        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 11, 2011

              STATE OF TENNESSEE v. RANDY LYNN SHELBY

                  Appeal from the Circuit Court for Montgomery County
                      No. 40500128    John H. Gasaway, III, Judge



                   No. M2006-02582-CCA-R3-CD - Filed March 8, 2011


The Defendant, Randy Lynn Shelby, was convicted by a Montgomery County jury of two
counts of aggravated burglary and one count of especially aggravated kidnapping. Following
a sentencing hearing, he received an effective sixty-year sentence to be served at 100%. In
this direct appeal, the Defendant’s only challenge is to the sufficiency of the evidence
supporting his conviction for especially aggravated kidnapping, arguing that the short period
of confinement was incidental to the burglary and did not substantially interfere with the
victim’s liberty. After a review of the record, we affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are
                                     Affirmed.

D AVID H. W ELLES, J., delivered the opinion of the court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Randy Lynn Shelby.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; John Carney, Jr., District Attorney General; and Arthur F. Bieber,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                                   OPINION

                                   Factual Background
       This case arises from the Defendant’s burglary of two homes during the early morning
hours of November 28, 2004. On February 7, 2005, a Montgomery County grand jury
returned a seven-count indictment against the Defendant, charging him with three counts of
aggravated burglary (two counts based upon alternative theories), one count of attempted
aggravated rape, one count of attempted first degree murder, and two counts of especially
aggravated kidnapping.

        Viewed in the light most favorable to the State, the proof at trial showed that, in the
early morning hours of November 28, 2004, the victim Baker (“Mr. Baker”) was at his North
Ford Street home, along with his wife, four children, and thirteen-year-old cousin. Mr. Baker
was in his master bedroom playing on the computer, and his cousin was in the living room
watching television. Sometime between 3:00 and 3:30 a.m., Mr. Baker turned his head and
saw an intruder in his house (later identified as the Defendant). According to both Mr. Baker
and his cousin, who also viewed the intruder, the Defendant was wearing a white shirt and
blue jeans and had a red bandana over his face and a rag in his hand. Upon seeing the the
Defendant, Mr. Baker jumped up and grabbed a bowie knife he kept nearby and went after
the man. The Defendant “bolted” from the residence, knocking over the kitchen table on his
way out the back door. Mr. Baker then shut and locked the door and called the police. After
examining the house, Mr. Baker noticed some “pry marks” around the back door. He was
also later informed that the phone line and cable lines to his residence had been cut. Mr.
Baker confirmed that he did not give the Defendant permission to be inside his home.

        The Defendant then drove to the victim Schall’s (“the victim”) mobile home on Gip
Manning Road.1 On that evening, the victim was alone; her husband and young child were
not at home. The victim went to her bedroom around 12:30 or 1:00 a.m. that evening and
began watching a movie. About thirty minutes or so later, she fell asleep. After hearing
several loud noises, the victim, who was lying on her back, was awakened by a man in her
room (later identified as the Defendant). According to the victim, the Defendant, who was
wearing a red bandana and armed with a box-knife, jumped on top of her. She began
screaming, saying “take anything you want, please don’t hurt me. I have a son.” The
Defendant asked where her son was, but she refused to tell him.

       The Defendant then placed a rag over the victim’s nose and mouth, which rag she
believed was soaked in ether. The victim testified that she fought with the Defendant for


        1
           Testimony established that it was ten point six miles from Mr. Baker’s residence to the victim’s residence,
taking approximately seventeen minutes to drive there at the posted speed limit.

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approximately eight to ten minutes,2 using her quilt to cover herself for protection. During
the struggle, the victim was cut on her right thumb and chin. The Defendant then ordered
the victim to turn over on her stomach. Believing she would be raped and killed, she acted
like she was rolling over, but instead shoved the Defendant and fled from the residence.

        After running outside, the victim hid behind her rental car, and it was about five
minutes later when the Defendant emerged from inside the home. Believing it was her
opportunity to escape, the victim began to run. The Defendant followed. She lost sight of
the Defendant when she arrived at a neighbor’s house. Jerry Mealer, the victim’s neighbor,
testified that, around 4:30 a.m. in the morning, he and his wife were awakened by the
doorbell ringing and “pounding” on the front door. After hearing the terrified victim’s cries
for help, he let her come inside, and they called the police.

        At trial, the victim elaborated that her attacker was Caucasian and was wearing blue
jeans, a hooded sweatshirt, and tennis shoes. The victim confirmed that she did not give the
Defendant permission to be inside her residence.

       Upon subsequent examination of the house, the victim believed the intruder came in
through the window in her son’s play room—the screen was ripped and the window was
open. The back door also “looked like a screw driver tried jimmying up the opening of the
door[.]” Nothing was missing from the victim’s residence. It was determined that the phone
lines to the victim’s home had been severed. Forensic paint analysis later placed the
Defendant’s truck near the scene of the victim’s mobile home. The Defendant also gave
inculpatory statements admitting his involvement in these crimes.

        Only the two aggravated burglary counts and the especially aggravated kidnapping
count were submitted to the jury for their consideration. Following deliberations on these
three counts, the jury found the Defendant guilty as charged. See Tenn. Code Ann. §§ 39-
13-305 (especially aggravated kidnapping), -14-403 (aggravated burglary). Thereafter, the
trial court conducted a sentencing hearing. The Defendant, a career offender, received
concurrent terms of fifteen years for each aggravated burglary conviction and sixty years for
the especially aggravated kidnapping conviction, resulting in an effective sentence of sixty
years at 100%.3 He now appeals.



         2
             It was noted on cross-examination that, in her police statement, the victim stated the struggle lasted between
ten to fifteen minutes.


         3
           Under Tennessee Code Annotated section 40-35-501(i), especially aggravated kidnapping is specified as an
offense requiring 100% service of the crime.

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                                            Analysis
        On appeal, the Defendant challenges only the sufficiency of the convicting evidence
supporting the offense of especially aggravated kidnapping.4 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.

       Relevant to this case, especially aggravated kidnapping “is false imprisonment . . .
[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). “A person commits . . . false imprisonment who knowingly removes or
confines another unlawfully so as to interfere substantially with the other’s liberty.” Tenn.
Code Ann. § 39-13-302(a).

       The Defendant challenges his conviction on two grounds: intent and substantial
interference. As for his “intent,” he contends that he had no intent to kidnap the victim, her
confinement being only incidental to the burglary. This argument is actually a due process

       4
           He does not challenge his aggravated burglary convictions.

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argument. See State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). He also argues that the short
period of time during which the victim was confined did not amount to substantial
interference with her liberty.

        Whether a separate kidnapping conviction violates principles of due process is a
question of law determined initially by the trial court. State v. Fuller, 172 S.W.3d 533, 535
(Tenn. 2005) (citing State v. Cozart, 54 S.W.3d 242, 247 (Tenn. 2001)). Appellate review
of the trial court’s determination is de novo with no presumption of correctness. Griffin v.
State, 182 S.W.3d 795, 798 (Tenn. 2006).

        Due process principles are violated when a defendant is convicted of both a
kidnapping and an associated felony when the victim’s confinement was “essentially
incidental” to the associated felony. Anthony, 817 S.W.2d at 306. Facts independent and
separate of those necessary to convict the defendant of the associated felony must be shown
to sustain a kidnapping conviction. Id. at 301. The supreme court refined the test for
whether due process bars a separate conviction for kidnapping in State v. Dixon, 957 S.W.2d
532 (Tenn. 1997). The supreme court stated that although it adheres to the due process
principles articulated in Anthony, the two-part test announced in Dixon replaced Anthony’s
“essentially incidental” analysis. State v. Richardson, 251 S.W.3d 438, 442-43 & 443 n.5
(Tenn. 2008). “The Dixon test ‘provides the structure necessary for applying the principles
announced in Anthony.’” Id. at 443 (quoting Fuller, 172 S.W.3d at 537). The Dixon test
first requires a court to inquire “whether the movement or confinement was beyond that
necessary to consummate the act . . . .” Id. at 535 (citing Anthony, 817 S.W.2d at 306). In
Fuller, the supreme court clarified that Dixon’s first prong is a threshold determination.
Fuller, 172 S.W.3d at 537. If the first prong is satisfied, the court next must determine
“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.

        The Anthony rule was designed to prevent a defendant from being convicted of
kidnapping when the confinement was only that necessary to complete a rape or robbery. Id.
at 534-35. Tennessee’s broad statutory definition of kidnapping “‘could literally overrun’
crimes such as robbery and rape because detention and confinement against the will of the
victim necessarily accompany these crimes.” Richardson, 251 S.W.3d at 442) (citing
Anthony, 817 S.W.2d at 303; and quoting People v. Levy, 204 N.E.2d 842, 844 (N.Y. 1965));
see Tenn. Code Ann. §§ 39-13-301 to -305. During the commission of a rape or robbery, a
victim may often be held “‘briefly at gunpoint,’ ‘bound and detained,’ or ‘moved into and
left in another room or place.’” Richardson, 251 S.W.3d at 442-43 (quoting Levy, 204
N.E.2d at 844). In this regard, the purpose of the confinement or removal is at issue, not the
distance or duration. Dixon, 957 S.W.2d at 535. However, when this brief confinement or

                                             -5-
removal goes beyond what is necessary to accomplish the associated rape or robbery, a
separate conviction for kidnapping does not violate principles of due process. Anthony, 817
S.W.2d at 306.

        Our supreme court has declined to extend the Anthony rule to separate convictions for
automobile burglary and theft. State v. Ralph, 6 S.W.3d 251, 254-55 (Tenn.1999). This
Court has likewise declined to extend the Anthony rule to separate convictions for attempted
first degree murder, aggravated burglary, and especially aggravated robbery. State v. Cowan,
46 S.W.3d 227, 234 (Tenn. Crim. App. 2000); see State v. Landy M. Clemmons, No.
E2008-01326-CCA-R3-CD, 2009 WL 3255242, at *7-8 (Tenn. Crim. App., Knoxville, Oct.
12, 2009). While every robbery or rape involves some detention of the victim, not every
burglary involves kidnapping. See Cowan, 46 S.W.3d att 235. Unlike the offense of
kidnapping, the offense of aggravated burglary is narrowly defined by statute and its
elements are clearly defined. Id. at 234; see Tenn. Code Ann. §§ 39-14-401 to -404; see also
Ralph, 6 S.W.3d at 255. Aggravated burglary is a property offense, and the crime is
complete upon entry into the habitation. Cowan, 46 S.W.3d at 234 (citing Tenn. Code Ann.
§§ 39-14-402(a)(1), -403(a)). The Defendant in this case completed the offense of
aggravated burglary the moment he entered the victim’s home with the intent to commit a
theft therein. See Clemmons, 2009 WL 3255242, at *8.

       We conclude that the victim’s subsequent confinement in her bedroom was a separate
offense and that the evidence supports the Defendant’s conviction for especially aggravated
kidnapping. With a box knife in hand, the Defendant jumped on top of the victim, who had
been sleeping, and placed an ether-soaked rag over her mouth. The victim fought with the
Defendant for around ten minutes, during which time she received cuts to her thumb and
chin. The statutory elements of especially aggravated kidnapping do not require a finding
that Defendant moved the victim any specific distance or restrained her for any particular
length of time in order for the Defendant’s actions to substantially interfere with her liberty.
See State v. Turner, 41 S.W.3d 663, 670 (Tenn. 2000); see also Dixon, 957 S.W.2d at 535).
The facts are sufficient to show beyond a reasonable doubt that the Defendant knowingly
confined the victim by use of a deadly weapon.

                                         Conclusion
       We conclude that the Defendant’s convictions for aggravated burglary and especially
aggravated kidnapping do not violate principles of due process under Anthony and that the
evidence is sufficient to support the kidnapping offense. In consideration of the foregoing
and the record as a whole, the judgments of the trial court are affirmed.




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      _________________________________
      DAVID H. WELLES, JUDGE




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