         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                          June 28, 2005

         STATE OF TENNESSEE v. DONALD LUKE SEIBER, ALIAS

                   Direct Appeal from the Criminal Court for Knox County
                             No. 73049    Ray L. Jenkins, Judge



                    No. E2004-01794-CCA-R3-CD - Filed October 25, 2005




JAMES CURWOOD WITT , JR., J., concurring.

                 Respectfully, I find I cannot fully concur in the opinion because, based upon the
absence of a contemporaneous objection, it treats as waived the issue of the trial court’s “reading the
aggravated kidnapping as a lesser-included offense out of order during the charge to the jury.” The
instructional problem alleged is one of instructional error, not instructional omission. In the case
of the former, no contemporaneous objection is required, unlike when an instruction is omitted. See,
e.g., State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411, slip op. at 8-9 (Tenn. Crim. App.,
Knoxville, Dec. 3, 1999).

              Even though I see no requirement that appellate review of this issue is occluded based
upon a lack of contemporaneous objection, I nevertheless would not reverse the conviction of
aggravated kidnapping. In my view the arrangement of the jury instructions, if error, was harmless
beyond a reasonable doubt.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE
