           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                    July 16, 2002 Session

           STATE OF TENNESSEE v. RICHARD LACARDO ELLIOTT

               Direct Appeal from the Circuit Court for Montgomery County
                         No. 40000379    Michael R. Jones, Judge



                  No. M2001-01990-CCA-R3-CD - Filed November 15, 2002


Defendant, Richard Lacardo Elliott, appeals his convictions in the Circuit Court of Montgomery
County for aggravated robbery and aggravated kidnapping. Defendant argues that his conviction for
aggravated kidnapping may not stand pursuant to the Tennessee Supreme Court’s holding in State
v. Anthony, 817 S.W.2d 299 (Tenn. 1991). He further contends that the evidence at trial was
insufficient to support his convictions, and that the trial court should have granted a motion for
mistrial based upon the State’s improper comments during closing argument. We disagree, and
affirm the judgments of the trial court.

     Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Trial Court is Affirmed.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,
and ALAN E. GLENN, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); and Roger Eric Nell, District Public Defender;
and Fred W. Love, Assistant Public Defender, Clarksville, Tennessee (at trial and of counsel on
appeal) for the appellant, Richard Lacardo Elliott.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

I. Facts

        On July 3, 1999, the B & S Package Store in Clarksville, Tennessee, was robbed. Jerry Kelly
was working as a clerk at the store that day when a man came in and walked up to the counter and
asked Mr. Kelly for a particular brand of liquor. Kelly got the bottle, and the man gave Kelly five
dollars. Kelly was looking down to ring up the purchase when another customer walked into the
store. Kelly heard the man tell the customer to get on the floor. When he looked up, Kelly saw that
the man had a gun.

        Leslie Starks testified at trial that she walked into B & S Package Store on July 3, 1999.
When she entered the store, she saw a man standing at the counter. He turned around and pointed
a gun at her and said, “[L]ady get on the floor.” Ms. Starks got on the floor. She remained on the
floor with her head down, and she heard the man tell Kelly to give him his five dollars, the money
from the cash register, and the money from a cigar box underneath the counter. Kelly gave the man
the money. The robber then told Ms. Starks to get up, and he led her and Mr. Kelly to a storage area
in the back of the store. He warned them not to move from that location for five or ten minutes and
that he would be watching them.

       In December of 1999, Mr. Kelly and Ms. Starks both separately identified the Defendant in
a photographic lineup as the person who robbed the store in July. Both victims also testified at trial
that Defendant was the robber.

II. Motion to Dismiss Aggravated Kidnapping Counts

        Defendant argues that he was erroneously convicted for aggravated kidnapping. Defendant
relies on the Tennessee Supreme Court’s holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991),
and argues that the kidnapping of Leslie Starks was essentially incidental to the robbery, and the trial
court committed reversible error in denying his motion for judgment of acquittal as to counts two
and three of the indictment. As alleged in the indictment, Defendant was charged with alternative
counts of aggravated kidnapping. Specifically, Defendant was charged with false imprisonment, as
defined in Tenn. Code Ann. § 39-13-302, to facilitate the commission of or flight from the felony
offense of aggravated robbery, or alternatively, false imprisonment while in possession of a deadly
weapon. Tenn. Code Ann. §§ 39-13-304(a)(1) and (a)(5). Both counts involved the same victim,
Leslie Starks. The jury found Defendant guilty of both counts, but the trial court merged count two
with count three, resulting in one conviction for the aggravated kidnapping of Leslie Starks.

        State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), was a consolidation of two cases, State v.
Dennis Anthony and State v. James Martin, in both of which the defendants were convicted of
aggravated robbery and aggravated kidnapping. The Tennessee Supreme Court reversed both
defendants’ kidnapping convictions, holding that the facts of each case did not support separate
convictions for both robbery and kidnapping. Anthony, 817 S.W.2d at 307. In State v. Martin, the
defendant robbed an insurance agency at gunpoint. He ordered one employee to lie on the floor
while he demanded money from another employee. Id. at 302. He also demanded money from the
employee lying on the floor. Id. He then led both employees into the men’s restroom where he
ordered them to stay. Id. The supreme court noted that, while the defendant removed the two
employees to another part of the store after taking money from them, he did not “substantially
increase the risk of harm to the victims,” emphasizing that one of the store employees locked the
door to the restroom from the inside. Id. at 307. The defendant in State v. Anthony robbed a
restaurant, while his accomplice detained three restaurant employees outside, ordering them at


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gunpoint to lie on the ground near the dumpsters. Id. at 301. In reversing the defendant’s
kidnapping convictions, the supreme court concluded that the only distinction between the outside
employees and the inside employees was their location during the robbery, and that alone is not
enough to warrant a separate conviction for kidnapping. Id. at 307. The detainment of the outside
employees was as incidental to the robbery as the treatment of the inside employees, whom the
defendant had ordered at gunpoint to a back room where he demanded that they open the safe. Id.

         The supreme court recognized in Anthony that separate kidnapping convictions may violate
due process when the kidnapping is essentially incidental to another offense, such as rape or robbery.
Id. at 306. The court observed that every robbery involves some detention of the victim, but the
legislature did not intend for every robbery to constitute kidnapping. Id. The court articulated and
applied a test for determining whether a separate kidnapping conviction may stand. The test 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.” Id. Stated another way, a separate conviction for
kidnapping is warranted where the “defendant’s conduct ‘substantially increased [the] risk of harm
over and above that necessarily present in the crime of robbery itself.’” Id. (quoting State v. Rollins,
605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)).

        In a subsequent opinion, the supreme court further refined the test for determining whether
a separate kidnapping conviction may stand. State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997).
Citing Anthony, the Dixon court stated that the first inquiry is “whether the movement or
confinement was beyond that necessary to consummate the [felony].” Id. “If so, 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.

         Here, the State argues that the robbery was complete when Mr. Kelly gave Defendant all of
the store’s money. After taking the money, Defendant led Mr. Kelly and Ms. Starks to a storage
room in the back of the store where he ordered them to remain for five minutes. The State argues
that Defendant’s actions prevented Ms. Starks from summoning help, lessened the risk of detection,
and created a significant danger and increased the risk of harm. In denying the Defendant’s motion,
the trial court commented that “the risk to both of [the victims] was greatly increased by taking them
into a room with no windows and no other access, or no other exit.”

       We believe that the kidnapping of Ms. Starks, as alleged in counts two and three of the
indictment, had nothing to do with the robbery of Mr. Kelly, an employee of B & S Package Store.
See State v. Blouvet, 965 S.W.2d 489, 492 (Tenn. Crim. App. 1997). Unlike the defendants in
Anthony, Defendant did not rob the victim of the aggravated kidnapping, Leslie Starks, nor was he
charged with that offense. Rather, he was charged with the aggravated robbery of Mr. Kelly and the
aggravated kidnapping of Ms. Starks. As the supreme court stated in Anthony, “[t]he real issue
involves the propriety of a kidnapping conviction where detention of the victim is merely incidental


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to the commission of another felony, such as robbery or rape.” 817 S.W.2d at 300. In this case, the
question is whether the detention of Ms. Starks was merely incidental to the aggravated robbery of
Mr. Kelly. The Anthony court did not address a situation where the victims of the aggravated
kidnapping and the aggravated robbery are two different people.

        In State v. Blouvet, 965 S.W.2d 489 (Tenn. Crim. App. 1997), this Court addressed an issue
similar to the one with which we are presented in this case. In Blouvet, the defendant taped two store
employees’ hands and feet together in the course of committing an aggravated robbery. Id. at 491.
He took eighty dollars ($80) from one of the store employees. Id. After doing so, another man, not
an employee of the store, who was there spraying for insects, entered through the back of the store.
Id. The defendant ordered the exterminator, Mr. Edmonds, to go into the bathroom, where he
remained until the defendant left the store. Id. The defendant was not charged with the aggravated
robbery of Mr. Edmonds. Id. He challenged his conviction for the aggravated kidnapping of Mr.
Edmonds. Id. at 492. With respect to that conviction, we concluded that it was “certainly not
‘essentially incidental’ to the accompanying felony of aggravated robbery of [the store employee].”
Id.

        Here, rather than leaving the store, Defendant ordered Ms. Starks at gunpoint to a storage
room in the back of the store after the aggravated robbery of Mr. Kelly was complete. Therefore,
the aggravated kidnapping of Ms. Starks was not incidental to the aggravated robbery of Mr. Kelly.
We believe, however, that when the robbery victim and the kidnapping victim are two different
persons, the issue is better characterized as a question of whether sufficient evidence exists to sustain
a conviction for aggravated kidnapping. We address this issue below and conclude that the facts
of this case are sufficient to warrant such a conviction. Defendant is not entitled to relief on this
issue.

III. Sufficiency of the Evidence

        Next, Defendant argues that the evidence at trial was insufficient to support a finding of guilt
beyond a reasonable doubt as to both convictions. When an accused challenges the sufficiency of
the convicting evidence, we must determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Keough, 18 S.W.3d 175, 180-
81 (Tenn. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In so determining, this
Court must review the evidence in a light most favorable to the prosecution, affording it the strongest
legitimate view of the evidence in the record as well as all reasonable and legitimate inferences
which may be drawn from the evidence. Keough, 18 S.W.3d at 181 (citing State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). Questions regarding the credibility of the witnesses, the weight to
be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact,
not this Court. Bland, 958 S.W.2d at 659. Furthermore, a guilty verdict replaces the presumption
of innocence with a presumption of guilt, which a defendant has the burden of overcoming on
appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).




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         Defendant was convicted for aggravated robbery and aggravated kidnapping. As applicable
in this case, aggravated robbery is the intentional theft of the property of another accomplished with
a deadly weapon, pursuant to Tenn. Code Ann. §§ 39-13-401 and 39-13-402. The evidence
established that Defendant entered B & S Package Store on July 3, 1999, pointed a gun at Mr. Kelly,
and demanded that he give him the money from the cash register and the cigar box below the
counter. Mr. Kelly complied and gave Defendant the money. Viewed in a light most favorable to
the State, this evidence is sufficient to support Defendant’s conviction for aggravated robbery.

        Aggravated kidnapping, as applicable in this case, is the unlawful removal or confinement
of a person in order to facilitate the commission of a robbery or flight therefrom, or alternatively, the
unlawful removal or confinement of a person while in possession of a deadly weapon. See Tenn.
Code Ann. §§ 39-13-302, 39-13-304(a)(1), and 39-13-304(a)(5). Viewed in a light most favorable
to the State, the proof shows that Defendant pointed a gun at Ms. Starks and demanded that she get
on the floor. After taking the money from Mr. Kelly, Defendant removed Ms. Starks to the back of
the store and into a storage room with no windows and no exit, where he directed both victims to
stay for five to ten minutes. This evidence is sufficient to support Defendant’s conviction for the
aggravated kidnapping of Ms. Starks under either count two or three of the indictment.

         The Defendant argues that the two victims gave questionable identifications of the Defendant
and that is sufficient to create a reasonable doubt. Specifically, Defendant emphasizes that both
victims failed to notice Defendant’s gold teeth during the robbery and Ms. Starks was uncertain as
to Defendant’s identity at the preliminary hearing. However, both victims separately and
independently identified Defendant in a photographic lineup and a second time at trial. An
identification by the victim of “a defendant as the person who committed the offense for which he
is on trial is a question of fact for the determination of the jury upon consideration of all competent
proof.” State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993) (citing State v. Crawford,
635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). Furthermore, the testimony of a victim, by itself,
is sufficient to support a conviction. State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App.
1981). Whether the jury found that the victims experienced a lapse in memory or their failure to
perceive every detail of Defendant’s appearance was due to the stress of the event, those are
determinations for the jury to make, and we defer to the jury as to the credibility of the testimony at
trial.

        Defendant also argues that because the State did not present any evidence explaining how
Defendant knew about the cigar box hidden under the counter, there is insufficient evidence to
convict him of the robbery. Mr. Kelly testified that, to the best of his knowledge, he had never seen
Defendant inside the liquor store before. The jury is certainly allowed to draw inferences, however,
so long as those inferences are reasonable. We can surmise, as the jury might have done, that Mr.
Kelly is not the only employee at B & S Package Store; that Defendant has been inside the store
when Mr. Kelly was not working, or Mr. Kelly simply does not remember seeing Defendant; or that
Defendant could have received information from someone else who knows the store keeps money
in a cigar box under the counter, rather than seeing it himself. Defendant’s information could have
come from any number of sources. We are not going to speculate as to which theory is the most


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plausible or inquire as to what evidence the jury relied on in reaching its conclusion. It is sufficient
that the jury could reasonably and legitimately have drawn any of those inferences and concluded
that Defendant knew about the cigar box hidden under the store counter. Defendant is not entitled
to relief on this issue.

IV. State’s Closing Argument

        Finally, Defendant argues that the trial court erred in overruling his objection to the State’s
closing argument. Defendant argues that the District Attorney’s statement to the jury during closing
arguments that, “I would submit to you that the proof . . . is unrebutted in this case,” was improper,
and the trial court should have granted a mistrial. During a bench conference, the trial court
commented that such statement was getting very close to being improper, but nevertheless overruled
the objection.

        Closing argument is a valuable tool for the parties during the trial process. State v.
Humphreys, 70 S.W.3d 752, 767 (Tenn. Crim. App. 2001). Attorneys are generally given wide
latitude in the scope of their arguments. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994).
Consequently, a trial court is accorded wide discretion in its control of the closing arguments. State
v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). We will not interfere with that discretion
in the absence of abuse. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). To show error, a
defendant must show that the argument was so inflammatory or the conduct so improper that it
affected the verdict to the defendant’s detriment. Zirkle, 910 S.W.2d at 888.

        Defendant argues that the District Attorney’s remark prejudiced Defendant and was in fact
a comment on Defendant’s decision not to testify in violation of his constitutional rights and his
rights under Tenn. Code Ann. § 40-17-103. The State argues that the prosecutor’s remark during
closing argument was not intended to be an improper suggestion about Defendant’s failure to testify,
but rather a statement about the Defendant’s failure to present evidence in rebuttal of the State’s
case.

        When a prosecutor improperly comments on a defendant’s decision not to testify, our review
is whether the verdict was affected in such a way that the defendant was prejudiced. Coker v. State,
911 S.W.2d 357, 368 (Tenn. Crim. App. 1995), overruled on other grounds by State v. West, 19
S.W.3d 753, 756 (Tenn. 2000) (citing Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). The
factors relevant to determining whether a defendant was prejudiced by an improper remark during
closing argument include:

        1. The conduct complained of viewed in context and in light of the facts and
           circumstances of the case.
        2. The curative measures undertaken by the court and the prosecution.
        3. The intent of the prosecutor in making the improper statement.
        4. The cumulative effect of the improper conduct and any other errors in the record.
        5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

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         This Court has held that “[m]ere argument by the State that proof on a certain point is
unrefuted or uncontradicted is not an improper comment upon a defendant’s failure to testify.” State
v. Coury, 697 S.W.2d 373, 378 (Tenn. Crim. App. 1999). We also addressed this issue in State v.
Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999), where the prosecutor stated during closing
argument, “I submit to you, ladies and gentlemen, there has not been any defense asserted here
whatsoever.” In Thornton, we noted that it is well-established that “a district attorney general may
argue that the state’s evidence is uncontradicted. [Such] argument does not violate the rule
prohibiting comments on the failure of the defendant to testify in support of his defense.” Id. (citing
State v. Rice, 638 S.W.2d 424 (Tenn. Crim. App. 1982)). The defendant in Thornton did not present
any evidence, and the Defendant in this case did not present any evidence.

         We conclude that the State’s comment was not a specific reference to Defendant’s failure to
testify, but rather a statement that there was no evidence presented to refute the State’s case. This,
in effect, is the same as saying that the State’s evidence is uncontradicted. Furthermore, applying
the Judge factors, we conclude that the comment did not prejudicially affect the verdict of the jury.
Defendant is not entitled to relief on this issue.

                                          CONCLUSION

       After a careful review of the record, we conclude that the judgment of the trial court is
affirmed.

                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




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