         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 January 24, 2012 Session

               STATE OF TENNESSEE V. MICHAEL L. POWELL
                         and RANDALL S. HORNE

                    Appeal from the Criminal Court of Knox County
                        No. 91402A      Bob R. McGee, Judge


                   No. E2011-00155-CCA-R3-CD - Filed May 10, 2012


A jury convicted Michael L. Powell and Randall S. Horne (“the Defendants”) each of one
count of aggravated burglary; six counts of aggravated robbery; four counts of especially
aggravated kidnapping; two counts of aggravated assault; one count of employing a firearm
during the commission of a dangerous felony; and one count of possession of a firearm with
intent to go armed during the commission of a dangerous felony. The trial court subsequently
merged several convictions of each Defendant and, after a hearing, sentenced each Defendant
to an effective term of twenty-four years. In this consolidated appeal, both Defendants
challenge the validity of their convictions of especially aggravated kidnapping. Horne also
challenges the sufficiency of the evidence on all of his convictions, and Powell also challenges
the trial court’s imposition of partial consecutive sentencing. Upon our careful review of the
record and the recent Tennessee Supreme Court decision in State v. White, __ S.W.3d __,
2012 WL 758916 (Tenn. 2012), we hold that the Defendants’ convictions of especially
aggravated kidnapping must be reversed and remanded for a new trial. We also are
constrained to find plain error with respect to the trial court’s instructions to the jury on the
firearms offenses, and we must reverse those convictions and remand them for a new trial.
Therefore, Powell’s challenge to his consecutive sentence is rendered moot. The Defendants’
remaining convictions and sentences are affirmed.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OBERT W. W EDEMEYER, JJ., joined.

J. Liddell Kirk (on appeal) and Mary Ward (at trial), Knoxville, Tennessee, for the appellant,
Michael L. Powell.
Robert L. Vogel (on appeal) and Vanessa Lemons (at trial), Knoxville, Tennessee, for the
appellant, Randall S. Horne.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

       During the early morning hours of March 20, 2009, three men invaded the residence
of Michael Wayne Mount (“Father”) and victimized Father, Father’s son, Michael Kaylen
Mount (“Son”), and Son’s fiancee, Sarah Kubas (“Kubas”). The Defendants each were
subsequently charged with the following offenses: aggravated burglary; aggravated robbery
by violence as to each of the three victims; aggravated robbery by fear as to each of the
victims; especially aggravated kidnapping by confinement as to Son and Kubas; especially
aggravated kidnapping by removal as to Son and Kubas; two (alternative) counts of
aggravated assault as to Son; employment of a firearm during the commission of a dangerous
felony; and possession of a firearm with intent to go armed during the commission of a
dangerous felony. The Defendants were tried jointly before a jury in February 2010.

       Father, forty-five years old at the time of trial, testified that, in March 2009, he was
living with his fiancee Connie Stinnett, his daughter Jamie, his step-daughter Carrie, and his
grandson, Austin. Son came by “every so often.” On the night in question, Stinnett, Jamie,
Carrie, and Austin were all away. Son and Kubas came over and went into the garage to listen
to music. Father was in his bedroom and had just taken some of his medicine when he heard
a car door. He looked out his window and saw a white car. He got up and, when he opened
his bedroom door, he “got hit with a pistol” in his face. Father and his assailant “tussled,” and
another man entered the bedroom. Both men “beat on” him. Father testified that his lights
were on during the attack.

       While the attack was taking place, Son and Kubas came back into the house. A third
man was standing outside Father’s bedroom door. According to Father, Son grabbed this man.
When Son then came into the bedroom, “one of them bent over and hit [Son] with a pistol.”
At that point, Father told Son to “[j]ust let it go.” Father testified that Son “backed off” and
that Father then “quit fighting with them cause [he] didn’t want to endanger [his] son.”

       While Father’s assailants were in his bedroom, they asked him “where Aunt Connie
was and where her gold was.” The men took “a cigarette case that had $180.00 in it,” ten
locket sets, and some of Father’s medicine. They also took “120 of . . . [Stinnett’s] Xanax that


                                               -2-
she had just got . . . [that were] under [his] pillow.” They also took several rings off of
Father’s hand.

        Father testified that he saw two guns and that the men threatened to shoot him. As to
his attackers, one of them had pulled his shirt up to his nose. Father testified that he was able
to identify this man as Michael Powell when his shirt came down from his face. The “other
one” was wearing a jacket with a hood and a flap that came across his face. Father said that
this man “was the one [he] grabbed a hold of.” Although Father did not identify Horne as the
“other one” at trial, he testified that he told the police that the two men in his room were
Powell and Horne.1 He also identified the Defendants’ photographs to the police. Admitted
into evidence were photographs of the Defendants. Under Powell’s, Father had written, “this
is Michael that came in to my house with a gun.” This identification was dated March 24,
2009. Under Horne’s photograph, Father had written “Scotty came in to my house whit [sic]
a gun.” This identification was also dated March 24, 2009. Father identified Horne at trial
as “Scotty Horne.” Father also acknowledged that he had testified at the preliminary hearing
that Powell and Horne had been the men who came into his house.

         Father testified that both Powell and Horne had been to his house about a week earlier.
They were asking Stinnett about a ring she had, but she would not sell it to them. He
explained that Horne was Stinnett’s nephew and that he had known Horne “since he was
little.”

         Father also testified that two of the intruders, including Powell, went to the kitchen
while Horne stayed behind in Father’s bedroom.2 Father testified, “After they went to the
kitchen and done whatever they was doing to my son and his girlfriend when I told him just
to let it go, not to fight with them, that I – I’d deal with it, then that’s when he came back to
the room.” Father clarified that the man who returned to his bedroom was Powell.

        Father described his condition as “dazed” at the time the men left his house. He also
acknowledged that he was bleeding and that he “had lost quite a bit of blood.” He was taken
to the hospital after the attack and treated.

        On cross-examination, Father acknowledged that he told the police that there had been
a third person involved in the home invasion. He knew this person’s first name as “Sean” but
did not know his last name. Father recognized this man by the spider web tattoo on his neck.


        1
        When the prosecutor asked Father if he had been threatened, Father responded, “Yes.” When asked
whether Horne’s brother had threatened him, Father replied, “It does not matter.”
        2
          Although Father did not testify that the man who remained was Horne, Son’s testimony makes clear
that it was Powell and the third man who went to the kitchen.

                                                   -3-
He later learned that Sean’s last name was “Harr” or “Harden” or “[s]omething like that.”
This third man was not related to anyone in Father’s household. He told the police and
repeated at trial that this third man was not named Kitts.

        Son testified that he was twenty-one years old. In March 2009, he was living with
Father in Knoxville. On March 20th, his fiancee, Sarah Kubas, was with him at Father’s
house. Father was home at the time. About one o’clock in the morning, he and Kubas were
in the garage but decided to return to the house. On the way, he looked out the garage window
and saw a white car in the driveway. He did not think anything was wrong, however, as they
frequently had visitors.

       Son and Kubas walked in the back door of the house, and Kubas walked toward the
bathroom while Son walked toward the living room. When he got to the dining room
doorway, he saw a “tall gentleman” going through a dresser. At the same time, Kubas was
approaching. Son demanded to know what the man was doing. In response, the man turned
toward Son and pulled his shirt up to cover his face. The man tried to run past Son and get
to Father’s bedroom, “but something was behind the door and he couldn’t get into the door
exactly.” Son grabbed the man, but “he managed to get the door open wide enough to go
through the door.” At that point, Son heard Father in the bedroom “fighting somebody.”

       Son explained what happened next:

               I mean, I’m not a small guy, there’s really not a lot you can put behind
       that door that’s going to stop me from coming through it, so I went through the
       door. When I went through the door, I had my head down and when I opened
       the door I got hit across the back of the head. And I raised up and I swung at
       the person in front of me, which was Mr. Powell, because his shirt came down
       when he hit me. And I swung at him, he hit me again on top of the head, my
       dad told me just to quit fighting, let them have whatever they wanted. So I put
       my hands up, he proceeded to strike me again, pushed me backwards. And
       when my dad told me to let them have whatever they wanted, I told my
       girlfriend just pull your hood up and lay down and look at the floor. And
       [Powell] told me to get on my knees.

              I sat down on my knees and he wanted everything out of my pockets;
       wanted to know – where he started, he took my wallet and my lighters and
       everything in my pockets. And he started asking me about my dad’s medicine:
       “Where’s the pills? Where’s the jewelry?” Where’s stuff like that? I told him
       I don’t give a shit about none of that. He said, “Well then what are you doing
       here?” . . . I said, “I live here.” He said, “Who are you?” I said, “You know
       who I am, you have my wallet.” And at that point, my hood was already up,


                                             -4-
       because when he put me on my knees he pulled my hood up over my head. He
       put the gun down against my forehead and he lifted my hood up to look at me,
       and when he done that I looked up at him.

              He sees me, he lets my hood go, and he kicked me in the top of my head
       and after he kicked me in the top of the head he kicked me a couple times, he
       hit me once or twice more with the gun and then they proceeded to search my
       fiancee.

Son stated that they took Kubas’s wallet “and everything out of her pocket.” He also clarified
that “they” were “Mr. Powell and Mr. Hart.” Son explained that, at the time, he did not know
“Mr. Hart’s” name.

       Son continued,

       And after they were done searching us and whatnot, they told us that we needed
       to stand up and look at the floor. We stood up and continued looking at the
       floor, and I made sure [Kubas] was in front of me and the doorway. They put
       the gun to the back of my head and [Powell] told me that I need to walk or he’s
       going to fucking shoot me.

              They walked me into the kitchen, they told us we need to lay down on
       the floor. When we laid down on the floor, I was struck again and he said that
       if we got up he would shoot us. Then they walked away and I heard the door
       shut, and we stayed on the floor for a moment until I heard my dad fall out of
       his room. And I got up and I walked back in there, and my dad was laying up
       against the wall, coming out of his bedroom . . . . He was laying against the wall
       and there was just blood all over the place. He was – his head was busted open.
       My father’s crippled, he has issues walking.

              In all honesty, I have to tell you, the fact – laying there, having to lay
       there and listen to my father get beat like that, having to lay there and listen to
       my dad get hit with guns, knowing that my dad is crippled the way he is – is
       probably the worst feeling I’ve ever had in my life.

Son asked Father for his phone, but the assailants had taken it; they had also taken Son’s
phone. Son sought help from neighbors and passing motorists, asking for people to call the
police. The police subsequently arrived.

       Son explained that he recognized Powell, in part because Powell was wearing a pair
of shoes that Son knew Powell had obtained from Son’s brother. He also recognized Powell’s


                                               -5-
voice and stated that Powell “kept asking for his Aunt Connie.” Son clarified that Powell
made him and Kubas walk from the living room to the kitchen.

       Son stated that he never saw the third person in the house and had never met Horne.
The only people he saw were Powell and Hart. Son explained that Father was crippled and
suffered from seizures. Father had a prescription for Oxycontin and “roxys and stuff like
that.”

        On cross-examination, Son acknowledged that he was not able initially to identify
photographs of the Defendants. He explained his inability to identify Powell’s photograph as
resulting from his being “distraught” at the time he was shown the photograph. He reiterated
the number of times he was struck with the gun and kicked but stated that he refused medical
treatment. On redirect, he clarified that he was sure of his identification of Powell and
explained that he had known Powell for about ten years.

       Michael Alan Mays, the records keeper for the Knox County Emergency
Communications district, identified the recordings of 911 calls made regarding the instant
offenses. The recordings were played for the jury. Four individual calls were recorded, three
from neighbors and one from a woman who had been driving down the street and whom Son
flagged down. Each of the callers stated that a man was yelling for help and asking that the
police be called.

        Connie Stinnett testified that she was at the hospital during the events at issue. On her
way home, she got a text message from Father’s cell phone asking, “Where are you? When
are you going to be here?” She thought the message was “kind of weird” because Father did
not send her text messages. She explained that he “hates texting” and has difficulties reading
and writing. When she arrived home, Son ran up to her “and hollered, ‘They came in.
Daddy’s hurt.’” As she walked up to the house, she saw Father “standing in the doorway
pouring blood.” She stated that Father was upset and that she was worried that he was going
to have a seizure. Father told her that “your nephew’s done it this time.” 3 She asked him what
had happened, and he replied, “Your nephews came in and pistol whooped me.” She asked
to which nephews he was referring, and he told her it was Powell and Horne. He also told her
that there was a third man but that “he didn’t really know his name.” Stinnett explained that
Horne’s brother was Michael Keith Kitts, who had a white car. Stinnett identified Powell and
Horne at trial.

      Stinnett testified that, a couple of weeks prior to these events, Powell, Horne, and
“Sean” had visited and were asking her about her jewelry. There was one ring in particular


        3
            The transcript states “nephew’s.” We recognize that “nephews” or “nephews’” would sound the
same.

                                                   -6-
that all three of them said they would like for their girlfriends. She did not want to sell it,
however, as she had just gotten it.

       On cross-examination, Stinnett denied selling drugs. She also denied that Father sold
drugs. She denied having ever tried to purchase Oxycontin for Father. She stated that she
took both Xanax and Prozac and that she had filled her Xanax prescription just before March
20th. The resulting bottle of 120 Xanax tablets had not yet been opened.

      Amber Ward testified that she was a registered nurse in the emergency department of
the University of Tennessee Medical Center. She assisted in treating Father during the early
morning hours of March 20th. Father suffered from “multiple contusions on the posterior
back of the head . . . and then a laceration . . . on the right side of the forehead.” There was
an additional injury “on the left side of the face and his eye.”

       Officer Doyle Lee of the Knoxville Police Department testified that he responded to
the call at Father’s house. He explained that the officers’ uniforms were equipped with
microphones and that his interactions with the people on the scene were recorded. The
recording was played for the jury. A man’s voice can be heard exclaiming that “they got all
our cell phones.” Another man says that “they took my medicine,” that there was a “small
white car,” and that “they was gonna try to shoot me.” This same man describes two pistols
and also says, “my nephews.” He also describes three rings that were taken from him. Also
recorded is the voice of an officer calling in a description, including a Subaru or Nissan small
white sedan, three white males, and “Randall Scotty Horne.”

       Officer Michael Price also responded to the call; a separate recording was made from
his microphone. He described the scene as “pretty chaotic” with “people approaching our car
screaming and hollering all kinds of things to us.” The victims did not mention Michael Kitts
to him. He developed Kitts as a possible suspect based on his own investigation and prior
knowledge of Kitts. On the recording made during his participation, also played for the jury
and included in the record, a man’s voice is heard exclaiming, “Michael and Scott” and “I
know it was.” A man’s voice also told the police that the attackers had their jackets pulled up
over their mouths. A man stated that he was kicked in the head and hit with a pistol. A male
voice is also heard stating, “Sean is some guy they all know.”

       Lois Ann Woody testified for Horne. She was Horne’s and Powell’s grandmother and
Stinnett’s mother. Woody stated that, the week before trial, Father told her that “he did not
believe that it was [Horne], they had a mask on,” and that the only assailant he could identify
was the man with the spider tattoo on his neck. He also told her that he had been “doped up”
that day on his medicine.




                                              -7-
       The jury convicted the Defendants of all charges. After a hearing, the trial court
sentenced Powell as a Range I, standard offender to three years on the aggravated burglary;
eight years on each of the aggravated robberies; eighteen years on each of the especially
aggravated kidnappings; three years on each of the aggravated assaults; six years for
employing a firearm during the commission of a dangerous felony; and three years for
possessing a firearm with the intent to go armed during the commission of a dangerous felony.
The trial court merged each pair of aggravated robbery convictions, leaving three in place.
The trial court merged each pair of the especially aggravated kidnapping convictions, leaving
two in place. The trial court also merged the two aggravated assaults into a single conviction
and merged the possessing a firearm conviction into the conviction for employing a firearm.
The trial court ordered all sentences to run concurrently with the exception of the firearm
conviction, which it ordered to run consecutively to the sentences for the aggravated robbery
and especially aggravated kidnapping convictions. Accordingly, Powell’s effective sentence
was twenty-four years, with the sentences for his especially aggravated kidnappings to be
served at 100%. See Tenn. Code Ann. § 40-35-501(i)(1), (2)(C) (Supp. 2008). The trial court
imposed the same sentences on Horne and ordered the same mergers, thereby imposing the
same effective sentence.

       On appeal, Powell contends that (1) his convictions for especially aggravated
kidnapping offend due process and (2) the trial court erred in ordering the sentence for his
firearm conviction to run consecutively to his sentences for especially aggravated kidnapping
and aggravated robbery. Horne also contends that his convictions for especially aggravated
kidnapping offend due process and argues additionally that the evidence is not sufficient to
support his convictions. We will address the due process issue first. We will then address
Horne’s contentions regarding the sufficiency of the evidence.

                                          Analysis

                            Especially Aggravated Kidnapping

        Our criminal code defines especially aggravated kidnapping, as charged in this case,
as follows: “Especially aggravated kidnapping is false imprisonment, as defined in § 39-13-
302 . . . [a]ccomplished with a deadly weapon or by display of any article used or fashioned
to lead the victim to reasonably believe it to be a deadly weapon[.]” Tenn. Code Ann. § 39-
13-305(a)(1) (2006). False imprisonment, in turn, is defined as follows: “A person commits
the offense of false imprisonment who knowingly removes or confines another unlawfully so
as to interfere substantially with the other’s liberty.” Id. § 39-13-302(a) (2006). The
Defendants complain that their convictions for especially aggravated kidnapping offend due
process because the conduct forming the basis of these convictions was “essentially
incidental” to the conduct forming the basis for their aggravated robbery convictions. The



                                             -8-
Defendants rely on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and its progeny for their
argument.

       In Anthony, the Tennessee Supreme Court addressed “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. Finding double jeopardy analysis to be
inapposite, id. at 303, the court turned instead to the Tennessee Constitution’s guarantee of
due process. Id. at 306. The court set forth the following test for determining whether dual
convictions could stand: “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.

        Several years later, in State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the court rewrote
this test as a two-part inquiry. The first prong required a determination of “whether the
movement or confinement was beyond that necessary to consummate” the accompanying
felony. Id. at 535. If that inquiry was answered affirmatively, “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. An affirmative answer to both inquiries supported a separate
kidnapping conviction. Id. at 535-36. Subsequent application of this precedent has resulted
in problematic analyses and inconsistent results.

       The Supreme Court recently tackled this vexing problem in State v. White, __ S.W.3d
__, 2012 WL 758916 (Tenn. 2012), and expressly overruled Anthony and Dixon. Id. at *17.
After undertaking a comprehensive review of the evolution of Tennessee’s kidnapping
statutes, the court concluded that our current kidnapping offenses “evince a legislative intent
to punish as kidnapping only those instances in which the removal or confinement has
criminal significance above and beyond that necessary to consummate some underlying
offense, such as robbery or rape.” Id. at *14. Significantly, the court also determined that the
due process concerns earlier expressed in Anthony more properly were addressed in the first
instance to the jury rather than to an appellate court:

       [W]e have concluded that whether the evidence, beyond a reasonable doubt,
       establishes each and every element of kidnapping, as defined by statute, is a
       question for the jury properly instructed under the law. The jury, whose primary
       obligation is to ensure that a criminal defendant has been afforded due process,
       must evaluate the proof offered at trial and determine whether the State has met
       its burden. Our task, therefore, of assessing the sufficiency of the convicting
       evidence qualifies as the ultimate component of this constitutional safeguard.
       The separate due process test articulated first in Anthony, and subsequently


                                              -9-
       refined in Dixon and its progeny, is, therefore, no longer necessary to the
       appellate review of a kidnapping conviction accompanied by a separate felony.

Id. at *15 (citations omitted).

        Thus, the White court determined that “trial courts must ensure that juries return
kidnapping convictions only in those instances in which the victim’s removal or confinement
exceeds that which is necessary to accomplish the accompanying felony.” Id. In order to
assist juries in accomplishing this task, the court set forth the following instruction to be
provided juries on the “substantial interference” element of a kidnapping offense:

       To establish whether the defendant’s removal or confinement of the victim
       constituted a substantial interference with his or her liberty, the State must
       prove that the removal or confinement was to a greater degree than that
       necessary to commit the offense of [insert offense], which is the other offense
       charged in this case. In making this determination, you may consider all the
       relevant facts and circumstances of the case, including, but not limited to, the
       following factors:

         !    the nature and duration of the victim’s removal or confinement by
              the defendant;

         !    whether the removal or confinement occurred during the
              commission of the separate offense;

        !     whether the interference with the victim’s liberty was inherent in
              the nature of the separate offense;

         !    whether the removal or confinement prevented the victim from
              summoning assistance, although the defendant need not have
              succeeded in preventing the victim from doing so;

        !     whether the removal or confinement reduced the defendant’s risk
              of detection, although the defendant need not have succeeded in
              this objective; and

         !    whether the removal or confinement created a significant danger
              or increased the victim’s risk of harm independent of that posed
              by the separate offense.

Id. at *17-18 (footnote omitted).


                                             -10-
        The White court emphasized that it was not articulating a new rule of constitutional law
and that its decision does not require retroactive application. Id. at *16. However, on the
facts of the case before it, the court concluded that the “proof could be interpreted in different
ways and, therefore, the determination of whether the removal or confinement of [the victim]
constituted a substantial interference with her liberty was a question of fact for the jury to
resolve.” Id. at *17. The court then reviewed the jury charge provided and recognized that,
while the instructions tracked the statutory language, “they did not define the key element –
the substantial interference with the victim’s liberty – as requiring a finding by the jury that
the victim’s removal or confinement was not essentially incidental to the accompanying felony
offense.” Id. Accordingly, the court held, “[b]ecause the jury was not properly instructed on
the question of whether the victim’s removal or confinement was essentially incidental to an
accompanying felony, the Defendant is entitled to a new trial on the especially aggravated
kidnapping charge.” Id.

        In the instant case, the proof in support of the Defendants’ especially aggravated
kidnapping convictions consists of Son’s testimony that, after Powell and the third man (Sean)
took property from Son and Kubas in the immediate vicinity of Father’s bedroom, Powell,
accompanied by Sean, forced Son and Kubas into the kitchen at gunpoint, made them lie
down, and ordered them to remain there. The proof also established, however, that Son had
tried to stop the robbery of Father and that Horne remained with Father while Powell and Sean
forced Son and Kubas into another room. Therefore, the proof is susceptible of at least two
interpretations: (1) that Powell and Sean removed Son and Kubas from the scene of the
robberies as discrete criminal activity after the robberies had been completed, or (2) that
Powell and Sean were separating Son and Kubas from Father so that Horne could proceed
with the robbery of Father without further interference. Accordingly, the determination of
whether the removal or confinement of Kubas and/or Son constituted a substantial interference
of either victim’s liberty that was to a greater degree than necessary to commit the aggravated
robbery of Father was a question of fact for the jury to resolve. See id.4

      The trial court instructed the jury on the counts charging the especially aggravated
kidnapping of Kubas as follows:

       For you to find the defendant [guilty] of the offense [of especially aggravated
       kidnapping], the State must have proven beyond a reasonable doubt the
       existence of the following essential elements,

        4
         That Horne was not identified as actively assisting in the movement and/or confinement of Son and
Kubas, in and of itself, does not absolve him of potential criminal liability for especially aggravated
kidnapping. As an identified participant in the aggravated burglary of Father’s residence and the aggravated
robbery of Father, Horne is potentially subject to being found guilty of the especially aggravated kidnappings
of Son and/or Kubas under the theory of criminal responsibility for the conduct of another. See Tenn. Code
Ann. § 39-11-402(2) (2006).

                                                    -11-
             (1) That a defendant knowingly removed or confined Sarah M. Kubas
        unlawfully so as to interfere substantially with her liberty, and

              (2) That the confinement or removal was accomplished with a deadly
       weapon, or by display of any article used or fashioned to lead Sarah M. Kubas
       to reasonably believe it was a deadly weapon.

       ...

               A removal or confinement is unlawful when it is accomplished by force,
       threat, or fraud[.]

Identical instructions were given regarding the especially aggravated kidnapping of Son.
Later, in the charge on the lesser-included offense of false imprisonment, the trial court
instructed the jury as follows:

       Any person who commits the offense of false imprisonment is guilty of a crime.
       For you to find the defendant guilty of this offense, the State must have proven
       beyond a reasonable doubt the existence of the following essential elements,

              (1) That the defendant removed or confined another unlawfully so as to
       interfere substantially with the other’s liberty, and

                (2) That the defendant acted knowingly.

        The trial court’s jury charge in this case is virtually identical to the charge delivered in
White. See id. And, as in that case, “[w]hile these instructions track the statutory language,
they did not define the key element – the substantial interference with the victim’s liberty –
as requiring a finding by the jury that the victim’s removal or confinement was not essentially
incidental to the accompanying felony offense.” Id. Therefore, we are constrained to hold
that, because the jury was not properly instructed on the question of whether the removal or
confinement of Son and Kubas was essentially incidental to an accompanying felony, the
Defendants’ convictions of especially aggravated kidnapping must be reversed and the
Defendants must be afforded a new trial on the especially aggravated kidnapping charges.5
Id. at *18. Upon retrial, the trial court should instruct the jury as provided in White or as




        5
         We recognize that the trial court instructed the jury in accordance with the pattern jury instructions
applicable at the time of trial. We also recognize that the trial court had no way to predict the results of
White at the time of the trial of this case.

                                                     -12-
provided in any revisions to the pattern jury instructions adopted by the Committee on
Criminal Pattern Jury Instructions in response to White.6

                               Sufficiency of the Evidence Supporting
                                  Horne’s Remaining Convictions

       Horne was also convicted of aggravated burglary; the aggravated robberies of Father,
Son, and Kubas; the aggravated assault of Son; employing a firearm during the commission
of a dangerous felony; and possessing a firearm with the intent to go armed during the
commission of a dangerous felony. He challenges the sufficiency of the evidence supporting
each of these convictions.7

        Our standard of review regarding sufficiency of the evidence is “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds a defendant
guilty, the presumption of innocence is removed and replaced with a presumption of guilt.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant has the
burden on appeal of demonstrating why the evidence was insufficient to support the jury’s
verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does not
weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts” in the testimony and all
reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn.
1992). Thus, “the State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation omitted).
This standard of review applies to guilty verdicts based upon direct or circumstantial evidence.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d
265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted the United States Supreme
Court standard that “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Id. at 381. Accordingly, the evidence need not
exclude every other reasonable hypothesis except that of the defendant’s guilt, provided the
defendant’s guilt is established beyond a reasonable doubt. Id.




        6
           In White, the court adopted an interim instruction as set forth above to be used by the trial courts
until the Committee on Criminal Pattern Jury Instructions develops an appropriate instruction implementing
this decision. Id. at *18.
        7
          The State addresses in its brief only the sufficiency of Horne’s especially aggravated kidnapping
convictions. A close reading of Horne’s brief, however, leads us to conclude that he is challenging the
sufficiency of the proof on all of his convictions.

                                                     -13-
                                          Aggravated Burglary

        Aggravated burglary is defined as the “burglary of a habitation as defined in §§ 39-14-
401 and 39-14-402.” Tenn. Code Ann. § 39-14-403(a) (2006). A “habitation” is defined as
including “any structure, including buildings, . . . which is designed or adapted for the
overnight accommodation of persons[.]” Id. § 39-14-401(1)(A). As charged in this case, a
“burglary” is committed when the perpetrator, “without the effective consent of the property
owner . . . [e]nters a building and commits . . . assault.” Id. § 39-14-402(a)(3) (2006).
“Assault” is defined as including the intentional, knowing or reckless infliction of bodily
injury to another. Id. § 39-13-101(a)(1) (2006). The proof in this case established that Horne,
along with Powell and Sean, entered Father’s residence without Father’s consent. Horne and
Powell pistol-whipped Father. Father’s resulting injuries included multiple contusions and
a laceration to his head as well as significant bleeding. These injuries satisfy the definition
of “bodily injury.” See id. § 39-11-106(a)(2) (2006) (defining “bodily injury” as including “a
cut, abrasion, bruise, burn or disfigurement, and physical pain”). This evidence is sufficient
to support Horne’s conviction of aggravated burglary.

                                          Aggravated Robbery

       Horne was convicted of committing the aggravated robberies of Father, Son, and
Kubas. As charged in this case, aggravated robbery is a robbery “[a]ccomplished with a
deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1) (2006). Robbery is “the intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” Id. § 39-13-401(a) (2006). Horne was charged in alternative counts with committing
an aggravated robbery against each victim by (1) violence and by (2) putting the victim in fear.
The proof in this case established that Horne took jewelry and medication from Father after
brandishing his gun and pistol-whipping Father. This evidence is sufficient to sustain Horne’s
dual convictions of the aggravated robbery of Father.8 See State v. Allen, 69 S.W.3d 181, 186
(Tenn. 2002) (recognizing that pointing a gun at a robbery victim satisfies both the violence
and putting in fear criteria).

       According to Son, Powell and Sean took property from Son and Kubas after Powell hit
and kicked Son and brandished his weapon. There is no proof in the record that Horne
actively participated in these two aggravated robberies. However, a perpetrator may be held
criminally responsible for a crime committed by another under the doctrine of criminal
responsibility for the conduct of another. See State v. Howard, 30 S.W.3d 271, 276 (Tenn.
2000). Our criminal code provides that “[a] person is criminally responsible for an offense
committed by the conduct of another, if . . . [a]cting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds or results of the offense, the person


       8
           The trial court properly merged the dual convictions.

                                                    -14-
solicits, directs, aids, or attempts to aid another person to commit the offense[.]” Tenn. Code
Ann. § 39-11-402(2) (2006).9

       While a defendant’s mere presence during the commission of a crime will not render
him criminally responsible for the conduct of another, “[n]o particular act [by the defendant]
need be shown.” State v. Jones, 15 S.W.3d 880, 890 (Tenn. Crim. App. 1999) (emphasis
added); see also State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). Indeed, mere
encouragement of the principal is sufficient. Jones, 15 S.W.3d at 890. Moreover, “[p]resence
and companionship with the perpetrator of a felony before and after the commission of the
offense are circumstances from which one’s participation in the crime my be inferred.” Id.

       In this case, the proof supports the inference that all three perpetrators were acting as
a team. Horne and Powell attacked Father and when Son tried to intervene, Son was attacked.
Father instructed Son to stop resisting and to let the men have what they wanted. Father also
ceased his resistance out of fear for Son’s safety. The perpetrators, including Horne, were
thereby given the opportunity to obtain additional property, an opportunity they took. Horne’s
attack on Father, and the ensuing attack on Son, thereby enabled the aggravated robberies of
Son and Kubas. The aggravated robberies of Son and Kubas were accomplished at gunpoint,
again satisfying the elements of both violence and putting the victims in fear. After marching
Son and Kubas to the kitchen at gunpoint, Powell returned to Father’s bedroom. Son testified
that he heard the sounds of his father being beaten while he was in the kitchen. The proof
therefore supports the inference that Horne was acting with the intent to promote or assist in
the aggravated robberies of Son and Kubas, or to benefit in the proceeds thereof, and that
Horne aided or attempted to aid Powell and Sean to commit the aggravated robberies of Son
and Kubas. Accordingly, we hold that the proof is sufficient to support Horne’s dual
convictions of the aggravated robberies of Son and his dual convictions of the aggravated
robberies of Kubas.10

                                            Aggravated Assault

       Horne was charged with two alternative counts of committing an aggravated assault
against Son. Count 12 charges Horne with “unlawfully and knowingly caus[ing] Michael K.
Mount to reasonably fear imminent bodily injury, while . . . using a deadly weapon.” Count
13 charges Horne with “unlawfully and knowingly caus[ing] bodily injury to Michael K.
Mount while . . . displaying a deadly weapon.” Son testified that, when he interrupted Horne’s


        9
          At oral argument, counsel for Horne, in response to a question from the Court, indicated that the
trial court did not charge criminal responsibility in this case. A review of the jury charge in the record
demonstrates to the contrary.
        10
             The trial court properly merged the dual convictions as to each victim.

                                                     -15-
and Powell’s attack on Father, Powell struck him repeatedly with his handgun and also kicked
him several times. Powell also threatened to shoot Son. Although Son did not testify that he
was afraid, the fact that Son acquiesced to Powell’s demands indicates circumstantially that
he was afraid that, if he did not, Powell would shoot him. Moreover, this Court has
recognized that being threatened with a weapon is circumstantial evidence sufficient to
establish reasonable fear of imminent bodily injury. See State v. Jessie James Austin, No.
W2001-00120-CCA-R3-CD, 2002 WL 32755555, at *5-6 (Tenn. Crim. App. Jan. 25, 2002).
For the same reasons set forth above, the proof also supports the inference that Horne was
criminally responsible for Powell’s actions. We hold that the evidence is sufficient to support
Horne’s conviction of aggravated assault as charged in Count 12. We also hold that the
evidence is sufficient to sustain Horne’s conviction of aggravated assault as charged in Count
13.11 Although Son refused medical care, he testified that he was struck several times in the
head and also kicked several times. We hold that this testimony is sufficient to satisfy the
element of bodily injury. See Tenn. Code Ann. § 39-11-106(a)(2) (defining “bodily injury”
as including “a cut, abrasion, bruise, burn or disfigurement, and physical pain”).

                                   Possessing/Employing a Firearm

       Horne was convicted of possessing a firearm “with the intent to go armed during the
commission of . . . a dangerous felony,” Tennessee Code Annotated section 39-17-1324(a)
(Supp. 2008), and employing a firearm during the commission of a dangerous felony, id. § 39-
17-1324(b)(1). The trial court subsequently merged the possession offense into the employing
offense. We recognize two potential problems with Horne’s convictions of these offenses.

       First, the indictment does not specify the “dangerous felony” which allegedly gave rise
to the firearms offenses. The dangerous felonies which may serve as a predicate for the
firearms offenses are statutorily enumerated. See id. § 39-17-1324(i)(1). They include both
especially aggravated kidnapping and aggravated burglary. Id. § 39-17-1324(i)(1)(D), (G).
They do not include either aggravated robbery or aggravated assault. Id. However, the State
charged the firearms offenses simply as follows:

       [o]n or about the ___ day of March, 2009, in the State and County aforesaid,
       [Horne] did unlawfully and knowingly possess a firearm with the intent to go
       armed during the commission of a dangerous felony in violation of T.C.A. 39-
       17-1324, and against the peace and dignity of the State of Tennessee[;]

and




       11
            The trial court properly merged the dual convictions.

                                                    -16-
       [o]n or about the ___ day of March, 2009, in the State and County aforesaid,
       [Horne] did unlawfully and knowingly employ a firearm during the commission
       of a dangerous felony in violation of T.C.A. 39-17-1324, and against the peace
       and dignity of the State of Tennessee.

       Our criminal code provides that an indictment:

       must state the facts constituting the offense in ordinary and concise language,
       without prolixity or repetition, in a manner so as to enable a person of common
       understanding to know what is intended and with that degree of certainty which
       will enable the court, on conviction, to pronounce the proper judgment.

Tenn. Code Ann. § 40-13-202 (2006).

        The Tennessee Supreme Court has made clear that “an indictment is valid if it provides
sufficient information (1) to enable the accused to know the accusation to which answer is
required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to
protect the accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
Nevertheless, this Court has recognized that “[a] lawful accusation is a condition precedent
to jurisdiction” and that “[a] judgment obtained in the absence of an indictment alleging each
essential element of the offense is a nullity.” State v. Lewis, 36 S.W.3d 88, 97 (Tenn. Crim.
App. 2000). Therefore, we are faced with the issue of whether the designation of the
predicate dangerous felony is an “essential element” that must be specified in the charging
instrument.12

        The Tennessee Supreme Court has recognized that the term “essential element” may
mean either “the elements necessary for conviction” of the offense, or “the elements necessary
to inform the accused of the charge.” Hill, 954 S.W.2d at 728-29 n.4. The court also has
emphasized its rejection of strict pleading requirements and has held repeatedly that “an
indictment which references the statute defining the offense is sufficient and satisfies the
constitutional and statutory requirements” of charging instruments. State v. Hammonds, 30
S.W.3d 294, 300 (Tenn. 2000) (citing State v. Sledge, 15 S.W.3d 93, 94 (Tenn. 2000); State
v. Carter, 988 S.W.2d 145, 148-49 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95, 100 (Tenn.
1998)). Moreover, the court has emphasized that “alternative means or theories of
establishing a single element of an offense need not be included in an indictment.” Id. at 301
(citing State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999)).


        12
            We recognize that the pattern jury instructions for these firearm offenses make the predicate
dangerous felony offense an essential element for purposes of convicting a defendant of these crimes. See
T.P.I. – Crim. 36.06(c). However, this does not necessarily mean that the predicate dangerous felony offense
is an essential element for indictment purposes.

                                                   -17-
        A review of the indictment in the instant case in light of these principles presents a
close question. Cf. State v. Christopher Ivory Williams, No. W2009-01638-CCA-R3-CD,
2011 WL 1770655, at *10 (Tenn. Crim. App. May 9, 2011), perm. app. denied (Tenn. Aug.
24, 2011) (holding that felony murder charge that failed to designate predicate felony was
fatally defective, but the trial court’s error in failing to dismiss the charge was harmless
because the defendant was also convicted of premeditated murder). We, however, conclude
that it is not necessary to determine whether the indictment was adequate to charge the
firearms offenses under the facts of this case. Even if we assume that the indictment is
adequate, a second, related problem remains. Our close review of the jury instructions,
transcribed as delivered to the jury, reveals that the trial court did not instruct the jury as to
what “dangerous felony” was at issue. Instead, the trial court instructed the jury as follows:

       Any person who possesses or employs a firearm during the commission of or
       attempt to commit a dangerous offense is guilty of a crime. For you to find the
       defendant guilty of the offense [of employing a firearm during the commission
       of a dangerous felony], the State must have proven beyond a reasonable doubt
       the existence of the following essential elements:

              (1) That the defendant employed a firearm, and

            (2) That the employment was during the commission of or attempt to
       commit a dangerous felony, and

              (3) That the defendant acted either intentionally, knowingly, or
       recklessly.

               For you to find the defendant guilty of the offense of [possessing a
       firearm with the intent to go armed during the commission of a dangerous
       felony], the State must have proven beyond a reasonable doubt the existence of
       the following essential elements:

              (1) that the defendant possessed a firearm, and

            (2) That the possession was with the intent to go armed during the
       commission of or attempt to commit a dangerous felony.

       The jury was given no instruction on the definition of “dangerous felony” or which
“dangerous felony” was at issue in this case. Rather, the jury was left to decide for itself what
constituted the requisite “dangerous felony.”




                                               -18-
       Obviously, the jury had before it four other felonies upon which it could have relied
in considering Horne’s guilt of the firearms offenses: aggravated burglary, aggravated
robbery, especially aggravated kidnapping, and aggravated assault. However, as previously
noted, only especially aggravated kidnapping and aggravated burglary are listed as dangerous
felonies under this statute. See Tenn. Code Ann. § 39-17-1324(i)(1). The list does not include
aggravated robbery or aggravated assault. Id.

        Additionally, the firearms statute provides that “[a] person may not be charged with
[this crime] if possessing or employing a firearm is an essential element of the underlying
dangerous felony as charged.” Tenn. Code Ann. § 39-17-1324(c). In this case, Horne was
charged with committing especially aggravated kidnapping “with a deadly weapon.” The only
deadly weapon about which any proof was adduced was a gun. Accordingly, the especially
aggravated kidnapping could not serve as the predicate offense for the firearms convictions.

       Horne’s charge of aggravated burglary was alleged in the indictment as follows:

       On or about the ___ day of March, 2009, in the State and County aforesaid,
       [Horne] did unlawfully and knowingly enter the habitation of [Father] without
       his effective consent, not open to the public, did commit Assault, in violation
       of T.C.A. 39-14-403.

The elements of aggravated burglary as charged in this case are set forth above and do not
include the possession or employment of a firearm. Thus, the only predicate dangerous felony
upon which the firearms charges could be based is the aggravated burglary.

        There is no way to discern from the record before us whether the jury relied on the
aggravated burglary or one (or more) of the other offenses charged in this case in determining
Horne’s guilt of the firearms offenses. This issue has not been raised by any of the parties.
We, however, are constrained to hold that it is necessary to address this issue as plain error.
See Tenn. R. App. P. 36(b). This Court has the discretionary authority to grant relief for plain
error when the following five prerequisites are satisfied: “(1) the record clearly establishes
what occurred in the trial court, (2) a clear and unequivocal rule of law was breached; (3) a
substantial right of the accused was adversely affected, (4) the accused did not waive the issue
for tactical reasons, and (5) consideration of the error is necessary to do substantial justice.”
State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010) (quoting State v. Banks, 271 S.W.3d 90, 119-
20 (Tenn. 2008)).

       In this case, the record clearly reflects that the trial court did not provide the jury with
adequate instructions on the crime of possessing/employing a firearm during the commission
of a dangerous felony. “It is well-settled that a defendant has a constitutional right to a
complete and correct charge of the law, so that each issue of fact raised by the evidence will


                                               -19-
be submitted to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390
(Tenn. 2011). Moreover, the trial court must provide the jury with proper instructions as to
the law governing the issues raised and the evidence introduced even without request. Id. The
trial court’s instructions in this case breached this clear and unequivocal rule of law.

       We also hold that a substantial right of the accused was adversely affected. Horne was
convicted of offenses about which the jury had incomplete and inaccurate instructions. The
jury was given no guidance as to the definition of “dangerous felony” and was free to choose
from four other felonies charged in the case, three of which were not available to support the
firearms offenses. See Tenn. Code Ann. § 39-17-1324(i)(1). Therefore, the jury may have
convicted Horne of crimes that do not exist.

        As to the final two factors of plain error review, the record is devoid of any indication
that Horne waived this issue for tactical reasons, and we can conceive of no reason for
deciding to expose oneself to conviction of a nonexistent crime. Furthermore, consideration
of this error is necessary to do substantial justice because due process does not countenance
the conviction of a nonexistent crime. See, e.g., Adams v. Murphy, 653 F.2d 224, 225 (5th
Cir. 1981) (“Nowhere in this country can any man be condemned for a nonexistent crime.”).
Accordingly, we hold that the trial court committed plain error in its instructions to the jury
on the crimes of possessing a firearm with the intent to go armed during the commission of
a dangerous felony and employing a firearm during the commission of a dangerous felony.
The remedy for an instructional error of this magnitude is reversal of the convictions and
remand for a new trial. See, e.g., White, 2012 WL 758916, at *17 (reversing defendant’s
conviction of especially aggravated kidnapping and remanding for a new trial because the
“jury was not properly instructed on the question of whether the victim’s removal or
confinement was essentially incidental to an accompanying felony”); Howard, 30 S.W.3d at
273 (reversing defendant’s conviction of premeditated murder and remanding for new trial
because trial court did not instruct jury on natural and probable consequences rule).

        Although we have been referring to Horne’s convictions of possessing/employing a
firearm during the commission of a dangerous felony, we note that the State indicted Powell
in the same manner for possessing a firearm with the intent to go armed during the
commission of a dangerous felony and for employing a firearm during the commission of a
dangerous felony. The trial court’s instructions to the jury were the same for these offenses
as for Horne’s, the jury convicted Powell of both offenses, and the trial court subsequently
merged them. We hold that the same plain error analysis applies. Therefore, we also must
reverse and remand for a new trial Powell’s convictions of possession of a firearm with the
intent to go armed during the commission of a dangerous felony and employing a firearm
during the commission of a dangerous felony.




                                              -20-
                                                 Sentencing

       Powell complains that the trial court committed reversible error in ordering his sentence
for employing a firearm during the commission of a dangerous felony to be served
consecutively to his sentences for especially aggravated kidnapping and aggravated robbery.
Because we have reversed and remanded for retrial Powell’s convictions of the firearms
offenses, this issue is moot and we need not address it. See State v. Thornton, 10 S.W.3d 229,
244 (Tenn. Crim. App. 1999); State v. Mencer, 798 S.W.2d 543, 549 (Tenn. Crim. App.
1990). We note for the trial court’s guidance on retrial, however, that the statute provides that
the sentence imposed for either of the firearms offenses charged in this case “shall be served
consecutive to any other sentence the person . . . is sentenced to serve for conviction of the
underlying dangerous felony.” Tenn. Code Ann. § 39-17-1324(e)(1) (emphasis added). As
set forth above, the only eligible underlying dangerous felony in this case is aggravated
burglary. Accordingly, if Powell and/or Horne is convicted of the firearms offenses on retrial,
the sentence imposed thereon must be served consecutively specifically only to the sentence
on the aggravated burglary conviction.13

                                                 Conclusion

       Pursuant to the Tennessee Supreme Court’s recent decision in White, we are
constrained to reverse and remand for a new trial the Defendants’ convictions of especially
aggravated kidnapping. Additionally, based upon the trial court’s instructional errors on the
Defendants’ convictions of (1) possession of a firearm with the intent to go armed during the
commission of a dangerous felony and (2) employment of a firearm during the commission
of a dangerous felony, we also must reverse those convictions and remand for a new trial. We
affirm the Defendants’ remaining convictions and sentences.


                                                   _________________________________
                                                   JEFFREY S. BIVINS, JUDGE




        13
           The State argues in its brief to this Court that the trial court ordered consecutive sentencing on the
basis of finding Powell to be a dangerous offender. See Tenn. Code Ann. § 40-35-115(b)(4) (2006). The
record, in no way, supports this assertion. Indeed, to the contrary, the trial court specifically held that
consecutive sentencing under section 40-35-115 “is not actually justified.” We are at a loss to understand
the State’s argument on this issue.

                                                      -21-
