        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs July 23, 2013

                 STATE OF TENNESSEE v. GARY S. HOLMAN

                 Direct Appeal from the Criminal Court for Knox County
                     No. 92152B        Jon Kerry Blackwood, Judge



                  No. E2012-01143-CCA-R3-CD - Filed January 27, 2014



N ORMA M CG EE O GLE, J., concurring in part and dissenting in part.

        Although I agree with most of the conclusions set forth in the majority opinion, in my
view, the trial court’s failure to instruct the jury properly pursuant to State v. White, 362
S.W.3d 559 (Tenn. 2012), constitutes plain error. Therefore, I would reverse the defendant’s
conviction for false imprisonment and remand the case to the trial court for a new trial as to
that offense.

       The majority concludes that the defendant’s conviction for the false imprisonment of
Mrs. Graves does not implicate due process because the named victim of the aggravated
robbery was Mr. Graves. Thus, there was no accompanying felony. However, our supreme
court never said in the Anthony/Dixon/White line of cases that the fact that the victim of the
kidnapping was different than the named victim of the accompanying felony eliminated the
need for due process analysis. State v. Josh L. Bowman, No. E2012-00923-CCA-R3-CD,
2013 Tenn. Crim. App. LEXIS 735, at *44 (Jackson, Aug. 29, 2013). As Judge Witt recently
pointed out in his dissent in Ricco R. Williams,

              [a]lthough . . . the thrust of White and State v. Terrance Antonio
              Cecil, 409 S.W.3d 599 (Tenn. 2013), is to diminish the ambit of
              due process concerns relative to kidnapping (or false
              imprisonment) convictions, . . . nothing other than the highlight
              of the ‘standing alone’ language . . . has changed the rule so as
              to require as a function of due process principles that the
              kidnapping victim be also a victim of the accompanying felony.

No. W2011-02365-CCA-RM-CD, 2014 Tenn. Crim. App. LEXIS 11, at *34 (Jackson, Jan.
7, 2014) (Witt, J., dissenting); see also State v. Jerome Maurice Teats, No.
M2012-01232-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 18, at *90 (Nashville, Dec. 20,
2014) (Tipton, J., dissenting) (stating that “[a]lthough the supreme court altered in White
how the question of whether a kidnapping is incidental to another felony is to be resolved,
it did not alter the rationale in Anthony regarding the circumstances in which the due process
protection arises”).

       Given that the defendant’s and Bowman’s confinement of Mrs. Graves occurred
during the accompanying robbery of Mr. Graves, that the confinement was limited to the
living room during the entire robbery, and that the confinement ended as soon as the
defendant exercised control of the safe, I believe that whether the defendant’s confinement
of Mrs. Graves was essentially incidental to the accompanying aggravated robbery was
subject to different interpretations by the jury. Therefore, I would conclude that the trial
court’s failure to instruct the jury properly pursuant to White constitutes plain error, reverse
the defendant’s false imprisonment conviction, and remand the case for a new trial on that
charge.

                                            ____________________________________
                                            NORMA McGEE OGLE, JUDGE
