                                                                                          11/26/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 28, 2018

              STATE OF TENNESSEE v. JAMIE LYNN MOORE

                Appeal from the Criminal Court for Davidson County
                     No. 2015-B-1433 Steve R. Dozier, Judge
                     ___________________________________

                           No. M2017-01877-CCA-R3-CD
                       ___________________________________

The Defendant-Appellant, Jamie Lynn Moore, was convicted by a Davidson County jury
of aggravated kidnapping and violation of an order of protection, see T.C.A. §§ 39-13-
304, -113, for which he received an effective sentence of nine years in confinement. The
sole issue presented in this appeal is whether the evidence is sufficient to support his
conviction for aggravated kidnapping. Specifically, the Defendant claims that the State
failed to prove that he substantially interfered with the victim’s liberty. After review, we
affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
            Remanded for Entry of Judgments on Dismissed Counts

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Richard C. Strong, Nashville, Tennessee, for the Defendant-Appellant, Jamie Lynn
Moore.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Glenn Funk, District Attorney General; and Jennifer Charles, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       Prior to May 8, 2015, the night of the offense, the Defendant and Jenifer Strang,
the victim, had been in a tumultuous, six-year romantic relationship. On the night of the
offense, in an effort to reconcile, the couple had gone out to dinner and returned to the
victim’s apartment. The victim discovered the Defendant using drugs in the bathroom,
became upset, and an argument ensued. The argument eventually led to a physical
confrontation, during which the Defendant prevented the victim from leaving her
apartment for approximately two hours. When she managed to escape, she borrowed a
phone from neighbors and called the police. The Defendant was subsequently indicted
for the aforementioned charges, and the following facts as relevant to the issue raised in
this appeal were adduced at the October 31 through November 1, 2016 trial.

       At trial, the Defendant conceded in his opening statement that he committed
domestic assault on the night of the offense. However, he insisted that he was not guilty
of aggravated kidnapping and maintained, as he does on appeal, that the State had
“overcharged” the case. The Defendant further argued that the only evidence of
substantial interference with the victim’s liberty or confinement was from the testimony
of the victim, and he vehemently contested her version of the facts. As relevant to
aggravated kidnapping, the victim testified that upon returning to her apartment after
dinner, she and the Defendant argued over the Defendant’s drug use in her apartment.
The victim recalled that while they were outside on her patio, she was flipped over in her
chair, and the Defendant was on top of her with his hand over her face and mouth. The
victim bit the Defendant, and the Defendant then bit the victim’s nose and punched her in
the cheek and eye, at which point the victim passed out. When the victim awoke, she was
“standing up against the wall in [the] kitchen” with the Defendant “pressed up against
[her].” She recalled trying to get away from the Defendant and “telling him he just
need[ed] to back away, stop touching me, get away from me.”

        The victim then asked the Defendant if she could use the bathroom mirror to look
at her injuries. The victim testified there was a bathroom downstairs, but she preferred to
use the one upstairs because she “was trying to get far away” and “create distance.” As
the victim examined her injuries, the Defendant ripped the bathroom vanity off the wall
and said, “I’m not going to jail.” The victim then recalled pacing back and forth in her
bedroom looking for her phone because she “wanted to call the police to come get [the
Defendant] out of [her] apartment so [she could] get out.” Asked if there was ever an
opportunity where she could leave the apartment, the victim said “no[,] [h]e wouldn’t let
me.” Although most of the night was “a big blur” to the victim, she recalled a bedroom
window on the second floor of the apartment being opened, but was unable to use it to
escape because she “would have got hurt.”

       The victim further described the night of the offense as “just constant battling
trying to get from one point to another.” The Defendant grabbed her hair, and the two
eventually fell through the front door. The victim was then able to run to the parking lot
to a neighbor’s house, at which point she remembered calling 911.

      The 911 call was played for the jury and admitted into evidence without objection.
A woman named Mary Beth actually called 911 and is heard asking the victim her name.
The victim then begins to speak to the 911 operator and describes the Defendant as an
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“intruder” at her apartment. At varying points during the call, the victim exclaimed,
“[H]e’s not supposed to be there and it took me like for the last two hours trying to get
out of my apartment. . . . [H]e destroyed everything. . . . It took me forever to get out of
the apartment.” Asked by the operator if the Defendant kept her locked in the apartment
for two hours, the victim replied, “almost, it’s been like that, we been (sic) fighting I been
trying to get away for two hours. Oh, my God!” The victim identified several injuries
sustained on the night in question. Although she could not remember specific details, she
said she was hit on the face and eye, bitten on the nose, and had bruises on both arms
from defending herself.

       On cross-examination, the victim admitted that the Defendant allowed her to go to
the upstairs bathroom to examine her face. She said the Defendant did not take her by the
arm, she just “ran up the stairs.” She conceded that she could only remember “bits and
pieces” of the night. Asked if the only time she attempted to leave the apartment was
when she got out, she said, “[r]ight. I’d probably tried all night long, I just don’t
remember.” She explained that she was “happy to get out. After a certain point of
getting hit and dragged and beat and punched, it’s just like eventually you just want to get
the h[---] out.” The victim further acknowledged discrepancies between her testimony
and the audio recording of the 911 call. Although she initially thought she called 911, the
911 recording established a neighbor actually called. She also agreed that the caller
never said she saw the victim and the Defendant tumble out the front door of the
apartment.

         Metro Nashville Police Officer Ryan Koslowski testified that he and his partner,
Officer Christopher Templin, received a call and responded to the victim’s apartment a
little after midnight on May 9, 2015. As the officers were in route to the apartment, they
encountered the Defendant walking east along Walton Lane. The officers noticed that the
Defendant met the description of the individual in the dispatch call and stopped to talk to
him. After verifying his name, officers placed the Defendant in the back of the police
car. Officer Koslowski noticed “fresh wounds” on the Defendant’s knuckles. The
Defendant also appeared intoxicated and was “agitated” and “aggressive.” Once officers
placed the Defendant in the car, they continued to the victim’s apartment and encountered
the victim standing in the parking lot of the apartment complex. Officer Koslowski took
photographs of the scene and noticed lamps knocked over, a broken remote control,
blood on the door frame, and clumps of the victim’s hair lying on the ground outside of
the apartment. Asked if he noticed any open, bleeding wounds on the victim, Officer
Koslowski confirmed that the victim had injuries, but she was not bleeding. He further
confirmed that an ambulance was not called to the scene, and he was unsure where the
blood in the apartment came from. He said he briefly went upstairs in the apartment, and
remembered it “being [in] disarray[.]” However, he could not give an accurate

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description. He said that he would have taken a photograph of the vanity had it been
ripped off the bathroom wall.

       Metro Nashville Police Officer Craig Amabile testified that he was the first officer
to respond to the victim’s apartment. When he arrived, he encountered the victim
standing near the apartment steps in the parking lot trying to get his attention. He said
she appeared “upset” and “fearful.” He noticed the victim’s hair had been “ripped out,”
and that she was bruised and crying. When Officer Amabile first spoke to the victim, she
told him, “He may still be inside. He wouldn’t let me leave.”

       Officer Templin of the Metro Nashville Police Department testified consistently
with Officer Koslowski. Officer Templin additionally testified that the Defendant was
taken back to the victim’s apartment so officers could complete their investigation. As
officers began to take photographs of the Defendant’s injuries, he became
“uncooperative,” “aggressive,” “agitated,” and began “cursing.” As a result, officers
were unable to take the photographs. Officer Templin described the condition of the
victim’s apartment as having “obvious signs of struggle.” He recalled a window being
raised in the upstairs bathroom. When he spoke with the victim, she told him “she had
got out of the window, tried to escape through the window.” Asked if he remembered
anything in particular about a mirror, he said he did not. Officer Templin admitted that
while the victim showed signs of trauma, she was not bleeding. He also admitted that no
photographs were taken of the Defendant’s injuries, even though officers could have
forced him to comply.

        At the conclusion of proof, the jury convicted the Defendant as charged in the
indictment. The trial court sentenced him as a Range I, standard offender to a concurrent
term of nine years for aggravated kidnapping and eleven months, twenty-nine days for
violation of an order of protection, for a total effective sentence of nine years in
confinement. On January 6, 2017, the Defendant filed a motion for new trial, which was
denied by the trial court on February 10, 2017. The Defendant filed an untimely notice of
appeal on September 15, 2017, and on September 27, 2017, this court waived the timely
filing requirement.

                                       ANALYSIS

       The sole issue on appeal is whether the evidence is sufficient to sustain the
Defendant’s conviction of aggravated kidnapping. The Defendant argues that there is
insufficient evidence to sustain his conviction because the State failed to establish that he
substantially interfered with the victim’s liberty. At best, he contends, the evidence
established attempted aggravated kidnapping. The State responds, and we agree, that the

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evidence presented was sufficient to establish the Defendant’s conviction of aggravated
kidnapping.

       In resolving this issue, we apply the following well-established principles and
rules of law. The State, on appeal, is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn from that evidence. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency
of the evidence, the standard of review applied by this court is “whether, after reviewing
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). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support a finding by the
trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond a
reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343
S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the
witnesses, determine the weight given to witnesses’ testimony, and must reconcile all
conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

       When reviewing issues regarding the sufficiency of the evidence, this court shall
not “reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). The Tennessee Supreme Court has stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659
(citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). A guilty verdict also
“removes the presumption of innocence and replaces it with a presumption of guilt, and
the defendant has the burden of illustrating why the evidence is insufficient to support the
jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

       To convict the Defendant of aggravated kidnapping as charged in the indictment,
the State was required to prove that the Defendant falsely imprisoned the victim as
defined in Tennessee Code Annotated section 39-13-302, and the victim suffered bodily
injury as a result. T.C.A. § 39-13-304(a)(4). False imprisonment occurs when a person
knowingly removes or confines another unlawfully as to interfere substantially with the
other’s liberty. T.C.A. § 39-13-302(a). Whether the evidence presented establishes each
and every element of kidnapping, including whether the interference was substantial or
merely trivial, is a question for the jury. State v. White, 362 S.W.3d 559, 577 (Tenn.
2012).

                                            -5-
       First, the Defendant argues that the State failed to establish the element of
substantial interference because during the course of the two-hour confinement, the
victim was free to move about the apartment and never attempted to escape until she and
the Defendant tumbled out the front door of the apartment. The State contends that it was
for the jury to decide if the interference with the victim’s liberty was substantial, and the
fact that the victim was able to move about her apartment and failed to make several
attempts to escape does not defeat the Defendant’s convictions. We agree with the State.

       Viewed in the light most favorable to the State, the evidence is sufficient to sustain
the Defendant’s conviction of aggravated kidnapping. The proof established that the
victim suffered abuse at the hands of the Defendant for roughly two hours. Although the
victim was unable to recall how particular injuries occurred, she remembered the
Defendant hitting and biting her on the patio before passing out and awaking to the
Defendant pressing her against the kitchen wall. The victim testified that she attempted
to go upstairs “to get far away” and “create distance” from the Defendant, but he
followed her and ripped the bathroom vanity off the wall. She further recalled the
Defendant dragging her through the living room by her hair just before the two fell
through the front door, at which point the victim, “got up and snatched [her] head and
ran.” During her testimony, the victim made several comments indicating her desire to
leave the apartment. She testified that she tried to find her cell phone at one point
because she “wanted to call the police to come get [the Defendant] out of [her] apartment
so [she] c[ould] get out.” She said she could never escape because the Defendant would
not “let her . . . . [I]t was just constant battling trying to get from one point to another.”
Although the victim admitted that the only time she left is when she escaped through the
front door, she added, “I’d probably tried all night long, I just don’t remember.” The
victim’s testimony was further corroborated by her 911 call, during which she exclaimed
that she had been held against her will by the Defendant for over two hours.

       Additionally, we must reject the Defendant’s claim that there was no substantial
interference with the victim’s liberty because she was free to move about the apartment
and failed to make multiple attempts to escape. This court has held that aggravated
kidnapping does not require a victim to be removed for particular distance or any
particular duration or place of confinement to establish substantial interference. State v.
Taylor, 63 S.W.3d 400, 408 (Tenn. Crim. App. 2001) (citing State v. Dixon, 957 S.W.2d
532, 535 (Tenn. 1997)). Moreover, a victim need not be confined to a single space or
attempt to escape. See State v. David Earl Scott, No. E2011-00707-CCA-R3-CD, 2012
WL 5503951, at *2-4, *8 (Tenn. Crim. App. Nov. 14, 2012), perm. app. denied (Tenn.
Mar. 5, 2013) (finding evidence sufficient to convict defendant of aggravated kidnapping
when victim was free to move about several areas of the home and never attempted to
escape for fear of leaving her children behind); State v. William Davidson Hamby, Jr.,
No. M2014-00593-CCA-R3-CD, 2015 WL 1897334, at *4 (Tenn. Crim. App. Apr. 27,
                                            -6-
2015), perm. app. denied (Tenn. Aug. 13, 2015) (victim was not required to attempt to
escape and risk provoking the defendant in order to demonstrate her desire to leave). The
jury was in the best position to evaluate and weigh the evidence presented, as well as
consider all lesser included offenses to the charged crime, and we will not disturb the
jury’s finding. We conclude that a rational juror could have found that the Defendant
substantially interfered with the victim’s liberty so as to satisfy the elements of
aggravated kidnapping beyond a reasonable doubt. The Defendant is not entitled to
relief.

       Next, the Defendant suggests that any interference with the victim’s liberty was
only incidental to the domestic assault under State v. White, 362 S.W.3d 559 (Tenn.
2012). The State counters, and we agree, that the Defendant’s reliance on White is
misplaced.

       In White, the Tennessee Supreme Court held that the kidnapping statutes do not
apply to a removal or confinement of a victim that is “essentially incidental” to that of an
accompanying felony, such as rape or robbery. Id. at 576-77, 581. “[T]he removal or
confinement [must have some] criminal significance above and beyond that necessary to
consummate some underlying offense[.]” Id. at 577. The court explained that when a
charge of kidnapping is coupled with another felony charge, trial courts must include jury
instructions necessary to afford the defendant proper constitutional due process
protection. Id. at 580. Ultimately, the determination of whether the evidence is sufficient
to establish aggravated kidnapping as a separate offense is a question for the jury
properly instructed under the law. Id. at 577.

        Here, the Defendant does not suggest that the jury should have received the White
instruction. Instead, he argues that every assault contains an element of the restraint of
liberty and that if his conviction for aggravated kidnapping is permitted, the State would
then result to charging every assault case as an aggravated kidnapping. We disagree.
White is applied to cases where a defendant is charged with both kidnapping and an
accompanying felony such as rape or robbery of the same victim. In those cases, the
jury, after being given appropriate instructions, must decide if the kidnapping is
essentially incidental to accomplish the accompanying felony. In the case sub judice, the
Defendant was originally charged with both aggravated kidnapping and aggravated
assault. However, before trial, the State dismissed the aggravated assault charges and
amended the indictment to charge aggravated kidnapping.1 Accordingly, because the
Defendant was not charged with an accompany felony, White is not applicable. See State
        1
           The Defendant was originally indicted for aggravated kidnapping, two counts of aggravated
assault, interference with an emergency call, vandalism, and violation of an order of protection. The State
amended the indictment the morning of trial to charge the Defendant with aggravated kidnapping and
violation of an order of protection. The remaining charges were dismissed.
                                                   -7-
v. Teats, 468 S.W.3d 495, 496 (Tenn. 2015) (holding that White is not applicable to a
kidnapping charge when a defendant is charged with kidnapping one victim and robbing
another). Therefore, the only determination here is whether the evidence was sufficient
to establish aggravated kidnapping, which as White acknowledged, is a question for the
jury. As thoroughly detailed above, the jury in this case found the evidence sufficient to
convict the Defendant as charged. Accordingly, the Defendant is not entitled to relief.

                                    CONCLUSION

       After review, it appears that judgment forms for counts 2 through 5 were never
entered. The record reflects that the Defendant was originally charged with aggravated
kidnapping (count 1), aggravated assault (counts 2 and 3), interference with an
emergency call (count 4), vandalism (count 5), and violation of an order of protection
(count 6). Before trial, the trial court dismissed counts 2 through 5 and renumbered the
remaining charges to reflect the charges as presented in this case. While the record
contains judgment forms for the case before us, it does not include the judgment forms
for the dismissed counts. Therefore, we remand for entry of judgment forms reflecting
the dismissed counts of the indictment. In all other respects, the judgments of the trial
court are affirmed.


                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




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