        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 19, 2012 Session

            STATE OF TENNESSEE v. GLENN LYDELL McCRAY

                Appeal from the Criminal Court for Davidson County
                    No. 2010-C-2362     Monte Watkins, Judge




               No. M2011-02411-CCA-R3-CD - Filed December 6, 2013


T HOMAS T. W OODALL, J., dissenting.

       I respectfully dissent. Defendant was convicted as charged in the indictment for two
counts of aggravated assault against the victim. One of the convictions for aggravated
assault resulted from the allegations in the indictment that Defendant

        did cause [the victim] to reasonably fear imminent bodily injury, and
        [Defendant] did use or display a deadly weapon, to-wit: a rifle, in violation
        of Tennessee Code Annotated § 39-13-102[.]

       The other conviction for aggravated assault resulted from the allegations in the
indictment that Defendant

        did cause [the victim] to reasonably fear imminent bodily injury, and
        [Defendant] did use or display a deadly weapon, to-wit: a knife, in violation
        of Tennessee Code Annotated § 39-13-102[.]

        Both of these convictions have been affirmed directly by this court and, at least
implicitly, by our supreme court. The same person is the victim in each aggravated assault
case and in the especially aggravated kidnapping case. Defendant was convicted of
committing especially aggravated kidnapping based upon the following allegations set forth
in the indictment:

       [Defendant] . . . did knowingly and unlawfully remove or confine [the victim],
       so as to interfere substantially with the liberty of [the victim], the kidnapping
       accomplished with deadly weapons . . . in violation of Tennessee Code
       Annotated § 39-13-305[.]
       The deadly weapons used to prove the “deadly weapon” element of both aggravated
assault convictions were the same deadly weapons used to prove the “deadly weapon”
element of the especially aggravated kidnapping conviction. However, I conclude that
rationally and logically, that is the only similarity between the aggravated assault convictions
and the especially aggravated kidnapping conviction which is relevant to a White harmless
error analysis, other than the fact that all three offenses were committed by Defendant within
the same defined period of time.

        First of all, the aggravated assault convictions were not based upon any bodily injury
to the victim. Proof of bodily injury and/or serious bodily injury did not have to be submitted
in order to sustain either conviction of aggravated assault. Proof beyond a reasonable doubt
of the first aggravated assault charge is sustained by the victim’s testimony that she thought
she was going to die during the time period when Defendant used or displayed the rifle while
hitting her with it and his fists. Proof beyond a reasonable doubt of the other aggravated
assault charge is sustained by the victim’s testimony that she was “afraid for her life” when
Defendant held the knife to her neck.

        Realistically, the other evidence of Defendant’s actions which have nothing to do with
the allegations of aggravated assault set forth in the indictment overwhelmingly prove the
necessary element of substantial interference with the liberty of the victim by Defendant.
That includes the proof that Defendant dragged the victim around the apartment by her
ponytail, that Defendant “split” the victim’s cell phone when she grabbed it, and that
Defendant hit the victim on the side of her head with a metal baseball bat with sufficient
force to turn her ear purple and cause severe impairment of her hearing. Indeed, in McCray
I, we stated,

        The Defendant’s hitting [the victim] with the bat to prevent her leaving
        demonstrates the element of false imprisonment by unlawful removal or
        confinement as necessary for a kidnapping offense.

McCray I, slip op. at 11.

        Substantial interference with the victim’s liberty, by striking her in such manner with
a metal baseball bat, was beyond, separate to, and apart from the aggravated assaults
committed by use or display of a rifle and a knife causing the victim to reasonably fear
imminent bodily injury. Reviewing Defendant’s case in light of Cecil, as we are mandated
to do, I conclude that though there was error in not giving the instructions required by White,
the error was harmless beyond a reasonable doubt. There are some facts in Defendant’s case
which are similar to the facts in Cecil, as noted in the majority opinion. However, in Cecil,
the trial judge made statements at both the sentencing hearing and the motion for new trial
that caused our supreme court to conclude “the trial judge expressed doubts about the


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propriety of a separate conviction for false imprisonment.” State v. Cecil, 409 S.W.3d 599,
611 (Tenn. 2013). No such comments by the “13th juror” are evident in Defendant’s case.

        Without hesitation, I conclude that a properly instructed jury in this case would have
found “Defendant’s actions toward the victim constituted a substantial interference with her
liberty,” id. at 612, and would affirm.

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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