        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 28, 2015

           STATE OF TENNESSEE v. RANDY WAYNE JOHNSON

                 Appeal from the Criminal Court for Carter County
                   Nos. 22386, 22378    Robert E. Cupp, Judge




                 No. E2014-01613-CCA-R3-CD – Filed June 12, 2015




Defendant, Randy Wayne Johnson, challenges the sufficiency of the evidence supporting
his conviction for especially aggravated kidnapping. He argues that the kidnapping was
merely incidental to the accompanying assault, of which he was also convicted. Because
Defendant‟s conduct in committing the kidnapping constituted a separate and
independent offense, there is sufficient evidence to support his conviction, and Defendant
is not entitled to relief.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

David F. Bautista, District Public Defender, and David Crichton, Assistant Public
Defender, Elizabethton, Tennessee, for the appellant, Randy Wayne Johnson.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Tony Clark, District Attorney General; and Dennis D. Brooks,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                  Factual Background

       This is Defendant‟s direct appeal from his multiple convictions, resulting in a
sentence of twenty-five years at 100 percent, from the Criminal Court of Carter County.
       On November 8, 2013, the Carter County Grand Jury returned a two-count
indictment in case number 22386 against Defendant for felony evading arrest, a Class E
felony, and aggravated assault, a Class C felony. On the same day, the grand jury also
returned an indictment in case number 22378 against Defendant for: 1) especially
aggravated kidnapping, 2) aggravated assault, 3) driving under the influence (“DUI”), 4)
evading arrest by motor vehicle, 5) driving on a suspended license (“DOSL”), and 6)
simple possession of a Schedule II controlled substance. On June 24, 2014, the trial court
held a bench trial.

       Brooke Thornburg, the victim in case number 22378, testified that she was thirty-
two years old and had three minor children. On March 19, 2013, Ms. Thornburg lived in
the Lynwood Apartments in Elizabethton. At that time, she had been romantically
involved with Defendant for around six or eight months. Although they did not live
together, Defendant stayed with Ms. Thornburg “most of the time.”

         On the night of the incident, the couple “grabbed some food,” and Defendant “had
a little bit of Crown Royal liquor.” Later, they were “hanging out at home” when one of
Defendant‟s friends called and asked for a ride to Jonesborough. Defendant asked Ms.
Thornburg to accompany him, and they went to Talladega Apartments in Elizabethton to
pick up a man named Kevin, whom Ms. Thornburg had never met.1

       They all rode in a “single cab truck” with a “blue, long bed.” Defendant drove,
and Ms. Thornburg sat between the two men. Nothing unusual happened on the way to
Jonesborough. Defendant “was happy,” and “everything was good.” Defendant was
drinking the Crown Royal, and he stopped in Johnson City so that Ms. Thornburg could
purchase a “thirty-two-ounce beer.”

       When the group arrived in Jonesborough, Kevin left the vehicle and went inside a
residence. The couple remained “in the truck talking” while they waited for Kevin to
return. Defendant dropped his cigarette behind the seat and “yelled” at Ms. Thornburg to
pick it up. She refused, and Defendant hit her “in the side of [her] face” with his fist,
which fractured her nose. Ms. Thornburg‟s nose immediately began “spraying blood.”
She retrieved the cigarette and handed it to Defendant, who then began hitting her again.
Defendant “screamed” at Ms. Thornburg to stop her nose from bleeding. When she
responded that she did not know how to make the bleeding stop, Defendant removed his
shirt and threw it at her. Ms. Thornburg held the shirt to her face. At this point, Kevin


       1
          During cross-examination, Defendant testified that Kevin‟s last name was Stover and that they
met at a party. Defendant had known Kevin “for a while,” and Kevin worked for Defendant “for a little
while.” Defendant could not locate Kevin to testify at trial.

                                                  -2-
returned to the vehicle and appeared “dumbfounded.” He entered the vehicle but did not
say or do anything to get involved in the couple‟s altercation.

       Defendant began driving back to Elizabethton but continued “screaming” at and
hitting Ms. Thornburg. She leaned into Kevin to avoid Defendant, and Kevin told
Defendant to “calm down” because Ms. Thornburg was “scared.” Ms. Thornburg “had
bruises all over [her] ribs and down [her] face” from the Defendant‟s blows.

       Eventually, Ms. Thornburg surreptitiously retrieved her cell phone from her purse,
dialed 911, and returned the phone to her purse. She instructed Defendant to let her out
of the vehicle and continued to describe their location so that the 911 dispatcher listening
to the altercation through the phone would know where to send the police. She told
Defendant that she would not report the incident if he would let her leave.2

       Ms. Thornburg remembered Defendant threatening her several times by saying,
“I‟m going to slit your throat. I‟m going to cut your throat and throw you out here,
bitch.” The return ride from Jonesborough lasted between twenty and twenty-five
minutes, and the beating “was pretty steady” the entire time.

        When the threesome returned to Talladega Apartments, Kevin got out of the truck.
Ms. Thornburg did not see anyone outside the apartments because it was “pretty late in
the evening.” Ms. Thornburg said to Kevin, “Please don‟t leave me.” Kevin replied,
“You‟ll be fine.” Ms. Thornburg described the following when she attempted to get out
of the truck:

       [Defendant] grabbed my hair and got me down in the truck and was beating
       me in my face, and I was trying to hide my face. And then he pulled out
       the knife and he had my hair and held it to my throat and he told me that he
       was going to take me to the lake and cut my throat and throw me out.

       Ms. Thornburg could not describe the knife because she “didn‟t really see it,” but
she felt it pressed against her neck. Defendant held the knife to her throat for “maybe a
minute or two” before he put it away and began driving again. Ms. Thornburg did not
know where Defendant put the knife, but “it was definitely still in the truck.” Later
during the trial, Ms. Thornburg identified a knife that she believed to be the one used to
assault her, but it looked different than she remembered.

       Defendant stopped hitting Ms. Thornburg and drove “back through town,” where
they encountered the police about ten minutes later. Defendant began driving
“erratically,” and Ms. Thornburg “hunkered down in the seat” and “hop[ed] to God” the

       2
           An audio clip of the 911 recording was published for the trial judge.
                                                    -3-
police would stop the truck. As Defendant fled, Ms. Thornburg kept the “open line” with
911 and continued begging Defendant to let her out of the truck. Defendant “was still
saying he was going to get away and wreck the truck or try to just get away.” Ms.
Thornburg considered “diving out of the truck” but it was going too fast for her to escape
safely. When Defendant finally stopped the truck, he told Ms. Thornburg, “I‟m sorry. I
love you.”

      On cross-examination, Ms. Thornburg insisted that she “did not want to be there”
once Defendant began hitting her and that she believed Defendant was going to “murder”
her. Ms. Thornburg explained that she could not get out of the vehicle on the return ride
from Jonesborough to Elizabethton because the passenger window was up and Kevin
“was quite a big guy.”

       On the night of March 19, 2013, Jordan Ensor, a police officer with the
Elizabethton Police Department, was dispatched to a location behind Talladega
Apartments based on a reported domestic assault occurring inside of a blue truck. Officer
Ensor was instructed to look for the blue truck traveling eastbound on G Street. He
spotted the truck, which contained a male driver and a female passenger. The situation
“seemed normal” inside the truck. The truck‟s license plate number matched the one
reported to 911.

       When the vehicles arrived at the stop sign at the intersection of Cedar Avenue and
Maple Street, Officer Ensor activated his blue lights. The truck sped off, turned down
Johnson Avenue, and continued driving away. Officer Ensor activated his sirens and
began chasing the truck. The female passenger was “motioning” with her hand for
Officer Ensor to continue his pursuit.

       After the truck turned onto Johnson Avenue, it then turned right onto Stateline
Road. Because there was no oncoming traffic, Officer Ensor moved his vehicle into the
opposite lane and positioned the front of his vehicle near the truck‟s rear bumper. He
then illuminated the spotlight attached to his vehicle to identify the driver. The driver
looked over his left shoulder at Officer Ensor, applied the truck‟s brakes, and “swerved”
toward Officer Ensor‟s vehicle, entering the lane by “maybe a foot or two.” Officer
Ensor was forced “to have to slam on [his] brakes and swerve to avoid collision.” Officer
Ensor‟s vehicle slowed down but it stayed on the road and did not spin out of control.
There was no contact between the two vehicles. This was the only occasion that the truck
swerved toward Officer Ensor, but it “scared” him.

       The truck returned to its lane of travel and slowed to a speed below twenty miles
per hour. The truck then suddenly accelerated to a speed exceeding 100 miles per hour.
Officer Ensor slowed his vehicle because it was unsafe to continue traveling at such a
high rate of speed on Stateline Road at night. He lost sight of the truck until he reached
                                           -4-
Highway 19E, where he observed a vehicle driven by Sergeant Isaac Rhea of the Carter
County Sheriff‟s Department “begin to overtake” the truck. Officer Ensor and Sergeant
Rhea continued chasing the truck on “some county roads” and were joined by another
vehicle driven by Sergeant Nick Andes of the Carter County Sheriff‟s Department.

       When Sergeant Rhea began losing sight of the truck, Sergeant Andes notified
Sergeant Rhea that he would take the lead because his patrol car was “better equipped to
keep up.” Sergeant Andes saw a female passenger with “red all over her face” who was
“turned all the way around . . . beating on the back of the window and begging for help.”
Sergeant Andes “could kind of read her lips because she was screaming, „Help! Help!
Help!‟ pretty frantic[ally].”

       Based on the reported location of the truck, Lieutenant Kenny Cornett of the
Carter County Sheriff‟s Department positioned his patrol car in the median of Highway
19E. Lieutenant Cornett activated his “overhead lights,” exited his vehicle, and waited
for the truck to arrive. When Lieutenant Cornett observed the truck approaching, he
deployed “scorpion spike strips” across the road. The truck hit the spike strips, but they
did not puncture the tires.

       At one point, the truck “almost had a head-on collision with a vehicle at the
intersection of River Bottom and Riverview.” On Long Hollow Road, as the truck‟s
speed exceeded seventy miles per hour, the female passenger tried to open the passenger
door, but the driver jerked her back inside. She continued to motion for Sergeant Andes
to keep following the truck. Liquid began leaking from the bottom of the truck, and it
appeared to Sergeant Andes that “something was wrong with the truck.”

       The chase lasted for approximately ten to fifteen minutes before the truck stopped
in a construction zone on Gap Creek Road. The driver exited the truck, put his hands up,
and Sergeant Andes arrested him. The female passenger remained in the truck. As
Sergeant Andes took the driver to the back of his patrol car, the driver “said something to
the effect, „I‟m sorry, man. I‟m just drunk. I‟m just drunk.‟” Sergeant Andes noticed
red “strike marks” on the palm of the driver‟s right hand that could have been made “with
a backhand type motion . . . with . . . fists closed.” There were scratches on the top of his
right hand and some blue discoloration “as if bruising was beginning on the knuckles.”

       The female passenger was “bleeding profusely from her face [and] her nose. She
was spitting up, coughing up blood.” There was blood and some bruising on her face.
She “appeared to be terrified” and “very hysterical.” “She was very distraught, very
upset, crying, [and her] voice was shaking to the point that . . . it was hard for [the
officers] to understand what she was saying.” She did not appear to be under the
influence of either drugs or alcohol, but the officers could not determine whether she had
been drinking.
                                             -5-
       There was “a thin long mark” on the female passenger‟s neck, and she told
Sergeant Rhea that the driver “had a knife to her throat.” The mark on her neck “was a
red enough mark like it was on the verge of bleeding,” and “it was consistent with
[someone] holding something very hard against the skin.” The female passenger said that
the driver “had told her that he was going to take her somewhere to kill her [be]cause
he‟d come home and found her with another guy inside their apartment.”

       An ambulance took Ms. Thornburg to the hospital, where a MRI scan revealed a
fracture in her nose. She did not need surgery for the fracture, but she had to breathe
through her mouth for three to four weeks. “It took about a good solid four days” for the
nose bleeding to cease. Her nose was swollen badly and caused sleeping complications
because it impaired her breathing. The fracture “kicked up [Ms. Thornburg‟s] sinuses
real bad,” and she testified that she suffered “bad sinus pressure headaches” once or twice
per week. She did not have severe headaches like these before this incident. She also
“ke[pt] a stuffy nose,” which produced bloody mucus if she blows it.

       The inside of the truck was covered with blood and smelled of alcohol. “[B]lood
was dripping down off the floorboard onto the road.” Sergeant Andes found an
oxycodone pill and a closed folding knife on the floorboard of the driver‟s side of the
truck. No blood was on the knife. There was also a bloody shirt on the floorboard of the
passenger‟s side of the truck. In the middle passenger seat, there was a thirty-two-ounce
Natural Ice beer can.

       Defendant testified that he and Ms. Thornburg were both drinking on the night of
the incident and that Kevin gave Defendant the oxycodone pill in exchange for the ride to
Jonesborough. As they drove to Jonesborough, Ms. Thornburg was “hanging all over
Kevin, flirting and stuff,” which “caused the fight.” Defendant claimed that the physical
fighting began because Ms. Thornburg “smacked the cigarette out of [his] mouth.”

       Defendant admitted that he hit Ms. Thornburg in the face, causing her nose to
bleed incessantly. He also admitted that he “hit her a couple of times” on the way back to
Talladega Apartments because they were still arguing. However, Defendant denied
keeping Ms. Thornburg inside the truck against her will and insisted that she “never tried
to get out.” He also denied hitting her or pulling her hair at Talladega Apartments after
they dropped off Kevin.

        Defendant acknowledged that the knife found in the truck belonged to him and
admitted that it was in his possession during the incident. However, he denied displaying
the knife or threatening Ms. Thornburg with it. He also denied threatening to cut her
throat.

                                            -6-
       Defendant testified that he refused to stop the truck when Officer Ensor initiated
the traffic stop because he knew that he would have a parole violation and would go to
jail. Defendant said that Ms. Thornburg told the police that she had not been kidnapped
by Defendant.

       Defendant pled guilty in case number 22378 to DUI second offense, DOSL third
offense, felony evading arrest, and simple possession. The State dismissed the felony
evading arrest charge in case number 22386 because it was duplicative of the charge in
the other case. The trial court took the case under advisement and set the sentencing
hearing for July 24, 2014, where it announced its findings of fact and the verdict as to the
remaining charges.

       In case number 22378, the trial court found Defendant guilty of especially
aggravated kidnapping, a Class A felony. The trial court also found Defendant guilty of
simple assault, a Class A misdemeanor, as a lesser-included offense of aggravated
assault, for hitting Ms. Thornburg and fracturing her nose. Defendant received a twenty-
five-year sentence for especially aggravated kidnapping as a violent offender and a two-
year sentence for felony evading arrest as a multiple offender. The trial court sentenced
Defendant to eleven months and twenty-nine days in the county jail for each conviction
of assault, DUI, DOSL, and simple possession.

       In case number 22386, the trial court found Defendant guilty of simple assault, a
Class A misdemeanor, as a lesser-included offense of aggravated assault, for swerving his
truck toward Officer Ensor‟s vehicle during the chase. For this offense, the trial court
sentenced Defendant to eleven months and twenty-nine days in the county jail. All
sentences in both cases are to be served concurrently one with another and consecutive to
“any unexpired sentence.”3

       Defendant filed a timely notice of appeal.

                                                Analysis

      Defendant‟s only issue on appeal is that there is insufficient evidence to support
his conviction of especially aggravated kidnapping. He does not challenge his other
convictions or his sentences. Specifically, Defendant relies on State v. White, 362
S.W.3d 559 (Tenn. 2012), contending that the kidnapping was merely incidental to the
conduct that constituted the assault of Ms. Thornburg. The State responds that the
kidnapping conviction was properly based upon “a separate, independent act” that was
not merely incidental to the assault. We agree with the State.


       3
           Defendant acknowledged that he was on parole at the time of these offenses.
                                                  -7-
        When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question
the reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a bench trial, the judge
is the trier of fact, and “the verdict of the trial judge is entitled to the same weight on
appeal as a jury verdict.” State v. Farrar, 355 S.W.3d 582, 585 (Tenn. Crim. App. 2011)
(quoting State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999)); see also State v.
Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). The trial court‟s verdict replaces the
presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for
those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions
concerning the “credibility of the witnesses, the weight to be given their testimony, and
the reconciliation of conflicts in the proof are matters entrusted to . . . the trier of fact.”
State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict . . . accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the prosecution‟s theory.”
Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). The
standard of review is the same whether the conviction is based upon direct evidence,
circumstantial evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

        Relevant to this case, a person commits especially aggravated kidnapping “who
knowingly removes or confines another unlawfully so as to interfere substantially with
the other‟s liberty,” T.C.A. § 39-13-302, and who accomplishes such unlawful removal
or confinement “with a deadly weapon.” T.C.A. § 39-13-305(a)(1). In White, the
supreme court interpreted the element of substantial interference with the victim‟s liberty
to mean that the removal or confinement “was to a greater degree than that necessary to
commit” an accompanying offense. 362 S.W.3d at 580. In other words, there will not be
sufficient evidence to support the offense of kidnapping where the victim‟s removal or
confinement was “essentially incidental to an accompanying felony.” Id. To determine
whether a confinement was greater than necessary to commit an accompanying offense,
the trier of fact should consider the following non-exclusive list of factors:

       the nature and duration of the victim‟s removal or confinement by the
       defendant;

                                              -8-
       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.

       The trial court, as the trier of fact, found that Defendant was guilty of especially
aggravated kidnapping by utilizing the White factors. The trial court accredited the
testimony of the victim over that of Defendant. Given the proof, the trial court found that
Defendant‟s removal or confinement of the victim was “not in the performance of an
assault” and that it was beyond reasonable doubt that the removal or confinement was to
a greater degree than that necessary to assault the victim. The trial court noted the
substantial duration of the truck ride “from Elizabethton to Jonesborough and back” and
reasoned that the confinement inside the truck was not necessary for or inherent in the
assault. The trial court also found that Defendant prevented the victim from summoning
any assistance.

       After a careful and thorough review of the record, we conclude that there is
sufficient evidence to support the trial court‟s determination that Defendant unlawfully
removed or confined the victim to a greater degree than necessary for him to assault her.
Because the victim described Defendant‟s violent episode as an ongoing beating from
Jonesborough to the Talladega Apartments, the issue in this case would be closer had the
incident ended there. However, once the couple returned to the Talladega Apartments,
the victim overtly attempted to flee the truck, but Defendant grabbed her hair, pulled her
back inside, threatened her, and put his pocketknife to her throat. According to the
victim, after this point, Defendant stopped hitting her as he drove back into town, but he
prevented the victim from leaving the truck and forced her to endure a terrifying and life-
threatening police chase. Therefore, “the accompanying felony was completed before the
                                            -9-
removal or confinement constituting the kidnapping.” State v. Alston, ___ S.W.3d ___,
No. E2012-00431-SC-R11-CD, 2015 WL 2155690, at * 8 (Tenn. May 5, 2015).

       The extensive amount of time that Defendant kept the victim inside the truck was
beyond simply enabling further commission of the assault and was instead a separate,
independent offense for the purpose of dominating and terrorizing the victim. Defendant
refused to let the victim leave the truck despite her repeated requests to be dropped off at
numerous locations along the way. The victim was hampered in her ability to summon
assistance because she could not exit the moving vehicle and was too frightened to talk
into her cellphone when she called 911. Furthermore, confinement in the truck reduced
the likelihood that passersby would observe and provide assistance to the battered victim
and also reduced the likelihood that the police would ultimately apprehend Defendant.
The risk of independent harm to the victim increased drastically as Defendant raced at
break-neck speeds through treacherous backwoods roads while intoxicated. Indeed, they
nearly had a head-on collision on at least one occasion and also nearly collided with
Officer Ensor.

       There is ample evidence to support Defendant‟s conviction for especially
aggravated kidnapping as a separate and distinct act from the accompanying assault under
the standard set forth in White.4

                                              Conclusion

        For the foregoing reasons, the judgment of the trial court is affirmed.


                                                         _________________________________
                                                         TIMOTHY L. EASTER, JUDGE




        4
          Although Defendant‟s appellate brief phrases his issue broadly as a challenge to the sufficiency
of the evidence for especially aggravated kidnapping, he has not made an express argument as to any of
the elements of this crime other than removal or confinement. We note, however, that there is sufficient
evidence to support all elements of especially aggravated kidnapping.
                                                   -10-
