         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 December 19, 2006 Session

                  STATE OF TENNESSEE v. THOMAS COBURN

                     Appeal from the Criminal Court for Sullivan County
                          No. S46,918-19    R. Jerry Beck, Judge



                     No. E2005-02730-CCA-R3-CD - Filed August 9, 2007




JAMES CURWOOD WITT , JR., J., concurring.

                  The prescribed due process analysis in cases of multiple prosecutions involving
kidnapping is vexing to prosecutors and courts, if not to defenders, because of the infinite
possibilities for factual permutations. The present case presents an apt opportunity to illustrate the
analytical challenges and shortcomings.

                 Primarily, I write separately to emphasize that, but for the victim’s effective
resistance, the defendant could have committed rape – and in fact did commit attempted rape – at
the site of his attack on the victim. Thus, had he moved the victim to or confined her in a more
secluded location, such movement or confinement would have been deemed beyond that necessary
to consummate the accompanying felony. See State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997)
(pointing out that “the movement [of the victim from a sidewalk] to the back of the vacant lot was
not necessary for commission of the . . . assault” and holding that, therefore, the movement
“exceeded that restraint necessary to consummate the act of attempted sexual battery”). I agree,
however, that the defendant’s confinement or movement of the victim was not “significant enough,
in and of itself, to warrant independent prosecution.” See State v. Anthony, 817 S.W.2d 299, 306
(Tenn. 1991).

                I also would emphasize that the due process scuttling of the aggravated kidnapping
conviction in the present case is not a function of evidence insufficiency. The evidence was clearly
sufficient to support an aggravated kidnapping conviction via false imprisonment “[w]here the
victim suffers bodily injury.” See T.C.A. § 39-13-304(a)(4) (2003).

                This last observation evokes still a third comment. The disinclination of our courts
to apply the merger doctrine to remedy Anthony-infirm dual convictions is perplexing. Although
published precedent mandates that, in such situations, the kidnapping conviction must be vacated
and that charge dismissed, see State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996); State v. Coleman,
865 S.W.2d 455, 457 (Tenn. 1993); State v. Taylor, 63 S.W.3d 400, 410 (Tenn. Crim. App.
2001)(citing State v. Carson, 950 S.W.2d 951, 953 n. 3 (Tenn. 1997); State v. Binion, 947 S.W.2d
867, 872-73 (Tenn. Crim. App. 1996); State v. Gregory, 862 S.W.2d 574, 579 (Tenn. Crim.
App.1993), we have consistently applied a merger remedy in the closely-related rubric of multiple
convictions that violate double jeopardy principles, see State v. Antonio D. Richardson, No. M2005-
01161-CCA-R3-CD, slip op. at 9-10 (Tenn. Crim. App., Nashville, May 4, 2006), reh’g denied
(Sept. 7, 2006), perm. app. granted (Tenn. Jan. 29, 2007) (order on petition to rehear). Until Anthony
is overruled, the merger doctrine is applied, or the Anthony-related murkiness is clarified by finer
judicial filtering, prosecutors might be well advised to jettison pretrial the charge of the
accompanying felony when it is an offense in a class lower than the kidnapping offense and when
evidence of the kidnapping offense is strong. In resolving Anthony cases, the appellate courts are
obliged to review the evidence adduced at trial, nuances of which may not have even been
foreseeable pretrial by the prosecutor. For instance, the post-trial review of the present case not only
reveals strong evidence of aggravated kidnapping, a Class B felony, but also an Anthony problem
palpable enough that the risk of obtaining only a conviction of a Class C felony for attempt to
commit rape could be viewed as unacceptable from a prosecutorial standpoint.

                Finally, I wonder whether the necessity for using the Anthony due process regime was
later obviated by State v. Denton, 938 S.W.2d 373 (Tenn. 1996), a case that expanded Tennessee’s
notion of double jeopardy principles. At the time of Anthony, double jeopardy analysis was largely
focused upon the congruency of the statutory elements of two or more crimes pursuant to
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932):

                               “[W]here the same act or transaction
                               constitutes a violation of two distinct
                               statutory provisions, the test to be
                               applied to determine whether there are
                               two offenses or only one is whether
                               each provision requires proof of an
                               additional fact which the other does
                               not.”

State v. Black, 524 S.W.2d 913, 919 [(Tenn. 1975) (quoting Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932)). The Anthony court, laboring before Denton, was
vexed that Anthony’s viscerally-infirm conviction offenses did not violate the Blockburger elements
test. See Anthony, 817 S.W.2d at 303 (“In this appeal, by contrast [to Blockburger], the result does
not turn on an examination of the statutory elements of the two offenses . . . . The 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.”) In a quest that would lead the
Anthony court to rely upon due process principles to determine the validity of Anthony’s multiple
convictions, the court found itself “in agreement with the majority view that holds double jeopardy
analysis to be inadequate in resolving the question raised by this appeal.” Id. at 306. Crucially, as
it now seems, the court justified its rather utilitarian use of due process principles as an “approach


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[that] is fully consistent with the intent of the General Assembly in enacting the prohibition against
kidnapping.” Id.

                  Denton, however, later reformulated the approach to double jeopardy issues. “The
key issue in multiple punishment [double jeopardy] cases is legislative intent,” the supreme court
said, stressing that “‘the first step in the double jeopardy analysis is to determine whether the
legislature . . . intended that each violation be a separate offense.’” Id. at 379 (quoting Garrett v.
United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411 (1985) (stating that when a legislature
intends “that there be only one offense – that is, a defendant could be convicted under either statutory
provision for a single act, but not under both – there would be no statutory authorization for a
subsequent prosecution after conviction of one of the two provisions, and that would end the double
jeopardy analysis”)).

                With legislative intent identified as the key quest in a double jeopardy analysis,
Denton instructed that the “Blockburger test is useful for determining legislative intent, but it is not
conclusive.” Denton, 938 S.W.2d at 379 (emphasis added). In addition to the Blockburger elements
test, the double jeopardy analysis is guided by (1) whether “the same evidence is required to prove”
each of the multiple offenses charged, id. at 380, (2) whether “[d]iscrete acts [or victims] can justify
multiple convictions,” id. at 381 (citing State v. Phillips, 924 S.W.2d 662 (Tenn. 1996)), and (3) a
“comparison of the purposes of the respective statutes,” id. at 381. The component of focusing upon
whether the multiple prosecutions emanate from discrete acts is the part of the double jeopardy
formula that looks beyond the terms of the proscriptive statute and takes into account the facts of the
particular case. Thus, in State v. Phillips, a sexual offense case, our supreme court offered a litany
of factors to guide the double jeopardy determination when multiple acts or offenses were at play:

                       1. The nature of the act;

                       2. The area of the victim’s body invaded by the sexually
               assaultive behavior;

                       3. The time elapsed between the discrete conduct;

                        4. The accused’s intent, in the sense that the lapse of time
               may indicate a newly formed intent to again seek sexual gratification
               or inflict abuse; and

                       5. The cumulative punishment.

Phillips, 924 S.W.2d at 665. The court added “that the presence [or] absence of any one factor or
a combination of them other than the nature of the act is not determinative of the issue.” Id.
Presumably, substituting a double jeopardy analysis for a general due process analysis in cases such
as the present case would replace the Anthony-Dixon test with an apt variation of the Phillips test,
and the latter would only be a component of the larger constitutional analysis.


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                As we have seen, legislative intent was an espoused concern of the Anthony court,
and now, in the Denton era, double jeopardy analysis not only embraces, but aims to effectuate
legislative intent through an expansive analysis that includes consideration the nature of the
particular offenses. Thus, one wonders whether the Denton double jeopardy regime is now fully
competent to fill the analytical void perceived by the Anthony court – thus relegating Anthony to
desuetude, if not ripening it for outright overruling.




                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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