State of Tennessee v. Jeffrey W. Tittle

10/23/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 18, 2017 Session
STATE OF TENNESSEE v. JEFFREY W. TITTLE
Appeal from the Criminal Court for Wilson County
No. 14-CR-550 Brody N. Kane, Judge
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No. M2016-02006-CCA-R3-CD
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A jury convicted the Defendant, Jeffrey W. Tittle, of attempted aggravated kidnapping
and aggravated assault, Class C felonies, for grabbing the victim, placing a knife to her
throat, and dragging her approximately twenty feet down a dark driveway into a scrap
yard. The Defendant was sentenced to ten years for each offense, to be served
consecutively. On appeal, the Defendant challenges the trial court’s decision to introduce
a video from the responding officer’s patrol car, the trial court’s decision to permit the
jury to view the video more than once, and the trial court’s refusal to merge the offenses
based on the principles of double jeopardy and due process. We conclude that there was
no error in admitting the video, that there was no error in allowing the jury to view it
during deliberations, that double jeopardy principles do not bar dual convictions for
attempted aggravated kidnapping and aggravated assault, and that there is no basis to
disturb the determination of the jury that any removal or confinement was beyond that
necessary to commit the aggravated assault. Accordingly, we affirm the trial court’s
judgments. We remand only for the correction of clerical errors in the judgment form.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.
Blake Lawrence (at trial and on appeal) and David Lawrence (at trial), Lebanon,
Tennessee, for the appellant, Jeffrey Wayne Tittle.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Tom P. Thompson, Jr., District Attorney General; and Thomas H. Swink and Justin
Harris, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant attacked the victim, Ms. Renee Battjes, by putting a knife to her
throat and dragging her down a dark driveway toward a scrap yard. The victim managed
to escape and ran toward the main road to summon help. Almost immediately after the
attack, she was able to stop a law enforcement officer on patrol, and her description of the
crime was recorded on video by the patrol car. Prior to trial, the Defendant sought to
exclude the video and to suppress a statement he had made to police regarding his
employment.1 The trial court suppressed the statement but concluded that the video was
admissible under the excited utterance exception to the rule prohibiting hearsay. See
Tenn. R. Evid. 803(2). The video was partially muted at trial to remove a discussion
between two law enforcement officers about the Defendant’s prior sexual offenses.
At trial, the victim testified that on May 30, 2014, she had been walking most of
the day to “clear her head” due to financial difficulties she was having with her husband.
She had left her husband’s vehicle around noon and had stopped by the Alcoholics
Anonymous house at some point. She did not have cellular service on her telephone but
had been periodically checking to see if she could use a wireless system in order to
communicate with her friends or family. At approximately 8:45 p.m., the victim was
tired and still a significant distance from her home. She saw the Defendant, who was a
stranger to her, standing by a red truck in his driveway near the road and smoking a
cigarette. The victim testified that she asked the Defendant if she could purchase a
cigarette and that he responded by giving her a pack with three or four cigarettes in it.
The victim had a brief conversation with the Defendant, during which she asked him who
lived in the house. When he told her that his mother and grandmother lived there, she
asked if his mother or grandmother could give her a ride.
The victim testified that about two or three minutes into the conversation, she
began to feel uncomfortable due to the way the Defendant looked at her. She testified
that the Defendant also asked her for her telephone number and if she wanted to “party”
with him and his mother. The victim felt so uncomfortable that she began to note details
regarding the house, including the address, a brown vehicle in the driveway, and the fact
that it appeared there had been a yard sale. The victim testified that she told the
Defendant that she was tired and married and that she gave him a fake telephone number
before leaving. She never saw the Defendant’s mother or grandmother but saw a man in
a wheelchair by the door. The victim continued walking down the road past a few houses
1
This statement was pertinent to a separate offense, violation of the sex offender registry,
with which the Defendant was charged.
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and approached a scrap yard. When she was near the scrap yard, she turned and saw the
Defendant running toward her, saying that his mother would give her a ride. The victim
refused and turned to keep walking.
When the victim turned around, the Defendant put one hand over her mouth and
held a knife to her throat with the other hand, saying, “[Y]ou’re going to listen to me
now, b*tch.” The Defendant then swiftly dragged her down the driveway toward the
dark scrap yard. She testified that she was not good at estimating distances but thought
she was dragged around twenty or twenty-five feet, about halfway to a brick wall on the
premises. The victim testified she was terrified and thought her “life was over.” As the
Defendant dragged the victim, both fell onto the cement driveway. As a result of the fall,
the Defendant’s hand no longer obscured the victim’s mouth, and she began to scream.
She testified that her screaming appeared to “spook” the Defendant, who got up and
yelled, “[S]omebody help her,” before fleeing.
On cross-examination, the victim testified that she first saw the knife when it was
in the Defendant’s hand at her throat. She described it as “a grandpa or pocket knife” and
stated, “I don’t think he could have really cut me with it. I don’t know, but it wasn’t like
a scary knife.” The victim clarified that she feared for her life and that the Defendant
“had me against my will.” She did not know what became of the knife because she was
intent on escaping after she fell.
The victim ran up the driveway and stood in the road screaming, afraid the
Defendant would return. After several cars passed by, the driver of a truck told her that a
police officer was coming up the road, and the patrol car stopped. The victim described
herself as “freaking out,” “in shock,” and “scared.”
Officer Derrick Way was driving on a routine patrol when he noticed cars in front
of him braking for no apparent reason. He saw the victim emerge from the darkness,
yelling for help, with fresh blood on her legs, arms, and hands. He described the victim
as “hysterical,” “frantic,” “terrified,” and “traumatized,” noting that she was crying and
talking rapidly. The victim described the crime, and police began searching for the
suspect. An officer brought one suspect to the scene, but the victim told them he was not
the man who had attacked her.
Detective Kirk Whitefield spoke to the victim at the roadside. The victim, whom
he described as “distraught,” was able to tell police the location of the Defendant’s home,
which was approximately two tenths of a mile up the road. The Defendant was in the
yard when Detective Whitefield arrived, and the Defendant admitted to talking with the
victim at his home but stated that he had been in the shower since she left. Detective
Whitefield observed that the Defendant appeared to be sweating profusely, although he
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claimed to be wet from a shower. The Defendant, who matched the victim’s description
of a man missing his top front teeth, was taken to the scene to allow the victim to identify
him, which she did. The Defendant had an older scratch on one shoulder and fresh
scratches down his arm. The Defendant did not have a knife when he was arrested.
The video of Officer Way’s encounter with the victim was played for the jury. In
the video, the victim described the crimes consistently with her testimony at trial. She
was also able to give a description of the Defendant’s home and of the Defendant. The
victim was crying, distraught, and speaking frantically, and she repeatedly exclaimed,
“Oh, my God,” as she described the attack. The video included the victim’s
identification of the Defendant as the perpetrator and her exoneration of the first man
police brought to the “show up.”
Detective Whitefield acknowledged that on the video, he instructed an officer to
obtain an arrest warrant only for aggravated assault because he did not believe the proof
amounted to kidnapping. He explained that he made the determination less than twenty
minutes after arriving on the scene and that the Defendant was charged with aggravated
kidnapping after a more thorough investigation. Detective Whitefield could not
remember if the victim said that the Defendant pulled her from the road or tried to pull
her from the road. Detective Whitefield testified that the victim left town after the attack
and that when he interviewed her more thoroughly six days later, she described being
moved a distance of approximately thirty feet. He was not able to photograph her injuries
until she returned to town.
The victim was treated at the scene for injuries to her leg and foot. Neither Officer
Way nor Detective Whitefield noticed injuries to the victim’s neck.
The victim acknowledged she was charged with vandalism in September 2014,
that the charges were still pending, and that she had an outstanding warrant on a failure to
appear charge related to the vandalism. She acknowledged it was possible that the
prosecution had paid for her airplane ticket and motel room in order to facilitate her
testimony but asserted that she had received no promises regarding prosecution on her
pending charges. The parties entered a stipulation that the failure to appear charge
against the victim was dismissed immediately after her testimony. The victim of the
vandalism charge testified that she had no objection to the State’s dismissing the
vandalism charge.
Officer Way testified that he searched for the Defendant’s knife that night and the
next day, but that in his opinion, it would have been difficult to find the knife in the scrap
yard. Detective Whitefield also unsuccessfully searched for the knife in the scrap yard.
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Two of the Defendant’s cellmates testified that he had discussed the crime in
prison. Mr. Travis Bush, who had numerous felony convictions and charges, including
aggravated burglary, theft, evading arrest, and drug-related convictions, testified that the
Defendant told his cellmates that he was charged with an assault which had occurred in a
driveway. The Defendant believed he could not be convicted if the weapon was not
recovered, and he told Mr. Bush that he had thrown the knife away and that it hit a trailer.
Mr. Bush testified that the Defendant had described the weapon as being “like a box
cutter razor knife,” but “not really like a Stanley knife, one that opens up like you cut
carpet with.” The Defendant stated that he held the knife against the victim’s neck and
that he cut himself on barbed wire while fleeing. The Defendant also told his cellmates
that he took a shower after the assault and that his mother “got rid” of his clothes. After a
court date, the Defendant expressed relief that the knife had not been found. The
Defendant told his cellmates that the victim had been in a bar prior to the attack and that
he did not believe he could be convicted of kidnapping because the offense took place in
his driveway. Mr. Bush denied that the prosecution had promised him anything in
exchange for his testimony.
Mr. Leonard McHardie III also shared a cell with the Defendant and had prior
convictions for burglary, robbery, and drug offenses, and he was facing a current drug
charge. Mr. McHardie also testified that the Defendant stated that he had picked up the
victim at a bar and assaulted her with a knife. According to Mr. McHardie, the
Defendant stated the victim took his money and ran away. He admitted to assaulting her
with a knife and stated he hid the knife in a junk yard and then ran to his mother’s house,
where his mother hid his bloody clothes. Mr. McHardie testified that the Defendant also
stated that he beat the victim with his fists. The Defendant had scratches on his arm from
running. Mr. McHardie recalled telling Detective Whitefield that the victim came from
the Alcoholics Anonymous house and had borrowed a cigarette from the Defendant. He
acknowledged that Detective Whitefield had stated he would speak with Mr. McHardie’s
parole officer and that he hoped to “work out a deal” on a pending charge.
The defense presented the testimony of the Defendant’s mother, Patricia Prock;
this testimony had been taken by deposition prior to her death from cancer.2 Ms. Prock
testified that at the time of the assault, she lived with the Defendant’s grandmother, the
Defendant, and her other son, who was disabled. She had picked the Defendant up from
work early that afternoon, and he spent the interval assisting her in moving appliances
into her new apartment.
2
The record reflects that “marked portions” of the deposition were read, but the appellate
record contains the entire, unmarked, deposition transcript.
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Ms. Prock testified that she was sitting on the porch during the Defendant’s
encounter with the victim but that she did not get a good look at the victim because she
did not “want to look at trash.” According to Ms. Prock, the Defendant came up to her
and said, “Mama, this girl wants…” but she cut him off and told him, “No.” Ms. Prock
testified that the victim cursed and walked off, and the Defendant explained that she had
wanted a ride. The Defendant then told her the victim had taken his money, but Ms.
Prock told him not to pursue the matter and to go take a shower. On cross-examination,
she testified that she “was the first one that took a shower” while the others packed the
remaining clothing and linens. Her disabled son then began to shower directly after she
did, and the Defendant began his shower in another bathroom approximately three
minutes later. After everyone had showered, the Defendant took some items to the truck,
and the police arrived. She explained to the police that he was wet because of the shower
and not because he was sweating, but they did not believe her. Ms. Prock later testified
that she had taken a shower before the victim came to the home and that the Defendant
got into the shower immediately after the victim left. She also stated that the Defendant
was “all scratched up” from his job building pallets. She denied that he carried a knife.
Ms. Prock denied having washed the Defendant’s clothes and stated that she preserved
them. Ms. Prock asserted that the victim was drunk and smelled of alcohol.
The defense also introduced a report documenting the emergency care the victim
received at the scene. The narrative of the report stated that the patient reported that she
and her “boyfriend … had got into an altercation on a sidewalk, stating that she was
grabbed from behind and the man put a knife to her throat and his other hand over her
mouth.” The State called the medical technician, Mr. Andrew Bell, in rebuttal. Mr. Bell
acknowledged that there were errors in his report, including listing the victim’s last name
as “Thatches.” He agreed that the narrative made it difficult to tell if the assailant was the
victim’s boyfriend or another man and stated he believed he would have used the word
“boyfriend” rather than “man” if the assailant had been the victim’s boyfriend. He
testified that there was no indication that the victim was under the influence of either
drugs or alcohol when he treated her. He acknowledged that his report stated that the
injury was classified as “domestic violence,” which meant she knew her assailant. He
also acknowledged that his report did not state that the victim was dragged off the road.
Officer Way was recalled and testified that the victim did not appear to be under the
influence of drugs or alcohol.
The jury received instructions pursuant to State v. White, 362 S.W.3d 559, 580-81
(Tenn. 2012), requiring the jurors to find beyond a reasonable doubt that the removal or
confinement associated with the aggravated kidnapping charge or any of its lesser
included offenses exceeded that necessary to commit aggravated assault.
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The jury convicted the Defendant of aggravated assault and of the lesser included
offense of attempted aggravated kidnapping. The prosecution presented evidence at
sentencing that the Defendant was a serial rapist who had committed two prior
aggravated rapes and one prior aggravated sexual battery involving three separate
victims. The Defendant had used a knife at the victim’s throat in each of these offenses,
and he had only been out of prison approximately six months when he assaulted the
victim in this case. The trial court sentenced the Defendant to the maximum of ten years
for each offense, to be served consecutively.
ANALYSIS
The Defendant appeals, asserting that the trial court erred in allowing the patrol
vehicle video into evidence, that the trial court erred in permitting multiple viewings of
the video, and that the trial court erred in not merging the convictions pursuant to the
principles of double jeopardy and due process. We conclude that the video was properly
admitted and that any claim regarding permitting the jury to view it repeatedly is waived.
We also conclude that there is no bar to two separate convictions for the crimes.
Accordingly, we affirm the trial court’s judgments.
I. Hearsay Statements in Patrol Car Video
The Defendant argues that the patrol car video should have been excluded because
it contained inadmissible hearsay. A trial court’s factual findings and credibility
determinations regarding a ruling on hearsay are binding on the appellate court unless the
evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.
2015). This court determines de novo whether a statement qualifies as hearsay or is
admissible under one of the hearsay exceptions. Id.Hearsay is a “statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Hearsay is, in general, not admissible. Tenn. R. Evid. 802.
Under Tennessee Rule of Evidence 803(2), however, “[a] statement relating to a
startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition” is not excluded by the hearsay rule. The exception has
three requirements: (1) there must be a startling event or condition that causes the stress
of excitement referenced in the Rule; (2) the statement must relate to the startling event
or condition; (3) and the statement must be made while the declarant was under the stress
of excitement. State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010); State v. Land, 34
S.W.3d 516, 528-29 (Tenn. Crim. App. 2000). The rationale behind the exception is that:
(1) because the statement is made spontaneously in response to a startling event, there is
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little opportunity for reflection or likelihood of fabrication, and (2) that the statement will
accurately reflect events while they are fresh in the declarant’s mind. State v. Gordon,
952 S.W.2d 817, 819-20 (Tenn. 1997). The statement ought to be so spontaneous that it
“preclude[s] the idea of deliberation and fabrication.” State v. Smith, 857 S.W.2d 1, 9
(Tenn. 1993).
“The startling event need not be the act that gave rise to the legal controversy.”
Kendrick, 454 S.W.3d at 478. The startling event should, however, be such that it
“‘suspend[s] the normal, reflective thought processes of the declarant.’” Franklin, 308
S.W.3d at 823 (quoting State v. Stout, 46 S.W.3d 689, 699 (Tenn. 2001)). “[S]tatements
made in response to questions may still be admissible if the declarant is under the
excitement or stress of the event.” Gordon, 952 S.W.2d at 820-21.
The Defendant concedes that the video satisfies the first two prongs of the test:
that the statement was in response to a startling event and that the statement related to
that event. The Defendant disputes that the victim was under stress or excitement from
the event, contending that her statements lacked “spontaneity.” The Tennessee Supreme
Court has explained that:
The “ultimate test” under this prong is whether the statement suggests
“spontaneity” and whether the statement has a “logical relation” to the
shocking event. When “an act or declaration springs out of the transaction
while the parties are still laboring under the excitement and strain of the
circumstances and at a time so near it as to preclude the idea of deliberation
and fabrication,” this prong may be satisfied.
Kendrick, 454 S.W.3d at 478 (quoting Gordon, 952 S.W.2d at 820).
In determining if the declarant is under the stress or excitement of the startling
event, the court may consider the interval between the event and the statement, the nature
and seriousness of the events, and the appearance, behavior, outlook, and circumstances
of the declarant. State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993). The declarant’s
circumstances include age and physical or mental condition. Kendrick, 454 S.W.3d at
478. The contents of the statement, which might indicate the degree of the declarant’s
stress, can also be considered. Id. The court may also consider whether the statement is
made in response to an inquiry or whether it is self-serving. Id. at 479. The requirement
that the statement be made under stress or excitement “relates most directly to the
underlying rationale for the exception.” Gordon, 952 S.W.2d at 820.
The Defendant argues that the statements were not excited utterances because they
were made in response to Officer Way’s questions. However “statements made in
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response to questions may still be admissible if the declarant is under the excitement or
stress of the event.” Id. at 820-21. Accordingly, whether the victim’s statements were
prompted by questions from law enforcement is not dispositive of their admissibility.
Instead, we note that the statements were made shortly after the Defendant held a knife to
the victim’s throat and dragged her down a dark driveway toward a scrap yard. The
victim was physically very near the scene of the attack. The events were serious in
nature, and the victim “thought [her] life was over.” The victim was injured and
described herself as “freaking out,” “in shock,” and “scared” because she was still
worried that the Defendant might come back and continue his attack on her. She
expressed concern at one point in the video that Officer Way might leave her. Officer
Way described the victim as “hysterical,” “frantic,” “terrified,” and “traumatized,” and
Detective Whitefield described her as “distraught.” The victim was clearly under the
stress of the recent attack, and the victim’s description of the crime and perpetrator fall
under the excited utterance exception to the rule against hearsay.
The Defendant also objects that even if some of the statements were admissible,
the victim eventually calmed down and was not under stress or excitement during the
later part of the video. First, we note that the video demonstrates that the victim’s voice
was still breaking up toward the end of the recording, indicating she was still under stress
from the prior startling events. Moreover, we agree with the State that the Defendant’s
failure to supply the transcript from the pretrial suppression hearing hampers our review
of this issue. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993)
(concluding that the trial court’s judgments are presumed correct in the absence of a
transcript); Tenn. R. App. P. 24(b) (“[T]he appellant shall have prepared a transcript of
such part of the evidence or proceedings as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of
appeal.”). While the Defendant appears to argue on appeal that only a portion of the
statements on the video might qualify as excited utterances, there is no showing that the
Defendant sought to redact the video to restrict it to the victim’s initial statements. See
Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”). On the
contrary, it appears that the Defendant made a strategic decision to include the later
portion of the video, which included Detective Whitefield’s statement that he did not
believe he had sufficient evidence to charge the Defendant with kidnapping.3 We
conclude that the Defendant is not entitled to relief.
3
We note that the later parts of the video also contain the victim’s identification of the
Defendant and that Tennessee Rule of Evidence 803(1.1) makes admissible “[a] statement of
identification of a person made after perceiving the person” so long as the declarant is subject to
cross-examination at trial.
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The Defendant also argues that the victim’s statements should have been excluded
because they were “testimonial” in nature. However, the rules prohibiting hearsay do not
require an inquiry into the testimonial nature of a statement; instead, the Confrontation
Clause may require the exclusion of a statement if it is testimonial and if, in addition, the
declarant has not been subject to cross-examination. See U.S. Const. amend. VI; Tenn.
Const. art. I, § 9; State v. Dotson, 450 S.W.3d 1, 63 (Tenn. 2014). Because the victim
testified and was cross-examined at trial, the testimonial nature of the statement has no
bearing on the admissibility of the video.
II. Multiple Viewings of Video
The Defendant argues that the trial court erred in allowing the jury to view the
video from the patrol car multiple times during its deliberation. The Defendant asserts
that this was improper under Tennessee Rule of Criminal Procedure 30.1. The State
responds that the issue is waived, that Rule 30.1 does not prohibit the jury from viewing
an exhibit multiple times, and that the record does not demonstrate that the jury viewed
the video during deliberations. We observe that, although the trial transcript does not
reflect multiple viewings, defense counsel at the hearing on the motion for a new trial
described leaving the courtroom to allow the jury to view the video during deliberations,
and the prosecutor agreed with defense counsel’s description of the events, arguing that
the multiple viewings “probably helped the defense” because the jury heard Detective
Whitefield’s opinion that the Defendant could not be charged with kidnapping.
We nevertheless agree with the State that the issue is waived. The Defendant
challenged the admissibility of the evidence based on hearsay but never objected to the
video’s being made an exhibit or being made available to the jury during deliberations.
The video contained some material favorable to the Defendant. He cannot now premise
relief upon any error in allowing the jury to view the video during deliberations. See
Tenn. R. App. P. 36(a). We note parenthetically that under the plain language of Rule
30.1 and under relevant caselaw, the jury was entitled to view the exhibit. See Tenn. R.
Crim. P. 30.1; State v. Long, 45 S.W.3d 611, 625 (Tenn. Crim. App. 2000).
III. Double Jeopardy
The Defendant asserts that he is entitled to appellate relief because the trial court
erred in not merging the aggravated assault conviction into the attempted aggravated
kidnapping conviction. The Defendant’s argument is that aggravated assault is a lesser
included offense of aggravated kidnapping. “Whether multiple convictions violate
double jeopardy is a mixed question of law and fact, which we review de novo without
any presumption of correctness.” State v. Watkins, 362 S.W.3d 530, 539 (Tenn. 2012).
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The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and article I, section 10 of the Tennessee Constitution prohibit putting the
accused “in jeopardy of life or limb” twice “for the same offence.” In order to ascertain
if dual convictions violate double jeopardy, the appellate court must first look to the
intent of the Legislature. Watkins, 362 S.W.3d at 556. “If the General Assembly has
expressed an intent to permit multiple punishment, no further analysis will be necessary,
and multiple convictions should be upheld against a double jeopardy challenge.” Id.
Only when the legislative intent is unclear does the court analyze the offenses to
determine if the offenses contain the same elements. State v. Smith, 436 S.W.3d 751, 767
(Tenn. 2014). Because the Defendant claims that he was improperly convicted of
violating multiple statutes through the “same offense,” his claim falls into the category of
multiple description claims. Watkins, 362 S.W.3d at 544. Generally, “a single wrongful
act may not furnish the basis for more than one criminal prosecution.” State v. Phillips,
924 S.W.2d 662, 665 (Tenn. 1996) (footnotes omitted). However, “[i]f each offense
charged requires proof of a fact not required in proving the other, the offenses are not
multiplicitous.” Id. (footnotes omitted).
In Tennessee, multiple description double jeopardy claims are analyzed under the
test described in Blockburger v. United States, 284 U.S. 299, 304 (1932). Watkins, 362
S.W.3d at 556. The Blockburger test involves a threshold inquiry regarding whether the
violations arise from the same act or transaction. Id. This is determined by examining
the charging instrument, statutory provisions, and whether discrete acts or multiple
victims form the factual predicate of the offenses. Id. If this inquiry is answered in the
negative, then double jeopardy is not implicated. Id. If the same act or transaction gives
rise to multiple convictions, however, the court must determine whether the crimes
constitute the same offense. Id. at 557. When the statutory definition of each offense
includes an element not included in the other offense, then the offenses are distinct. Id.Indeed, “[i]f each offense includes an element that the other offense does not, ‘the
Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to
establish the crimes.’” Id. at 544 (quoting Iannelli v. United States, 420 U.S. 770, 785 n.
17 (1975)). This is because the Double Jeopardy Clause of the United States Constitution
prohibits multiple punishments for the same offense, not multiple punishments for the
same conduct. Id. On the other hand, if the elements are the same or one offense is a
lesser included offense of the other, then the reviewing court presumes that multiple
convictions were not intended by the Legislature. Id. at 557.
The offenses in this case arose from the same act or transaction: the Defendant’s
act of putting a knife to the victim’s throat and then dragging her twenty to thirty feet
down a dark driveway toward a scrap yard. Accordingly, the claim passes the threshold
inquiry.
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Next, we consider the statutory elements of the offenses. As charged here,
aggravated kidnapping is the knowing removal or confinement of another unlawfully, so
as to interfere substantially with the other’s liberty, committed while the defendant is in
possession of a deadly weapon or threatens the use of a deadly weapon. T.C.A. §§ 39-
13-302(a); 39-13-304(a)(5). Criminal attempt requires a showing that the defendant acts
with the culpability required for the offense and
(1) Intentionally engages in action or causes a result that would
constitute an offense, if the circumstances surrounding the conduct were as
the person believes them to be;
(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without further
conduct on the person’s part; or
(3) Acts with intent to complete a course of action or cause a result
that would constitute the offense, under the circumstances surrounding the
conduct as the person believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.
Id. § 39-12-101(a). Conduct constitutes a substantial step only if a defendant’s entire
course of action is corroborative of the intent to commit the crime. Id. § 39-12-101(b).
The Defendant was also charged with aggravated assault by means of a deadly
weapon, which required the State to show that the Defendant intentionally or knowingly
caused the victim to reasonably fear imminent bodily injury and that the assault involved
the use or display of a deadly weapon. Id. §§ 39-13-101(a)(2); 39-13-102(a)(1)(iii).
The Defendant argues that aggravated assault is a lesser included offense of
aggravated kidnapping. Under Tennessee Code Annotated section 40-18-110(f), an
offense is a lesser included offense of a charged offense if “[a]ll of its statutory elements
are included within the statutory elements of the offense charged” or if the offense is
either statutorily defined as a lesser included offense or is facilitation, attempt, or
solicitation to commit the charged offense or its lesser included offenses. An offense is
also a lesser included offense if it fails to meet the test that all its elements are included
within the greater offense only in the respect that it contains a statutory element or
elements establishing (1) a different mental state indicating a lesser kind of culpability;
and/or (2) a less serious harm or risk of harm to the same person, property, or public
interest. State v. Howard, 504 S.W.3d 260, 268, 273 (Tenn. 2016) (holding that
Tennessee Code Annotated section 40-18-110 did not abrogate part (b) of State v. Burns,
6 S.W.3d 453, 466 (Tenn. 1999)).
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An examination of the statutory elements of the offenses of which the Defendant
was convicted leads to the conclusion that each offense requires an element not included
in the other. Attempted aggravated kidnapping requires a specific intent to commit the
crime of aggravated kidnapping, including a removal or confinement of the victim.
T.C.A. § 39-12-101, Sentencing Comm’n Cmt. (“Subsection (a) defines three varieties of
the offense of criminal attempt; all three varieties retain the traditional requirement of
specific intent to commit an offense. Thus, a person must either intentionally engage in
criminal acts or intend to accomplish a criminal result.”); State v. Bobby Stanley George,
No. M2012-01542-CCA-R3-CD, 2013 WL 4647626, at *9 (Tenn. Crim. App. Aug. 26,
2013) (“The nature of an attempt, then, is that it requires a specific intent.” (quoting State
v. Thomas E. Bradshaw, No. 01C01-9609-CR-00406, 1997 WL 578963, at *5 (Tenn.
Crim. App. Sept. 19, 1997))). Aggravated assault, on the other hand, contains an element
of fear and requires the State to show that the defendant caused the victim to reasonably
fear imminent bodily injury. Accordingly, each crime contains an element that the other
does not. Neither is aggravated assault a lesser included offense of attempted aggravated
kidnapping under either Tennessee Code Annotated section 40-18-110(f)(2)-(4) or under
part (b) of Burns. The offenses are not the same for the purposes of double jeopardy.
We note that despite the Defendant’s claim that aggravated assault is a lesser
included offense of the completed crime of aggravated kidnapping, this court has
previously upheld dual convictions for aggravated assault and aggravated kidnapping.
Christopher Hubbard v. State, No. W2014-01716-CCA-R3-PC, 2015 WL 5683092, at *9
(Tenn. Crim. App. Sept. 25, 2015) (concluding on post-conviction review that especially
aggravated kidnapping and aggravated assault, both charged by means of serious bodily
injury, were “two separate crimes”); State v. Chester Dale Gibson, No. M2005-01422-
CCA-R3-CD, 2006 WL 770460, at *13 (Tenn. Crim. App. Mar. 24, 2006) (concluding,
pre-Watkins, that especially aggravated kidnapping and aggravated assault, both premised
on serious bodily injury, were separate offenses under a double jeopardy analysis because
the statutes had different elements and because the defendant committed discrete acts);
State v. Evangeline Combs and Joseph D. Combs, No. E2000-02800-CCA-R3-CD, 2002
WL 31118329, at *62-63 (Tenn. Crim. App. Sept. 25, 2002) (concluding that it was not
error to refuse to include aggravated assault as a lesser included offense of especially
aggravated kidnapping, both through serious bodily injury, because one required specific
intent to cause injury and one was a continuing offense).
The cases cited by the Defendant for the proposition that merger is required
involve the merger of aggravated robbery and aggravated assault, which both contain an
element of fear. See, e.g., State v. Timothy Davale Martin, No. M2013-00569-CCA-R3-
CD, 2014 WL 1102010, at *15 (Tenn. Crim. App. Mar. 20, 2014) (concluding that
offenses were the same when both were “based on the Defendant’s use of a deadly
weapon, against the same victim, and causing that victim to experience fear of personal
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harm”); see also State v. Felton Neville Jackson, No. M2012-00828-CCA-R3-CD, 2013
WL 5675466, at *12 (Tenn. Crim. App. Oct. 17, 2013) (requiring merger of aggravated
assault and especially aggravated robbery both charging use of a deadly weapon). These
cases are accordingly inapposite. The convictions at issue do not violate the principles of
double jeopardy.
IV. Due Process
The Defendant also argues that he is entitled to reversal under State v. White, 362
S.W.3d 559 (Tenn. 2012). While he acknowledges that the jury was properly instructed,
the Defendant argues that because he was acquitted of aggravated kidnapping, the jury
found no actual removal or confinement, and therefore, no rational trier of fact could
have found that the removal or confinement was beyond that necessary to accomplish the
aggravated assault.
Prior to the Tennessee Supreme Court’s decision in White, appellate courts
conducted a due process review of convictions for kidnapping accompanied by another
felony to determine whether the detention involved was merely incidental to the other
felony. Anthony, 817 S.W.2d at 300. The rationale for conducting a due process review
was that certain felonies frequently involved some confinement or detention, and the
Tennessee Supreme Court feared that kidnapping would “overrun” these crimes.
Anthony, 817 S.W.2d at 303 (quoting People v. Levy, 204 N.E.2d 842, 844 (1965)); see
State v. Alston, 465 S.W.3d 555, 564 (Tenn. 2015) (concluding that burglary is not a
crime in which detention is inherent and that the due process analysis of White does not
apply). The Anthony analysis was replaced in State v. Dixon with a two part test
analyzing whether the movement or confinement was “beyond that necessary to
consummate” the accompanying felony and whether any additional movement prevented
the victim from summoning help, lessened the risk of detection, or created significant
danger or increased the victim’s risk of harm. State v. Dixon, 957 S.W.2d 532, 535
(Tenn. 1997), overruled by White, 362 S.W.3d at 578.
In White, the Tennessee Supreme Court overturned the procedure utilized in the
Anthony-Dixon line of cases. White, 362 S.W.3d at 578. The White Court concluded that
the Legislature intended to punish kidnapping only when it had significance beyond any
accompanying crime. Id. at 576-77. Accordingly, the Court dispensed with the due
process analysis under Anthony and Dixon and instead concluded that due process would
best be guarded by instructing the jury that it must find that the removal or confinement
element of the kidnapping was in excess of that necessary to accomplish the
accompanying felony. Id.; see Antonio Richardson v. Ronald Colson, No. 3:12-CV-409,
2012 WL 2721572, at *7, 8 n.4 (M.D. Tenn. July 9, 2012) (describing as “somewhat
confusing” White’s abandonment of a separate due process analysis but imposition of
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jury instructions to ensure due process, but noting that “the procedure embraced in White
offers better due-process protections”); see also Alston, 465 S.W.3d at 568 (Bivens and
Kirby, JJ., concurring) (concluding that the current analysis, which relies on due process,
would more properly fall under the ambit of double jeopardy protections, particularly
because modifications to the jury instructions have essentially added an element to the
offense); State v. Teats, 468 S.W.3d 495, 509-10 (Tenn. 2015) (Kirby, J., concurring)
(noting that White made only procedural modifications but that due process protections
still apply to prevent kidnapping convictions when the confinement was not greater than
that necessary to commit an accompanying felony).
First, we note that the jury’s acquittal on the offense of aggravated kidnapping was
not necessarily a finding that there was no removal or confinement. To convict of
aggravated kidnapping, the jury would have had to find a knowing removal or
confinement of another unlawfully, so as to interfere substantially with the other’s liberty
and the possession or threatened use of a deadly weapon. T.C.A. §§ 39-13-302(a); 39-
13-304(a)(5). The jury could have found a failure of proof on any of these elements, not
only the element of removal or confinement.
In any event, the jury was instructed that any confinement or removal in the
kidnapping offenses must be beyond that necessary to accomplish the aggravated assault.
Pursuant to White, we review the sufficiency of the evidence supporting this finding.
White, 362 S.W.3d at 578. In reviewing the sufficiency of the evidence, “[t]he relevant
question is whether, after reviewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013); see Tenn. R. App.
P. 13(e). “Questions concerning the credibility of witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “This Court affords the
State the strongest legitimate view of the evidence presented at trial and the reasonable
and legitimate inferences that may be drawn from the evidence.” State v. Wagner, 382
S.W.3d 289, 297 (Tenn. 2012). A guilty verdict replaces the presumption of innocence
with one of guilt, and on appeal, the defendant bears the burden of demonstrating that the
evidence is insufficient to support the conviction. State v. Cole, 155 S.W.3d 885, 897
(Tenn. 2005). Accordingly, we examine whether any rational trier of fact could have
found that the attempted removal or confinement was to a greater degree than that
necessary to accomplish the accompanying felony. See White, 362 S.W.3d at 578.
In order to convict the Defendant of attempted aggravated kidnapping, the State
had to establish the elements of criminal attempt as listed above. Aggravated kidnapping,
as charged here, requires proof that the Defendant knowingly removed or confined the
victim unlawfully, so as to interfere substantially with the victim’s liberty, while in
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possession of a deadly weapon or threatening the use of a deadly weapon. Id. §§ 39-13-
302(a); 39-13-304(a)(5). A deadly weapon is “[a]nything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Id. § 39-11-106(5)(B).
A common item, such as a knife, is a deadly weapon “if the defendant in the particular
case used or intended to use the item in a manner that is capable of causing death or
serious bodily injury.” State v. McGouey, 229 S.W.3d 668, 673 (Tenn. 2007); see also
State v. Eaves, 959 S.W.2d 601, 604 (Tenn. Crim. App. 1997) (holding that a plastic pen
used to stab deputy constituted a deadly weapon).
In order to convict the Defendant of aggravated assault as charged here, the State
had to show that the Defendant intentionally or knowingly caused the victim to
reasonably fear imminent bodily injury and that the assault involved the use or display of
a deadly weapon. T.C.A. §§ 39-13-101(a)(2); 39-13-102(a)(1)(iii).
The jury was also instructed that the removal or confinement must be to a greater
degree than that necessary to commit the aggravated assault, and it was instructed to
consider the factors listed in White, including the nature and duration of the removal,
whether it occurred during the commission of a separate offense and whether the separate
offense inherently included a period of confinement, whether the confinement prevented
the victim from summoning help, whether it reduced the Defendant’s risk of detection,
and whether it created a significant danger or increased the victim’s risk of harm. See
White, 362 S.W.3d at 580.
In this case, the victim testified that after she refused the Defendant’s offer of a
ride, he grabbed her from behind. The Defendant put one hand over her mouth, and with
the other hand, he held a knife to her throat. The Defendant’s cellmate described the
knife as a type of box cutter or razor knife which could be flipped open and was used to
cut carpet. The victim was terrified and “thought [her] life was over.” This testimony
supports the conclusion that the Defendant intentionally or knowingly caused the victim
to reasonably fear imminent bodily injury and that the assault involved the use or display
of a deadly weapon. T.C.A. §§ 39-13-101(a)(2); 39-13-102(a)(1)(iii). After placing the
knife at the victim’s throat, the Defendant told her, “[Y]ou’re going to listen to me now,
b*tch,” and he began to drag her down the driveway into the darkness. The Defendant
dragged the victim approximately twenty to thirty feet, keeping his hand over her mouth
as she tried to scream. After he had dragged her twenty feet, they both fell, and the
victim was able to scream, causing the Defendant to flee. This is sufficient to establish
that the Defendant acted with the intent to complete a course of conduct that would
constitute the knowing removal or confinement of the victim unlawfully, so as to
interfere substantially her liberty, while in possession of a deadly weapon. Dragging the
victim twenty feet with a knife at her throat was a substantial step towards committing
the offense. The attempted removal would have prevented the victim from summoning
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help, lessened the Defendant’s risk of detection, and increased the risk of harm to the
victim.
We conclude that a rational trier of fact could have found that the aggravated
assault was accomplished when the Defendant put a knife to the victim’s throat at the
roadside and that the attempted aggravated kidnapping involved a separate attempted
removal or confinement when the Defendant dragged the victim down the driveway. See
State v. Christopher Lee Williams, No. M2016-00568-CCA-R3-CD, 2017 WL 1063480,
at *5 (Tenn. Crim. App. Mar. 21, 2017) (concluding that jury could have found that
confinement for aggravated kidnapping was beyond that necessary to accomplish
domestic assault); State v. Alvin Waller, Jr., No. W2012-02591-CCA-R3-CD, 2014 WL
1168610, at *6 (Tenn. Crim. App. Mar. 21, 2014) (concluding that aggravated
kidnapping was not incidental to aggravated assault when defendant shot the victim as
she fled because there was “no evidence that the detention of the victim was effected in
order to accomplish the aggravated assault”); State v. Joseph Tipler, No. 02C01-9611-
CR-00384, 1998 WL 32683, at *2-3 (Tenn. Crim. App. Jan. 1998) (defendant’s act of
grabbing the victim by the arm and preventing her escape was not essentially incidental
to subsequent aggravated assault committed by threatening victim with a knife).
Accordingly, we conclude there was no due process violation.
CONCLUSION
Because we conclude that there was no error in the admission of the video and that
the Defendant’s dual convictions are constitutionally permissible, we affirm the
judgments of the trial court.
We note that the judgment form for the attempted aggravated kidnapping
conviction contains errors. The original judgment form showed that the Defendant was
charged with and convicted of aggravated kidnapping, a Class B felony. A corrected
judgment was entered, but this form suggested that the Defendant had been charged with
aggravated kidnapping and that the offense had been amended to attempted aggravated
kidnapping, of which the Defendant was convicted. In addition to incorrectly showing
that the offense was amended, the judgment form also incorrectly describes attempted
aggravated kidnapping as a Class B felony. We remand for correction of this form.
________________________________
JOHN EVERETT WILLIAMS, JUDGE
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