         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 5, 2000

                  STATE OF TENNESSEE v. ANTHONY PERRY

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 96-06386-88    Joseph B. Brown, Jr., Judge


                     No. W1999-01370-CCA-R3-CD - Filed July 13, 2001


The defendant appeals his convictions for first degree felony murder, especially aggravated
kidnapping, and conspiracy to commit felony murder. After careful review, we conclude that the
evidence is sufficient to support the defendant’s convictions for first degree felony murder and
especially aggravated kidnapping. Further, we hold that conspiracy to commit felony murder is not
a recognizable offense in Tennessee. Therefore, we affirm the defendant’s convictions for first
degree felony murder and especially aggravated kidnapping. We reverse and dismiss the defendant’s
conviction for conspiracy to commit felony murder.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.

Coleman W. Garrett, Memphis, Tennessee, for the appellant, Anthony Perry.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul F. Goodman and Paul Thomas Hoover, Jr.,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

       In May 1996, the Shelby County Grand Jury returned three indictments against the defendant
and other co-defendants. In total, the indictments contained seven counts. A jury found the
defendant guilty of three counts: first degree murder, Tennessee Code Annotated section 39-13-
202(a)(2); especially aggravated kidnapping, Tennessee Code Annotated section 39-13-305(a)(4);
and conspiracy to commit felony murder, Tennessee Code Annotated sections 39-12-103 and 39-12-
202(a)(2). The jury then imposed a life sentence for the first degree felony murder conviction. After
a sentencing hearing, the trial court sentenced the defendant to the Department of Correction for
twenty (20) years as a Range I Standard Offender for the especially aggravated kidnapping
conviction and fifteen (15) years as a Range I Standard Offender for the conspiracy to commit felony
murder conviction. These sentences were ordered by the trial court to run concurrently with each
other and the life sentence. After the defendant’s motion for new trial was overruled, a timely notice
of appeal was filed. The appeal is therefore properly before us, and the defendant claims: (1) The
evidence was insufficient to support any of his convictions; and (2) The trial court incorrectly relied
on the theory of criminal responsibility in denying the defendant’s motion for judgment of acquittal
at the close of the State’s proof.

       After review, we conclude that sufficient evidence exists to support the defendant’s
convictions for first degree felony murder and especially aggravated kidnapping. We further
conclude that conspiracy to commit felony murder is not a recognizable offense in Tennessee.

                                                        Facts

        On August 12, 1995, Mr. Leslie Webber, Jr. (Leslie Jr.) awoke to what he described as
“scuffling noises” and his mother, Dorothy Webber (victim) telling someone not to kill her husband,
Leslie Webber, Sr. (Leslie Sr.). At that moment, a female came into Leslie Jr.’s room, pointed a
revolver at him, and instructed him not to move. Two males then entered his room, placed a gun to
his head, tied him up, and ransacked his room.

        The individuals momentarily left the house but soon returned to take the keys to the victim’s
car, a 1993 blue Toyota Camry. One of the males said, “We got your mama,” and ran out of the
house. Leslie Jr. eventually freed himself and rushed to his parents’ bedroom, where he found his
father, Leslie Sr., dazed, with a knot on his head and his hands cuffed. After realizing the men had
fled with his mother, Leslie Jr. called 911 and his brothers. The police arrived, along with other
members of the victim’s family. They began looking for the victim and for the victim’s blue Toyota
Camry.

        Two days later, one of the victim’s sons located the victim’s car at an apartment complex
near Airways Boulevard in Memphis. Eight days later, on August 22, 1995, the victim’s body was
discovered in a field in DeSoto County, Mississippi.1 Duct tape had been placed around the victim’s
entire head, thereby covering her nose and mouth, and her hands were cuffed behind her back.

         The evidence revealed that the victim had been taken to TK’s Tire Shop on Airways and then
to a room in the Elvis Presley Boulevard Inn prior to her death. Memphis Police Department
Sergeant Richard Roleson interviewed the defendant and the defendant gave a statement after he
waived his Miranda rights. At trial, Sergeant Roleson read from the defendant’s statement, which
the defendant had signed on October 27, 1995. According to the defendant’s written statement and
his testimony at trial, he denied kidnapping the victim. The defendant described being paged by his
cousin, Ydale Banks, and after returning Banks’ call, the defendant went to TK’s Tire Shop, where



       1
           The reco rd does n ot reveal who discovere d the victim’s bo dy nor how the victim’s bod y was discov ered.

                                                         -2-
he saw the victim in a U-Haul truck. Also present were Terrence Keller, and another person known
as “T.”

       According to the defendant, he, along with Banks and “T,” drove the victim to the Elvis
Presley Boulevard Inn where the defendant and “T” sat with the victim for approximately ten (10)
hours. The defendant stated that upon leaving the motel, he understood that he would be
compensated for spending time with the bound victim. The defendant stated that he left the motel
and returned home. Also according to the defendant’s statement, he denied taping the victim’s
mouth and claimed that he only taped her ankles.

        The defendant further stated that he went back to the tire store the next morning and was
informed “that they were going to get rid of [the victim],” who was once again in the back of a U-
Haul truck. The defendant, along with others in the group, then drove the victim in the U-Haul truck
to a remote field in Mississippi. In the defendant’s statement, contrary to his testimony at trial, he
stated that the victim was still alive when they rolled her out of the U-Haul. The defendant further
stated that at some time Keller and “T” taped the victim’s upper extremities.

        Dr. O. C. Smith, medical examiner, testified that he examined the victim’s body on August
23, 1995, and identified her through her dental records. He testified that the victim had been dead
approximately seven (7) to ten (10) days. Dr. Smith testified that the victim’s hands were cuffed
behind her head and duct tape covered her entire face. His examination revealed that suffocation
was the cause of death. He further testified that the victim would have died approximately two (2)
to four (4) minutes after being deprived of oxygen.

        The defendant testified on his own behalf at trial and claimed that he had given some false
information in his statement to the police. The defendant testified about the events surrounding the
victim’s death and gave additional information about what took place. He testified that when he
arrived at TK’s Tire Shop, he saw the victim with her hands bound behind her and duct tape across
her eyes and mouth. He then drove the U-Haul to the Elvis Presley Inn, and the others in the group
put the victim in a room. After sitting with the victim for approximately ten (10) hours, the
defendant left the motel room and walked back to TK’s Tire Shop, where he met Banks and they
drove back to the motel. Upon returning to the motel, they placed the victim in the U-Haul truck and
the defendant taped the victim’s ankles. The next morning, “T” picked up the defendant and they
went back to the tire shop, where the defendant learned that the victim was dead. The group
discussed getting rid of the body and eventually loaded the victim’s body into the U-Haul truck. The
defendant drove the truck to a field in Mississippi where he helped roll her to the bottom of the truck
ramp and left her. When asked why he told police the victim was alive when they put her out in
Mississippi, the defendant claimed that Banks told him to say that so Banks could not be prosecuted
in Tennessee.




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                                              Analysis

A. Motion for Judgment of Acquittal

         First, we address the defendant’s claim that the trial court erred in denying his motion for
judgment of acquittal at the close of the State’s proof. Specifically, the defendant complains that the
trial court erred by applying the theory of criminal responsibility in overruling his motion. However,
a motion for judgment of acquittal made at the end of the State’s proof “is waived when the
defendant elects to present evidence on his own behalf.” State v. Ball, 973 S.W.2d 288, 292 (Tenn
Crim. App. 1998); see also, State v. Mathis, 590 S.W.2d 449, 453 (Tenn. 1979). Once a defendant
makes a motion for judgment of acquittal, the defendant must stand on that motion and not present
any other proof in order to contest the denial of that motion. See Ball, 973 S.W.2d at 292. This
court does not return to the midpoint of the trial and review the record as it existed when the motion
was made. See id.; see also State v. Thompson, 549 S.W.2d 943, 945 (Tenn. 1977). Therefore, we
will review all evidence presented at trial in determining whether sufficient evidence existed for
application of the theory of criminal responsibility.

        Whether sufficiency of the evidence for acquittal purposes is being considered by the trial
court upon a motion for judgment of acquittal or by an appellate court upon review, the standard to
apply is the same. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). That standard
is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979).

      The theory of criminal responsibility is found in Tennessee Code Annotated section 39-11-
402, which provides:
       A person is criminally responsible for an offense committed by the conduct of
       another if: . . . [a]cting with intent to promote or assist the commission of the offense,
       or to benefit in the proceeds or results of the offense, the person solicits, directs, aids,
       or attempts to aid another person to commit the offense.


        The defendant contends that he never possessed the requisite mental state to kidnap the
victim or to kill the victim, and thus he could not be held criminally responsible for the conduct of
another. He also contends that because he was not present when the victim was killed, he cannot be
held criminally responsible for her killing. However, to be held criminally responsible for the
conduct of another, the State needed only to show that the defendant intended to promote or assist
the commission of the offense, not the intent to commit the offense. See Tenn. Code Ann. § 39-11-
402(2).




                                                 -4-
       In the State’s case in chief, not only did they introduce substantial evidence showing the
defendant’s involvement in the commission of the continuing kidnapping, 2 but they also presented
substantial proof that the defendant intended to promote or assist the commission of the kidnapping.
The State introduced the defendant’s own signed statement, in which he stated that he drove the
victim to a motel; sat with the victim for approximately ten (10) hours in the motel; and, at some
point during the course of the crime, taped the victim’s ankles. The defendant’s testimony at trial,
although different in some aspects from his signed statement, corroborated the fact that he taped the
victim’s ankles and placed her in the back of a U-Haul truck. Although the evidence was not clear
as to who actually killed the victim, the evidence clearly showed an intent by the defendant to
promote or assist the commission of the kidnapping. Therefore, sufficient evidence existed for
application of the theory of criminal responsibility. This issue is without merit.

B. Sufficiency of Evidence

        The defendant asserts that the evidence was insufficient to support his convictions for first
degree felony murder, especially aggravated kidnapping, and conspiracy to commit felony murder.
The proper inquiry for an appellate court determining the sufficiency of evidence to support a
conviction is whether, considering the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979); State v. Hall, 8
S.W.3d 593, 599 (Tenn. 1999). “A guilty verdict by the jury, approved by the trial court, accredits
the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution’s
theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of
witnesses, the weight and value given to the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact, and this court does not reweigh or reevaluate the evidence.
See Bland, 958 S.W.2d at 659. Nor may this court substitute its inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Liakas v. State, 199 Tenn. 298, 305,
286 S.W.2d 856, 859 (1956).

        The standard for appellate review is the same whether the conviction is based upon direct or
circumstantial evidence. See State v. Vann, 976 S.W.2d 93, 111 (Tenn. 1998). “A conviction may
be based entirely on circumstantial evidence where the facts are ‘so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.’”
State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985)). A verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, and on appeal the defendant has the burden of illustrating why the evidence
is insufficient to support the verdict rendered by the jury. Id.; see also State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Furthermore, the State on appeal is entitled to the strongest legitimate view


         2
            The defe ndant asserte d that he is not gu ilty of kidnapp ing because he did not p articipate in the initial taking.
However, in State v. Legg, 9 S.W.3d 111, 118 (Tenn. 1999), our Supreme Court held that kidnapping offenses are
continuing offenses. Th erefore, it is not essential for a conviction of kidnapping that the defendant take part in the initial
removal o r confineme nt.

                                                              -5-
of the evidence and all reasonable and legitimate inferences which may be drawn from the evidence.
See Hall, 8 S.W.3d at 599; Bland, 958 S.W.2d at 659.

1. Felony Murder Conviction

         Under Tennessee law, felony murder is “[a] killing of another committed in the perpetration
of or attempt to perpetrate any . . . kidnapping.” Tenn. Code Ann. § 39-13-202(a)(2). The
indictment in this case alleged that the defendant committed felony murder in the perpetration of a
kidnapping, not especially aggravated kidnapping. Therefore, the jury was only required to find that
the defendant committed a false imprisonment that exposed the victim to a substantial risk of bodily
injury or that he was criminally responsible for such conduct of another. In addition, the jury had
to find that a death occurred in the perpetration of that kidnapping. The jury was not required to find
that the defendant killed the victim. The jury only had to find that the defendant committed the
underlying kidnapping, or that he was criminally responsible for such kidnapping, and a death
occurred in the perpetration of that kidnapping.

         Here the evidence was sufficient for the jury to find the defendant guilty of kidnapping, as
is discussed later in this opinion. Furthermore, the evidence clearly showed that, during the course
of this kidnapping, the victim was taped around her entire head and suffocated to death. The medical
testimony indicated that the victim died in two to four minutes after being deprived of oxygen.
Based upon this evidence, any rational trier of fact could conclude beyond a reasonable doubt that
the victim died in the perpetration of this kidnapping. Therefore, we conclude that sufficient
evidence exists to find the defendant criminally responsible for felony murder.

2. Especially Aggravated Kidnapping

        Next, we address whether sufficient evidence exists to support the defendant’s conviction
for especially aggravated kidnapping. Under Tennessee law, especially aggravated kidnapping is
defined as
        false imprisonment, . . . accomplished 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; . . . [c]ommitted to hold the victim for ransom or reward . . . ; or [w]here the
        victim suffers serious bodily injury.
Tenn. Code Ann. § 39-13-305(a)(1), (a)(3), (a)(4). False imprisonment occurs 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). As used in the kidnapping statutes, unlawful means
“accomplished by force, threat, or fraud.” Tenn. Code Ann. § 39-13-301(2). In addition, one may
be held criminally responsible for an offense committed by another’s conduct if: “[a]cting with intent
to promote or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.”
Tenn. Code Ann. § 39-11-402(2).




                                                 -6-
        Although the State pursued a theory at trial that the defendant and others committed the
especially aggravated kidnapping by holding the victim for ransom and/or by accomplishing the
kidnapping by use of a deadly weapon, the jury rejected those theories and convicted the defendant
on the basis that the victim suffered serious bodily injury. Therefore, our analysis focuses on that
particular element. A serious bodily injury is bodily injury involving “[a] substantial risk of death;
[p]rotracted unconsciousness; [e]xtreme physical pain; [p]rotracted or obvious disfigurement; or
[p]rotracted loss or substantial impairment of a function of a bodily member, organ or mental
faculty.” Tenn. Code Ann. § 39-11-106(a)(34).

         The evidence at trial clearly showed, specifically by the defendant’s own testimony, that the
defendant confined the victim unlawfully and interfered substantially with her liberty. The defendant
testified that when he arrived at the tire shop he saw the victim with her hands bound behind her
back and with duct tape across her hands and mouth. He then testified that he drove the U-Haul
truck, with the victim in the back, to a motel and then sat with the victim for approximately ten
hours. These actions clearly show that the defendant unlawfully confined the victim so as to
interfere substantially with her liberty, thereby satisfying the elements of false imprisonment.

        There was additional evidence introduced that would allow a rational trier of fact to conclude
that the defendant acted with the intent to promote or assist in the commission of the kidnapping.
The defendant’s return the next morning implies his continuing intent to promote or assist in the
kidnapping. The defendant assisted in loading the body into the U-Haul truck and then drove the
truck to Mississippi and helped unload it.

        The evidence in this case of serious bodily injury is clear. The victim here suffered the
ultimate serious bodily injury, death. The duct tape around her entire head resulted in her suffocating
to death. By having her ability to breath disrupted and thereby her body being deprived of oxygen,
the victim suffered a substantial impairment of a function of a bodily organ. Therefore, we conclude
that sufficient evidence exists to find the defendant criminally responsible for especially aggravated
kidnapping.

3. Conspiracy to Commit Felony Murder

        Finally, we address the defendant’s conviction for conspiracy to commit felony murder. In
Tennessee, a conspiracy is committed
        if two (2) or more people, each having the culpable mental state required for the
        offense which is the object of the conspiracy and each acting for the purpose of
        promoting or facilitating commission of an offense, agree that one (1) or more of
        them will engage in conduct which constitutes such offense.
Tenn. Code Ann. § 39-12-103(a) (emphasis added). A first degree felony murder is “[a] killing of
another committed in the perpetration of or attempt to perpetrate any first degree murder, arson, rape,
robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft
piracy.” Tenn. Code Ann. § 39-13-202(a)(2). Furthermore, “[n]o culpable mental state is required
for conviction under Subdivision (a)(2) (felony murder) . . . except the intent to commit the


                                                 -7-
enumerated offenses or acts in such subdivisions.” Tenn. Code Ann. § 39-13-202(a). In essence,
a first degree felony murder, unlike a first degree premeditated and intentional murder, is an
unintentional killing. See, e.g., State v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999); State v.
Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996).

        In State v. Kimbrough, our Supreme Court addressed the issue of whether attempt to commit
felony murder is an offense in Tennessee and held that “the offense of attempted felony murder does
not exist in Tennessee.” Kimbrough, 924 S.W.2d at 889. The Court reasoned that “a charge of
attempted felony murder is inherently inconsistent, in that it requires that the actor have intended to
commit what is deemed an unintentional act.” Id. We face substantially the same situation here: for
one to have conspired to commit a felony murder, one must have intended to commit what is deemed
an unintentional act. Therefore, we conclude that conspiracy to commit felony murder, like
attempted felony murder, is not an offense in Tennessee. Accordingly, we reverse the defendant’s
conviction for conspiracy to commit felony murder.

                                           Conclusion

        After extensive review of the record before us, we hold that the evidence at trial was
sufficient to support a conviction for felony murder and especially aggravated kidnapping. We
further hold that conspiracy to commit felony murder is not a recognizable offense in Tennessee and
reverse and dismiss the defendant’s conviction for conspiracy to commit felony murder.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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