        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               September 24, 2013 Session

                   STATE OF TENNESSEE v. TRAVEI PRYOR

               Direct Appeal from the Criminal Court for Knox County
                      No. 96358    Jon Kerry Blackwood, Judge


                  No. E2012-02638-CCA-R3-CD - Filed April 17, 2014


A Knox County Criminal Court Jury convicted the appellant, Travei Pryor, of eleven counts
of aggravated kidnapping, a Class B felony; four counts of aggravated robbery, a Class B
felony; four counts of aggravated burglary, a Class C felony, one count of employing a
firearm during the commission of a dangerous felony and one count of possessing a firearm
during the commission of a dangerous felony, Class C felonies; and one count of criminal
impersonation, a Class B misdemeanor. After a sentencing hearing, he received an effective
twelve-year sentence. On appeal, the appellant contends that the evidence is insufficient to
support his convictions for employing/possessing a firearm during the commission of a
dangerous felony and that the trial court committed reversible error by failing to instruct the
jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012). Based upon the oral
arguments, the record, and the parties’ briefs, we conclude that the trial court’s failure to
instruct the jury pursuant to White constitutes reversible error. Therefore, the appellant’s
eleven convictions for aggravated kidnapping must be reversed and the case remanded to the
trial court for a new trial as to those offenses. The appellant’s remaining convictions are
affirmed. However, upon remand, the trial court is to merge the appellant’s aggravated
robbery convictions in counts 7 and 8 and counts 9 and 10 and enter single judgments of
conviction for those offenses.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, J., joined. J OHN E VERETT W ILLIAMS, J., concurred in part and dissented in
part.

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, Travei Pryor.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                   I. Factual Background

       In January 2011, the appellant and his two codefendants, Walter Patrick and Paul
Gillespie, were charged in a multi-count indictment with eleven counts of especially
aggravated kidnapping, four counts of aggravated robbery; four counts of aggravated
burglary; one count of employing a firearm during the commission of a dangerous felony;
and one count of possessing a firearm during the commission of a dangerous felony. In
addition, the appellant and Patrick were charged with criminal impersonation. The
appellant’s case was severed from that of his codefendants.

       At trial, twenty-year-old Landry Stanton testified that he used to attend Carter High
School in Knox County and played football and basketball for Carter High for three years.
During that time, he played against the appellant, who attended Austin East High School.
Landry1 said that he was not around the appellant very often and “didn’t really know him”
but that he knew the appellant’s face and had heard the appellant’s voice. On the morning
of September 17, 2010, Landry was in his home on Asheville Highway. He shared the home
with his brother, Brett Stanton, and Robert Gorman, both of whom were in their bedrooms.
Three additional people were in the house: Vanessa Griph, Brett’s girlfriend, was in Brett’s
bedroom with him, and Josh Cox and Paul St. Aubin were sleeping on couches in the living
room.

        Landry testified that about 9:00 a.m., he awoke and started getting ready for work. He
said that while he was in the bathroom, he heard a “big bang” in the living room and heard
someone say, “‘Get the f*** on the ground.’” Landry said that he panicked, that he walked
out of the bathroom, and that a male pointed a gun at him. Landry immediately recognized
the male’s face and voice as that of the appellant. The appellant told him to go into the living
room and get on the floor, and Landry did as he was told. He said that Brett “peek[ed]” out
of Brett’s bedroom to see what was going on and that the appellant told Brett to come into
the living room and get on the floor. Brett did as the appellant instructed, and the appellant
asked him if anyone else was in the house. Brett told the appellant that his girlfriend was in
his bedroom. The appellant told Brett to get her and bring her into the living room, which
Brett did. Landry said that when Robert Gorman “poke[d]” his head out of his bedroom, the

       1
         Because two of the witnesses share a surname, we will refer to them by their first names
for clarity.

                                               -2-
appellant told Gorman to get on the ground. The appellant wanted to know where the
“weed” and money were and took Brett back to Brett’s bedroom. The appellant took eighty
dollars and two Mason jars containing marijuana from Brett’s room. Then the appellant
brought Brett out of the bedroom and left with a second male, who also had a gun and had
been standing by the front door during the robbery. Landry did not recognize the second
male but had seen him previously.

         Landry testified that during the robbery, Josh Cox was lying on the living room floor
and Paul St. Aubin was lying on one of the living room couches with “his face in the couch.”
As the robbers were leaving the home, they grabbed Cox’s wallet off a table. Landry
described the appellant’s gun as “all black.” He said that it was not a revolver and that the
appellant’s pointing the gun at him was “[o]ne of the scariest things that ever happened in
[his] life.” The robbers fled in an older-model Ford truck, and Brett telephoned 911. At first,
the victims did not reveal to the police that the robbers had taken marijuana. However, they
later told Detective Colin McLeod about the stolen drugs.

        On cross-examination, Landry testified that one of the Mason jars was one-half full
of marijuana but that the second jar was only one-quarter full. When Brett telephoned 911
after the robbery, he did not report that the robbers had taken marijuana. A police officer
arrived at the scene, and the victims also did not tell him that the robbers had taken
marijuana. Hours later, Detective McLeod arrived and confronted the victims about the
marijuana. At that point, they admitted marijuana was involved. Landry said that the
appellant was wearing a black hoodie over the appellant’s face during the robbery but that
he was still able to recognize the appellant. He acknowledged that the robbery lasted no
more than five minutes.

        Twenty-three-year-old Josh Cox testified that on the morning of September 17, 2010,
he was lying on a living room couch by the front door. Paul St. Aubin was asleep on a couch
across from Cox. Cox said he was sleeping when two males kicked in the front door. At
first, Cox did not realize what was happening. He said that by the time he realized what was
going on, one of the males was “already through the house.” The other male was standing
by the front door. Cox got onto the floor. He said that Landry Stanton appeared and that the
appellant told Landry to get on the floor. Brett and Robert Gorman came out of their
bedrooms, and Landry told Gorman what was going on. Gorman also got on the floor. The
appellant moved Brett and Vanessa Griph out of Brett’s bedroom, escorted Brett back into
the bedroom, and told him to get the “weed” and money. The appellant was holding a gun
and told the victims that he was going to start shooting if they moved. Cox was terrified. He
said that he heard the Mason jars containing marijuana “clink” together and that the two
robbers left the house. In addition to marijuana, Cox thought the appellant took money out
of Brett’s bedroom. The second robber took Cox’s wallet, which had been on a stand in front

                                              -3-
of the couch. Sometime after the robbery, Cox received a telephone call from the Knoxville
TVA Employees Credit Union in downtown Knoxville and was told that his wallet had been
found outside. Detective McLeod later returned Cox’s wallet to him.

       On cross-examination, Cox testified that when police officers arrived, he spoke with
them but did not tell them that marijuana was involved. He said he had “grown up with
guns” and was certain that the appellant used a real gun during the robbery. However, he did
not know if the gun was cocked. He acknowledged that his wallet contained credit cards and
that no one used the cards.

       Jessica Hurd testified that she was a former service member representative for the
Knoxville TVA Employee’s Credit Union located at Wall Avenue and Gay Street in
Knoxville. Sometime in the summer of 2010, a person gave Jason Cox’s wallet to Hurd.
Hurd said she telephoned Cox and spoke with his mother, who informed Hurd that the wallet
had been “taken.” While Hurd was at lunch, Detective McLeod came to the credit union and
picked up the wallet.

       Twenty-four-year-old Brett Stanton testified that he graduated from Carter High
School in 2006. In September 2010, Brett was living in a house on Asheville Highway with
his brother, Landry, and Robert Gorman. Brett said he knew the appellant “through sports
where [Landry] played against him.” Landry also had played basketball with Carjuan Hayes
for four or five years, and Hayes had been to their home three or four times to play video
games. Brett did not know Walter Patrick.

        Brett testified that on September 17, 2010, he was lying in bed and heard a “big bang.”
He left his bedroom and saw the appellant and Patrick holding guns. The appellant pointed
a gun at Brett and told him to get on the floor. Brett was terrified and did what he was told.
The appellant started screaming, wanting to know if anyone else was in the house. Brett told
the appellant that his girlfriend was in the back room, and the appellant made Brett bring
Vanessa Griph out of the bedroom. The appellant told Griph to get on the floor and told
Brett to go back into the bedroom. Brett said the appellant asked him “where the weed was”
and that he pointed to two Mason jars on the floor. One jar contained about one ounce of
marijuana, and the other contained a couple of grams of marijuana. The appellant took the
jars and grabbed seventy to ninety dollars that was on a futon in the bedroom. Brett said that
the appellant was covering the appellant’s mouth with a shirt during the robbery but that the
appellant dropped the shirt a couple of times. The appellant and Patrick left in an older-
model white truck.

      On cross-examination, defense counsel played Brett’s 911 call for the jury. Brett
acknowledged that he lied to the 911 operator by not revealing that the robbers had taken

                                              -4-
marijuana. He also acknowledged that he did not mention the marijuana until Detective
McLeod confronted him a couple of hours after the robbery. The appellant was holding a
black handgun during the robbery. Brett said that he did not know much about guns but that
the appellant’s gun “looked pretty real to me.” Defense counsel asked him, “But no way of
telling me for certain it was a real gun?” Brett answered, “Under the circumstances, I would
believe that it’s a real gun, hundred percent.” He said that the robbery “seemed like it
[lasted] forever” but acknowledged that it probably lasted five minutes or less.

        Twenty-four-year-old Robert Gorman testified that he used to attend Carter High
School and did not know the appellant. On September 17, 2010, Gorman was living in a
house on Asheville Highway with Landry and Brett Stanton. That morning, Gorman was
asleep in his bedroom when he heard a “big loud bang.” He got up to see what was going
on and saw two males with black guns. He said that one of the males told him to get on the
floor and that he did as he was told. The male asked, “‘Is there anybody else in the house?’”
Brett answered that his girlfriend was in his bedroom. After Vanessa Griph came out of
Brett’s room, Gorman heard the male say, “‘Where’s the weed? Where’s the money?”
Gorman was scared, stayed on the floor, and did not see what was happening. However, he
said, “I’m guessing he’s--he’s got the weed, and he’s got the money, and he’s leaving.”

        On cross-examination, Gorman testified that he did not talk with the police when they
first arrived at the scene. However, Gorman later spoke with an investigator and told him
about the marijuana.

        Twenty-four-year-old Paul St. Aubin testified that he used to attend Carter High
School and did not know the appellant. On September 17, 2010, St. Aubin was at the home
of Brett and Landry Stanton and was sleeping on a couch. A male kicked in the front door
of the home, and he and another male came inside. St. Aubin said that each male was
holding a gun and that he “immediately knew what was happening.” The males told him,
“‘Lay down. Don’t move.” St. Aubin was scared, remained lying on the couch, and “put
[his] hands out.” He said that one of the males was walking through the house and “clearing
everybody out.” The second male was standing at the front door. St. Aubin said that he
never saw their faces and that they asked, “‘Where’s the money? Where’s the weed at?”

       On cross-examination, St. Aubin testified that he did not give a statement when the
police arrived and did not tell them about the marijuana. He acknowledged that he did not
know whether the robbers’ guns were real and that they left the home as soon as they got the
marijuana and money. St. Aubin could not identify the appellant as one of the robbers.

      Twenty-three-year-old Vanessa Griph testified that she used to attend Carter High
School and did not know the appellant. On the morning of September 17, 2010, Griph was

                                             -5-
at the home of her boyfriend, Brett Stanton. Griph said she was lying in bed and heard a “big
bang.” Brett opened the door, turned around, and told Griph to call 911. Griph looked out
the bedroom window and saw a white truck that she had not seen previously. She said that
she dialed 911 and started to put her clothes on but that by that time, the appellant had arrived
at the bedroom door and “was waiving a gun in [her] face.” She said that the gun was black
and that she was trying to pay attention to the appellant’s face but that he “had his shirt up.”
The appellant told Griph to go into the living room and get on the floor, and she did as she
was told. Griph identified the appellant in court as the male who pointed the gun at her and
made her get on the floor.

        On cross-examination, Griph acknowledged that after the appellant moved everyone
into the living room, he took Brett back into the bedroom. The appellant got the marijuana
from the bedroom and left the house. Griph said that she had never seen a gun prior to that
day and did not know if the appellant’s gun was real but that it “didn’t look fake to me.” She
acknowledged that no one told the first officers on the scene about the marijuana.

        Officer Terry Pate of the Knoxville Police Department (KPD) testified that on
September 17, 2010, he was patrolling the area of Dandridge Avenue and was two miles or
less from the Green Hills Apartments. Officer Pate began looking for a white pickup truck
related to the robbery, learned other officers had stopped the truck, and went to the truck’s
location. The people in the truck told the officers that they had come from an apartment in
the Green Hills Apartments, so Officer Pate and other officers went to the apartment to
conduct a “knock and talk.” Officer Pate said that when they arrived, he remained “one floor
down” and that a window to the apartment was above him. Officer Pate heard a commotion
and “some shuffling going on.” When the apartment door opened, he heard officers order
the people in the apartment to come outside. Officer Pate went to the apartment to assist and
smelled marijuana. He said that three or four people, including Walter Patrick and Carjuan
Hayes, came out of the apartment and that the officers conducted a protective sweep of the
apartment to make sure no one else was inside.

       Officer Pate testified that the officers received permission to search the apartment.
During the search, they found a glass Mason jar in the back bedroom where Officer Pate had
heard shuffling. Officer Pate said the type of marijuana in the jar was commonly referred to
as “buds” and was “high-end marijuana.” He said it weighed twenty-seven grams, which was
considered one ounce “in the street,” and was worth $350 to $700. The officers also found
a Glock gun case. Two gun magazines and a plastic bag were in the case, and the plastic bag
contained about thirty rounds of .40-caliber ammunition. On cross-examination, Officer Pate
acknowledged that the appellant was not in the apartment and did not live there.

       Officer Nathaniel Skellenger of the KPD testified that on November 3, 2010, he

                                               -6-
received a report of shots fired in the Mechanicsville area. He went to the area and saw a
white Ford Crown Victoria with two males standing beside it. Officer Skellenger approached
them and asked if they had heard gunshots. One of the males, who turned out to be the
appellant, told Officer Skellenger that his name was Wilmarcus Glasper. The other male,
who was Dominic Lane, told Officer Skellenger that the car was his and gave Officer
Skellenger permission to search it. In the glove compartment, Officer Skellenger found a
bottle of hydrocodone and a loaded Glock Model 22 .40-caliber pistol. The pistol contained
twelve rounds of ammunition, and one round was in the chamber. On cross-examination,
Officer Skellenger acknowledged that he arrested the appellant for criminal impersonation.

        At the conclusion of Officer Skellenger’s testimony, the State rested its case. The
appellant did not present any witnesses, and the jury convicted him as follows: Counts 1
through 4, alternative theories of aggravated burglary of Landry Stanton’s habitation; counts
5 and 6, employing a firearm during the commission of a dangerous felony and possessing
a firearm during the commission of a dangerous felony, respectively; counts 7 and 8,
alternative theories of aggravated robbery against Brett Stanton; counts 9 and 10, alternative
theories of aggravated robbery against Josh Cox; counts 11 and 12, aggravated kidnapping
as a lesser-included offense of alternative theories of especially aggravated kidnapping
against Vanessa Griph; counts 13 and 14, aggravated kidnapping as a lesser-included offense
of alternative theories of especially aggravated kidnapping against Josh Cox; counts 15 and
16, aggravated kidnapping as a lesser-included offense of alternative theories of especially
aggravated kidnapping against Paul St. Aubin; count 17, aggravated kidnapping as a lesser-
included offense of especially aggravated kidnapping against Robert Gorman; counts 18 and
19, aggravated kidnapping as a lesser-included offense of alternative theories of especially
aggravated kidnapping against Landry Stanton; counts 20 and 21, aggravated kidnapping as
a lesser-included offense of alternative theories of especially aggravated kidnapping against
Brett Stanton; and count 22, criminal impersonation.

       After a sentencing hearing, the trial court merged the appellant’s aggravated burglary
convictions in counts 1 through 4 and his employing/possessing a firearm during the
commission of a dangerous felony convictions in counts 5 and 6. The trial court sentenced
the appellant to consecutive sentences of six years for aggravated burglary, a Class C felony,
and six years for employing a firearm during the commission of a dangerous felony, a Class
C felony. The trial court sentenced the appellant to eight years for each of his aggravated
kidnapping convictions, a Class B felony, and six months for his criminal impersonation
conviction, a Class B misdemeanor, and ordered that those convictions be served
concurrently with the six-year sentence in count 1 for a total effective sentence of twelve
years.

                                        II. Analysis

                                             -7-
                               A. Sufficiency of the Evidence

       The appellant claims that the evidence is insufficient to support his convictions for
employing and possessing a firearm during the commission of a dangerous felony because
the evidence fails to show that he used an authentic firearm during the robbery; because the
victims’ lying to the police about the stolen marijuana demonstrates that they were not
credible; and because the Glock gun box, ammunition, and pistol found after the robbery
were never connected to him. The State argues that the evidence is sufficient. We agree
with the State.

        “When the sufficiency of the evidence is challenged, the relevant question is whether,
after reviewing 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.” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); see also Jackson v. Virginia, 443 U.S. 307, 319
(1979); Tenn. R. App. P. 13(e). “Because a guilty verdict removes the presumption of
innocence and replaces it with a presumption of guilt, on appeal a defendant bears the burden
of showing why the evidence is insufficient to support the conviction.” State v. Wagner, 382
S.W.3d 289, 297 (Tenn. 2012); see also State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The State must be afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. See Wagner, 382 S.W.3d at 297; State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). The jury, as the finder of fact, is responsible for
assessing the credibility of the witnesses, deciding the weight to accord their testimony, and
reconciling any conflicts in the proof. See Wagner, 382 S.W.3d at 297; State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). On appeal, this court cannot re-weigh the evidence or draw
any inferences from it other than those drawn by the jury. See Wagner, 382 S.W.3d at 297;
Cabbage, 571 S.W.2d at 835. A guilty verdict can be based upon direct evidence,
circumstantial evidence, or a combination of both. “The standard of review ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” Dorantes, 331
S.W.3d at 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       As charged in the indictment, it is an offense to possess a firearm with the intent to
go armed during the commission of a dangerous felony or employ a firearm during the
commission of a dangerous felony. Tenn. Code Ann. § 39-17-1324(a), (b)(1). The trial court
instructed the jury that the “dangerous felony” in this case was aggravated burglary. See
Tenn. Code Ann. § 39-17-1324(i)(1)(H).

         Taken in the light most favorable to the State, the evidence shows that on the morning
of September 17, 2010, the appellant and Walter Patrick kicked open the door to the home
of Landry Stanton, Brett Stanton, and Robert Gorman. The appellant had a handgun, pointed
it at the three residents and their three guests, and forced all but one of them onto the living

                                               -8-
room floor. He also threatened to “start shooting” if anyone moved. Josh Cox testified that
he had “grown up with guns” and was certain the appellant’s gun was real. Brett Stanton
testified that the appellant’s gun looked authentic and that he thought it was real “[one]
hundred percent.” In fact, nothing indicates that the weapon used by the appellant was
anything but a real firearm.                See State v. Billy J. Blankenship, No.
E2011-01550-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 889, at*21 (Knoxville, Oct. 31,
2012) (concluding in defendant’s appeal of his robbery and theft convictions that testimony
by bank employees and still photographs taken during bank robbery “revealed nothing to
indicate that the gun in Blankenship’s hand was anything other than an actual firearm capable
of shooting bullets”). As for the appellant’s claim that the victims’ testimony about the gun
was not credible, the credibility of the witnesses is within the purview of the jury. See State
v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “the weight and
credibility of the witnessess’ testimony are matters entrusted exclusively to the jury as the
trier[ ] of fact”). The jury obviously accredited the victims’ testimony. Therefore, we
conclude that the evidence, regardless of whether the pistol found after the robbery was
linked to the appellant, is sufficient to support the convictions.

                                       B. White Instruction

       The appellant contends that the trial court committed reversible error by failing to
instruct the jury properly on the especially aggravated kidnapping charges in light of State
v. White, 362 S.W.3d 559 (Tenn. 2012).2 The State concedes that the trial court erred with
regard to the appellant’s aggravated kidnapping convictions in counts 13 and 14 involving
Josh Cox and his aggravated kidnapping convictions in counts 20 and 21 involving Brett
Stanton. However, the State argues that the trial court’s error was harmless. We conclude
that White applied in this case, that the trial court did not instruct the jury properly, and that
the error was not harmless beyond a reasonable doubt. Therefore, the appellant’s eleven
convictions for aggravated kidnapping must be reversed and the case remanded to the trial
court for a new trial on those offenses.

       Relevant to 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


       2
         We note that White was decided after the appellant’s trial and after the appellant filed his
motion for new trial. However, the appellant raised White in his amended motion for new trial, and his
case was in the “‘appellate pipeline’” when the supreme court issued its opinion. State v. Robert Jason
Burdick, No. M2012-01071-CCA-R3-CD2013 Tenn. Crim. App. LEXIS 494, at *33 (Nashville, June 11,
2013) (quoting State v. Bennie Osby, No. W2012-00408-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS
903, at *22 (Jackson, Nov. 2, 2012), perm. to appeal denied, (Tenn. 2013)).

                                                  -9-
the victim to reasonably believe it to be a deadly weapon.” False imprisonment is defined
as the knowing removal or confinement of another unlawfully so as to interfere substantially
with the other’s liberty.3 Tenn. Code Ann. § 39-13-302(a). The jury ultimately convicted
the appellant of aggravated kidnapping, which, as defined in this case, is false imprisonment
“[c]ommitted . . . [w]hile the defendant is in possession of a deadly weapon or threatens the
use of a deadly weapon.” Tenn. Code Ann. § 39-13-304(a)(5). Our 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 30. 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.



       3
        Counts 11, 13, 15, 18, and 20 alleged that the defendants removed the named victims, and
counts 12, 14, 16, 17, 19, and 21 alleged that the defendants confined the named victims.

                                                 -10-
        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:

              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

                                             -11-
                     • 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 White is inapplicable to the aggravated kidnappings of Vanessa
Griph in counts 11 and 12; Paul St. Aubin in counts 15 and 16; Robert Gorman in count 17;
and Landry Stanton in counts 18 and 19 because the victims of the aggravated robberies were
Brett Stanton in counts 7 and 8 and Josh Cox in counts 9 and 10. The State contends that
“[s]ince the other aggravated kidnapping victims were not victims of aggravated robbery,
those kidnapping offenses did not ‘accompany’ the robbery offenses as contemplated in
White.” Using that same rationale, the State concedes that the trial court erred by failing to
instruct the jury on the “substantial interference” element outlined in White for the
aggravated kidnappings of Cox in counts 13 and 14 and Brett in counts 20 and 21. However,
the State argues that the trial court’s error was harmless.

       We disagree with both of the State’s arguments. As this majority recently stated, “Our
supreme court never said in the Anthony/Dixon/White line of cases that the fact that the
victim of the kidnapping was different than the named victim of the accompanying felony
eliminated the need for due process analysis.” State v. Josh L. Bowman, No. E2012-00923-
CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 735, at *44 (Jackson, Aug. 29, 2013), perm.
to appeal denied, (Tenn. 2014). In fact, in Bowman, we noted that Anthony involved the
aggravated kidnappings of five victims who were different from the victim named in the
charge for armed robbery. Moreover, as Judge Witt recently pointed out in his dissent in
State v. Ricco R. Williams,

              [a]lthough . . . the thrust of White and State v. Terrance Antonio
              Cecil, 409 S.W.3d 599 (Tenn. 2013), is to diminish the ambit of
              due process concerns relative to kidnapping (or false
              imprisonment) convictions, . . . nothing other than the highlight
              of the ‘standing alone’ language . . . has changed the rule so as
              to require as a function of due process principles that the
              kidnapping victim be also a victim of the accompanying felony.

No. W2011-02365-CCA-RM-CD, 2014 Tenn. Crim. App. LEXIS 11, at *34 (Jackson, Jan.
7, 2014) (Witt, J., dissenting); see also State v. Jerome Maurice Teats, No.
M2012-01232-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 18, at *90 (Nashville, Jan. 10,
2014) (Tipton, J., dissenting) (stating that “[a]lthough the supreme court altered in White

                                             -12-
how the question of whether a kidnapping is incidental to another felony is to be resolved,
it did not alter the rationale in Anthony regarding the circumstances in which the due process
protection arises”), application for perm. to appeal filed, (Tenn., Mar. 11, 2014).

      In this case, the trial court instructed the jury on especially aggravated kidnapping as
follows:

                    Any person who commits the offense of especially
              aggravated kidnapping is guilty of a crime.

                      For you to find the defendant guilty of this offense, the
              state must have proven beyond a reasonable doubt the existence
              of the following essential elements:

                     (1) that the defendant knowingly removed or
                     confined another unlawfully so as to interfere
                     substantially with the other’s liberty; and

                     (2) that the confinement or removal was
                     accomplished with a deadly weapon or by display
                     of any article used or fashioned to lead the alleged
                     victim to reasonably believe it was a deadly
                     weapon.

Although the trial court instructed the jury in accordance with the pattern jury instruction in
effect at that time, it “did not define the key element—the substantial interference with the
victim’s liberty—as requiring a finding by the jury that the victim’s removal or confinement
was not essentially incidental to the accompanying felony offense.” White, 362 S.W.3d at
580. Given the facts of this case, we conclude that the issue of whether the appellant
substantially interfered with the liberty of Landry Stanton, Brett Stanton, Josh Cox, Vanessa
Griph, Paul St. Aubin, and Robert Gorman in the accompaniment of aggravated robbery was
fairly raised by the evidence, and, therefore, that the trial court failed to instruct the jury
properly on the especially aggravated kidnappings of those individuals.

       We must now determine the effect of the error. The error at issue is a non-structural
constitutional error; accordingly, the test to determine whether the error is harmless is
“‘whether it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” State v. Climer, 400 S.W.3d 537, 556 (Tenn. 2013)
(quoting State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)).



                                             -13-
       The evidence at trial shows that the on the morning of September 17, 2010, the
appellant and Patrick were armed with handguns and burst into the home of Landry Stanton,
Brett Stanton, and Robert Gorman. The appellant ordered everyone into the living room and
threatened to shoot them if they moved. After everyone was secured in the living room, the
appellant took Brett to Brett’s bedroom where the appellant found money and two Mason jars
containing marijuana. Meanwhile, Patrick continued to hold the victims in the living room.
When the appellant came out of the bedroom, Patrick grabbed Cox’s wallet off a table, and
the two of them left the residence immediately. Given that the defendants’ confinement of
the six individuals occurred during the accompanying robbery, that the confinement was
limited to the living room during the robbery, and that the confinement ended as soon as the
defendants exercised control of the marijuana and money, we conclude that whether the
appellant’s confinement of the six individuals was essentially incidental to the accompanying
aggravated robbery was subject to different interpretations by the jury and was not harmless
beyond a reasonable doubt. Therefore, the appellant’s aggravated kidnapping convictions
in counts 11 through 21 must be reversed and the case remanded for a new trial on those
charges.

        We note that during the appellant’s sentencing hearing, the trial court merged his
conviction for possessing a firearm during the commission of a dangerous felony in count
6 into his conviction for employing a firearm during the commission of a dangerous felony
in count 5. According to the judgments of conviction for the aggravated burglary convictions
in counts 1 through 4, the trial court also merged counts 2, 3, and 4 into count 1. However,
the trial court failed to merge the appellant’s convictions for the aggravated robbery of Brett
Stanton in counts 7 and 8 or his convictions for the aggravated robbery of Josh Cox in counts
9 and 10. The two convictions for each victim were based upon alternative theories of
committing aggravated robbery by violence and putting the victim in fear. See Tenn Code
Ann. §§ 39-13-402(a)(1), -401(a). “When a jury convicts under alternative theories, a merger
and imposition of a single judgment of conviction protects against double jeopardy and
avoidance of problems related to unnecessarily dismissed charges or convictions.” State v.
Billy Harris, No. W2003-01911-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 691, at *23
(Jackson, Aug. 4, 2004) (quoting State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App.
1997) (internal quotations omitted). Therefore, upon remand, the trial court is to enter single
judgments of conviction for those offenses. We note that the trial court also should have
merged the appellant’s dual convictions in counts 11 and 12, 13 and 14, 15 and 16, 18 and
19, and 20 and 21, which were based upon alternative theories of aggravated kidnapping.
However, given our conclusion that those convictions must be reversed, the trial court’s
failure to merge the counts is a nonissue.




                                             -14-
                                      III. Conclusion

        Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the trial court’s failure to instruct the jury pursuant to White constitutes reversible error.
Therefore, the appellant’s eleven convictions for aggravated kidnapping in counts 11 through
21 must be reversed and the case remanded to the trial court for a new trial as to those
offenses. The appellant’s remaining convictions in counts 1 through 10 and count 22 are
affirmed. However, upon remand, the trial court is to merge the appellant’s aggravated
robbery convictions in counts 7 and 8 and counts 9 and 10 and enter single judgments of
conviction for those offenses.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




                                             -15-
