          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                     FILED
                           SEPTEMBER 1997 SESSION
                                                               October 14, 1997

                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
STATE OF TENNESSEE,                  )    NO. 02C01-9610-CC-00364
                                     )
      Appellee,                      )    LAUDERDALE COUNTY
                                     )
VS.                                  )    HON. JOSEPH H. WALKER, III,
                                     )    JUDGE
SONNY M. PORTER,                     )
                                     )    (Aggravated Kidnapping, Assault
      Appellant.                     )    and Aggravated Criminal Trespass)



FOR THE APPELLANT:                        FOR THE APPELLEE:

GARY F. ANTRICAN                          JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

JULIE K. PILLOW                           SARAH M. BRANCH
Assistant Public Defender                 Assistant Attorney General
P.O. Box 700                              450 James Robertson Parkway
Somerville, TN 38068                      Nashville, TN 37243-0493

                                          ELIZABETH T. RICE
                                          District Attorney General

                                          MARK DAVIDSON
                                          Assistant District Attorney General
                                          302 E Market Street
                                          Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION



      The defendant, Sonny M. Porter, was convicted by a Lauderdale County jury

of aggravated kidnapping, aggravated criminal trespass and two (2) counts of

simple assault. For the offense of aggravated kidnapping, he was sentenced as a

repeat violent offender to life imprisonment without parole. On appeal, he presents

the following issues for our review: (1) whether the trial court erred in denying

defendant’s motion to compel the state to elect which offenses it would proceed

upon; and (2) whether the evidence was sufficient to sustain the aggravated

kidnapping conviction. We find no error and affirm the judgment of the trial court.



                                     FACTS



      Late in the evening on July 6, 1995, Galelyn Bates heard someone tapping

on the door of her home. She opened the door on the side of her home, but did not

see anyone. Thinking that her son might be coming home for the night, she left the

side door cracked. She then checked the front door. Suddenly, she realized that

there was someone in her house. At trial, Bates identified the man in her home as

the defendant.

      Bates screamed for help. Defendant, who was carrying a knife, told her that

he would kill her if she screamed again. Defendant told Bates to take off her

clothes, and they began struggling. During the struggle, defendant cut Bates’ hand

and the back of her neck.

      At the same time, Bates’ neighbor, Linda Treadway, ran across the street to

check on Bates. She looked into the window and saw Bates and defendant. She

began knocking on the window and calling out to Bates.

      Defendant asked Bates if she had a back door. He grabbed Bates by the

clothes and took her with him out of the back of the house. They went across her

back yard, and defendant forced Bates to climb over her fence. Once she had

climbed over the fence, Bates ran away from the defendant. Defendant was



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subsequently apprehended by a Henning police officer.

       Defendant was indicted in Count One for attempted aggravated rape, Count

Two for aggravated burglary, Count Three for especially aggravated kidnapping and

Count Four for aggravated assault.1 The jury returned guilty verdicts for lesser

offenses on all counts; to wit: simple assault in Count One, aggravated criminal

trespass in Count Two, aggravated kidnapping in Count Three and simple assault

in Count Four. The trial judge sentenced defendant as a repeat violent offender to

life imprisonment without parole for the aggravated kidnapping conviction.

Defendant was sentenced to concurrent sentences of eleven (11) months and

twenty nine (29) days for the other offenses.           From these convictions and

sentences, defendant brings this appeal.



                             ELECTION OF OFFENSES



       In his first assignment of error, defendant contends that the trial court erred

in denying a motion to compel the state to elect which offenses it would proceed

upon. Relying on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), defendant

argues that the proof did not support the charges for both attempted aggravated

rape in Count One and especially aggravated kidnapping in Count Three. He

alleges that requiring the state to elect between the rape and kidnapping charges

at the conclusion of the state’s proof would have obviated the Anthony issue.

Therefore, he claims that Anthony requires an election by the state.

       In State v. Anthony, our Supreme Court addressed the issue of whether dual

convictions of armed robbery and aggravated kidnapping arising out of the same

criminal episode could constitutionally stand as a matter of due process. The Court

held that when kidnapping is “essentially incidental” to another offense, due process

prohibits a conviction for kidnapping. Id. at 306-307. The test to be applied is

whether, under the facts of each case, “the confinement, movement or detention is


       1
        The aggravated assault count stemmed from an incident with the arresting officer.
Defendant was convicted of the lesser offense of simple assault. This conviction is not
contested by the defendant on appeal.

                                           3
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.   The determination of whether the

convictions for kidnapping and the linked felony can stand is fact specific, as there

is no prohibition against convictions for both offenses “simply because they arise out

of the same criminal episode.” Id. at 307.

       However, nothing in our Supreme Court’s holding in Anthony requires that

the state elect between the kidnapping charge and the accompanying charge before

the jury deliberates. Anthony applies only when a defendant is convicted of both

kidnapping and a felony that would inherently involve a kidnapping. See State v.

Martin Thomas Terrell, C.C.A. No. 02C01-9701-CC-00001 (Tenn. Crim. App. filed

August 15, 1997, at Jackson).

       In various contexts, due process requires that the state elect at the close of

its proof the particular offense for which it seeks a conviction. VanArsdall v. State,

919 S.W.2d 626, 633 (Tenn. Crim. App. 1995). This requirement is based on three

concerns: to enable the defendant to prepare his defense for a specific charge, to

protect the defendant from the dangers of double jeopardy, and to ensure that the

jury’s verdict is unanimous. State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993).

The third rationale is considered to be the most significant, as it is based on the

fundamental right to a unanimous jury verdict before the imposition of a criminal

conviction. Id. None of these concerns is involved in the case sub judice. There

was no requirement for the state to make an election.

       Although the defendant may demand that the state elect between factual

occurrences in an indictment, the state is not required to elect between separate

charges in the same indictment. State v. Henley, 774 S.W.2d 908, 916 (Tenn.

1989); see also Raybin, Criminal Practice and Procedure, § 26.82 (1985). The trial

court properly denied defendant’s motion. This issue is without merit.



                       SUFFICIENCY OF THE EVIDENCE



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         Defendant maintains that the evidence is insufficient to support the conviction

for aggravated kidnapping. Pursuant to State v. Anthony, defendant asserts that

the kidnapping was merely incidental to the attempted aggravated rape. As a result,

he argues that due process requires that the aggravated kidnapping conviction be

dismissed.

                                           A.

         We begin our analysis with a determination of whether the evidence is

sufficient to support the aggravated kidnapping conviction. When an accused

challenges the sufficiency of the convicting evidence, our standard of review is

whether, after reviewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the witnesses,

the weight and value to be given the evidence as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Tuttle, 914

S.W.2d 926, 932 (Tenn. Crim. App. 1995).             Nor may this Court reweigh or

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

On appeal, the state is entitled to the strongest legitimate view of the evidence and

all inferences therefrom. Id. Because a verdict of guilt removes the presumption

of innocence and replaces it with a presumption of guilt, the accused has the

burden in this Court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

                                           B.

         A person commits the offense of aggravated kidnapping who knowingly

removes or confines another unlawfully so as to interfere substantially with the

other's liberty while in possession of a deadly weapon or threatens the use of a

deadly weapon. Tenn. Code Ann. §§ 39-13-302, 39-13-304(a)(5).

                                           C.

         Defendant, while carrying a knife and threatening to kill Bates, grabbed her


                                            5
and forced her out of the back door of her home. He pushed her across her back

yard and made her climb the fence. Only then was she able to escape. Defendant

substantially interfered with Bates’ liberty while carrying a knife. We find this

evidence to be sufficient to support the conviction for aggravated kidnapping.

                                           D.

       Furthermore, under the principles outlined in Anthony, we find that the

separate conviction of aggravated kidnapping should stand. The kidnapping charge

is not merely incidental to the assault on the victim. The initial assault was

interrupted when Bates’ neighbor began knocking on the window, at which point the

defendant took another course of action by forcing the victim out of her home. By

doing so, he “substantially increased the risk of harm over and above that

necessarily present” in the assault. State v. Anthony, 817 S.W.2d at 306 (quoting

State v. Rollins, 605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)).

                                           E.

       Moreover, double jeopardy principles as delineated by our Supreme Court’s

holding in State v. Denton, 938 S.W.2d 373 (Tenn. 1996), are not violated by

defendant’s convictions for simple assault and aggravated kidnapping. In Denton,

the Court held that the determination of the double jeopardy issue rests on an

analysis of the following: (1) an analysis of the statutory offenses; (2) an analysis

of the evidence used to prove the offenses; (3) a consideration of whether there

were multiple victims or discrete acts; and (4) a comparison of the purposes of the

respective statutes. 938 S.W.2d at 381.

       An analysis under Denton reveals that double jeopardy principles are not

offended by defendant’s convictions for simple assault and aggravated kidnapping.

A conviction of aggravated kidnapping requires proof that the accused substantially

interfered with another person’s liberty, while assault does not. Likewise, the

evidence used to prove assault was distinct from that used to prove aggravated

kidnapping. Furthermore, defendant committed discrete acts in (1) committing the

initial assault on the victim, and (2) forcing the victim out of her home at knife point.

Finally, the evil at which each offense is directed is different. Kidnapping punishes



                                           6
those who interfere with another's liberty, while assault punishes those who cause

bodily injury or fear of bodily injury. Tenn. Code Ann. §§ 39-13-101, 39-13-302.

The conviction for aggravated kidnapping is constitutionally permissible, as well as

supported by sufficient evidence. This issue is without merit.

                                           F.

       We must also note that defendant was not convicted of attempted

aggravated rape as was charged in Count One of the indictment. Defendant was

convicted of the lesser offense of simple assault. In essence, defendant argues

that the Class B felony of aggravated kidnapping is merely incidental to the Class

A misdemeanor of simple assault. In other words, defendant is contending the

felony of aggravated kidnapping merges into the misdemeanor of simple assault.

Even if only one conviction could stand, certainly it would be the aggravated

kidnapping and not the simple assault.



                                    SENTENCING



       Although not raised as an issue for our review, defendant makes the bare

allegation that his sentence of life imprisonment is unjust.             In its entirety,

defendant’s argument is as follows:

              In addition, it appears to the appellant that it is unjust to require
       him to serve a sentence of Life without Parole on the Aggravated
       Kidnapping conviction in light of the jury’s overall determination of the
       facts of this case. Had the State been required to elect, it is quite
       possible that the State would have elected to pursue the Attempted
       Aggravated Rape and dismissed the Kidnapping charge. If that had
       occurred, [defendant] would now be serving an 11 month 29 day
       sentence instead of Life without Parole.

       We do not find this conclusory statement to be sufficient to raise a

sentencing issue. Tenn. R. App. P. 27(a)(7); see also Cone v. State, 927 S.W.2d

579, 581 (Tenn. Crim. App. 1995). Nevertheless, because defendant’s aggravated

kidnapping conviction is affirmed, we find that the trial court properly sentenced

defendant as a repeat violent offender to life without parole pursuant to Tenn. Code

Ann. § 40-35-120(g). Defendant has a previous conviction for first degree murder.

See Tenn. Code Ann. § 40-35-120(a), (d). This issue is without merit.

                                            7
                                  CONCLUSION



       The trial court did not err in denying defendant’s motion to compel the state

to elect offenses. Furthermore, defendant’s aggravated kidnapping conviction is

supported by sufficient evidence. As such, defendant’s conviction and sentence of

life imprisonment without parole is proper. Accordingly, the judgment of the trial

court is affirmed.




                                                JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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