             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     Assigned on Briefs May 15, 2001

                         STATE OF TENNESSEE v. JOHN R. BLACK

                     Direct Appeal from the Criminal Court for Davidson County
                                No. 99-A-396    Steve Dozier, Judge



                           No. M2000-01286-CCA-R3-CD- Filed April 16, 2002



         A Davidson County grand jury indicted the defendant for one count of aggravated
kidnapping, one count of aggravated rape, three counts of aggravated assault, and one count of
assault. At the close of a jury trial, he stood convicted of aggravated kidnapping, two aggravated
assaults, and one simple assault. He subsequently received a sixteen year sentence for the aggravated
kidnapping; seven years each for the two aggravated assaults; and eleven months and twenty-nine
days for the assault. The trial court also set count one to run consecutively to count five resulting in
an effective sentence of twenty-three years.1 The case is presently before this Court following the
trial court’s denial of the defendant’s motion for a new trial. Through this appeal the defendant avers
that (1) the evidence is insufficient to support his conviction for aggravated kidnapping; (2) the trial
court erred in allowing the State to present photographic evidence to the jury; and (3) the trial court
erred by permitting the State to amend for a second time the indictment charging him with
aggravated rape. After reviewing these issues, we find that none merit relief but remand the case for
correction of the judgments.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed and
                                        Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

Monte D. Watkins, Nashville, Tennessee, for appellant, John R. Black.



         1
            The judgments reflect conflicts concerning which counts are technically set to run consecutively and
con currently with one another. For example, the judgment for count four states that its sentence should be run
con secutively to count fiv e; however, the judgm ent fo r cou nt five states that it is to be run concurrently with count four
(but consecutively to count on e). Fu rtherm ore, the judgment for count six makes no mention at all of count five and
indicates that count six is to run concurrently with itself. While both the briefs of the defense and the State agree that
the defendant’s effective sentence is twenty-three years, the judgments should be corrected to avert any future confusion.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Smith, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Rachelle A. Laisnez, Assistant District Attorney
General, for appellee, State of Tennessee.

                                                   OPINION

                                             Factual Background

        It is undisputed that the defendant and Eloise Adams, the victim, had developed a
relationship. It is also undisputed that the defendant, who was in his late thirties, had been living
with the victim, who was in her mid-sixties, at the Vine Hill high-rise prior to and during the dates
involved with the charged offenses. Furthermore, the defendant acknowledges that he hit the victim
with an open hand on more than one occasion on Friday, September 25,1998, because of her alleged
involvement with another man. However, the victim’s testimony recalls an ordeal2 lasting for several
days during which, among other things, the defendant struck her numerous times with his fist;
repeatedly called her derogatory names; raped her; demanded that she change her phone number
(which a representative of Bell South confirmed that she did); confined her in the apartment;
“ransacked [her] house;” kicked her; and threatened her with a beer bottle. After hearing all the
proof, the jury convicted the defendant of the aforementioned four charges, which ultimately led to
this appeal.

                                        Sufficiency of the Evidence

        Through his first issue the defendant challenges the sufficiency of the evidence to sustain
his aggravated kidnapping conviction. Within this challenge he combines a traditional sufficiency
argument with a State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), issue; thus, we will address the
issues as raised.

         When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts
in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a
presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with
one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of
proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The
relevant question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may

        2
           By the victim’s account the assaultive behavior began on September 21, 1998, and continued intermittently
almost un til the arriv al of the police in the early mo rning ho urs of Sep tember 2 6th.

                                                        -2-
be drawn therefrom. See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.

       As previously noted, the defendant’s challenge involves aggravated kidnapping. This offense
requires proof of:

       false imprisonment, as defined in § 39-13-302, committed: (1) To facilitate the
       commission of any felony or flight thereafter; (2) To interfere with the performance
       of any governmental or political function; (3) With the intent to inflict serious bodily
       injury on or to terrorize the victim or another; (4) Where the victim suffers bodily
       injury; or (5) 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). According to the indictment involved in the defendant’s case, the
State sought to prove that the victim “suffered bodily injury as a result of the offense,” thereby
proceeding under subsection (4). See Tenn. Code Ann. § 39-13-304(a)(4). Furthermore, Tennessee
Code Annotated section 39-13-302 states that “[a] person commits the offense of false imprisonment
who knowingly removes or confines another unlawfully so as to interfere substantially with the
other's liberty.” Tenn. Code Ann. § 39-13-302(a).

        With this background the defendant cites State v. Anthony to support his claim that this
particular aggravated kidnapping conviction should not stand in conjunction with the assault
offenses. Through Anthony, the Tennessee Supreme Court stated that the essential determination to
be made in a case such as this is

       whether the confinement, movement, or detention [involved in the individual’s case]
       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.

Id. at 306. Thereafter, our supreme court added “that one method of resolving this question is to ask
whether the defendant’s conduct ‘substantially increased [the] risk of harm over and above that
necessarily present in the [attending] crime . . . itself.’” Id. (quoting State v. Rollins, 605 S.W.2d
828, 830 (Tenn. Crim. App. 1980)).

       In State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the supreme court further refined the
approach to be taken when analyzing these issues. See id. at 535. The reviewing court must ascertain
“whether the movement or confinement was beyond that necessary to consummate the act of” the
accompanying offense. Id. “If so, the next inquiry is whether the additional movement or


                                                 -3-
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
court clearly stated that the intent is not to provide a defendant with “a free kidnapping merely
because he [or she] also committed” the primary offense, but rather is merely to “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” the accompanying crime. See id. at 334.

       Turning to the facts of the case presently before us, the defendant avers that acts relative to
confinement in this case were “only incidental to the aggravated assault.” We respectfully disagree.

         The defendant asks us to limit our consideration of the proof of kidnapping to testimony
concerning the defendant’s act of dragging the victim back into her apartment on September 26;
however, in its closing, the prosecution clearly delineated for the jury the time frame involved as
beginning when the defendant arrives “home from work with his beer Friday afternoon [, the 25th,]
until he drags her back into the apartment” on the 26th. The victim testified that she could not have
left her apartment after the defendant came home on September the 25th. She explained that at that
time the defendant remained in the front of the residence (where the means to exit was located); “was
in a rage”; and informed her that she was “not going anywhere.” On this evening, the defendant
kicked the victim under the chin with his steel-toed shoes causing a wound that required stitches and
left a scar. Also during this time he threatened her with a beer bottle, stating, “I should mess up your
face so nobody else would want you.” Because the victim was afraid that if the defendant struck her
with the bottle he would render her unconscious, the victim began working her way toward the door.
After she succeeded in running outside screaming for a brief period of time, the defendant caught
her, placed his hand over her mouth, and pulled her back into the apartment. Thereafter, a neighbor
who had seen and heard this from the housing tower opposite the victim’s, called 911 at
approximately 2:30 a.m.

        We find that the extended period of confinement involved here went beyond that needed to
commit the assaults. See id. at 306. Moreover, the record would support a finding that the
kidnapping was to prevent the victim from summoning help and to lessen his detection as the
perpetrator of the assaults on the victim.

        In sum, we find the proof more than adequate to sustain the jury’s finding of guilt as to
aggravated assault. Additionally, for the reasons outlined above, Anthony and its progeny do not
require the setting aside of this conviction. See, e.g., Dixon, 532 S.W.2d at 535-36; State v. Michael
J. McCann, No. M2000--2990-CCA-R3-CD, 2001 WL 1246383, at *3-*5 (Tenn. Crim. App. at
Nashville, Oct. 17, 2001); State v. Danyelle Dewain Parker, No. M2000-00405-CCA-R3-CD, 2001
WL 427654, at *9-*10 (Tenn. Crim. App. at Nashville, Apr. 26, 2001). This issue, therefore, lacks
merit.




                                                  -4-
                                           Admission of Photographs

        The defendant next asserts that the trial court should not have admitted photographs showing
the victim’s injuries because the danger of resulting unfair prejudice outweighed the potential
probative value of the exhibits. To support this contention, the defendant turns to the rationale of
State v. Banks, 564 S.W.2d 947 (Tenn. 1978).

        As we begin our analysis, we note well established precedent providing “that trial courts have
broad discretion in determining the admissibility of evidence, and their rulings will not be reversed
absent an abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Moreover,
the Tennessee Rules of Evidence embody, and our courts traditionally have acknowledged, “a policy
of liberality in the admission of evidence in both civil and criminal cases.” Banks, 564 S.W.2d at
949; State v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). To be admissible, evidence
must satisfy the threshold determination of relevancy mandated by Tennessee Rule of Evidence 401.
See, e.g., Banks, 564 S.W.2d at 949. Rule 401 defines “relevant evidence” as being “evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
However, relevant “evidence may be excluded if its probative value is substantially outweighed by
[, among other considerations,] the danger of unfair prejudice.” Tenn. R. Evid. 403; see also, e.g.,
Banks, 564 S.W.2d 951.

        Prior to the admission of the contested photographs in the instant case, the trial judge
conducted a jury-out hearing after which he made a series of findings. Upon reviewing the
photographs, the trial court disallowed two as being cumulative and initially admitted one for
identification purposes only until medical testimony assured the relevance of this photograph.
Furthermore, the trial court described in some detail the relevance of each of the seven other
photographs admitted. Finally, speaking about the group of photographs permitted, the lower court
declared that they “more accurately and with more clarity, depict and show [the] injuries” than did
the victim’s verbal descriptions.

        After reviewing the record, we agree. In order to capture the variety of injuries suffered, the
photographs depict the victim’s arms as well as her face from different angles.3 Furthermore, expert
medical testimony called in this case indicated that swelling and bruising offer insight into the time
that has passed since the infliction of a particular injury. For example, swelling and redness indicates
newer injuries while purple bruising sometimes indicates older ones. The medical expert testified
that the photographs show “injur[ies] in different stages of healing.” One photograph depicts
swollen lips and fresh blood, indicating a newer injury, while dark purple discoloration on both sides
of the victim’s mouth is in another picture. As aforementioned, the prosecution’s version of events
involved abuse inflicted over a series of days. The defendant denied committing any misconduct
except on Friday, September 25th. The photographs therefore bear on the credibility of the witnesses
as well as directly illustrating the injuries resulting from the defendant’s assaults upon the victim.

       3
           The police took these photographs in the early hours of September 26 th at the hopsital.

                                                          -5-
Finally, although unpleasant, the photographs are not so gruesome as to create undue prejudice. We
find no abuse of discretion in the trial court’s conclusion that the probative value of these exhibits
outweighed the danger of unfair prejudice.

             Allowing a Second Amendment of the Aggravated Kidnapping Indictment

        Finally, the defendant contends that the trial court erred in permitting the prosecution to
amend, five days before trial, the dates involved in the aggravated kidnapping count. He asserts that
these dates represented “a material variance” resulting in prejudice to the defendant and that allowing
this second amendment “usurp[ed] the authority of the grand jury.” In response, the State avers that
the defendant has waived this issue by failing to include the transcript of the hearing regarding the
second motion to amend.

        Pursuant to Tennessee Rule of Criminal Procedure 7(b), “[a]n indictment, presentment or
information may be amended in all cases with the consent of the defendant. If no additional or
different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced,
the court may permit an amendment without the defendant’s consent before jeopardy attaches.” Id.
Moreover, the trial court’s decision concerning whether to allow an amendment is not to be disturbed
by this Court absent a showing of an abuse of discretion. See, e.g., State v. Daniel Ray Styles, No.
E2001-00905-CCA-R3-CD, 2001 WL 1231511, at *3 (Tenn. Crim. App. at Knoxville, Oct. 17,
2001); see also State v. Kennedy, 10 S.W.3d 280, 283 (Tenn. Crim. App. 1999).

         Upon review, we agree that the record presented is inadequate to address a question of abuse
of discretion. For example, the record does include the trial court’s minute entry relative to the
decision to grant this second motion to amend.4 However, the entry merely notes that both parties
were present and then states that “this cause came to be heard by the Court upon the State’s motion
to amend indictment: after due consideration and all the evidence introduced, said motion is
granted.” We have no access to the evidence presented in or any specific findings from this hearing.
The need for a transcript of the hearing on this motion becomes even more apparent upon reviewing
the trial court’s findings at the new trial motion hearing. More particularly, at the latter hearing the
trial court referred to “a lengthy discussion” that was had on the contested motion to amend the
indictment. The trial court also found that the defendant had not been prejudiced by this amendment
because counsel had been “well aware” of the allegations involved in “that particular week.”

         The appellant (in this case, the defendant) bears the duty of preparing a record that conveys
“a fair, accurate, and complete account of what transpired [in the trial court] with respect to the
issues” that form the basis for the appeal. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993);
see also Tenn. R. App. P. 24(b); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).
The failure to do so results in a waiver of these issues and a presumption that the trial court ruled
correctly. State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993).


         4
         It appears that the dates involved in the amend men t varied three to four days; the trial court gran ted th e
amendm ent five days before trial; and the amendment charged no different nor additional offense.

                                                         -6-
        Without the omitted transcript, this court lacks the ability to adequately review the matter.
As a result, we must presume that the trial judge acted correctly and conclude that the defendant is
not entitled to relief based upon this issue either.5

                                                    Conclusion

        For the foregoing reasons we find that the defendant’s issues do not merit relief. Accordingly,
the judgment of the trial court is AFFIRMED. However, the case is REMANDED for the correction
of the judgment forms as noted supra.



                                                                ___________________________________
                                                                JERRY L. SMITH, JUDGE




         5
           As aforementioned, the defendant also asserts that allowing the State the opportunity to amend an indictment
a second time invades the province of the grand jury. Nevertheless, he concedes that one amendment does not do so,
and we see no provision in the above-cited rule limiting the prosecution to one amendment. Furthermore, we observe
that the defenda nt cites n o authority sup porting this concluso ry stateme nt.

                                                         -7-
