         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs April 12, 2011

                  STATE OF TENNESSEE v. IROKO PHILLIPS

              Direct Appeal from the Criminal Court for Shelby County
                     No. 08-05081   James C. Beasley, Jr., Judge




                 No. W2010-01605-CCA-R3-CD - Filed July 13, 2011


A Shelby County jury convicted the Defendant, Iroko Phillips, of one count of aggravated
kidnapping and two counts of attempted aggravated rape. The trial court merged the two
counts of attempted aggravated rape and imposed on the Defendant as a Range III, Persistent
Offender an effective sentence of sixty years in the Tennessee Department of Correction.
On appeal, the Defendant contends the evidence is insufficient to support his convictions and
that his convictions violate due process principles. Having thoroughly reviewed the record
and relevant authorities, we conclude the evidence is sufficient to support the Defendant’s
convictions and that his convictions do not violate his due process rights. As such, the trial
court’s judgments are affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, 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.

Michael Johnson (at trial), Memphis, Tennessee, and Tony N. Brayton (on appeal), Memphis,
Tennessee, for the Appellant, Iroko Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; Damon Griffin, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION
                                          I. Facts

      This case arises from the Defendant’s violently subduing and attempting to rape a
female jogger in her front yard. Based on this conduct, a Shelby County grand jury indicted
the Defendant for two counts of attempted aggravated rape and two counts of aggravated
kidnapping.

        At the Defendant’s trial, the following evidence was presented: B.C.1 , the victim in this
case, testified that she was forty-one on March 17, 2008, the day the attack took place, and
that she had only recently moved into her Memphis neighborhood. Around 5:30 p.m. on the
evening of the attack, the victim put on jogging clothes, went outside, and began walking
down her street in order to warm up for a jog.

       As the victim walked down her street, she saw a man she identified in court as the
Defendant walking near her. At this point, the victim and the Defendant did not exchange
words. As the victim continued her walk, however, she encountered the Defendant again,
and, this time, because she was new to the neighborhood, she asked him whether he lived in
the area. The Defendant responded vaguely that he lived down the street and asked the victim
whether she had a boyfriend. The victim told the Defendant that she did not have a boyfriend
but that, as a Jehovah’s Witness, she “wasn’t interested” and was “mainly there to take [her]
walk.” The victim asked the Defendant why he was in the neighborhood, and he told her that
he was waiting for a friend who worked “around the corner” to get off from work. When the
victim again asked the Defendant where he lived, he responded vaguely again, saying he lived
“back around K-Mart,” refusing to name the street he lived on.

        The Defendant’s vague answers made the victim nervous, so she decided to return to
her house. She said to the Defendant, “Well, you go on and find your friend and I am going
to continue my jogging.” The victim then began jogging back to her house, hoping to reach
it before the Defendant. When she glanced behind shortly after she began jogging, she saw
that the Defendant was quickly coming up behind her. The victim realized she would not be
able to reach, unlock, and enter her house out of the Defendant’s view. In order to avoid
showing the Defendant her home, before the victim reached her house, she sat on a tree stump
located in a neighbor’s yard. When she sat down, the Defendant also stopped and remained
in the general area. The victim sat on the stump for a few minutes, hoping that a neighbor
would emerge and extricate her from a situation that she had a “really, really bad gut feeling
. . . wasn’t going to end well.”

       After no one appeared to help her after a few minutes, the victim stood up and
continued walking down the street, this time passing her house on the left without stopping.
The Defendant continued to follow her and gradually began walking alongside her as before.
The victim walked a little farther until she reached the home of a woman she knew to have
dogs. When she reached this house and saw neither the woman nor her dogs, the victim

        1
            In an effort to protect the privacy of the victim, we will refer to her by her initials only.

                                                      2
realized she had no choice but to try to go back to her house because daylight would not last
much longer. She turned around, and, when she reached her yard, she stepped onto her
driveway, intending to cut across her yard and make a “mad dash” to her front door of her
house, which was set back considerably from the street.

         The victim testified that as she took her first step onto her driveway, she felt the
Defendant grab her from behind and put her into a headlock. Because the Defendant’s arm
was wrapped tightly around her neck, the victim was unable to breath, and she dropped to her
knees. At this point, the victim remembered she was carrying her keys, so she reached for her
largest key and began blindly jabbing at the Defendant’s face, hoping to stab him in the eye
and induce him to release her. She met with some success in so doing, because the Defendant
released her from the headlock. The two continued to struggle, however, and the Defendant
repeatedly beat her face with his closed fist. He also kicked her. Blood from her head
wounds quickly began to blur her view. She recalled that her only hope was to “keep fighting
. . . him off . . . to stay alive.” During the struggle, the victim briefly freed herself, and she
ran a few steps toward the street. The Defendant quickly reached her again, grabbed her
ponytail, and pulled her by her ponytail back away from the street, toward a trash receptacle
located farther away from her street, along the high shrubs lining her yard. As he pulled her
away, he commanded her to “[g]et up and walk to the back of the house.” Realizing no one
would ever find her if she allowed him to take her into the wooded area behind her house, she
continued to struggle toward the street. As they struggled, the victim felt the Defendant rip
away her shoes and jogging pants.

       The victim stated that as the Defendant continued to drag her to the trash can near the
shrubs, he cursed at the victim, repeating his command to get up and walk to the back of the
house. Unable to induce the victim to walk to the backyard, the Defendant dragged her to the
trash can. As the victim lay on her back by the trash can, she realized that the Defendant had
at some point ripped off her underwear. The Defendant grabbed the victim’s knees and tried
to pry her legs apart. The victim soon felt something touch her unclothed buttocks, and she
began kicking the Defendant because she “knew that that wasn’t a good thing.” The victim
was unable to see what exactly was touching her buttocks because her eyes were covered in
blood.

        The victim testified that, while the Defendant tried to pry her legs apart, the victim was
aware that he was also trying to pull something from the trash receptacle. The Defendant
eventually was able to wrest a long strip of black plastic from the trash can, which the victim
recognized as a strip of plastic lining from a mirror she had recently disposed of. The
Defendant repeatedly beat the victim’s body with the plastic strip, only stopping when the
strip shattered due to the force he used to thrash the victim. The Defendant took a piece of
the broken strip and wielded it while he crouched between her legs. The victim testified that

                                                3
she believed the Defendant intended to sodomize her with the plastic strip. She continued to
vigorously kick at the Defendant and, finally, was able to break free. She ran to her next-door
neighbor’s front porch, wearing only her T-shirt, the Defendant apparently having removed
her bra during the struggle. At this point, the victim’s face was completely covered in blood.
She began banging on her neighbor’s front door and screaming, and eventually her neighbor
emerged from a side door, saw the victim’s state, and brought her in to safety. The victim’s
torn and bloodied pants, underwear, and sports bra were all later recovered from her yard and
her neighbor’s porch.

       The victim testified that she was taken to a hospital, where she was determined to have
sustained a broken nose, two bloodied eyes, and a broken jaw. Her jaw was wired shut for
four months. The victim stayed in the hospital one week and incurred $96,000 in medical
expenses as a result of the attack. The victim, who cared for the elderly for a living, stated
that she was unable to work for the year following the attack.

       The victim testified that police visited her while she remained in the hospital and
presented her with a photographic line-up of suspects in this case, from which she identified
the Defendant as her attacker. She testified that she was easily able to identify the Defendant
because she was able to observe him for approximately one hour, the time that lapsed between
when she initially emerged from her house to when she escaped from the Defendant to her
neighbor’s porch. Also, she remembered that her attacker was cross-eyed.

       At trial, the victim identified a brown jogging suit and white T-shirt introduced by the
State as that which the Defendant wore during the attack.

       On cross-examination, the victim recalled that the Defendant had already broken her
jaw by the time he dragged her to the trash can. She recalled that, when the Defendant
grabbed her by the ponytail, he knocked her off her feet and dragged her by the ponytail to the
trash can, with the side of her body dragging along the ground. The victim explained that
Jana Smith’s home was on one side of her house and that the other side of her house was
flanked by trees, with no house within sight.

        Amanda Walker, an employee of Lutheran Village, testified that on March 17, 2008,
the day of the attack in this case, she took the bus to work. While waiting for the bus, the
Defendant walked by her where she was seated at the bus stop and asked whether she had a
boyfriend. She replied that she did not, and the Defendant asked whether she wanted him to
be her boyfriend. Walker responded that she did and gave the Defendant her cell phone
number. Later, when the bus came, she and the Defendant got on the bus. The two did not
sit together or speak again on the bus, and Walker got off at her stop twenty minutes later.
Walker did not see the Defendant get off the bus. When Walker reached Lutheran Village,

                                              4
however, she heard a man’s voice behind her ask whether he could use the restroom. She
turned around and found the Defendant. She told the Defendant that only employees and
residents could use the bathroom, and she warned the Defendant that the entire area was under
video surveillance. The Defendant turned and left.

        Later in the day, when Walker was on a break around 2:30 p.m., the Defendant called
her cell phone and asked whether she could leave work. Walker responded that she could not
and ended the conversation. Walker did not hear from the Defendant again until he called her
several days later from jail. Police interviewed Walker about her interaction with the
Defendant. She identified the Defendant as the man who followed her to work at Lutheran
Village from a photographic line-up of suspects. Walker stated that testifying against the
Defendant was frightening.

        Diane Boling confirmed that she lived with her husband and children in the house
beside Lutheran Village and that her home was “catty-cornered” from the victim’s home.
Boling was not acquainted with the victim before the attack, though she had noticed the victim
outside her home before. Boling recalled that, on the evening of the attack, she and her
husband rode their motorcycle to a local grocery store. On the way to the grocery store, they
saw a man Boling identified at trial as the Defendant walking down their street, drinking a
beer. When they returned a short time later, they found the victim seated on a tree stump in
their front yard, speaking with the Defendant. Boling and her husband found the exchange
going on in their front yard strange; however, because the pair were not “hurting anything,”
they went inside their home without inquiring further.

        A short time later, Boling’s husband went outside to speak with their landlord. Boling
walked outside shortly after her husband and, when she did so, heard the victim screaming.
She looked up and saw the victim lying on the ground in her own yard, struggling with the
Defendant. Boling immediately alerted her husband to the situation, and he ran up to the
street, grabbing a hammer from his truck, which was parked in the driveway. Her husband
then began waving the hammer and screaming at the Defendant, while using his free hand to
call 9-1-1 on his cell phone.

        Boling said she started to go to the victim’s yard, but her husband told her to stay back,
explaining that the Defendant could be armed. The two continued to stand at the edge of the
street and scream at the Defendant to leave the victim alone. The Defendant looked up at the
Bolings, appearing to have heard them, then turned back to the victim and began to drag her
farther away from the street, toward the back of her house. This alarmed Boling’s husband,
who took several more steps toward the victim’s house, continuing to yell at the Defendant.
From where they stood, the Bolings then witnessed the Defendant stand over the victim and
repeatedly kick the victim in her head and stomach. At one point, Boling saw the Defendant

                                                5
beat the victim with what appeared to be a “black belt.” Boling said the Defendant “just kept
swinging up and down.” Boling’s husband used his cell phone to call the police as they
continued to scream at the Defendant to stop. The Defendant finally let go of the victim and
walked back toward the street. He turned down the street and walked away from the
Bolings’s house and toward a nearby intersection.

       Boling confirmed that when police later presented her with a photographic spreadsheet
of individuals suspected of attacking the victim, she identified the Defendant as the
perpetrator. She acknowledged, however, that, when she was asked to identify the perpetrator
from a group of eight men at a preliminary hearing in this case, she did not identify the
Defendant because she was too frightened.

        Jana Smith, the victim’s next door neighbor, testified that nothing appeared to be amiss
when she saw the victim walking down their street sometime between 6:00 p.m. and 6:30 p.m.
on the day of the attack. Just after Smith finished eating dinner with her family on the day of
the attack, she heard a loud banging on the front door. When she reached the front door,
which had no windows or peep holes, she heard a voice say, “[H]elp, I’ve been attacked, I’ve
been attacked!” She ran out the side door of her house and around to the front where she
found the victim, bleeding and unclothed from the waist down. She said that the victim, who
was jumping up and down on the porch, appeared to be in a high state of anxiety. Smith ran
quickly back into her house and grabbed a blanket, returned to the porch, and covered the
victim with the blanket. As soon as she did so, the victim collapsed onto the porch.

       Officers from the Memphis Police Department collected gray shorts, a blood-stained
gray shirt, a sports bra, a towel, a strip of black plastic, and a “Black and Mild” cigar from the
victim’s front yard. Lieutenant Angela Smith, a sex crimes unit police officer, obtained a
description of the assailant from the victim. In the course of her investigation, Lt. Smith
discovered that a security camera from Lutheran Village had taped the entire encounter
between the Defendant and the victim. On the video, which is partially focused on the
victim’s house, the victim can be seen emerging from her house around 6:42. A man meeting
the victim’s description of her attacker can be seen in the same frame, following the victim
from a short distance. Within about five minutes, the man can be seen walking alongside the
victim, and the two briefly stop, and continue walking down the street, out of view of the
camera. Several minutes later, the victim and her attacker come back into view of the camera,
walking back toward the victim’s home. The video showed that, at 7:17 p.m., the man
attacked the victim in her front yard. The two struggled, with the victim lying on the ground.
After the victim tried to get away, the man moved the victim from the front yard to the side
of her house. The man soon released the victim and walked away.

       Several days after the attack, the Defendant voluntarily came to Lt. Smith’s precinct

                                                6
in connection with an unrelated incident. Lt. Smith recognized the Defendant as the man
shown in the Lutheran Village tape attacking the victim. The Defendant agreed to give a
statement to police regarding the victim’s attack. He told police that Alice Walker had
allowed him to fondle her on a city bus and that, hoping to meet her again, he waited for
Walker to get off from where she worked on the Defendant’s street. He told police he waited
for Walker near an apartment complex in the vicinity until about 8:00 p.m. The Defendant
said he was wearing a light brown and dark brown jogging suit with a white T-shirt and white
tennis shoes at this time. He confirmed that he was carrying a beer and smoking “black and
mild” cigars while he walked around the area, waiting for Walker. The Defendant denied
attacking the victim. Although he had a scrape on the back of his neck, the Defendant insisted
the scrape came from “wrestling and playing” with his girlfriend. Lt. Smith contacted the
Defendant’s girlfriend who agreed to allow Lt. Smith to search her home. The lieutenant
retrieved two white T-shirts and a beige and brown jogging suit from the home.

       The Defendant testified at trial that he had never met, much less attacked, the victim.
Although the Defendant acknowledged that he followed Walker to work, he denied that he
remained in the area, waiting for her to get off work. The Defendant confirmed that he had
a beer, a towel, and a cigar with him when he followed Walker to work. During trial, the
Defendant insisted on being addressed as “Bob Marley,” and he told the court that his birth
date was February 6, 1945, whereas the Defendant’s actual birth date is June 16, 1978. The
Defendant denied giving a statement to Lt. Smith about the attack in this case, explaining that
he would never have spoken with a female officer.

       At the conclusion of trial, the jury convicted the Defendant of two counts of attempted
aggravated rape and one count of aggravated kidnapping. At sentencing, the trial court
merged the two counts of attempted aggravated rape. The trial court sentenced the Defendant
as a Range III, Persistent Offender to thirty years for his aggravated kidnapping conviction
and to thirty years for his attempted aggravated rape conviction. The trial court imposed
consecutive sentencing, which resulted in a total sentence of sixty years for the Defendant.
The Defendant filed a timely motion for new trial. The trial court denied the Defendant’s
motion for new trial, and this timely appeal followed.

                                         II. Analysis

       On appeal, the Defendant contends that the evidence was insufficient to support his
convictions and that his dual convictions for aggravated kidnapping and attempted aggravated
rape violate the due process clause of the United States Constitution and the law of the land
clause of the Tennessee Constitution.

                                 A. Due Process Protection

                                              7
        The Defendant contends his convictions for aggravated kidnapping and attempted
aggravated rape violates due process principles, particularly as the Tennessee Supreme Court
interpreted these principles in State v. Dixon, 957 S.W.2d 532 (Tenn. 1997). He argues due
process principles preclude his dual convictions for aggravated kidnapping and attempted
aggravated rape because his “movement or confinement” of the victim did not go beyond that
necessary to commit the attempted aggravated rape. Acknowledging that he waived this issue
by failing to raise it in a motion for new trial, he contends he is nonetheless entitled to relief
because his dual convictions constitute plain error. The State responds that the Defendant’s
dual convictions for aggravated kidnapping and attempted aggravated rape do not violate due
process guarantees and, thus, do not constitute plain error.

        As the Defendant acknowledges, he has waived the issue of whether his dual
convictions violate due process by failing to raise the issue in his motion for new trial. See
Tenn. R. App. P. 3(e); State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1984).
However, “[w]hen necessary to do substantial justice, an appellate court may consider an error
that has affected the substantial rights of a party at any time, even though the error was not
raised in the motion for new trial . . . .” Tenn. R. App. P. 36(b). We refer to this discretionary
consideration of waived issues as “plain error” review. See Grindstaff v. State, 297 S.W.3d
208, 219 n. 12 (Tenn. 2009).

        In light of the lengthy sentence the Defendant received as a result of being convicted
of both aggravated kidnapping and attempted aggravated rape, we conclude that review of the
issue is “necessary to do substantial justice.” See Tenn. R. App. P. 36(b). Thus, we elect to
determine whether plain error is present.

        This Court will grant “plain error” pursuant to Rule 36(b) only where the following
five criteria are met: (1) the record clearly establishes what occurred in the trial court; (2) the
error breached a clear and unequivocal rule of law; (3) the error adversely affected a
substantial right of the complaining party; (4) the error was not waived for tactical purposes;
and (5) substantial justice is at stake; that is, the error was so significant that it “‘probably
changed the outcome of the trial.’” State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)
(quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)). If any of these
five criteria are not met, we will not grant relief, and complete consideration of all five factors
is not necessary when it is clear from the record that at least one of the factors cannot be
established. Id. at 283. The party claiming plain error has the burden of persuading the
appellate court. Banks, 271 S.W.3d at 119.

       Whether a felony conviction and an accompanying kidnapping conviction violate
principles of due process is a question of law initially determined by the trial court. State v.

                                                8
Fuller, 172 S.W.3d 533, 535 (Tenn. 2005) (citing State v. Cozart, 54 S.W.3d 242, 247 (Tenn.
2001)). Thus, review of such a determination is de novo with no presumption of correctness.
Griffin v. State, 182 S.W.3d 795, 798 (Tenn. 2006).

        In State v. Anthony, our Supreme Court recognized that certain crimes, such as robbery
and rape, necessarily involve some detention or confinement of the victim. 817 S.W.2d 299,
306 (Tenn. 1991). The Court held that, under circumstances in which the detention or
confinement of the victim is “essentially incidental” to the underlying felony, principles of due
process prohibit the imposition of another conviction for kidnapping. Id. In State v. Dixon,
the Tennessee Supreme Court set out a two-part test for analyzing whether a defendant’s
detention or confinement of a victim is “essentially incidental” to an underlying felony. 857
S.W.2d 532, 535 (Tenn. 1997). Under the first part of the Dixon test, a court must make a
threshold determination of whether “the confinement or movement was beyond that necessary
to consummate the [felonious] act . . . .” Id. If a defendant’s conduct passes this threshold,
then due process principles allow for a separate kidnapping conviction if the conduct also
either “(1) prevented the victim from summoning help; (2) lessened the defendant’s risk of
detection; or (3) created a significant danger or increased the victim’s risk of harm.” Id.

        As to the first prong of the Dixon test, the Defendant chiefly argues that, because his
movement of the victim was “relatively slight and came in the context of the victim’s efforts
to escape,” this additional “movement or confinement” of the victim was not beyond that
necessary to complete the attempted rape. He further argues that Dixon’s second prong is not
satisfied. He contends that, because he dragged the victim only a short distance and kept her
beside the trash can for only a short time, in plain sight of neighbors, the additional movement
did not create “a significant danger or increased risk of harm to the victim.”

        The State responds first that the Defendant’s additional act of dragging the victim to
the trash can was not necessary to commit the attempted aggravated rape because the
Defendant could have completed the attempted aggravated rape in her front yard, where he
initially subdued her by striking her with his hands and feet. It argues that, because the
Defendant moved the victim only in order to “augment” the force of his attack by finding a
new weapon in the trash can, this additional activity was unnecessary to the attempted
aggravated rape and satisfies the first prong of Dixon. The State argues the second prong of
Dixon is met because the act of dragging the victim to the trash can, where the Defendant
retrieved a plastic strip and used it to beat the victim, “created a significant danger or
increased the victim’s risk of harm.” See Dixon, 957 S.W.2d at 535.

        The facts of this case are strikingly similar to the facts of Dixon. In Dixon, the
defendant grabbed the victim and pinned her to the ground. Id. The defendant then dragged
the victim thirty or so feet off of the lighted sidewalk and behind some nearby shrubbery. Id.

                                               9
The defendant beat the victim and then sexually assaulted her. Id. The Supreme Court held
that the kidnapping, assault, and sexual battery offenses were separate offenses, not subject
to merger under Anthony. Id. The Court explained that the brutal beating of the victim was
clearly separate from the other offenses. Id. Further, the Court explained that when the
defendant moved the victim the thirty or so feet in order to lessen his chances of detection,
this was separate from and, thus, not “essentially incidental” to, the sexual battery. Id.
Therefore, the Court concluded, the aggravated kidnapping, aggravated assault, and sexual
battery convictions did not merge. Id. at 535.

        As in Dixon, the facts of this case do not suggest that the kidnapping was “necessary”
in order to rape the victim. While the Defendant was choking and striking the victim, he
began ripping away her clothing. As the Defendant continued to strike the victim, a neighbor
who had noticed the commotion screamed a warning at the Defendant and waved a hammer
in the air. This warning prompted the Defendant to drag the victim away to a location farther
from public view. Because the Defendant had already exercised physical control over the
partially unclothed victim before he moved her around the house, he could have raped the
victim without moving her away from the street. Thus, this additional movement was
“beyond that necessary to consummate” the victim’s rape. See Dixon, 857 S.W.2d at 535.
As such, his unlawful confinement of the victim passes the threshold Dixon requirement of
being unnecessary to commit the accompanying felonious act.

       As to Dixon’s second part, the strongest legitimate inference one can draw from the
record is that Mr. Boling’s screaming and waving a hammer at the Defendant caused the
Defendant to drag the victim away from the front yard. In our view, this evidence makes plain
the Defendant’s intent to “lessen his risk of detection” by moving the victim to the trash can.
See id. The victim’s ultimate success in escaping from the Defendant does not diminish the
criminality of the Defendant’s choice to forcibly move the victim to the trash can.

        Further, the record is clear that, after being moved to the trash can, the victim suffered
numerous additional injuries to her face and legs as a result of being repeatedly whipped with
the plastic strip the Defendant retrieved from the trash receptacle. Thus, the victim’s transfer
to the trash can increased not only her risk of harm but also the actual harm that befell her.
Id. Also, in light of the victim’s testimony that the Defendant brushed her unclothed buttocks
with a strip of plastic, by moving to the trash can the Defendant gained access to a number of
objects with which to vaginally penetrate, sodomize or strike the victim, thereby “increas[ing]
the victim’s risk of harm.” Id.

      In summary, by moving the victim to the trash can, the Defendant did not merely create
a danger or increase the victim’s risk of harm. He actually inflicted additional physical injury
upon the victim as a result of his moving her around the house to the trash can, where he

                                               10
severely beat her and began to touch her body with foreign objects retrieved from the trash.
Further, one could reasonably infer that the Defendant dragged the victim away from the front
yard in order to avoid public view, specifically Mr. Boling’s view. Thus, the Defendant’s
conduct also lessened his “risk of detection.” See id. Because the Defendant’s conduct,
which was “beyond that necessary” to consummate the victim’s rape, both resulted in
additional injury to the victim and was calculated to avoid detection of the attack, we conclude
that it was not “essentially incidental” to the attempted aggravated rape of the victim. See
Anthony, 817 S.W.2d at 306. As such, the Defendant’s dual convictions for aggravated
kidnapping and attempted aggravated rape do not violate due process principles. Because the
Defendant’s dual convictions breached no “clear and unequivocal rule of law,” entry of these
judgments was not “plain error.” See Smith, 24 S.W.3d at 282-83. He is not entitled to relief
on this issue.

                                B. Sufficiency of the Evidence

        The Defendant contends the evidence was insufficient to support his convictions for
aggravated kidnapping and two counts of attempted aggravated rape. Specifically, he argues:
(1) that the evidence was insufficient to establish his identity as the victim’s assailant; (2) that
the evidence did not show he took a “substantial step” toward sexually penetrating the victim
and, therefore, did not support his conviction for attempted aggravated rape; and (3) that the
evidence did not prove beyond a reasonable doubt that he committed aggravated kidnapping.
Additionally, the Defendant renews his due process objection to his convictions, arguing that
the evidence was insufficient as a matter of law to support his convictions for aggravated
kidnapping and attempted aggravated rape. We have already addressed and rejected the
Defendant’s due process argument.

       When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State, “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 (1979); see Tenn. R. App. P. 13(e), State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be based entirely on
circumstantial evidence where the facts are “so clearly interwoven and connected that the
finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State v.
Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to be given to
circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the extent
to which the circumstances are consistent with guilt and inconsistent with innocence, are
questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations

                                                11
omitted).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and
value of the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859.
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:

        This well-settled rule rests on a sound foundation. The trial judge and the jury
        see the witnesses face to face, hear their testimony and observe their demeanor
        on the stand. Thus the trial judge and jury are the primary instrumentality of
        justice to determine the weight and credibility to be given to the testimony of
        witnesses. In the trial forum alone is there human atmosphere and the totality
        of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 212 Tenn. 464, 370
S.W.2d 523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable inferences
which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith,
24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a
guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

                                          1. Identity

       The Defendant argues first that the evidence did not establish his identity as the
perpetrator of the crimes in this case for the following reasons: because the evidence was
“largely based on the testimony of the victim”; the videotape recovered from Lutheran Village
is inconclusive as to the perpetrator’s identity; the jogging suit recovered from the
Defendant’s girlfriend’s house was not bloody; and the Defendant bore no significant scratch
marks when he was interviewed by police four days after the attack.

       The State responds that the victim’s identification alone supports the Defendant’s

                                               12
identity as the perpetrator, noting that the victim spent a substantial amount of time conversing
with the Defendant in broad daylight before he attacked her. The State notes also that
Amanda Walker identified the Defendant as the man who, earlier on the day of the victim’s
attack, followed her to Lutheran Village, a complex near the victim’s home. The State notes
also that the surveillance video that recorded the attack shows that the assailant resembled the
Defendant.

        The identity of the perpetrator is an essential element of any crime, and it, therefore,
must be proven by the State beyond a reasonable doubt. State v. Rice, 184 S.W.3d 646, 662
(Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). We would also
note that issues of identity and credibility are classic jury questions. State v. Gregory Mullins,
No. E2004-02314-CCA-R3-CD, 2005 WL 2045151, at *5 (Tenn. Crim. App., at Knoxville,
Aug. 25, 2005), no Tenn. R. App. P. 11 application filed. Further, as stated above, questions
concerning the credibility of the witnesses are resolved by the trier of fact. Evans, 108
S.W.3d at 236. This Court does not second-guess the weight, value, or credibility afforded
to the evidence by the jury.

        At the Defendant’s trial, the victim identified the Defendant as her assailant. This
alone is sufficient to prove the Defendant’s identity as her attacker. See State v. Toomes, 191
S.W.3d 122, 130 (Tenn. Crim. App. 2005). There was also ample other evidence supporting
his identity. Amanda Walker identified the Defendant from a photographic line-up as the man
who followed her to Lutheran Village on the day of the attack. Diane Boling, a neighbor who
witnessed part of the attack from her front yard, also identified the Defendant as the man she
saw attack the victim. According to Lt. Smith, the Defendant was immediately recognizable
from the Luthern Village security footage as the man who attacked the victim. This evidence
provided a strong basis for the jury to find that the Defendant was the perpetrator of the
crimes against the victim. Further, contrary to the Defendant’s argument on appeal, when
police photographed the Defendant four days after the attack, the Defendant in fact had a
scratch mark on the back of his neck. We conclude that the evidence supports the jury’s
finding that the State proved beyond a reasonable doubt that the Defendant was the assailant
in this case. He is not entitled to relief on this issue.

             2. “Substantial Step” Element of Attempted Aggravated Rape

       The Defendant contends that, because the Defendant never explicitly asked the victim
for sex or removed his own clothing, the evidence did not establish that the Defendant took
a substantial step toward sexually penetrating the victim. The Defendant also argues that the
victim’s testimony that something brushed her bare buttocks did not show that the Defendant
took a substantial step because, as the victim was on the ground, a variety of objects could
have come into contact with her buttocks.

                                               13
       The State responds that, because the Defendant asked the victim whether she was
single earlier on the evening of the attack, repeatedly tried to force her legs apart after he had
removed her pants and underwear, and was wielding a plastic strip when the victim felt
something brush her buttocks, the Defendant took a substantial step toward raping the victim.

        In this case, the Defendant was convicted of attempted aggravated rape. A conviction
for aggravated rape requires proof beyond a reasonable doubt that the Defendant unlawfully
sexually penetrated the victim and either did so through force and coercion, caused bodily
injury, or was aided or abetted by another person and used force or coercion. See T.C.A. §
39-13-502 (2009). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s
body, but emission of semen is not required.” T.C.A.. § 39-13-501.

       The Tennessee Code Annotated also provides that:

        (a) A person commits criminal attempt who, acting with the kind of culpability
        otherwise required for the offense:

               (1) Intentionally engages in action or causes a result that would
               constitute an offense if the circumstances surrounding the conduct were
               as the person believes them to be;

               (2) Acts with intent to cause a result that is an element of the offense,
               and believes the conduct will cause the result without further conduct
               on the person’s part; or

               (3) Acts with intent to complete a course of action or cause a result that
               would constitute the offense under the circumstances surrounding the
               conduct as the person believes them to be, and the conduct constitutes
               a substantial step toward the commission of the offense.

        (b) Conduct does not constitute a substantial step under subdivision (a)(3)
        unless the person’s entire course of action is corroborative of the intent to
        commit the offense.

T.C.A. § 39-12-101. Subdivision (a)(3) applies to the Defendant’s conduct. Thus, the State
was required to prove that the Defendant’s conduct constituted a substantial step toward the
commission of aggravated rape and that he acted intending to commit aggravated rape.



                                               14
       In State v. Fowler, the Tennessee Supreme Court held that a defendant took a
“substantial step” toward statutory rape where the defendant delivered payment to an
undercover officer for what he believed was a fourteen-year old sexual slave. 3 S.W.3d 910
(Tenn. 1999). The Court explained that, if it required the defendant to engage in conduct
beyond the delivery of the payment, it would “create a dangerous precedent by requiring that
the defendant take delivery of the boy or actually begin some act that would approach sexual
penetration.” Id. at 912. The Court observed that only the intervention of the undercover
officer in halting the transaction and arresting the defendant stopped the defendant from his
intended purpose of raping the boy. Id. at 911. Where a defendant’s actions include physical
contact with a victim, the convicting evidence generally “amply supports” the defendant’s
conviction for attempting a sexual crime. See, e.g., State v. Elkins, 102 S.W.3d 578, 585
(Tenn. 2003).

        In this case, the Defendant had prolonged, violent physical contact with the victim
under circumstances that clearly demonstrated that he desired to have sexual intercourse with
her. Thus, this case is well within the class of cases where the evidence “amply supports” a
conviction for an attempted sexual offense. See id. Earlier on the evening of the attack, the
Defendant asked the victim whether she was single. Later, after stalking the victim around
her neighborhood, the Defendant choked and struck the victim, and began to forcibly remove
the victim’s clothing, including her underwear. Realizing that he was being observed, and
facing increasing resistance from the victim, the Defendant drug the victim away from the
public street to a nearby trash can. Beside the trash can, the Defendant repeatedly tried to pry
the victim’s legs apart. After observing the Defendant pick up a strip of plastic from the trash
can, the victim felt something consistent with a piece of plastic brush her buttocks. The
strongest legitimate inference one can take from this evidence is that the Defendant formed
the intent to sexually penetrate the victim at some point before or at the beginning of her
attack and that, when the Defendant beat the victim into submission, ripped her clothing off,
pried her legs apart, and jabbed at her buttocks with a plastic strip, he acted with the intent to
sexually penetrate the victim. The Defendant did not penetrate the victim because the Bolings
intervened in the attack, and the victim was able to fight the Defendant off and escape. These
circumstances make clear that the Defendant’s “entire course of action” was consistent with
an “intent to sexually penetrate the victim.” See T.C.A. § 39-12-101(b). Consequently, we
conclude that the Defendant took a substantial step toward committing aggravated rape. See
T.C.A. § 39-12-101(a)(3). Accordingly, we conclude the evidence in this case amply supports
the jury’s finding that the Defendant committed attempted aggravated rape. He is not entitled
to relief on this issue.

                                 3. Aggravated Kidnapping

       The Defendant’s final contention is that the evidence was insufficient to support his

                                               15
aggravated kidnapping conviction. He does not specify what the evidence failed to show.
Rather, he alleges broadly that the evidence failed to show “beyond a reasonable doubt” that
he was guilty of aggravated kidnapping.

       The State responds that the evidence sufficiently supports the Defendant’s aggravated
kidnapping conviction because it shows that the Defendant dragged the victim by her hair in
order to move her away from the street, near the trash can. The State argues that the act of
dragging the victim by her hair alone shows that the Defendant moved the victim to the trash
can against her will.

       As relevant to this case, a conviction for aggravated kidnapping may lie where a
defendant falsely imprisons a victim, and the victim suffers bodily injury. T.C.A. § 39-13-304
(2009). False imprisonment occurs where a defendant “knowingly removes or confines
another unlawfully so as to interfere substantially with the other’s liberty.” T.C.A. § 39-13-
302(a) (2009).

        In this case, the Defendant subdued the victim by placing her in a headlock. After the
victim was briefly able to free herself from the Defendant’s grasp by stabbing the Defendant
with her keys, the Defendant again subdued the victim by violently grabbing her by her
ponytail. As he did so, he ordered the victim to go with him to the back of her house, but the
victim refused, continuing to struggle against him. This prompted the Defendant to use the
victim’s ponytail to remove her from where they struggled near the street to a more remote
area near the side of her house where a trash can was located. While dragging the victim to
this area, the side of the victim’s body was dragged along the ground. As the victim continued
to struggle to get away from the Defendant, he continued to beat and kick her, causing
numerous abrasions to her face and body. Once he was able to reach the trash can, the
Defendant retrieved a strip of plastic, which he used to beat the victim as she struggled to free
herself. The Defendant’s use of violent means to move the victim from the front of the yard
shows that he was moving the victim against her will. Moreover, the Defendant explicitly
requested that the victim go to the back yard, and she refused this request and continued to
struggle against the Defendant. Thus, we conclude that the evidence shows that the
Defendant “knowing removed [the victim] so as to interfere substantially with [her] liberty.”
See T.C.A. § 39-13-302(a)(4). Further, because the victim suffered abrasions to her face and
legs and a broken jaw, requiring a week-long hospital stay, her jaw to be wired shut for four
months, and a year to fully recover and return to work, the victim suffered bodily injury as a
result of being removed against her will. See T.C.A. § 39-13-304. As such, we conclude the
evidence proved beyond a reasonable doubt that the Defendant was guilty of aggravated
kidnapping. He is not entitled to relief on this issue.

                                       III. Conclusion

                                               16
       After a thorough review of the record and applicable law, we conclude that the
evidence was sufficient to support the Defendant’s convictions and that his convictions do not
raise due process concerns. Accordingly, we affirm the trial court’s judgments.

                                                   _________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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