           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                           JUNE 1997 SESSION
                                                   FILED
                                                    August 15, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )    C.C.A. No. 02C01-9701-CC-00001
      Appellee,                     )
                                    )    TIPTON COUNTY
VS.                                 )
                                    )    HON. JOSEPH H. WALKER, III
                                    )    JUDGE
MARTIN THOMAS TERRELL,              )
                                    )    (Aggravated Kidnapping)
      Appellant.                    )



FOR THE APPELLANT:                       FOR THE APPELLEE:

C. MICHAEL ROBBINS (on appeal)           JOHN KNOX WALKUP
202 S. Maple Street, Ste. C              Attorney General & Reporter
Covington, Tennessee 38019
                                         DEBORAH A. TULLIS
GARY F. ANTRICAN (trial only)            Assistant Attorney General
District Public Defender                 450 James Robertson Parkway
P.O. Box 700                             Nashville, Tennessee 37243-0493
Somerville, Tennessee 38068
                                         ELIZABETH T. RICE
DAVID S. STOCKTON (trial only)           District Attorney General
Assistant Public Defender
131 A Industrial Road                    WALTER FREELAND
Covington, Tennessee 38019               Assistant District Attorney General
                                         302 Market St.
                                         Somerville, Tennessee 38068




OPINION FILED: _________________



AFFIRMED



JOE G. RILEY,
JUDGE



                                  OPINION
         The defendant, Martin Thomas Terrell, appeals as of right a jury conviction of

aggravated kidnapping, burglary, reckless endangerment with a deadly weapon, and

driving on a revoked or suspended license. Although the defendant poses the issue

solely as insufficiency of the evidence for the aggravated kidnapping conviction,

there are two true issues presented for our review: 1) whether his constitutional right

to due process was violated when the District Attorney General chose to indict upon

especially aggravating kidnapping instead of attempted aggravated robbery; and 2)

whether the evidence is sufficient to sustain the aggravated kidnapping conviction.

Finding no error, the judgment of the trial court is AFFIRMED.



                                          FACTS

         The relevant facts which are undisputed in this case involve the breaking and

entering of the Creekmore Piggly Wiggly in Covington, Tennessee. The defendant

and another man gained entry to the store by prying open a metal door in the garden

center. Randy Hazelrig, the store manager, and Jerry Griffin, another employee,

arrived to open the store for business, and the defendant and the second man hid.

They later jumped out and ordered Hazelrig to open the safe and ordered Griffin not

to move. Although no guns were displayed, the two men threatened to shoot

Hazelrig and Griffin if their orders were not followed.

         Griffin was able to back out the front door and run across the street to call the

police. With a sledgehammer in hand, the defendant forced Hazelrig into the office

to open the safe. As Hazelrig attempted to open the safe, he triggered an alarm

which apparently scared the two men. The second man said, “[h]it that m---f--- in the

head and let’s get out of here.” When Hazelrig looked up, both men had fled the

store.

         The police arrived as the men were driving away and a high speed chase

ensued. The defendant was apprehended when he stopped the car and started to

run away on foot. The other man was never apprehended.


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              At trial, Hazelrig and Griffin testified with regard to the above events. Linda

       Gamblin, a criminal investigator, also provided testimony. She stated that she took a

       statement from the defendant in which he admitted his involvement in this criminal

       episode.

              The defense did not offer any proof.



                                    DUE PROCESS VIOLATION



              By indicting the defendant for especially aggravated kidnapping1 instead of

       attempted aggravated robbery, the defendant argues the district attorney violated his

       constitutional right to due process. Specifically, defendant contends he was

       unlawfully indicted by the district attorney general.

              We must first note that this issue has been waived because it was not raised

       in the motion for new trial. Tenn. R. App. P. 3(e). Nevertheless, we will address the

       merits of this issue.

                                       Prosecutorial Discretion

                     It has been often recognized that “prosecutorial discretion in the

       charging process is very broad.” Quillen v. Crocket, 928 S.W.2d 47, 51 (Tenn. Crim.

       App. 1995)(citing Cooper v. State, 847 S.W.2d 521, 536 (Tenn. Crim. App. 1992)).

       “So long as the prosecutor has probable cause to believe that the accused

       committed an offense, the decision whether to prosecute, and what charge to bring

       before a grand jury generally rests entirely within the discretion of the prosecution,”

       limited only by certain constitutional constraints. State v. Lunati, 665 S.W.2d 739,

       746 (Tenn. Crim. App. 1983); Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098,

       2102, 40 L.Ed.2d 628 (1974) (Due Process may be implicated if a prosecutor

       vindictively increases a charge to a felony after a misdemeanant has prevailed on

       appeal). The district attorney general is answerable to no superior and has virtually



       1
              Although indicted for especially aggravated kidnapping, the defendant was
actually       convicted of the lesser offense of aggravated kidnapping.

                                                    3
unbridled discretion in determining whether to prosecute and for what offense.

Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978); see also State v. Gilliam,

901 S.W.2d. 385, 389 (Tenn. Crim. App. 1995).

         After breaking into the store, the defendant, while holding a sledgehammer,

forced the victim to go to the store’s office, some twelve feet away. On these facts,

the district attorney general charged the defendant with especially aggravated

kidnapping.2 As noted above, we will not interfere with a district attorney general’s

charging process absent some constitutional violation. The district attorney general

properly sought an indictment for this offense. The record does not reflect any

abuse of discretion on behalf of the district attorney general. This issue is without

merit.

                                     State v. Anthony

         In arguing that the especially aggravated kidnapping charge violates due

process, the defendant principally relies upon State v. Anthony, 817 S.W.2d 299

(Tenn. 1991). The defendant contends that the aggravated kidnapping which

occurred in this case was incidental to the uncharged attempted aggravated robbery.

         By contrast, the issue raised in Anthony was whether a defendant could be

convicted of both armed robbery and aggravated kidnapping growing out of a single

criminal episode. Our Supreme Court held that a double jeopardy analysis is

inadequate to resolve this issue and analyzed the issue as one involving due

process. The issue is whether the confinement, movement, or detention is

essentially incidental to the accompanying felony and is not, therefore, sufficient to

support a separate conviction for kidnapping, or whether it is significant enough, in

and of itself, to warrant independent prosecution and is, therefore, sufficient to

support such a conviction. Anthony, 817 S.W.2d at 306. Accordingly, the Anthony

analysis applies when there are multiple or dual convictions consisting of a felony



2
      The full indictment included especially aggravated kidnaping, burglary, reckless
endangerment with a deadly weapon, and driving on a revoked or suspended license.
However, our attention focuses on the charge of aggravated kidnaping since it is the only
charge the defendant contests.

                                              4
that would inherently involve a kidnapping and the defendant is convicted of both.

Whereas Anthony addresses the question of which convictions may constitutionally

stand, the question presented in this appeal concerns whether a kidnapping

conviction alone may stand.

       In this case, the district attorney general in her discretion chose to charge

especially aggravated kidnapping and not attempted aggravated robbery. A

prosecutor may choose, consistent with Anthony, to charge only kidnapping when

confronted by factual scenarios contemplated by the Supreme Court in Anthony.

State v. Ricky Michael Dixon, C.C.A. No. 03C01-9504-CR-00121, slip op. at 7,

Hamilton County, (Tenn. Crim App. filed October 15, 1996, at Knoxville) perm. to

appeal granted ( April 14, 1997). Consequently, Anthony is inapplicable to this case.

In fact, Anthony would not have been violated had this defendant been indicted for

both charges and yet convicted of only aggravated kidnapping.



                         SUFFICIENCY OF THE EVIDENCE



       The defendant argues the evidence is insufficient to sustain the aggravated

kidnapping conviction. As stated above, the defendant contends the aggravated

kidnapping was essentially incidental to the uncharged attempted aggravated

robbery.

       Where sufficiency of the evidence is challenged, the relevant question for an

appellate 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

The weight and credibility of the witnesses' testimony are matters entrusted

exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn.

1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

       A defendant commits the offense of aggravated kidnapping who knowingly


                                           5
removes or confines another unlawfully so as to interfere substantially with the

other’s liberty while 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).

       False imprisonment is used as the basic offense for the kidnapping statutes.

This statute broadly addresses any situation where there is an interference with

another’s liberty. See Tenn. Code Ann. § 39-13-302, Sentencing Commission

Comments. As such, this case ultimately hinges upon whether the removal of the

victim interfered substantially with his liberty.

       The facts, as stated above, involve the defendant and another man ordering

Hazelrig to open the safe. The defendant and the second man said they would

shoot him if their orders were not followed. The defendant, with a sledgehammer in

his hand, forced Hazelrig to go to the office, twelve feet away, and open the safe.

When Hazelrig did not immediately open the safe, the second man told the

defendant to “hit that m---f--- in the head and let’s get out of here.” The alarm

sounded and the two men fled.

       The above proof is more than sufficient for a reasonable juror to conclude

beyond a reasonable doubt that the defendant knowingly and unlawfully removed

Hazelrig from one location to another location so as to substantially interfere with his

liberty while the defendant was in possession of a deadly weapon. This issue is

without merit.

       The judgment of the trial court is AFFIRMED.




                                                    _______________________
                                                    JOE G. RILEY, JUDGE


CONCUR:



_________________________
PAUL G. SUMMERS, JUDGE



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_________________________
DAVID H. WELLES, JUDGE




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