                 IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE
                               February 5, 2015 Session

           STATE OF TENNESSEE v. JEROME MAURICE TEATS

             Appeal by Permission from the Court of Criminal Appeals
                       Criminal Court for Davidson County
                     No. 2009D2955 Steve R. Dozier, Judge


                 No. M2012-01232-SC-R11-CD – Filed July 14, 2015



HOLLY KIRBY, J., concurring.

       I concur in Chief Justice Lee’s well-written majority opinion in this case. Under
the law as it currently stands in Tennessee, the majority has correctly analyzed the issue
presented. I write separately to note the same concerns expressed by Justice Bivins in his
separate concurrence in our recent decision State v. Alston, namely, concerns about the
far-reaching constitutional holding in the case that gives rise to this issue, this Court’s
1991 decision State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). See State v. Alston, No.
E2012-00431-SC-R11-CD, --- S.W.3d ---, 2015 WL 2155690, at *9-10 (Tenn. May 5,
2015)(Bivins, J., concurring) (citing Anthony, 817 S.W.2d at 299).

       In Anthony, the Court held that double jeopardy analysis was “inadequate” to
address dual convictions of kidnapping and other felonies that necessarily include some
degree of detention or confinement of the victim. Anthony, 817 S.W.2d at 306. Turning
instead to the due process clause of the Tennessee Constitution, the Anthony Court
determined that, in Tennessee, due process requires more than sufficient evidence of the
elements of the crime of kidnapping. To support a conviction for kidnapping under these
circumstances, the Anthony Court decided, due process under Tennessee’s Constitution
mandates that the State also show that the “confinement, movement, or detention” was
“significant enough, in and of itself, to warrant independent prosecution” for kidnapping.
Id.

       As meticulously outlined in State v. White, 362 S.W.3d 559 (Tenn. 2012), a tangle
of cases ensued, as courts struggled to apply the holding in Anthony. White, 362 S.W.3d
at 567-70. In an attempt at disentanglement, the White Court rejected the separate
appellate due process analysis mandated in Anthony and adopted in its stead a procedure
by which the jury must be instructed that, in order to convict the defendant of kidnapping,
it must find that the removal or confinement of the victim was greater than that necessary
to commit the accompanying felony.

       Although White made procedural modifications, the core holding in Anthony
remains intact ─ for kidnapping alone, the due process clause of Tennessee’s constitution
requires the State to prove more than the statutory elements of the crime; it also requires
the State to prove that the removal or confinement of the victim was to a greater degree
than that necessary to commit the accompanying felony. Indeed, the holding in Anthony
undergirds the issue presented in this case.

       The majority in this case correctly holds that a White/Anthony jury instruction is
not required when a defendant is charged with the kidnapping and robbery of different
victims. This holding obviates the need to consider the concerns raised by Justice Bivins
in his concurrence in Alston. Addressing those concerns, then, will have to wait until
another day.



                                                 ____________________________
                                                 HOLLY KIRBY, JUSTICE




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