        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
               On Remand from the Supreme Court, February 11, 2014

                  STATE OF TENNESSEE v. CURTIS KELLER

                           Criminal Court for Shelby County
                           No. 10-02756   Chris Craft, Judge


             No. W2012-01457-CCA-R3-CD - Filed September 29, 2014


The defendant, Curtis Keller, was convicted of three counts of aggravated robbery, three
counts of especially aggravated kidnapping, four counts of attempted aggravated robbery,
four counts of aggravated assault, one count of aggravated burglary, and one count of
intentionally evading arrest in a motor vehicle. For these convictions, he was given an
effective sentence of three hundred years. The defendant filed a direct appeal with this court
raising multiple issues. This court concluded that the defendant’s claims lacked merit and
affirmed the judgments of the trial court, including the convictions for especially aggravated
kidnapping. Thereafter, the defendant filed an application for permission to appeal with the
Tennessee Supreme Court. The application was granted in part, and the case was remanded
to this court to be reconsidered in light of State v. White, 362 S.W.3d 559 (Tenn. 2012) and
State v. Cecil, 409 S.W.3d 599 (Tenn. 2013). Upon remand, we conclude that, contrary to
the asserted argument, the White jury instruction was given to the jury. Thus, we are limited
to a simple sufficiency of the evidence review, the same review we conducted during the
direct appeal. Having already concluded that the evidence was sufficient, we again affirm
the judgments of conviction.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ.,, joined.

R. Todd Mosley, Memphis, Tennessee (on appeal); Mark Mesler, Memphis, Tennessee (at
trial), for the appellant, Curtis Keller.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                        OPINION




                                   Procedural History




       As noted, this case comes before this court on remand from the Tennessee Supreme
Court for consideration of the sufficiency of the evidence with regard to the especially
aggravated kidnapping convictions in light of White and Cecil. As such, we set forth only
the facts relevant to those considerations. A more detailed recitation can be found in this
court’s original opinion. State v. Curtis Keller, No. W2012-01457-CCA-R3-CD, 2013 Tenn.
Crim. App. LEXIS 972, **2-32 (Tenn. Crim. App. Nov. 6, 2013), perm. app granted, (Tenn.
Feb. 11, 2014).

        The crimes for which the defendant stands convicted arose out of a home invasion
robbery at the Chan home in Memphis. Although the defendant was not physically present
at the home, he was the mastermind behind the planning and organization of the event. As
such, he was convicted of the crimes under a theory of criminal responsibility.

       On June 12, 2008, Mom Houon and Thourn Chan lived in a three story home, and
Jeffrey Land, Sr. and his daughter, Claire Land, were living with them. Two of the Chan’s
children, Naree and Dara, were also home from college for the summer, as was Jeffrey Land,
Jr. Mom Houon and Thourn Chan shared the master bedroom located on the first floor. The
other occupants had their own rooms on the second or third floors of the home.

        Around three o’clock in the morning, Mom Houson was awakened by the sound of
glass breaking in the home. Thourn, her husband, went to the adjacent exercise room where
he believed the sound had come from and was confronted by “a bunch” of masked men in
dark colored clothing. The men aimed flashlights in his face and identified themselves as
police officers. Mr. Chan was handcuffed and “dragged” back into the bedroom where his
wife remained. Although the bedroom was dark, Mom Houson could see that several people,
armed with guns, had entered the bedroom. The men handcuffed Mom Houson, pointed guns
at the couple, and ordered them to lie face-down on the floor. Some of the men left the room
to secure the other occupants of the home.

       Dara Chan was awakened by the sound of heavy footsteps and banging doors. He
heard someone yell “Germantown Police.” He and his sister Naree Chan peered out the
doors of their respective rooms to see what was wrong. Naree Chen was able to place a call

                                            -2-
to 911. A large African-American man wearing a ski mask and gloves forced his way into
Dara Chan’s bedroom, pointed a gun at his head, and demanded to know where the money
was. A second man entered the bedroom and began searching for valuables while the first
man held him at gunpoint. After the search, the man grabbed Dara Chan by the back of the
neck, aimed the gun at him, and dragged him down the stairs towards his parent’s bedroom.
As he went, he heard his sister Naree screaming inside her own bedroom. One of the men
had seen Naree Chan on the phone and had taken her phone, throwing it on the floor. Dara
Chan was handcuffed and ordered to lie on the floor in his parents bedroom.

       Jeffery Land, Jr. was also awakened by someone pulling his arms and forcibly
removing him from the bed. Initially, he was able to put the man in a headlock, but another
man entered the room, subdued him, and placed him in handcuffs. These men also identified
themselves as “Germantown Police.” The men pointed a gun at Jeffrey Land, Jr.’s head, and
he informed the men his wallet was inside the dresser. After the men retrieved his wallet,
he was then forced out of his bedroom and taken down the stairs to the master bedroom with
the others where they all remained at gunpoint until the intruders left.

       Jeffrey Land, Sr. was awakened by men shining a light in his face and identifying
themselves as “FBI.” While lying in his bed, he was handcuffed with his hands in front of
him. Thereafter, he was jerked from the bed and taken to the master bedroom at gunpoint.
Jeffrey Land, Sr. heard his daughter, Claire Land, crying, and he heard someone yell at her
to shut up or that he would kill her. She, as were all the other occupants of the house, was
handcuffed and placed on the floor in the master bedroom at gunpoint.

       The intruders repeatedly asked Thourn Chan, the owner of three jewelry and pawn
shops, the location of the safe and the jewelry. He begged the men not to harm his family
and offered to take them to the jewelry store. The intruders slammed him to the floor. Upon
learning from him that there was not a safe in the home, the intruders ransacked the other
rooms of the home and took $5,000 from Mom Houon’s purse which was located in the
hallway. They also took Thourn Chan’s Cartier watch and $1,500 from a chest of drawers
in the bedroom. During this time period, the intruders kept urging each other to hurry
because the police were coming. The men departed the home, leaving the victims
handcuffed in the bedroom. The entire incident lasted approximately ten minutes, and the
police arrived soon after the intruders departed.

       Thereafter, a multiple count indictment was returned against the defendant and seven
others. The indictment charged as follows:


 Count    Offense                                       Victim


                                            -3-
 1         Aggravated Robbery                               Thourn Chan

 2         Aggravated Robbery                               Mom Houon

 3         Aggravated Robbery                               Jeffrey Land, Jr.

 4         Especially Aggravated Kidnapping                 Jeffrey Land, Jr.

 5         Especially Aggravated Kidnapping                 Jeffrey Land, Sr.

 6         Especially Aggravated Kidnapping                 Claire Land

 7         Attempted Aggravated Robbery                     Naree Chan

 8         Attempted Aggravated Robbery                     Claire Land

 9         Attempted Aggravated Robbery                     Jeffrey Land, Sr.

 10        Attempted Aggravated Robbery                     Dara Chen

 11        Aggravated Assault                               Thourn Chan

 12        Aggravated Assault                               Dara Chen

 13        Aggravated Assault                               Naree Chan

 14        Aggravated Assault                               Claire Land

 15        Aggravated Burglary                              Thourn Chan

 16        Intentionally Evading Arrest in a Motor
           Vehicle



 17        Theft of Property over $500                      Sunrise Pontiac



       Following a jury trial, the defendant was convicted of all of the above listed offenses
with the exception of theft of property. Following a sentencing hearing, the trial court
imposed an effective three hundred year sentence to be served in the Department of
Correction. After the denial of the motion for new trial, the defendant filed a timely notice
of appeal with this court raising three issues for review: (1) whether the evidence was
sufficient to support his convictions; (2) whether his convictions should be reversed because
the State failed to establish the chain of custody of a ski mask; and (3) whether the trial court
erred by failing to declare a mistrial after a witness made a general remark as to the effect


                                               -4-
that the defendant has engaged in wrongful behavior in the past. Finding no merit to the
defendant’s claims, this court affirmed the convictions and sentences.

        Next, the defendant filed an application for permission to appeal to the Tennessee
Supreme Court. The defendant asserted that the reason that the application should be granted
was to give the court “a chance to address a first impression argument of whether a defendant
can be found guilty of especially aggravated kidnapping by way of criminal responsibility
if the intent to commit the accompanying felony was the only intent.” He further asked the
court to consider the argument in the context of State v. White and to find that the White
instruction should have been given and that the error of failing to charge the jury was not
harmless because “the proof could be interpreted in different ways.” The defendant also
raised other questions for review, but our supreme court granted the application only “for the
purpose of remanding the case to the Court of Criminal Appeals for reconsideration in light
of State v. White, 362 S.W.3d 559 (Tenn. 2012) and State v. Cecil, 409 S.W.3d 599 (Tenn.
2013).”

                                           Analysis

       For years, possible violations of due process with regard to kidnapping and false
imprisonment crimes were governed by State v. Anthony, 817 S.W.2d 299, 300 (Tenn. 1991)
and State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). Under Anthony, the test to be applied
on appellate review was: “whether the confinement, movement, or detention is essentially
incidental to the accompanying felony and is not, therefore, sufficient to support a separate
conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant
independent prosecution and is, therefore, sufficient to support such a conviction.” Anthony,
817 S.W.2d at 306. The standard was amended to a two part test by the Dixon court, that
being: (1) whether the defendant’s movement or confinement of the victim was beyond that
necessary to consummate the accompanying felony, and, if so; (2) whether the additional
movement or confinement prevented the victim from summoning assistance, lessened the
defendant’s risk of detection, or created a significant danger or increased the victim's risk of
harm. Dixon, 957 S.W.2d at 535. In State v. Richardson, 251 S.W.3d 438, 443 (Tenn.
2008), our supreme court recognized that the test set forth in Dixon replaced the Anthony test.

       However, in 2012, the Tennessee Supreme Court explicitly overruled Anthony and its
progeny, including Dixon and Richardson. White, 362 S.W.3d at 578. The court, in
analyzing whether the defendant’s dual convictions for aggravated robbery and especially
aggravated kidnapping could stand, rejected Anthony’s reliance on an appellate court’s due
process scrutiny of kidnapping convictions imposed in conjunction with convictions of an
accompanying felony. Id. at 577-78. Rather, the court shifted the appellate analysis to a
standard sufficiency of the evidence review of a properly instructed jury’s assessment of the

                                              -5-
facts. Id. The court further emphasized that it was the jury’s “primary obligation . . . to
ensure that a criminal defendant has been afforded due process.” Id. at 577. The court, in
order to ensure that the jury can carry out its function, delineated a jury instruction to be
given:

        To establish whether the defendant’s removal or confinement of the victim
        constituted a substantial interference with his or her liberty, the State must
        prove that the removal or confinement was to a greater degree than that
        necessary to commit the offense of [insert offense], which is the other offense
        charged in this case. In making this determination, you may consider all the
        relevant facts and circumstances of the case, including, but not limited to, 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 580-581 (footnote omitted) (emphases added). In Cecil, our supreme court made clear
that White applied to cases then in the appellate “pipeline.” Cecil, 409 S.W.3d at 608. The
defendant was convicted on May 8, 2012, approximately two months after the White
decision was filed. Clearly, the decision was applicable in his case.1

        1
          At this juncture, we note that we are not forced to engage in a determination of whether the White
instruction was required even if the victims were not named in another accompanying felony, as all three of
the kidnapping victims in this case were in fact named in separate felonies. Thus, we are not called to weigh
in again on an issue which has various panels of this court in conflict. See State v. Gary S. Holman, No.
E2012-01143-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App Jan. 27, 2014); State v.
Ricco Williams, W2011- 02365-CCA-RM-CD, 2014 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan.
                                                                                                (continued...)

                                                     -6-
        The White case also instructs that this instructional deficit, if the instruction is not
given, is a constitutional error. Id. at 610. Such a non-structural constitutional error
mandates reversal unless the State demonstrates beyond a reasonable doubt that the error was
harmless. Id. (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)). “[T]he
touchstone of this inquiry is whether a rational trier of fact could interpret the proof at trial
in different ways.” Id. (citing White, 362 S.W.3d at 579). If the proof could be interpreted
in a manner that would not support a defendant’s kidnapping conviction, then the defendant
is entitled to a new trial. Id. at 611-12.

       While we do acknowledge that the instruction was applicable in this case and further
that on direct appeal, the issue was not raised by either party and we failed to specifically
address the issue, our analysis will not change on remand. Contrary to the assertions made,
the White instruction was given to the jury according to the record before us. The following
is contained within the jury instructions submitted to the jury in this case:

                             Especially Aggravated Kidnapping

              Any person who commits an Especially Aggravated Kidnapping is
       guilty of a crime.

             For you to find the defendant guilty of this offense, the state must have
       proven beyond a reasonable doubt the existence of the following essential
       elements:

                       (1)     that the defendant knowingly removed or confined the
                              alleged victim in that particular count unlawfully so as to
                              interfere substantially with the other’s liberty;
                              and
              (2)     that the confinement or removal was accomplished           w ith a
       deadly weapon or by display of any article                  used or fashioned to
       lead the alleged victim to
                               reasonably believe it was a deadly weapon.


       1
         (...continued)
7, 2014); State v. Jerome Maurice Teats, M2012-01232-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 18
(Tenn. Crim. App. Jan. 10, 2014); State v. Gregory Mathis and Eliza Evans, M2011-01096-CCA-R3-CD,
2013 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Sept. 5, 2013); but see State v. Josh L. Bowman, No.
E2012-00923-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 735, *44 (Tenn. Crim. App. Aug. 29, 2013);
Teats, 2014 Tenn. Crim. App. LEXIS, at *90; and Williams, 2014 Tenn. Crim. App. LEXIS 11, at *34.

                                                 -7-
       A removal or confinement is “unlawful” if it is accomplished by force
or threat. Although the law requires no specific period of time of confinement
or distance of removal, a removal or confinement “interferes substantially”
with another’s liberty if the time of confinement is significant or the distance
of removal is considerable.

       To find the defendant guilty of this offense, you must also find beyond
a reasonable doubt that the removal or confinement was to a greater degree
than that necessary to commit the offenses of Aggravated Robbery, Criminal
Attempt: Aggravated Robbery or Aggravated Assault, or any of their lesser
included offenses as charged or included in counts 1 through 3 and 7 through
15 of this indictment. In making this determination, you may consider all the
relevant facts and circumstances of the case, including, but not limited to, the
following factors:

              (a)      the nature and duration of the alleged victim’s removal
                       or confinement by the defendant;
                (b)    whether the removal or confinement occurred during the
                       commission of the separate offense;
                (c)    whether the interference with the alleged victim’s liberty
                       was inherent in the nature of the separate offense;
                (d)    whether the removal or confinement prevented the alleged
                       victim from summoning assistance, although the
                       defendant need not have succeeded in preventing the alleged
                       victim from doing so;
                (e)    whether the removal or confinement reduced the
                       defendant’s risk of detection, although the defendant
                       need not have succeeded in this objective; and
                (f)    whether the removal or confinement created a significant
                       danger or increased the alleged victim’s risk of harm
                       independent of that posed by the separate offense.
        Unless you find beyond a reasonable doubt that the alleged victim’s
removal or confinement exceeded that which was necessary to accomplish the
alleged other offenses listed above and was not essentially incidental to them,
you must find the defendant not guilty of Especially Aggravated Kidnapping,
as well as not guilty of the lesser included offenses of Aggravated Kidnapping,
Kidnapping, and False Imprisonment.

       “Force” means compulsion by the use of physical power or violence.



                                      -8-
             “Deadly weapon,” “Violence,” “Knowingly” and “Intentionally” have
       been previously defined in these instructions.

       While not a verbatim recitation of the language used in the suggested instruction in
White, it would belie logic to conclude that the above did not instruct the jury in accordance
with the principles of the White case. It explicitly references the very things the White case
is based upon. Thus, we must conclude that the jury was properly instructed in this regard.


        As previously noted, it is now the jury’s obligation to ensure that a criminal defendant
has been afford due process in these types of cases. White, 362 S.W.3d at 577. Our appellate
review now shifts to a standard sufficiency of the evidence review of a properly instructed
jury’s assessment of the facts. Id. at 577-78.

        “Findings of guilt in criminal actions . . . shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
Tenn. R. App. P. 13(e). “When the sufficiency of the evidence is challenged, the relevant
question is whether, after reviewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); see also Jackson v. Virginia,
443 U.S. 307, 319 (1979). “Because a guilty verdict removes the presumption of innocence
and replaces it with a presumption of guilt, on appeal a defendant bears the burden of
showing why the evidence is insufficient to support the conviction.” State v. Wagner, 382
S.W.3d 289, 297 (Tenn. 2012). During appellate review, the State must be afforded the
strongest legitimate view of the evidence, and all reasonable inferences that may be drawn
from that evidence must be drawn in favor of the State. See id. The jury, not a reviewing
court, is responsible for assessing the credibility of the witnesses, deciding what weight to
accord their testimony, and reconciling any conflicts in the proof; a reviewing court may not
re-weigh the evidence or draw different inferences from that evidence than those drawn by
the jury. See id.

        Only the defendant’s three convictions for especially aggravated kidnapping are
relevant to our review on remand. Again, “[e]specially aggravated kidnapping is false
imprisonment . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-
305 (a)(1) (2010). “A person commits the offense of false imprisonment who knowingly
removes or confines another unlawfully so as to interfere substantially with the other’s
liberty.” T.C.A. § 39-13-302(a).

       Pursuant to sufficiency review, as we did in the original appeal, we conclude that the

                                              -9-
evidence is sufficient to support the jury’s findings that the defendant was criminally
responsibile for the acts of the home invaders, including those acts which established the
especially aggravated kidnapping of Jeffery Land, Sr., Jeffery Land, Jr., and Claire Land.
Mr. Thourn Chan and Ms. Mom Houon both testified that the three victims were taken at
gunpoint from their respective rooms in the upstairs of the Chan residence and then forced
to lay down on the floor downstairs. Ms. Houon specifically testified that each of the
residents had a gun pointed at them when they were brought downstairs. Mr. Jeffery Land,
Sr. testified that he was awoken by a man shining a flashlight in his face before the man
handcuffed Mr. Land and “jerked [him] out of bed,” “marched [him] downstairs,” and
“forced [him] down, face down onto the floor.” He further testified that a short time later
he heard his daughter crying and heard someone yell, “shut up or I’ll kill you,” before other
intruders brought her and laid her face down on the floor. Jeffrey Land, Jr. testified that on
the night of the incident he was forced out of bed, handcuffed, and had a gun pointed at his
head before “they forced [him] out of the bedroom.” He further testified that he saw one of
the intruders bring his sister downstairs and lay her down on the floor.

        From this testimony, a reasonable jury could conclude that the home invaders
knowingly removed and confined all three individuals and did so by using deadly weapons.
Moreover, the jury could have reasonably concluded that the removal or confinement was
to a greater degree than that necessary to commit the other offenses against the victims. As
such, we conclude that the evidence is sufficient to support the three convictions for
especially aggravated kidnapping and affirm.

        As an aside, we would note that, had the White instruction not been given, we would
likely have still affirmed the convictions, just as this court did in a separate home invasion
robbery case in which the defendant was involved and convicted without the White,
instruction being charged. State v. Curtis Keller, No. W2012-00825-CCA-R3-CD, 2013
Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. Jun. 27, 2013), perm. app. denied, (Tenn.
Dec. 10, 2013). In that case, this court concluded that while it was error not to charge the
jury, any error which resulted was harmless. Id. at *11. The facts of the case are quiet
similar to those at issue before us. It involved breaking into a home occupied by parents and
children and moving those victims around at gunpoint and threatening violence. Id. at *4-6.
This court concluded that the evidence presented by the State fully established that the
victim’s kidnapping were separate from - not “incidental” to - the commission of the
aggravated assaults upon the victims. The court found that the interference with the victim’s
liberty that occurred was not part and parcel of the assaults. “Rather, the record reflects that
after the victims had been subjected to threats and deadly force, they were further removed
and confined with the intention that they be used as hostages in support of the defendant’s
efforts to rob Andrew Morrow.” We see no reason that the same conclusion would not have
been reached upon the facts before us in this case had the review been necessary.

                                              -10-
                                     CONCLUSION

        After review of the record on remand from the Tennessee Supreme Court, we
conclude that the jury was properly charged pursuant to State v. White and that the evidence
is sufficient to support the convictions for especially aggravated kidnapping. As such, we
affirm.




                                                   _________________________________

                                                   JOHN EVERETT WILLIAMS, JUDGE




                                            -11-
