State of Tennessee v. Robert Fusco, 2012 Tenn. Crim. App. LEXIS 994

Fusco and co-defendant Swim planned to rob the Golden Eagle Jewelry store in Clarksville and conducted reconnaissance trips.
They abducted Mrs. Gilreath at her home and forced Mr. Gilreath to drive them to the jewelry store after hours.
Fusco fired a gun at Mrs. Gilreath, causing life-threatening injuries; Mrs. Gilreath survived.
Jury convicted Fusco of two counts of especially aggravated kidnapping (merged), conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary; he was sentenced as a Range II, multiple offender to an effective 65 years.
On remand from the Tennessee Supreme Court, the court addressed White issues and remanded for merger of the conspiracy convictions; otherwise affirmed.
Fusco challenges trial errors and sentencing, including jury instruction on attempted kidnapping, prosecutorial conduct, sufficiency of evidence, double jeopardy/White issues, and the handling of prior out-of-state convictions for range enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to instruct attempted kidnapping	Fusco argues plain error under Burns.	Fusco contends the trial court should have given attempted especially aggravated kidnapping instruction.	Waived, but no plain-error relief committed.
Prosecutorial misconduct in closing	State allegedly misstated evidence and appealed to emotions.	Fusco asserts plain-error misconduct affected the verdict.	Plain error relief not warranted.
Sufficiency of the evidence	Evidence supported especially aggravated kidnapping and conspiracies, with Swim’s corroboration sufficient.	Evidence insufficient, particularly reliance on co-defendant Swim.	Evidence sufficient; corroboration adequate; convictions sustained.
White analysis and due process concerns	Dual kidnapping and attempted robbery convictions may violate due process if confinement was incidental.	The confinement violated due process under White and must be retried.	Harmless beyond a reasonable doubt; convictions affirmed; new White instruction not required for reversal.
Merger of conspiracy convictions and out-of-state range use	Conspiracy convictions should merge under 39-12-103; Florida convictions used to enhance range.	Conspiracy convictions should merge; Florida transfers require strict similarity for range.	Conspiracy convictions must merge; Florida convictions properly consider for Range II; issues waived or not reversible.

State v. Burns, 6 S.W.3d 453 (Tenn. 1999) (lesser-included offense test and plain-error framework)
State v. Smith, 24 S.W.3d 274 (Tenn. 2000) (five-factor plain-error standard for trial-errors)
State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994) (plain-error factors for appellate review)
State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011) (treats direct and circumstantial evidence equivalently)
State v. Allen, 69 S.W.3d 181 (Tenn. 2002) (Burns test for lesser-included offenses)
State v. White, 362 S.W.3d 559 (Tenn. 2012) (modifies kidnapping framework; substantial-interference instruction)
Baldasar v. Illinois, 446 U.S. 222 (U.S. 1980) (uncounseled prior convictions and range considerations)
Burgett v. Texas, 389 U.S. 109 (U.S. 1967) (face of the prior conviction; counsel requirement for use in punishment)
Nichols v. United States, 511 U.S. 738 (U.S. 1994) (sentencing context vs guilt determinations for prior convictions)
State v. Dixon, 957 S.W.2d 532 (Tenn. 1997) (pre-White framework on kidnapping/due process)
State v. O’Brien, 666 S.W.2d 484 (Tenn. Crim. App. 1984) (uncounseled prior DUI convictions for enhancement)