                     IN THE SUPREME COURT OF TENNESSEE
                                AT KNOXVILLE
                             November 7, 2002 Session
                                          Heard at Cleveland 1

                    STATE OF TENNESSEE v. KEITH GOODMAN

                    Appeal by permission from the Court of Criminal Appeals
                             Criminal Court for Anderson County
                          No. AOCR0098 James B. Scott, Jr., Judge



                     No. E2001-00036-SC-R11-CD - Filed November 22, 2002




The threshold issue presented in this appeal is whether the Court of Criminal Appeals erred in
holding that the defendant’s motion to dismiss was not capable of pretrial determination under
Tennessee Rule of Criminal Procedure 12(b) because it requires a determination of the general
issue of the defendant’s guilt or innocence. In our view, the defendant’s motion presents a legal
question – the proper interpretation of a statute – and does not require a determination of the
defendant’s guilt or innocence. Having decided the threshold issue, we also are of the opinion
that the trial court correctly interpreted the statute when it held that a parent is not subject to
prosecution for especially aggravated kidnapping under Tennessee Code Annotated section 39-
13-305(a)(2) when the indictment fails to allege that the minor child was removed or confined by
force, threat, or fraud. Therefore, the judgment of the Court of Criminal Appeals is reversed.
The judgment of the trial court granting the defendant’s pretrial motion to dismiss count one of
the indictment is reinstated.

 Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed; Judgment of
                              the Trial Court Reinstated

FRANK F. DROWOTA , III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined.

J. Thomas Marshall, Jr., Office of the Public Defender, Clinton, Tennessee, for the appellant,
Keith Goodman




        1
         Th is case was heard as p art of the No vember 7 , 200 2, S.C .A.L.E .S. (Supreme Court Advancing Legal
Education for Students) project in Cleveland, Bradley County, Tennessee.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth
B. Marney, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan
Hicks, Assistant District Attorney General, for the appellee, State of Tennessee.



                                                    OPINION


                                           Background
       The Anderson County Grand Jury returned a multi-count indictment charging the
defendant, Keith Goodman, in count one with especially aggravated kidnapping of his daughter,
Athene Baughman, in violation of Tennessee Code Annotated section 39-13-305(a)(2).2 The
charged offense is defined, in pertinent part, as follows:

         (a)Especially aggravated kidnapping is false imprisonment, as defined in § 39-13-
         302:

                                                        ...
         (2) Where the victim was under the age of thirteen (13) at the time of the removal
         or confinement . . . .

Under Tennessee Code Annotated section 39-13-302(a) “[a] person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to interfere with the
other’s liberty.” (Emphasis added.) As used in that statute, the term unlawfully “means, with
respect to removal or confinement, one which is . . ., in the case of a person who is under the age
of thirteen (13) or incompetent, accomplished without the consent of a parent, guardian or other
person responsible for the general supervision of the minor’s or incompetent’s welfare.”
(Emphasis added.)

        The defendant filed a pre-trial motion to dismiss count one of the indictment pursuant to
Tennessee Rule of Criminal Procedure 12(b) which provides that “[a]ny defense, objection, or
request which is capable of determination without the trial of the general issue may be raised
before trial by motion.” The defendant argued that under the statutory definition of “unlawful,”
set out above, natural parents are not subject to prosecution for especially aggravated kidnapping
under Tennessee Code Annotated section 39-13-305(a)(2), when there is no allegation that the
minor child was removed or confined by force, threat, or fraud. According to the defendant,
removal or confinement will never be “unlawful” when the perpetrator is a parent because it will
never be “accomplished without the consent of a parent.” The defendant therefore asserted that

         2
           The defendant was also charged with resisting arrest, reckless endangerment, and assault. A jury found the
defendant guilty of these misdemeanor offenses, and the trial court imposed a sentence of supervised probation for
the balance of eleve n months and twenty-nine days. T hese convictions and the sentence impo sed are not at issue in
this app eal.

                                                        -2-
count one of the indictment should be dismissed because, as the victim’s natural father, he is not
subject to prosecution for especially aggravated kidnapping.

        The State filed a written response to the defendant’s motion. The State did not assert that
the motion was not proper for pretrial resolution under Tennessee Rule of Criminal Procedure
12(b). Instead, the State disagreed with the defendant’s reading of the statute defining the term
“unlawful.” According to the State, removal or confinement is unlawful when it is accomplished
without the consent of a parent “responsible for the general supervision of the minor’s . . .
welfare.” The State argued that, in this case, the victim’s mother, not the defendant, was the
parent responsible for the general supervision of the minor victim’s welfare. The State therefore
urged the trial court to deny the defendant’s motion.

       The trial court held a hearing on the motion. At the hearing, the prosecution and the
defense entered the following stipulation of facts:

       1. Amber Baughman and Keith Goodman have never been married to each other.

       2. Amber Baughman gave birth to a child, Athene, in 1999. Keith Goodman and Amber
          Baughman acknowledged that Athene is the only natural child of Keith Goodman and
          Amber Baughman; and Keith Goodman is listed on Athene’s birth certificate as the
          father.

       3.   No orders or judgments of any kind have been entered in any court regarding
            paternity, custody, visitation or support involving the child Athene.

        At the hearing, the State again did not assert that the legal issue – interpretation of the
statute – was inappropriate for pretrial resolution under Tennessee Rule of Criminal Procedure
12(b). In fact, the assistant district attorney general stated: “We’re in agreement up to the issue,
the issue is that definition of ‘unlawful.’” The State merely asserted that if the trial court agreed
with its interpretation of the statute, then the case was not subject to dismissal. After reviewing
the statutory language at issue, the trial court agreed with the defendant’s interpretation of the
statute. Concluding that the parents are not subject to prosecution under the relevant statutes, the
trial court granted the defendant’s motion to dismiss based upon the stipulation that the
defendant is Athene’s natural father.

        The State appealed, challenging only the trial court’s interpretation of the statute defining
unlawful. The Court of Criminal Appeals reversed the trial court’s judgment on a different
basis, however. Finding that the issue raised by the defendant’s motion was not capable of
resolution without a determination of the general issue of the defendant’s guilt or innocence, the
Court of Criminal Appeals held that dismissal under Tennessee Rule of Criminal Procedure
12(b) was not proper. The defendant filed an application for permission to appeal arguing that
the issue raised is a question of law which the trial court properly considered under Rule 12(b)
and properly resolved under the statutory definition of unlawful. We granted the defendant’s
application for permission to appeal. For the following reasons, the judgment of the Court of
Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

                                                 -3-
                         Tennessee Rule of Criminal Procedure 12
      Resolution of the threshold issue necessarily begins with the pertinent language of
Tennessee Rule of Criminal Procedure Rule 12, which provides as follows:

       (b) Pretrial Motions. – Any defense, objection, or request which is capable of
       determination without the trial of the general issue may be raised before trial by
       motion. Motions may be written or oral at the discretion of the judge.
                                                  ....
       (e) Ruling on Motion. – A motion made before trial shall be determined before
       trial unless the court, for good cause, orders that it be deferred for determination
       at the trial of the general issue or until after verdict, but no such determination
       shall be deferred if a party’s right to appeal is adversely affected. Where factual
       issues are involved in determining a motion, the court shall state its essential
       findings on the record.
                                                   ...
       (g) Records. – A verbatim record shall be made of all proceedings at the hearing,
       including such findings of fact and conclusions of law as are made orally.

         Generally then, under the plain language of Rule 12(b) and (e), once a pretrial motion is
made, a trial court must decide the motion before trial if it is “capable of determination without
the trial of the general issue.” Tenn. R. Crim. P. 12(b) ; see also State v. Vickers, 970 S.W.2d
444, 447 (Tenn. 1998). This rule avoids the unnecessary interruption and inefficiency caused by
removing the jury from the courtroom to conduct hearings on motions filed during the course of
trial, and the rule ensures the right of the State to appeal an adverse ruling of the trial court
without implicating double jeopardy considerations. State v. Randolph, 692 S.W.2d 37, 40
(Tenn. Crim. App.) perm. app. denied (Tenn. 1985). Motions ordinarily are capable of
determination before trial if they raise questions of law rather than questions of fact. See United
States v. Jones, 542 F.2d 661, 664 (6th Cir. 1976) (discussing the identical Federal Rule of
Criminal Procedure 12). However, subsections (e) and (g) of Rule 12 clearly envision that a trial
court may make findings of fact necessary to decide the questions of law presented by a pretrial
motion so long as the factual findings are not intertwined with the general issue of guilt or
innocence. See Vickers, 970 S.W.2d at 447; Jones, 542 F.2d at 664. Where the factual findings
necessary to resolve the motion are intertwined with the general issue, a ruling must be deferred
until trial since, in criminal cases, there simply is no pretrial procedure akin to summary
judgment for adjudicating questions of fact involving the general issue of guilt or innocence.
See Vickers, 970 S.W.2d at 447; State v. Burrow, 769 S.W.2d 510, 512 (Tenn. Crim. App.
1989).

         Applying these guiding principles, we hold that the defendant’s pretrial motion presented
a question of law which was "capable of determination without the trial of the general issue."
Resolution of the defendant’s motion required the trial court to interpret a statute and apply the
statute to undisputed facts. These are questions of law which do not involve factual findings
about the general issue of guilt or innocence. See State v. Walls, 62 S.W.3d 119, 121 (Tenn.
2001) (“Issues of statutory construction are questions of law that this Court reviews de novo
without a presumption of correctness.”); State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000)

                                                -4-
(Where the issue involves an application of law to undisputed facts, a question of law is
presented which will be subject to de novo review.). The stipulated facts did not describe and
were not intertwined with the factual evidence of the defendant’s conduct at the time of the
alleged offense. They were relevant only to the legal question presented by the defendant’s
motion, not to the general issue of guilt or innocence. The State did not object to the trial court’s
use of the procedure, and as indicated, explicitly agreed that the motion presented a question of
law capable of determination under Tennessee Rule of Criminal Procedure 12.

         Also supporting our conclusion that the procedure was appropriate under Rule 12 is State
v. Randolph, 676 S.W2.d 943 (Tenn. 1984). In Randolph, the defendant moved to dismiss the
indictment charging him with second degree murder, arguing that, as a matter of law, a seller of
heroin could not be convicted of homicide where the customer died from a self-administered
overdose. After holding an evidentiary hearing and considering evidence that was introduced by
agreement, the trial court granted the defendant’s motion. On appeal, this Court disagreed with
the trial court’s resolution of the substantive issue and held that a seller of heroin is subject to
prosecution for homicide. Nonetheless, this Court did not denounce the procedure by which the
issue was raised and resolved. Significantly, the trial court in this case employed a procedure
almost identical to that used and implicitly approved by this Court in Randolph. Accordingly,
the judgment of the Court of Criminal Appeals which found that the defendant’s motion was not
capable of pretrial determination under Rule 12 is reversed. Having so decided, we will next
determine whether the trial court properly resolved the substantive legal issue presented by the
motion.3



                          Especially Aggravated Kidnapping By Parent
         The indictment in this case charged that the defendant “did . . . unlawfully and knowingly
remove and confine ATHENE BAUGHMAN, a person under thirteen (13) years of age, so as to
interfere substantially with ATHENE BAUGHMAN’s liberty, in violation of TCA 39-13-305.”
Therefore, the indictment charged especially aggravated kidnapping in accordance with
Tennessee Code Annotated section 39-13-305(a)(2) –– “false imprisonment, as defined in § 39-
13-302 . . . [w]here the victim was under the age of thirteen (13) at the time of the removal or
confinement.” False imprisonment is committed when a person “knowingly removes or confines
another unlawfully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann. §
39-13-302(a). Finally, the word “[u]nlawful means, with respect to removal or confinement, one
which is accomplished by force, threat or fraud, or in the case of a person who is under the age
of thirteen (13) or incompetent, accomplished without the consent of a parent, guardian or other
person responsible for the general supervision of the minor’s or incompetent’s welfare.” Tenn.


         3
           Because it reversed on procedural grounds, the Court of Criminal Appeals did not address the substantive
issue presented by the motion. Rather than remand to the intermediate court, in the interest of judicial economy we
exerc ise our discretion to address this lega l issue. See Tenn. R. A pp. P . 13(b ) ("[t]he app ellate co urt ... may in its
discretion consider other issues in order, among other reasons: (1) to prevent needless litigation, (2) to prevent
injury to the interests of the public, and (3 ) to prevent prejudice to the judicial pro cess."); See also State v. Farner, 66
S.W .3d 1 88, 2 06 (Tenn. 20 01); State v. Mixon, 983 S.W .2d 661, 673 (Tenn.1999 ).

                                                             -5-
Code Ann. § 39-13-301(2) (emphasis added). The dispute in this case revolves around the
emphasized portion of the statutory definition of the word unlawful.

        The defendant maintains that under the plain language of this statutory definition a parent
can never be prosecuted for removing or confining his or her minor child unless the removal or
confinement is accomplished by force, threat, or fraud. Since the indictment in this case did not
charge force, threat, or fraud, the defendant contends that the trial court properly dismissed the
indictment. The defendant says that because the statute specifies “a parent” and did not use the
term “custodial parent,” his status as “a parent” is sufficient to preclude this prosecution. Had
the General Assembly intended to require the consent of the “custodial” parent, the defendant
avers that term would have been included in the statute. While the defendant contends that the
meaning of the statute is clear on its face, he finds further support for his position in the fact that
the General Assembly classified custodial interference as a Class E felony, punishable by one to
six years imprisonment and a maximum fine of $3,000, whereas especially aggravated
kidnapping is a Class A felony, punishable by fifteen to sixty years imprisonment and a
maximum fine of $50,000. The defendant claims that it is illogical to assume the Legislature
would intend to punish a parent who commits custodial interference by “kidnapping” a child in
violation of a court order so much less severely than a parent who commits the same act when no
court order is in place. Therefore, the defendant maintains that both the plain language of the
statute and a logical reading of this statute with related statutory provisions support the trial
court’s holding that parents are not subject to prosecution for especially aggravated kidnapping
under Tennessee Code Annotated section 39-13-305(a)(2) when there is no allegation that the
minor child was removed or confined by force, threat, or fraud.

        Although the State’s briefs filed in this Court did not address this issue, the State argued
in the Court of Criminal Appeals that the plain language of the statute does not support the trial
court’s decision. According to the State, the phrase “responsible for the general supervision of
the minor’s . . .welfare” in the definition of unlawful, modifies the words “parent, guardian, or
other person.” Under the circumstances of this case, the State argues that Athene’s mother was
the parent responsible for the general supervision of her welfare. In support of this argument,
the State points out that the defendant was not married to Athene’s mother and that there was no
court order relating to legitimation or custody. Under these circumstances, the State contends
that Tennessee Code Annotated section 36-2-304 controls. This statute declares: “[a]bsent an
order of custody to the contrary, custody of a child born out of wedlock is with the mother.” The
State maintains that notwithstanding the defendant’s status as Athene’s natural father, he was not
the parent “responsible for the general supervision of the minor’s welfare” because he did not
have custody under section 36-2-304. Therefore, the State claims that the defendant is subject to
prosecution for especially aggravated kidnapping because he removed or confined Athene
without the consent of her mother, who the State claims is the parent “responsible for the general
supervision of the minor’s welfare” because she had custody pursuant to Section 36-2-304.

        As previously indicated, the construction of a statute is a question of law which appellate
courts review de novo, with no presumption of correctness. Walls, 62 S.W.3d at 121. In
construing statutes, our duty is to effectuate legislative intent. State v. Alford, 970 S.W.2d 944,
946 (Tenn. 1998); Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997); Wilson v. Johnson

                                                  -6-
County, 879 S.W.2d 807, 809 (Tenn. 1994). Legislative intent is to be ascertained primarily
from the natural and ordinary meaning of the language used, without a forced or subtle
construction that would limit or extend the meaning of the language. Alford, 970 S.W.2d at 946;
Carter, 952 S.W.2d at 419. Courts are restricted to the natural and ordinary meaning of the
language used by the legislature in the statute, unless an ambiguity exists which requires further
inquiry to ascertain legislative intent. Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998).
The language employed must be considered in the context of the entire statute, and the
component parts of a statute should be construed, if possible, consistently and reasonably.
Alford, 970 S.W.2d at 946; Wilson, 879 S.W.2d at 809. Furthermore, we are to assume that the
legislature used each word in the statute purposely, and that the use of these words is intended to
convey a meaning and serve a purpose. Browder, 975 S.W.2d at 311. Where the language of
the statute is clear and plain and fully expresses the legislature's intent, resort to auxiliary rules
of construction is unnecessary, and we need only enforce the statute. Id.

        The statute at issue in this case is clearly and plainly written. Removal or confinement is
not “unlawful” if it is accomplished with the consent of “a parent.” The statute does not use the
term “custodial parent.” The consent of “a parent” is sufficient. The State’s argument that the
phrase “responsible for the general supervision of the minor’s or incompetent’s welfare”
modifies the words “a parent, guardian or other person” is unpersuasive. Considering the
language in context and assuming that the General Assembly used each word in the statute
purposely with the intent of conveying a meaning and serving a purpose, we are of the opinion
that the phrase upon which the State relies modifies only the words “other person.” This phrase
serves to describe persons, in addition to parents and guardians, who may consent to the removal
or confinement of a minor or incompetent. Applying the phrase in the manner suggested by the
State would render the terms “parent” and “guardian” superfluous and unnecessary.

         As the defendant points out, the State’s interpretation of the statute also would subject a
parent to a Class A felony prosecution under Tennessee Code Annotated section 39-13-305(a)(2)
for conduct that is ordinarily prosecuted as custodial interference, a Class E felony or a Class A
misdemeanor, if the child is returned voluntarily by the defendant. See Tenn. Code Ann. § 39-
13-306(d). As the defendant points out, the conduct at issue is the same – removing or
detaining a minor child. The difference is that custodial interference requires that the removal or
detention be in violation of a court order regarding the child’s custody. Even though our
decision is based primarily upon the plain language of the statute, we agree with the defendant
that it is against logic to conclude that the General Assembly intended to impose a less severe
punishment when this type of conduct violates a court order than the punishment imposed when
no court order is violated.4 Therefore, we conclude that the defendant is not subject to

         4
           The defendant was prosecuted for especially aggravated kidnapping rather than custodial interference
because his removal or confinement of Athene did not violate an existing court order regarding her custody, an
essential element of the offense of custodial interference. Because the defendant was not subject to prosecution for
custodial interference, the prosec utor urged the trial court to interpret the definition of unlaw ful so as to allow his
prosecution for especially aggravated kidnapping. Interestingly enough, had a court order been in place, the
defendant clearly would not have been subject to prosecution for especially aggravated kidnapping but would have
been subject to p rosec ution for custodial interference alone. See Tenn. Cod e Ann. §39-13-306 (c) (stating that where
the only aggravating fac tor is the age of the victim, the offense shall be prosecuted as custodial interference).

                                                          -7-
prosecution for especially aggravated kidnapping under Tennessee Code Annotated section 39-
13-305(a)(2). The indictment in this case fails to allege that the defendant removed or confined
the minor child by force, threat, or fraud, and the removal or confinement was not accomplished
“without the consent of a parent” because the defendant is the minor child’s father.

         We note that our holding in this regard is consistent with prior Tennessee law. For
example, in Hicks v. State, 12 S.W.2d 385 (Tenn. 1928), this Court held that a father was not
subject to prosecution for kidnapping when he took his children from his ex-wife without
knowledge that she had obtained a divorce while he was in prison and had been awarded custody
of the children in the divorce proceeding. In so holding, this Court stated that the father’s “claim
to their custody, in the absence of a decree excluding it could be asserted without resort to legal
process, and such assertion would not render him guilty of a crime.” Hicks, 12 S.W.2d at 386.5
Our holding on this issue also is consistent with the majority view from other jurisdictions. See
Armendariz v. People, 711 P.2d 1268 (Colo. 1986); Johnson v. State, 637 So.2d 3 (Fla. Ct. App.
1994); People v. Algarin, 558 N.E.2d 457 (Ill. App. Ct. 1990); see generally William B. Johnson,
Annotation, Kidnapping or Related Offense by Taking or Removing of Child by or under
Authority of Parent or One in Loco Parentis, 20 A.L.R. 4th 823, 827 (1983).

        Therefore, while we certainly do not condone the defendant’s conduct, the trial court
correctly held that, as the minor child’s father, the defendant is not subject to prosecution for
especially aggravated kidnapping under Tennessee Code Annotated section 39-13-305(a)(2) in
the absence of an allegation that the minor child was removed or confined by force, threat, or
fraud. Nor is the defendant subject to custodial interference since he violated no court order
when he removed or confined the minor child. This Court does not substitute its own policy
judgments for those of the legislature. Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d
799, 803 (Tenn. 2000). Instead, this Court must presume that the legislature says in a statute
what it means and means in a statute what it says. Id. It is not for the courts to alter or amend a
statute. Id. The General Assembly , not this Court, is empowered to amend the criminal statutes
at issue in this case.


                                            Conclusion
        For the reasons explained herein, we conclude that the trial court properly considered the
defendant’s pretrial motion under Tennessee Rule of Criminal Procedure 12 and properly
granted the motion to dismiss. As the minor child’s father, the defendant is not subject to
prosecution for especially aggravated kidnapping under Tennessee Code Annotated section 39-
13-305(a)(2) because the indictment does not allege that the minor child was removed or
confined by force, threat, or fraud. Accordingly, the judgment of the Court of Criminal Appeals
is reversed, and the judgment of the trial court is reinstated. Costs of this appeal are taxed to the
State of Tennessee, for which execution may issue if necessary.

         5
          The statute at issue in Hicks is similar to the statute at issue in this case and provided as follows: “Every
person who unlawfully takes or decoys away any child under the age of twelve years, with intent to detain or conceal
such child from its parents, guardian or other person, having the lawful charge of such child, shall, on conviction, be
imprisoned in the penitentiary not less than one nor more than five years.”

                                                          -8-
_______________________________________
FRANK F. DROWOTA, III, CHIEF JUSTICE




 -9-
