         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 12, 2003 Session

           STATE OF TENNESSEE v. CARVIN LAMONT THOMAS

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 2000-D-2269 Steve Dozier, Judge



                      No. M2002-01716-CCA-R3-CD - Filed May 28, 2003



JOSEPH M. TIPTON, J., dissenting.

       I respectfully dissent from the majority opinion’s conclusions that State v. Anthony, 817
S.W.2d 299 (Tenn. 1991), is not implicated and that the especially aggravated kidnapping conviction
withstands an Anthony analysis. I believe that the aggravated kidnapping conviction should be
dismissed.

        Initially, I note that I believe an aggravated robbery by which several people are held at
gunpoint while one person is made to turn over money to the robber may well reflect aggravated
assaults committed against the people being held. However, I believe Anthony prohibits any
kidnapping offenses under the same circumstances.

        In Anthony, the defendant and an accomplice robbed a Shoney’s Restaurant. At gunpoint,
three employees outside the building were made to lie on the ground, and the accomplice detained
them while the defendant entered the restaurant. Inside, the defendant met the manager in the front
area and ordered him to go to the office. On the way, the defendant saw another employee whom
he grabbed and, with the gun to her head, forced to go to the office. When the manager told the
defendant that the safe was in the front of the restaurant, the two of them went to the safe, where the
defendant took money. While leaving, the defendant saw another employee leaving the restroom
and, at gunpoint, forced him back into the restroom. The supreme court rejected aggravated
kidnapping convictions based upon the defendant’s actions with each of the employees. In doing
so, the court stated:

               The test is not whether the detention was an “integral part or essential
               element” of the robbery, but whether it was “essentially incidental”
               to that offense. We conclude that the activity in question here was
               incidental.
                      There is no significant difference between what happened to
               the employees who were inside the building and those who were not.
               The only distinguishing factor is their location at the time of the
               robbery. Indeed, had [the three employees] been standing just inside
               the back door, rather than a few feet outside it, there would be no
               question that their detention was essentially incidental to the robbery.

                        We conclude that geography alone should not control the
               outcome in this case. Nothing that occurred in connection with the
               detention of [the three employees] was sufficiently significant, in and
               of itself, to warrant separate convictions for their kidnapping. These
               three employees were held only briefly; they were not harmed in any
               way; nor were they forced to move to a different location where
               additional harm might have befallen them. They were not, in short,
               subjected to any “substantially increased risk of harm over and above
               that necessarily present in the crime of robbery itself.”

817 S.W.2d at 307.

        In the present case, the victim of the especially aggravated kidnapping, William Swift, was
asleep on the couch and was made to lie on the floor at gunpoint. The defendant then went to Mr.
Roundtree’s bedroom to commit the robbery. Given the locations of the employees in Anthony and
given what they were required to do, I fail to see any relevant distinction between them and Mr.
Swift. I would vacate the defendant’s conviction for especially aggravated kidnapping.




                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE




                                                 -2-
