            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


The Defendant, Thomas Coburn, was convicted by a Sullivan County jury of aggravated kidnapping,
a Class B felony, and attempted rape, a Class C felony. The trial court sentenced the Defendant to
nineteen years for the aggravated kidnapping and nine years for the attempted rape to be served
consecutively in the Department of Correction. On appeal, the Defendant asserts the following: (1)
his conviction for aggravated kidnapping violated federal and state due process protections and
should be vacated under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); (2) the evidence
establishing identification is insufficient to support his convictions for attempted rape and aggravated
kidnapping beyond a reasonable doubt; and (3) the trial court erred in ordering the Defendant to
serve consecutive sentences based upon the classification as a dangerous offender. We reverse the
Defendant’s conviction for aggravated kidnapping. We affirm the conviction for attempted rape.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part;
                                     Reversed in Part

DAVID H. WELLES, J., delivered the opinion of the court. JAMES CURWOOD WITT , JR., J., filed a
concurring opinion. JOSEPH M. TIPTON , P.J., filed a concurring and dissenting opinion.

Steven M. Wallace, District Public Defender; and Terry L. Jordan, Assistant Public Defender,
Blountville, Tennessee, for the appellant, Thomas Coburn.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                                     OPINION

                                        Factual Background
        This case arises from an attack upon a female jogger just after noon on June 5, 2002 on the
Greenbelt exercise trail in Kingsport, Tennessee. The victim alleged that she was “completely taken
off guard” when an assailant approached her from behind, covered her eyes, grabbed her breast, and
“forcibly” pulled her “toward the brushes [sic]” that lined the paved trail. The victim wrestled with
the assailant and was able to turn and face him, at which point she realized that the man was
“wearing nothing but a blue ski mask, and a pair of tennis shoes.” The victim also observed that her
attacker was in a state of “semi-arousal.”1

        The victim struggled with the assailant for approximately “ten to twenty-five” seconds,
during which time she used her car keys as a weapon “to punch and stab” the attacker. The victim
“felt impact on several occasions,” confirming that she was able to successfully strike the assailant.
Throughout the struggle, the victim stated that the attacker attempted to move her “constantly back
towards the brushy trail.” As the victim fought the assailant, he continued his attempts to move her
into the wooded area by “grab[bing her] hair and pull[ing her] head back.” The victim stated that,
during the fight, they “left the path at one point . . . .” Ultimately, the victim was able to successfully
defend herself from the attacker. The masked assailant ran in one direction down the trail, and she
sprinted away from him in the other direction. As the attacker ran away from her, the victim saw
him “turn around . . . and make like he was going to come after [her] again,” but the attacker
eventually continued to run away.

         Although the victim did not see anyone on the trail initially to whom she could report the
attack, she eventually came upon two other female runners. The victim told them what had occurred,
and one of them used a cellular phone to report the incident to the local law enforcement authorities.
The victim stated that she never saw her attacker’s face but was able to generally describe his height,
build, and complexion for authorities. She testified that “he had relatively light skin, relatively fair
skin, [and] very little body hair”; “small to medium build”; and was “approximately . . . five [feet],
seven and three-quarter [ inches]” tall. She also reported that he was wearing a blue ski mask
throughout the attack, preventing her from identifying his facial features. The victim did not hear
the assailant’s voice and testified that, during the attack, the attacker made only “growls.” The
victim testified that, as a result of the incident, she sustained a scratch on her cheek and on her
finger2 and that her “neck hurt for several days after the attack.” Finally, the victim testified that she
felt that the attack was sexual in nature because the man was naked and aroused, “forced [her] to be
pressed tightly against his body,” and “touch[ed] her breast.”



         1
           The victim specifically stated that the attacker either had a “fully erected to semi erect” penis. At another
point during the trial, the victim colloquially stated that “the flag was raised.”

         2
           Photographs taken during the investigation were introduced showing a scratch on the victim’s cheek and on
the victim’s finger.

                                                          -2-
        One of the other female joggers—Leslie Taylor—also testified to what she witnessed that
afternoon on the Greenbelt. She stated that she first realized something was out of the ordinary when
she “heard a lady calling for help.” Ms. Taylor ran to her car to retrieve her cellular phone to report
the situation; the victim and Ms. Taylor’s jogging partner walked behind Ms. Taylor. As Ms. Taylor
was running to her car, she noticed a man, whom she identified in court as the Defendant, wearing
“a pair of white and blue tennis shoes, a pair of soccer shorts . . . and a white shirt that had several
buttons . . . in the front.” She said the Defendant “was walking by very slowly; and he appeared to
look over his shoulder to see what [they] were talking about, and just seemed very interested in what
[they] were doing.” Ms. Taylor also said that the Defendant was “just acting very weird and odd”
and that “his head was very wet with sweat” but that his body and clothing were not. The man
walked out of Ms. Taylor’s sight and then returned twice, acting in the same manner—looking over
his shoulder and seeming interested in what was transpiring. Ms. Taylor said that the victim was
with her at this time, but the victim testified that she did not notice the man because she had her head
down and was crying and preoccupied. Ms. Taylor testified that the man eventually left the area.
On the following day, Ms. Taylor saw the Defendant’s photograph in the newspaper and stated that
she had “[n]o doubt whatsoever” that the photo was that of the man she saw acting suspiciously on
the Greenbelt trail.

         Once the victim reported the attack, Kingsport Police Department officers began searching
for the attacker in the area around the Greenbelt trail. Initially, Detective David Cole reported to the
Greenbelt, met with the victim, and asked her to show him where the attack occurred. Detective
Cole testified that he “noticed the cut to her finger and . . . the mark next to her left eye” that she
stated had occurred during the altercation. He stated that she described the attacker as having a
“medium build . . . .” He also stated that she allowed him to use a “DNA collection kit” to take
samples from her car keys, her hands, and her fingertips to determine if they contained “any possible
evidence” to identify the attacker. Detective Cole also observed that the victim “was very upset, and
shaken” while he talked to her about the incident.

         Both Lieutenant Robert Abernathy and Captain Ed Swayze were also involved in the effort
to catch the perpetrator almost immediately after the attack. Lieutenant Abernathy testified at trial
that he was riding in Captain Swayze’s patrol car when they heard a radio bulletin regarding the
attack on the Greenbelt. Because they were “very close” to the location of the attack, they responded
to the area where the suspect was reported to have fled, which was near Eastman Road and Kingsport
Mall. They first proceeded to Reedy Creek Road but did not see a suspicious person in this area.

        Captain Swayze and Lieutenant Abernathy then proceeded to the parking lot of the Kingsport
Mall, which was a virtually abandoned shopping plaza, and they saw “a vehicle that was
approaching” from the direction of the Greenbelt.3 Lieutenant Abernathy described the vehicle as
“a dull black colored Chevrolet, S-10 pickup. . . . [I]t was an extended cab pickup, one of the small
ones. It had gray primer on the area that would have been immediately behind the driver’s


         3
          Not only is the Kingsport Mall close to the Greenbelt, but a trail leads directly from the mall parking lot to
the Greenbelt. The access to the Greenbelt is only approximately 300 to 400 yards from the mall parking area.

                                                          -3-
compartment, the driver’s door.” They saw that the vehicle had no occupants other than the driver.
Furthermore, Lieutenant Abernathy testified that he immediately noticed that “the person driving the
vehicle did not look at [them]” and that “he was sweating . . . very heavily.” The police officers
radioed the license tag information to the central dispatchers and were given “additional
information” that led them to radio the description of the truck to other officers and advise them that
the truck was likely traveling north on Eastman Road toward Stone Drive. They also attempted to
follow and locate the vehicle, which they had lost sight of by the time they received further
information about the truck. When they did not observe the vehicle going east on Stone Drive, they
notified other officers in the area that they believed the suspect was traveling west on Stone Drive.

        Moments later, Officer Brian Carter observed a vehicle fitting the truck’s description
traveling west on Stone Drive as Lieutenant Abernathy and Captain Swayze had suspected. The
truck was traveling approximately sixty miles per hour on a hilly and curvy road where the posted
speed limit was twenty-five miles per hour. As Officer Carter followed the truck in his patrol car,
the vehicle “sped up” until Officer Carter “activated [his] blue lights . . . .” At that time, the
Defendant slowed down to approximately forty-five miles per hour, but the Defendant did not stop
his vehicle. The driver passed several places where he could have pulled the truck over, but the
driver did not do so even though Officer Carter noticed in the suspect’s “driver’s side mirror that he
kept making [eye] contact.” Ultimately, Officer Carter sounded the “air siren,” and the Defendant
then immediately stopped his vehicle.

        Officer Carter approached the Defendant’s vehicle and immediately noticed that “[h]e was
perspiring very heavy [sic], [and] appeared very nervous.” Officer Carter also observed “a little bit
of blood on the back of his neck.” When Officer Carter asked the Defendant about the bleeding, he
replied that “he scratched a mosquito bite.” Officer Carter then asked the Defendant to step outside
of his vehicle. The Defendant was wearing “a light colored shirt, and a pair of soccer style shorts.”4
Officer Carter realized that the Defendant was not wearing any underwear underneath his shorts.
Officer Carter notified Lieutenant Abernathy and Captain Swayze that he had apprehended a suspect,
and they both proceeded to the location of the traffic stop.

        Approximately two minutes after Officer Carter made the initial traffic stop, Captain Swayze
and Lieutenant Abernathy arrived at the location of the stop. Lieutenant Abernathy testified that this
truck was the same vehicle he had seen in the Kingsport Mall parking lot minutes earlier. Lieutenant
Abernathy also believed the Defendant to be the same driver that he had observed when he initially
saw the truck. Lieutenant Abernathy then proceeded to search the suspect’s truck.5 Under the
driver’s seat were “a pair of white shorts” and a magazine with photographs of “partially clad”


         4
          Ms. Leslie Taylor, who happened upon the victim on the Greenbelt trail, testified that the clothing in which
she saw the man on the trail matched the shirt, shorts, and shoes that the Defendant was wearing when he was
apprehended. Ms. Taylor testified, however, that she never saw a blue ski mask.

         5
          From the transcript of the motion to suppress hearing, we are able to glean that Lieutenant Abernathy initially
asked the Defendant to consent to the search of his truck, which the Defendant refused. Later, Lieutenant Abernathy
performed a search incident to the Defendant’s arrest.

                                                          -4-
women. There was a t-shirt lying across the console between the front seats, and inside the console
was a “[r]oyal blue toboggan style ski mask”6 and a “camouflaged ski mask.”

         Lieutenant Abernathy also spoke with the suspect himself, at which point he noticed that
“there was blood on the back collar area” of “the shirt that he was wearing[.]” Lieutenant Abernathy
asked the suspect to remove his shirt “for evidentiary purposes” and then noticed that there was a
scratch on the back of his neck and on the left side of his chest. Officer Carter testified that he also
noticed these scratches when the suspect removed his shirt. Lieutenant Abernathy observed that
there were no tears on the shirt in the locations of the suspect’s scratches. Both Officer Carter and
Lieutenant Abernathy denied that they were in any way forceful with the Defendant throughout the
traffic stop and stated that, as such, they could not have caused scratches to the Defendant.

        After the Defendant was placed under arrest, he was interviewed by Detective Cole, who
originally met with the victim at the Greenbelt. Detective Cole photographed the scratches on the
Defendant’s body and took his tennis shoes as evidence. Detective Cole also used the DNA kit to
swab the abrasions on the Defendant’s body to compare to the samples taken from the victim’s keys
and fingertips.

         The Defendant was then taken to Holston Valley Hospital, where he was examined by Dr.
Michael L. Bacon. Dr. Bacon testified at the Defendant’s trial as an expert in emergency medicine.
Referring to the photographs of the two scratches on the Defendant’s chest and neck, Dr. Bacon
testified that he observed those injuries when the Defendant arrived at the hospital. Dr. Bacon
testified that he is able to distinguish typical cuts and abrasions from insect bites and that the
scratches on the Defendant’s body were the former. Dr. Bacon further testified that the scratches
occurred “within about six hours” before the examination because the “wound was not bleeding .
. . but yet it [was] still fresh . . . [and] had not turned a dark color that wounds typically do about six
to twelve hours out.” With regard to how the wound occurred, Dr. Bacon stated that it did not in any
way appear to be self-inflicted and also did not appear to be inflicted by fingernails; however, Dr.
Bacon was unable to definitely state how the scratches occurred. Dr. Bacon also testified that the
wounds were unique because “[m]ost scratches are a straight line. Rarely do you see a curve [as
these wounds were].”

         The evidence taken throughout the investigation was also sent to the Tennessee Bureau of
Investigation crime laboratory. Special Agent Forensic Scientist Donna Nelson testified at trial as
a serology and DNA expert regarding the analysis of the evidence in this case. Special Agent Nelson
testified that the analysis of the DNA swabs from the victim’s keys and fingertips were negative for
human blood. Special Agent Nelson also stated that the victim’s pants, which Detective Cole
obtained some time after the incident, were negative for seminal fluid. Because Special Agent
Nelson was unable to find any fluids to compare to the Defendant’s known DNA sample, the
laboratory could not provide any serology evidence to either implicate or exonerate the Defendant.



        6
            The victim later identified the blue ski mask as matching the mask worn by her attacker.

                                                         -5-
         The Defendant testified on his own behalf and denied that he had any part in the attack on
the Greenbelt. He claimed that he was at the Greenbelt to meet his friend, Michael Holt, to go
bicycling. He stated that they had made plans to meet at noon and that he had called his friend
earlier that morning to verify that they were meeting but that Mr. Holt was not home at that time.
He stated that he parked at the Kingsport Mall, where many people park to access the Greenbelt, but
walked to the area where Ms. Taylor saw him because he wanted to be in the shade on the hot
summer day while he was waiting on his friend. He stated that he did walk between 150 and 200
yards from his truck but claimed that his truck was visible to him through the wooded area so he
could see when Mr. Holt arrived. He admitted seeing “a group of people” and noticing “a person
obviously crying.” He stated that he was sweating from the heat of the day and that his shirt was wet
from perspiration even though Ms. Taylor testified that she believed only his head was wet. He said
he waited between twenty-five and thirty minutes for Mr. Holt but then left the Greenbelt to go to
Mr. Holt’s home to see why he did not meet him.

         The Defendant testified that his home and Mr. Holt’s home were close to Idlehour Road,
which was the road he was traveling on when he was apprehended by authorities. He testified that
he did not pull over immediately because he thought the officer simply wanted to get around his
vehicle and that there were no areas to pull over on such a narrow road. He said he did not realize
that he was breaking any laws and that he knew he did not speed up going over the hills on Idlehour
Road because “[t]he particular vehicle [he] was driving was a five speed, four cylinder vehicle . . .
[that] would [not] go that speed up the hill . . . .” He testified that he realized the officer wanted him
to pull over when he sounded his air siren, at which point he pulled to the side of the road. He
explained that he had the blue ski mask and the camouflaged ski mask in his truck because these
were his and Mr. Holt’s hunting masks, respectively. He testified that he kept the masks in his car
to prevent getting his scent on the masks. He also stated that he was still sweating because his
“vehicle does not have an air conditioner,” and this was a hot summer day.

         He also stated that the only reason he could have received scratches on his neck and chest
was because the officers used physical force throughout the traffic stop. He stated that Officer Carter
forcefully pulled him out of the truck and pushed him “against the side of [the] truck” when he was
initially stopped. He testified that Officer Carter also forcibly pulled him backwards when
Lieutenant Abernathy stated he could search the truck because it was being “confiscat[ed].” He
stated that Lieutenant Abernathy also forcefully pushed him into the patrol car upon being arrested
and that he forcibly removed his shirt and one tennis shoe7 for evidentiary purposes. He stated that
he could not pinpoint exactly what caused the two scratches but that he felt pain on several different
occasions when the officers used force against him. He testified that he never told any officers or
his doctor that he had scratched a mosquito bite that had led to bleeding, although the officer listed
this as the complaint at the hospital.



         7
          Lieutenant Abernathy testified that he did not remove the Defendant’s shoe at the scene of the traffic stop.
Furthermore, Detective Cole testified that he removed the Defendant’s shoe at the Kingsport Police Station after the
Defendant had been arrested.

                                                         -6-
        Michael Holt also testified for the defense and stated that he was running late in meeting the
Defendant, who was his “best friend[,]” at the Greenbelt at noon. He stated that he and the
Defendant routinely went to that area for exercise and recreation, such as bicycling and fishing. He
stated that he “knew” that the Defendant would wait on him at the Greenbelt. He also stated that the
Defendant used the blue ski mask for hunting8 and that the camouflaged ski mask found in the
Defendant’s vehicle was his own hunting mask, not the Defendant’s. He stated that they kept the
masks in the Defendant’s vehicle to avoid getting “human scents” on the hunting apparel. When
asked if he would “lie for [his] best friend[,]” Mr. Holt responded, “not if . . . he done it.”


                                       Procedural Background
         The Defendant was charged by presentment from a Sullivan County grand jury with
attempted rape and aggravated kidnapping.9 The Defendant filed a motion to suppress all evidence
discovered in the traffic stop, asserting that he was “unlawfully seized and arrested” and that “law
enforcement officers [were] without reasonable suspicion or probable cause” when they initiated the
traffic stop. The trial court denied the motion.

        After a jury trial, the Defendant was convicted of attempted rape and aggravated kidnapping.
The trial court initially sentenced the Defendant as a violent offender to serve twenty years for the
aggravated kidnapping and ten years for the attempted rape to be served consecutively in the
Department of Correction. The Defendant timely filed a motion for a new trial, which was
subsequently amended twice. The final motion for a new trial alleged, among other issues, that the
evidence was insufficient to support the Defendant’s convictions, that the trial court erred in ordering
the Defendant’s sentences to be served consecutively, and that the trial court “erred in not merging
the aggravated kidnapping conviction with the attempted rape conviction, or the alternative, in not
merging the attempted rape conviction with the aggravated kidnapping conviction.”10

        The trial court denied the Defendant’s motion for a new trial. First, with regard to the
Anthony due process issue, the trial court found that “when a man is naked in a pair of tennis shoes
and a blue ski mask and grabs a young woman from behind and begins pulling her toward the bushes
and he has a semi-erection, it would seem the Jury could certainly imply that kidnapping, what have
you, to get her out of sight, out of that public sun-shining area over into the bushes.” The trial court

         8
           The Defendant explained that, even though most hunters admittedly used a camouflaged mask, he did not feel
the need to do so because “the deer . . . are color blind.”


         9
           The Defendant was also charged, in a separate presentment, with speeding and a fourth offense of driving
on a suspended license.

         10
             W e note at the outset that, although the Defendant phrased the issue in his motion for a new trial and in his
appellate brief as whether the convictions should be merged, the remedy for due process violations under State v.
Anthony, 817 S.W .2d 299 (Tenn. 1991), is dismissal of the kidnapping conviction. See State v. Antonio D. Richardson,
No. M2005-01161-CCA-R3CD, 2006 W L 1173168, at *7-8 (Tenn. Crim. App., Nashville, May 4, 2006), reh’g denied,
(Sept. 7, 2006), perm. to appeal granted (Tenn. Jan. 29, 2007).

                                                           -7-
found that the victim was “certainly . . . once he grabbed her, she was headed in that direction, in the
bushes.” The trial judge stated that he “is of the opinion that, particularly, the risk of detection
[factor which is relevant to the Anthony-Dixon analysis] . . . he was getting her over there [and into
the bushes and off the path] so he could rape her.”

       Next, the trial court ruled that the evidence was sufficient to support the Defendant’s
convictions.11 Finally, the trial court determined that the Defendant “presents himself before the
Court as an extremely dangerous offender” and that “the interest and safety of the public . . .
demands and commands that the Defendant receives consecutive sentencing.” However, the trial
court amended the judgments following the re-sentencing hearing and ordered the Defendant to serve
nineteen years for the aggravated kidnapping and nine years for the attempted rape to be served
consecutively in the Department of Correction. This appeal followed.

                                                 Analysis
                                              I. Due Process
         First, the Defendant asserts that his convictions for aggravated kidnapping and attempted rape
violate the due process protections of the federal and state constitutions. This claim is founded upon
our supreme court’s decision in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In Anthony, the
court analyzed “the propriety of a kidnapping conviction where detention of the victim is merely
incidental to the commission of another felony, such as robbery or rape.” Id. at 300. The court
observed that every robbery or rape involved some detention against the will of the victim but that
this did “not mean that the legislature intended that every robbery [or rape] should also constitute
a kidnapping, even though a literal reading of the statute might suggest otherwise.” Id. at 306. The
court held that such dual convictions must be analyzed based upon “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. at 300. Our supreme court suggested that “one method of resolving this question
is to ask whether the defendant’s conduct ‘substantially increased [the] risk of harm over and above
that necessarily present in the [accompanying] crime . . . itself.’” Id. at 306 (quoting State v Rollins,
605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)).

        In State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), our supreme court “refined the Anthony
test” by “provid[ing] the structure necessary for applying the principles announced in Anthony.”
State v. Fuller, 172 S.W.3d 533, 536 (Tenn. 2005). Specifically, the Dixon court stated as follows:


         11
             The trial court referenced evidence regarding sightings of the Defendant’s black truck on other occasions
as providing support for the conclusion that the identification evidence was sufficient. This evidence was not introduced
before the jury but instead was only presented in the motion to suppress hearing and was improper for the trial judge to
consider in a sufficiency review. However, this Court’s analysis of whether the evidence was sufficient to support the
Defendant’s convictions beyond a reasonable doubt depends not upon the trial judge’s conclusion but upon a
determination of whether any rational trier of fact could have found the Defendant guilty from the evidence adduced at
trial. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W .3d 593, 599 (Tenn. 1999).



                                                          -8-
             Anthony and its progeny . . . are not meant to provide the rapist a free
      kidnapping merely because he also committed a rape. The Anthony decision should
      only prevent the injustice which would occur if a defendant could be convicted of
      kidnapping where the only restraint utilized was that necessary to complete the act
      of rape . . . . Accordingly, any restraint in addition to that which is necessary to
      consummate rape . . . may support a separate conviction for kidnapping.


Dixon, 957 S.W.2d at 534-35 (footnote omitted).

        Thus, the Dixon court refined and expanded the test to determine if dual convictions passed
constitutional muster under Anthony. First, a reviewing court must decide “whether the movement
or confinement was beyond that necessary to consummate the [accompanying felony].” Id. at 535
(citing Anthony, 817 S.W.2d at 306). To make this determination, the court stated that “it is the
purpose of the removal or confinement and not the distance or duration that supplies a necessary
element of [any degree of] kidnapping.” Id. at 535; see State v. Antonio D. Richardson, No.
M2005-01161-CCA-R3-CD, 2006 WL 1173168, (Tenn. Crim. App., Nashville, May 4, 2006), reh’g
denied, (Sept. 7, 2006), perm. to appeal granted (Tenn. Jan. 29, 2007). If this initial question is
answered in the affirmative, “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.” Dixon, 957 S.W.2d at 535
(citing Anthony, 817 S.W.2d at 306).

         When an appellate court reviews dual convictions under the “Anthony-Dixon regimen,” see
Richardson, 2006 WL 1173168, at *3, “[t]he issue of whether a separate kidnapping conviction
violates [principles of] due process is purely a question of law[,]” Fuller, 172 S.W.3d at 536. An
appellate court must “review questions of law de novo with no presumption of correctness afforded
to the lower court’s conclusions.” Id. If the appellate court finds a due process violation occurred,
the proper remedy is dismissal of the kidnapping conviction. See Richardson, 2006 WL 1173168,
at *7-8.

        We begin by noting that the Anthony-Dixon rubric does not provide a litmus test for clearly
determining when dual convictions are unconstitutional. As we have previously stated, “[t]he
contours of due process seldom are sharply defined.” Richardson, 2006 WL 1173168 (order on
petition to rehear). The present case is no exception.

    a) Whether the movement or confinement of the victim exceeded that necessary to
                                consummate the attempted rape
        Our first step in the analysis is to determine whether the “confinement, movement, or
detention is essentially incidental” to the attempted rape. Although the trial court did not
methodically discuss the factors of the Dixon test, the trial court did implicitly find that the
movement was beyond that necessary to consummate the rape. The trial court stated that the
offense of kidnapping was based upon the Defendant’s attempts to “get [the victim] out of sight,


                                                -9-
out of that public sun-shining area over into the bushes.” We conclude that the trial court erred in
determining that the convictions did not violate due process based upon the Defendant’s actions.

        When the entire attack lasts only “ten to twenty-five” seconds and consists of only a brief
struggle between the victim and the attacker, the determination of whether excess “confinement,
movement or detention” occurred is difficult. However, our supreme court stated in Dixon that “it
is the purpose of the removal or confinement and not the distance or duration that supplies a
necessary element of [any degree of] kidnapping.” 957 S.W.2d at 535. As such, the fact that this
struggle was brief and involved minimal movement does not necessarily require the conclusion that
the convictions violate due process. Instead, the first prong of the due process inquiry turns on the
Defendant’s “purpose” for the removal or confinement.

        The Defendant’s purpose is likewise difficult to ascertain. While upon first consideration
it may appear evident that the Defendant had a sexual purpose based upon the fact that he attacked
the victim in the nude and in a state of “semi-arousal,” the victim’s own testimony focused on being
pulled and pushed “constantly” toward the direction of the foliage around the exercise trail.
Because the crime was apparently not carried to completion due to the victim’s successful self-
defense, the inquiry becomes murky at best. Because the victim courageously fought off her
assailant, the attacker was scarcely able to remove the victim from the path at all and was able to
restrain her for only thirty seconds or less.

        For the purposes of due process, our supreme court has stated that the Defendant must
employ “some restraint in addition to that which is necessary to consummate rape” in order to
support a kidnapping conviction. Dixon, 957 S.W.2d at 534-35. Even though the Defendant, if not
repelled by the victim, may have ultimately acted in a manner that would clearly evidence his intent
to commit both a rape and a distinct kidnapping, we cannot conclude from the facts of this case that
he did more than that which was necessary to attempt to subdue the victim in order to commit rape.
Unlike the facts of Dixon, where the victim was moved thirty to forty yards from a public road to
a secluded area, the Defendant in this case did not clearly evidence a separate purpose and intent
to kidnap the victim. Therefore, we must conclude that the struggle and resulting detention was
“essentially incidental” to the attempt to rape. Thus, we are constrained to determine that the
convictions for both aggravated kidnapping and attempted rape violate the due process principles
set forth by our supreme court in Anthony, Dixon, and their progeny.

        Based upon our resolution of the initial analysis, we need not go further. See Dixon, 957
S.W.2d at 535. However, we will also address the remaining Dixon factors to facilitate possible
further appellate review.

 b) Whether the movement or confinement prevented the victim from summoning help,
lessened the Defendant’s risk of detection, or created a significant danger or risk of harm




                                                -10-
                          1) Preventing the victim from summoning help
        The first question in the second prong of the Anthony-Dixon analysis is whether the
Defendant’s actions “prevented the victim from summoning help.” The trial court did not rely upon
this factor in determining that the Defendant’s convictions did not violate due process. We agree
that this factor is not present in the Defendant’s case.

         The record shows that the victim and the Defendant struggled on the running path or just
off the running path. The Defendant did not successfully remove the victim from the area on which
another passer by would travel. The victim also testified that she was able to scream throughout
the attack and yelled at the Defendant even after the struggle was over. Thus, the Defendant did
not prevent the victim from summoning help, even though no other runners happened to pass
through this area at the time of the attack.


                          2) Lessening the Defendant’s risk of detection
         The next question is whether the Defendant succeeded in lessening his own “risk of
detection.” The trial court found that the Defendant did lessen his risk of detection by the method
used to attack the victim. We agree with the trial court and conclude that Defendant’s intention to
escape detection is very clear. The Defendant’s choice to attack a runner on a secluded trail at a
time when he could see no other runners nearby demonstrates that he intended to lessen his risk of
detection. Furthermore, not only did the Defendant choose a location where his detection was less
likely, but he continued throughout the attack to attempt to move the victim into the nearby foliage,
which would have exponentially lessened his risk of detection. Although the Defendant intended
to lessen his risk of detection by forcing the victim into a heavily wooded area where a passer by
would not see the attack, the victim was able to thwart the Defendant’s plan.


                   3) Creating a significant danger or risk of harm to the victim
        Finally, we must determine whether the Defendant’s confinement or movement of the victim
“created a significant danger or increased the victim’s risk of harm.” The trial court did not rely on
this factor in its determination, and we conclude that this was proper.

       In this case, the Defendant’s actions did not create a danger or risk of harm beyond that
already associated with the attempted rape itself. The confinement that the Defendant actually
accomplished did not create a further and independent threat of danger or harm.

        Based on the foregoing analysis, we must conclude that the Defendant’s dual convictions
for aggravated kidnapping and attempted rape violate the Defendant’s due process protections. The
remedy for such dual convictions in violation of the state and federal due process protections is the
dismissal of the kidnapping conviction. As such, we must reverse and vacate the Defendant’s
conviction for aggravated kidnapping. We dismiss that charge.




                                                -11-
                                   II. Sufficiency of the Evidence
        Next, the Defendant asserts that the evidence of his identity as the perpetrator was
insufficient to support his convictions for aggravated kidnapping and attempted rape beyond a
reasonable doubt. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal
defendant who challenges the sufficiency of the evidence on appeal bears the burden of
demonstrating why the evidence is insufficient to support the verdict, because a verdict of guilt
destroys the presumption of innocence and imposes a presumption of guilt. See State v. Evans, 108
S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must reject a convicted criminal
defendant’s challenge to the sufficiency of the evidence if, after considering the evidence in a light
most favorable to the prosecution, we determine that any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d
at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the
State’s witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses,
the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved
by the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108
S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn
from circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

         We begin by analyzing the Defendant’s challenge—that the evidence of his identification
was insufficient for him to be convicted beyond a reasonable doubt. The identification of a
perpetrator is a question of fact for the jury. State v. Vaughn, 29 S.W.3d 33, 40 (Tenn. Crim. App.
1998). Throughout the altercation, the assailant wore a blue ski mask that prevented visual
identification of his facial features. The assailant also did not speak during the attack. However,
there is substantial circumstantial evidence to prove that the Defendant committed the crime. The
Defendant was apprehended with a blue ski mask in his truck which the victim identified as being
the one her attacker was wearing. The Defendant was also seen by Ms. Leslie Taylor walking near
the area where the victim was crying after the attack. Ms. Taylor stated that the man was sweating
but that his shirt was not wet, leading to the possible inference that the man had recently put on
fresh clothing. Furthermore, Lieutenant Abernathy and Captain Swayze saw the Defendant driving
through the Kingsport Mall parking lot and also observed that he was sweating and would not make
eye contact with them.

       Eventually, the Defendant was spotted driving nearby more than twice the speed limit on
a road with numerous curves and hills. The Defendant initially did not stop for Officer Carter but


                                                  -12-
continued to drive until Officer Carter activated his air siren. When he was finally stopped, he had
a bleeding scratch on the back of his neck and a scratch on his chest. Although the Defendant
stated that the bleeding was from scratching a mosquito bite, his treating physician testified that he
had no insect wound and that the scratch did not appear to be self-inflicted. Officer Carter also
testified that he was certain the Defendant was not wearing any underwear under his shorts when
he was apprehended. Lieutenant Abernathy also found a magazine with photographs of partially
clad women in the Defendant’s vehicle, which the State argued supported the theory that the
Defendant had been involved in a sexual crime. We conclude that the evidence is sufficient for a
rational jury to find him guilty beyond a reasonable doubt of both attempted rape and aggravated
kidnapping. Although the Defendant presented his version of events on the Greenbelt and
explained that he was merely at the exercise trail to meet a friend, the jury simply did not accredit
the defense.

        Although the Defendant primarily challenges only the identifying evidence, we will also
briefly review the overall sufficiency of the evidence. We conclude that a rational jury could find
the Defendant guilty of both attempted rape and aggravated kidnapping beyond a reasonable doubt.
The offense of rape requires the “unlawful sexual penetration of a victim by the defendant . . .
accompanied by . . . force or coercion.” Id. § 39-13-503(a). Attempt requires that the Defendant
“[a]cts with the intent [otherwise required for the offense] to complete a course of action or cause
a result that would constitute the offense . . . and the conduct constitutes a substantial step toward
the commission of the offense.” Tenn. Code Ann. § 39-12-101(a)(b).

        When the State is given the “strongest legitimate view” of the evidence, we observe that
the Defendant approached the victim from behind, startled her, and attempted for ten to twenty-five
seconds to subdue her. The Defendant was naked with the exception of his tennis shoes and his
blue ski mask. The Defendant was also in a state of “semi-arousal,” which the victim described as
meaning that his penis was “fully erected to semi erect[.]” Certainly this struggle, during which the
victim described that the Defendant touched her breast and pressed his body against hers,
constituted a substantial step toward the offense of rape. Based upon this evidence, we conclude
that the evidence is sufficient to support the conviction for attempted rape beyond a reasonable
doubt.

        Likewise, the offense of aggravated kidnapping is defined as “knowingly remov[ing] or
confin[ing] another unlawfully so as to interfere substantially with the other’s liberty” and the
victim “suffers bodily injury.” Tenn. Code Ann. § 39-13-302(a), -304. In the instant case, the
evidence adduced at trial demonstrated that the assailant wrestled with the victim for “ten to twenty-
five” seconds and scratched the victim’s face and finger during the altercation. Although the victim
was eventually able to break free, she was confined for what she stated “felt like the longest time
of [her] life.” The Defendant confined the victim for “ten to twenty-five” seconds against her will.
This is sufficient evidence for a rational jury to determine that the Defendant was guilty beyond a
reasonable doubt of aggravated kidnapping.




                                                -13-
                                           III. Sentencing
         Finally, the Defendant asserts that the trial court erred by imposing consecutive sentences.
 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)12; 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.

        “Whether sentences are to be served concurrently or consecutively is a matter addressed to
 the sound discretion of the trial court.” State v. James, 688 S.W.2d 463, 465 (1984). Under
 Tennessee Code Annotated section 40-35-115, the trial court “may order sentences to run
 consecutively if the court finds by a preponderance of the evidence that” 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.” Tenn. Code Ann. § 40-35-

         12
            W e note that the legislature has amended several provisions of the Criminal Sentencing Reform Act of 1989,
said changes becoming effective June 7, 2005. However, the Defendant’s crime in this case occurred prior to June 7,
2005, and the Defendant did not elect to be sentenced under the provisions of the Act by executing a waiver of his ex
post facto protections. See 2005 Tenn. Pub. Acts ch. 353, § 18. Therefore, this case is not affected by the 2005
amendments, and the statutes cited in this opinion are those that were in effect at the time the instant crimes were
committed.

                                                         -14-
 115(b)(4). Additionally, the trial court must determine that consecutive sentences are “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.” State v. Wilkerson,
 905 S.W.2d 933, 939 (Tenn. 1995). Consecutive sentencing must also follow the general
 sentencing principles, requiring that the overall sentence “should be no greater than that deserved
 for the offense committed” and “should be the least severe measure necessary to achieve the
 purposes for which the sentence is imposed[.]” Tenn. Code Ann. § 40-35-103. The trial court must
 “specifically recite the reasons” on the record for ordering consecutive sentences. Tenn. R. Crim.
 P. 32(c)(1).

         In the present case, the trial court found in the initial sentencing hearing that the Defendant
 qualified as a dangerous offender:

                   [I]s the defendant a dangerous offender whose behavior indicates little or no
           regard for human life[?] The answer to that can only be yes under anybody’s logic.
           ...

                   Considering the circumstances of how this crime occurred, particularly
           where it occurred, in a well used Greenbelt area, considering that he had obviously
           planned it, he had to get naked somewhere. The evidence, he drove there in an
           automobile, he got naked, got aroused and went after her. So he is clearly a
           dangerous offender whose behavior indicates little or no regard for human life and
           he has no hesitation. Certainly on the Greenbelt you don’t show much hesitation
           about committing a crime in which the risk to human life is high. . . . [J]ust laying
           out these facts I can’t imagine anything worse.


          In the re-sentencing hearing, which was held to review the sentence on other grounds,13 the
 trial court reiterated that “consecutive sentencing is necessary” because “he presents himself before
 the Court as an extremely dangerous offender; that the interest and safety of the public, as set out
 in State v. Wilkerson demands and commands that the Defendant receives consecutive
 sentencing[.]”

         The Defendant argues that the trial court did not make the necessary findings on the record
 regarding his dangerous offender classification under Tennessee Code Annotated section 40-35-
 155(b)(4) and the necessity to protect the public under Wilkerson. The Defendant further argues
 that he does not fall within these categories and thus consecutive sentencing is improper. The State
 asserts that the trial court properly imposed consecutive sentences.



          13
               The re-sentencing hearing was held to address issues stemming from Blakely v. W ashington, 542 U.S. 296
(2004).



                                                          -15-
        The evidence in the record supports the trial court’s finding that the Defendant is a
dangerous offender. The trial court determined that the Defendant’s actions merited consecutive
sentences because he brazenly attacked a woman on a public jogging trail during the middle of the
day. We have previously upheld consecutive sentencing in similar cases where the attackers
perpetuated their attacks upon unsuspecting citizens in broad daylight. See State v. Norris Ray, No.
W2004-01247-CCA-R3-CD, 2005 WL 1541785, at *8 (Tenn. Crim. App., Jackson, Dec. 5, 2005).
We have also concluded that the victim need not be seriously injured during the crime to justify
classifying the attacker as a dangerous offender. See Ray, 2005 WL 1541785, at *10 (noting that
there was no “assistance on the [d]efendant’s part” to prevent harm and that the victim may well
have been harmed if it were not for his own actions). Additionally, the trial court stated its findings
on the record, as required under our sentencing scheme.


        We also note that the trial court found that the Defendant was eligible for consecutive
sentences based upon his extensive criminal record. This finding was based upon evidence
introduced at the initial sentencing hearing that the Defendant had eleven prior burglary convictions
from the State of Oklahoma. In this appeal, the Defendant does not take issue with this finding.
Under our sentencing law, the “court may order sentences to run consecutively if the court finds by
a preponderance of the evidence that” the “defendant is an offender whose record of criminal
activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). This factor has been interpreted to
include not only the convictions presently before the sentencing court but also prior offenses. See
State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn. Crim. App. 1999). We conclude that the trial court
properly found that the Defendant is eligible for consecutive sentencing based upon his extensive
criminal record.


       Therefore, we conclude that the trial court did not err by ordering consecutive sentences
based on its finding that the Defendant is a dangerous offender and an offender with an extensive
criminal record.


                                             Conclusion
        Based upon the foregoing authorities and reasoning, we reverse and vacate the Defendant’s
conviction for aggravated kidnapping and dismiss that charge. We affirm the judgment of the trial
court finding the Defendant guilty of attempted rape.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                 -16-
