence sufficient for the jury to conclude that at least one essential
element of that offense was committed in Tennessee. Therefore, we reverse the
judgment of the Court of Criminal Appeals holding that the State lacked territorial
jurisdiction in this case. Finally, we hold that the appellee was not entitled to a jury
instruction on assault or aggravated assault because the evidence was legally
insufficient to support a conviction in Tennessee. This case is remanded to the Giles
County Circuit Court for reinstatement of the appellee’s conviction and sentence for
aggravated kidnapping.
Costs of this appeal are assessed to the appellee, Jimmy Legg, for which
execution shall issue if necessary.
_______________________________
WILLIAM M. BARKER, JUSTICE
CONCUR:
ANDERSON, C.J.
DROWOTA, BIRCH, HOLDER, JJ.
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