          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                      JANUARY SESSION, 1997


                                                             FILED
STATE OF TENNESSEE,         )
                            )   No. 02C01-9602-CR-00061           May 15, 1997
      Appellee              )
                            )   SHELBY COUNTY               Cecil Crowson, Jr.
vs.                         )                                Appellate C ourt Clerk

                            )   Hon. JAMES C. BEASLEY, SR., Judge
JOHNNY L. SMITH,            )
                            )   (Two Counts Especially Aggravated
      Appellant             )   Kidnapping; Two Counts Aggravated
                                Robbery; One Count Aggravated
                                Burglary; One Count Aggravated
                                Sexual Battery)


For the Appellant:              For the Appellee:

WALKER GWINN                    CHARLES W. BURSON
Assistant Public Defender       Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103               DEBORAH A. TULLIS
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
A.C. WHARTON                    Nashville, TN 37243-0493
District Public Defender

                                WILLIAM GIBBONS
                                District Attorney General

                                AMY WEIRICH
                                Asst. District Attorney General
                                Third Floor
                                Criminal Justice Complex




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



         The appellant, Johnny L. Smith, was convicted by a Shelby County jury of

two counts of especially aggravated kidnapping, two counts of aggravated

robbery, one count of aggravated burglary, and one count of aggravated sexual

battery. At the sentencing hearing, the trial court imposed an effective sentence

of thirty-eight years in the Department of Correction.1 In this appeal as of right,

the appellant contends that the evidence is insufficient to support his convictions

and that his convictions for especially aggravated kidnapping violate the holding

of our supreme court in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991).



         After review, the judgment of the trial court is affirmed.




                                             I. Background



         The victims, Gregory Stone and Kisha Reed, along with their two small

children, shared an apartment in Memphis. On the date of October 12, 1994,

Mr. Stone and Ms. Reed were asleep in their upstairs bedroom, while the two

children, ages two and one, were asleep in the downstairs living area. During

the early morning hours, the front door of their apartment was kicked open,

awakening the sleeping family. Four to five men, brandishing a variety of

weapons, entered the home.




         In the master bedroom, the men forced Stone onto the floor and covered


         1
           The d ual conv ictions stem from the fact tha t the offen se involve d two victim s.
Specifically, the trial court imposed the following sentences: especially aggravated robbery, 30
years each count; aggravated robbery, 16 years each count; aggravated burglary, 8 years; and
agg rava ted s exu al bat tery, 16 years . The cour t orde red th at all of the s ente nce s run conc urre ntly,
with th e exc eptio n of th e 8 yea r sen tenc e for aggr avate d bur glary, w hich was to run cons ecu tively.

                                                       2
his head with a blanket and a pillow, while Ms. Reed was forced to lay on the

floor. One man, the apparent leader, demanded "money and guns." The

"leader" then began to hit Stone upon his head with a weapon, as he continued

his demand for money. Stone informed the leader that he had no money, but he

did have a gold and diamond Cadillac pendant, worth $10,000. Stone was

restrained with a telephone cord, and the "leader" instructed the other men to

look for valuables.



       Ms. Reed remained on the floor as ordered, while the "leader" insisted

that she too reveal monies or valuables. Reed informed him that she only had

her "bill money." With a gun aimed at her head, Reed was forced downstairs to

the location where she kept this money. Once the money was retrieved, Reed

was returned upstairs.



       Upstairs, Ms. Reed sat on her bed with her two children as the intruders

continued to ransack her home, looking for valuables. When the "leader" noticed

her watching them, he ordered her upon her stomach whereupon she was

physically restrained with a telephone cord. While Ms. Reed was bound and on

the floor, the leader told her that he was going to have sex with her. However,

after making brief sexual contact with the victim, he returned to the planned

robbery. No penetration was attempted.



       Stone was then placed in the closet in the children's room, while Ms. Reed

and her two children were placed in her bedroom closet. The intruders then left

in Stone's 1983 Nissan 300SX. After their departure, Stone was able to free

himself and the others. The family then called the police from a neighbor's

residence.




                                        3
       At trial, the appellant presented an alibi defense. The appellant’s

girlfriend testified that, at the time of the robberies, she and the appellant were in

bed. Ms. Reed testified that, immediately following the offense, she recognized

the “leader” as the man to whom Stone had provided transportation

approximately two months previously. At the police station, she identified the

appellant from a photographic lineup. At trial, Ms. Reed again identified the

appellant as the perpetrator of the offense in this case.




                          II. Sufficiency of the Evidence



       In his first issue, the appellant challenges the sufficiency of the convicting

evidence. Specifically, he contends that, because the only proof offered linking

him to the charged offenses is the uncorroborated testimony of Ms. Reed, the

proof is insufficient to establish his identity as the perpetrator of these offenses.

We disagree.



       An accused challenging the sufficiency of evidence on appeal has the

burden of proving that the evidence is insufficient. Id. In determining the

sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, the

State is entitled to the strongest legitimate view of the evidence and all legitimate

or reasonable inferences which may be drawn therefrom. State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to affirm the

conviction if the evidence viewed under these standards was sufficient for any

rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13

(e).


                                          4
       Again, the only challenge raised as to the sufficiency of the convicting

evidence relates to Ms. Reed's identification of the appellant as the perpetrator

of the offenses. Immediately after the incident, Ms. Reed stated to Mr. Stone

that she recognized the perpetrator as being "that dude you gave a ride to that

day." From this identification, Stone was able to name the perpetrator as the

appellant. Later that morning, Reed positively identified the appellant from a

photographic line-up at the police station.



       In State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993), this

court held that the testimony of a victim identifying the perpetrator is sufficient in

and of itself to support a conviction. See also State v. Shelton, No. 01C01-

9505-CC-00144 (Tenn. Crim. App. at Nashville, Mar. 22, 1996), perm. to appeal

denied, concurring in results only, (Tenn. Nov. 12, 1996). Moreover, the

credibility of eyewitness testimony identifying the accused as the perpetrator of

the criminal offense for which he stands trial is a question of fact for the

determination of the jury upon consideration of all competent proof. Strickland,

885 S.W.2d at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim.

App. 1982)); see also State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App.

1981). Although the appellant presented an alibi defense, i.e., the testimony of

his girlfriend, the jury, by returning a guilty verdict, accredited the testimony of

Ms. Reed. Accordingly, we conclude that the evidence is sufficient for a rational

trier of fact to find the appellant guilty beyond a reasonable doubt. This issue is

without merit.




                                 III. Anthony Issue




                                           5
        The appellant, in his next issue, contends that his convictions for

especially aggravated kidnapping are improper, because the kidnappings were

merely incidental to his primary purpose of armed robbery and, thus, cannot

withstand scrutiny under the rule announced in Anthony, 817 S.W.2d at 299.2

Anthony was our supreme court’s first decision specifically addressing the issue

of whether movement incidental to an underlying crime such as robbery would

be sufficient to sustain a separate kidnapping conviction. Expressing a concern

for the constitutional guaranty of due process, the court announced that the test

of whether the kidnapping should be sustained was “whether the confinement,

movement, or detention is essentially incidental to the accompanying felony . . .

or whether it is significant enough, in and of itself, to warrant independent

prosecution . . . .” Anthony, 817 S.W.2d at 306. Again, in State v. Coleman, 865

S.W.2d 455 (Tenn. 1993), our supreme court held that the offense of aggravated

kidnapping could not stand in view of convictions returned for aggravated

robbery and aggravated rape, based upon the due process principles announced

in Anthony.



        At this juncture, it is important to note that the decisions in Anthony and its

companion cases, State v. Martin, 817 S.W.2d at 299, and Coleman, involved

statutory offenses under the pre-1989 Criminal Code.3 The court’s focus in

these cases was “whether the confinement, movement or detention is essentially

incidental to the accompanying felony.” In 1989, Tennessee enacted a new

criminal code, adopted, in large part, from the MODEL PENAL CODE, which included

the graded offenses of false imprisonment, kidnapping, aggravated kidnapping



        2
          The appellant raises no Anthony issue with respect to his conviction for aggravated
sex ual ba ttery.

        3
         The offenses of aggravated kidnapping in the conso lidated cases of Anthony and Mar tin
were committed in 1986 and 1988. The offense in Coleman was com mitte d in 19 88. A t the tim e
these offenses were committed, the core element of the offense of aggravated kidnapping
proscribed the conduct of one who unlawfully "seizes, confines, inveigles, entices, decoys,
abducts, conceals, kidnaps or carries away another. . . ." Tenn. Code Ann. § 39-2-301 (1985
Supp.).

                                                6
and especially aggravated kidnapping.4



        The drafters of the MODEL CODE recognized that a broadly-drawn

kidnapping statute could potentially sweep within its scope conduct that is

unlawful, but which should be punished as some other crime.5                            MODEL PENAL


CODE   §212.1. The Code’s approach to this concern was to define the crime in

terms that identify a distinct kind of wrongful act or harm. The statutory language

of our kidnapping statute adopts this rational. Thus, the focus of our kidnapping

offenses is upon the specific harm threatened as opposed to movement,

confinement or detention. Under our current criminal code, before a conviction

can occur for any of the enumerated kidnapping offenses, there must be proof of

an unlawful removal or confinement of another so as to “interfere substantially”

with the other’s liberty, coupled with specific conduct that causes or threatens a

specific harm. Tenn. Code Ann. § 39-13-302 (1989). In the case before us, the

specific harm targeted was “accomplished with a deadly weapon.” Tenn. Code

Ann. § 39-13-305(1).




         4
           Tenn. Code Ann. § 39-13-305 defines especially aggravated kidnapping as false
impriso nme nt . . . :
                  (1) Accomplished 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;
                  (2) Where the victim was under the age of thirteen at the time of the
         rem oval or co nfinem ent;
                  (3) Committed to hold the victim for ransom or regard, or as a shield or
         hostage; or
                  (4) W here the vic tim s uffe rs se rious bodily in jury.

        5
            The C ode co mm ents pro vide the fo llowing illustration s:

        Thus , for exam ple, the rob ber who forces his victim to mov e from one roo m to
        ano ther in orde r to fin d a ca shb ox or open a saf e tec hnic ally m ay com mit
        kidnapping as well as robbery. This reasoning raises the po ssibility of cumulative
        penalties or of higher sanctions for kidnapping, even though the “removal” of the
        victim to another place was part and parcel of the robbery and not an
        independent wrong. Similarly, many instances of forcible rape involve some
        coerce d mo vem ent of the v ictim or u nlawful res traint for eno ugh tim e to com plete
        the sex act. Again, the actor may be liable for both kidnapping and rape, even
        thou gh su ch as porta tion o r dete ntion of the victim is a cr imin ologic ally
        insignificant circumstance in a course of conduct constituting rape. Definition of
        kidnapping to exclude such cases is a task of special subtlety for, unless
        partic ular c are is take n, trivia l aspe cts o f rob bery, r ape , or so me othe r crim e will
        end up classified as the most serious version of kidnapping. . . . The MODEL
        P E N A L C O D E’S response to these concerns is to retain kidnapping as an
        aggravated felony but to restrict its scope to cases of substantial removal or
        confinement for certain specified purposes. MODEL PENAL CODE 212.1(2)(3).

                                                       7
       The enactment of new statutory offenses of kidnapping have not,

however, obviated the guarantees of due process and fundamental fairness

addressed in Anthony. Reiterating this principle, we hold that the analysis

employed in determining the propriety of a kidnapping conviction committed in

the course of another felony should focus on the specific harm of the

“kidnapping” sought to be prevented in conjunction with the specific facts of each

individual case, rather than considering the general elements of “false

imprisonment,” which are present in any grade of the offense.



       Accordingly, based upon the due process concerns announced in

Anthony, and the legislative focus of our current kidnapping statutes, we adopt

the three part test utilized by other jurisdictions with similar statutory language.6

Moreover, we note that this test was cited to, with approval, in Anthony, 817

S.W.2d at 306. See also State v. Robinson, No. 01C01-9207-CR-00234 (Tenn.

Crim. App. at Nashville, July 22, 1993). Under this test:

       [I]f a taking or confinement is alleged to have been done to
       facilitate the commission of another crime, to be kidnapping the
       resulting movement or confinement:

       1. Must not be slight, inconsequential and merely incidental to the
       other crime;

Buggs, 547 P.2d at 731. The question should not focus upon incidental

movement from point A to point B, but, rather, upon whether the confinement or

removal "interfere[d] substantially" with the other's liberty. Tenn. Code Ann. §

39-13-302(a). In other words, there can be no kidnapping where the only

confinement involved is the sort that, although not necessary to the underlying

felony, is likely to naturally accompany it. Berry v. State, 668 So.2d 967, 969

(Fla. 1966).

       2. Must not be of the kind inherent in the nature of the other crime;

Buggs, 547 P.2d at 731. To satisfy this prong the confinement must not be the


       6
         This test was first promulgated by the Kansas Supreme Court in State v. Buggs, 547
P.2d 72 0, 731 (K an. 1976 ). See also Faison v. State , 426 So .2d 963 ( Fla. 1983 ).

                                               8
sort inherent in the underlying offense. For example, it is not necessary to tie up

the victim in order to commit a robbery. Berry, 668 So. 2d at 969. And,

         3. Must have significance independent of the other crime in that it
         makes the other crime substantially easier of commission or
         substantially lessens the risk of detection.

Buggs, 547 P.2d at 731. “[T]he determination of whether the confinement makes

the other crime substantially easier of commission or substantially lessens the

risk of detection does not depend upon the accomplishment of its purpose. The

question is whether the initial confinement was intended to further either of these

objectives.” Berry, 668 So. 2d at 970 (quoting Ferguson v. State, 533 So.2d 763,

764 (Fla. 1988)). There can be no bright-line rule for determining whether the

“removal” or “confinement” of a victim to another place is part and parcel of the

accompanying felony, or whether it will support an independent criminal offense.

The test remains a subjective one, based upon the facts of each case.7



         Again, in the case before us, the appellant was charged with especially

aggravated kidnapping by use of a deadly weapon, Tenn. Code Ann. § 39-13-

305(a)(1). Applying the above stated principles to the present case, we hold that

the conduct of the appellant constituted especially aggravated kidnapping as

contemplated by our legislature.8 The appellant, armed and accompanied by

four others, entered the bedroom of the sleeping victims, threatened them with a

weapon, beat the husband upon his head with the weapon, and tied them up

with telephone cord, while the others ransacked the premises for valuables.

Before leaving the home, the appellant ordered that the victims be placed in

separate closets, barricaded with furniture. First, this confinement was not slight,



         7
          The supreme court, in Anthony, suggested that “one method” of resolving the question of
“whether the confinement is necessarily incidental to the accompanying felony,” is to ask “whether
the d efen dan t’s co ndu ct su bsta ntially inc reas ed th e risk of ha rm over and a bove that n ece ssa rily
present in the crime of robbery itself.” Id. at 30 6. W e con clud e tha t this in quiry is nece ssa rily
inheren t within each prong o f the test se t forth abo ve.

         8
         It is the legislature’s role “to proscribe and prevent conduct that unjustifiably and
inexcusably causes or threatens harm to individual, property or public interest for which protection
through the criminal law is appropriate.” Tenn. Code An n. § 39-11-101(1) (1989).

                                                      9
inconsequential, or merely incidental to the crime of robbery. The act of tying

both victims with cord and placing them in separate closets "interfere[d]

substantially” with their liberty. Second, it was not necessary to tie the victims in

order to commit the robberies. Third, the binding of the victims had independent

significance because it made the robberies easier to commit and substantially

lessened the risk of detection. This issue is, therefore, without merit.



       For the foregoing reasons, the judgments of conviction are affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



__________________________________
JOE B. JONES, Presiding Judge


__________________________________
JOE G. RILEY, Judge




                                         10
