         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs October 16, 2002

               STATE OF TENNESSEE v. OLEAN W. THOMPSON

               Direct Appeal from the Criminal Court for Williamson County
                         No. I-201-49    Donald P. Harris, Judge



                      No. M2001-03093-CCA-R3-CD - Filed July 2, 2003


The defendant Olean W. Thompson, pled guilty to theft of property $1,000 or more in value and
aggravated robbery. Pursuant to a bench trial, he was found guilty of his four remaining indicted
charges, four counts of especially aggravated kidnapping. The trial court then sentenced the
defendant to serve two years for his theft conviction, eight years for his robbery conviction, and
twenty years for each of his kidnapping convictions. The court then ordered the defendant to serve
these sentences concurrently, resulting in a twenty-year aggregate sentence. The defendant now
appeals his convictions and sentence, claiming that his due process rights were violated by his four
convictions for especially aggravated kidnapping and that the trial court erred by imposing excessive
sentences for each of his kidnapping convictions. After a thorough review of the record, we find that
none of the defendant’s allegations merit relief and accordingly affirm the defendant’s convictions
and sentence.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

John H. Henderson, District Public Defender, Franklin, Tennessee, for the appellant, Olean W.
Thompson.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; Ron Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

                                       Factual Background

         On January 25, 2001 at approximately 9:55 p.m. shortly before closing time, the defendant
and another male entered a Burger King location in Brentwood, Tennessee wearing stocking caps
on their heads and bandanas across their faces. There were four Burger King employees present
when the defendant and his accomplice entered the store, including Lara Carter, the assistant
manager, and three male employees. The defendant told one of the three male employees to bind
the others with tape while his accomplice held the three at gun point. While his accomplice was
detaining the other employees, the defendant pointed his gun at Ms. Carter and ordered her to place
all the money from the cash registers into a bag. Ms. Carter noted that the defendant evidenced some
familiarity of the layout of a Burger King restaurant, including the location of a receptacle beneath
each register in which the employees deposited all large bills. After having collected all of the cash,
the defendant directed Ms. Carter into the restaurant’s office where he pulled the phone cord from
the wall and pocketed it. He then directed his accomplice to bind Ms. Carter.

       As he left the building, Ms. Carter looked at the defendant directly in the face and recognized
him as Olean Thompson, a former Burger King employee. The defendant’s sister and father had
both worked for Burger King under Ms. Carter’s management. She had interacted with him when
he would visit his family members at the restaurant. Ms. Carter had also interacted with the
defendant while substitute-managing another Burger King location in which the defendant was
employed.

        After she was bound, Ms. Carter began working to free herself, which she was able to do
several minutes after the defendant and his accomplice left the restaurant. She then freed another
employee and directed him to free the others. She approximates that she and her fellow Burger King
employees were bound for at least ten minutes. During that time, they were unable to crawl, walk,
or move. After she freed herself, Ms. Carter reconnected her office phone by using another phone
cord and then contacted the police. Once the police arrived, Ms. Carter identified the defendant as
one of the assailants. Moreover, she was able to provide the police with the defendant’s contact
information that she had on file from a job application.

        Pursuant to this information, the police searched the defendant’s residence. They discovered
a partially used roll of gray duct tape next to his bed. The victims of the robbery identified it as
similar to the tape used to bind them. The police also discovered a pair of the defendant’s shoes
whose prints matched shoe prints taken at the crime scene. The police subsequently arrested the
defendant, who later confessed to the crime. This confession was introduced into evidence at trial.

        After hearing all of the evidence summarized above, the trial court found that the evidence
was sufficient to support the theft and robbery convictions to which the defendant had pled guilty.
The trial court further found the defendant guilty of four counts of especially aggravated robbery.



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As noted above, the defendant now appeals his convictions and his sentence. For the following
reasons, we find that the trial court correctly convicted and sentenced the defendant.


                                       Sufficiency Challenge

         At the conclusion of the state’s proof, the defendant moved for a judgment of acquittal on
his four especially aggravated kidnapping charges. The trial court, the state, and defense counsel
discussed the issue in terms of the due process implications per State v. Anthony, 817 S.W.2d 299
(Tenn. 1991), and then the trial court denied the defendant’s motion based first upon the sufficiency
of the state’s evidence and second upon a finding that the kidnapping convictions did not violate the
defendant’s constitutional guarantees. See Tenn. R. Crim. P. 29.

         The due process concerns addressed in Anthony do not arise until after the accused is
convicted of both kidnapping and robbery. See State v. Turner, 41 S.W.3d 663, 671 (Tenn. Crim.
App. 2000). Although a robbery offense, by its nature, necessarily involves some degree of restraint
or detention of the victim, the statutory elements of aggravated robbery and especially aggravated
kidnapping are distinct and separate. Anthony, 817 S.W.2d at 303. However, even if we determine
that the defendant’s dual convictions violate due process per Anthony, our determination does not
presume that the evidence was insufficient to support the defendant’s kidnapping convictions as a
matter of law. See id. at 306. “Rather, the Anthony rule means that separate convictions cannot
stand because, even though the evidence is sufficient to support both convictions, principles of due
process would be offended by two separate convictions.” Turner, 41 S.W.3d at 671. Therefore, we
will first review the trial court’s decision that the evidence was sufficient to sustain the defendant’s
convictions for especially aggravated kidnapping independent of due process considerations.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” state’s witnesses and resolves all
conflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the state “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779.


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        Especially aggravated kidnapping is defined, in relevant part, as the false imprisonment of
another accomplished with the use of a deadly weapon. See Tenn. Code Ann. § 39-13-305(a)(1).
An individual falsely imprisons another when he or she “knowingly removes or confines another
unlawfully so as to interfere substantially with the other’s liberty.” Id. § 39-13-302(a). This
definition does not require that an accused move an individual a particular distance or detain an
individual for a certain amount of time in order to “substantially interfere” with that individual’s
liberty. See State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). In the instant case, the four Burger
King employees present during the robbery were bound at their wrists and ankles pursuant to the
defendant’s directions. They were bound for only ten minutes because one of the employees was
able to extricate herself from her bindings once the defendant and his accomplice left the restaurant.
During the time in which they were bound, the employees were unable to walk, crawl, or move.
Based on these facts, we agree with the trial court’s ruling that the evidence is sufficient to support
a finding that the defendant knowingly confined these four employees by having them bound in order
to “substantially interfere” with their liberty.


                       Due Process Considerations per State v. Anthony

       The defendant complains that his four especially aggravated kidnapping convictions violate
his due process rights because the kidnapping of the four victims was incidental to his robbery
conviction and cites Anthony in support of his argument. See State v. Anthony, 817 S.W.2d 299
(Tenn. 1991). The state counters that the trial court correctly found that the kidnapping convictions
were constitutional under Anthony.

        In Anthony, the Tennessee Supreme Court stated that before a defendant may be convicted
of a kidnapping charge, the trial court must determine

       whether the confinement, movement, or detention [involved in the individual’s case]
       is essentially incidental to the accompanying felony and is not, therefore, sufficient
       to support a separate conviction for kidnapping, or whether it is significant enough,
       in and of itself, to warrant independent prosecution and is, therefore, sufficient to
       support such a conviction.


Id. at 306. In addition, our supreme court instructed “that one method of resolving this question is
to ask whether the defendant’s conduct ‘substantially increased [the] risk of harm over and above
that necessarily present in the [attending] crime . . . itself.’” Id. (quoting State v. Rollins, 605
S.W.2d 828, 830 (Tenn. Crim. App. 1980)).

        In State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the supreme court further refined the
approach to be taken when analyzing these issues. See id. at 535. The reviewing court must
ascertain “whether the movement or confinement was beyond that necessary to consummate the act
of” the accompanying offense. Id. “If so, the next inquiry is whether the additional movement or


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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.” Id. The Dixon
court clearly stated that the intent is not to provide a defendant with “a free kidnapping merely
because he [or she] also committed” the primary offense, but rather is merely to “prevent the
injustice which would occur if a defendant could be convicted of kidnapping where the only restraint
utilized was that necessary to complete the act of” the accompanying crime. See id. at 534.

        We find that the defendant’s detention of the four employees was not just incidental to his
robbery of the restaurant. The defendant did not merely control the employees by holding them at
gunpoint, but instead he had both their wrists and ankles bound with duct tape, immobilizing them
for a period which extended the period of time in which the robbery took place. Moreover, the
defendant bound Lara Carter’s writs and ankles after he had committed the robbery in question but
before he fled the crime scene, indicating that he did not immobilize her merely to allow him to
complete the robbery of the restaurant. See, e.g., State v. William Rhea Jackson, No. M2002-00762-
CCA-R3-CD, 2003 WL 1563663, at *15 (Tenn. Crim. App. at Nashville, Mar. 27, 2003) (finding
that the defendant’s kidnapping conviction was constitutional where the defendant’s action of
binding his victim after his completion of several crimes indicated that the defendant bound his
victim in order to facilitate flight and avoid detection); cf. Anthony, 817 S.W.2d at 307 (noting that
the defendant’s detention of three restaurant employees during the robbery of the restaurant was
incidental to the robbery where the defendant held the employees at gunpoint during the commission
of the offense). Furthermore, as the Dixon court noted when revisiting State v. Anthony, “any
restraint in addition to that which is necessary to consummate [the accompanying felony charge] may
support a separate conviction for kidnapping.” See Dixon, 957 S.W.2d at 534-35 (emphasis added).
We find that the defendant’s act of having the four employees bound with duct tape constitutes a
form of restraint additional to the restraint necessary to complete the commission of the robbery.

        Turning next to the second prong of our analysis, we must now determine whether this
additional restraint “(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.” Id. at 534.
As noted above, the defendant instructed that the three male employees be bound shortly after he and
his accomplice entered the restaurant. After he had collected all of the cash on the premises, the
defendant directed his accomplice to bind Ms. Carter. We conclude that the binding of the victims
at least hampered the victims in escaping or summoning help; more patently, the movement
decreased the intruders’ risk of detection. The defendant’s intent to avoid detection is also evident
from his removal of the restaurant office phone cord prior to his escape. Furthermore, the actions
of binding the victims’ ankles and wrists with duct tape rendered the victims defenseless to any
assaults that the intruders might have inflicted upon them. Accordingly, we find that this
confinement increased the risk of harm to the victims. Thus, the defendant’s aggravated kidnapping
convictions do not violate due process, and this issue therefore lacks merit.




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                                      Sentencing Challenge

         The defendant also challenges the trial court’s imposition of a twenty-year sentence for each
of his four especially aggravated kidnapping convictions, arguing that these sentences are excessive
and should not exceed fifteen years each. The state responds that while the trial court improperly
applied one enhancement factor, the evidence adequately supports the defendant’s resulting sentence.

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. See Tenn. Code Ann. §§ 40-35-103(5),
-210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden
of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

         Here, the defendant challenges the length of his four especially aggravated kidnapping
convictions. The sentencing range for especially aggravated kidnapping for a Range I offender is
fifteen to twenty-five years. See Tenn. Code Ann. § 40-35-112(a)(1). Because especially aggravated
kidnapping is a Class A felony, the starting point for sentencing determinations is the middle of the
range. See id. § 40-35-210(c). The trial court classified the defendant as a Range I offender, and the
trial court was required to balance any mitigating and enhancement factors against the twenty-year
midpoint.

        In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. See Tenn. Code Ann. § 40-35-210(e). No particular
weight for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn.
Crim. App. 1995). The weight given to each factor is left to the discretion of the trial court as long
as it comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.

        We begin our analysis of this issue by first reviewing the trial court’s application of three
enhancement factors, namely (1) the defendant’s prior criminal convictions and behavior, (2) his
previous history of unwillingness to comply with the terms and conditions of a sentence involving
release into the community, and (3) his abuse of a position of private trust. Turning to the first
applied enhancement factor, the defendant’s history of criminal convictions or behavior in addition
to those necessary to establish his range, we find that there is sufficient evidence in the record to
support the application of this factor. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002). The


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defendant has three prior criminal convictions, and the testimony of several witnesses indicates that
the defendant has a history of illegal drug abuse. Thus, we find that the trial court appropriately
applied this factor to the defendant’s sentences.

         Next, we find that the trial court inappropriately applied the enhancement factor allowing
consideration of the defendant’s history of unwillingness to comply with the terms of a sentence
allowing release into the community. See id. § 40-35-114(9) (Supp. 2002). The record reflects that
the trial court applied this factor because the defendant was serving a probationary sentence at the
time he committed the present offenses. A trial court may not apply this enhancement factor merely
where the defendant committed the instant crime while serving a sentence allowing release into the
community. See State v. Adams, 45 S.W.3d 46, 60 (Tenn. Crim. App. 2000). Rather, the defendant
must have exhibited a history of such behavior separate from the crime at issue in order for this
factor to be appropriately applied. See id. Thus, the trial court erred by applying this factor to the
defendant’s convictions.

        However, although the trial court did not apply this factor to enhance the defendant’s
sentences, the defendant’s sentences could have been enhanced by a finding that the defendant acted
as a leader in the commission of the instant offenses. See id. § 40-35-114(3) (Supp. 2002). The
witnesses to the incident all recounted that the defendant’s accomplice acted at his instruction. The
defendant directed his accomplice to bind the restaurant employees and hold them at gunpoint while
he collected the cash from the registers. He displayed knowledge of the restaurant’s set-up and
practices and accordingly gave Ms. Carter specific instructions about how to gather the available
cash. If a trial court fails to apply a relevant enhancement factor, this Court may apply that
enhancement factor to the defendant’s conviction pursuant to our de novo review of the trial court’s
sentencing determination. See Adams, 864 S.W.2d at 34. Thus, because we find this enhancement
factor applicable to the defendant’s sentence, we find that the trial court’s enhancement of the
defendant’s sentence on the basis that the defendant’s committed the instant crimes while serving
a probationary sentence is harmless error.

         Finally, we find that, under the circumstances presented in the instant case, the trial court
erroneously applied the enhancement factor that the defendant abused a position of private trust in
the commission of the offense See Tenn. Code Ann. § 40-35-114(16) (Supp. 2002). The application
of this factor requires, first a finding that the defendant occupied a position of either public or private
trust and, second that the defendant “abused” that position in the commission of that offense. See
State v. George Dennis Fields, No. 01C01-9801-CR-00031999, 1999 WL 275157, at *5 (Tenn.
Crim. App. at Nashville, May 6, 1999). This court has previously found that a defendant who steals
from his or her employer has abused a position of private trust. See State v. Grissom, 956 S.W.2d
514, 518 n.5 (Tenn. Crim. App.1997); see also State v. Kavious L. Newsom, No. 02C01-9806- CR-
00166, 1999 WL 588155, at *5 (Tenn. Crim. App. at Jackson, Aug. 6, 1999). We decline, however,
to hold that without proof in some special continuing trust relationship between an employer and
former employee, the former employee continues to occupy a position of trust after the employment
relationship has ended. Thus, application of this enhancement factor was inappropriate in this case.



                                                   -7-
        Turning next to the applied mitigating factors, the trial court found two factors applicable to
mitigate the defendant’s sentence, (1) the defendant’s lack of substantial judgement due to his youth
and (2) his efforts to ensure that no one was seriously injured during the commission of the instant
offenses. First, we find that the record supports a finding that the defendant’s age, nineteen years
old, contributed to his lack of substantial judgement. See Tenn. Code Ann. § 40-35-113(6). Second,
the record also supports a finding that the defendant took steps to minimize the risk of injury during
the robbery. See id. § 40-35-113(13). The defendant told the police that he had committed the
robbery with the use of an unloaded shotgun and that he altered the shotgun to make it inoperable
before he discarded it. The trial court appears to have accredited this testimony, and thus we find
that the application of this mitigating factor was justified.

        The defendant argues that the trial court erroneously failed to apply several other applicable
mitigating factors to his sentence. He alleges that the trial court should have mitigated his sentence
based on (1) his claim that he committed the instant offense out of a desire to support his family, (2)
his characterization of the circumstances surrounding his crime as so unusual as to indicate that he
did not have a sustained intent to violate the law, and (3) his expressed remorse and responsibility
for the commission of these offenses. However, the defendant cites no argument in support of his
claims and has therefore waived their consideration on appeal. See Tenn. Ct. Crim. App. 10(b);
Tenn. R. App. 27(a)(7). Moreover, the evidence introduced at the sentencing hearing does not
preponderate against the trial court’s refusal to apply these factors to the defendant’s sentence. The
evidence introduced at the sentencing hearing demonstrates that the defendant was at least partially
motivated to commit these offense in order to support his illegal drug habit and that the defendant
methodically planned the commission of these crimes. Furthermore, the defendant did not make any
statements on his own behalf either at his trial, in his pre-sentence report, or at his sentencing
hearing, making it difficult for a court to determine that the defendant is indeed remorseful for his
actions. Accordingly, we find that the trial court did not err by refusing to apply these three proposed
mitigating factors to the defendant’s sentence.

       In sum, although we find that the trial court erroneously applied two enhancement factors in
sentencing the defendant, the two enhancement factors that are properly applicable to the defendant’s
sentence are on balance with the applicable mitigating factors sufficient to warrant imposition of the
sentence imposed.


                                             Conclusion

      For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE



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