         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  December 19, 2006 Session

                  STATE OF TENNESSEE v. THOMAS COBURN

                     Appeal from the Criminal Court for Sullivan County
                           No. S46,918-19 R. Jerry Beck, Judge



                     No. E2005-02730-CCA-R3-CD - Filed August 9, 2007



JOSEPH M. TIPTON , J., concurring and dissenting.

       I respectfully dissent from the majority’s conclusion that the aggravated kidnapping
conviction should be reversed under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). I concur,
though, in the majority opinion’s analysis and conclusions regarding the sufficiency of the evidence
and consecutive sentencing.

         As for the aggravated kidnapping conviction, I believe the facts justify a conclusion that the
facts supporting kidnapping are not necessarily incidental to the attempted rape. As the majority
opinion acknowledges, our supreme court has stated that “it is the purpose of the removal or
confinement and not the distance or duration that supplies a necessary element of . . . kidnapping.”
State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). In this regard, I disagree with the majority
opinion’s view that the defendant’s purpose was difficult to ascertain. The jury found beyond a
reasonable doubt that the defendant attempted to rape the victim. Certainly, the defendant’s nude
state, semi-arousal, and pushing and pulling the victim constantly toward the foliage off the path
justify a finding beyond a reasonable doubt that the defendant’s intent was to take the victim out of
view in order to facilitate his raping her without detection.

       The evidence reflects that the victim was pulled off the path and restrained. The fact that she
successfully defended herself from further abduction and from rape should not change the result.

       If Anthony–Dixon requires an actual increase in the risk of harm or actual facilitation in
completion of the predicate offense, then such facts are not necessarily shown in the proof before
us. However, if such is the case, I would still view the circumstances to allow for a conviction for
attempt to commit aggravated kidnapping based upon the defendant’s intent to remove the victim
from the path into the bushes.

        Finally, as for Judge Witt’s concurring opinion relative to applying double jeopardy analysis
to the facts or otherwise allowing for the aggravated kidnapping conviction to survive as opposed
to the attempted rape conviction, I question such use given the statutes in effect today. I do not view
the dismissal of the aggravated kidnapping to be “perplexing.” If we always allowed the kidnapping
conviction to stand, then the offenses of robbery and rape would rarely result in a conviction for such
an offense. Inherent in Anthony’s analysis is a recognition that the legislature, in enacting criminal
offenses regarding rape and robbery, did not contemplate that everything that constituted a rape or
a robbery would be prosecuted as a kidnapping. The primary function of our double jeopardy
analysis is to determine legislative intent. State v. Denton, 938 S.W.2d 373, 379 (Tenn. 1996); see
State v. Thornton, 10 S.W.3d 229, 238 (Tenn. 1999). The legislature has chosen to keep the
elements of the kidnapping, rape, and robbery statutes the same since Anthony was decided,
indicating its disinclination to punish a defendant for kidnapping each time a rape or robbery is
prosecuted. I would affirm both convictions.



                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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