        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                September 17, 2013 Session

                  STATE OF TENNESSEE v. JEROME TEATS

                 Appeal from the Criminal Court for Davidson County
                      No. 2009-D-2955 Steve R. Dozier, Judge


                No. M2012-01232-CCA-R3-CD - Filed January 10, 2014


J OSEPH M. T IPTON, P.J., dissenting.

       I respectfully dissent from the result reached by the majority. First, I believe the trial
court’s ruling regarding the admissibility of the Defendant’s statements is insufficient for us
to conduct a proper review of the suppression issue. Second, I believe that the Defendant
was entitled to a jury instruction regarding kidnapping pursuant to State v. White, 362
S.W.3d 559 (Tenn. 2012), and that the failure to give the instruction constitutes reversible
error.

       The Defendant sought to suppress the statements he made to the police. The
testimony recounted in the majority opinion reflects opposing assertions about the
statements’ surrounding circumstances. Also, an expert testified about the Defendant’s
mental and related physical states, raising questions about whether the Defendant knowingly
and voluntarily waived his right to remain silent. Unfortunately, the trial court made no
findings of fact resolving the various contentions. In this regard, the majority opinion takes
the interesting route of inferring findings from the trial court’s ultimate decision, then
applying to those findings a presumption of correctness that is given to a trial court’s
findings. I cannot accept this process.

        Pursuant to Tennessee Criminal Procedure Rule 12(e), when decisions in motion
hearings involve factual issues, “the court shall state its essential findings on the record.”
The failure to make findings may require remanding the case for entry of such findings. See,
e.g., State v. Cornell Norton, No. M2009-01359-CCA-R3-CD (Tenn. Crim. App. Nov. 24,
2010); State v. Anthony E. Collier, No. M1999-01408-CCA-R3-CD (Tenn. Crim. App. Mar.
28, 2001); State v. Alonzo Gentry, No. 02C01-9708-CC-00335 (Tenn. Crim. App. July 2,
1998). The inferences made by my colleagues may be correct, but there may be findings the
trial court made that do not readily support its ultimate holding. In any event, it is not our
place to “find” facts from contested evidence to support the trial court’s rulings.
       Regarding the kidnapping instruction, the majority opinion concludes that the
instruction provided in White was not needed in this case. It essentially states that the
employees who were directed to or held in the hallway/storage room area were not victims
of the robbery but of kidnapping and that the Defendant’s due process protections first
recognized in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), do not extend to moving or
detaining multiple persons in order to commit a single robbery. In Anthony, our supreme
court held that due process was implicated when the elements of kidnapping were incidental
to another felony, such as robbery, rape, or assault, which was obviously the intended goal
of the offender. It kept the focus on the underlying felony. This was true even though
Anthony involved moving three employees from outside to inside the restaurant where the
defendant took money. In the present case, the employees were essentially held inside the
restaurant.

         I do not believe the legislature intended robbers to be prosecuted as kidnappers.
Understanding that, according to Anthony, the legislature contemplated that an aggravated
robbery carries its own punishment and does not inherently include committing kidnapping,
it is significant to note that an aggravated robbery (involving a deadly weapon) is a Class B
felony while an especially aggravated kidnapping (involving a deadly weapon) is a Class A
felony. This would indicate that the especially aggravated kidnapping contemplated by the
legislature is more serious than that involved in an aggravated robbery. Unquestionably, the
employees were being held in order for a robbery to take place. Under Anthony, the
Defendant’s crime would be robbery.

       A springboard for the majority opinion’s analysis is its implicit conclusion that White
essentially overruled Anthony in all respects. I do not believe that occurred. Although the
supreme court altered in White how the question of whether a kidnapping is incidental to
another felony is to be resolved, it did not alter the rationale in Anthony regarding the
circumstances in which the due process protection arises.

        I understand and agree with the majority opinion’s concern that stopping at aggravated
robbery when multiple people are subjected to the danger should be reconsidered. Where I
differ is that in line with the central purpose of an aggravated robbery, the more appropriate
offenses being perpetrated on the other employees are aggravated assaults (involving a
deadly weapon), not kidnappings. In this sense, for example, if three employees are behind
the counter when the armed robber receives money from the cash register, it is strange to say
two are suffering especially aggravated kidnappings, Class A felonies, when the targeted
employee handing over the money is subjected to an aggravated robbery, a Class B felony.
Likewise, holding two of the employees in the hallway next to the room containing the
money is still focused on the aggravated robbery as the crime, as was contemplated in



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Anthony. Again, I would say the danger for the two employees should be aggravated assault,
not kidnapping.

        In any event, where the employees are and how they relate to the aggravated robbery
are matters that I believe may implicate the Defendant’s due process protections relative to
the crime of kidnapping. As such, under White, it is up to the jury to decide what crime
exists under appropriate instructions. I would reverse the especially aggravated kidnapping
convictions and remand the case for a new trial.




                                          ____________________________________
                                          JOSEPH M. TIPTON, PRESIDING JUDGE




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