                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                   October 3, 2007 Session

            STATE OF TENNESSEE v. ANTONIO D. RICHARDSON

                 Appeal by Permission from the Court of Criminal Appeals
                           Criminal Court of Davidson County
                         No. 2003-B-1458     Steve Dozier, Judge


                      No. M2005-01161-SC-R11-CD - Filed May 7, 2008



The defendant, Antonio Richardson, was convicted of two counts of especially aggravated
kidnapping, one count of felony reckless endangerment, one count of aggravated assault, and one
count of burglary. In addition, the defendant pleaded guilty to attempted especially aggravated
robbery. The Court of Criminal Appeals ruled that the kidnappings were essentially incidental to
the attempted especially aggravated robbery and therefore the kidnapping convictions violated due
process under the principles stated in State v. Anthony. We reverse the intermediate appellate court
and reinstate the convictions.

                        Tenn. R. App. P. 11 Appeal by Permission;
                    Judgment of the Court of Criminal Appeals Reversed;
                              Case Remanded to Trial Court

JANICE M. HOLDER, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
CORNELIA A. CLARK, and WILLIAM C. KOCH , JR., JJ., joined. GARY R. WADE, J., not participating.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; C.
Daniel Lins, Assistant Attorney General; and Pamela Sue Anderson, Assistant District Attorney
General, for the appellant, State of Tennessee.

Ross Alderman, Public Defender, and Emma Rae Tennent, J. Michael Engle, and Graham Prichard,
Assistant Public Defenders, Nashville, Tennessee, for the appellee, Antonio D. Richardson.

                                            OPINION

                                               Facts

        Allison Howell (“Howell”) and Johnnie Lucas (“Lucas”) were managers at a Calhoun’s
restaurant in Nashville. Antonio Richardson (“Richardson”) was a line cook for the restaurant. On
January 12, 2003, both managers were on duty. Richardson finished his shift and watched football
games in the restaurant from mid-afternoon until late in the evening. At some point that evening,
Richardson went into the bathroom and waited for the restaurant to close. After the restaurant closed
for the night, Lucas went upstairs to the manager’s office located directly above the kitchen and
deposited the night’s receipts in the office safe. Shortly thereafter, Richardson, wearing a ski mask
and white latex gloves, emerged from an employees’ bathroom under the stairway. He moved past
two kitchen employees, grabbed Howell, put a gun to her head, and pushed her up the stairs toward
the manager’s office.1 He asked Howell who was in the office, and Howell replied that Lucas was
there. Richardson took Howell past the office door to a partially caged area in the stock room. He
struck Howell in the head with the gun, injuring her and causing her to fall to the floor.

        Richardson went to the office door and knocked on it. When Lucas opened the door,
Richardson pointed his gun at her and pushed her to the floor. Richardson asked her where the
money was, and Lucas replied that she had already put it in the safe. Richardson dragged Lucas to
the safe and demanded that she open it. Lucas testified that the safe was very old and difficult to
open. While Lucas attempted unsuccessfully to open the safe, Richardson struck her repeatedly with
a metal three-hole punch. Lucas sustained injuries to her head and hand from the beating. At some
point, Richardson asked Lucas for the combination to the safe, which Lucas provided. When Lucas
continued to fail in her attempts to open the safe, Richardson threatened to shoot her. Richardson
then straddled Lucas as she lay on the floor, striking her repeatedly with the gun. Howell testified
that she could hear Richardson beating Lucas for approximately twenty minutes.

        While Richardson and Lucas were in the office, Richardson’s accomplice2 went to the stock
room and bound Howell’s hands behind her with duct tape. Later, the accomplice returned to the
stock room and asked Howell for the safe combination. He returned to the manager’s office with
that information.

        Richardson dragged Lucas by her hair to the “fan room,” a little-used room through which
the exhaust fans are vented. There, he struck Lucas in the face with the gun, severing her right optic
nerve and causing the loss of her eye. Before leaving, Richardson threatened to kill Lucas if she
moved. Richardson and his accomplice were apparently unable to open the safe and left the
restaurant without obtaining any money.

        Lucas left the fan room and found Howell lying in the caged area of the stock room. Lucas
helped Howell stand and assisted in removing the duct tape from her hands. They briefly returned
to their prior positions after hearing a noise. After a short time, Howell and Lucas ran to the
unoccupied office and locked the door. They called 911 and hid under the desk to wait for the
police.


         1
           Two additional employees were located near the front of the restaurant. After they joined the kitchen
employees to hide in the second floor dining room for a period of time, three of the employees left the restaurant and
called the police from the parking lot.

         2
             Howell testified that she later realized a second person was behind her as Richardson pushed her up the stairs.

                                                              2
        When the police arrived, they found Richardson hiding in the bushes outside the restaurant.
He was covered in blood. The police also found a ski mask, a bloody white latex glove, and a bloody
gun with a broken grip in the bushes where Richardson was found. Richardson admitted to being
involved in the robbery. Richardson told the police that he struck Howell to knock her out and
prevent her from calling the police. He also stated that his accomplice struck Lucas in the fan room
“to shut her up.” The accomplice was never found.

       Richardson pleaded guilty to the charge of attempted especially aggravated robbery. A jury
convicted him of the burglary of the restaurant and the especially aggravated kidnappings of Lucas
and Howell. Richardson was convicted of reckless endangerment and aggravated assault of the two
employees located in the kitchen when he targeted Howell. Only the especially aggravated
kidnapping convictions are at issue on appeal.

        The Court of Criminal Appeals reversed the convictions for the especially aggravated
kidnappings of Lucas and Howell, holding that the kidnappings were essentially incidental to the
attempted especially aggravated robbery and therefore the kidnapping convictions violated the due
process principles announced in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991).3 We granted the
State’s application for permission to appeal.

                                                       Analysis

                                                       Anthony

        We begin our review with a discussion of State v. Anthony. In State v. Anthony and State
v. Martin, this Court heard consolidated appeals to address whether a kidnapping conviction,
separate from an accompanying offense, would violate due process. Both defendants in the
consolidated cases were convicted of aggravated kidnapping and armed robbery. In Anthony, the
defendant entered a restaurant and ordered two employees at gunpoint to an office, while his
accomplice detained three other employees at dumpsters outside the restaurant. The defendant
demanded that the employees in the office open the safe. When the employees informed the
defendant that the safe was in a different part of the restaurant, he instructed one of the employees
to remain in the office. The defendant and the second employee went to the location of the safe
where the defendant was successful in obtaining money. He then encountered a third employee
inside and instructed him to return to the restroom from which he had emerged. The defendant and
his accomplice fled. The entire episode lasted approximately five minutes. In Martin, the defendant
entered an insurance agency and robbed two people at gunpoint. He ordered the two individuals into
a bathroom and left the building with approximately two hundred dollars he had obtained. The
episode took about four minutes.



         3
           The trial court ordered that sentences for counts one and two, which merged as a matter of law, be served
consecutively to counts three, four, and six for an effective sentence of sixty-four years. Other parts of the judgment
suggest an effective sentence of sixty-seven years. On remand, the trial court should correct the judgments as necessary.

                                                           3
          We held that due process principles, specifically article I, section 8 of the Tennessee
Constitution, require us to determine “whether the confinement, movement, or detention is
essentially incidental to the accompanying felony . . . or whether it is significant enough, in and of
itself, to warrant independent prosecution.” Anthony, 817 S.W.2d at 306. We determined that the
convictions for aggravated kidnapping were “essentially incidental” to the robberies and thus
violated due process. We held that the kidnappings were “essentially incidental” based upon the
following factors: (1) the removal or confinement did not substantially increase the risk of harm to
the victims; (2) the victims’ movement was slight; (3) the confinement was brief; and (4) the victims
were not harmed. Id. at 307.

        Our holding in Anthony was prompted by amendments to the kidnapping statutes that no
longer require the common law elements once necessary to a conviction for kidnapping. In 1990,
the General Assembly amended the kidnapping statute to more broadly define kidnapping as “false
imprisonment . . . [u]nder circumstances exposing the other person to substantial risk of bodily
injury.” Act of Apr. 30, 1990, 1990 Tenn. Pub. Acts ch. 982, § 1 (codified as amended at Tenn.
Code Ann. § 39-13-303(a) (2006)). False imprisonment is to “knowingly remove[] or confine[]
another unlawfully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann.
§ 39-13-302(a) (2006). This definition of false imprisonment codifies the common law and “broadly
addresses any situation where there is an interference with another’s liberty.” Id. § 39-13-302,
Sentencing Comm’n Cmts.4

       Anthony recognized that the modern definition of kidnapping “could literally overrun” crimes
such as robbery and rape because detention and confinement against the will of the victim
necessarily accompany these crimes. 817 S.W.2d at 303 (quoting People v. Levy, 204 N.E.2d 842,
844 (N.Y. 1965)). We noted that a victim is commonly confined “briefly at gunpoint,” “bound and
detained,” or “moved into and left in another room or place.” Id. (quoting Levy, 204 N.E.2d at 844).
The legislature did not intend, however, “that every robbery should also constitute kidnapping, even
though a literal reading of the statute might suggest otherwise.” Id. at 306.

         Whether a separate kidnapping conviction violates due process is a question of law to be
determined initially by a trial court. State v. Cozart, 54 S.W.3d 242, 247 (Tenn. 2001). We review
the trial court’s determination de novo with no presumption of correctness. See Griffin v. State, 182
S.W.3d 795, 798 (Tenn. 2006).




         4
           The especially aggravated kidnapping statute was amended to define especially aggravated kidnapping as
“false imprisonment . . . [a]ccomplished with a deadly weapon . . . or . . . [w]here the victim suffers serious bodily
injury.” Act of Apr. 30, 1990, 1990 Tenn. Pub. Acts ch. 982, § 1 (codified at Tenn. Code Ann. § 39-13-305(a)(1), (4)
(2006)).

                                                          4
                                                           Dixon

       We modified Anthony in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). In Dixon, the
defendant was charged with kidnapping for “seizing or confining the victim to ‘facilitate the
commission of [a] felony.’” Id. The victim was walking along a lighted street when the defendant
grabbed her, covered her mouth, and slammed her to the ground. He then began choking her. He
dragged her thirty to forty feet from the illuminated sidewalk to a vacant lot behind some foliage.
Dixon was convicted of kidnapping and attempted sexual battery.

         In place of the Anthony “essentially incidental” analysis, we crafted an improved, two-part
test in Dixon to determine whether a separate kidnapping conviction violates due process. Id. First,
we must determine if the movement or confinement of the victim was beyond that necessary to
consummate the accompanying crime. Id. This first prong of the Dixon test is a threshold
determination. A showing that the movement or confinement was merely helpful to the commission
of the accompanying crime will not establish a due process violation under the first prong of the
Dixon test. Rather, the first prong of the Dixon test focuses on whether the movement or
confinement was necessary to consummate the accompanying crime. Id. If the movement or
confinement was necessary to consummate the accompanying crime, then a separate kidnapping
conviction violates due process, and no further analysis is required.

        If, instead, the movement or confinement was beyond that necessary to consummate the
accompanying crime, then the second prong must be addressed. The second prong considers
“whether the additional movement or confinement: (1) prevented the victim from summoning help;
(2) lessened the defendant’s risk of detection; or (3) created a significant danger or increased the
victim’s risk of harm.” Id.

        The Dixon two-part test fully replaces the Anthony “essentially incidental” analysis. As we
previously have observed, the Dixon test “provides the structure necessary for applying the principles
announced in Anthony.” State v. Fuller, 172 S.W.3d 533, 537 (Tenn. 2005).5 Although we adhere
to the due process principles adopted in Anthony,6 we now make clear that the Anthony analysis


         5
           In Fuller, we stated that the “first question in the Dixon analysis – whether the movement or confinement used
was beyond that necessary to commit the accompanying felony – does not replace the ‘essentially incidental’ test” in
Anthony. Id. In other words, the first question in Dixon, being merely a threshold determination, does not replace the
“essentially incidental” analysis in Anthony. It is, instead, the entire two-part Dixon test that has replaced the “essentially
incidental” analysis in Anthony.

         6
          At the time of Anthony, this Court relied on the Blockburger double jeopardy test, which required courts to
examine the offenses to determine “whether each [statutory] provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932); see Anthony, 817 S.W .2d at 303. W e held in Anthony that the
Blockburger double jeopardy test was not adequate to resolve the issue of whether a separate kidnapping conviction may
be imposed because “[t]he essential elements of kidnapping and robbery are obviously separate and distinct, and
simultaneous convictions on these two charges would not necessarily violate the rule in Blockburger.” Id.

                                                                                                                (continued...)

                                                              5
should not be used in conjunction with the Dixon two-part test. The Dixon test should be used
exclusively in all future inquiries.

        Our analysis does not differ when the kidnapping conviction is accompanied by a conviction
for criminal attempt. A defendant may be convicted of criminal attempt based on conduct
constituting a substantial step toward the commission of the offense. Tenn. Code Ann.
§ 39-12-101(a)(3) (2006). Conduct does not constitute a substantial step, however, “unless the
person’s entire course of action is corroborative of the intent to commit the offense.” Tenn. Code
Ann. § 39-12-101(b). For due process purposes, we likewise must take into account that a defendant
intends to commit an offense, not an attempt. We must consider a defendant’s entire course of
action. We therefore reject the view that after an initial substantial step toward the commission of
the offense, any movement or confinement of the victim always will be beyond that necessary to
consummate the attempt. At the other end of the spectrum, we also reject the view that because an
attempt continues until a defendant’s efforts are abandoned, any movement or confinement of the
victim never will be beyond that necessary to consummate the attempt. In short, no bright line exists
for making the threshold determination in the first prong of the Dixon test. The inquiry is fact-
driven. Distance of the victim’s movement and duration or place of the victim’s confinement are
factors to be considered in determining if the movement or confinement was beyond that necessary
to consummate the accompanying felony, be it an attempt or a completed crime.

        In Dixon, we held that Dixon’s movement of the victim to the back of a dark lot was beyond
that necessary to consummate the attempted sexual battery because Dixon could have attempted to
sexually penetrate the victim on the lighted path where he initially assaulted her. 957 S.W.3d at 535.
Having answered affirmatively the first question of the two-prong test, we next considered 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. We held that Dixon moved the victim to the back of a dark lot to avoid
detection. Id. In addition, Dixon’s movement of the victim from the illuminated path to a dark and
vacant lot substantially increased the victim’s risk of harm by lessening the chance the crime would
be detected. Id.

                                         Application of Dixon to Howell

       Beginning with the first prong of the Dixon test, we must determine whether Howell’s
movement or confinement was beyond that necessary to consummate the attempted especially
aggravated robbery. Especially aggravated robbery is the intentional or knowing theft of property


         6
          (...continued)
         Five years later, in State v. Denton, 938 S.W .2d 373, 381 (Tenn. 1996), this Court expanded the inquiry under
double jeopardy principles to include a Blockburger analysis of the statutory elements, a comparison of the purpose of
the respective statutes, and a fact-specific inquiry to determine the evidence available to prove each offense and whether
there were multiple victims or discrete acts. The parties have failed to question either in this Court or in the Court of
Criminal Appeals whether the Denton double jeopardy analysis would be an adequate substitute for the current Dixon
due process inquiry. W e leave that question for another day.

                                                            6
from a person, accomplished with a deadly weapon where the victim suffers serious bodily injury.
Tenn. Code Ann. §§ 39-13-401, -403 (2006).

        Howell informed Richardson as they walked to the stock room that Lucas was in the office.
Rather than leading Howell to the office where the safe was located, Richardson moved her to an
empty stock room. Howell provided Richardson’s accomplice with the combination to the safe
while she was confined. Richardson’s accomplice then bound Howell’s hands behind her back.
Howell continued to be bound and confined for over twenty minutes. While Howell’s movement
to and confinement in the stockroom may have been helpful to Richardson, we conclude that this
movement and confinement were beyond that necessary to consummate the attempted especially
aggravated robbery.

       Having answered affirmatively the first question of the Dixon test, we now turn to the second
prong. A separate conviction for kidnapping does not violate due process if “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.” Dixon, 957 S.W.2d at 535.

        Howell’s confinement to the stock room clearly satisfies the first factor of Dixon’s second
prong. Richardson stated that Howell’s restraint was intended to prevent her from calling the police.
Therefore, the purpose behind the confinement was to prevent the victim from summoning help.
Neither Howell’s later removal of the duct tape nor her call to 911 from the office compels a contrary
result. As we pointed out in Fuller, “the ultimate success of the confinement is not an integral part
of the test.” 172 S.W.3d at 537. We decline to provide Richardson with a free kidnapping merely
because Richardson and his accomplice were unsuccessful in preventing Howell from summoning
help.

       Howell’s confinement also implicates the second and third factors of Dixon’s second prong.
By preventing Howell from summoning help, Richardson also lessened his risk of detection. In
addition, Richardson struck Howell on the head with his gun, causing an open head wound that
required two staples to close. Howell’s confinement increased her risk of harm by leaving her severe
head injury untreated. For these reasons, the especially aggravated kidnapping conviction in
reference to Howell’s confinement does not violate due process.

                                   Application of Dixon to Lucas

        The confinement of Lucas to the office and her movement and confinement to the fan room
also were beyond that necessary to consummate the attempted especially aggravated robbery. After
Lucas unsuccessfully attempted to open the safe and provided Richardson with the combination to
unlock the safe, Richardson continued to confine Lucas to the office while beating her for
approximately twenty minutes. Although the use of force is not a direct element of Dixon’s first
prong, the length of time that Richardson beat Lucas in the office is relevant to show that the
restraint was excessive and beyond that necessary to consummate the attempted especially


                                                  7
aggravated robbery. Moreover, we reject the suggestion that a twenty-minute beating of Lucas as
she lay curled on the floor was designed to assist in procuring Lucas’ cooperation in opening the
safe. Instead, we conclude that the use of force for an excessively long period shows that Lucas was
no longer confined to assist in opening the safe.

        Even if Lucas’ confinement in the office had not been sufficient to meet the first prong of the
Dixon test, the subsequent movement and confinement of Lucas to the fan room clearly went beyond
that necessary to consummate the attempted especially aggravated robbery. Lucas gave Richardson
the combination to the safe after attempting unsuccessfully to open it. At that point, Richardson
either could have continued his attempt to open the safe with Lucas in the office or abandoned his
efforts and left the restaurant without moving Lucas. Richardson, however, moved Lucas to the fan
room. We reject the assertion that moving Lucas was necessary because the office was very small
and Richardson needed the additional space to work on the safe. This conclusion is directly
contradicted by both Lucas’ testimony and Richardson’s statements to police. Lucas stated that the
office was not so small that her presence would have prevented Richardson from opening the safe.
Richardson stated to the police that his accomplice moved Lucas to the fan room “to shut her up”
and made no statements concerning the size of the office. For these reasons, we hold that Lucas’
movement and confinement were beyond that necessary to consummate the attempted especially
aggravated robbery.

         Having satisfied the first prong of the Dixon test, we now address the second prong. All
three factors of the second prong of the Dixon test are implicated by the confinement of Lucas to the
office and her movement to and confinement in the fan room. The confinement of Lucas in the
office after she provided Richardson with the combination to the safe prevented her from
summoning help and lessened Richardson’s risk of detection. When Richardson moved Lucas from
the office to the fan room, that additional movement prevented her from summoning help by moving
her farther away from the stairway, which was her only avenue of escape. The location similarly
lessened Richardson’s risk of detection. The movement and confinement also created a significant
danger to Lucas and increased her risk of harm. Lucas had sustained severe head injuries from the
beating in the office, after which Richardson dragged Lucas to the fan room by her hair. Lucas was
bleeding profusely and had an open head wound and a nearly severed finger. The confinement to
the fan room increased her risk of harm by leaving these severe injuries untreated. For these reasons,
the especially aggravated kidnapping conviction in reference to Lucas’ movement and confinement
does not violate due process.

                                             Conclusion

        The movement or confinement of both victims was clearly beyond that necessary to
consummate the attempted especially aggravated robbery. The movement or confinement of the
victims was intended to prevent them from summoning help, lessened the risk of the defendant’s
detection, and increased the victims’ risk of harm. The especially aggravated kidnapping convictions
therefore do not violate due process. Accordingly, we reverse the judgment of the Court of Criminal
Appeals and reinstate the especially aggravated kidnapping convictions. The case is remanded to


                                                  8
the trial court to correct the judgments as necessary. It appearing that the defendant is indigent, costs
of this appeal are taxed to the State of Tennessee.



                                                        ___________________________________
                                                        JANICE M. HOLDER, JUSTICE




                                                   9
