        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 January 7, 2014 Session

                   RASHE MOORE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
           Nos. 00-06306, 00-06313 – 00-06317   W. Otis Higgs, Jr., Judge


                 No. W2013-00674-CCA-R3-PC - Filed April 22, 2014




R OGER A. P AGE, concurring in part and dissenting in part.

        I concur with the majority opinion except for one issue. I respectfully disagree with
the majority’s conclusion that the failure to instruct the jury on the lesser-included offense
of aggravated kidnapping constitutes reversible error in this post-conviction case. Such a
failure to charge a lesser-included offense is harmless beyond a reasonable doubt when no
reasonable jury would have convicted the petitioner of the lesser-included offense. State v.
Banks, 271 S.W.3d 90, 126 (Tenn. 2008). The difference between especially aggravated
kidnapping and aggravated kidnapping, as relevant to this case, is that especially aggravated
kidnapping requires the defendant to accomplish the kidnapping with a deadly weapon while
aggravated kidnapping merely requires that the defendant possess or threaten to use a deadly
weapon. See Tenn. Code Ann. §§ 39-13-304, -305. The Sentencing Commission Comments
to section 39-13-305, the especially aggravated kidnapping statute, state, “If a weapon is in
the defendant’s possession but is not used, the kidnapping is punishable pursuant to §
39-13-304, aggravated kidnapping.” The Sentencing Commission Comments to section 39-
13-304 provide a clear example of the difference between aggravated kidnapping and
especially aggravated kidnapping:

       For example, during the kidnapping, if the defendant had a deadly weapon in
       his or her pocket but did not mention or use it, or if he or she did not have a
       deadly weapon in his or her possession, but threatened the victim with the use
       of a deadly weapon, the offense would be punishable as an aggravated
       kidnapping under this section. If the defendant actually used a deadly weapon
       or used something other than a deadly weapon but convinced the victim that
       it was a deadly weapon, the offense would be punishable as an especially
       aggravated kidnapping under § 39-13-305(a)(1).
        In this case, it is uncontested that the petitioner and his compatriots used guns to
accomplish the kidnappings. As the majority opinion states, “[T]he evidence was
overwhelming and uncontroverted that a gun was used to accomplish the acts regarding all
seven victims.” (emphasis added). The summary of the trial testimony is replete with the
phrase “at gunpoint.” This court has repeatedly held that holding a victim at gunpoint
amounts to especially aggravated kidnapping. See, e.g., State v. Montreal Lyons, No.
W2006-02445-CCA-R3-CD, 2008 WL 2699657, at *3-4 (Tenn. Crim. App. July 9, 2008);
State v. Carvin Lamont Thomas, No. M2002-01716-CCA-R3-CD, 2003 WL 21233512, at
*5 (Tenn. Crim. App. May 28, 2003); State v. Jarvis Williams and John Williams, No.
W2002-03010-CCA-R3-CD, 2003 WL 23100810, at *6 (Tenn. Crim. App. Dec. 23, 2003);
State v. Antonius Harris, No. W2001-02617-CCA-R3-CD, 2002 WL 31654814, at *7 (Tenn.
Crim. App. Nov. 7, 2002). From these cases and others like them, I reason that the evidence
in this case shows that the petitioner did more than merely possess or threaten to use a deadly
weapon — he used his gun to kidnap the victims. Therefore, I conclude that the jury in this
case, which obviously heard the testimony that the petitioner and his co-defendants held the
victims at gunpoint, would not have convicted the petitioner of aggravated kidnapping even
if it had been charged as a lesser-included offense. Thus, the failure to charge aggravated
kidnapping as a lesser-included offense was harmless beyond a reasonable doubt, and
petitioner suffered no prejudice by his attorney’s failure to request that it be charged.
Accordingly, I would affirm the judgment of the post-conviction court in all respects.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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