State v. Johnny Smith ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1997
FILED
STATE OF TENNESSEE, )
) No. 02C01-9602-CR-00061 May 15, 1997
Appellee )
) SHELBY COUNTY Cecil Crowson, Jr.
vs. ) Appellate C ourt Clerk
) Hon. JAMES C. BEASLEY, SR., Judge
JOHNNY L. SMITH, )
) (Two Counts Especially Aggravated
Appellant ) Kidnapping; Two Counts Aggravated
Robbery; One Count Aggravated
Burglary; One Count Aggravated
Sexual Battery)
For the Appellant: For the Appellee:
WALKER GWINN CHARLES W. BURSON
Assistant Public Defender Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103 DEBORAH A. TULLIS
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
A.C. WHARTON Nashville, TN 37243-0493
District Public Defender
WILLIAM GIBBONS
District Attorney General
AMY WEIRICH
Asst. District Attorney General
Third Floor
Criminal Justice Complex
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Johnny L. Smith, was convicted by a Shelby County jury of
two counts of especially aggravated kidnapping, two counts of aggravated
robbery, one count of aggravated burglary, and one count of aggravated sexual
battery. At the sentencing hearing, the trial court imposed an effective sentence
of thirty-eight years in the Department of Correction.1 In this appeal as of right,
the appellant contends that the evidence is insufficient to support his convictions
and that his convictions for especially aggravated kidnapping violate the holding
of our supreme court in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991).
After review, the judgment of the trial court is affirmed.
I. Background
The victims, Gregory Stone and Kisha Reed, along with their two small
children, shared an apartment in Memphis. On the date of October 12, 1994,
Mr. Stone and Ms. Reed were asleep in their upstairs bedroom, while the two
children, ages two and one, were asleep in the downstairs living area. During
the early morning hours, the front door of their apartment was kicked open,
awakening the sleeping family. Four to five men, brandishing a variety of
weapons, entered the home.
In the master bedroom, the men forced Stone onto the floor and covered
1
The d ual conv ictions stem from the fact tha t the offen se involve d two victim s.
Specifically, the trial court imposed the following sentences: especially aggravated robbery, 30
years each count; aggravated robbery, 16 years each count; aggravated burglary, 8 years; and
agg rava ted s exu al bat tery, 16 years . The cour t orde red th at all of the s ente nce s run conc urre ntly,
with th e exc eptio n of th e 8 yea r sen tenc e for aggr avate d bur glary, w hich was to run cons ecu tively.
2
his head with a blanket and a pillow, while Ms. Reed was forced to lay on the
floor. One man, the apparent leader, demanded "money and guns." The
"leader" then began to hit Stone upon his head with a weapon, as he continued
his demand for money. Stone informed the leader that he had no money, but he
did have a gold and diamond Cadillac pendant, worth $10,000. Stone was
restrained with a telephone cord, and the "leader" instructed the other men to
look for valuables.
Ms. Reed remained on the floor as ordered, while the "leader" insisted
that she too reveal monies or valuables. Reed informed him that she only had
her "bill money." With a gun aimed at her head, Reed was forced downstairs to
the location where she kept this money. Once the money was retrieved, Reed
was returned upstairs.
Upstairs, Ms. Reed sat on her bed with her two children as the intruders
continued to ransack her home, looking for valuables. When the "leader" noticed
her watching them, he ordered her upon her stomach whereupon she was
physically restrained with a telephone cord. While Ms. Reed was bound and on
the floor, the leader told her that he was going to have sex with her. However,
after making brief sexual contact with the victim, he returned to the planned
robbery. No penetration was attempted.
Stone was then placed in the closet in the children's room, while Ms. Reed
and her two children were placed in her bedroom closet. The intruders then left
in Stone's 1983 Nissan 300SX. After their departure, Stone was able to free
himself and the others. The family then called the police from a neighbor's
residence.
3
At trial, the appellant presented an alibi defense. The appellant’s
girlfriend testified that, at the time of the robberies, she and the appellant were in
bed. Ms. Reed testified that, immediately following the offense, she recognized
the “leader” as the man to whom Stone had provided transportation
approximately two months previously. At the police station, she identified the
appellant from a photographic lineup. At trial, Ms. Reed again identified the
appellant as the perpetrator of the offense in this case.
II. Sufficiency of the Evidence
In his first issue, the appellant challenges the sufficiency of the convicting
evidence. Specifically, he contends that, because the only proof offered linking
him to the charged offenses is the uncorroborated testimony of Ms. Reed, the
proof is insufficient to establish his identity as the perpetrator of these offenses.
We disagree.
An accused challenging the sufficiency of evidence on appeal has the
burden of proving that the evidence is insufficient. Id. In determining the
sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, the
State is entitled to the strongest legitimate view of the evidence and all legitimate
or reasonable inferences which may be drawn therefrom. State v. Harris, 839
S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to affirm the
conviction if the evidence viewed under these standards was sufficient for any
rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789
(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13
(e).
4
Again, the only challenge raised as to the sufficiency of the convicting
evidence relates to Ms. Reed's identification of the appellant as the perpetrator
of the offenses. Immediately after the incident, Ms. Reed stated to Mr. Stone
that she recognized the perpetrator as being "that dude you gave a ride to that
day." From this identification, Stone was able to name the perpetrator as the
appellant. Later that morning, Reed positively identified the appellant from a
photographic line-up at the police station.
In State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993), this
court held that the testimony of a victim identifying the perpetrator is sufficient in
and of itself to support a conviction. See also State v. Shelton, No. 01C01-
9505-CC-00144 (Tenn. Crim. App. at Nashville, Mar. 22, 1996), perm. to appeal
denied, concurring in results only, (Tenn. Nov. 12, 1996). Moreover, the
credibility of eyewitness testimony identifying the accused as the perpetrator of
the criminal offense for which he stands trial is a question of fact for the
determination of the jury upon consideration of all competent proof. Strickland,
885 S.W.2d at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim.
App. 1982)); see also State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App.
1981). Although the appellant presented an alibi defense, i.e., the testimony of
his girlfriend, the jury, by returning a guilty verdict, accredited the testimony of
Ms. Reed. Accordingly, we conclude that the evidence is sufficient for a rational
trier of fact to find the appellant guilty beyond a reasonable doubt. This issue is
without merit.
III. Anthony Issue
5
The appellant, in his next issue, contends that his convictions for
especially aggravated kidnapping are improper, because the kidnappings were
merely incidental to his primary purpose of armed robbery and, thus, cannot
withstand scrutiny under the rule announced in Anthony, 817 S.W.2d at 299.2
Anthony was our supreme court’s first decision specifically addressing the issue
of whether movement incidental to an underlying crime such as robbery would
be sufficient to sustain a separate kidnapping conviction. Expressing a concern
for the constitutional guaranty of due process, the court announced that the test
of whether the kidnapping should be sustained was “whether the confinement,
movement, or detention is essentially incidental to the accompanying felony . . .
or whether it is significant enough, in and of itself, to warrant independent
prosecution . . . .” Anthony, 817 S.W.2d at 306. Again, in State v. Coleman, 865
S.W.2d 455 (Tenn. 1993), our supreme court held that the offense of aggravated
kidnapping could not stand in view of convictions returned for aggravated
robbery and aggravated rape, based upon the due process principles announced
in Anthony.
At this juncture, it is important to note that the decisions in Anthony and its
companion cases, State v. Martin, 817 S.W.2d at 299, and Coleman, involved
statutory offenses under the pre-1989 Criminal Code.3 The court’s focus in
these cases was “whether the confinement, movement or detention is essentially
incidental to the accompanying felony.” In 1989, Tennessee enacted a new
criminal code, adopted, in large part, from the MODEL PENAL CODE, which included
the graded offenses of false imprisonment, kidnapping, aggravated kidnapping
2
The appellant raises no Anthony issue with respect to his conviction for aggravated
sex ual ba ttery.
3
The offenses of aggravated kidnapping in the conso lidated cases of Anthony and Mar tin
were committed in 1986 and 1988. The offense in Coleman was com mitte d in 19 88. A t the tim e
these offenses were committed, the core element of the offense of aggravated kidnapping
proscribed the conduct of one who unlawfully "seizes, confines, inveigles, entices, decoys,
abducts, conceals, kidnaps or carries away another. . . ." Tenn. Code Ann. § 39-2-301 (1985
Supp.).
6
and especially aggravated kidnapping.4
The drafters of the MODEL CODE recognized that a broadly-drawn
kidnapping statute could potentially sweep within its scope conduct that is
unlawful, but which should be punished as some other crime.5 MODEL PENAL
CODE §212.1. The Code’s approach to this concern was to define the crime in
terms that identify a distinct kind of wrongful act or harm. The statutory language
of our kidnapping statute adopts this rational. Thus, the focus of our kidnapping
offenses is upon the specific harm threatened as opposed to movement,
confinement or detention. Under our current criminal code, before a conviction
can occur for any of the enumerated kidnapping offenses, there must be proof of
an unlawful removal or confinement of another so as to “interfere substantially”
with the other’s liberty, coupled with specific conduct that causes or threatens a
specific harm. Tenn. Code Ann. § 39-13-302 (1989). In the case before us, the
specific harm targeted was “accomplished with a deadly weapon.” Tenn. Code
Ann. § 39-13-305(1).
4
Tenn. Code Ann. § 39-13-305 defines especially aggravated kidnapping as false
impriso nme nt . . . :
(1) 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;
(2) Where the victim was under the age of thirteen at the time of the
rem oval or co nfinem ent;
(3) Committed to hold the victim for ransom or regard, or as a shield or
hostage; or
(4) W here the vic tim s uffe rs se rious bodily in jury.
5
The C ode co mm ents pro vide the fo llowing illustration s:
Thus , for exam ple, the rob ber who forces his victim to mov e from one roo m to
ano ther in orde r to fin d a ca shb ox or open a saf e tec hnic ally m ay com mit
kidnapping as well as robbery. This reasoning raises the po ssibility of cumulative
penalties or of higher sanctions for kidnapping, even though the “removal” of the
victim to another place was part and parcel of the robbery and not an
independent wrong. Similarly, many instances of forcible rape involve some
coerce d mo vem ent of the v ictim or u nlawful res traint for eno ugh tim e to com plete
the sex act. Again, the actor may be liable for both kidnapping and rape, even
thou gh su ch as porta tion o r dete ntion of the victim is a cr imin ologic ally
insignificant circumstance in a course of conduct constituting rape. Definition of
kidnapping to exclude such cases is a task of special subtlety for, unless
partic ular c are is take n, trivia l aspe cts o f rob bery, r ape , or so me othe r crim e will
end up classified as the most serious version of kidnapping. . . . The MODEL
P E N A L C O D E’S response to these concerns is to retain kidnapping as an
aggravated felony but to restrict its scope to cases of substantial removal or
confinement for certain specified purposes. MODEL PENAL CODE 212.1(2)(3).
7
The enactment of new statutory offenses of kidnapping have not,
however, obviated the guarantees of due process and fundamental fairness
addressed in Anthony. Reiterating this principle, we hold that the analysis
employed in determining the propriety of a kidnapping conviction committed in
the course of another felony should focus on the specific harm of the
“kidnapping” sought to be prevented in conjunction with the specific facts of each
individual case, rather than considering the general elements of “false
imprisonment,” which are present in any grade of the offense.
Accordingly, based upon the due process concerns announced in
Anthony, and the legislative focus of our current kidnapping statutes, we adopt
the three part test utilized by other jurisdictions with similar statutory language.6
Moreover, we note that this test was cited to, with approval, in Anthony, 817
S.W.2d at 306. See also State v. Robinson, No. 01C01-9207-CR-00234 (Tenn.
Crim. App. at Nashville, July 22, 1993). Under this test:
[I]f a taking or confinement is alleged to have been done to
facilitate the commission of another crime, to be kidnapping the
resulting movement or confinement:
1. Must not be slight, inconsequential and merely incidental to the
other crime;
Buggs, 547 P.2d at 731. The question should not focus upon incidental
movement from point A to point B, but, rather, upon whether the confinement or
removal "interfere[d] substantially" with the other's liberty. Tenn. Code Ann. §
39-13-302(a). In other words, there can be no kidnapping where the only
confinement involved is the sort that, although not necessary to the underlying
felony, is likely to naturally accompany it. Berry v. State, 668 So.2d 967, 969
(Fla. 1966).
2. Must not be of the kind inherent in the nature of the other crime;
Buggs, 547 P.2d at 731. To satisfy this prong the confinement must not be the
6
This test was first promulgated by the Kansas Supreme Court in State v. Buggs, 547
P.2d 72 0, 731 (K an. 1976 ). See also Faison v. State , 426 So .2d 963 ( Fla. 1983 ).
8
sort inherent in the underlying offense. For example, it is not necessary to tie up
the victim in order to commit a robbery. Berry, 668 So. 2d at 969. And,
3. Must have significance independent of the other crime in that it
makes the other crime substantially easier of commission or
substantially lessens the risk of detection.
Buggs, 547 P.2d at 731. “[T]he determination of whether the confinement makes
the other crime substantially easier of commission or substantially lessens the
risk of detection does not depend upon the accomplishment of its purpose. The
question is whether the initial confinement was intended to further either of these
objectives.” Berry, 668 So. 2d at 970 (quoting Ferguson v. State, 533 So.2d 763,
764 (Fla. 1988)). There can be no bright-line rule for determining whether the
“removal” or “confinement” of a victim to another place is part and parcel of the
accompanying felony, or whether it will support an independent criminal offense.
The test remains a subjective one, based upon the facts of each case.7
Again, in the case before us, the appellant was charged with especially
aggravated kidnapping by use of a deadly weapon, Tenn. Code Ann. § 39-13-
305(a)(1). Applying the above stated principles to the present case, we hold that
the conduct of the appellant constituted especially aggravated kidnapping as
contemplated by our legislature.8 The appellant, armed and accompanied by
four others, entered the bedroom of the sleeping victims, threatened them with a
weapon, beat the husband upon his head with the weapon, and tied them up
with telephone cord, while the others ransacked the premises for valuables.
Before leaving the home, the appellant ordered that the victims be placed in
separate closets, barricaded with furniture. First, this confinement was not slight,
7
The supreme court, in Anthony, suggested that “one method” of resolving the question of
“whether the confinement is necessarily incidental to the accompanying felony,” is to ask “whether
the d efen dan t’s co ndu ct su bsta ntially inc reas ed th e risk of ha rm over and a bove that n ece ssa rily
present in the crime of robbery itself.” Id. at 30 6. W e con clud e tha t this in quiry is nece ssa rily
inheren t within each prong o f the test se t forth abo ve.
8
It is the legislature’s role “to proscribe and prevent conduct that unjustifiably and
inexcusably causes or threatens harm to individual, property or public interest for which protection
through the criminal law is appropriate.” Tenn. Code An n. § 39-11-101(1) (1989).
9
inconsequential, or merely incidental to the crime of robbery. The act of tying
both victims with cord and placing them in separate closets "interfere[d]
substantially” with their liberty. Second, it was not necessary to tie the victims in
order to commit the robberies. Third, the binding of the victims had independent
significance because it made the robberies easier to commit and substantially
lessened the risk of detection. This issue is, therefore, without merit.
For the foregoing reasons, the judgments of conviction are affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________
JOE B. JONES, Presiding Judge
__________________________________
JOE G. RILEY, Judge
10