        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                    Assigned on Briefs at Knoxville May 21, 2013

                    STATE OF TENNESSEE v. AARON TATE

                  Appeal from the Criminal Court for Shelby County
                     No. 1007532     James M. Lammey, Judge


              No. W2012-00462-CCA-R3-CD - Filed December 18, 2013




The Defendant-Appellant, Aaron Tate, was convicted by a Shelby County jury of one count
of attempted especially aggravated robbery; one count of especially aggravated burglary; one
count of employment of a firearm during a felony offense; one count of especially aggravated
kidnapping; one count of aggravated kidnapping; two counts of aggravated assault; and one
count of facilitation to commit aggravated assault. The trial court sentenced Tate as a Range
II, multiple offender and ordered each of his sentences to be served consecutively, for an
effective sentence of one-hundred-thirty-eight years’ imprisonment. In this appeal, Tate
argues that the jury was not provided with an instruction consistent with State v. White, 362
S.W.3d 559 (Tenn. 2012); therefore, his “convictions for especially aggravated kidnapping
and aggravated kidnapping offend due process.” He further argues that the trial court
imposed an excessive sentence. Upon our review, we conclude that the absence of an
instruction pursuant to White was harmless beyond a reasonable doubt as to Tate’s
convictions for attempted especially aggravated robbery, aggravated burglary, and facilitation
of aggravated assault. However, the lack of the White instruction was reversible error as to
his convictions for aggravated assault charged in counts six and seven. Accordingly, we
reverse Tate’s kidnapping convictions charged in counts four and five and remand the matter
for a new trial as to those offenses. We modify count two and reduce the especially
aggravated burglary conviction to aggravated burglary and remand for resentencing on this
conviction. We reverse Tate’s conviction for employing a firearm during the commission
of a dangerous felony offense and remand for a new trial on count three. In all other
respects, the judgments of the trial court are affirmed.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
             Affirmed in Part and Reversed in Part; Case Remanded
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Janine N. Oleaga (on appeal), and Juni Ganguli (at trial), Memphis, Tennessee, for the
Defendant-Appellant, Aaron Tate.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Rob Ratton, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                                   OPINION

       In the early morning hours of May 26, 2010, Aaron Tate and Curtis Keller broke into
the home of Tamika Jones located at 454 South Main Extended in Collierville, Tennessee.1
Ms. Jones, her two teenage sons, J.G. and M.B.,2 and her boyfriend, Andrew Morrow, were
at home asleep. During the burglary, J.G. managed to call the police, and Tate and Keller
were apprehended while leaving the home. Based on this event, Tate was indicted for the
offenses listed in the below chart.3


               COUNT                               OFFENSE                                VICTIM

                 ONE                     attempted especially
                                         aggravated robbery by the
                                         use of a deadly weapon                      Andrew Morrow
                                         and causing serious bodily
                                         injury

                 TWO                     especially aggravated
                                         burglary of a habitation                    Andrew Morrow
                                         causing serious bodily
                                         injury


        1
         Curtis Keller, a codefendant in this case, similarly appealed his convictions stemming from these
charges. This court affirmed his convictions in part and reversed in part in State v. Curtis Keller, No.
W2012-00825-CCA-R3-CD, 2013 WL 3329032 (Tenn. Crim. App. June 27, 2013).
        2
            In an effort to protect the anonymity of minor victims, this court will refer to them by their initials
only.
        3
        Tate was also charged with being a convicted felon in possession of a handgun; however, this count
was dismissed after the trial.

                                                        -2-
           THREE                employment of a firearm
                                during a felony offense                    N/A

            FOUR                especially aggravated
                                kidnapping by use of a                    M.B.
                                deadly weapon

            FIVE                especially aggravated
                                kidnapping by use of a                Tamika Jones
                                deadly weapon

             SIX                aggravated assault by use
                                of a deadly weapon and
                                causing fear of bodily                    M.B.
                                injury

           SEVEN                aggravated assault by use
                                of a deadly weapon and                Tamika Jones
                                causing fear of bodily
                                injury

           EIGHT                aggravated assault by use
                                of a deadly weapon and              Andrew Morrow
                                causing fear of bodily
                                injury

       The following proof was presented in a joint trial.

       Officer Christopher Davidson of the Collierville Police Department responded to a
“burglary in progress call” at the victim’s house at around 3:36 a.m. His emergency
equipment was activated as he approached the area but he “turned it off and went dark before
he entered the neighborhood.” Upon arrival at the victim’s house, he observed a “dark-
colored sedan” parked on a street close to the house. He and his partner ran toward the
house, and the sedan “stopped in front of the house . . . for a moment then continued on.”
He “heard screaming and yelling coming from the front room - - glass breaking and
somebody yelling for help.” He identified photographs of the area in which the sedan was
located as well as photographs of the interior and exterior of the house.

       While Officer Davidson and his partner maintained a security position around the
exterior of the house, they heard something on the north side of the building hit the ground.
Officer Davidson said that he heard footsteps, a chain-link fence rattle, and the sound of
someone running away. As Officer Davidson entered the home from a back entryway, Curtis

                                             -3-
Keller, the codefendant, met him at the door. Keller told Officer Davidson that he was a
victim, that there were three people in the house who were trying to rob him, and that he was
terrified. Officer Davidson secured Keller, entered the home, and observed Andrew Morrow
with severe cuts and wearing a blood-soaked t-shirt. Officer Davidson then spoke with all
of the victims. Morrow identified codefendant Keller as the perpetrator of the offense, and
the other victims confirmed that there were three men who broke into their home and
attempted to “extort jewelry and money and drugs from Mr. Morrow.”

      Officer Davidson said that Detective Riley recovered a pistol magazine clip inside a
bedroom in the house. He described the interior of the house as follows:

       The back bedroom was strewn all about. There was blood all over tables.
       Tables were turned over. There was blood on comforters that were thrown
       about. There was - - pretty much the whole room was in disarray. There was
       blood on the walls.

On cross-examination, Officer Davidson confirmed that no guns were recovered from the
house or from codefendant Keller. Although he observed approximately five grams of
marijuana “scattered about” the home, he did not believe anyone was charged with this
offense. On redirect examination, Officer Davidson said that a mask and gloves were
recovered from the sofa area inside the house. He said that Jones told him that codefendant
Keller was wearing them during the burglary.

        Officer Noel Tipler of the Collierville Police Department testified that he responded
to the north side of the victim’s house on the morning of the offense. He said other officers
were on the scene prior to his arrival. As he approached the house, he heard a man and a
woman scream for help. Using a photograph, he showed the jury the north side of the
victim’s house. He stated that as he was coming through the yard, he saw two officers
attempting to take Tate into custody after he had apparently jumped out a window. He
assisted the officers and placed Tate in his patrol car. Officer Tipler identified photographs
of the area surrounding the house, including a photograph of the window Tate was exiting.
After he processed Tate at the jail, Officer Tipler returned to the scene. He said he found
“tracks leading to the side of the house . . . over a fence here.” He followed the trail to
another fence and a back road, which led him to opine that another individual may have
gotten into a car. On cross-examination, Officer Tipler affirmed that the screams from the
house occurred simultaneously with Tate’s exiting the window of the house. He further
clarified that he did not observe Tate exit the home.

       Within forty-five seconds to a minute of a “burglary in progress call,” Officer
Christopher Rossie of the Collierville Police Department responded to the victim’s house.

                                             -4-
He testified, in large part, consistently with the testimony of his partner, Officer Davidson.
In addition, he said that as he approached the house he heard a man and a woman screaming
for help. While Officer Davidson was positioned toward the back of the house, Officer
Rossie went to the front of the house. As he rounded the corner to the north side, Officer
Rossie heard a “loud noise of something hitting the side of the house” and then observed Tate
jump out a window of the house. Officer Rossie told Tate to get on the ground, and Tate
complied. Officer Rossie said that when Tate jumped out the window, he was wearing a
“bluish-colored stocking cap type - like a nylon material on his head.”

       A .45 semi-automatic Llama was recovered from the bushes underneath the window
from which Tate jumped. Officer Rossie opined that “the loud thud against the house” was
consistent with a gun hitting the house immediately before Tate jumped out the window. A
photograph of the gun in the area from which it was recovered was shown to the jury.
Officer Rossie said that the magazine clip was missing from the gun and that blood and
human hair appeared to be on the gun. Upon securing the house, Officer Rossie observed
signs of forced entry into the house including a footprint on the door leading into the house
from the carport and a broken doorframe.

       On cross-examination, Officer Rossie confirmed that no weapons were found on
codefendant Keller or inside the house. He believed that a magazine clip that was found in
a bedroom inside the house matched the gun recovered from underneath the window outside
of the house.

       Detective Michael Riley of the Collierville Police Department testified that he was
primarily responsible for collecting the evidence from the scene in this case. Detective Riley
also photographed the interior and exterior of the house. He collected a black ski mask and
a glove located on a couch inside the house, a blue “do-rag/mask, and a pair of gloves”
recovered from Tate, a magazine clip for a .45 caliber gun recovered from inside a bedroom
in the house, and a .45 caliber gun that was found outside the window from where Tate
jumped. All of these items were admitted into evidence. Detective Riley recovered a cell
phone from Tate after he was processed at the jail and determined that phone calls were made
during the instant offense. The day after the offense, Detective Riley recovered another gun,
a Caltech nine-millimeter, from the backyard of a residence near the victim’s house.

       On cross-examination, Detective Riley said that he did not perform any testing on the
glove recovered from the couch. He also said that there was no blood on the magazine clip
recovered from the bedroom inside the house.

      Officer Jason Ehrat of the Collierville Police Department responded to the victim’s
house “about five or six minutes after the call went out.” Upon arrival, he approached the

                                             -5-
north side of the house, met with other officers, and observed Tate jump out the window of
the house. He took Tate into custody, and the other officers secured the house. He said that
Tate was wearing “a mask or a hat . . . some kind of skull cap” when he jumped. Officer
Ehrat confirmed that as Tate was exiting the window he heard a loud noise that was later
identified as a gun. Officer Ehrat assisted in securing the house and observed that the victims
were very “distraught” and “shaken up.” On cross-examination, Officer Ehrat agreed that
there was nothing unusual about the hat or the single glove that was recovered from the
house. Although Officer Ehrat heard a thud noise as Tate was exiting the window, he did
not see Tate in physical possession of a gun.

       Officer William Hill of the Collierville Police Department said that he responded to
a call from the homeowner of 439 Starlight Drive, which borders the victim’s house.
Sometime after noon on the day of the offense, the homeowner of 439 Starlight was outside
cleaning his pool and found a gun in his backyard. Officer Hill identified the Caltech nine-
millimeter gun as the gun that was recovered from the homeowner’s backyard. On cross-
examination, Officer Hill agreed that there was no indication that the gun had been tested or
analyzed for fingerprints.

        Lieutenant Kenneth Rowlett of the Collierville Police Department testified and
responded to the victim’s house on the morning of the offense. He eventually handcuffed
and searched Keller, who Lieutenant Rowlett described as a large man, before taking him
into custody. Lieutenant Rowlett coordinated the effort to apprehend a potential third suspect
in the offense and contacted Detective Riley, the on-call detective for the area, to advise him
of the situation. On cross-examination, Lieutenant Rowlett agreed that Keller did not have
any blood on him when he was taken into custody.

       J.G., age seventeen, testified that at the time of the offense he lived at 454 South Main
with his younger brother, M.B., their mother, Tamika Jones, and her boyfriend, Andrew
Morrow. At around 3:00 a.m. on the morning of the offense, he was watching television and
talking on the phone. He was about to turn off the television and go to bed when he heard
a “big boom” and “footsteps running through his house.” After he heard his mother scream,
he ran to his closet and shut the door. He knew there was more than one person inside his
house based on the number of footsteps he heard. While inside the closet, he called 911. He
confirmed that the voice on the 911 tape, played for the jury and admitted into evidence, was
his.

        J.G. said that one of the burglars came into his room and kicked his door down. The
man came straight to his closet, had his hand on his gun, and told J.G. to slide across his bed.
When J.G. complied, he slid his cell phone underneath the pillow so the man would not know
that he had been on the phone. J.G. said that the man took him to his brother’s room and kept

                                              -6-
him separated from his brother and mother. He said his mother’s room was “completely
destroyed” and that the “big guy” went through her dressers.

       J.G. said that he could hear the burglars talking to someone on the phone while they
were inside his house. He could also hear his mother crying. He overheard the burglars say,
“‘They were going to kill us and leave.’” J.G. assumed that the person on the phone with the
burglars told them the police had surrounded the house because the burglars became scared
and began looking for a way to flee the house. After the burglars left, J.G. joined his mother,
brother, and Morrow outside with the police. J.G. was unable to identify which man had a
gun. He agreed, however, that the men appeared to know each other and worked “as a team”
during the burglary.

       On cross-examination, J.G. agreed that he saw only two men during the burglary. He
said that the man who came to his room had a gun but the larger man going through his
mother’s dressers did not. He agreed that this observation was omitted from his initial
statement to the police.

        Andrew Morrow, along with his girlfriend and her two teenage sons, lived at 454
South Main Extended on the morning of the offense. He testified that he had just fallen
asleep and heard a loud boom. He dismissed the noise, reasoning that the boys were playing
or wrestling. When he turned over in his bed, a man was holding a gun in his face. His
girlfriend repeatedly screamed, “What’s going on . . . we ain’t got nothing – we ain’t got no
money – we work every day.” The man then started beating Morrow with the gun. Morrow
said that the man beating him was wearing all black and that all of the men in the house wore
ski masks. His girlfriend screamed “‘You want some jewelry?” and the man replied,
“‘Yeah.’” The man continued to beat Morrow about the head. Morrow eventually grabbed
the gun and struggled with him over it.

        Morrow said that he “busted the window trying to yell for help.” However, he was
unable to scream loudly because blood was running down his eyes, throat, and ears. His
girlfriend was screaming because one of the burglars said, “‘Do you see what you’re fixin’
to make me do?” while holding a gun on her younger son, M.B. At this point, Morrow began
to pray. He testified that, “all of a sudden when I prayed . . . I heard a knock - said,
‘Collierville police.’ I said, ‘Thank God.’” Morrow followed the men and tried to hold one
of the men as they attempted to flee from the police. He identified Keller at trial as the larger
man who burglarized his home armed with a gun. He said there were three men working in
concert during the burglary of his home and that each one of them had a gun. He said he saw
Keller’s face, but the other men wore ski masks, even after they were arrested by the police.
He said the ski mask recovered from his couch did not belong to him. He said he heard
Keller on the telephone during the burglary, but he could not hear what was said.

                                               -7-
        Morrow said he suffered at least ten blows to his head during the burglary. As a
result, he was taken to the hospital and received forty-two stitches and sixteen staples. He
said he still had scars from the beating he endured during the offense, which he displayed to
the jury. He described his pain as “a hell of a pain I ever had in my life.” He denied inviting
the burglars into his home. Asked what the men attempted to take from him, Morrow said

                I didn’t have nothin’ - - they were asking for money, but I ain’t have no
       money. You know. I work everyday. You know, I pay – lottery scratch off
       and everything, but I don’t have nothin – I’m just a poor man trying to make
       it like everybody else.

        On cross-examination, Morrow conceded that he smoked marijuana or “weed” and
had “one shot” of vodka before he went to bed that night. He affirmed that Keller had a gun
and cell phone, but he could not remember in which hand Keller held the gun. He also
clarified that Keller was not the man who beat him during the offense. He described the man
who beat him as “the skinny tall guy.” He said he did not know the men who broke into his
house.

        M.B., age sixteen, testified that on the morning of the offense he lived at 454 South
Main Extended with his brother, mother, and her boyfriend. He was watching television
around 3:00 a.m., and his mother told him to go to bed. He went to his room, turned on the
radio, and was almost asleep when he heard a “big boom.” He stated that three people with
guns came into his house. He referred to the man who came into his room as the “skinny
one,” who was wearing a blue mask. This man came into his room and told him to get up.
He showed the man around his house and was then told to “‘[l]ay down on the ground’” in
his mother’s room. His mother was screaming in a corner in the room, and the men were
beating Morrow. The “big dude” said, “‘Get [Jones] quiet[,]’” and his mother managed to
make her way to M.B. The men threw a sheet over M.B. and his mother, and the skinny man
put his foot on M.B.’s back.

        M.B. and his mother tried to escape from her bedroom but were stopped by the larger
man, who forced them back into the bedroom at gunpoint. M.B. said his mother was
screaming for his brother, and the men went to his brother’s room. M.B. saw his brother’s
feet as the men led his brother to another room. At one point, the skinny man told M.B. to
“get up [and] put the gun to [M.B.’s] head.” Although it appeared to M.B. that the larger
man was in control during the burglary, he testified that the skinny man said, “‘Look at this
little boy. Do you see him? If you don’t give me the stuff, we’re going to kill him.’” Asked
if he felt he was being used as bait or held as a hostage, M.B. replied, “Yes, sir.” He also
testified that all three men inside his house had guns. During the burglary, M.B. was afraid
and feared for his life.

                                              -8-
       Tamika Jones testified that on the morning of the offense she lived at 454 South Main
Extended in Collierville, Tennessee. Her testimony was consistent, in large part, with the
testimonies of her two sons, J.G. and M.B., and her boyfriend, Andrew Morrow. In addition,
she said that when the men entered her house they repeatedly asked, “Where its [sic] at?”
She identified Keller at trial as the larger man who burglarized their home on the night of the
offense. She explained that she was able to see Keller’s face during the burglary because he
took off his mask and threw it on the couch before he walked out the door.

        Codefendant Curtis Keller, a Memphis native, testified on his own behalf. After his
family business closed, Keller moved to Dallas, Texas and engaged in drug trafficking. He
said that he sold marijuana throughout Dallas, Nashville, Jackson, Grand Junction, and
Memphis. He met Andrew Morrow through a friend “about seven or eight months” prior to
the instant offense. He sold large quantities of marijuana to Morrow for the purpose of resale
“numbers of times.” Keller explained that he would sell Morrow a pound of marijuana for
$700, and Morrow would resell it for $850 to $900. Keller said that on May 23, 2010, he met
with Morrow because Morrow wanted to purchase fifteen pounds of marijuana. Keller
agreed to sell Morrow the marijuana and allowed Morrow to pay him for the purchase a few
days later, as he had done in the past.

       According to Keller, some time after the purchase, Morrow claimed that he could not
repay Keller because someone had stolen the money and the drugs. Keller determined that
this was not true and that Morrow had lost the money gambling at a crap house. When Keller
attempted to talk to Morrow about it, Morrow slammed the door in his face. Keller knew that
Morrow lived with his girlfriend but did not know that children lived with him. Keller said
that he returned to Morrow’s house with two friends. When no one came to the door, they
“bust[ed] the door open and went in.” Keller said he “just wanted to get [his] money so [he]
could leave and go on back to Dallas, Texas, because, you know, [he] owed people.”

      Keller testified that he went into the room where Morrow and his girlfriend were in
bed. He said that no children were in the room. Keller demanded his money, and Ms. Jones
began to scream about her children. Keller insisted that he was only attempting to get the
money and drugs owed to him and said,

       [I]f she weren’t screaming and hollering to go get her kid - - you know that’s
       how the boy were able to call 911. It weren’t no intention about no kid - - Ms.
       Tamika Jones or nothing. Our basis was Andrew Morrow. Those kids didn’t
       owe me nothin’. I didn’t know they was in the house. . . . If Andrew Morrow
       wouldn’t have tried to grab the gun, he wouldn’t have been bust open or none
       of that.

                                              -9-
        Keller claimed that he only had his cell phone inside the house and not a gun. He did
not see one of the teenage boys being brought into the bedroom by someone else and said that
all four victims were ultimately in the corner in the same bedroom. He agreed that as he was
on his cell phone during the offense, the police responded to the house. He also agreed that
he let the other two men know that the house was surrounded by the police. He was wearing
a black ski mask and one glove during the offense, which he took off and laid on the couch
prior to leaving the house. Finally, he agreed that he met the police when he exited the house
and told them that he had been robbed because he had not been given his drugs or money.

      On cross-examination, Keller agreed that Tate and another individual named “Little
Ronnie” were the two men with him during the offense.

       Based on the above proof, the jury convicted Tate of attempted especially aggravated
robbery, especially aggravated burglary, employing a firearm during the commission of a
felony, especially aggravated kidnapping, aggravated kidnapping, two counts of aggravated
assault, and facilitation of aggravated assault.

        Sentencing Hearing. At the January 17, 2012 sentencing hearing, the trial court
reviewed Tate’s presentence report and determined that he was a Range II, multiple offender.
The presentence report reflected that Tate had a prior conviction for kidnapping and for
robbery, both Class C felonies. He also had three prior convictions for simple possession
of a controlled substance. See T.C.A. § 39-17-418 (2006). Although simple possession is
normally a Class A misdemeanor, the third offense under this section is a Class E felony.
See id.

        The trial court found the following six enhancement factors applicable to all eight of
Tate’s convictions: that he had a previous criminal history, in addition to that necessary to
establish the appropriate range, T.C.A. § 40-35-114(1); that he was a leader in the
commission of the offense with two or more criminal actors, id. § 40-35-114(2); that the
offense involved more than one victim, id. § 40-35-114(3); that he treated, or allowed a
victim to be treated, with exceptional cruelty, id. § 40-35-114(5); that he previously failed
to comply with the conditions of a sentence involving release into the community, id. §
40-35-114(8); and that he had no hesitation about committing a crime when the risk to human
life was high, id. § 40-35-114(10). The court placed “great weight” in enhancement factor
(1). In addition, the trial court applied enhancement factor (9), that Tate possessed a deadly
weapon during the commission of the offense, to his conviction for especially aggravated
burglary under count two. Id. § 40-35-114(9). The trial court did not find any applicable
mitigating factors under Tennessee Code Annotated section 40-35-113.




                                             -10-
        For his prior convictions for kidnapping and robbery, Tate had received a three-year
sentence of probation. The trial court found that Tate previously violated the conditions of
this probation and made the following observation:

        He was given an opportunity, at that point, to straighten his life out. It’s rather
        troubling to note that he got probation on that, and he squandered that
        probation by going above and beyond those facts and having a home-invasion
        robbery. So, that shows me he’s a danger to society - definitely. But he’s
        learned nothing from that situation.

In regard to the case sub judice, the trial court stated:

        I remember, very well, the testimony of the young man who was in the closet.
        If there ever was a time in a person’s life when they were frightened, almost
        to death, it was at that point. And to think that if he hadn’t had the thought -
        the forethought or the where-with-all to jump in the closet with his cell phone
        and call the police, they may not be here. That’s how dangerous I think Mr.
        Tate is because, see, he got caught the last time he committed a robbery and
        a [kidnapping]. And, so, in this case, I doubt very seriously that these people
        in this house would have survived based upon what I saw from this proof.

        After considering the applicable sentence range for each of Tate’s eight convictions,
the trial court imposed the maximum sentence within each range.4 The court found Tate to
be a “dangerous offender” under Tennessee Code Annotated section 40-35-115(b)(4) and
ordered his sentences to be served consecutively for a total effective sentence of one-
hundred-thirty-eight years’ imprisonment. After the denial of his motion for new trial, Tate
filed a timely notice of appeal.

                                              ANALYSIS




        4
          For count one, Tate was convicted of attempted especially aggravated robbery (against Andrew
Morrow) and received a twenty-year sentence. For count two, he was convicted of especially aggravated
burglary (against Andrew Morrow) and received a twenty-year sentence. For count three, he was convicted
of employment of a firearm during a felony offense and received a ten-year sentence. For count four, he was
convicted of especially aggravated kidnapping (against M.B.) and received a forty-year sentence. For count
five, he was convicted of aggravated kidnapping (against Tamika Jones) and received a twenty-year sentence.
For counts six and seven, he was convicted of aggravated assault (against M.B. and Tamika Jones) and
received a ten-year sentence on each count. For count eight, he was convicted of facilitation to commit
aggravated assault (against Andrew Morrow) and received an eight-year sentence.

                                                   -11-
       I. White Instruction. Based on State v. White, 362 S.W.3d 559 (2012), Tate
contends that his “convictions for especially aggravated kidnapping and aggravated
kidnapping offend due process because the conduct forming the bases of these convictions
was ‘essentially incidental’ to the conduct forming the bases for his especially aggravated
burglary conviction, attempted especially aggravated robbery and aggravated assault
convictions.” In response, the State contends that “the trial court’s failure to define
‘substantial interference with the victim’s liberty’ in the jury instructions for especially
aggravated kidnapping and aggravated kidnapping” was harmless beyond a reasonable doubt.
Upon our review, we agree with the State that the omission of the requisite White instruction
was harmless error as the convictions for aggravated burglary, attempted especially
aggravated robbery, and facilitation to commit aggravated assault (against Morrow).
However, we disagree that the error was harmless beyond a reasonable doubt as to the
aggravated assaults charged in counts six and seven (against M.B. and Jones).



       Prior to State v. White, this court conducted an appellate due process review when a
defendant challenged dual convictions involving a form of kidnapping and a separate felony
offense. This due process analysis developed over time in cases such as State v. Anthony,
817 S.W.2d 299 (Tenn. 1991), State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), and its
progeny. See, e.g., State v. Cozart, 54 S.W.3d 242 (Tenn. 2001), State v. Fuller, 172 S.W.3d
533 (Tenn. 2005), and State v. Richardson, 251 S.W.3d 438 (Tenn. 2008). In White, the
supreme court expressly overruled this separate due process analysis conducted by the
appellate courts. See White, 362 S.W.3d at 578. The court concluded that the Tennessee
kidnapping statutes were not meant to apply to a removal or confinement of a victim that was
“essentially incidental” to the accompanying felony and that this inquiry was a factual
question for a properly instructed jury to resolve. Id. at 576-78. This is because the
“essentially incidental” language in Anthony, which previously informed appellate due
process review, was now deemed a part of a material element of kidnapping. Id. at 578
(“[W]e are merely providing definition for the element of the offense requiring that the
removal or confinement constitute a substantial interference with the victim’s liberty.”).
Accordingly, to protect the defendant’s due process rights, trial courts must instruct juries to
determine “whether the removal or confinement is, in essence, incidental to the
accompanying felony or, in the alternative, is significant enough, standing alone, to support
a conviction.” Id. at 578.



    Based on the court’s holding in White, the Tennessee Pattern Jury Instruction
Committee adopted the following jury instruction to guide the trial courts:



                                              -12-
       To find the defendant guilty of [the charged kidnapping offense], you must
       also find beyond a reasonable doubt that the removal or confinement was to a
       greater degree than that necessary to commit the offense(s) of _________ as
       charged [or included] in count(s) _________. In making this determination,
       you may consider all the relevant facts and circumstances of the case,
       including, but not limited to, the following factors:

       (a) the nature and duration of the alleged victim’s removal or confinement by
       the defendant;

       (b) whether the removal or confinement occurred during the commission of the
       separate offense;

       (c) whether the interference with the alleged victim’s liberty was inherent in
       the nature of the separate offense;

       (d) whether the removal or confinement prevented the alleged victim from
       summoning assistance, although the defendant need not have succeeded in
       preventing the alleged victim from doing so;

       (e) whether the removal or confinement reduced the defendant’s risk of
       detection, although the defendant need not have succeeded in this objective;
       and

       (f) whether the removal or confinement created a significant danger or
       increased the alleged victim’s risk of harm independent of that posed by the
       separate offense.

       Unless you find beyond a reasonable doubt that the alleged victim’s removal
       or confinement exceeded that which was necessary to accomplish the alleged
       _________ and was not essentially incidental to it, you must find the defendant
       not guilty of [the charged kidnapping offense].

7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 8.01-.03, 8.05 (footnotes omitted) (citing White,
362 S.W.3d at 576-81).



        A year and a half after its ruling in White, the supreme court provided further
guidance regarding appellate review of dual convictions of kidnapping and other felony
offenses in State v. Cecil, ___ S.W.3d ___, No. M2011-01210-SC-R11-CD, 2013 WL
4046608 (Tenn. Aug. 12, 2013). The court made it clear that the principles in White applied
to all pending appellate actions as of the date of the White decision and to all actions arising
thereafter. Cecil, ___ S.W.3d ___, at *8. Having clarified the scope of application of the

                                              -13-
White ruling, the court concluded that the absence of a specific jury instruction as required
under White constitutes error. Id. at *9. Moreover, “‘[t]he failure to instruct the jury on a
material element of an offense is a constitutional error subject to harmless error analysis.’”
Id. at *10 (quoting State v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005)). “The existence of
a non-structural constitutional error requires reversal unless the State demonstrates beyond
a reasonable doubt that the error is harmless.” State v. Rodriguez, 254 S.W.3d 361, 371
(Tenn. 2008). To determine if an error is harmless, the reviewing court must consider
“‘whether it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Id. (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn.
2002)). The court in Cecil emphasized that “the touchstone of this inquiry is whether a
rational trier of fact could interpret the proof at trial in different ways.” Cecil, ___ S.W.3d
___, at *10 (citing White, 362 S.W.3d at 579).



        In the absence of the required White instruction, the resulting kidnapping conviction
must be reversed and remanded for a new trial where the evidence was subject to differing
interpretations and the proper jury instructions could have changed the outcome of the trial.
See, e.g., State v. Reginald W. Davis, No. M2011-02075-CCA-R3-CD, 2012 WL 5947439,
at *6 (Tenn. Crim. App. Nov. 16, 2012) and State v. Bobby A. Raymer, No.
M2011-00995-CCA-R3-CD, 2012 WL 4841544, at *7 (Tenn. Crim. App. Oct. 10, 2012).
However, the omission of the White instruction does not require reversal where the record
supports a finding that the error was harmless beyond a reasonable doubt. Cecil, ___ S.W.3d
___, at *10 (citing as examples State v. Curtis Keller, No. W2012-00825-CCA-R3-CD, 2013
WL 3329032 (Tenn. Crim. App. June 27, 2013) and State v. Jonathan Kyle Hulse, No.
E2011-01292-CCA-R3-CD, 2013 WL 1136528 (Tenn. Crim. App. Mar. 19, 2013)).
Therefore, a reviewing court should determine from the record whether the proof is
unequivocal that the victim’s removal or confinement was not essentially incidental to the
accompanying offense and that the jury’s verdict would have been the same if it had been
properly instructed. Cecil, ___ S.W.3d ___, at *12.



       Here, Tate’s trial occurred in October 2011, prior to the supreme court’s decision in
White. Consequently, the trial court did not require the jury to determine whether the
victims’ removal or confinement was incidental to the accompanying felonies or, in the
alternative, were significant enough to stand alone. White, at 577. Because Tate’s appeal
was in the appellate pipeline at the time of the White decision, we must now determine
whether, beyond a reasonable doubt, the jury’s verdict would have been the same had it been
provided with the instruction pursuant to White.



                                             -14-
       Tate maintains that the confinement of Ms. Jones and her son, M.B., was not beyond
that necessary to commit the underlying felony offenses of especially aggravated burglary,
attempted especially aggravated robbery, and the aggravated assaults. For the reasons that
follow, we conclude that due process concerns are not implicated in dual convictions for
aggravated burglary and kidnapping; thus, no jury instruction pursuant to White was
required. We also conclude that the proof is unequivocal that the victims’ removal or
confinement had criminal significance above and beyond that necessary to consummate the
attempted especially aggravated robbery. With respect to the aggravated assaults against
M.B. and Jones as charged in counts six and seven, we are unable to conclude beyond a
reasonable doubt that the jury’s verdict would have been the same if it had been properly
instructed regarding the charges for kidnapping and for aggravated assault against M.B. and
Jones. We will address each of the accompanying felony offenses in turn.

        Here, Tate was indicted, and convicted as charged, for especially aggravated burglary
with intent to commit theft against Andrew Morrow. See id. § 39-14-404 (2010). We have
reduced Tate’s conviction from especially aggravated burglary to aggravated burglary, which
we discuss in further detail later in this opinion. Although Tate argues that dual convictions
for aggravated burglary and kidnapping violate due process, this Court has previously
declined to extend the due process analysis adopted in Anthony to property related offenses
such as burglary. See State v. Larry Jereller Alston, et. al., No. E2012-00431-CCA-R3-CD,
2013 WL 2382589, at * 11 (Tenn. Crim. App. Feb. 27, 2013) (collecting cases) (noting that
“[u]nlike the ‘modern, broadly-drawn kidnapping statutes’ at issue in Anthony, there is no
danger that the offenses of aggravated burglary or aggravated robbery “could literally
overrun several other crimes”). In Anthony, the Supreme Court was concerned that proving
one felony, the armed robbery, inherently and necessarily proved the elements of the second
felony, kidnapping. Anthony, 817 S.W.2d at 303. However, where the offenses of
conviction are narrowly defined by statute and require proof of different elements, as in this
case, there is no due process violation. See State v. Ralph, 6 S.W.3d 251, 256 (Tenn. 1999);
State v. Cowan, 46 S.W.3d 227, 235 (Tenn. Crim. App. Oct. 27, 2000). Accordingly,
because the proof supporting the aggravated burglary in this case did not inherently involve
unlawful confinement of the victim, we conclude that the kidnapping offense was not
essentially incidental to the burglary offense. See State v. Zonge, 973 S.W.2d 250, 253
(Tenn. Crim. App. Oct. 9, 1997) (citing State v. Oller, 851 S.W.2d 841, 842-43 (Tenn. Crim.
App.1992)). As the rationale in Anthony is inapplicable, no instruction pursuant to White
was required. Tate is not entitled to relief on this issue.



       Next, in the absence of the White instruction, we are required to determine whether
the proof is unequivocal that the removal or confinement of Jones and M.B. was significant
enough to support separate kidnapping convictions along with the conviction for the

                                             -15-
attempted robbery of Morrow. Robbery “is the intentional or knowing theft of property from
the person or another by violence or putting the person in fear.” T.C.A. § 39-13-401(a)
(2010). Especially aggravated robbery is a robbery that is “[a]ccomplished with a deadly
weapon; and . . . [w]here the victim suffers serious bodily injury.” T.C.A. § 39-13-403(a)
(2010). Criminal attempt requires that the defendant intentionally take a “substantial step”
toward committing the underlying offense. See, e.g., State v. Dickson, ___ S.W.3d ___, No.
E2010-01781-SC-R11-CD, 2013 WL 5530670 (Tenn. Oct. 8, 2013) (holding that an
accomplice took substantial step toward committing first degree murder to constitute criminal
attempt); see also T.C.A. § 39-12-101(a) (2010). This court has previously held that a
defendant’s conduct in approaching a victim and pointing a gun at his head constituted a
substantial step toward the commission of especially aggravated robbery. See State v.
Webster, 81 S.W.3d 244 (Tenn. Crim. App. 2002), perm. app. denied (Tenn. July 1, 2002).



        The record shows that the confinement of Jones and M.B. was greater than necessary
to accomplish the attempted robbery of Morrow, especially in light of the fact that when they
attempted to escape the bedroom, they were forced at gunpoint to return and remain there.
Previously, this court has considered the lack of a White instruction to be harmless error and
has affirmed kidnapping convictions in instances where the victim was prevented from
escaping. See, e.g., Jonathan Kyle Hulse, 2013 WL 1136528 (affirming a conviction for
especially aggravated kidnapping under harmless error review where the defendant raped the
victim indoors, then chased the victim with a boxcutter after she fled outside, grabbed her
by the ankles, dragged her along the sidewalk, and prevented her from summoning help);
State v. Rochelle Bush, No. W2011-02721-CCA-R3-CD, 2013 WL 1197859, at *4 (Tenn.
Crim. App. Mar. 25, 2013) (affirming the defendant’s conviction for especially aggravated
kidnapping committed during an aggravated robbery where the pregnant victim was
prevented from leaving and the defendant held a knife to the victim’s stomach and threatened
to kill her even after all the money was stolen), perm. app. denied (Tenn. Sept. 18, 2013).
In addition to preventing M.B. and Jones from escaping, the perpetrators placed a gun to the
teenage victim’s head as they demanded money and drugs from Morrow. The threat to kill
M.B. increased the potential harm to him beyond that necessary to commit the attempted
especially aggravated robbery of Morrow.5 When the perpetrators entered the home, one of
the men went to M.B.’s room and forced M.B. to show him around the house. After


        5
         The fact that Morrow was the victim named in the attempted especially aggravated robbery
indictment and Jones and M.B. were named as victims in the kidnapping-related indictments is of no
consequence to our analysis because they were all subject to the same criminal episode. See, e.g., State v.
Anthony, (dismissing six counts of aggravated kidnapping in multi-victim case in which a different victim
was named in the count of aggravated robbery), overruled on other grounds by State v. White, 362 S.W.3d
559 (Tenn. 2012).

                                                   -16-
complying, M.B. was forced to lie on the floor in his mother’s room, and one of the men put
his foot on M.B.’s back and threw a sheet over M.B. and his mother. The perpetrators
ransacked the victims’ bedroom and repeatedly stated, “Where its [sic] at?” While one of
the perpetrators was engaged in a struggle over the gun with Morrow, Jones and M.B. tried
to flee from the bedroom. However, another perpetrator thwarted their attempt and forced
them back into the room at gunpoint. When the perpetrators’ demands were not met, one of
the men held a gun to M.B.’s head and said, “‘Look at this little boy. Do you see him? If
you don’t give me the stuff, we’re going to kill him.’” Codefendant Keller testified at trial
that Morrow was the target and that “[i]t weren’t no intention about no kid - - Ms. Tamika
Jones or nothing.” The confinement of M.B. and Jones was extended in duration and they
were prevented from escaping and summoning assistance. Such interference with their
liberty was not inherent in the nature of the separate offense of attempted robbery.
Consequently, no rational trier of fact could conclude from the proof that the removal or
confinement of M.B. and Jones was essentially incidental to the attempted robbery. M.B.
and his mother were clearly held as hostages until the perpetrators’ efforts to get money were
thwarted by the police. As such, the victims’ confinement far exceeded that necessary to
accomplish the attempted robbery.

        The circumstances supporting the dual convictions for kidnapping and for aggravated
assault against both M.B. and Jones are less clear. As charged in the indictment in counts
six and seven against M.B. and Tamika Jones, a person commits aggravated assault when he
or she “[u]ses or displays a deadly weapon” and “[i]ntentionally or knowingly causes another
to reasonably fear imminent bodily injury.” T.C.A. §§ 39-13-101, -102 (2010). As charged
in counts four and five against M.B. and Tamika Jones, a person commits especially
aggravated kidnapping when he or she “knowingly removes or confines another unlawfully
so as to interfere substantially with the other’s liberty” and accomplishes such act “with a
deadly weapon[.]” See T.C.A. §§ 39-13-302, -305(a)(1) (2010). The jury convicted Tate of
the aggravated assaults as charged. Tate was also convicted of the especially aggravated
kidnapping of M.B. and of the lesser-included offense of aggravated kidnapping of Tamika
Jones. Because the convictions in counts four through seven arise from the same set of
circumstances, that Tate threatened the safety of M.B. and Jones with a gun, the jury may
have reached a different conclusion if it had been adequately instructed. Based on the record,
a reasonable jury could find that Tate only intended to assault M.B. and Jones, and that any
removal or confinement of the victims was incidental to the assaults. However, the record
also supports a finding that the removal or confinement of the teenage victim and his mother
had criminal significance beyond that necessary to accomplish the assaults against them. We
conclude that the omission of the White instruction was reversible error because the jury’s
verdict could have been different if it had been properly instructed regarding the charges for
kidnapping and for aggravated assaults against M.B. and Tamika Jones. See State v.
Rodriguez, 254 S.W.3d at 371. Accordingly, to protect Tate’s due process rights, we reverse


                                             -17-
the kidnapping convictions charged under counts four and five and remand the matter for a
new trial on those counts.



        As to Tate’s conviction under count eight for facilitation of aggravated assault against
Andrew Morrow, we conclude that the proof is unequivocal that any movement or
confinement of M.B. and Tamika Jones was not essentially incidental to the accompanying
assault against Morrow. No rational trier of fact could interpret any removal or confinement
of M.B. and Jones to be accomplished in furtherance of the assault against Morrow.
Therefore, the omission of the White instruction was harmless beyond a reasonable doubt as
to the conviction under count eight.



        Accordingly, we conclude that there was unequivocal proof that the victims’ removal
or confinement was not essentially incidental to the facilitation of aggravated assault,
attempted especially aggravated robbery, or the aggravated burglary. Because the jury’s
verdict would have been the same if it had been properly instructed on those counts, the
omission of the White instruction was harmless beyond a reasonable doubt. However, Tate
is entitled to relief on the issue of the dual convictions for kidnapping and for aggravated
assault against M.B. and Jones because the proof supporting those convictions was subject
to different interpretations and the instructional error was not harmless.



       We are compelled to address two issues which were observed as plain error by this
court in State v. Curtis Keller, No. W2012-00825-CCA-R3-CD, 2013 WL 3329032 (Tenn.
Crim. App. June 27, 2013) (wherein State conceded plain error regarding trial court’s failure
to properly instruct jury on the charge of employing a firearm during the commission of a
felony and finding dual convictions of especially aggravated burglary and attempted
especially aggravated robbery violated Tennessee Code Annotated section 39-14-404(d)).
In Curtis Keller, a case in which Tate’s codefendant appealed his convictions stemming from
the same trial, this court addressed whether the trial court properly instructed the jury on the
charge of employing a firearm during the commission of a dangerous felony and whether
Keller’s dual convictions for especially aggravated burglary and attempted especially
aggravated robbery violated Tennessee Code Annotated section 39-14-404(d). Upon our
review, we likewise perceive plain error on this record. For the reasons outlined below, we
reverse Tate’s conviction for employing a firearm during the commission of a dangerous
felony in count three and reduce his conviction of especially aggravated burglary to
aggravated burglary in count two.



                                              -18-
        Neither of the above claims was included in Tate’s motion for new trial or his brief
to this court. These issues are therefore waived. See Tenn. R. App. P. 3(e) (“[N]o issue
presented for review shall be predicated upon error . . . unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as waived.”). This
court may review an issue that has been waived and conclude that “plain error” exists if: (1)
the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule
of law was breached; (3) a substantial right of the accused was adversely affected; (4) the
accused did not waive the issue for tactical reasons; and (5) consideration of the error is
necessary to do substantial justice. See State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). All
five factors must be established by the record before a court will find plain error. Id. at 283.



        As in Curtis Keller, the record reflects that count three of the indictment charging
employing a firearm during the commission of a dangerous offense did not specify which of
the several possible felonies allegedly committed by Tate had given rise to the offense.
While the trial court narrowed the potential felonies that qualified as a “dangerous felony”
to especially aggravated kidnapping, aggravated kidnapping, especially aggravated burglary,
and aggravated burglary, it failed to specify which of those four felonies was intended as the
predicate crime. This is problematic because a person may not be charged with employing
a firearm during the commission of a dangerous offense “if possessing or employing a
firearm is an essential element of the underlying dangerous felony as charged[,]” T.C.A. §
39-17-1324(c) (2010), and the indictment charging Tate with especially aggravated
kidnapping includes the use of a deadly weapon as an essential element of the offense.
Accordingly, the State’s failure to elect and the trial court’s failure to specify to the jury
which felony served as the predicate to Tate’s conviction in count three may have resulted
in his conviction based on an invalid predicate felony.



        Under the above limited circumstances, this court has deemed consideration of a
defendant’s otherwise waived instructional error necessary to do substantial justice. State
v. Trutonio Yancey and Bernard McThune, No. W2011-01543-CCA-R3-CD, 2012 WL
4057369, at *9 (Tenn. Crim. App. Sept.17, 2012) (holding that trial court committed plain
error in not requiring the State to elect which felony it relied on to support charge of
employing a firearm during a dangerous felony and observing that “in cases in which ‘there
is technically one offense, but evidence of multiple acts which would constitute the offense,
a defendant is still entitled to the protection of unanimity[.]’”) (quoting State v. Forbes, 918
S.W.2d 431, 446 (Tenn. Crim. App.1995)); State v. Jeremiah Dawson, No. W2010-02621-
CCA-R3-CD, 2012 WL 1572214, at *8 (Tenn. Crim. App. May 2, 2012) (holding that the

                                              -19-
State is required to elect when multiple dangerous felonies are alleged in indictment for
violation of Code section 39-17-1324), perm. app. denied (Tenn. Sept. 20, 2012); State v.
Michael L. Powell and Randall S. Horne, No. E2011-00155-CCA-R3-CD, 2012 WL
1655279, at *14 (Tenn. Crim. App. May 10, 2012) (same). Accordingly, Tate’s conviction
for employing a firearm during the commission of a dangerous felony is reversed and count
three is remanded for new trial. Upon retrial, the only dangerous felony that may be
considered by the jury is the aggravated burglary, which we address below.



         Tate was convicted of especially aggravated burglary and attempted especially
aggravated robbery. Tennessee Code Annotated section 39-14-404(d) states that “[a]cts
which constitute an offense under [the especially aggravated burglary statute] may be
prosecuted under this section or any other applicable section, but not both.” T.C.A. § 39-14-
404(d) (2010). “Subsection (d) prohibits using the same act to prosecute for especially
aggravated burglary and another offense.” State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim.
App. 1993) (holding that T.C.A. § 39-14-404(d) precluded convictions for both especially
aggravated burglary and aggravated rape when serious bodily injury was an element of both
offenses); see also State v. Michael Dean Marlin, No. M2011-00125-CCA-R3-CD, 2011 WL
5825778, at *14 (Tenn. Crim. App. Nov.17, 2011) (holding that the “effect of subsection (d)
is that the Defendant cannot be convicted of especially aggravated burglary and aggravated
robbery when the serious bodily injury of [the victim] was an element of both offenses”).
The appropriate remedy for improper dual convictions under Tennessee Code Annotated
section 39-14-404(d) and other applicable sections is to modify the especially aggravated
burglary conviction to aggravated burglary. See Holland, 860 S.W.2d at 60.



       The record shows that serious bodily injury of Morrow was an element of especially
aggravated burglary and attempted especially aggravated robbery. Thus, Tate’s dual
convictions for these offenses are precluded under section 39-14-404(d). See State v. Shanda
Alene Wright, No. M2006-02343-CCA-R3-CD, 2008 WL 371258, at *7 (Tenn. Crim. App.
Feb. 11, 2008) (holding that Tennessee Code Annotated section 39-14-404(d) precluded
convictions for both especially aggravated burglary and especially aggravated robbery when
serious bodily injury was an element of both offenses), perm. app. denied (Tenn. Oct. 27,
2008). Accordingly, we modify Tate’s convictions for especially aggravated burglary to
aggravated burglary, and we remand for resentencing on the aggravated burglary conviction.
See id.; T.C.A. § 39-14-403.




                                            -20-
       II. Sentencing. Tate contends that the trial court erred in imposing excessive
sentences for each of his convictions and erred in ordering that his sentences be served
consecutively. In response, the State argues that the record supports the sentence in this case.
We agree with the State.



       We review the length and manner of service of a sentence imposed by the trial court
under an abuse of discretion standard with a presumption of reasonableness. State v. Bise,
380 S.W.3d 682, 708 (Tenn. 2012). Furthermore, the misapplication of enhancement or
mitigating factors does not invalidate the imposed sentence “unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as there are other
reasons consistent with the purposes and principles of sentencing, as provided by statute, a
sentence imposed by the trial court within the appropriate range should be upheld.” Id. This
standard of review also applies to “questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).



       In Bise, the record reflected that the defendant participated in a burglary where no
weapons were involved and the victim was not at home. Both tiers of our appellate courts
agreed that the trial court erroneously applied the enhancement factor that the defendant had
no hesitation about committing a crime when the risk to human life was high. See Bise, 380
S.W.3d at 708 (observing “that the Court of Criminal Appeals properly ruled that the
evidence does not support the single enhancement factor applied by the trial court”).
However, the supreme court reversed this court’s downward adjustment of the defendant’s
sentence, holding that the record otherwise supported the trial court’s imposed sentence.
Morever, the supreme court in State v. Carter previously held that the appellate courts are
bound to a trial court’s imposition of a within-range sentence that is otherwise consistent
with the purposes and principles of the Sentencing Act, even if we would have preferred a
different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008) (reinstating the trial
court’s imposition of a minimum sentence despite expressing discomfort with the decision).


       Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the
following when determining a defendant’s specific sentence:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

                                              -21-
       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40–35–113 and 40–35–114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (2010); Carter, 254 S.W.3d at 343. The burden is on the appellant
to demonstrate the impropriety of his sentence. See T.C.A. § 40-35-401, Sentencing
Comm’n Cmts.

       Here, Tate was convicted of attempted especially aggravated robbery, a Class B
felony. See T.C.A. §§ 39-13-403, -12-107(a). As a Range II, multiple offender, he was
subject to a sentence ranging between twelve and twenty years. See id. § 40-35-112(b)(2).
As previously noted, we have reduced the especially aggravated burglary conviction in count
two to aggravated burglary, a Class C felony, and we remand that particular conviction for
resentencing. On remand, Tate is subject to a sentence between six and ten years as a Range
II, multiple offender for the aggravated burglary conviction. See id. §§ 39-14-403,
40-35-112(b)(3). For his conviction of especially aggravated kidnapping, a Class A felony,
Tate was subject to a sentence ranging between twenty-five and forty years. See id. §§
39-13-305(b)(1), 40-35-112(b)(1). His conviction for aggravated kidnapping, a Class B
felony, was subject to a sentence between twelve and twenty years. See id. §§
39-13-304(b)(1), 40-35-112(b)(2). For the two counts of aggravated assault, Class C
felonies, Tate was subject to sentences between six and ten years. See id. §§
39-13-102(e)(1), 40-35-112(b)(3). For the facilitation to commit aggravated assault, a Class
D felony, Tate was subject to a sentence ranging between four and eight years. See id. §§
39-11-403, 40-35-112(b)(4). For these convictions, the trial court imposed the maximum
sentence within each range.

        On appeal, Tate argues that the trial court erred in applying three enhancement factors:
(1) that the defendant has a previous criminal history in addition to that necessary to establish
the range; enhancement factor (5), that the defendant acted with exceptional cruelty; and
enhancement factor (10), that the defendant had no hesitation about committing a crime when
the risk to human life was high. See id. §§ 40-35-114(1), (5), (10) (2010). Tate does not
challenge the trial court’s application of enhancement factors (2), (3), (8), and (9) (that he
was the leader in the commission of the offense with two or more criminal actors; that the


                                              -22-
offense involved more than one victim; that he previously failed to comply with the
conditions of a sentence involving release into the community; and that he possessed a deadly
weapon during the commission of aggravated burglary). See id. § 40-35-114(2), (3), (8), (9).


       Tate challenges the trial court’s application of enhancement factor (1). While
conceding that he has two prior Class C felony convictions for kidnapping and robbery, Tate
contends that his three misdemeanor convictions for possession of a controlled substance
“are insufficient to justify enhancement pursuant to Tennessee Code Annotated section
40-35-114(1).” Tate further argues that, “[a]t the very least, the trial court should not have
placed great weight in factor (1).” Initially, we note that, as a matter of law, while simple
possession of a controlled substance is generally classified as a Class A misdemeanor, see
T.C.A. § 39-17-418(c), a third offense under this section constitutes a Class E felony. See
id. § 39-17-418(e) (2010). Moreover, this court has previously held that even a single
misdemeanor conviction may support the enhancement of a sentence. See, e.g., State v.
Willie Givens, No. M2000-02883-CCA-R3-CD, 2002 WL 1400049, at *18 (Tenn. Crim.
App. June 28, 2002); State v. Leon James Anderson, No. M2004-00965-CCA-R3-CD, 2005
WL 1000235, at *5 (Tenn. Crim. App. April 29, 2005). As to Tate’s argument that the trial
court should not have placed “great weight” on enhancement factor (1), we note that “the
2005 amendments [to the Sentencing Act] deleted as grounds for appeal a claim that the trial
court did not weigh properly the enhancement and mitigating factors.” Carter, 254 S.W.3d
at 344. Accordingly, the trial court did not err in applying this enhancement factor.

       Tate argues that the trial court misapplied enhancement factor (5) as to his aggravated
offenses because a proper application of this factor requires “evidence of exceptional cruelty
separate and apart from the actions which constituted the offense[.]” State v. Poole, 945
S.W.2d 93, 99 (Tenn. 1997). The application of an enhancement factor is generally
appropriate “if not already an essential element of the offense,” T.C.A. § 40-35-114, and this
court has held that exceptional cruelty is not necessarily an element of aggravated
kidnapping, aggravated robbery, or especially aggravated kidnapping. See, e.g., State v.
Kern, 909 S.W.2d 5, 7 (Tenn. Crim. App. 1993); State v. Robert Morrow, No.
E2000-02796-CCA-R3-CD, 2001 WL 1105371, at *4 (Tenn. Crim. App. Sept. 18, 2001).
While this court has stated that “‘[a] threat of the victim being shot is inherent in the offense
of an especially aggravated kidnapping that is committed by the use of a firearm[,]’” State
v. Turner, 41 S.W.3d 663, 673 (Tenn. Crim. App. 2000) (quoting State v. Quinton Cage, No.
01C01-9605-CC-00179, 1999 WL 30595, at *10 (Tenn. Crim. App. Jan. 26, 1999), perm.
app. denied (Tenn. July 12, 1999)), we find that there is ample evidence in the record to
support the trial court’s application of this enhancement factor to the offenses in the instant
case. Morrow sustained at least ten blows to the head and received forty-two stitches and
sixteen staples. In an effort to extort money and drugs, the perpetrators held a gun to M.B.


                                              -23-
and threatened to kill him in front of his family. The victims were held at gun point in the
corner of a bedroom until the perpetrators were thwarted by the arrival of the police. Other
witnesses at trial testified as to the harsh treatment of the victims during the course of the
attempted robbery. For instance, Officer Davidson observed Morrow with severe cuts and
wearing a blood-soaked t-shirt. He also described the bedroom as covered in blood and in
disarray. Blood and human hair were found on the magazine clip of the gun used to beat
Morrow. Accordingly, the record establishes that Tate’s actions were “separate and apart”
from that necessary to constitute the aggravated offenses. See Poole, 945 S.W.2d at 99.
Furthermore, even if the trial court erroneously applied this enhancement factor to some of
Tate’s convictions, the trial court did not otherwise abuse its discretion or depart from the
purposes and principles of the Sentencing Act. See Bise, 380 S.W.3d at 702.

        Finally, Tate challenges the trial court’s application of enhancement factor (10)
arguing that “[w]hen an offense is committed with a deadly weapon, it is inherent within the
offense that there is a risk to human life and the potential for injury is great.” In applying this
factor, the trial court stated:

       I find No. 10 applies; that he had no hesitation about committing a crime when
       the risk to human life was high - other than, of course, the victims named in
       the indictment. There were other victims here that were present that were not
       named in the indictment. As I stated, it’s my - after looking at this individual
       - and the way - the actions of the night in question, and also his previous
       record, you know, if it weren’t for this young fellow in the closet calling the
       police this would have been a much, much, much worse situation, if you can
       imagine it and that other people were present whose lives were risked - were
       at risk. So, I find that does apply.

Previously, this court has held that when enhancement factor (10) is inherent in the charged
offense, it may still be applied to enhance a sentence where the defendant’s actions created
a risk of harm to an individual other than the named victim. See, e.g., State v. Joe Carpenter
Tyree, No. M2006-02173-CCA-R3-CD, 2007 WL 2295611, at *8 (Tenn. Crim. App. Aug.
10, 2007), perm. app. denied (Tenn. Jan. 28, 2008); see also State v. Imfeld, 70 S.W.3d 698,
707 (Tenn. 2002). Here, J.G. was not specifically named as a victim in the indicted offenses,
and his life was actually at risk.            Cf. State v. Jimmy Lee Whitmire, No.
M2007-01389-CCA-R3-CD, 2009 WL 2486178 (Tenn. Crim. App. Aug. 13, 2009) (finding
factor (10) to be inapplicable where the victim’s children were asleep in their bedrooms, the
defendant was unaware of their presence, and they were not in the immediate area of danger
during the commission of the especially aggravated kidnapping, aggravated assault, and
aggravated burglary against their mother). Accordingly, we conclude that this enhancement
factor was properly applied.


                                               -24-
        Although Tate has not challenged the application of enhancement factor (3) to his
sentences, we find that this application was erroneous as a matter of law. Generally, this
factor should not be applied where, as here, the defendant is separately convicted of the
offenses committed against each victim. See Imfeld, 70 S.W.3d at 705-06 (“[T]here cannot
be multiple victims for any one offense . . . committed against a specific, named victim.”).
Here, the trial court applied enhancement factor (3) because “the indictment didn’t contain
the names of the other individuals who were placed in fear and were in essence,
[kidnapped].” However, this court has previously held that a “victim,” for purposes of
sentence enhancement factor (3), “‘is a person or entity that is injured, killed, had property
stolen, or had property destroyed by the perpetrator of the crime.’” Cowan, 46 S.W.3d at 235
(quoting State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994)). Furthermore,
“[t]he psychological injuries suffered by relatives witnessing an attack on the actual victim
are not covered by this interpretation of the word ‘victim.’” State v. Alexander, 957 S.W.2d
1, 6 (Tenn. Crim. App. 1997). Accordingly, the fact that J.G. was present and not named in
the indictment, standing alone, is not sufficient to trigger the application of the “multiple
victims” enhancement factor.

        In this case, there was a separate offense for each specific, named victim. Thus, the
trial court erred in applying this enhancement factor. Nevertheless, the misapplication of this
enhancement factor does not remove the presumption of reasonableness of the imposed
sentences. See Bise, 380 S.W.3d at 706 (holding that “a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.”).

        Because the statutory enhancement and mitigating factors are advisory only, and
because “a trial court’s weighing of various mitigating and enhancement factors [is] left to
the trial court’s sound discretion[,]” we conclude that the trial court did not err in its
sentencing determinations where the record otherwise supports the within-range sentences
imposed. See T.C.A. § 40-35-114(c)(2) (2010); Carter, 254 S.W.3d at 345.

        Tate also challenges the trial court’s imposition of consecutive sentencing. He
maintains that the trial court failed to make the requisite Wilkerson findings to support his
status as a “dangerous offender” under Tennessee Code Annotated section 40-35-115(b)(4)
(2010). Specifically, Tate asserts that “the trial court did not explicitly state that consecutive
sentences were necessary to further protect the public from [the Defendant-Appellant].”

       Where a defendant is convicted of one or more offenses, the trial court generally has
discretion to decide whether the sentences shall be served concurrently or consecutively.
T.C.A. § 40-35-115(a), (b) (2010). This court will not disturb the trial court’s determination
of concurrent or consecutive sentences absent an abuse of discretion. State v. Blouvet, 965


                                              -25-
S.W.2d 489, 495 (Tenn. Crim. App. 1997). A trial court may order multiple offenses to be
served consecutively if it finds by a preponderance of the evidence that a defendant fits into
at least one of seven categories enumerated in code section 40-35-115(b). Those categories
include:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;

       (2) The defendant is an offender whose record of criminal activity is extensive;

       (3) The defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;

       (4) The defendant is a dangerous offender whose behavior indicates little or
       no regard for human life and no hesitation about committing a crime in which
       the risk to human life is high;

       (5) The defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       victim or victims;

       (6) The defendant is sentenced for an offense committed while on probation;
       or

       (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b) (2010). The finding of a single category is sufficient to authorize a
court to impose consecutive sentences. Id., Sentencing Comm’n Cmts. Furthermore, an
order of consecutive sentencing must be “justly deserved in relation to the seriousness of the
offense.” Id. § 40-35-102(1) (2010). Additionally, the length of a consecutive sentence must
be “no greater than that deserved for the offense committed.” Id. § 40-35-103(2) (2010).

      Here, the court determined that Tate was a dangerous offender. See id. § 40-35-
115(b)(4). Although Tate argues that the trial court improperly determined that he was a


                                             -26-
dangerous offender, we conclude that the trial court did not err in imposing consecutive
sentencing. Regarding this subsection, the Tennessee Supreme Court has stated:

       “Proof that an offender’s behavior indicated little or no regard for human life
       and no hesitation about committing a crime in which the risk to human life was
       high, is proof that the offender is a dangerous offender, but it may not be
       sufficient to sustain consecutive sentences. Every offender convicted of two
       or more dangerous crimes is not a dangerous offender subject to consecutive
       sentences; consequently, the provisions of [s]ection 40-35-115 cannot be read
       in isolation from the other provisions of the Act. The proof must also establish
       that the terms imposed are reasonably related to the severity of the offenses
       committed and are necessary in order to protect the public from further
       criminal acts by the offender.”

Imfeld, 70 S.W.3d at 708 (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995))
(emphasis added). Unlike the other six subsections, the trial court must make additional
factual findings for the “dangerous offender” factor because it is “‘the most subjective and
hardest to apply.’” Id. (quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999)).

       In concluding that Tate was a dangerous offender, the trial court stated:

       I find that he is a dangerous offender whose behavior indicates little or no
       regard for human life and no hesitation about committing a crime in which the
       risk to human life is high; and I find that because – really, just – really, the
       facts of this case – coupled that with the fact that he was convicted of robbery
       and [kidnapping] before – like I said, he obviously didn’t learn much from
       that. He had a violation of probation on that. But I think the circumstances
       surrounding this offense are particularly aggravated. The horror that must
       have gone through this family’s brain. They testified, and it was very moving.
       You would have to be here to see it. The poor young man that was in the
       closet, I think was fifteen or sixteen years of age; and it almost brought people
       to tears when he testified; so, you would have to be here to see the emotion on
       his face; but this young man was terrified as well as the remaining people in
       the house. And as I already pointed out, it was just because of luck and the
       presence of mind to react quickly that this wasn’t worse than what it is. I think
       that consecutive sentencing – the aggregate length of the sentences reasonably
       relates to the offense for which [Tate] stands convicted. . . . To me, the fact is,
       is that he is a dangerous, dangerous offender. . . . So, because of this, I’m
       going to order each of these to be run consecutive to one another. He is a
       dangerous offender; and as such, he should never have the opportunity to see


                                          -27-
       the streets of Memphis, Tennessee, again. I can only hope that that happens.

The record shows that the trial court made the additional factual findings required to
determine that Tate was a dangerous offender. The court determined that Tate should be kept
away from “the streets of Memphis.” Furthermore, when given the opportunity to reconsider
its sentencing decision at the motion for new trial hearing, the trial court stated:

       [A]s to the one-hundred-thirty-eight-year sentence, I still believe in light of the
       fact of his previous record and the particular facts of this case – the fact that
       this family was terrorized in this event and that Mr. Tate had previously been
       convicted of similar type charges – [kidnapping] – robbery, I believe. In light
       of all that, that was an appropriate sentence to protect society.

Accordingly, we conclude that the trial court properly exercised its discretion in ordering
Tate to serve his sentences consecutively.

        Here, the record reflects that the trial court carefully considered the evidence, the
nature of the criminal conduct involved, the presentence report, the enhancement and
mitigating factors, and the purposes and principles of sentencing prior to imposing
consecutive, within-range sentences of confinement. Therefore, Tate has failed to establish
that the trial court abused its discretion in imposing his sentences and he is not entitled to
relief.

                                       CONCLUSION

        After a thorough review of the record, the judgments of the Shelby County Criminal
Court are affirmed in part, reversed in part, and remanded. Tate’s convictions for one count
of attempted especially aggravated robbery, one count of facilitation to commit aggravated
assault, and two counts of aggravated assault are affirmed. We reverse the kidnapping
convictions, as charged in counts four and five, and remand the matter for a new trial on
those counts. We reduce Tate’s conviction for especially aggravated burglary conviction to
a conviction for aggravated burglary, and remand the matter for resentencing. Finally, we
reverse the conviction for employing a firearm during the commission of a dangerous felony
offense and remand for a new trial on count three. In all other respects, the judgments of the
trial court are affirmed.




                                            ___________________________________
                                            CAMILLE R. McMULLEN, JUDGE


                                              -28-
