State v. Dixon

Tennessee, Appellant, STATE

Ricky DIXON, Appellee. Michael Tennessee,

Supreme Court

at Knoxville. 15, 1997.

Dec. Attorney Walkup, Knox General

John Moore, E. Gener- Reporter, Michael Solicitor Attorney al, Ryan, Elizabeth T. Assistant General, Nashville, Appellant. for Sloan, Chattanooga, Appellee. Jerry for S. OPINION HOLDER, Justice. Dixon, Ricky Michael appellant, kidnapping, aggra- assault, sexual

vated aggra- twenty years for He was sentenced years aggravat- for kidnapping, fifteen twenty- assault, and eleven months ed battery. days nine concurrently. run were ordered ‍​​‌​‌​‌‌​​‌​‌‌‌​​‌‌​​​‌​​​‌​​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌‍to sentences court reversed the appellate battery convic- assault and Anthony, 817 pursuant to State tions (Tenn.1991). reverse cоnvictions. and affirm the appellate court 533 exchanged They then words and sex him. on BACKGROUND physical ensued. a confrontation 6, 1992, September On the victim was walking along lighted home a street when the aggra A the jury convicted defendant assault, approached her from behind and defendant kidnapping, aggravated and grabbed her.1 testified that the defen- She battery. The Court of “pinned dant down one of his arms [her] found was Criminal that and covered mouth with the other.” [her] essentially to both as incidental to the [her] He lifted her and “slammed battery pursuant attempted sault аnd (Tenn. ground.” positioned He his hands around Anthony, 299 817 S.W.2d State began choking her. He then 1991). her neck and ag reversed the appellate The court forty approximately thirty her and sexual bat gravated assault into or feet from the illuminated sidewalk tery convictions. foliage growing the

behind on back an adjacent vacant lot.2 ANALYSIS the the victim After defendant separate recognized court has that This lot, into on the he forced the bushes vacant pro- may violate due kidnapping convictions jeans. her then pull her to down He re- essentially is cess when hеr The defendant was moved underwear. for which a defendant has other offenses engage in sexual as the unable to intercourse Anthony, In 817 State v. been convicted. efforts to ward off the as- resumed heard 299 this Court He, however, grabbed by her the sault. hair stan- appeals delineаted the consolidated and perform on him. forced her fellatio determining whether dard for underlying essentially was incidental to nearby The victim to flee to a defendants were offense. the The help. house to summon defendant Shoney’s robbing a Restaurant. pulled began beating her back and her caus- just had closed. Behind the restaurant ing then a facial fracture. He removed her employees three establishment there were remaining garments. positioned himself He dumpster. into The de- emptying garbage began again top choking her her on em- approached three outside fendants the fighting. until The victim testi- she ceased ployees gun-point them at lie and forced digitally penetrated fied that the defendant ground. remained on the One defendant fingers into the her. She then thrust her employees the outside while with the three scrеaming” eyes and “ran defendant’s restaurant. entered the other defendant nearby unclothed to house. entering ini- the restaurant defendant testified. His version of The defendant tially employees that two additional question the encountered events conflicted with or- The defendant in- ‍​​‌​‌​‌‌​​‌​‌‌‌​​‌‌​​​‌​​​‌​​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌‍inside the restaurant. the victim. He asserted that the victim dered, employees to an evening gun point, the two spend him the at at formed he could restaurant. When they walking in the back the were toward her office home. As office, house, they the defendant de- stopped arrivеd at the the victim and the defendant opened. The that safe be defen- approximately four manded the at a vacant lot located that the safe was in They dant then informed from the home. walked houses victim’s regis- by the restaurant cash alleged that the front the into lot аnd sat the down. instructed one of oral ter. The defendant began perform consensual by in court the continuing validity distance was estimated of State v. Antho 1. While the ques ny tioned, walking away prosecutor Criminal Code has been a witness toward under 1989 from Smith, e.g., Johnny L. CCANo. argument see While of thе courtroom. rear (Tenn. 1-9602-CR-00061, WL evidence, 02CO prosecutor noted is not counsel Jackson, 15, 1997), May pro Crim.App., due appeared argument during this distance that designed Anthony principles and the test cess to thirty forty approximately feet. be applicable equally to kid implement them are napping the law in effect both convictions under date of and after effective before Criminal Code Revision. itself, employees to lie on office independent prosecution.” the floor of the to warrant employee as he and other went to the at 306. We Id. reversed the holding taking money kidnappings front of the restaurant. After convictions safe, essentially from the encountered a were incidental to the robberies defendant employee on the the re- exiting following findings: third The de- based a restroom. substantially gun mоval or not pointed employee fendant his and confinement did at the (2) victims; increase the risk of “get him to harm to the instructed back in the men’s (3) slight; stay the victims’ movement was room and there.” The defendants (4) brief; confinement was and the victims episode fled the scene. The lasted еntire any way.” harmed in “were not Id. at 307. approximately five minutes. later, Approximately Martin, year one this Court State v. consolidated with case applied Anthony to a in case which de- Anthony, kidnapping also involved a convic- fendant had been of conjunction convicted underlying tion in with an rob- rape, aggravated robbery, and Martin, bery conviction. the defendant Coleman, kidnapping. In State v. 865 agency. entered insurance He then S.W.2d 455 the defendant robbed, gun point,' at people two inside the gun at robbed a store. forced the victim agency. approximately receiving After empty the contents point register’s to cash 200, he ordered into a bath- both victims $ bag. He then to into a ordered the victim they room where remained until the defen- the back of the store room” and into a “side episode building. dant exited the The entire raped gun point. where he her at This Court approximately lasted minutes. four finding kidnapping reversed the conviction Anthony The defendants both and Mar- essentially that the abduction was kidnapping of aggravated tin were convicted robbery! to the robbery. armed and The issuе with which Anthony however, we were confronted in was whether Anthony progeny, and its merely movements or confinements inciden- provide rapist a are not meant to free robbery separate tal to should kid- sustain kidnapping merely commit because he also napping kidnap- convictions. held that a only We rape.3 Anthony ted decision should ping process conviction when injustice violated due occur if a prevent which would predicated kidnapping on movement confinement that or could be defendant merely only accompanying was incidental to an was that where restraint utilized n “significant rape felony enough, necessary complete and not in and of to the act of or Commonwealth, 623, Richmond, Va.App. building); 3. See Coram v. 3 victim back into State v. (1987) 375, (moving (1992) feet (holding 352 S.E.2d 532 victim 20 250 827 743 Kan. P.2d rape attempt into bushes to facilitate constituted dragging victim from front of house and to bed- kidnapping because increased the the movement binding risk of and her room lessened detection by lessening possibility of harm victim during rape separate kidnap- supported second detected); crime Leе v. chance that the would be conviction); Rich, ping ‍​​‌​‌​‌‌​​‌​‌‌‌​​‌‌​​​‌​​​‌​​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌‍739 State 305 N.W.2d v. State, 529, (1996) (af 326 Ark. 932 756 S.W.2d (Iowa 1981) (dragging into vacant rest- victim firming kidnapping grabbed woman where man binding rick of and her room lessened detection lighted approxi her from mately sidewalk and normally rape); State v. wrists not incident to building there 1 block back of where (S.D.1992) (holding Lykken, con- 484 N.W.2d 869 Jones, her); light rape 215 was no State necessary complete hours not finement four 173, (1990) (grabbing jogger 575 A.2d Conn. 216 rape lasted fifteen to individual acts which dragging completely of road her from center and supported twenty sentences minutes consecutive provided for kid off road sufficient movement convictions); kidnapping rape and for State, 190, napping); Ga.App. 348 Davis v. 180 (1989) Gordon, 308, P.2d 1204 161 Ariz. 778 730, (1986) (affirming kidnapping S.E.2d 732 apartment, (holding beat- confinement in victims forcibly where victim carried to area behind supported ing, rape sentences consecutive Davidson, rape); prior 77 house State v. Warner, 626 rape); State v. for 540, (1985) (moving N.C.App. 335 S.E.2d 518 (R.I.1993) -(finding or five hour A.2d 205 four gun point prior binding them 35 feet at victims separate support on boat sufficient to detention robbery because constituted State, convictiоn); 399 Faison v. completion unnecessary movement was 1981) (Fla. (moving victim 3d State, So.2d 19 DCA robbery); Harris v. 299 Ark. building (1989) to lessen risk front room to back (affirming kidnapping convic conviction). supported rape separate detection where defendant twice chased and tion S.W.2d at Accordingly, any in addi- ed sexual restraint so, inquiry is whether necessary to If the next is consum- 306. tion to that which (1) or confinement: ‍​​‌​‌​‌‌​​‌​‌‌‌​​‌‌​​​‌​​​‌​​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌‍robbery support sepa- additional movement rape may mate or summoning help; the victim from prevented rate conviction for detection; (2) the defendant’s risk lessеned Court, In the case now before this in- danger or significant or created seiz charged Dixon was of harm. Id. creased the victim’s risk ing confining or the victim to “facilitate thereafter, felony flight any or commission the defendant’s act find that another, or or to the victim or terrorize thirty to drаgging approximately inju bodily where the suffered serious beyond forty after the initial assault feet aggravated kidnapping ry. ...” Our current necessary complete require particular not a distance statute does battery. Dixon and at Had confined sexual any particular or оr duration removal sexually penetrate the victim tempted to aggra place One of confinement. commits her, initially physically assaulted where he kidnapping knowingly who removes or merely in would have been the confinement to confines another “so as interferе substan battery. attempted the cidental to sexual (1) tially liberty”: the facili other’s to the of the back Dixon’s movement victim felony flight any or tate the commission lot, however, re exceeded that of a dark (2) thereafter; with intent to inflict serious necessary consummate the aсt of straint bodily injury the or on or to terrorize victim Accordingly, battery. we (3) another; or the seri where victim suffers inquiry. now focus on the second § bodily injury. Ann. ous Tenn.Code 39-13- indicates The evidence introduced at trial Accordingly, purpose it is of the the of the not choose the back that Dixоn did the removal or confinement and not distance personal the bushes for the vacant lot behind necessary supplies that a or duration element during the himself or the victim comfort of aggravated battery. forcefully attempted He sexual grabbed Dixon the victim from behind victim to the secluded location the ground. the slammed onto He investigating officer avoid detection. The along lighted her from a sidewalk a would have testified that the entire incident vacant, empty a lot to street across and unlit Dixon not from the street had been visible foliage. by from the road location concealed from the location where removed the victim forcefully the then beat and undressed her. officer testi- initially he assaulted The Dixon victim. victim testified that victim to fied that Dixon’s movement of the perform fellatio on him and forced her lot, however, dark and vacant the back of the digitally penetrated that her before she he visually witnessing the from precluded one free. then ran un- was able break She Accordingly, find the street. we assault from help. nearby house to summon clothed to of the lessened that Dixon’s mоvement victim Initially, substantially in- note the risk we the of detection the victim. incidental to assault. creased the risk harm the See was not Commonwealth, necessary Va.App. beatings were not v. brutal Coram (moving or 20 feet into the of either the victim commission S.E.2d Likewise, rape attemрt the facilitate constituted sexual bushes to lot was movement increased movement to the back the vacant because the aggra by lessening necessary possibility of the to victim not for commission harm detected). Accordingly, that the crime would be the chance vated assault. independent of both act assault was present ease are The circumstances of battery and the Anthony and distinguishable from Cole- both not have been reversed. and should confine- In the movement or man. normally incident whether the ment did not exceed that now dеcide We must Coleman, beyond that In while there was or confinement was movement necessary to attempt- movement exceeded that the act which necessary to consummate rape, no consummate the act of there was

finding that the movement decreаsed Transport, HALL A. and Beef William detection, probability prevented Inc., Plaintiffs-Appellees- summoning help, the risk from or increased Appellants, ‍​​‌​‌​‌‌​​‌​‌‌‌​​‌‌​​​‌​​​‌​​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​‌‍us, ease we have of harm. now before testimony that the movement lessened detection. The lessened risk of detec- risk of BEEF CO. and TENNESSEE DRESSED harm the victim.

tion increased the risk of Hall, Richard N. Defendants- Moreover, bodily serious sustained Appellants-Appellees, injuries. judgment of the Court of derivatively HALL, A. on Behalf William reversing aggravated assault and at- Co., Tennessee Dressed Beef battery convictions is re- temptеd sexual Plaintiff-Appellee, versed, are reinstated. and the convictions appeal of this shall be taxed to the Cost defendant, Dixon, Ricky Michael for which HALL, Defendant-Appellant. may necessary. if

execution issue Richard N. Tennessee, Supreme Court C.J., DROWOTA, J., ANDERSON, at Nashville. concur. Dec. BIRCH, JJ., REID and dissent.

REID, Justice, dissenting. of the Court would affirm the decision reversing the conviction

of Criminal of the victim from side-

The removal lot was to the far side of the vacant

walk aggravated as- to the offenses of battery in the

sault victim in way that removal of the

same S.W.2d 299 to another

from one room the restaurant incidental to the offense

BIRCH, J., concurs.

Case Details

Case Name: State v. Dixon

Court Name: Tennessee Supreme Court

Date Published: Dec 15, 1997

Citation: 957 S.W.2d 532

Docket Number: 03S01-9704-CR-00043

Court Abbreviation: Tenn.