Lead Opinion
OPINION
delivered the opinion of the Court,
We granted review in this case to determine whether a trial judge is required to give a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn.2012), when a defendant is tried on charges of kidnapping and robbery of different victims. The defendant and an accomplice forced their way into the back door of a restaurant, threatened the employees at gunpoint, and ordered them into a back storage area. While the accomplice guarded these employees, the defendant forced the restaurant manager to take him to the cash drawer, where he took the restaurant’s money. The defendant was indicted for aggravated robbery of the store manager and four counts of especially aggravated kidnapping of the other four employees. A jury convicted the defendant of all charges. On appeal, the defendant asserted that the trial judge’s failure to give the White jury instruction was reversible error. The Court of Criminal Appeals affirmed the convictions. We hold that a White jury instruction is not required when a defendant is charged with the offenses of kidnapping and robbery of different victims.
I. Facts and Procedural History
Shortly before six o’clock on the morning of May 18, 2009, Jerome Maurice Teats
During a four-day trial from October 31 to November 3, 2011, fourteen witnesses testified for the State. Francisco Carrizo-sa Perez, a cook and food preparer at Shoney’s, testified that on the morning of May 18, 2009, as he opened the restaurant’s back door to take out some trash, two men came to the door. One man, later identified through trial testimony as the Defendant, was wearing a mask and had a pistol. The Defendant, pointing the pistol at Mr. Perez’s head, told Mr. Perez not to look at him and to close his eyes and walk down the hallway leading to the storage area. Mr. Perez followed his orders. Meanwhile, the other intruder, who was not wearing a mask and was later identified as the accomplice, brought the other employees, Dora Delacruz Moreno, Arcelia Ruiz, and Teresa Diane Cline, to the storage area.
Arcelia Ruiz, a food preparer at Sho-ney’s, testified that the morning of May 18, 2009, was the worst day of her life. She was in the kitchen preparing food, when she heard Mr. Perez make a noise as if he were scared. She turned around and saw two men enter the back of the restaurant. One of the men, identified at trial as the Defendant, had his face covered, and both men were carrying guns. She saw the Defendant put a gun to Mr. Perez’s head while his accomplice pointed a gun at her. The accomplice screamed at Ms. Ruiz not to look at him and asked where the office was located. When she told him the manager was in the office, the Defendant led Mr. Perez to the back storage area and then proceeded to the office. The accomplice led Ms. Ruiz to the storage area where Mr. Perez was waiting. Pointing the pistol at Ms. Ruiz and Mr. Perez, the accomplice asked how many people were in the restaurant. As other employees arrived in the kitchen, the accomplice ordered them at gunpoint to the storage area. Continuing to guard the four employees, the accomplice told them “not to move.” Eventually, the manager came back and told the employees that the men were going to leave. Ms. Ruiz then heard a voice tell them all to “bow down,” and the Defendant and his accomplice left.
Dora Delacruz Moreno, a Shoney’s employee, testified that on the morning of May 18, 2009, she was in the front of the restaurant preparing the buffet when the
Jack Liev, a frequent patron of Sho-ney’s, testified that on May 18, 2009, he arrived at the restaurant a couple of minutes before it opened for business. When he attempted to enter, he noticed that the inner doors of the foyer were locked, which he thought was unusual. He was then met by the manager who frantically explained that the restaurant had just been robbed and asked Mr. Liev to call the police. Mr. Liev called 911 from the parking lot. While waiting for the call to be answered, the manager pointed out one of the suspects, who was walking down the street, wearing a black hoodie. As Mr. Liev talked to the 911 operator, he got into his truck and followed the person, attempting to keep him in his sight. When officers arrived, Mr. Liev directed them to the area he last saw the suspect and returned to Shoney’s.
Officer Derek Smith, a patrol officer with the Metropolitan Nashville Police Department (“MNPD”), was the first officer to arrive at the scene. He testified that he received the call around 6:00 A.M. and arrived three or four minutes later. Officer Smith obtained a description of the two suspects from the manager and broadcast the description to other officers in the area. The Shoney’s manager then led Officer Smith around the restaurant, describing what had happened. Officer Smith noticed that the manager had a small laceration on the top of his head and that the drawer from the cash register was lying on the floor in the front of the restaurant, along with the register’s contents and a black garbage bag.
Also responding to the call and testifying at trial were Officers Patrick Ragan and Paul Sorace, Sergeant Vernon Teague, Detectives Diana McCoy and William Stokes, and Tim Matthews, a crime scene investigator. According to these officers, the accomplice was apprehended in a field near the Bellevue Mall, and the Defendant when he emerged from a crawl space beneath a nearby house. While searching for the suspects, police found a white vehicle belonging to the Defendant parked across the street from Shoney’s. Inside the vehicle, police found the Defendant’s wallet and a “large black plastic garbage bag” full of loose bills and coins. Police also recovered a loaded .357 magnum revolver, a black pair of pants, a black sweatshirt, and a black hoodie. Lorita Marsh, an expert in latent fingerprint examination, testified that she matched the accomplice’s and the Defendant’s fingerprints to a number of prints collected from the Defendant’s vehicle.
At the police station, the Defendant gave a statement to Detective Stokes and Detective McCoy.
[H]e started pulling them towards him. And he was, he’s like put all the women, like I guess it’s a, it’s like cooler or — or some area in the back of the store, he secured all of them and pushed them over into the area while I went up front.
After the Defendant got the money, they ran out of the restaurant. The Defendant threw his gun in some bushes before hiding in a crawl space under a house, where the police eventually found him.
At the conclusion of the State’s proof, the Defendant moved to dismiss three of the four especially aggravated kidnapping charges, asserting, among other claims, that these charges, in conjunction with the aggravated robbery charge, violated principles of due process articulated in State v. Anthony, 817 S.W.2d 299 (Tenn.1991), and subsequent case law.
The defense called six witnesses, including several family members and friends of the Defendant.
The jury convicted the Defendant as charged of one count of aggravated robbery and four counts of especially aggra
On appeal, the Defendant argued that the trial court committed reversible error by not giving the jury instruction required by this Court’s decision in White, 362 S.W.3d at 559.
We granted review in this case to determine whether a White jury instruction must be given when a defendant is charged with the kidnapping and robbery of separate victims.
II. Analysis
A.
We first review the development of the law giving rise to the jury instruction required by White, 362 S.W.3d at 578. In 1991, in Anthony, this Court recognized that a period of confinement, technically meeting the definition of kidnapping, often accompanies crimes such as robbery, rape, and assault. 817 S.W.2d at 305. Kidnapping, which is defined in terms of false imprisonment, is the unlawful removal or confinement of another so as to interfere substantially with the other’s liberty.
Later, in State v. Dixon, this Court modified the “essentially incidental” analysis by clarifying that “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, 535 (Tenn.1997). Under Dixon, the inquiry became (1) whether the movement or confinement of the victim was beyond that necessary to consummate the accompanying crime; and (2) whether the additional movement or confinement prevented the victim from summoning help, lessened the defendant’s risk of detection, or created a significant danger or increased the victim’s risk of harm.
In 2012, in White, we determined that the Anthony/Dixon framework had proven unworkable and expressly overruled Anthony and the entire line of cases that included a separate due process analysis on appellate review. White, 362 S.W.3d at 578. We held that the question of whether a kidnapping was “essentially incidental” to an accompanying offense is a
We have also identified certain crimes— such as robbery, rape, and assault — that, when charged along with kidnapping, would warrant this instruction. See State v. Alston, No. E2012-00431-SC-R11-CD, 465 S.W.3d 555, 562 (Tenn.2015) (quoting Anthony, 817 S.W.2d at 303). Recently, in Alston, we determined that a White jury instruction is not required when a defendant is charged with the offenses of kidnapping and aggravated burglary. Alston, 465 S.W.3d at 564 . However, this is our first opportunity to consider whether the White jury instruction is required when a kidnapping charge and an accompanying robbery charge involve different victims.
B.
The State argues that a White jury instruction is unnecessary when the victim of a kidnapping is different than the victim of another underlying offense, asserting that a kidnapping perpetrated against one person can never be “essentially incidental” to an offense perpetrated against a separate person. Conversely, the Defendant contends that a White jury instruction must be given even though the State names different victims for the kidnapping and robbery charges, as the due
This is an area of law that needs some clarity. A number of panels of the Court of Criminal Appeals have reached different conclusions on this issue. Some panels have held that a White jury instruction is not required when the charges of kidnapping and an accompanying offense do not involve the same victim. See, e.g., State v. Holman, No. E2012-01143-CCA-R3-CD, 2014 WL 295610, at *12 (Tenn.Crim.App. Jan. 27, 2014); Williams, 2014 WL 60967, at *11; State v. Mathis, No. M2011-01096-CCA-R3-CD, 2013 WL 4774130, at *9 (Tenn.Crim.App. Sept. 5, 2013); see also State v. Elliott, No. M2001-01990-CCA-R3-CD, 2002 WL 31528538, at *4 (Tenn. Crim.App. Nov. 15, 2002) (“[W]hen the robbery victim and the kidnapping victim are two different persons, the issue is better characterized as a question of whether sufficient evidence exists to sustain a conviction for aggravated kidnapping.”). Other panels have held that a White jury instruction is required when kidnapping and certain accompanying charges involve different victims. See, e.g., State v. Pryor, No. E2012-02638-CCA-R3-CD, 2014 WL 1516525, at *9-10 (Tenn.Crim.App. Apr. 17, 2014); State v. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *15 (Tenn.Crim.App. Aug. 29, 2013) (“Our [Sjupreme [C]ourt never said in the Anthony/Dixon/White line of cases that the fact that the victim of the kidnapping was different than the named victim of the accompanying felony eliminated the need for due process analysis.”); see also Holman, 2014 WL 295610, at *13 (Ogle, J., concurring in part and dissenting in part); Teats, 2014 WL 98650, at *30-32 (Tipton, P.J., dissenting); Williams, 2014 WL 60967, at *12-16 (Witt,- J., concurring and dissenting).
We hold that a White jury instruction is not required when a defendant is charged with the kidnapping and robbery of different victims. The jury instruction we articulated in White was intended to address the due process concerns that arise when a defendant is charged with kidnapping a victim and other crimes, such as robbery, rape, or assault, that involve some inherent confinement of that victim. Cf. State v. Salamon, 287 Conn. 509, 949 A.2d 1092, 1117 (2008) (“Our legislature ... intended to exclude from the scope of ... kidnapping ... those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim.” (emphasis added)). . Where a defendant is charged with, kidnapping and an accompanying offense involving some confinement of the same victim, there are appropriate due process concerns that the defendant could be convicted of two crimes — e.g. robbery and kidnapping— when he has only committed one crime— robbery. But-where, as in this case, the State charged the Defendant with robbing the restaurant manager and kidnapping the four other employees, the Defendant does not stand the risk of being convicted of kidnapping a victim he confined only long enough to rob. Simply put, the due process concerns articulated in White are not present, as the kidnapping of one or more victims can never be “essentially incidental” to an offense perpetrated against a different victim or victims. See White, 362 S.W.3d at 580.
Our shift in White from a question of law to a question of fact on the issue of whether a kidnapping is incidental to another offense was significant. The Anthony rule had proven unworkable, and it was our intent to simplify the process, not to further complicate it. See, e.g., Alston, 465 S.W.3d at 565 (declining to extend the White jury instruction requirement to cases involving especially aggravated kidnapping and aggravated burglary). In White, though we acknowledged and, to an extent, retained the due process protections that should be afforded to defendants who are charged with kidnapping and certain accompanying offenses, we overruled Anthony in all other respects. White, 362 S.W.3d at 578. The determination of whether a White jury instruction is required involves different considerations than were involved in the Anthony/Dixon framework, and thus, the White jury instruction requirement is more limited in scope than the former Anthony rule.
While the majority of jurisdictions do not allow separate convictions for kidnapping and an accompanying felony where the kidnapping was merely incidental to that felony,
As we recently noted in Alston, the White jury instruction is not required when a defendant is charged with kidnapping and an accompanying felony that does not inherently involve the confinement of a victim. Alston, 465 S.W.3d at 566 (holding that a White jury instruction is not warranted where aggravated burglary is the accompanying offense because aggravated burglary is not the type of offense that inherently involves the confinement of a victim). Similarly, when a defendant robs one victim, there is no inherent necessity to confine a separate victim. As such, the due process concerns that are implicated when a defendant is charged with kidnapping and robbing the same victim are not implicated when a defendant is charged with kidnapping one victim while robbing another.
Conclusion
We hold that a White jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims. Accordingly, the trial court did not err in declining to give a jury instruction based on our decision in White, 362 S.W.3d at 559. The Defendant’s convictions are affirmed. It appearing from the record that the Defendant is indigent, the costs of this appeal are assessed to the State of Tennessee.
. The accomplice was also indicted. His case was severed before trial, and he later pleaded guilty to all charges. See Simpkins v. State, No. M2012-0155 8-CCA-R3-PC, 2013 WL 775957, at *1 (Tenn.Crim.App. Feb. 28, 2013).
. Three of the Shoney’s employees testified through an interpreter. Ms. Cline passed away before trial, and the Shoney's manager was unavailable. The jury heard a 911 call, wherein the caller, identified as ''Teresa,” reported that the restaurant had just been robbed by men with guns. The caller further stated that they had been put into the stockroom and told to “get in the corner.”
. The trial court denied the Defendant’s pretrial motion to suppress the statements he
. The Defendant also asserted that there was insufficient proof that he was criminally responsible for the conduct of the accomplice and that separate convictions for aggravated robbery and especially aggravated kidnapping would violate protections against double jeopardy.
. Among these witnesses were James Teats, Sr., the Defendant’s father; Juanita Carney, the Defendant's sister; Malia Bodruzzaman, the Defendant’s fiancée; and James Teats, Jr. and Jeffrey Alan Teats, the Defendant's brothers.
.Dr. Smith testified that the Defendant was suffering from Graves’ disease, or thyroid tox-icosis, at the time of the robbery, and opined that this may have affected his ability to understand the situation. In rebuttal, the State called Staci Turner, an adult psychiatric nurse practitioner, and Dr. Kimberly Brown, a forensic psychologist. Ms. Turner performed a psychiatric intake of the Defendant on June 15, 2009, and testified that he did not appear to be experiencing any hallucinations or showing any signs of psychosis at that time. Dr. Brown opined that the Defendant was not suffering from a mental problem on May 18, 2009, that would have caused him not to know what he was doing or appreciate the wrongfulness of his actions.
. The trial court denied the Defendant's requested special jury instruction, which was similar to the instruction we later articulated in White. The jury rendered its verdict on November 3, 2011, and we issued our decision in White on March 9, 2012. The White jury instruction requirement applies to cases in the appellate pipeline on the date White was issued. State v. Cecil, 409 S.W.3d 599, 608 (Tenn.2013).
. The issue presented in this case is substantially the same as the issue presented in another case before this Court, State v. Ricco R. Williams, No. W2013-02365-CCA-RM-CD, 2014 WL 60967 (Tenn.Crim.App. Jan. 7, 2014). The two cases were docketed together and heard on February 5, 2015. See State v. Williams, 468 S.W.3d 510, No. W2013-01897-SC-R11-CD, 2015 WL 4260447 (Tenn. 2015).
.Kidnapping is proscribed at three levels under our statutory scheme, with each level based upon the definition of false imprisonment. Kidnapping, a Class C felony, is a false imprisonment “[u]nder circumstances exposing the other person to substantial risk of bodily injury.” Tenn.Code Ann. § 39-13-303 (2008). Aggravated kidnapping, a Class B felony, is a false imprisonment committed:
(1) To facilitate the commission of any felony or flight thereafter;
(2) To interfere with the performance of any governmental or political function;
(3) With the intent to inflict serious bodily injury on or to terrorize the victim or another;
(4) Where the victim suffers bodily injury; or
(5) While the defendant is in possession of a deadly weapon or threatens the use of a deadly weapon.
(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 (13) at the time of the removal or confinement;
(3) Committed to hold the victim for ransom or reward, or as a shield or hostage; or
(4)Where the victim suffers serious bodily injury.
Tenn.Code Ann. § 39-13-305(a)-(b)(l) (1990).
. The distance of the victim’s movement and the duration and place of the victim’s confinement were factors to be considered when determining if the movement or confinement was beyond that necessary to consummate the accompanying crime, and the second prong of the analysis was to be addressed only if the threshold inquiry in the first prong was satisfied. Dixon, 957 S.W.2d at 535.
. In White, we set forth the following instruction:
To establish whether the defendant’s removal or confinement of the victim constituted a substantial interference with his or her liberty, the State must prove that the removal or confinement was to a greater degree than that necessary to commit the offense of [insert offense], which is the other offense charged in this case. In making this determination, you may consider all the relevant facts and circumstances of the case, including, but not limited to, the following factors:
• the nature and duration of the victim's removal or confinement by the defendant;
• whether the removal or confinement occurred during the commission of the separate offense;
• whether the interference with the victim’s liberty was inherent in the nature of the separate offense;
• whether the removal or confinement prevented the victim from summoning assistance, although the defendant need not have succeeded in preventing the victim from doing so;
• whether the removal or confinement reduced the defendant’s risk of detection, although the defendant need not have succeeded in this objective; and
• whether the removal or confinement created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.
White, 362 S.W.3d at 580-81 (footnote omitted).
. The Defendant asserts that, in deciding whether the White jury instruction is required, courts should focus on more than just the victims named in the kidnapping versus the accompanying robbery charges. For example, courts could take into account the temporal and spatial relationship of the kidnapping in comparison to the robbery. However, the Defendant has not articulated a clear, workable rule that could be applied in such situations, and we decline to complicate the question in such a way.
. See, e.g., Patzka v. State, 348 So.2d 520, 523-24 (Ala.Crim.App.1977); Alam v. State, 776 P.2d 345, 349 (Alaska Ct.App.1989); Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908, 910 (1988); People v. Robertson, 208 Cal.App.4th 965, 146 Cal.Rptr.3d 66, 78 (2012); Salamon, 949 A.2d at 1117; People v. Bridges, 199 Colo. 520, 612 P.2d 1110, 1117 (1980); Weber v. State, 547 A.2d 948, 959 (Del. 1988); Faison v. State, 426 So.2d 963, 966 (Fla. 1983) ; State v. Correa, 5 Haw.App. 644, 706 P.2d 1321, 1325 (1985); People v. Cole, 172 Ill.2d 85, 216 Ill.Dec. 718, 665 N.E.2d 1275, 1284 (1996); State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981); State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731-32 (1976); Spencer v. Commonwealth, 554 S.W.2d 355, 358 (Ky.1977); State v. Estes, 418 A.2d 1108, 1113 (Me. 1980); State v. Stauffer, 352 Md. 97, 721 A.2d 207, 215-16 (1998); People v. Adams, 389 Mich. 222, 205 N.W.2d 415, 422 (1973); State v. Smith, 669 N.W.2d 19, 32 (Minn.2003); Cuevas v. State, 338 So.2d 1236, 1238 (Miss.1976); State v. Shelton, 78 S.W.3d 200, 204-05 (Mo.Ct.App.2002); Mendoza v. State, 122 Nev. 267, 130 P.3d 176, 181 (2006);
. While Delaware requires a specific jury instruction "in every case when a defendant is charged with kidnapping in conjunction with an underlying crime,” before that instruction can be given, "the trial judge must [first] determine [as a matter of law] if the facts presented in the State’s case warrant the submission of that issue to the jury at all.” Weber, 547 A.2d at 959. This two-step analytical framework resembles our former Anthony/Dixon analysis in addition to thetWhite jury instruction.
. We acknowledge that the penalties for kidnapping are often higher than the penalties for robbery and that the State has wide discretion in choosing which charges to pursue. However, ”[i]t is the task of the [L]egislature, ... not this Court, to define what shall constitute a criminal offense and to assess punishment for a particular crime.” White, 362 S.W.3d at 567 (quoting State v. Famer, 66 S.W.3d 188, 200 (Tenn.2001)) (internal quotation marks omitted).
Dissenting Opinion
dissenting.
A majority of this Court has determined that when a defendant is charged with the
The history of this area of the law is critical to understanding the impact that our 2012 decision in White had upon well-established principles of due process. Based upon concerns that our kidnapping statutes might be construed as unconstitutionally broad, this Court, in State v. Anthony, 817 S.W.2d 299 (Tenn.1991), adopted a due process analysis pursuant to article I, section 8 of the Tennessee Constitution that inquired as to whether “the confinement, movement, or detention” supporting a kidnapping offense was “essentially incidental” to an accompanying crime, “or whether it [was] significant enough ... to warrant independent prosecution and ...[,] therefore, sufficient to support [a kidnapping] conviction.” Id. at 306.
Six years after the Anthony decision, the Court adopted a two-part test that addressed (1) whether the removal or confinement of a kidnapping victim was beyond that necessary to consummate an accompanying offense, and (2) whether the removal or confinement prevented the victim from summoning help, lessened the defendant’s risk of detection, or created a significant danger or increased the victim’s risk of harm. State v. Dixon, 957 S.W.2d 532, 535 (Tenn.1997). In State v. Richardson, 251 S.W.3d 438, 443 (Tenn.2008), the Court explicitly recognized the Dixon two-part test as a replacement for the Anthony “essentially incidental” analysis. Despite changing the analysis, however, the Court continued to “adhere to the due process principles adopted in Anthony.” Id. Indeed, under both Anthony and Dixon, our appellate courts were required to conduct a separate due process analysis for kidnapping convictions accompanied by another offense. See Dixon, 957 S.W.2d at 535-36; Anthony, 817 S.W.2d at 306-07.
In White, we eliminated the need for a separate due process analysis on appellate review, holding that because a fundamental component of due process is that no person can be convicted without sufficient proof of every element of a charged offense, the question of whether the elements of kidnapping have been met is one for the jury in the first instance. 362 S.W.3d at 577. To guide this determination, we articulated a jury instruction intended “to provide clear guidance ... with regard to the statutory language,” which we deemed “necessary in order to assure that juries properly afford constitutional due process protections to those on trial for kidnapping and an accompanying [offense].” Id. at 578. In consequence, the White instruction provides guidance on the “substantial interference” element of the kidnapping statute by instructing the jury to consider the following factors:
• the nature and duration of the victim’s removal or confinement by the defendant;
• whether the removal or confinement occurred during the commission of the separate offense;
• whether the interference with the victim’s liberty was inherent in the nature of the separate offense;
• whether the removal or confinement prevented the victim from summoning assistance, although the defendant*507 need not have succeeded in preventing the victim from doing so;
• whether the removal' or confinement reduced the defendant’s risk of detection, although the defendant need not have succeeded in this objective; and
• whether the removal or confinement created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.
Id. at 580-81.
Our decision to put the due process analysis into the hands of the jury, with appellate review of the sufficiency of the evidence serving as “the ultimate component of this constitutional safeguard,” id, at 578, was based, in part, on our understanding that “ ‘[wjhether the movement- or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case,”’ id. at 577 (alteration in original) (quoting State v. Salamon, 287 Conn. 509, 949 A.2d 1092, 1120 (Conn.2008)). Guided by the principles expressed in other jurisdictions, we concluded in White that “whether the evidence, beyond a reasonable doubt, establishes each and every element of kidnap-. ping, as defined by statute, is a question for the jury properly instructed under the law.” Id. This is because “[t]he jury, whose primary obligation is to ensure that a criminal defendant has been afforded due process, must evaluate the proof offered at trial and determine whether the State has met its burden.” Id. Although we overruled the Anthony/Dixon line of cases insofar as they required a separate due process analysis on appellate review, we specifically stated that “[o]ur decision [in White] should not be construed as creating a new standard for kidnapping.' Instead, we are merely providing definition for the element of the offense requiring that the removal or confinement constitute a substantial interference with the victim’s liberty.” Id, at 578.
In this context, the White instruction was'created for the same purpose as the separate due process tests first articulated in Anthony and subsequently refined in Dixon — that is, to effectuate the “legislative intent to punish as kidnapping only those instances in which the removal or confinement [of a victim] has criminal significance above and beyond that necessary to consummate some underlying offense, such as robbery or rape.” Id. at 576-77. As Presiding Judge Joseph M. Tipton stated in his dissent to the Court of Criminal Appeals’ majority opinion in this case, “I do not believe the legislature intended robbers to be prosecuted as kidnappers.” State v. Teats, No. M2012-01232-CCA-R3-CD, 2014 WL 98650, at *31 (Tenn. CrimApp. Jan. 10, 2014) (Tipton, P.J., dissenting). In consequence, our decision in White changed the due process analysis from a separate test to be conducted on appellate review, as in Anthony and Dixon, to one that is entrusted to a properly instructed jury with the appellate courts then reviewing the sufficiency of the evidence; however, “[White] did not alter the rationale in Anthony regarding the circumstances in which the due process protection arises.” Id.; see also White, 362 S.W.3d at 578 (expressly overruling Anthony and its progeny insofar as they required our appellate courts to conduct a separate due process analysis that was no longer necessary in light of the White jury instruction accompanied by appellate review of the sufficiency of the evidence). In this regard, it is notable that many of the factors articulated in the White jury instruction are identical to the Anthony/Dixon considerations that -were part of the due process analysis conducted on appellate review.
Initially, I agree with the observation by the majority of the panel of the Court of Criminal Appeals in this case that the White instruction was “drafted with the assumption that the defendant is being tried for dual offenses against a single victim. Certainly, that was the factual scenario before the [supreme] court in th[at] case.” Teats, 2014 WL 98650, at *19 (emphasis added). I do not, however, agree with the next paragraph of the Court of Criminal Appeals’ majority: “Logic dictates that, if the [Tennessee Supreme Cjourt intended the [White] instruction to be required in cases involving circumstances similar to the instant case, the [Cjourt would have phrased the instruction as ‘the victim of the underlying felony.’ The [Cjourt obviously chose not to do so.” Id. at *20. To the contrary, I believe the more logical conclusion is that White addressed only the facts in that case — a single victim as to both a robbery charge and a kidnapping charge — whereas the case before us involves one victim as to the robbery charge and different victims as to the kidnapping charges.
Under nearly identical circumstances, this Court has previously determined that separate kidnapping convictions are not permissible when the confinement of multiple victims is no longer than that necessary to accomplish the accompanying offense of robbery. In Anthony, the defendants robbed a Shoney’s restaurant while a manager and five employees were present. 817 S.W.2d at 301. The defendants were convicted of the robbery of the restaurant manager, as well as the aggravated kidnappings of the manager and the five other employees — some of whom were detained outside the restaurant and others who were detained inside the restaurant. Id. The manager and at least two of the other employees were forcibly moved and held at gunpoint. Id. Although the defendants were charged with robbery only as to the restaurant manager, this Court held that none of the six kidnapping convictions could stand. Id. at 307-08. Later, in Dixon, this Court confirmed that reversal of the kidnapping convictions in Anthony was proper because “the movement or confinement did not exceed that normally incident to robbery.” 957 S.W.2d at 535. Clearly, both the Anthony Court and the Dixon Court agreed that the removal or confinement of one victim, depending upon the facts of the case, could be “essentially incidental” to the contemporaneous robbery of a different victim.
In this instance, the Defendant and his accomplice robbed a Shoney’s restaurant while a manager and four other employees were present. The Defendant’s accomplice gathered the four employees in one area and stood guard over them while the Defendant located the manager in the restaurant’s office and demanded money. As soon as the Defendant took the money from the manager, he and his accomplice fled the scene. None of the employees were physically harmed during the robbery, which lasted between five and ten minutes. Soon after the Defendant and his accomplice left the restaurant, the manager instructed a restaurant patron to call the police, and the two robbers were quickly apprehended.
In my view, this evidence could be interpreted in at least two ways. On one hand, a rational juror might conclude that the Defendant intended only to steal money from the restaurant, and that any removal or confinement of the four employees was in furtherance of that goal, making it essentially incidental to the robbery of the manager. On the other hand, the evidence could support a finding that the removal or confinement of the four employees went beyond that necessary to accomplish the robbery, making it sufficient to sustain separate convictions for kidnapping. Because the proof could be interpreted in different ways, I would afford the Defendant his entitlement to constitutional due process, reverse each of his convictions for especially aggravated kidnapping, and remand for a properly instructed jury to determine whether there was a removal or confinement of the four employees that was not essentially incidental to the robbery of the restaurant manager. See State v. Cecil, 409 S.W.3d 599, 612-13 (Tenn. 2013) (remanding for a new trial because the question of whether the removal or confinement of a victim is essentially incidental to an accompanying offense is one for the jury to decide as a matter of fact). While the verdict of the jury could very well be the same upon retrial, due process of the law requires that the verdict be based upon complete and accurate instructions as to each element of the kidnapping statute.
. The conclusion of the Court of Criminal Appeals was also based upon the erroneous observation that “the issue we address today was not presented to the Anthony [Cjourt.” Id. at *21. In fact, as discussed below, the circumstances of this case are strikingly similar to the circumstances at issue in Anthony.
Concurrence Opinion
concurring.
I concur in Chief Justice Lee’s well-written majority opinion in this case. Under the law as it currently stands in Tennessee, the majority has correctly analyzed the issue presented. I write separately to note the same concerns expressed by Justice Bivins in his separate concurrence in our recent decision State v. Alston, namely, concerns about the far-reaching constitutional holding in the case that gives rise to this issue, this Court’s 1991 decision State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). See State v. Alston, 465 S.W.3d 555, 567-70 (Tenn.2015)(Bivins, J., concurring) (citing Anthony, 817 S.W.2d at 299).
In Anthony, the Court held that double jeopardy analysis was “inadequate” to address dual convictions of kidnapping and other felonies that necessarily include some degree of detention or confinement of the victim. Anthony, 817 S.W.2d at 306. Turning instead to the due process clause
As meticulously outlined in State v. White, 362 S.W.3d 659 (Tenn.2012), a tangle of cases ensued, as courts struggled to apply the holding in Anthony. White, 362 S.W.3d at 567-70. In an attempt at disentanglement, the White Court rejected the separate appellate due process analysis mandated in Anthony and adopted in its stead a procedure by which the jury must be instructed that, in order to convict the defendant of kidnapping, it must find that the removal or confinement of the victim was greater than that necessary to commit the accompanying felony.
Although White made procedural modifications, the core holding in Anthony remains intact — for kidnapping alone, the due process clause of Tennessee’s constitution requires the State to prove more than the statutory elements of the crime; it also requires the State to prove that the removal or confinement of the victim was to a greater degree than that necessary to commit the accompanying felony. Indeed, the holding in Anthony undergirds the issue presented in .this case.
The majority in this case correctly holds that a White/Anthony jury instruction is not required when a defendant is charged with the kidnapping and robbery of different victims. This holding obviates the need to consider the concerns raised by Justice Bivins in his concurrence in Alston. Addressing those concerns, then, will have to wait until another day.