         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     June 7, 2005 Session

                 STATE OF TENNESSEE v. LONNIE M. MACLIN

                      Appeal from the Criminal Court for Shelby County
                             No. 03-00440   Chris Craft, Judge



                   No. W2004-00468-CCA-R3-CD - Filed October 17, 2005


The Appellant, Lonnie M. Maclin, was convicted by a Shelby County jury of first degree felony
murder, attempted aggravated robbery, misdemeanor reckless endangerment, especially aggravated
kidnapping, aggravated robbery, reckless aggravated assault, and two counts of aggravated assault.
As a result of these convictions, Maclin received an effective sentence of life imprisonment. On
appeal, Maclin raises three issues for our review: (1) whether the indictment was invalid for failure
to provide “adequate notice of the offenses charged in the indictment, or the court erred in the
instruction to the jury”; (2) whether the evidence is sufficient to support his conviction for felony
murder; and (3) whether his conviction for especially aggravated kidnapping violates State v.
Anthony, 817 S.W.2d 299 (Tenn. 1991). After review of the record, we affirm the judgments of
conviction.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ALAN
E. GLENN , JJ., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the Appellant, Lonnie M. Maclin.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Tim Hoover and Michelle Parks, Assistant
District Attorney Generals, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

       On the afternoon of September 25, 2002, the Appellant spoke with Derek Robinson, an
admitted drug dealer, about purchasing some marijuana. After Robinson left the area, the Appellant
was overheard discussing a “stang,” a term which is street slang for committing a robbery. Later that
evening, at approximately 10:00 p.m., Robinson, along with LeKeshia Jones, her sister, Kaneshia
Jones, and Kaneshia’s infant, went to the home of Karen Arnold, four or five houses down from the
Appellant’s home on Arrendale, to sell drugs. The Jones sisters remained in the car during the
transaction. Robinson returned to the car and, just as he was getting into the car, the Appellant,
dressed in dark clothing, approached him. After Robinson informed the Appellant that he had no
marijuana to sell, the Appellant asked for a ride up the street. When Robinson told the Appellant
that he wanted to take the Jones sisters home first, the Appellant displayed a gun, pointed it at
Robinson’s face, and stated “bitch, drop it all.” The Appellant then patted down Robinson’s pants
and grabbed a ring from Robinson’s hand.

        At this point, the Appellant ordered everyone out of the car, waving his gun around as he
spoke. The Jones sisters immediately got out of the car. As Robinson attempted to slide out the
passenger side door, the Appellant hit Robinson with the gun. The Appellant, now driving
Robinson’s 1981 brown Cadillac, proceeded down the street to Robinson’s home, where he parked
in the driveway. Robinson informed the Appellant that he was not going inside his home because
his kids were awake. The Appellant responded, “who said we’re going to your house, you know
what I want.”

        The Appellant then removed Robinson from the car and escorted him next door to the home
of Hashim McFee. After repeated knocking, McFee opened the door to find the Appellant pointing
a gun at Robinson, whom the Appellant pushed inside when the door opened. The Appellant
repeatedly asked “where’s the dope,” continually becoming more aggressive. McFee told the
Appellant that the drugs were in a closet, and the three of them, with the Appellant still displaying
the gun, proceeded down a hallway towards the back bedroom. At some point, McFee winked at
Robinson as if to indicate that he was going to do something. Inside the room, McFee moved
towards the closet as if to open it; however, he swung around and grabbed the Appellant’s arm. A
struggle ensued, and two shots were fired in rapid succession. McFee was struck twice and died as
a result of the wounds. “In split seconds,” the Appellant fired a third shot at Robinson. The
Appellant then fled the scene in Robinson’s Cadillac. The Jones sisters called 911.

         At approximately the same time, Latoya Echols was standing at the gas pumps of a nearby
Circle K convenience store. Just as she finished pumping the gas, the Appellant drove through the
parking lot at a high rate of speed in Robinson’s car and struck Ms. Echols’ car. A Memphis City
police officer who was stopped at the Circle K witnessed the event. The Appellant, seeing the
officer, proceeded to run. The Appellant was eventually apprehended and placed under arrest. No
weapons, money, or drugs were found when the Appellant was captured. However, the ring taken
earlier from Robinson was found in the car.

         On January 28, 2003, a Shelby County grand jury returned an eight-count indictment
charging the Appellant with: (1) felony murder of Hashim McFee; (2) attempted aggravated robbery
of McFee; (3) attempted first degree murder of Derek Robinson; (4) especially aggravated
kidnapping of Robinson; (5) aggravated robbery of Robinson; (6) aggravated assault of Lakeshia
Jones; (7) aggravated assault of Kenisha Jones; and (8) aggravated assault of Latoya Echols. After
a jury trial, which began on January 12, 2004, the Appellant was convicted of: (1) first degree felony


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murder; (2) attempted aggravated robbery; (3) reckless endangerment; (4) especially aggravated
kidnapping; (5) aggravated robbery; (6) two counts of aggravated assault; and (7); reckless
aggravated assault. The jury sentenced the Appellant to life imprisonment for the first degree murder
conviction. The trial court subsequently sentenced the Appellant to three years for attempted
aggravated robbery, eleven months and twenty-nine days for reckless endangerment, fifteen years
for especially aggravated kidnapping, eight years for aggravated robbery, three years for each
aggravated assault, and two years for reckless aggravated assault. All sentences were ordered to be
served concurrently with the Appellant’s sentence of life imprisonment. Subsequently, the Appellant
filed a motion for new trial, which was denied by the trial court on February 13, 2004. This appeal
followed.

                                               Analysis

       On appeal, the Appellant has raised three issues for our review: (1) whether the first degree
felony murder indictment was insufficient in that it failed to provide notice that the Appellant was
charged with felony murder in the perpetration of an attempted robbery, as opposed to the
perpetration of a robbery, and whether the court erred in charging the jury regarding felony murder;
(2) whether the trial court erred in finding the evidence sufficient to support his conviction for felony
murder; and (3) whether his conviction for especially aggravated kidnapping violates State v.
Anthony.

I. Sufficiency of the Indictment/Jury Charge

         The Appellant argues that the trial court erred “in charging the jury with T.C.A. § 39-13-
202(a)(2) in its entirety even though the Indictment relied upon the ‘attempt to perpetrate’ language
of the statute[.]” Although the Appellant frames the issue as a jury instruction error, his argument
focuses entirely upon his assertion that he was not provided adequate notice of the offense charged
in the indictment. In support, he argues that the indictment charged him with felony murder during
the perpetration of a robbery, while the proof at trial established that the felony murder occurred
during the perpetration of an attempted robbery.

        Under both the United States and the Tennessee Constitutions, a charging instrument, such
as an indictment, must inform the accused of “the nature and cause of the accusation.” See U.S.
CONST. amend. VI; TENN. CONST. art. I, § 9. In addition to these constitutional guarantees, the form
of an indictment in Tennessee is prescribed by statute:

                The indictment must state the facts constituting the offense in ordinary and
        concise language, without prolixity or repetition, in such a manner as to enable a
        person of common understanding to know what is intended, and with that degree of
        certainty which will enable the court, on conviction, to pronounce the proper
        judgment; . . .

Tenn. Code Ann. § 40-13-202 (2003).


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        Thus, a criminal indictment must include a sufficient description of the offense to ensure that
the defendant understands the nature of the charge. Jackson v. Virginia, 443 U.S. 307, 314, 99 S.
Ct. 2781, 2786 (1979). The essential functions of the indictment are to provide notice of the charge,
enable entry of a proper judgment upon conviction, and protect against double jeopardy. State v.
Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). Indictments need not conform to strict pleading
requirements. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Historically, strict pleading in
indictments was required because offenses existed at common law which did not have elements that
were easily ascertainable by reference to a statute. Id. at 728. Because such common law offenses
no longer exist, to hold on to strict pleading requirements would be embracing “technicalities that
are empty and without reason.” Id. (quoting State v. Cornellison, 59 S.W.2d 514, 515 (Tenn. 1933));
see also State v. Hammonds, 30 S.W.3d 294, 299 (Tenn. 2000). “[W]e now approach ‘attacks upon
indictments, . . . from the broad and enlightened standpoint of common sense and right reason rather
than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault
finding.’” Hill, 954 S.W.2d at 728 (quoting United States v. Purvis, 580 F.2d 853, 857 (5th Cir.
1978)).

        It has been held that an indictment which references the statute defining the offense is
sufficient and satisfies the constitutional and statutory requirements of Hill, giving the accused
sufficient notice of the charged offense. See State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); State
v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998).
Additionally, an indictment need not allege the specific theory or means by which the State intends
to prove each element of an offense. See Hammonds, 30 S.W.3d at 302; Wyatt v. State, 24 S.W.3d
319, 324 (Tenn. 2000); State v. Lemacks, 996 S.W.2d 166, 172-73 (Tenn. 1999). Indeed,
indictments which achieve the overriding purpose of notice to the accused will be considered
sufficient to satisfy both constitutional and statutory requirements. Hammonds, 30 S.W.3d at 300.

       The indictment in this case charged that the Appellant:

       on September 25, 2002, in Shelby County, Tennessee, and before the finding of this
       indictment, did unlawfully and with the intent to commit Robbery kill HASHIM
       MCFEE during the perpetration of Robbery, in violation of T.C.A. 39-13-202,
       against the peace and dignity of the State of Tennessee.

        Applying the applicable law to this case, we conclude that the language of the indictment
provided the Appellant with ample notice of the offense charged, including felony murder during
the perpetration of an attempted robbery. The indictment contained a specific reference to the statute
allegedly violated. Moreover, Count 2 of this indictment charged the Appellant with the attempted
robbery of McFee on the date in question. In our view, the content of the indictment sufficiently
apprised the Appellant of the nature of the charges against him so as to enable the entry of proper
judgments and to protect against double jeopardy. Moreover, with regard to the Appellant’s
argument that the trial court erred in its instruction of felony murder, the record demonstrates that




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no error occurred.1 The jury was properly instructed that in order to convict of felony murder, the
State was required to prove that the “killing was committed in the perpetration of or the attempt to
perpetrate the alleged robbery.” Because the instruction does not infringe upon the jury’s fact
finding role of a contested issue at trial, no error is presented. See Neder v. United States, 527 U.S.
1, 18, 119 S. Ct. 1827, 1838 (1999).

II. Sufficiency of the Evidence

         The Appellant argues that the evidence is insufficient to support his conviction for felony
murder, asserting that the evidence presented supports, at best, only a conviction for voluntary
manslaughter. In considering this issue, we apply the rule that where the sufficiency of the evidence
is challenged, the relevant question for the reviewing court is “whether, after viewing the evidence
in the light most favorable to the [State], any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct.
at 2789; see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact. State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate
the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       The Appellant was convicted of first degree felony murder, which is defined in pertinent part
by Tennessee Code Annotated section 39-13-202(a)(2) (2003) as a “killing of another committed in


       1
           The trial court properly instructed the jury with regard to the offense of felony murder as follows:

                   (1) That the defendant unlawfully killed Hashim McFee; and

                   (2) That the killing was committed in the perpetration of or the attempt to perpetrate
                   the alleged robbery; that is that the killing was closely connected to the alleged
                   robbery and wasn’t a separate and distinct and independent event; and

                   (3) That the defendant intended to commit the alleged robbery.

                The intent to commit the underlying robbery must exist prior to or at the same time as the
       commission of the act or acts causing the death of the victim. Proof that such intent to commit the
       underlying robbery existed before, or at the same time as, the act of killing is a question of fact to be
       decided by the jury after consideration of all the facts and circumstances.

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the perpetration of or attempt to perpetrate any . . . robbery.” Under the felony murder rule, it is
immaterial whether the killing of the victim by the defendant was intentional or accidental, as the
requisite intent for felony murder is the defendant’s intent to commit the underlying felony. Tenn.
Code Ann. § 39-13-202(b). Robbery is defined as “the intentional or knowing theft of property from
the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401
(2003).

        Within his sufficiency argument, the Appellant also asserts that there was no evidence
presented which establishes that the victim was killed during the perpetration of a robbery, as it was
not shown that anything was taken. Thus, he asserts that a rational juror could not have concluded
that a robbery had occurred. As discussed infra, we conclude that the trial court’s instruction
properly submitted to the jury the factual issue of whether “the killing was committed in the
perpetration of or the attempt to perpetrate the alleged robbery.” Thus, in order to convict of first
degree felony murder, the jury was not required to find that the victim was killed during the
perpetration of a robbery.

        Clearly, probative evidence was presented at trial which would permit a rational juror to
conclude that the Appellant killed McFee during the perpetration of an attempted robbery. Viewing
the evidence in the light most favorable to the State, the proof established that the Appellant, armed
with a weapon, entered the home of Hashim McFee demanding the drugs which he believed to be
kept in the house. The Appellant, still pointing the loaded weapon at both McFee and Robinson,
ordered them down a hall to the back bedroom to obtain the drugs. When McFee attempted to resist
the Appellant, shots were fired, and McFee died. Regardless of whether the Appellant actually took
anything from the home, obviously Mcfee was killed during the Appellant’s attempt to perpetrate
an aggravated robbery. This issue is without merit.

III. State v. Anthony

        Last, the Appellant argues that the trial court erred in failing to dismiss the especially
aggravated kidnapping conviction pursuant to State v. Anthony because the crime was essentially
incidental to the aggravated robbery offense. The Appellant asserts that “the movement of Derek
Robinson to his house where the marijuana was thought to be stored was necessary to consummate
the crime of Aggravated Robbery.”

        In Anthony, our supreme court addressed the issue of whether dual convictions for armed
robbery and aggravated kidnapping violated the due process guarantees of Article I, section eight of
the Tennessee Constitution. The court concluded that when a confinement, movement, or detention
is “essentially incidental” to an accompanying felony, such as robbery or rape, it is not sufficient to
support a separate conviction for kidnapping. Anthony, 817 S.W.2d at 306. In other words, before
a defendant may be convicted of a kidnapping charge, the trial court must determine 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


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to support such a conviction. Id. The court noted that “every robbery, by definition, involves some
detention against the will of the victim, if only long enough to take goods or money from the person
of the victim.” Id. “[O]ne method of resolving this question is to ask whether the defendant’s
conduct ‘substantially increased [the] risk of harm over and above that necessarily present in the
crime . . . itself.’” Id. (quoting State v. Rollins, 605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)).

        In State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the court revisited the Anthony issue and
held that the decision should only prevent the injustice which would occur if a defendant could be
convicted of kidnapping where the only restraint utilized was that necessary to complete the intended
crime. Accordingly, any restraint in addition to that which is necessary to consummate the intended
crime may support a separate conviction for kidnapping. Id. at 535. In Dixon, the court established
a two prong test for determining whether a separate conviction for kidnapping violates due process.
First, the trial court must determine whether the movement or confinement was beyond that
necessary to commit the accompanying felony. Id. If so, the court must then ascertain 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.

       After review, we conclude that the detention of Robinson was not merely incidental to the
robbery. The indictment for aggravated robbery charged the Appellant with the taking of Robinson’s
car and his ring. The trial court found that:

       . . . in this case, the aggravated robbery was the robbery of his car. And after the
       robbery was complete and he had him in the car, he continued to put a gun on his
       head and take him to someone else’s house to commit another crime. Because of
       that, the aggravated robbery and the especially aggravated kidnapping are not based
       on the same events.

The facts establish that the Appellant walked up to Robinson’s car, which was occupied by Robinson
and the Jones sisters. After a brief conversation, the Appellant displayed a gun, took possession of
Robinson’s vehicle, and proceeded to take a ring from Robinson’s finger. At this point, the
aggravated robbery was complete. However, as Robinson attempted to leave, the Appellant pulled
Robinson back into the car, hit him with the gun, and proceeded to drive him down the street where
he was forced to enter McFee’s house. Thus, the confinement in this case was beyond that necessary
to commit the accompanying felony of aggravated robbery. See State v. Rashe Moore, No. W2002-
01195-CCA-R3-CD (Tenn. Crim. App. at Jackson, Dec. 3, 2003), perm. to appeal denied, (Tenn.
Apr. 5, 2004) (concluding that where the robberies occurred before the victims were moved and
confined in the kitchen, the convictions for especially aggravated kidnapping were not incidental to
the accompanying felonies).

        Turning to the second prong of the analysis, we conclude that the confinement of Robinson
did in fact hinder him in summoning help; thus, the Appellant’s risk of apprehension was lowered.
It was not until after the Appellant left McFee’s home that Robinson was able to contact police.
Moreover, the continued movement and confinement of Robinson clearly increased his risk of harm.

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Accordingly, we conclude that the Appellant’s conviction for especially aggravated kidnapping did
not violate due process. This issue is without merit.

                                        CONCLUSION

       Based upon the foregoing, the judgment of the Shelby County Criminal Court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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