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

           STATE OF TENNESSEE v. JEROME MAURICE TEATS

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

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

GARY R. WADE, J., dissenting.

       A majority of this Court has determined that when a defendant is charged with the
offenses of kidnapping and robbery as to different victims during a single criminal
episode, the jury is not entitled to an instruction, pursuant to State v. White, 362 S.W.3d
559 (Tenn. 2012), that in order to convict on the kidnapping charge it must first
determine whether the removal or confinement of the kidnapping victim is “essentially
incidental” to the contemporaneous robbery of another victim. Because I cannot agree
with my colleagues that the White instruction is never applicable to these circumstances,
I respectfully dissent.

       The history of this area of the law is critical to understanding the impact that our
2012 decision in White had upon well-established principles of due process. Based upon
concerns that our kidnapping statutes might be construed as unconstitutionally broad, this
Court, in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), adopted a due process analysis
pursuant to article I, section 8 of the Tennessee Constitution that inquired as to whether
“the confinement, movement, or detention” supporting a kidnapping offense was
“essentially incidental” to an accompanying crime, “or whether it [was] significant
enough . . . to warrant independent prosecution and . . . [,] therefore, sufficient to support
[a kidnapping] conviction.” Id. at 306.

       Six years after the Anthony decision, the Court adopted a two-part test that
addressed (1) whether the removal or confinement of a kidnapping victim was beyond
that necessary to consummate an accompanying offense, and (2) whether the removal or
confinement prevented the victim from summoning help, lessened the defendant‟s risk of
detection, or created a significant danger or increased the victim‟s risk of harm. State v.
Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). In State v. Richardson, 251 S.W.3d 438, 443
(Tenn. 2008), the Court explicitly recognized the Dixon two-part test as a replacement for
the Anthony “essentially incidental” analysis. Despite changing the analysis, however,
the Court continued to “adhere to the due process principles adopted in Anthony.” Id.
Indeed, under both Anthony and Dixon, our appellate courts were required to conduct a
separate due process analysis for kidnapping convictions accompanied by another
offense. See Dixon, 957 S.W.2d at 535-36; Anthony, 817 S.W.2d at 306-07.

        In White, we eliminated the need for a separate due process analysis on appellate
review, holding that because a fundamental component of due process is that no person
can be convicted without sufficient proof of every element of a charged offense, the
question of whether the elements of kidnapping have been met is one for the jury in the
first instance. 362 S.W.3d at 577. To guide this determination, we articulated a jury
instruction intended “to provide clear guidance . . . with regard to the statutory language,”
which we deemed “necessary in order to assure that juries properly afford constitutional
due process protections to those on trial for kidnapping and an accompanying [offense].”
Id. at 578. In consequence, the White instruction provides guidance on the “substantial
interference” element of the kidnapping statute by instructing the jury to consider the
following factors:

        the nature and duration of the victim‟s removal or confinement by the
         defendant;
        whether the removal or confinement occurred during the commission of
         the separate offense;
        whether the interference with the victim‟s liberty was inherent in the
         nature of the separate offense;
        whether the removal or confinement prevented the victim from
         summoning assistance, although the defendant need not have succeeded
         in preventing the victim from doing so;
        whether the removal or confinement reduced the defendant‟s risk of
         detection, although the defendant need not have succeeded in this
         objective; and
        whether the removal or confinement created a significant danger or
         increased the victim‟s risk of harm independent of that posed by the
         separate offense.

Id. at 580-81.

       Our decision to put the due process analysis into the hands of the jury, with
appellate review of the sufficiency of the evidence serving as “the ultimate component of
this constitutional safeguard,” id. at 578, was based, in part, on our understanding that
“„[w]hether the movement or confinement of the victim is merely incidental to and

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necessary for another crime will depend on the particular facts and circumstances of each
case,‟” id. at 577 (alteration in original) (quoting State v. Salamon, 949 A.2d 1092, 1120
(Conn. 2008)). Guided by the principles expressed in other jurisdictions, we concluded
in White that “whether the evidence, beyond a reasonable doubt, establishes each and
every element of kidnapping, as defined by statute, is a question for the jury properly
instructed under the law.” Id. This is because “[t]he jury, whose primary obligation is to
ensure that a criminal defendant has been afforded due process, must evaluate the proof
offered at trial and determine whether the State has met its burden.” Id. Although we
overruled the Anthony/Dixon line of cases insofar as they required a separate due process
analysis on appellate review, we specifically stated that “[o]ur decision [in White] should
not be construed as creating a new standard for kidnapping. Instead, we 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.” Id. at 578.

       In this context, the White instruction was created for the same purpose as the
separate due process tests first articulated in Anthony and subsequently refined in
Dixon—that is, to effectuate the “legislative intent to punish as kidnapping only those
instances in which the removal or confinement [of a victim] has criminal significance
above and beyond that necessary to consummate some underlying offense, such as
robbery or rape.” Id. at 576-77. As Presiding Judge Joseph M. Tipton stated in his
dissent to the Court of Criminal Appeals‟ majority opinion in this case, “I do not believe
the legislature intended robbers to be prosecuted as kidnappers.” State v. Teats, No.
M2012-01232-CCA-R3-CD, 2014 WL 98650, at *31 (Tenn. Crim. App. Jan. 10, 2014)
(Tipton, P.J., dissenting). In consequence, our decision in White changed the due process
analysis from a separate test to be conducted on appellate review, as in Anthony and
Dixon, to one that is entrusted to a properly instructed jury with the appellate courts then
reviewing the sufficiency of the evidence; however, “[White] did not alter the rationale in
Anthony regarding the circumstances in which the due process protection arises.” Id.;
see also White, 362 S.W.3d at 578 (expressly overruling Anthony and its progeny insofar
as they required our appellate courts to conduct a separate due process analysis that was
no longer necessary in light of the White jury instruction accompanied by appellate
review of the sufficiency of the evidence). In this regard, it is notable that many of the
factors articulated in the White jury instruction are identical to the Anthony/Dixon
considerations that were part of the due process analysis conducted on appellate review.

       In my assessment, the majority has misconstrued the historical context of these
well-established principles of due process and, regrettably, has adopted the view of one
panel of the Court of Criminal Appeals that our decision in White “wisely . . . overruled”
every part of the Anthony decision, including its “expansive application of due process.”
See Teats, 2014 WL 98650, at *21 (majority opinion). This reading of White, which
improperly limits the due process rights of criminal defendants, has led to two faulty
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conclusions: (1) that the Court in White did not intend for the new jury instruction to
apply to the circumstances presented by the case before us now; and (2) that the removal
or confinement of one victim can never be “essentially incidental” to the
contemporaneous robbery of another victim.

       Initially, I agree with the observation by the majority of the panel of the Court of
Criminal Appeals in this case that the White instruction was “drafted with the assumption
that the defendant is being tried for dual offenses against a single victim. Certainly, that
was the factual scenario before the [supreme] court in th[at] case.” Teats, 2014 WL
98650, at *19 (emphasis added). I do not, however, agree with the next paragraph of the
Court of Criminal Appeals‟ majority: “Logic dictates that, if the [Tennessee Supreme
C]ourt intended the [White] instruction to be required in cases involving circumstances
similar to the instant case, the [C]ourt would have phrased the instruction as „the victim
of the underlying felony.‟ The [C]ourt obviously chose not to do so.” Id. at *20. To the
contrary, I believe the more logical conclusion is that White addressed only the facts in
that case—a single victim as to both a robbery charge and a kidnapping charge—whereas
the case before us involves one victim as to the robbery charge and different victims as to
the kidnapping charges.1 In my view, constitutional due process applies to either
instance.

       Under nearly identical circumstances, this Court has previously determined that
separate kidnapping convictions are not permissible when the confinement of multiple
victims is no longer than that necessary to accomplish the accompanying offense of
robbery. In Anthony, the defendants robbed a Shoney‟s restaurant while a manager and
five employees were present. 817 S.W.2d at 301. The defendants were convicted of the
robbery of the restaurant manager, as well as the aggravated kidnappings of the manager
and the five other employees—some of whom were detained outside the restaurant and
others who were detained inside the restaurant. Id. The manager and at least two of the
other employees were forcibly moved and held at gunpoint. Id. Although the defendants
were charged with robbery only as to the restaurant manager, this Court held that none of
the six kidnapping convictions could stand. Id. at 307-08. Later, in Dixon, this Court
confirmed that reversal of the kidnapping convictions in Anthony was proper because
“the movement or confinement did not exceed that normally incident to robbery.” 957
S.W.2d at 535. Clearly, both the Anthony Court and the Dixon Court agreed that the
removal or confinement of one victim, depending upon the facts of the case, could be
“essentially incidental” to the contemporaneous robbery of a different victim.

       1
         The conclusion of the Court of Criminal Appeals was also based upon the erroneous
observation that “the issue we address today was not presented to the Anthony [C]ourt.” Id. at
*21. In fact, as discussed below, the circumstances of this case are strikingly similar to the
circumstances at issue in Anthony.
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       The circumstances in this instance are no different, except for the nature of the due
process analysis that should apply. The kidnapping convictions would not stand under
the Anthony “essentially incidental” analysis; they would not stand under the Dixon two-
part test; and now, under White, a jury has not had the opportunity to evaluate the facts
with the proper instruction as to the statutory elements of the kidnapping offense. In
consequence, the Defendant has not received any of the due process protections we set
out in Anthony, Dixon, or, most importantly, White.

       In this instance, the Defendant and his accomplice robbed a Shoney‟s restaurant
while a manager and four other employees were present. The Defendant‟s accomplice
gathered the four employees in one area and stood guard over them while the Defendant
located the manager in the restaurant‟s office and demanded money. As soon as the
Defendant took the money from the manager, he and his accomplice fled the scene.
None of the employees were physically harmed during the robbery, which lasted between
five and ten minutes. Soon after the Defendant and his accomplice left the restaurant, the
manager instructed a restaurant patron to call the police, and the two robbers were
quickly apprehended.

        In my view, this evidence could be interpreted in at least two ways. On one hand,
a rational juror might conclude that the Defendant intended only to steal money from the
restaurant, and that any removal or confinement of the four employees was in furtherance
of that goal, making it essentially incidental to the robbery of the manager. On the other
hand, the evidence could support a finding that the removal or confinement of the four
employees went beyond that necessary to accomplish the robbery, making it sufficient to
sustain separate convictions for kidnapping. Because the proof could be interpreted in
different ways, I would afford the Defendant his entitlement to constitutional due process,
reverse each of his convictions for especially aggravated kidnapping, and remand for a
properly instructed jury to determine whether there was a removal or confinement of the
four employees that was not essentially incidental to the robbery of the restaurant
manager. See State v. Cecil, 409 S.W.3d 599, 612-13 (Tenn. 2013) (remanding for a new
trial because the question of whether the removal or confinement of a victim is essentially
incidental to an accompanying offense is one for the jury to decide as a matter of fact).
While the verdict of the jury could very well be the same upon retrial, due process of the
law requires that the verdict be based upon complete and accurate instructions as to each
element of the kidnapping statute.


                                                 _________________________________
                                                 GARY R. WADE, JUSTICE

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