         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 26, 2005 Session

                   STATE OF TENNESSEE v. PETER L. GUYNN

                Direct Appeal from the Circuit Court for Williamson County
                        No. II-102-016    Timothy L. Easter, Judge



                     No. M2003-02917-CCA-R3-CD - Filed April 22, 2005


The Defendant pled guilty to aggravated robbery and was also found guilty after a bench trial of
especially aggravated kidnapping. The trial court sentenced the Defendant as a Range II, multiple
offender to thirty-five years for the Class A felony especially aggravated kidnapping conviction, and
to fifteen years for the Class B felony aggravated robbery conviction. The two sentences were
ordered to be served consecutively. On appeal, the Defendant argues two issues: 1) his conviction
for especially aggravated kidnapping violated his right to due process pursuant to State v. Anthony,
817 S.W.2d 299 (Tenn. 1991), and; 2) the trial court erred in imposing excessive sentences and in
running the sentences consecutively. We affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Eugene Honea, Franklin, Tennessee, for the appellant, Peter L. Guynn.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Ron Davis, District Attorney General; and Derek Smith, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                            OPINION


                                              FACTS

       The convictions at issue in this case stem from an August 6, 2001, incident in which the
Defendant, Peter Guynn, robbed a Brentwood gift store at gunpoint. He tied up and assaulted the
shop owner in a back room before fleeing with approximately $100 in cash. The victim, Amy
Husband, was eventually able to free herself and make her way to the front of the shop where she
was discovered by a customer. The victim identified the Defendant in a photographic line-up, and
several months after the incident the Defendant was arrested in Florida and transported back to
Tennessee. In December of 2001, the Defendant waived his Miranda rights and gave a taped
confession to the Brentwood Police.

        In January of 2002, the Defendant was indicted by a Williamson County grand jury on two
charges: especially aggravated kidnapping and aggravated robbery. The Defendant waived his right
to a jury trial, and entered a plea of guilty to the aggravated robbery charge and not guilty on the
especially aggravated kidnapping charge. In May of 2003, the Defendant received a bench trial on
the especially aggravated kidnapping charge.

         At trial, the victim testified that on the morning of August 6, 2001, the Defendant entered her
gift store and informed her he was shopping for a gift for his wife. The Defendant asked to look at
merchandise in the back of the store, and the victim agreed. Shortly thereafter the Defendant came
up behind the victim, pointed a gun at her and demanded, “give me everything you have.” The
victim stated she was “terrified,” but opened the cash register. The Defendant took approximately
$100 in cash, then asked for the “rest.” The victim explained that there was no more money, and
showed the Defendant an empty bank bag.

        The Defendant then forced the victim into a small room at the back of the store and tied her
hands behind her back with a green rope. The victim began to scream and the Defendant hit her in
the head with his fist and told her to “shut up.” The Defendant then asked the victim to lie down on
the floor, and she began to scream again. The Defendant again hit her and told her to be quiet. The
Defendant tied the victim’s feet and told her to stay where she was. The victim testified that at this
point she “didn’t know if she was going to be shot or raped.” However, the Defendant closed the
door to the room and left. The victim testified that the Defendant had already taken the cash before
tying her up and did not take anything after he restrained her.

        The victim further testified that after she heard the Defendant walk out of the store, she
managed to get her hands in front of her and loosened the rope on her feet enough to exit the back
room and move to the sales counter. The victim testified that it took her “about a minute” to
sufficiently free herself so she could leave the back room. The victim stated that she called her
parents, and soon thereafter a family friend walked into the store, untied her hands and dialed 911.
Because she was tied up in the back room, the victim testified that she could not observe which way
the Defendant went when he left the store or what type of vehicle he drove. After giving a statement
to the police, the victim went to a doctor’s office for treatment of her head wounds. The victim
stated that she could not close her jaw for several weeks after the assault.

        Mr. Rick Frawley testified that he owned the store next door to the victim’s shop, and on the
morning of the robbery he observed a man fitting the general description of the Defendant pull into
the parking lot in a tan Ford Ranger pickup truck and walk toward the victim’s store. He also saw
the man return to his truck a short time later. After learning of the robbery, he gave a description of
the Defendant’s truck to the police.



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         Detective William Ambrose of the Brentwood Police Department testified that he was
assigned to investigate the robbery and kidnapping. When he arrived at the scene of the crime, he
first observed a length of green rope on the floor of the store by the front door. He talked with the
victim, who had visible injuries from the assault. Det. Ambrose later arranged for a composite artist
to meet with the victim and draw a picture of the assailant. This picture and the description of the
tan Ford pickup were released to the public, and not long afterwards the Defendant’s former wife
called Det. Ambrose and gave him an address where the Defendant was known to be staying with
a girlfriend. Shortly thereafter the Defendant was determined to be a suspect, and in October of
2001, the victim identified the Defendant’s photo in a photographic line up. An arrest warrant was
issued and the Defendant was apprehended by Panama City, Florida police in November of 2001.

        Detective Ambrose stated that he drove to Florida to get the Defendant. On the trip back, the
Defendant asked if he was being arrested for his parole violation. When the Detective stated he was
under arrest for a robbery in Brentwood, the Defendant admitted he committed the crime. When they
returned to the Brentwood police station, the Defendant formally waived his Miranda rights and
issued a full confession to the robbery.

        At trial the Defendant did not testify on his own behalf and presented no witnesses.
However, through counsel he maintained that the gun used was merely a toy gun, and while he
admitted to committing robbery, he argued that the detention of the victim was not a separate crime.
The trial court accepted the Defendant’s guilty plea on the aggravated robbery charge and found the
Defendant guilty of especially aggravated kidnapping.

         At the sentencing hearing, the State called Ms. Marjorie Crowell, who testified that the
Defendant robbed and kidnapped her in 1983. Ms. Crowell stated that she was working as a
cosmetologist when the Defendant robbed her at gunpoint, tied her up, blindfolded her, placed tape
across her mouth, and placed her in a closet. The Defendant escaped with approximately $800. He
was eventually caught and convicted of robbery and aggravated kidnapping in 1984. Ms. Crowell
testified that the ordeal, although it happened over twenty years prior, still made her fearful.

        The victim in this case also testified at the sentencing hearing, stating that she could not sleep
and suffered from recurring nightmares because of the incident. The Defense called as its only
witness Mr. David Pratt of the Williamson County Parole and Probation Office who prepared the
Defendant’s pre-sentence report. Mr. Pratt testified that the Defendant had a clean record from his
release from prison on parole in 1988 until his crimes at issue in this case were committed in 2001.
At the conclusion of the sentencing hearing, the trial court found that the Defendant was a Range II,
multiple offender and enhanced both of the Defendant’s sentences because he committed his crimes
while on parole from a prior felony. The court imposed sentences of thirty-five years for the
Defendant’s Class A felony especially aggravated kidnapping conviction and fifteen years for his
Class B felony aggravated robbery conviction. The court also determined that the Defendant was
a “dangerous offender” and ordered that his sentences by served consecutively, for an effective
sentence of fifty years. The court entered final judgments for the two convictions on October 8,



                                                   -3-
2003. The Defendant filed a notice of appeal on December 5, 2003. This Court granted the
Defendant’s motion to accept a late filed notice of appeal on December 11, 2003.

                                             ANALYSIS
I. State v. Anthony Due Process Violation
        On appeal, the Defendant claims that his rights to due process as guaranteed by the “United
States Constitution” and “Article I, section 8 of the Tennessee Constitution,” were violated pursuant
to State v. Anthony, 817 S.W. 2d 299 (Tenn. 1991), when he was convicted of both especially
aggravated kidnapping and the accompanying felony of aggravated robbery. Specifically, the
Defendant asserts that the elements of his kidnapping conviction were essentially incidental to the
acts that constituted his aggravated robbery conviction. We disagree.

         Tennessee law defines robbery as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). A
robbery becomes aggravated when it is “[a]ccomplished with a deadly weapon or by display of any
article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Tenn.
Code Ann. § 39-13-402(a)(1).1 Especially aggravated kidnapping in Tennessee is “false
imprisonment, as defined in [Tennessee Code Annotated] § 39-13-302 [a]ccomplished with a deadly
weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to
be a deadly weapon.” Tenn. Code Ann. § 39-13-305(a)(1). The offense of false imprisonment is
committed when a person “knowingly removes or confines another unlawfully so as to interfere
substantially with the other’s liberty.” Tenn. Code Ann. § 39-13-302.

        Our supreme court has held that a separate conviction for kidnapping may violate due
process if the kidnapping was “essentially incidental” to the accompanying felony conviction and
was not “significant enough, in and of itself, to warrant independent prosecution.” Anthony, 817
S.W.2d at 306. In State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the court crafted a two-prong test
for identifying Anthony due process violations. First, a court must determine “whether the
movement or confinement was beyond that necessary to consummate” the felony accompanying the
kidnapping charge. Dixon, 957 S.W.2d at 535. Second, “the next inquiry is 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 court has also held that an “Anthony inquiry is not a jury question,” but rather a
matter of law for the court to determine. State v. Cozart, 54 S.W.3d 242, 247 (Tenn. 2001).

        The Defendant asserts that his convictions for both aggravated robbery and especially
aggravated kidnapping violated his due process rights pursuant to “Anthony and its progeny.” The
Defendant notes that the court in Anthony held that “every robbery, by definition, involves some
detention against the will of the victim,” but “[t]his does not mean the legislature intended that every
robbery should also constitute a kidnapping . . . .” Anthony, 817 S.W.2d at 306. According to the


         1
          The Defendant pled guilty to the charge of aggravated robbery and does not challenge his conviction for this
charge on appeal.

                                                         -4-
Defendant, Anthony mandates that the kidnapping statute “must be construed narrowly . . . ergo, it
is only logical that the Anthony test/inquiry must also be applied narrowly.”

        In the case at hand, while the Defendant asserts that his act of binding the hands and feet of
the victim “may have facilitated his escape,” he maintains it “did not substantially increase the risk
of harm” to the victim. He further claims that his blows to the victim’s head “caused her fright and
pain but no injury,” and his confinement of the victim did not lesson his risk of detection because
he was eventually apprehended. In sum, the Defendant asserts his movement and confinement of
the victim in a back room was merely “incidental to the robbery” and did not “decrease the
probability of Mr. Guynn’s detection; nor did it prevent Ms. Husband from summoning help; nor did
it increase Ms. Husband’s risk of harm.”

        This Court concludes that the Defendant in this case could have performed the robbery in the
front of the store without moving the victim to the back room, confining her and assaulting her.
Indeed, the proof clearly shows that the aggravated robbery had been accomplished at the time the
Defendant removed the victim to the back room and bound her hands and feet with rope. Thus, the
“movement or confinement was beyond that necessary to consummate” the accompanying felony
charge of aggravated robbery. Dixon, 957 S.W.2d at 535. Furthermore, the confinement prevented
the victim from immediately summoning help and lessened the Defendant’s risk of detection. See
id. The victim was unable to call for help until well after the Defendant had fled the scene, and was
unable to see which way the Defendant went or identify his means of transportation. Finally, the
Defendant hit the victim in the head multiple times while he was binding her hands and feet,
demonstrating that this separate act of confinement after the robbery created a significant danger to
the victim and increased her risk of harm. See id.

        Accordingly, we determine that the removal of the victim to the back room of the store and
her confinement were not necessary to commit aggravated robbery, but did prevent the victim from
summoning help, lessened the Defendant’s chance of detection, and subjected the victim to increased
risk of harm. Therefore we conclude the evidence supports a separate conviction for especially
aggravated kidnapping. This issue is without merit.

II. Sentencing
        The Defendant further argues that the trial court erred in imposing excessive sentences and
in running the sentences consecutively. The Defendant asserts that Blakely v. Washington, 124 S.Ct.
2531 (2004), requires a reduction in the “aggregate” sentence he received, and that the trial court
erroneously found he was a “dangerous offender” when it determined that his sentences should be
served consecutively. The Defendant also asserts that running his two sentences consecutively,
resulting in an effective sentence of fifty years, imposes sentences not “reasonably related” to the
crimes he committed. We cannot conclude that the trial court erred or abused its discretion in its
sentencing determination.




                                                 -5-
        A. Standard of Review
        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and the
method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

         B. Excessive Sentence
         The Defendant asserts that the trial court erred by imposing an excessive sentence for both
his Class A felony especially aggravated kidnapping conviction and his Class B felony aggravated
robbery conviction. In calculating a sentence for a Class A felony conviction, the presumptive
sentence is “the midpoint of the range if there are no enhancement or mitigating factors.” Tenn.
Code Ann. § 40-35-210(c). If there are enhancement, but no mitigating factors, the trial court may
set the sentence at or above the midpoint, but still within the range. See Tenn. Code Ann. § 40-35-
210(d). A sentence involving both enhancement and mitigating factors for a Class A felony requires
the court to start at the midpoint, next assign the proper weight for the enhancement factor(s), and
finally apply a reduction within the range as appropriate for the mitigating factor(s). See Tenn. Code
Ann. § 40-35-210(e). The sentence range for a Class A felony for a Range II, multiple offender is
“not less than twenty-five (25) nor more than forty (40) years.” Tenn. Code Ann. § 40-35-112(b)(1).



                                                 -6-
Therefore, the Defendant’s presumptive sentence for his Class A felony conviction of especially
aggravated kidnapping is the midpoint, or thirty-two and a half years.

         In calculating a sentence for a Class B felony conviction, the “presumptive sentence . . . shall
be the minimum sentence in the range if there are no enhancement or mitigating factors.” Tenn.
Code Ann. § 40-35-210(c). If there are enhancement, but no mitigating factors, the trial court may
set the sentence above the minimum, but still within the range. See Tenn. Code Ann. § 40-35-
210(d). A sentence involving both enhancement and mitigating factors for a Class B felony requires
the court to start at the minimum, next assign the proper weight for any applicable enhancement
factor(s), and finally apply a reduction within the range as appropriate for any mitigating factor(s).
See Tenn. Code Ann. § 40-35-210(e). The sentence for a Class B felony as a multiple, Range II
offender is “not less than twelve (12) nor more than twenty (20) years.” Tenn. Code Ann. § 40-35-
112(b)(2). Thus, the presumptive sentence for the Defendant’s Class B felony conviction of
aggravated robbery is twelve years. However, the weight to be afforded enhancement factors is left
to the trial court’s discretion so long as it complies with the principles of the sentencing act and the
court’s finding are supported by the record. See State v. Palmer, 10 S.W.3d 638, 646 (Tenn. Crim.
App. 1999).

       The trial court determined the Defendant to be a multiple, Range II offender.2 See Tenn.
Code Ann. § 40-35-106. The court next determined that enhancement factor fourteen, committing
a felony while on parole from a prior felony conviction, applied to the sentences for both of his
convictions. See Tenn. Code Ann. § 40-35-114(14)(B). The court found no mitigating factors
applicable in the Defendant’s case. Based on these findings, the trial court enhanced the
Defendant’s sentences beyond the presumptive starting point by two and a half years for the
especially aggravated kidnapping conviction, and by three years for the aggravated robbery
conviction.

        We will briefly address the Defendant’s claim of excessive sentences in light of the United
States Supreme Court’s recent opinion in Blakely v. Washington, 542 U.S.          , 124 S.Ct. 2531
(2004). The Tennessee Supreme Court recently considered the Blakely sentencing issues and
concluded that Tennessee’s sentencing structure does not violate a defendant’s Sixth Amendment
right to a jury trial. See State v. Gomez, __ S.W. 3d __. (Tenn. 2005). Accordingly, the
Defendant’s reliance upon Blakely is misplaced. This issue has no merit.

       C. Consecutive Sentences
       The Defendant also asserts that the trial court erred in ordering him to serve his sentences
consecutively. To support this claim, the Defendant argues that the trial court failed to make
adequate findings that the Defendant was a “dangerous offender,” and that the effective fifty-year
sentence does not reasonablely relate to the offenses he committed. We disagree.



         2
          W hile raised as an issue at the sentencing hearing, the Defendant does not now challenge the fact that his
criminal record requires that he be sentenced as a multiple, Range II offender.

                                                        -7-
        We begin by noting that it is within the sound discretion of the trial court whether to impose
consecutive or concurrent sentences. See State v. Adams, 973 S.W.2d 224, 230-31(Tenn. Crim.
App. 1997). A Tennessee court may order consecutive sentences in cases where it finds any of seven
statutorily enumerated criteria to be applicable “by a preponderance of the evidence.” Tenn. Code
Ann. § 40-35-115(b). In addition to these criteria, consecutive sentencing is also subject to the
general sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed,” that it “should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed,” and that the defendant’s “potential” for
“rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5). Additionally, we are
reminded that “the aggregate maximum of consecutive terms must be reasonably related to the
severity of the offenses involved.” Tenn. Code Ann. § 40-35-115 Sentencing Commission
Comments.

        In the case at hand, the trial court found one consecutive sentencing criterion applied: the
Defendant “is a dangerous offender whose behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk to human life is high.” Id. at § 40-35-
115(b)(4). The trial court also stated for the record that it imposed consecutive sentences because
the Defendant’s conduct had “escalated” in its severity, noting that in his 1983 offenses the
Defendant did not physically assault his victim as he did in the case at hand. The trial court stated
it was concerned about “what will happen next,” opining that “[n]ext time maybe he’ll pull the
trigger.” Based on these findings, the trial court concluded that “confinement for an extended period
of time is necessary to protect society from this defendant . . . .”

        The Defendant objects to the application of consecutive sentencing criterion (b)(4) in which
he was labeled a “dangerous offender” for committing a crime with high risk to human life. See
Tenn. Code Ann. § 40-35-115(b)(4). The Defendant asserts the trial court did not follow the
mandate outlined in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), in which our supreme court
ruled that “[e]very offender convicted of two or more dangerous crimes is not a dangerous offender
subject to consecutive sentences,” and requires trial courts to make specific findings before the
criterion can be applied. Id. at 938. Additionally, the Defendant asserts that his effective fifty-year
sentence, almost assuredly a life sentence,3 does not reasonable relate to the severity of the offenses
he committed.

         The Defendant is correct in his assertion that
         the imposition of consecutive sentences on an offender found to be a dangerous
         offender requires, in addition to the application of general principles of sentencing,
         the finding that an extended sentence is necessary to protect the public against further
         criminal conduct by the defendant and that the consecutive sentences must
         reasonably relate to the severity of the offenses committed.


         3
           The Defendant notes that he was fifty-one years old at the time of sentencing, and if consecutive sentences are
upheld he must serve 100% of his thirty-four year especially aggravated kidnapping sentence plus at least 35% of his
fifteen year aggravated robbery sentence before becoming eligible for early release.

                                                           -8-
Wilkerson, 905 S.W.2d at 939. However, in the case at hand, the trial court did make adequate
findings that the Defendant was a dangerous offender and that an extended sentence was necessary
to protect the public. The trial court noted the Defendant robbed the victim at gunpoint, took her to
a back room and repeatedly hit her in the head as he bound her hands and feet. At the time he
committed these crimes the Defendant was still on parole for his convictions stemming from what
the trial court found to be a “remarkably similar” incident. Furthermore, the trial court found that
the Defendant’s criminal conduct over the years “escalated” and became more violent in the
subsequent crimes he committed.

         We conclude the trial court’s findings are supported by the record. The Defendant was
released from prison early following his prior convictions of robbery and kidnapping only to commit
a nearly identical crime--this time subjecting his victim to even more violent treatment.
Furthermore, the Defendant’s act of committing essentially the same offenses again verifies he has
little potential for rehabilitation. An extended sentence is clearly warranted in the case at hand to
protect the public from any further violent criminal conduct by the Defendant. Moreover,
consecutive sentencing reasonably relates to the severity of the Defendant’s offenses of aggravated
robbery and especially aggravated kidnapping. Accordingly, we affirm the trial court’s imposition
of consecutive sentencing.

                                       CONCLUSION
       For the foregoing reasons we affirm the judgments of the trial court as to the Defendant’s
convictions and sentences.


                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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