        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 2, 2010

             STATE OF TENNESSEE v. JERRY PHILLIP HALEY

          Direct Appeal from the Circuit Court for Lauderdale County
                   No. 8498    Joseph H. Walker, III, Judge


           No. W2009-01800-CCA-R3-CD - Filed September 16, 2010


The defendant, Jerry Phillip Haley, was convicted by a Lauderdale County jury of aggravated
rape, a Class A felony; aggravated kidnapping, a Class B felony; and aggravated criminal
trespass, a Class A misdemeanor. The trial court sentenced him to serve an effective sixty-
year sentence in the Department of Correction. On appeal, the defendant contends that: (1)
the trial court erred in allowing hearsay testimony from the victim; and (2) the conviction for
aggravated kidnapping violates due process in violation of State v. Anthony and State v.
Dixon. Initial review of the record reveals that the defendant has waived both issues based
upon his failure to raise them in his motion for new trial. Further review leads us to the
conclusion that neither issue rises to the level of plain error. As such, the judgments of
conviction are affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.

Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant Public
Defender, for the appellant, Jerry Phillip Haley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and Julie K. Pillow,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background
        At approximately 4:00 a.m. on the day of the incident, the victim awoke to discover
that the defendant had entered her home through a bathroom window. The victim had
previously been asleep in her bedroom, and her three young children were asleep in separate
rooms in the home. The defendant, armed with a screwdriver, approached the victim’s bed
and proceeded to hold her down while vaginally raping her. He repeatedly threatened her life
while pressing the screwdriver into her neck and abdomen. Afterward, the defendant ordered
the victim to go into the bathroom and bathe. The defendant did not initially accompany the
victim into the bathroom but remained in the bedroom where he proceeded to remove the
sheets from the victim’s bed. While the victim was in the bathroom, she ran water in the
bathtub but only pretended to bathe, as she knew that she had the defendant’s sperm on her
body. The defendant, at some point, did enter the bathroom and reminded the victim that she
was not to go to the police. Thereafter, the victim heard the defendant exit the house through
the backdoor. Prior to the time she awoke to find the defendant in her bedroom, the victim
had never seen the defendant before. She stated that the defendant did not have permission
to enter the home and that any sexual contact between the two was not consensual. She also
stated that her cell phone was taken by her attacker.

       After hearing the defendant leave, the victim proceeded to gather her children and
leave the home. She called a friend, who met her at the hospital. Police were called and met
the victim at the hospital. The victim was still visibly shaken and upset but was able to give
police a general description of her attacker. After receiving treatment at the hospital, the
victim was taken to the sexual assault center in Memphis where a rape kit was collected.
Along with the victim’s clothing and bed linens, the rape kit was sent to the Tennessee
Bureau of Investigation (TBI) for testing. In the interim, police asked the victim to view a
photographic lineup, and she selected Courtney Ricks as someone who looked similar to her
attacker.

       A sample of sperm was found on the victim, and the resulting profile was entered into
the CODIS database. The sample entered matched that of the defendant, which had
previously been entered into the system. After learning that the sperm found on the victim
matched the defendant’s DNA profile, officers located him in the Henry County jail where
he was incarcerated on separate charges. Officers met with the defendant, and he denied
having sex with a “white woman” in the victim’s area. He did provide a DNA sample to
officers, which was tested and verified as a match to the sperm found on the victim.

       Based upon this information, the defendant was indicted by a Lauderdale County
grand jury for aggravated rape, aggravated kidnapping, and aggravated burglary. A trial was
held at which the victim and police officers testified to the above facts. In his defense, the
defendant testified and called John Wallace, a friend whom the defendant had known for
several years. Both testified that, on the day in question, the defendant called Wallace and

                                             -2-
asked him to come to Ripley to pick up the defendant. After picking up the defendant, the
two, along with Wallace’s girlfriend, proceeded to a home, which the defendant believed
belonged to Courtney Ricks, in order to purchase cocaine. The defendant further testified
that Courtney Ricks informed him that his girlfriend was in the back bedroom and that she
might have sex with the defendant in exchange for cocaine. According to the defendant, he
went into the back bedroom of the home and found the victim, with whom he then engaged
in consensual sex. Afterward, according to both the defendant and Wallace, the group left
the home and went to a motel in Union City.

       After hearing the evidence presented, a jury convicted the defendant of aggravated
rape, aggravated kidnapping, and aggravated criminal trespass. He was subsequently
sentenced to forty years, twenty years, and eleven months and twenty-nine days for the
respective convictions. Additionally, the rape and kidnapping sentences were ordered to be
served consecutively for an effective sentence of sixty years in the Department of Correction.
The defendant filed a motion for new trial in which he challenged only the sufficiency of the
evidence. The trial court denied the motion, and the defendant has timely filed an appeal
with this court.

                                           Analysis

        On appeal, the defendant has raised two issues for our review. First, he contends that
the trial court erred in admitting hearsay testimony by the victim. Second, he contends that
the conviction for aggravated kidnapping violates the due process protections set forth in
State v. Anthony and State v. Dixon.

I. Hearsay Objection

       First, the defendant asserts that the trial court erred in allowing the victim to give
hearsay testimony regarding what she had heard from unknown sources with regard to how
to respond when threatened, i.e., to comply with the aggressor’s demands. He contends that
he was deprived of an opportunity to confront these unknown persons who purportedly
advised the victim how to respond to “that type of situation.” The State responds that the
defendant has waived review of this issue based upon his failure to include it in his motion
for new trial. We agree.

        As noted, in his motion for new trial, the defendant raised only the issue of sufficiency
of the evidence. Tennessee Rule of Appellate Procedure 3(e) states, in pertinent part, that
“in all cases tried by a jury, no issue presented for review shall be predicated upon error in
the admission or exclusion of evidence . . . unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived.” Tenn. R. App. P.

                                               -3-
3(e); see State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that defendant
relinquishes the right to argue on appeal any issues that should have been presented in a
motion for new trial). When an issue is raised for the first time on appeal, it is typically
waived. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996). Nonetheless,
whether properly assigned or not, we may address the issue in the event there was plain error
on the part of the trial court under Rule 52(b) of the Tennessee Rules of Criminal Procedure.
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000); State v. Ogle, 666 S.W.2d 58, 60 (Tenn.
1984). In State v. Adkisson, this court established five factors to be applied in determining
whether an error is plain: (a) the record must clearly establish what occurred in the trial court;
(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 must not have waived the
issue for tactical reasons; and (e) consideration of the issue must be “necessary to do
substantial justice.” 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994) (citing Tenn. R. Crim.
P. 52(b)). On the record before us, we are unable to conclude that any alleged error which
occurred in the admission of the testimony rose to the level of plain error. In light of the
overwhelming evidence against the defendant, we cannot reach the conclusion that
consideration of any supposed error was “necessary to do substantial justice.”

II. State v. Anthony

        Next, the defendant challenges his conviction for aggravated kidnapping. Although
framing his issue as one of “sufficiency of the evidence,” a reading of his argument clearly
indicates that he is actually asserting a due process challenge pursuant to State v. Anthony
and State v. Dixon.        He contends that there was no evidence presented of further
confinement or movement other than that necessary to complete the associated felony, i.e.,
the aggravated rape. In its brief, the State has responded to the challenge by relying upon
State v. Samuel, 243 S.W.3d 592 (Tenn. Crim. App. 2007), to establish that the evidence
presented was sufficient to support the conviction. We would agree that the evidence, as
presented, was sufficient to factually support the finding of each element of the conviction,
as it was established that the defendant entered the victim’s bedroom, pressed a screwdriver
to her body, and forcibly held her down while raping her. However, as noted by the
defendant in his reply brief, that is not the nexus of his argument as he does not challenge the
establishment of the elements of the offense. As such, our review will address only the
Anthony issue as raised by the defendant. However, as also previously noted, the defendant
failed to include any issues in his motion for new trial other than a challenge to the
sufficiency of proof with regard to the elements of the offense. No mention is made of a due
process violation. Thus, we are again confronted with the issue of waiver pursuant to
Tennessee Rule of Appellate Procedure 3(e). As such, the only way to reach the challenged
issue is if error was committed which rises to the level of plain error. Based upon our
analysis as set forth below, we conclude that it does not.

                                               -4-
        With regard to the issue in question, our supreme court has previously held that a
kidnapping conviction violates due process if it is essentially incidental to the commission
of another offense. State v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991). The court, in
setting forth the standard to determine whether kidnapping was essentially incidental to the
underlying offense, held that in order to establish a separate kidnapping conviction, it must
be determined “whether the confinement, movement, or detention [was] essentially incidental
to the accompanying felony.” Id. at 305. The court, in State v. Dixon, 957 S.W.2d 532
(Tenn. 1997), clarified the standard and set forth a two-part test to determine whether a
separate kidnapping conviction violates due process. Id. at 535. First, it must be determined
if the movement or confinement of the victim was beyond that necessary to consummate the
accompanying crime. State v. Richardson, 251 S.W.3d 438, 442 (Tenn. 2008) (citing Dixon,
957 S.W.2d at 535). The first prong of the test focuses on whether the movement or
confinement was necessary to consummate the accompanying crime. Id. If it was, then a
separate kidnapping conviction violates due process, and no further analysis is required. Id.
If, however, the movement or confinement was beyond that necessary to consummate the
accompanying crime, then the second prong must be addressed. Id. 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.” Id. at 442-43.

       Based upon this law, we agree with the defendant’s assertion that the State was
required to establish an additional movement or confinement other than necessary to complete
the aggravated rape in order for the kidnapping conviction to stand. As indicted in this case,
Tennessee Code Annotated section 39-13-304(a)(1) (2006) defines aggravated kidnapping as
“false imprisonment, as defined in [section] 39-13-302, committed . . . [t]o facilitate the
commission of any felony or flight thereafter.” “A person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to interfere
substantially with the other’s liberty.” T.C.A. § 39-13-302(a) (2006).

        Looking to the first prong of the two-part inquiry required by Dixon, we must
determine whether there was additional movement or confinement in this case beyond that
necessary to consummate the accompanying crime, i.e., the rape. On the facts presented, we
believe that the evidence does establish such additional movement or confinement in excess
of the defendant’s confining the victim to the bed during the act of rape. Following the forced
intercourse with the victim, the defendant ordered her to go into the bathroom and bathe.
While the defendant did not physically force the victim into the bathroom or initially
accompany her, the record establishes that she was still under the defendant’s control based
upon the threats which had been made against her earlier. She was clearly being forced to act
and move by the defendant at the point that she entered the bathroom. Thus, we conclude that
the first prong of the test is satisfied as the movement or confinement was not necessary to

                                              -5-
consummate the rape.

       After reviewing the second step required by the analysis, we conclude that no due
process violation occurred because the additional movement or confinement as discussed
above was done to “lessen[] the defendant’s risk of detection.” It appears clear that the
defendant ordered the victim into the bathroom to bathe for the sole purpose of destroying
possible DNA evidence, as he was clearly aware that his sperm could be found on the victim’s
body. The defendant’s intent is further established in this case by his taking of the victim’s
sheets with him. He was obviously aware of and trying to destroy possible evidence which
could be used against him. The victim’s ability to thwart the defendant’s intent by only
pretending to bathe and, thus, preserving the evidence which eventually resulted in the
defendant’s arrest, is not relevant to this inquiry. Based upon our analysis, no due process
violation was established and, as such, both convictions may stand.

                                      CONCLUSION

       Based upon the foregoing, the judgments of conviction are affirmed.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




                                             -6-
