         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 December 4, 2001 Session

                 STATE OF TENNESSEE v. RAYMOND GRIFFIN

                     Appeal from the Criminal Court for Shelby County
                     Nos. 98-09629 – 98-09631  Joseph B. Dailey, Judge



                    No. W2000-01332-CCA-R3-CD - Filed March 15, 2002


GARY R. WADE, P.J., concurring and dissenting.

        I agree with the majority opinion except that I would hold that the defendant’s dual
convictions for the especially aggravated kidnapping and aggravated robbery of Larry Smith do not
violate due process. I would, therefore, affirm the especially aggravated kidnapping conviction.

        In Anthony, our supreme court acknowledged that a period of confinement of the victim
frequently accompanies such crimes as robbery and established that whether a separate kidnapping
conviction can be supported depends upon "whether the confinement, movement, or detention [was]
essentially incidental to the accompanying felony . . . ." 817 S.W.2d 299, 305 (Tenn. 1991). Later,
in State v. Dixon, our high court clarified its ruling in Anthony:

               Anthony and its progeny, however, are not meant to provide the rapist a free
       kidnapping merely because he also committed rape. The Anthony decision should
       only prevent the injustice which would occur if a defendant could be convicted of
       kidnapping where the only restraint utilized was that necessary to complete the act
       of rape or robbery. Accordingly, any restraint in addition to that which is necessary
       to consummate rape or robbery may support a separate conviction for kidnapping.

957 S.W.2d 532, 534-35 (Tenn. 1997) (emphasis added). Where the confinement is beyond that
necessary for the accompanying felony, the next inquiry is whether it (1) prevented the victim from
summoning help; (2) lessened the defendant's risk of detection; or (3) created a significant danger
or increased the victim's risk of harm. Id. at 535.

       Here, the majority concludes that the binding of Smith’s hands with duct tape was essentially
incidental to the aggravated robbery and, therefore, that the defendant’s separate conviction for
especially aggravated kidnapping is violative of due process and Anthony. In my view, however,
the facts warrant separate convictions. The record demonstrates that the defendant and two
accomplices accosted the victim in his driveway just as he arrived home from work. The three men
blocked the victim’s vehicle with their own and held the victim at gunpoint. Rather than robbing
the victim as he sat in his truck, the men forced him inside his home at gunpoint and then bound him
with duct tape. When the victim had difficulty unlocking the door, one of the assailants suggested
they shoot him.

        In my view, the confinement of the victim in this instance was beyond that necessary for the
commission of the robbery. In State v. Claude Douglas Copeland, No. 01C01-9410-CR-00366, slip
op. at pp. 8-9 (Tenn. Crim. App., at Nashville, Sept. 27, 1995), a panel of this court approved of
separate convictions for robbery and kidnapping with intent to commit robbery:

               [T]he defendant's conduct of . . . forcing [the victim] in the trunk[]
       substantially increased the victim's risk of harm. If the defendant had only wanted
       to steal the victim's wallet and car, he could have left him on the street where he
       robbed him. It is evident from these facts that the robbery could have been
       completed without forcing the victim into . . . the trunk at knife point. Thus, the
       kidnapping was not incidental to the robbery but rather in addition to the robbery.

Here, the defendant and his companions could have completed the robbery of Larry Smith without
forcing him at gunpoint into his residence or binding him with duct tape. By forcing Smith into his
residence at gunpoint, the robbers both lessened their chances of detection and increased the risk of
harm to Smith, whose nervous fumbling encouraged one robber to exhort the others to “shoot him.”
By binding Smith, the robbers further lessened their risk of detection and hindered any potential
attempt by Smith to summon help. Furthermore, although Smith was able to unbind himself, he
testified that when he attempted to telephone for help, he discovered that the robbers had cut all but
one of the telephone lines. I would, therefore, uphold the separate conviction for especially
aggravated kidnapping.



                                                       ____________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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