        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        AUGUST 1999 SESSION
                                                 FILED
                                                  October 19, 1999

                                                Cecil Crowson, Jr.
TROY LEE GODWIN,                 )             Appellate Court Clerk
                                 )
           Appellant,            )   C.C.A. No. 02C01-9811-CC-00364
                                 )
vs.                              )   Gibson County
                                 )
STATE OF TENNESSEE,              )   Hon. Dick Jerman, Jr., Judge
                                 )
           Appellee.             )   (Post Conviction)
                                 )

FOR THE APPELLANT:                   FOR THE APPELLEE:

ROBERT W. NEWELL                     PAUL G. SUMMERS
Attorney At Law                      Attorney General & Reporter
P.O. Box 99
Humboldt, TN 38343                   GEORGIA BLYTHE FELNER
                                     Counsel for State
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     CLAYBURN PEEPLES
                                     District Attorney General

                                     BRIAN FULLER
                                     Asst. District Attorney General
                                     110 South College Street, Suite 200
                                     Trenton, TN 38382




OPINION FILED: _____________



AFFIRMED



JAMES CURWOOD WITT, JR., JUDGE
                                        OPINION


              The petitioner, Troy Lee Godwin, appeals the Gibson County Circuit

Court’s dismissal of his petition for post-conviction relief. The petitioner raises two

issues: (1) whether he was denied due process of law and equal protection of the

law because the convicting evidence of aggravated rape was insufficient, and (2)

whether the trial court erred in not dismissing the charge of aggravated kidnapping,

which was based upon a theory of complicity, for insufficiency of the convicting

evidence in view of the dismissal of the charge against the principal offender. See

State v. Coleman, 865 S.W.2d 455 (Tenn. 1993). We affirm the trial court’s

judgment.



              Following his June 21, 1989 convictions of armed robbery, aggravated

rape, and aggravated kidnapping, the petitioner’s first direct appeal resulted in this

court’s remand for resentencing. State v. Troy Lee Godwin, No. 4 (Tenn. Crim.

App., Jackson, July 25, 1990) (Godwin I). After resentencing and a subsequent

appeal of the sentencing order, this court again reversed for resentencing. State

v. Troy Lee Godwin, No. 02C01-9103-CR-00037 (Tenn. Crim. App., Jackson, Sept.

18, 1991) (Godwin II). After the third sentencing determination, this court modified

the sentences. State v. Troy Lee Godwin, No. 02C01-9206-CC-00139 (Tenn. Crim.

App., Jackson, Feb. 3, 1993) (Godwin III). On May 2, 1996, the petitioner filed a

petition for post-conviction relief, which the trial court dismissed as time-barred.

This court overturned that ruling on direct appeal. Troy Lee Godwin v. State, No.

02C01-9611-CC-00426 (Tenn. Crim. App., Jackson, Sept. 19, 1997) (Godwin IV).

After remand, amendment of the petition, and a hearing held October 15, 1998, the

trial court dismissed the petition for post-conviction relief. It is from this action that

the current appeal is taken.



              The 1989 convictions resulted from the 1988 robbery of a shoe store

by the petitioner and a co-defendant, John D. Coleman. Coleman held a pistol and

forced a female clerk to surrender money, and then Coleman had the petitioner wait

                                            2
near the door while Coleman raped the female clerk at gunpoint. Godwin I, slip op.

at 2-3. The petitioner was convicted of three offenses: armed robbery, for which

he received a sentence of ten years, aggravated rape, for which he received a

sentence of 25 years, and aggravated kidnapping, for which he received a sentence

of fifteen years. These sentences are running concurrently as a result of Godwin

II and Godwin III.



              In Godwin’s co-defendant’s case, State v. Coleman, our supreme

court held that Coleman’s aggravated kidnapping was incidental to the commission

of the other felonies and reversed the conviction based upon State v Anthony.

See Coleman 865 S.W.2d at 957. Anthony holds that due process requirements

forbid a kidnapping prosecution when the confinement, movement or detention of

the victim is “essentially incidental to the accompanying felony”. State v. Anthony,

817 S.W.2d 299, 306 (Tenn. 1991).



              In Godwin I, the petitioner argued “that the evidence is not sufficient

beyond a reasonable doubt to convict him of the crimes charged.” Godwin I, slip op.

at 10. This court held that the evidence was sufficient to convict the petitioner “as

aider and abettor in the commission of aggravated kidnapping and aggravated rape,

. . . and jointly guilty with Coleman of the crime of robbery with a deadly weapon.”

Id. at 11. The petitioner did not seek the supreme court’s permission to appeal this

decision.



              In the present case, the trial court denied post-conviction relief via an

order which does not specify the grounds for the court’s action; however, the state

argued that the petitioner’s claims were waived and, during the post-conviction

hearing, the court indicated that at least part of the petitioner’s claims “should have

been addressed on . . . direct appeal.”



              Both of the petitioner’s appellate issues are predicated upon a claim



                                          3
of insufficiency of the convicting evidence. Because the sufficiency of the evidence

was raised and resolved on direct appeal in Godwin I, we conclude that all

sufficiency of the evidence issues have been either previously determined or

waived. See Tenn. Code Ann. § 40-30-206 (f), (g), (h) (1997). Accordingly, the

issues raised on this appeal as sufficiency issues were properly dismissed.



              We have considered whether the petitioner’s second issue, which is

grounded upon the result in Coleman, although not now cognizable as a sufficiency

issue, might be reviewed as a straightforward issue of constitutional error. At the

time this court filed its opinion in Godwin I, Anthony had not been decided.

Moreover, there apparently had never been a hearing in the petitioner’s case on the

Anthony issue, and accordingly, the Anthony constitutional issue had not been

previously determined insofar as the petitioner is concerned. See Tenn. Code Ann.

§ 40-30-206(h) (1997).



              However, we are constrained to conclude that this issue has been

waived. An issue is “waived if the petitioner personally or through an attorney failed

to present it for determination in any proceeding before a court of competent

jurisdiction.” Tenn. Code Ann. § 40-30-206(g) (1997). An exception is provided

when the claim is based upon a constitutional right that “was not recognized as

existing at the time of trial.” Tenn. Code Ann. § 40-30-206(g)(1) (1997). The

problem for the petitioner in avoiding the waiver rule is that, in State v. Denton, 938

S.W.2d 373 (Tenn. 1996), our supreme court said that Anthony did not create a

newly recognized constitutional right. Denton, 938 S.W.2d at 377. In light of this

determination, the failure to raise the Anthony issue on direct appeal constitutes

waiver.




              For the reasons explained above, we affirm the judgment of the trial

court.



                                          4
                                  _________________________________
                                  JAMES CURWOOD WITT, JR., JUDGE




CONCUR:




_______________________________
DAVID H. WELLES, JUDGE




_______________________________
JERRY L. SMITH, JUDGE




                                  5
