         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 27, 2007

              STATE OF TENNESSEE v. DEARICE CATES, ALIAS

                   Direct Appeal from the Criminal Court for Knox County
                       No. 84182A     Richard R. Baumgartner, Judge



                    No. E2006-02553-CCA-R3-CD - Filed January 28, 2008


The defendant was convicted by a Knox County jury of three counts of especially aggravated
kidnapping and one count each of aggravated robbery, attempted aggravated robbery, assault, and
aggravated burglary, and received an effective sentence of twenty-four years. The trial court
subsequently granted the defendant’s motion for judgment of acquittal as to the three especially
aggravated kidnapping convictions, holding that the defendant could not be convicted of both
kidnapping and robbery because the movement or confinement supporting each kidnapping
conviction was essentially incidental to the commission of the robbery, decisions which the State
appealed. The defendant likewise appealed, challenging the sufficiency of the evidence supporting
his conviction for aggravated robbery. We affirm the defendant’s conviction for aggravated robbery
and the trial court’s dismissal of one count of especially aggravated kidnapping. We reverse the trial
court’s dismissal of the remaining two counts of especially aggravated kidnapping and remand for
reinstatement of those convictions. In all other respects, the judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part,
                            Reversed in Part, and Remanded

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and D. KELLY
THOMAS, JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District
Attorney General, for the appellant, State of Tennessee.

Brandt Davis (on appeal) and Paul S. Hensley (at trial), Knoxville, Tennessee, for the appellee,
Dearice Cates.

                                              OPINION

                                                FACTS
        Tiffany Dailey testified that on July 24, 2005, she was living in a four-bedroom house in
Knoxville with her seven-year-old son, Demarcus, and four-year-old daughter, Dimiya.1 On the
night of the incident she took her children to her mother’s house to celebrate her son’s seventh
birthday, where he received money as a gift. When the three returned home, Demarcus placed his
money in a plastic container in his mother’s room and began playing with his sister while Ms. Dailey
cleaned the house. Ms. Dailey checked on the children between 9:00 and 9:30 p.m. and found them
asleep. She resumed cleaning and eventually fell asleep in Demarcus’ room, until she was awakened
by a voice telling her, “Bitch, get up.” Ms. Dailey testified that when she sat up she saw the
defendant standing in front of her with a gun pointed at her face. He ordered her to get up and give
him money. She informed him that she did not have any money, and the pair began walking through
the house. The defendant rubbed Ms. Dailey on the buttocks, hit her in the head, and said, “My boy
already got your kids back there laying down,” which caused her to run to her bedroom to be with
her children.

        When Ms. Dailey entered her bedroom, she found the codefendant holding a gun to the back
of her daughter, who was lying on top of her son. She could tell that the children had been moved
because they did not sleep in that position. The defendant continued to demand money from Ms.
Dailey, but he and the codefendant exited the room when they felt the vibration from a nearby train.
Ms. Dailey and her children then fled the home and sought assistance from a neighbor, who
summoned police. When the police escorted Ms. Dailey back to her home, she noticed that her son’s
belongings were strewn throughout his room, her drawers were pulled out, and clothes were scattered
around the house. She noticed that her cordless phone was missing, and her son told her that his
money was gone.

        Ms. Dailey subsequently identified the defendant from a photographic lineup. She testified
that she did not give the defendant or codefendant permission to enter her home or take her phone
or Demarcus’ money. Ms. Dailey acknowledged that she did not see the defendant or codefendant
take her phone or the money. She testified that she did not know how much money her son had
placed in the plastic container and that some money remained in the container after the robbery.

         Investigator Joseph Huckleby of the Major Crimes Unit of the Knoxville Police Department
testified that he interviewed Ms. Dailey on July 25, 2005, and showed her a photographic lineup
from which she identified the defendant. He later took the defendant into custody, read him his
Miranda rights, and interviewed him. An audiotape of the defendant’s statement to Investigator
Huckleby, in which the defendant acknowledged his presence at the crime scene, was played for the
jury.

       Demarcus Dailey, who was eight years old at the time of trial, testified that he knew he was
required to tell the truth and knew the difference between the truth and a lie. He said that his
grandmother had given him eight dollars for his seventh birthday and that when he arrived home the


        1
         To avoid repeating the entire names of Demarcus Dailey and Dimiya Dailey, since they share the same last
name, we will utilize their first names in this opinion. W e intend no disrespect by doing so.

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night of his birthday, he placed the money in a plastic container on top of the television in his
mother’s bedroom. He then fell asleep in that room with his sister. When he woke up, he saw two
men in the room, one with a mask and one with long braids. Demarcus testified that he watched the
man with the braids take his money from the top of the television. He said that the two men were
frightened by the train noise and left the bedroom. Demarcus remembered running to a neighbor’s
house with his sister after his mother told them to flee. Later, when the police escorted him back to
his house, Demarcus told his mother that his money was gone.

        Following deliberations, the jury convicted the defendant of the especially aggravated
kidnapping of Tiffany Dailey, Demarcus Dailey, and Dimiya Dailey (Counts 1, 3, and 7); the
attempted aggravated robbery, assault, and aggravated burglary of Tiffany Dailey (Counts 10, 14,
and 15); and the aggravated robbery of Demarcus Dailey (Count 12). He was sentenced as a Range
I, violent offender to twenty-four years for the especially aggravated kidnapping convictions in
Counts 3 and 7 and to twenty-two years for the especially aggravated kidnapping conviction in Count
1. He was sentenced as a Range I, standard offender to eleven years for the aggravated robbery
conviction, five years each for the attempted aggravated robbery and aggravated burglary
convictions, and six months for the assault conviction. All sentences were ordered to be served
concurrently for an effective sentence of twenty-four years.

       The defendant moved for a judgment of acquittal on the three convictions for especially
aggravated kidnapping, arguing that due process principles precluded convicting the defendant of
both robbery and kidnapping because any restraint or confinement used to support the kidnapping
charges was merely incidental to that required to commit the robbery. The trial court agreed and
reversed the convictions, finding that the movement and confinement of the victims was slight and
subjected the victims to no greater harm than the robbery.

                                           ANALYSIS

        On appeal, the State argues that the dual convictions for especially aggravated kidnapping
and aggravated robbery did not violate the defendant’s due process rights. The defendant urges that
we affirm the trial court’s reversal of each especially aggravated kidnapping conviction and, in his
appeal, argues that the evidence was insufficient to support his conviction for aggravated robbery.
On this issue, the State responds that the evidence supports the aggravated robbery conviction.

                      I. Especially Aggravated Kidnapping Convictions

       The United States and Tennessee Constitutions prohibit the deprivation of life, liberty, or
property without due process of law. U.S. Const. amend. XIV; Tenn. Const. art. I, § 8. Our supreme
court has twice considered whether this right to due process is violated by dual convictions for
kidnapping and another underlying felony stemming from the same incident. In State v. Anthony,
817 S.W.2d 299, 301 (Tenn. 1991), the defendant and an accomplice robbed a restaurant in Knox
County. While the accomplice detained three employees behind the restaurant, the defendant entered
and ordered a manager and a waitress to accompany him to the office to open the safe. After


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retrieving the contents of the safe, the defendant encountered another employee leaving the restroom
and ordered him to return to the restroom and remain there. Then, he and his accomplice departed
the restaurant. The defendant was convicted of the armed robbery of the store manager, the armed
burglary of the restaurant, and the aggravated kidnappings of all six employees. Id. The Tennessee
Supreme Court upheld this court’s reversal of each of the defendant’s aggravated kidnapping
convictions, holding that due process principles preclude dual convictions where the “confinement,
movement, or detention is essentially incidental to the accompanying felony and is not, therefore,
sufficient to support a separate conviction for kidnapping.” Id. at 306.

        In State v. Dixon, 957 S.W.2d 532, 533 (Tenn. 1997), the defendant had assaulted the victim
on a street, dragged her thirty to forty feet into some foliage on a nearby vacant lot, and raped her.
He was convicted of aggravated kidnapping, aggravated assault, and attempted sexual battery. Id.
Upholding the defendant’s dual convictions, the supreme court stated, “[t]he Anthony 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 act of rape or robbery.
Accordingly, any restraint in addition to that which is necessary to consummate rape or robbery may
support a separate conviction for kidnapping.” Id. at 534-35. The court explained that “it is the
purpose of the removal or confinement and not the distance or duration that supplies a necessary
element of aggravated kidnapping.” Id. at 535. Therefore, if a reviewing court finds that the
movement or confinement supporting the kidnapping conviction was beyond that necessary to
commit the accompanying felony, the court must then ask 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. If any of
these three conditions is satisfied, then a separate kidnapping conviction may stand.

                                        A. Tiffany Dailey

        The State argues that the defendant’s conviction for the especially aggravated kidnapping of
Tiffany Dailey should be reinstated because the movement of Ms. Dailey was not incidental to the
commission of the attempted aggravated robbery against her. As we understand it, the State
contends that the attempted aggravated robbery was complete when the defendant roused Ms. Dailey
and demanded money, so the act of following Ms. Dailey around her home and into her bedroom
supports a separate kidnapping conviction. According to the State, the defendant’s conviction for
assaulting Ms. Dailey while she was in the hallway establishes that the additional movement
supporting the kidnapping conviction increased the victim’s risk of harm. The defendant responds
that the attempted aggravated robbery was ongoing throughout the entire incident because he
continually demanded money from Ms. Dailey as they moved about the house, and any movement
or confinement that occurred was merely incidental to the robbery. The defendant argues that “if one
push of a victim would constitute excessive force, then virtually every robbery would also constitute
a kidnapping.”

       Applying the Anthony and Dixon decisions to this conviction, we first hold that the restraint
of Ms. Dailey’s liberty was beyond that necessary to consummate the act of attempted aggravated


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robbery. Although we recognize, as the defendant urges, that “[e]very robbery, by definition,
involves some detention against the will of the victim,” we nonetheless find that the detention in this
case extended beyond that necessary to complete the underlying felony. Aggravated robbery is, inter
alia, the intentional or knowing theft of property from the person of another by violence or putting
the person in fear, when accomplished with a deadly weapon. Tenn. Code Ann. § 39-13-402(a)(1)
(2006). As relevant here, a person commits criminal attempt who intentionally engages in action or
causes a result that would constitute an offense if the circumstances surrounding the conduct were
as the person believes them to be. Tenn. Code Ann. § 39-12-101(a)(1) (2006). Therefore, the
defendant committed attempted aggravated robbery against Ms. Dailey when he first ordered her to
get up and give him money in the mistaken belief that Ms. Dailey had money stored in her home.
While it is true that this offense necessarily required some restraint on Ms. Dailey’s liberty of
movement, it was unnecessary to follow Ms. Dailey around the house at gunpoint after she
immediately informed the defendant that she had no money to give him. The State’s argument that
this ancillary movement increased the victim’s risk of harm is persuasive. The record indicates that
as the defendant followed Ms. Dailey around the home, he touched her buttocks and hit her in the
head. Because the defendant imposed an additional restraint on Ms. Dailey’s liberty beyond that
required to commit attempted aggravated robbery, and because this restraint exposed Ms. Dailey to
an increased risk of harm, the trial court erred in reversing this especially aggravated kidnapping
conviction. Accordingly, the defendant’s conviction for especially aggravated kidnapping in Count
1 is reinstated.

                                         B. Dimiya Dailey

       The State next argues that the defendant’s conviction for the especially aggravated
kidnapping of Dimiya Dailey should be reinstated because she was not a victim of the attempted
aggravated robbery of Tiffany Dailey or the aggravated robbery of Demarcus Dailey. The defendant
counters that Dimiya’s confinement was brief and incidental to the robbery of Demarcus and
attempted robbery of Ms. Dailey, and did not substantially increase her risk of harm.

         We conclude that the confinement of Dimiya was not incidental to the aggravated robbery
or attempted aggravated robbery. It was not necessary to confine four-year-old Dimiya to facilitate
either robbery; she could not reasonably have been considered a threat to interfere with the robbery
or summon help. Her confinement substantially increased her risk of harm because it was
accomplished by holding a gun to her back. It is immaterial that she was confined only briefly, for
the statutory elements of especially aggravated kidnapping do not require a finding that the defendant
moved the victim any specific distance or restrained the victim for any particular length of time.
State v. Carvin Lamont Thomas, No. M2002-01716-CCA-R3-CD, 2003 WL 21233512, at *4 (Tenn.
Crim. App. May 28, 2003), perm. to appeal denied (Tenn. Oct. 27, 2003). Accordingly, the
defendant’s conviction for especially aggravated kidnapping in Count 7 is reinstated.




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                                          C. Demarcus Dailey

       The State contends that the defendant’s conviction for the especially aggravated kidnapping
of Demarcus Dailey should be reinstated because the robbery occurred after the kidnapping was
completed. The defendant replies that the confinement of Demarcus was no greater than that
necessary to consummate the robbery. As to these claims, as we will explain, we agree with the
defendant.

        Initially, we disagree with the State that the kidnapping was complete before the robbery
began. The proof at trial showed that the codefendant remained with the children during the entire
incident. The kidnapping offense was ongoing when the defendant took Demarcus’ money from the
plastic container. In any event, the temporal sequence of the two offenses is irrelevant to our
analysis. Anthony and Dixon prohibit dual convictions for kidnapping and an accompanying felony
whenever the movement or confinement used to support the kidnapping charge is merely incidental
to the commission of the other felony, drawing no distinction between kidnappings that are
completed prior to the commission of the other felony and those that are not.

         We now turn to the merits of the defendant’s claim. As stated previously, aggravated robbery
is the intentional or knowing theft of property from the person of another by violence or putting the
person into fear, using a deadly weapon. Especially aggravated kidnapping is, inter alia, the
knowing, unlawful removal or confinement of another so as to substantially interfere with the other’s
liberty, where the victim is under the age of thirteen. Tenn. Code Ann. § 39-13-305(a)(2) (2006).
The aiming of a firearm at Demarcus simultaneously confined him (an element of especially
aggravated kidnapping) and placed him into fear (an element of aggravated robbery). Herein lies the
distinction between the Demarcus and Dimiya convictions. It is possible to commit aggravated
robbery against Demarcus without confining Dimiya, but not without confining him. In other words,
the confinement of Demarcus was essentially incidental to the commission of the accompanying
felony, and a separate conviction for kidnapping cannot stand. Accordingly, we uphold the trial
court’s reversal of the conviction for especially aggravated kidnapping in Count 3.

                                II. Aggravated Robbery Conviction

         The defendant argues that the evidence was insufficient to support his conviction for the
aggravated robbery of Demarcus Where sufficiency of the convicting evidence is challenged, the
relevant question for the reviewing court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).




                                                    -6-
        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. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). “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). Our supreme court stated the
rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)).

       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. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

        The defendant asserts that his aggravated robbery conviction must be reversed because “the
[S]tate’s case rests solely on the uncorroborated testimony of this child [Demarcus] and is not
supported by any independent corroborative evidence.” He contends that the trial court erred by not
conducting an independent inquiry into Demarcus’ competence to testify. We reject the defendant’s
unstated premise that the testimony of children may not be accredited absent independent
corroboration. In Tennessee, there exists a rebuttable presumption that children under fourteen years
of age are competent to testify. State v. Campbell, 904 S.W.2d 608, 612 (Tenn. Crim. App. 1995).
The defendant did not sufficiently rebut this presumption at trial. It is true that Demarcus
acknowledged on cross-examination that he had discussed his testimony with the prosecutor.
However, the following exchange between Demarcus and the prosecutor prior to direct examination
provided a sufficient basis for the trial court to find him competent to testify:

       Q: Now, Demar, you know that you’ve got to tell the truth today? And you’ve got
       to say “yes” or “no.”

       A: Yes.

       Q: Okay. So, Demar, you see this flag behind you, if I were to say that this was
       purple, would that be a truth or a lie?

       A: Lie.


                                                  -7-
       Q: And you understand that I can’t say it. If I say that–if I tell a lie, I’d get into
       trouble?

       A: Yeah.

       Q: You understand. So you got to tell the truth. Okay?

       A: (Indicated by moving head up and down.)

       Q: Can you do that for us today?

       A: Yes.

        The trial court was not required to independently examine Demarcus’ competence. The
competency of a witness is a matter entrusted to the sound discretion of the trial judge. State v.
Carroll, 36 S.W.3d 854, 866 (Tenn. Crim. App. 1999). The trial court did not abuse its discretion
in finding Demarcus competent to testify based on the State’s examination.

        Turning to the sufficiency of the proof, Tiffany Dailey testified that the defendant brandished
a firearm during their encounter. From a photographic lineup, she later identified the defendant,
depicted wearing braids, as her attacker. Demarcus Dailey testified that he saw a man with braids
take his money from the plastic container on top of the television. From this evidence, a rational jury
could find that the defendant committed each element of the offense of aggravated robbery. This
issue is without merit.

                                          CONCLUSION

       Based upon the foregoing reasoning and authorities, the judgments of the trial court in Counts
1 and 7 are reversed, the defendant’s convictions for especially aggravated kidnapping in those
counts are reinstated, and the case is remanded to the trial court for entry of amended judgments in
accordance with this opinion. In all other respects, the judgments of the trial court are affirmed.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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