OPINION

JEFFREY S. BIVINS, Judge.

A jury convicted Ricco R. Williams ("the Defendant") of five counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, two counts of employing a firearm during the commission of a dangerous felony, and one count of unlawful possession of a firearm by a convicted felon. The Defendant appealed and contended, among other issues, that the evidence was not sufficient to support his convictions. Upon our review, this Court reversed the Defendant's two convictions of employing a firearm during the commission of a dangerous felony and remanded those counts for a new trial; modified one of the Defendant's aggravated robbery convictions to a conviction of the lesser-included offense of aggravated assault; reversed and dismissed the Defendant's conviction of unlawful possession of a firearm by a convicted felon; and affirmed the Defendant's convictions of and sentences for especially aggravated kidnapping, aggravated burglary, and the remaining aggravated robbery. See State v. Ricco R. Williams, No. W2011-02365-CCA-R3-CD, 2013 WL 167285, at *1 (Tenn. Crim. App. Jan. 14, 2013) ("Williams I"). Upon the Defendant's application for permission to appeal, the Tennessee Supreme Court remanded the case to this Court for consideration in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), and State v. Cecil, 409 S.W.3d 599 (Tenn. 2013). See State v. Ricco R. Williams, No. W2011-02365-SC-R11-CD (Tenn. Aug. 21, 2013). Upon our consideration of the Defendant's especially aggravated kidnapping convictions in light of White and Cecil, we affirm the Defendant's three convictions of especially aggravated kidnapping as to the victims A.R., K.R., and M.R. We reverse the Defendant's two convictions of especially aggravated kidnapping as to the victims Timothy Currie and Sherita Currie and remand those charges for a new trial. Our previous holdings regarding the Defendant's remaining convictions are unaffected by the remand and, thus, remain valid.

Background

The Defendant in this case was convicted of multiple crimes including five especially aggravated kidnappings. The Tennessee Supreme Court has remanded this case with instructions for this Court to consider the case in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), and State v. Cecil, 409 S.W.3d 599 (Tenn. 2013). White and Cecil established a new methodology for ensuring that a defendant is afforded due process when a kidnapping offense is charged along with an accompanying felony that necessarily includes a period of confinement or movement of the victim, the underlying elements in kidnapping. Under that new methodology, the properly instructed jury must determine whether that period of confinement or movement exceeds that which is necessary to accomplish the accompanying felony. See White, 362 S.W.3d at 577-78. If convicted of the kidnapping offense, the defendant may then seek appellate review of the sufficiency of the evidence relied on by the properly instructed jury. See Cecil, 409 S.W.3d at 609 ("Only when the jury is properly instructed can appellate review of the sufficiency of the convicting evidence satisfy the due process safeguard."). Accordingly, we limit our review on remand in this case to the Defendant's especially aggravated kidnapping convictions.

Initially, it will be helpful to summarize the evidence which was more fully described in Williams I, 2013 WL 167285, at *1-5. The Defendant and two compatriots broke into the home shared by Timothy and Sherita Currie and Ms. Currie's three children, M.R., K.R., and A.R.,1 at 1:15 a.m. on a night in June 2009. Among them, the intruders were armed with a crowbar, a pistol, and an "AK-47." The intruders demanded drugs and money, and one of them struck Mr. Currie in the head with the butt of a gun. They then ordered Mr. Currie to the living room. The intruders also ordered Ms. Currie and her children to the living room, where they were all held at gunpoint while the intruders ransacked the house and took jewelry and money. The Curries testified that they were not free to leave during the 45-minute episode.

K.R. testified that she recognized the Defendant. She managed to surreptitiously call 9-1-1, and when the police arrived and knocked on the front door, the intruders hastily fled through the rear of the house. During his flight, the Defendant apparently dropped his wallet, complete with identification, which was recovered by the pursuing police officers. See id.

The jury convicted the Defendant of the following offenses:

Those counts charging especially aggravated kidnapping and aggravated robbery alleged that the offenses were accomplished with a deadly weapon. See id. at *6.

On the Defendant's direct appeal of these convictions, this Court held that the evidence sufficiently supported the convictions of especially aggravated kidnapping and aggravated burglary. Id. at *7. We reversed the firearm offenses in counts seven and ten based upon the State's failure to elect a qualifying, underlying dangerous felony and remanded those counts for a new trial. Id. at *10. Based upon principles of double jeopardy as expressed in State v. Franklin, 130 S.W.3d 789, 795-98 (Tenn. Crim. App. 2003), we affirmed the conviction of aggravated robbery in count eight but reduced the aggravated robbery conviction in count nine to aggravated assault. Williams I, 2013 WL 167285, at *6. We reversed the firearm conviction in count eleven and dismissed that charge because "no proof showed that the defendant actually, constructively, or jointly possessed a firearm." Id. at *11. We also declined to hold that the trial jury had been tainted or that the consecutive alignment of sentences was erroneous. Id. at *12, 13.

Concerning the issue mandated for remand review, the Defendant, at this juncture, stands convicted of the especially aggravated kidnappings of Mr. Currie, Ms. Currie, M.R., K.R., and A.R. He also stands convicted of the aggravated robbery of Mr. Currie and the aggravated assault of Ms. Currie. In the latter conviction, the Defendant was charged with, and the jury returned a verdict of guilty of, aggravated robbery, but this Court modified the conviction to aggravated assault. See id. at *10. M.R., K.R., and A.R. were not named victims in any offenses other than the especially aggravated kidnappings committed against them.

Analysis

Turning now to the issue before us, we first consider the viability of the Defendant's two convictions of especially aggravated kidnapping committed against Mr. Currie and Ms. Currie.

Viability of Dual Convictions for Kidnapping and Accompanying Felony

In 1991, the Tennessee Supreme Court considered in a consolidated appeal two unrelated cases in which each of the two defendants committed an armed robbery of a business. See State v. Anthony, 817 S.W.2d 299, 300 (Tenn. 1991). In the first case, the defendant (Anthony) and his cohort committed an armed robbery of a Shoney's restaurant in Knoxville, Tennessee. When the two men approached the restaurant, they found three employees outside near the dumpster. Anthony, who was armed, ordered the employees to the ground and left his cohort to watch over them. Anthony entered the restaurant and encountered two more employees. At gunpoint, he ordered them to open the safe, which involved all three of them walking to the office. One of the employees told Anthony that the safe was elsewhere, resulting in Anthony's ordering her to stay in the office while he and the other employee (Kesterson) proceeded to the safe. On his way out of the restaurant, Anthony encountered yet another employee, whom Anthony ordered, at gunpoint, to return to the restroom and stay there. Anthony was subsequently convicted by a jury of the armed robbery of Kesterson and the aggravated kidnappings of Kesterson and the other five employees. See id. at 301.

In the second case, the defendant (Martin) entered an insurance agency while armed. Martin encountered the owner and a secretary. Martin told the owner to lie on the floor and obtained cash from him. Martin also took the agency's money from the secretary as well as some cash from her wallet. Martin then took the owner by the arm and ordered both victims into the men's restroom, telling them to stay there. Martin then fled. Martin subsequently was convicted of two counts of armed robbery (one as to each victim) and two counts of aggravated kidnapping (one as to each victim). See id. at 302.

On review, our supreme court framed the issue as "the propriety of a kidnapping conviction where detention of the victim is merely incidental to the commission of another felony, such as robbery or rape." Id. at 300. The court held that none of the kidnapping convictions could be sustained after concluding that the dual convictions offended Tennessee's constitutional guarantee of due process. Id. at 306-07. For guidance in similar cases, our high court articulated the appropriate due process test, to be applied by the appellate courts on review, as follows: "whether the confinement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to support such a conviction." Id. at 306.

Our supreme court later modified this test in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997). See State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008) (explicitly recognizing that the test set forth in Dixon replaced the Anthony test). In Dixon, the court described Anthony's "essentially incidental" test as designed to "only prevent the injustice which would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the act of rape or robbery." 957 S.W.2d at 534-35. The Dixon court added that "any restraint in addition to that which is necessary to consummate rape or robbery may support a separate conviction for kidnapping." Id. at 535. The new due process test set forth in Dixon consisted of two prongs: (1) whether the defendant's movement or confinement of the victim was beyond that necessary to consummate the accompanying felony, and, if so; (2) whether the additional movement or confinement prevented the victim from summoning assistance, lessened the defendant's risk of detection, or created a significant danger or increased the victim's risk of harm. Id. If each prong was satisfied on appellate review, a separate kidnapping conviction could be sustained. Dixon involved a single victim, and the defendant was convicted of aggravated kidnapping, aggravated assault, and attempted sexual battery. Id. at 533. The supreme court affirmed the defendant's convictions. Id. at 532.

In 2012, the Tennessee Supreme Court overruled Anthony and its progeny, including Dixon and Richardson, in White, 362 S.W.3d at 578. In White, the defendant was convicted of burglary, aggravated robbery, and especially aggravated kidnapping arising from the defendant's robbery of a Clarksville restaurant. Significantly, the victim of the robbery and kidnapping offenses was a single individual.2 In analyzing whether the defendant's dual convictions for aggravated robbery and especially aggravated kidnapping could stand, the White court rejected Anthony's reliance on an appellate court's due process scrutiny of kidnapping convictions imposed in conjunction with convictions of an accompanying felony. Id. at 577-78. Instead, the White court shifted the appellate analysis to a standard sufficiency of the evidence review of a properly instructed jury's assessment of the facts. Id. The White court emphasized that it was the jury's "primary obligation . . . to ensure that a criminal defendant has been afforded due process." Id. at 577. A jury does so by assessing the proof at trial and determining whether the State has met its burden of proving each and every element of the charged offenses beyond a reasonable doubt. Id. at 577-78. Thus, in White, the supreme court held "that whether the evidence, beyond a reasonable doubt, establishes each and every element of kidnapping, as defined by statute, is a question for the jury properly instructed under the law." Id. at 577. In so holding, the court concluded that "[t]he separate due process test articulated first in Anthony, and subsequently refined in Dixon and its progeny, is, therefore, no longer necessary to the appellate review of a kidnapping conviction accompanied by a separate felony." White, 362 S.W.3d at 578.

To ensure that the jury can carry out its function of protecting a defendant's due process rights when considering whether the State has proven each and every element of a kidnapping charge that arises out of the same conduct against the same victim of an accompanying felony, the White court delineated the following jury instruction:

Id. at 580-81 (footnote omitted) (emphases added).

In Cecil, our supreme court made clear that White applied to cases then in the appellate "pipeline." Cecil, 409 S.W.3d at 608. In this case, the jury returned its verdicts in June 2011, and the Defendant filed a timely notice of appeal in this Court. Thus, at the time White was filed on March 9, 2012, the Defendant's case was in the appellate process. Accordingly, the Defendant "is entitled to the benefit of [the White] ruling." Id.

In this case, the trial court instructed the jury about especially aggravated kidnapping as follows:

The trial court also charged the jury on the lesser-included offenses of aggravated kidnapping, kidnapping, and false imprisonment, together with the applicable definitions. However, as in White, the trial court's instructions to the jury "did not define the key element — the substantial interference with the victim's liberty — as requiring a finding by the jury that the victim's removal or confinement was not essentially incidental to the accompanying felony." White, 362 S.W.3d at 580. "[T]he absence of the White instruction constitutes error." Cecil, 409 S.W.3d at 609.3

Cecil also instructs that this instructional deficit is a constitutional error. Id. at 610. Such a non-structural constitutional error mandates reversal unless the State demonstrates beyond a reasonable doubt that the error was harmless. Id. (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)). "[T]he touchstone of this inquiry is whether a rational trier of fact could interpret the proof at trial in different ways." Id. (citing White, 362 S.W.3d at 579). If the proof could be interpreted in a manner that would not support the Defendant's kidnapping convictions, then the Defendant is entitled to a new trial on these two counts of especially aggravated kidnapping. See id. at 611-12.

As set forth more fully in our initial opinion in this case, see Williams I, 2013 WL 167285, at *1-5, the proof at trial established that the Defendant and his cohorts broke into the victims' home at about 1:15 in the morning. The intruders ordered all five of the victims into the living room. While one of the men held the victims at gunpoint for approximately forty-five minutes, the other two men ransacked the house, finding and taking money and jewelry. The men threatened to bind Ms. Currie and the children with duct tape and burn the house down with them in it. They also threatened to bind Mr. Currie and "drop" him in the Mississippi River. Just before the police arrived, the intruders lined the family members up and placed duct tape nearby. When the police arrived, the intruders fled the home.

We hold that there is a reasonable probability that, had it been properly instructed, the jury could have concluded that the actions of the Defendant and his cohorts, particularly considering their apparent preparations to bind and kill the victims after forty-five minutes spent ransacking the house, went beyond what was necessary to commit the underlying robbery and became, instead, detention for the purpose of killing the victims as punishment for not producing the money or drugs the assailants apparently believed were in the victims' possession. We also hold that there is a reasonable possibility that, had it been properly instructed, the jury could have concluded that the actions of the Defendant and his cohorts in holding Mr. and Ms. Currie at gunpoint while they ransacked the house were essentially incidental to their actions in committing the robbery. Because the proof could be interpreted in a manner that would not support the Defendant's convictions of the especially aggravated kidnappings of Mr. and Ms. Currie, we are constrained to conclude that the Defendant's convictions of these two especially aggravated kidnappings4 must be reversed, and the charges remanded for a new trial. See Cecil, 409 S.W.3d at 613.

Viability of Single Convictions of Especially Aggravated Kidnapping

We turn now to the Defendant's three convictions of especially aggravated kidnapping as to the three victims A.R., K.R., and M.R., Ms. Currie's three children. Significantly, the Defendant was not charged with an accompanying felony naming any of these victims.

As indicated above, the core issue of Anthony, Dixon, and White was whether the defendant's actions in moving and/or detaining his victim(s) was no more than was necessary to commit the robbery of the business establishment or, in Dixon, the sexual assault of the victim. See Anthony, 817 S.W.2d at 306 (holding that one method of resolving whether the confinement, movement, or detention required for a kidnapping offense was essentially incidental to the accompanying felony was to determine whether the defendant's conduct increased the victim's risk of harm beyond that necessarily present in the accompanying felony); Dixon, 957 S.W.2d at 535 (recognizing that "any restraint in addition to that which is necessary to consummate [the accompanying felony] may support a separate conviction for kidnapping") (emphasis added); White, 362 S.W.3d at 576-77 ("In our view, the kidnapping statutes, `construed according to the fair import of their terms,' Tenn. Code Ann. § 39-11-104, and coupled with their derivation from the Model Penal Code, evince a legislative intent to punish as kidnapping only those instances in which the removal or confinement has criminal significance above and beyond that necessary to consummate some underlying offense, such as robbery or rape.") (emphasis added); see also State v. Salamon, 949 A.2d 1092, 1120 (Conn. 2008) (recognizing that "the guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts") (internal quotation marks omitted) (citation omitted). The underlying concerns were that a perpetrator, by necessity, must detain his robbery victim long enough to commit the taking of property from the victim,5 or his rape victim long enough to accomplish the rape, and that principles of due process prohibited the imposition of a separate kidnapping conviction when the detention was no more than that required to commit the primary felony.6

Indeed, the White instruction appears to have been drafted with the assumption that the defendant is being tried for dual offenses against a single victim. Certainly, that appears to have been the factual scenario before the court in that case. We also note that the White court relied on the Connecticut Supreme Court decision, Salamon, 949 A.2d 1092. See White, 362 S.W.3d at 579. Salamon involved offenses against a single victim. See Salamon, 949 A.2d at 1101-02. Indeed, the White court noted that the Salamon court "clarified that the jury was to be instructed that `if it finds that the defendant's restraint of the victim was merely incidental to the defendant's commission of another crime against the victim, that is, assault, then it must find the defendant not guilty of the crime of kidnapping.'" White, 362 S.W.3d at 579 n.15 (quoting Salamon, 949 A.2d at 1122) (emphases added). Logic dictates that, if the White court intended the instruction to be required in cases involving a kidnapping charge that was not accompanied by a robbery (or rape) charge involving the same victim, the White court would have phrased the instruction as "the victim of the underlying felony." The court obviously chose not to do so.

Thus, the especially aggravated kidnapping charges involving the three victims A.R., K.R., and M.R. in this case present a significantly different situation than the situation which triggered the underlying concerns our supreme court first articulated in Anthony. In this case, the Defendant was not convicted of both especially aggravated kidnapping and an accompanying felony as to any of these three victims. Rather, contrary to both Anthony and White, the State sought and obtained only one conviction as to each of these three victims, each of whom the Defendant and his cohorts moved and detained while ransacking the house and taking property from the joint possession of Mr. and Ms. Currie.

While we recognize that our supreme court has determined that it is unfair to convict a defendant of two crimes against a single victim when he arguably has committed only a single crime that, by necessity, includes an element of a different crime, that same concern eludes us in the face of multiple victims for which a defendant is charged with a single offense. That is, we acknowledge that a perpetrator, by some means or other, must detain his robbery victim long enough to take some property from her. However, there is no corresponding necessity for the perpetrator to immobilize innocent bystanders. Certainly, immobilizing such persons may facilitate the perpetrator's commission of his intended crime against his intended robbery victim, but we do not agree that principles of due process prevent the perpetrator from being prosecuted for the separate crime he may commit against bystanders in order to facilitate his primary crime. Indeed, we fail to see how a crime against one person can be merely "incidental" to a crime against another person.7

Thus, we are persuaded that the robbery of a couple in their home in which their children are also present does not expand a perpetrator's due process protections such that he is free to move and/or detain the children in order to commit a robbery of the parents without facing kidnapping convictions, at least as to the children against whom he cannot be charged with robbery.8

We recognize, of course, that our conclusion, in some respects, is contrary to our supreme court's holdings in Anthony. However, the issue we address today was not presented to the Anthony court. Moreover, our current supreme court wisely has overruled Anthony, and we no longer are bound by its expansive application of due process which has been utilized to defeat kidnapping convictions of perpetrators who commit offenses against separate persons to facilitate the robbery of an entirely different victim.

As the logical correlate of our conclusion about the limits of the Defendant's due process protections, we hold that the Defendant in this case was not entitled to the White instruction as to the especially aggravated kidnapping charges naming A.R., K.R., and M.R. as victims. We read White as requiring the expanded kidnapping instruction only when the jury is required to determine whether the defendant committed dual offenses of kidnapping and an accompanying crime for which some measure of detention was necessary against the same victim.9 In the instant case, the jury was not asked to make this determination as to these three victims. Because the State did not seek dual convictions as to these victims, the trial court did not err in failing to include the White instruction10 in its charge to the jury as to these victims.

We acknowledge that panels of this Court have reached differing conclusions on this issue. For instance, in State v. Richard Lacardo Elliott, No. M2001-01990-CCA-R3-CD, 2002 WL 31528538, at *1 (Tenn. Crim. App. Nov. 15, 2002), perm. app. denied (Tenn. Feb. 24, 2003), a panel of this Court, even prior to White, considered the defendant's convictions of aggravated robbery and aggravated kidnapping as to separate victims arising out of the defendant's conduct in a liquor store. Initially, the defendant began a transaction with the clerk. When a customer walked in, the defendant produced a gun and ordered the customer to the floor at gunpoint. The defendant returned his attention to the clerk and ordered the clerk to give him money. After the clerk complied, the defendant ordered both persons to a storage area in the rear of the store and "warned them not to move from that location for five or ten minutes." Id. The defendant was convicted of the aggravated kidnapping of the customer and of the aggravated robbery of the clerk. The panel rebuffed the defendant's Anthony challenge in what appears to be the first case that specifically addressed the precise issue before this Court in the instant case.

The Elliott court opined as follows:

Id. at *3-4. The panel concluded that the evidence was sufficient to support the defendant's conviction of the aggravated kidnapping of the customer. Id. at *4. See also State v. Gregory Mathis, No. M2011-01096-CCA-R3-CD, 2013 WL 4774130, at *9 (Tenn. Crim. App. Sept. 5, 2013) (rejecting due process challenge to especially aggravated kidnapping conviction because victim was not a victim of the accompanying aggravated robbery of boyfriend, holding that "the especially aggravated kidnapping conviction . . . was a separate and distinct offense from the aggravated robbery").

In contrast, a majority of a different panel in State v. Josh L. Bowman disagreed with the Elliott case. No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *14-15 (Tenn. Crim. App. Aug. 29, 2013). In Bowman, the panel considered a home invasion case in which the defendant and his cohort accosted a couple in their home and shot and killed the husband. The men then made off with the couple's safe. During the episode, one of the men held a gun to the wife's head and ordered her to sit down. The defendant was convicted of the especially aggravated kidnapping of the wife and the especially aggravated robbery of the husband, as well as other convictions not relevant to the issue before us. The defendant argued that he was entitled to a new trial because the jury was not given the White instruction. The State argued that White did not apply because the charges for especially aggravated kidnapping and especially aggravated robbery involved different victims. Id. at *14. The majority of the panel rejected the State's argument, predicated on Elliot, noting that "[o]ur supreme court 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." Id. at *15.

A dissenting opinion filed in Bowman reasoned as follows:

Id. at *17. (Woodall, J., dissenting).

The majority opinion in Bowman also relied upon this Court's opinion in State v. Michael L. Powell, No. E2011-00155-CCA-R3-CD, 2012 WL 1655279 (Tenn. Crim. App. May 10, 2012). We respectfully disagree with the Bowman majority's analysis of Powell. Powell involved a home invasion in which the two defendants and a third man accosted three people. The defendants were charged with aggravated robbery as to each of the three people and with especially aggravated kidnapping as to two of the people. The jury convicted the defendants as charged, and the defendants raised an Anthony challenge on direct appeal. While the appeal was pending, our supreme court issued its decision in White. The Powell court framed the issue as follows:

Id. at *9. Accordingly, the unanimous Powell panel remanded the matter for a new trial on the kidnapping charges requiring inclusion of the White instruction. Id.

This case presents a somewhat unique scenario. The Defendant was charged with dual crimes — aggravated robbery and especially aggravated kidnapping — as against Mr. and Ms. Currie. The Defendant was not charged with dual crimes as against the three child victims. The Defendant's moving and detention of these three victims was not necessary to the Defendant's commission of the aggravated robbery of Mr. Currie or the aggravated robbery/aggravated assault of Ms. Currie.

Accordingly, we hold that the Defendant's due process rights were not violated by his convictions of the especially aggravated kidnappings of the three child victims and that he was not entitled to the White instruction as to these three counts. Therefore, we affirm, again, the Defendant's convictions of the especially aggravated kidnappings of M.R., K.R., and A.R.

Conclusion

Our previous opinion reversed the Defendant's convictions in counts seven and ten relative to the violation of Code section 39-17-1324 and remanded those counts for a new trial on the offense of employing a firearm during the commission of a dangerous felony predicated upon an aggravated burglary. Additionally, our previous opinion modified the aggravated robbery conviction in count nine to a conviction of aggravated assault and remanded that count for resentencing. Finally, our previous opinion reversed and dismissed the Defendant's firearm possession conviction in count eleven and dismissed that charge. The supreme court's remand does not affect those holdings.

Upon our consideration of this case in light of White and Cecil, we conclude that the Defendant is entitled to a new trial on the especially aggravated kidnapping charges in counts one and two. We also conclude that the Defendant is entitled to no relief from his three convictions of especially aggravated kidnapping entered on counts three, four, and five. We affirm the Defendant's convictions and sentences as to those counts.

Accordingly, the case is remanded to the trial court for a new trial on counts one, two, seven, and ten, and for resentencing on count nine.

JAMES CURWOOD WITT, Jr., J., concurring and dissenting.

I respectfully write separately to express departure from the majority with respect to the absence of the White instruction in the especially aggravated kidnapping convictions wherein M.R., K.R., and A.R. were respectively named victims. I emphasize that I do not disagree with the logic underlying the majority's conclusion that due process principles do not impact these three convictions, the victims of which were not also named victims in accompanying felonies. Rather, I disagree with the implication emanating from Anthony that due process principles constrict the use of kidnapping convictions against victims even though those victims were not victims in any accompanying felony. This vestige of the Anthony regime should be specifically overruled, but I view that as a responsibility of our supreme court.

Before plunging into the rabbit warren of due process issues, I point out that the due process issue was not raised by either party in this appeal. Therefore, the White-trial error that I perceive ultimately must be analyzed for the presence of plain error. See Tenn. R. App. P. 13(b).

Prior to State v. White, 362 S.W.3d 559 (Tenn. 2012), our supreme court adjudicated cases which featured such supernumerary kidnapping victims. In State v. Anthony, 817 S.W.2d 259 (Tenn. 1991), the case that started the due process imbroglio that White attempted to resolve, the defendant was convicted of offenses that he committed during the robbery of a Shoney's Restaurant in Knoxville. Specifically, he was convicted of the armed robbery of Al Kesterson, the restaurant manager, and of the aggravated kidnappings of Mr. Kesterson and five other restaurant employees whom the defendant and his accomplice had encountered and detained during the episode. Anthony, 817 S.W.2d at 301. After formulating the concept of due process that governs convictions of kidnapping and an accompanying felony, the Anthony court then applied the concept to all convictions of aggravated kidnapping, despite that only Mr. Kesterson was the victim of the single armed robbery.

In State v. Richardson, 251 S.W.3d 438 (Tenn. 2008), the defendant pleaded guilty to a single offense of attempted especially aggravated robbery; yet, the supreme court, after analyzing the due process issue, affirmed convictions of especially aggravated kidnapping as they related to two kidnapping victims who were employees of a restaurant.

In neither Anthony nor Richardson did the supreme court specifically address the existence of kidnapping victims who were not the victims of the accompanying felony of robbery. Nevertheless, the global application of due process principles in those cases informs us that, during the reign of Anthony and its progeny, the due process bar to prosecuting the kidnapping charge did not depend upon the kidnapping victim's being a victim of the accompanying felony. That said, White overruled Anthony and signaled a new remedy or methodology for applying due process principles when a kidnapping charge is combined with an accompanying felony; however, Anthony appears to remain vital to the extent that it validates the use of due process principles to scrutinize kidnapping convictions aligned with overlapping felonies. I have reviewed White to gain insight into the issue at hand, but other than the "standing alone" language, I find little. White informs me that, "[a]t the conclusion of the proof, the jury returned verdicts of guilt[y] for burglary, aggravated robbery, and especially aggravated kidnapping." White, 362 S.W.3d at 564. Although the opinion does not expressly say, I infer that White received single convictions of each of these offenses. The court implied that a single victim, Ms. Wright, was the victim of both the aggravated robbery and the especially aggravated kidnapping. See id. I have reviewed the jury instruction promulgated in White for a clue about whether the kidnapping victim must be a victim of the accompanying felony for the due process rule to apply, but I really discern nothing informative on this point. Although I believe that the thrust of White and State v. Terrance Antonio Cecil, 409 S.W.3d 599 (Tenn. 2013), is to diminish the ambit of due process concerns relative to kidnapping (or false imprisonment) convictions, I see nothing other than the highlight of the "standing alone" language that has changed the rule so as to require as a function of due process principles that the kidnapping victim be also a victim of the accompanying felony. In other words, the Anthony rule regarding supernumerary victims appears to be a function of the due process principle at work and not a question of remedy or methodology. If so, it is still viable and should be applied. In that event, all of the victims of the especially aggravated kidnappings in the present case are similarly situated for purposes of the threshold application of the due process analysis of White.

From this point, however, the task at hand becomes more complex: These five kidnapping convictions are juxtaposed against not one but two accompanying aggravated robbery charges. Two of the kidnapping victims were victims of the aggravated robberies. Furthermore, the aggravated robbery of Ms. Currie was modified to aggravated assault by this court on appeal.

I begin by determining that the due process issue was fairly raised concerning all kidnapping victims vis a vis both aggravated robberies. See Poe v. State, 370 S.W.2d 488, 489 (1963) (indicating that, generally, a trial court is obliged to instruct the jury on the rules of law that apply to the issues at trial); State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App.1995) (indicating that the duty of the trial court to charge the jury arises when an issue is fairly raised by the evidence and that no duty to charge on that issue arises when the evidence fails to fairly raise it). The five victims were moved and detained in facilitation of the robberies. Thus, the facts, as outlined above, required the trial court to impart the White jury instruction. See State v. Bennie Osby, No. W2012-00408-CCA-R3-CD (Tenn. Crim. App., Jackson, Nov. 2, 2012), perm. app. denied (Tenn. 2013).

Given that the kidnapping convictions overlap with the charged aggravated robberies of Mr. Currie and Ms. Currie, it becomes inconsequential to the analysis that some, if not all, of the kidnapping convictions do not overlap the ultimate conviction of the aggravated assault of Mr. Currie. The kidnappings of Mr. Currie, M.R., K.R., and A.R., at least, do not seem to be in furtherance of, or incidental to, the similarly perpetrated assault of Ms. Currie. (Neither is the kidnapping of Ms. Currie in furtherance of her assault if we view the assault as occurring and ending at the inception.) As to at least these four kidnapping victims, the White instructional issue is probably not fairly raised, but it matters not because I have already found that all five kidnapping convictions are infirm because of the juxtaposition of Mr. Currie's aggravated robbery. This infirmity, if harmful and plain, leads to reversal of the kidnapping convictions and not the accompanying convictions pursuant to existing case law. See State v. Taylor, 63 S.W.3d 400, 410 (Tenn. Crim. App. 2001) ("In cases decided under Anthony, the kidnapping conviction, when involved, is the conviction that has been dismissed.") (citing State v. Carson, 950 S.W.2d 951, 953 n. 3 (Tenn. 1997); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996); State v. Coleman, 865 S.W.2d 455, 457 (Tenn. 1993); State v. Binion, 947 S.W.2d 867, 872-73 (Tenn. Crim. App. 1996); State v. Gregory, 862 S.W.2d 574, 579 (Tenn. Crim. App. 1993)). Were the rule otherwise, as I believe it should be, only the single aggravated robbery conviction would need to be reversed and that charge remanded for a new trial. Because, however, our courts have determined that the due process infirmity affects the kidnapping conviction, the kidnapping convictions in the present case are affected, or fouled, by the accompaniment of the aggravated robbery of Mr. Currie alone. Parenthetically, I interject here that I see no reason why the kidnapping conviction, as opposed to the overlapping conviction, must be the casualty of a due process reversal, so long as the evidence is sufficient to support the kidnapping conviction.

So, because (1) White applies to the present case, (2) the White jury instruction issue was fairly raised with respect to the charges of aggravated robbery, and (3) the trial court did not impart the instruction, the trial court erred. See Bennie Osby, slip op. at 12.

Whether the error in this case is reversible depends upon the application of the harmless error rule. A White error is constitutional error subject to harmless error analysis. Terrance Antonio Cecil, ___ S.W.3d at ___, slip op. at 13. As such, no reversal results from the error when the same is harmless beyond a reasonable doubt. Id.; see State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). The harmless error examination asks "`whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Terrance Antonio Cecil, ___ S.W.3d at ___, slip op. at 13 (quoting Rodriguez, 254 S.W.3d at 371). The specific "touchstone" of this inquiry relative to White error is "whether a rational trier of fact could interpret the proof at trial in different ways." Terrance Antonio Cecil, ___ S.W.3d at ___, slip op. at 13 (citing White, 362 S.W.3d at 579). Per White, the "key element—the substantial interference with the victim's liberty—[requires] a finding by the jury that the victim's removal or confinement was not essentially incidental to the accompanying felony offense." White, 362 S.W.3d at 580.

As to the five kidnappings vis-a-vis the aggravated robberies, the five kidnapping victims were detained at gunpoint during the time the intruders ransacked the house looking for items to steal. Essentially, the kidnappings and the robberies were not separated meaningfully by time. Because of the arrival of the police, the kidnappings were not prolonged beyond the robbery-in-progress. Other than an injury to Mr. Currie, the intruders inflicted no injuries upon the victims. Although the arrival of the police may have prevented the intruders from binding the victims with duct tape, the victims were not bound, and I see this fact as significant. Also, one victim was able to contact the police. These circumstances suggest that a rational jury could interpret the evidence in different ways. As to whether the detention or confinement of the victims was essentially incidental to the charged robberies and not significant enough to stand alone, this error was not harmless.

Plain error analysis encompasses consideration of the following factors:

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established before this court will recognize an error as plain. Smith, 24 S.W.3d at 283. "An error would have to [be] especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error." State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

Accordingly, in the present case, the elements of noticing plain error point to the presence of such error. The record in this case establishes the facts as described above and shows that the White instruction was not given. Although plain error review requires that "a clear and unequivocal rule of law must have been breached," and although the White instruction was unknown and unforeseen at the time of the defendant's trial, our supreme court has told us (1) clearly and unequivocally how the jury should be instructed and (2) that the requirement of imparting the instruction applies to a case such as the defendant's. Additionally, the rule is one of constitutional dimension, implicating a substantial right of the defendant that was adversely affected. I see no indication that the accused waived the issue for tactical reasons. Given that the guarantee of due process is at the heart of the jury instruction devised in White, I believe that "consideration of the error is `necessary to do substantial justice.'" See Smith, 24 S.W.3d at 282.

For these reasons, I would reverse the especially aggravated kidnapping convictions in counts one through five and remand those counts to the trial court for a new trial. As noted above, this determination is driven by the case law that mandates that when a due process violation is adjudicated, the remedy is to reverse the kidnapping conviction (or convictions) and not the conviction of the accompanying felony.1

I trust — or at least hope — that the travail manifest in the foregoing pages shows that more must be done to tame the due process beast unleashed by Anthony. I support (1) taking supernumerary victims out of the due process rule and (2) the appellate courts' having the option to reverse the accompanying felony when a due process error is found.