                                                                                            12/08/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 14, 2017 Session

         STATE OF TENNESSEE v. STEPHANO LEE WEILACKER

               Appeal from the Circuit Court for Montgomery County
                No. 40700673       William R. Goodman, III, Judge
                     ___________________________________

                            No. M2016-00546-CCA-R3-CD
                        ___________________________________

Defendant, Stephano Lee Weilacker, was found guilty by a Montgomery County jury of
especially aggravated kidnapping and aggravated robbery. He received an effective
twenty-year sentence to be served consecutively to a previous sentence. In this,
Defendant’s third direct appeal, he argues: that the evidence was insufficient; that the trial
court permitted a reversible constructive amendment to the indictment; that the trial court
erred by failing to instruct the jury as provided by White; that the trial court erred by
denying his motion to suppress evidence found in his vehicle; that the State committed
prosecutorial misconduct during closing arguments, and that consecutive sentencing was
improper. We find that all of Defendant’s issues, except for the issues concerning the
amendment to the indictment and the jury instruction, have been previously addressed by
this court in Defendant’s two prior appeals and cannot be reconsidered. We find that the
issue concerning the indictment is waived and that the trial court was not required to
instruct the jury in accordance with White. Therefore, Defendant’s convictions are
affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Stephano Lee Weilacker.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

Background

       This is Defendant’s third direct appeal in this case. The facts of this case, as found
by this court in Defendant’s first direct appeal, State v. Stephano L. Weilacker, No.
M2010-00497-CCA-R3CD, 2011 WL 743416, at *1-2 (Tenn. Crim. App. Mar. 3, 2011),
which will be referred to as Weilacker I, are as follows:

        On June 30, 2006, the Triangle Kwik Stop in rural Montgomery County
        was staffed by Brandi Perry. Ms. Perry observed two young men come
        into the store. One of them was armed with a pistol. The man pointed
        the gun at her, then pointed the gun at Frank Lavarre, a vendor who was
        stocking a display at the store. The man demanded money and
        cigarettes. He ordered Mr. Lavarre to lie on the floor. Ms. Perry
        complied with the request, handing over money and cigarettes. The man
        then shot Mr. Lavarre in the leg.

        The men left the market and jumped into the back of a large white car.
        Ms. Sandra Lewis, who was shopping next door at the Food Lion, saw
        two young African-American men leave the market laughing and
        running. Ms. Lewis was alarmed by the situation, so she wrote down the
        license plate number of the car and called the police.

        Several days later, Appellant and David Selby were arrested while riding
        in Appellant’s white Mercury Grand Marquis. Police Officer Scott
        Beaubien initiated a traffic stop of Appellant’s vehicle. The weapon
        used in the Triangle Kwik Stop robbery was found in the car. Mr.
        Selby’s fingerprints were found on the pistol.

        Appellant, Jacobi K. Allen, and David Selby were indicted by the
        Montgomery County Grand Jury for aggravated robbery and especially
        aggravated kidnapping for their involvement in the Triangle Kwik Stop
        robbery.

        At trial, Mr. Selby testified that Appellant called him on the day of the
        robbery and asked him to ride around with him and to go buy some
        fireworks. Appellant was driving his white Mercury Grand Marquis.
        When Mr. Selby got into the car, he stated that there were two other
        younger African-American males in the back seat. As the group passed
        the Triangle Kwik Stop market, Appellant asked the men in the back seat
        if they wanted to make a little money. Appellant told them what to do


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        and provided a pistol to the men. After the men robbed the market, the
        money and cigarettes were divided between Appellant and the two men.
        Mr. Selby admitted that his fingerprints were found on the pistol that
        was used in the robbery. He explained that when police initiated the
        traffic stop of the vehicle, Appellant handed Mr. Selby the weapon. Mr.
        Selby then handed the weapon back to Appellant, who placed it under
        the seat.

        Appellant presented the videotape from the store security camera in
        support of his defense. The videotape showed that the armed robbery
        was committed by two men other than Appellant.

Weilacker I, at *1-2.

       In Weilacker I, Defendant argued that the evidence was insufficient to support his
convictions; that the trial court failed to properly charge the jury with lesser-included
offenses; and that the trial court improperly ordered consecutive sentencing. This court
determined that the trial court improperly ruled on an untimely motion for new trial. This
court noted that trial counsel had filed for an extension to file the motion for new trial,
but it was filed more than thirty days after the entry of the judgments. This resulted in
Defendant’s notice of appeal also being untimely.

       Defendant’s sufficiency and sentencing issues were considered on the merits. In
his sufficiency argument, Defendant argued that the accomplice testimony of co-
defendant David Selby was not sufficiently corroborated. This court summarized the
corroborating evidence and determined that the “jury clearly determined that the evidence
introduced at trial corroborated Mr. Selby’s testimony and independently connected
[Defendant] with the crimes.” Id. at *5. As for sentencing, this court found that the
length of Defendant’s sentences of ten years for aggravated robbery and twenty years for
especially aggravated kidnapping were appropriate. This court further found that the trial
court correctly applied the Wilkerson factors and imposed consecutive sentencing. Id. at
*6-9.

        This court also considered Defendant’s issue concerning jury instructions (whether
the trial court failed to give all lesser-included offense instructions) under plain error
review. This court found that Defendant failed to provide an adequate record for review
by failing to include a copy of the jury instructions in the record on appeal. Therefore, “it
is not clear what happened in the trial court. Consequently, [Defendant] is not entitled to
plain error review.” Id. at *6. The supreme court denied Defendant’s application for
permission to appeal.

       Defendant filed a subsequent petition for post-conviction relief, which the trial
court granted in part as a delayed appeal and stayed its consideration of Defendant’s

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remaining post-conviction claims. Defendant did not file a motion for new trial. In the
delayed appeal, Defendant again argued that the evidence was insufficient; that
consecutive sentencing was improper; that the trial court erred by denying his motion to
suppress evidence found in his vehicle; that the State committed prosecutorial
misconduct during closing arguments, and that the trial court erred by failing to instruct
the jury as provided by State v. White, 362 S.W.3d 599 (Tenn. 2012).

       On direct appeal, in State v. Stephano L. Weilacker, No. M2013-01532-CCA-R3-
CD, 2014 WL 4402123 (Tenn. Crim. App. Sept. 8, 2014), which will be referred to as
Weilacker II, this court affirmed Defendant’s convictions, holding that he had waived all
issues except for sufficiency of the evidence and sentencing because again no timely
motion for new trial was filed. Id. at *3. This court also agreed with the State that
Defendant’s issues concerning sufficiency of the evidence and sentencing could not be
addressed because they were addressed in Weilacker I and therefore the “law of the case
doctrine” applied. Weilacker II, at *2-3. This court considered Defendant’s remaining
issues under plain error review since no timely motion for new trial was filed and found
that Defendant was not entitled plain error relief. Id. at *3-10.

       The supreme court granted Defendant’s application for permission to appeal and
stated as follows:

        For the reasons stated herein, the Court of Criminal Appeals’ judgment
        is vacated, and the case is remanded for further proceedings.

        On June 3, 2013, the trial court granted [Defendant] a delayed appeal as
        provided by Tenn. Code Ann. § 40-30-113, because trial counsel
        untimely filed a motion for a new trial as provided by Tenn. Code Ann. §
        40-30-113(a)(3). On appeal, the Court of Criminal Appeals held that
        [Defendant] had waived all issues other than sufficiency of the evidence
        and sentencing, because no timely motion for a new trial was filed.
        [citations omitted]. As a matter of judicial efficiency and to meet the
        ends of justice, we remand this case to the trial court for [Defendant’s]
        counsel to file a proper motion for a new trial. [citations omitted].
        Upon remand, [Defendant’s] counsel shall, within thirty days from the
        date of the entry of this order, file a proper motion for a new trial
        regarding [Defendant’s] convictions for especially aggravated
        kidnapping and aggravated robbery. The original trial court shall
        dispose of the motion as if it had been filed under authority of Rule 59 of
        the Rules of Civil Procedure. See Tenn. Code Ann. § 40-30-113(a)(3).

State v. Stephano L. Weilacker, No. M2013-01532-SC-R11-CD (Tenn. Jan. 20, 2015)(per
curiam).

                                           -4-
       Thereafter, Defendant filed a timely motion for new trial raising the following
issues: (1) Defendant was denied due process because the jury instructions failed to
require the jury to consider whether the restraint of the victim of the especially
aggravated kidnapping was incidental to the underlying aggravated robbery as required
by White; (2) Sufficiency of the Evidence (victim did not suffer serious bodily injury and
no corroboration of Mr. Selby’s testimony); (3) The trial court erred by denying
Defendant’s motion to suppress; (4) The prosecutor committed prosecutorial misconduct
by improperly vouching for Mr. Selby’s credibility during closing arguments; (5)
Consecutive sentencing; and (6) Cumulative error. The trial court considered each issue
and denied Defendant’s motion for new trial. Defendant filed an untimely notice of
appeal. He sought waiver of the untimely filing, which this court granted.

Analysis

       Initially, we point out that in this appeal, Defendant argues that “the post-
conviction Court’s grant of a delayed appeal resulted in a vacating of this Court’s prior
opinion (Weilacker I) resulting in this being his delayed, first true appeal in this matter.”
He further argues that the “law of the case doctrine” does not apply in this case “where
the defendant receives a delayed appeal because, by the plain-language of the statute, the
prior rulings of the court where the defendant was denied the effective assistance of
counsel are voided and vacated.” Therefore, Defendant argues that issues relating to
sufficiency of the evidence and sentencing “should be treated anew by this Court and
addressed as if no prior ruling had occurred.” He notes that the supreme court’s order
vacated Weilacker II and that this court should consider all of the issues raised in
Defendant’s brief “as if no prior opinions had existed in this [c]ase.”
        We reject Defendant’s arguments that the post-conviction court’s grant of a
delayed appeal and the supreme court’s Rule 11 order nullified this Court’s holdings on
the issues addressed on the merits in Weilacker I and Weilacker II. Defendant cites no
relevant authority for this proposition, and this Court is unaware of any applicable case
law that supports it. “[U]nder the law of the case doctrine, an appellate court’s decision
on an issue of law is binding in later trials and appeals of the same case if the facts on the
second trial or appeal are substantially the same as the facts in the first trial or appeal.”
Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d
303, 306 (Tenn. 1998); see also State v. Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000).
This doctrine “applies to issues that were actually before the appellate court in the first
appeal and to issues that were necessarily decided by implication,” but the doctrine does
not apply to dicta. Memphis Publg. Co., 975 S.W.2d at 306. The doctrine “is not a
constitutional mandate nor a limitation on the power of a court” but “is a longstanding
discretionary rule of judicial practice which is based on the common sense recognition
that issues previously litigated and decided by a court of competent jurisdiction ordinarily

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need not be revisited.” Id. (citations omitted). Application of the doctrine promotes
finality, efficiency, consistent results, and obedience to appellate decisions. Id.
       There are three “limited circumstances” that may justify a departure from the law
of the case doctrine and subsequent reconsideration of an issue decided in a previous
appeal:

        (1) the evidence offered at a trial or hearing after remand was
        substantially different from the evidence in the initial proceeding; (2) the
        prior ruling was clearly erroneous and would result in a manifest
        injustice if allowed to stand; or (3) the prior decision is contrary to a
        change in the controlling law which has occurred between the first and
        second appeal.
Id.

       I.     Sufficiency of the Evidence
       First, Defendant argues that the evidence was insufficient to support his
convictions for especially aggravated kidnapping and aggravated robbery because the
evidence did not corroborate the testimony of co-defendant David Selby. However, this
issue was raised in both Wielacker I and Weilacker II, and it was decided on the merits in
Weilacker I. This court determined that there was sufficient corroboration and that the
“jury clearly determined that the evidence at trial corroborated Mr. Selby’s testimony and
independently connected [Defendant] with the crimes.” Weilacker I, 2011 WL 743416,
at *5. Therefore, the “law of the case doctrine” applies, and none of the exceptions in
Memphis Publ’g Co. apply to this issue.

       II.    Constructive Amendment to the Indictment
        Defendant contends that the trial court “permitted a reversible constructive
amendment to the indictment because it did not charge especially aggravated kidnapping
as it was alleged in the indictment.” However, Defendant concedes that he did not raise
this issue in his motion for new trial. Therefore, the issue is waived. See Tenn. R. App.
P. 3(e). We also exercise our discretion and decline to conduct plain error review of this
issue. Defendant is not entitled to relief.

       III.   Jury Instruction on Kidnapping
       Next, Defendant argues that the trial court should have instructed the jury on the
offense of kidnapping in accordance with the supreme court’s decision in State v. White,
362 S.W.3d 559 (Tenn. 2012). This issue was raised in Weilacker II; however, this court
did not expressly hold that Defendant was not entitled to relief based on the merits of the
issue. Concerning this issue, this Court held in part:


                                            -6-
        Turning to the instant case, the evidence shows that one of the robbers
        pointed a gun at [Lavarre] and Perry and ordered [Lavarre], but not
        Perry, onto the floor. Pointing the gun at [Lavarre] and then ordering
        him onto the floor prevented him from summoning help; reduced the
        robbers’ risk of detection by preventing passerbys from seeing [Lavarre];
        and increased [Lavarre’s] risk of harm, as evidenced by his lying prone
        on the floor so that the robbers could shoot him. We note that the
        robbers shot [Lavarre] after Perry had complied with the demand for
        money and cigarettes. Therefore, ample evidence supported the
        appellant’s conviction for the especially aggravated kidnapping of
        [Lavarre]. The appellant has failed to show that consideration of the
        error is necessary to do substantial justice and that the trial court’s
        error was plain error.

Weilacker II, 2014 WL 4402123, at *10 (emphasis added). We find that that the
language in the last sentence of this Court’s holding only finds that plain error review is
not appropriate, and as a result, the discussion is merely dicta and is not the law of the
case. Therefore, we will address this issue on the merits.

       In White, our supreme court addressed due process considerations affecting
convictions for kidnapping and an accompanying felony such as robbery, rape, or assault.
The holding of White “was intended to address the due process concerns that arise when a
defendant is charged with kidnapping a victim and other crimes, such as robbery, rape, or
assault, that involve some inherent confinement of that victim.” State v. Teats, 468
S.W.3d 495, 503 (Tenn. 2015). The White court held:

        [T]he legislature did not intend for the kidnapping statutes to apply to the
        removal or confinement of a victim that is essentially incidental to an
        accompanying felony, such as rape or robbery. This inquiry, however, is
        a question for the jury after appropriate instructions, which appellate
        courts review under the sufficiency of the evidence standard as the due
        process safeguard.

White, 362 S.W.3d at 562. The court determined that the proper inquiry for the jury is
“whether the removal or confinement is, in essence, incidental to the accompanying
felony or, in the alternative, is significant enough, standing alone, to support a
conviction.” Id. at 578. The court further set forth the following jury instruction:

        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

                                           -7-
        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 580-81. The standard of review is the same as that for reviewing the sufficiency of
the evidence: whether there was any evidence, viewed in the light most favorable to the
State, from which the jury could infer that the State met its burden of proof in showing
that the victims’ restraining was not incidental to the accompanying felonies. Id. at 562.

       The supreme court has addressed the issue of whether a White jury instruction
must be given when a defendant is charged with the kidnapping and robbery of separate
victims. See State v. Teats, 468 S.W.3d 495 (Tenn. 2015); State v. Williams, 468 S.W.3d
510 (Tenn. 2015). In Teats, the court determined that

        [a] White jury instruction is not required when a defendant is charged
        with the kidnapping and robbery of different victims. The jury
        instruction we articulated in White was intended to address the due
        process concerns that arise when a defendant is charged with kidnapping
        a victim and other crimes, such as robbery, rape, or assault, that involve
        some inherent confinement of that victim. Cf. State v. Salamon, 949
        A.2d 1092, 1117 (Conn. 2008) (“Our legislature . . . intended to exclude
        from the scope of . . . kidnapping . . . those confinements or movements
        of a victim that are merely incidental to and necessary for the

                                          -8-
        commission of another crime against that victim.” (emphasis added)).
        Where a defendant is charged with kidnapping and an accompanying
        offense involving some confinement of the same victim, there are
        appropriate due process concerns that the defendant could be convicted
        of two crimes - e.g. robbery and kidnapping - when he has only
        committed one crime - robbery. But where, as in this case, the State
        charged the Defendant with robbing the restaurant manager and
        kidnapping four other employees, the Defendant does not stand the risk
        of being convicted of kidnapping a victim he confined only long enough
        to rob. Simply put, the due process concerns articulated in White are not
        present, as the kidnapping of one or more victims can never be
        “essentially incidental” to an offense perpetrated against a different
        victim or victims. See White, 362 S.W.3d at 580.

Teats, 468 S.W.3d at 503.

        In the present case, we conclude that there are no due process concerns. In
Defendant’s case, there were two offenses and two convictions, one for each victim.
Defendant was charged with the especially aggravated kidnapping of Mr. Lavarre and the
aggravated robbery of Ms. Perry. Although the robbery indictment contains language
that Defendant kidnapped Mr. Lavarre by the use and display of a deadly weapon to
“facilitate the commission of a felony, Aggravated Robbery,” this language is merely
surplusage to the charged offense of especially aggravated kidnapping. “Simply put,
where a defendant kidnaps one victim while robbing another, the due process concerns
articulated in White are not present, as the kidnapping of one or more victims can never
be ‘essentially incidental’ to an offense perpetrated against a different victim or victims.”
Williams, 468 S.W.3d at 516 (emphasis added). Therefore, the trial court was not
required to instruct the jury in accordance with White. Defendant is not entitled to relief
on this issue.

       IV.    Denial of Motion to Suppress
        Defendant argues that the trial court erred by denying his motion to suppress
evidence found as a result of the search of his vehicle. Again, this issue was raised in
Weilacker II, and it was addressed on the merits. This court determined that “A clear and
unequivocal rule of law was not breached, and the appellant is not entitled to plain error
relief.” This court summarized evidence at the suppression hearing and determined that
“even if the gun had not been in the officers’ view, it would have been reasonable for
them to believe that the car contained evidence of the offense of arrest and to have
conducted a warrantless search of the vehicle pursuant to Gant.” Weilacker II, 2014 WL
4402123, at *7. Therefore, the “law of the case doctrine” applies, and none of the
exceptions in Memphis Publ’g Co. apply to this issue.


                                            -9-
      V.     Prosecutorial Misconduct
       Next, Defendant argues that the State committed prosecutorial misconduct during
closing argument by improperly vouching for David Selby and arguing facts not in the
evidence. This issue was raised in Weilacker II and addressed by this court on the merits.
Therefore, the “law of the case doctrine” applies here also.

      Defendant is not entitled to relief on this issue.

      VI.    Sentencing
       Finally, Defendant argues that the trial court improperly ordered his effective
twenty-year sentence for aggravated robbery and especially aggravated kidnapping to run
consecutively to a sentence that he was already serving in the Department of Correction.
However, this issue was also raised in both Weilacker I and Weilacker II, and it was
decided on the merits in Weilacker I. This court determined that the trial court properly
found Defendant to be a dangerous offender, and the “trial court correctly applied the
Wilkerson factors on the record.” Weilacker I at *9. Therefore, the “law of the case
doctrine” applies, and none of the exceptions in Memphis Publ’g Co. apply to this issue.
Defendant is not entitled to relief.

                                         CONCLUSION

      For the foregoing reasons, the judgments of the trial court are affirmed.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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