                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                        January 7, 2015 Session Heard at Greeneville

        STATE OF TENNESSEE v. LARRY JERELLER ALSTON, et al.

                Appeal by Permission from the Court of Criminal Appeals
                            Criminal Court for Knox County
                        No. 94647 Mary Beth Leibowitz, Judge
                           ______________________________

                     No. E2012-00431-SC-R11-CD – Filed May 5, 2015
                         ____________________________________

JEFFREY S. BIVINS, J., concurring.

        I concur in the Court’s opinion in this case authored by Chief Justice Lee. That
opinion represents the correct analysis and result based upon the existing analytical
framework currently utilized by this Court in this area of the law. Although I agree that
this is not the case to revisit the issue at this point in time,1 I write separately to express
my concern about this existing analytical framework.

       Specifically, I question the constitutional underpinnings of the remnants of State v.
Anthony, 817 S.W.2d 299 (Tenn. 1991), and the new modified approach adopted in State
v. White, 362 S.W.3d 559 (Tenn. 2012). In my view, both may well be based upon
fundamentally flawed constitutional jurisprudence. Both opinions utilize the Tennessee
Constitution’s due process clause to address an issue which more properly may fall
within the ambit of the federal and state constitutions’ protection against double jeopardy.

       In 1991, with Anthony, this Court began its reliance on the due process clause of
our state constitution to address the issue of dual convictions of kidnapping and certain
other felonies which included, as necessary to their commission, some degree of removal
or confinement of the victim by the perpetrator. 817 S.W.2d at 306. For instance,
robberies and rapes necessarily involve some detention of the victim by the perpetrator in
order to accomplish the taking of property or the sexual penetration. This Court
explained in Anthony that it was relying on Tennessee’s due process clause because
“double jeopardy analysis [was] inadequate.” Id.


1
 Given the already tortured procedural history of this case and the fact that the parties were not asked to
brief the issue of my concern expressed in this separate opinion, this issue should await proper
consideration on another day.
        In White, 362 S.W.3d at 567-70, this Court recognized the complexity and the
difficulties involved in the analysis dictated by Anthony as subsequently refined in State
v. Dixon, 957 S.W.2d 532 (Tenn. 1997). The White Court ultimately overruled Anthony
and its progeny to the extent that they required a separate due process analysis in
appellate review. White, 362 S.W.3d at 578. In its place, the White Court adopted a
procedure that makes the inquiry a question of fact for a properly instructed jury. Id. at
577-78. Specifically, in these types of cases, White held that the jury must be instructed
that, in order to convict the defendant of the kidnapping offense, it must find that the
State proved beyond a reasonable doubt “that the removal or confinement was to a
greater degree than that necessary to commit” the accompanying felony, 2 an element not
found in our kidnapping statutes. Therefore, appellate review would be limited to a
sufficiency of the evidence review. Id.

       Although I certainly agree that the revised approach adopted in White represents a
major improvement in this area of the law in that it provides a much simpler and
understandable approach, I still must question its constitutional validity. First, the White
Court, like the Anthony Court before it, relied upon state constitutional due process
grounds for requiring the new jury instructions in these types of kidnapping cases. See
White, 362 S.W.3d at 566. Second, by requiring the State to prove to the jury beyond a
reasonable doubt the existence of the additional requirement, the White Court arguably
effectively adopted a new judicially-created element of the offense in these types of
kidnapping cases, over and above that adopted by our legislature.

       In summary, I question whether dual convictions such as those at issue in this case
should be analyzed based upon a defendant’s due process rights under the Tennessee
Constitution or whether they more properly should be analyzed under a double jeopardy
analysis. For example, the Washington Court of Appeals recently considered a similar
proposition in State v. Grant, 301 P.3d 459 (Wash. Ct. App. 2012), review denied 304
P.3d 115 (Wash. Jul. 10, 2013). The defendant had been convicted of first degree
robbery and first degree kidnapping. Id. at 460. The defendant contended on appeal that
“his kidnapping conviction violated due process because the restraint of the victim was
merely incidental to the robbery and was therefore not sufficient to support a separate
kidnapping conviction.” Id. The Washington court recognized that “[w]hether an
offense is incidental to another is relevant in double jeopardy analysis,” id. at 464
(emphasis added), but soundly rejected the defendant’s due process challenge:

          [T]he result of this alleged new approach to appellate review is effectively
          to impose a new, nonstatutory element of the offense of first degree
          kidnapping, to wit, that it be “not incidental” to an accompanying crime.
          But only the legislature can enumerate the elements of a criminal offense.

                  ....

2
    White, 362 S.W.3d at 580.
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             The due process clause requires the State to prove the statutory
       elements of kidnapping, which the State did. It does not require the State to
       prove that first degree kidnapping was “not incidental” to first degree
       robbery. Due process was satisfied.

Id. (emphasis added) (footnote omitted); see also State v. Irwin, 282 S.E.2d 439, 446 (N.
C. 1981) (“To permit separate and additional punishment where there has been only a
technical asportation, inherent in the other offense perpetrated, would violate a
defendant’s constitutional protection against double jeopardy.”) (Emphasis added).

         In closing, I note that some states have adopted legislation that serves to greatly
assist the resolution of this issue. For instance, Ohio law provides as follows:

              (A) Where the same conduct by defendant can be construed to
       constitute two or more allied offenses of similar import, the indictment or
       information may contain counts for all such offenses, but the defendant
       may be convicted of only one.

              (B) Where the defendant’s conduct constitutes two or more offenses
       of dissimilar import, or where his conduct results in two or more offenses
       of the same or similar kind committed separately or with a separate animus
       as to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

Ohio Rev. Code Ann. § 2941.25 (West, Westlaw through 2015 Files 1, 3 and 4 of the
131st GA). Likewise, Kentucky law provides as follows:

              A person may not be convicted of unlawful imprisonment in the first
       degree, unlawful imprisonment in the second degree, or kidnapping when
       his criminal purpose is the commission of an offense defined outside this
       chapter and his interference with the victim’s liberty occurs immediately
       with and incidental to the commission of that offense, unless the
       interference exceeds that which is ordinarily incident to commission of the
       offense which is the objective of his criminal purpose. The exemption
       provided by this section is not applicable to a charge of kidnapping that
       arises from an interference with another’s liberty that occurs incidental to
       the commission of a criminal escape.

Ky. Rev. Stat. Ann. § 509.050 (West, Westlaw through 2015 Reg. Sess.). To date, the
Tennessee General Assembly has not enacted legislation addressing this issue.




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Justice Kirby has authorized me to state that she joins in this concurring opinion.



                                          ____________________________
                                          JEFFREY S. BIVINS, JUSTICE




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