GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
The defendant was convicted of false imprisonment and assault. The trial court imposed concurrent sentences of six months, with all but sixty days suspended to probation. More than one year after the trial but while the defendant's case was pending in the Court of Criminal Appeals, this Court filed its opinion in State v. White, 362 S.W.3d 559 (Tenn.2012), which requires, on grounds of due process, trial courts to provide a more specific instruction on kidnapping charges as to whether the removal or confinement of a victim is essentially incidental to any accompanying offense. The Court of Criminal Appeals held in this instance that, although the White instruction was not provided at trial, the jury was correctly instructed and the evidence was sufficient to support both convictions. We granted review to determine whether the absence of the White instruction warrants a new trial. Because the omission of the instruction required by White cannot be classified as harmless beyond a reasonable doubt, the conviction for false imprisonment is reversed and the cause remanded for a new trial.
At approximately 3:30 a.m. on June 26, 2010, police officers in Maury County, Tennessee, responded to an "open-line 911 call"
At the trial on February 10, 2011, Officer Keith Fall of the Columbia Police Department testified that he arrived at the Defendant's trailer at 3:38 a.m. Although he was not the first officer on the scene, no one else had entered the trailer before his arrival. According to Officer Fall, he knocked on the door of the trailer and waited for approximately ten minutes before the Defendant answered. When Officer Fall asked the Defendant if anyone else was inside, he answered that his "old lady" was also there but that everything was "okay." The Defendant then allowed Officer Fall to enter his residence in order to speak with the victim, and, when Officer Fall found the victim lying on the bed in a bedroom at the back of the trailer, the victim motioned to Officer Fall in a manner that he interpreted as a request to speak privately. He escorted the victim into the living room while the Defendant remained in the bedroom with other officers. After speaking with the victim and observing slight discoloration and swelling around her eye, and bruises on the right side of her temple and on her right shoulder, Officer Fall called an emergency medical services unit to transport the victim to Maury Regional Hospital and placed the Defendant under arrest for domestic assault and false imprisonment.
The victim testified that she had been dating the Defendant off and on for seven months at the time of their altercation. She explained that they had been engaged to marry but had broken off and then renewed the engagement several times throughout their "complicated relationship." The victim recalled that on the day prior to his arrest, she and the Defendant had exchanged angry text messages. After leaving her place of work shortly after 10:00 p.m., she first drove to her home to shower. Afterward, she traveled to the Defendant's residence in order to confront him about his infidelity, to return her set of engagement rings, and to end their relationship. The victim estimated that she arrived at the Defendant's trailer around midnight and recalled that Shaun Walls, a friend of the Defendant, answered the door. According to the victim, she walked into the Defendant's bedroom and engaged him in a conversation that began cordially but escalated into an argument when the Defendant became rude. She recalled that they quarreled for "quite some time," and that when she eventually tried to leave the trailer, the Defendant said, "[Y]ou're not going anywhere." She stated that the Defendant then "came after" her, "grabbed" her, and threw her on the bed, where they began hitting one another. After an exchange of multiple blows, she was able to "kick[] [the Defendant] hard enough to get him off of [her]." When she again attempted to leave, however, the Defendant "grabbed" her by the hair and threw her to the floor. The victim recounted that the Defendant "slid"
The victim further acknowledged that she had ripped the shirt the Defendant had been wearing during the altercation, and that when he went to the laundry room to put on another shirt, she used her cell phone to call 911, turning off the backlight and volume so the Defendant could neither see the phone nor hear the dispatcher's voice. She testified that she "didn't want [the Defendant] to get even more mad that [she] had called the police" and further explained that she stayed in bed with the Defendant while they both "calmed down." The victim stated that approximately fifteen minutes passed before the police arrived. She recalled that when they initially heard the knock at the door they speculated that it may have been a neighbor. When there was no response to the knocks on the door, however, the police began "banging on the windows" and said, "[T]his is the police, open up the door." She testified that the Defendant "wouldn't let [her] get up and answer the door" and that "a good ten minutes" passed before he finally responded. After being separated from the Defendant, the victim provided a statement to the police, who examined her injuries. As she was taken to the hospital by ambulance, she learned that the Defendant had been taken into police custody. The victim underwent several tests at the hospital, including a CAT scan and an X-ray. She testified that she had a large knot on her right shoulder and that her right temple, ear, and eye were swollen from being "hit about five times" on the head. She also developed bruising and swelling in her upper neck, throat, jaw, and chin areas, and, after the incident, she returned to the hospital on two different occasions for treatment of "major headaches," blurred vision, and other symptoms in her right eye.
The victim estimated that the actual physical altercation with the Defendant lasted about an hour and a half. She did not recall inflicting any wounds. The victim admitted that she contacted the Defendant several months after the incident, claiming that she was seeking financial assistance rather than attempting to rekindle their relationship. She explained that as a single mother of three children with no family or friends in the area, she had relied on the Defendant for financial assistance in the past.
On cross-examination, the victim acknowledged several inconsistencies between her testimony on direct examination and the statement she had provided to the police on the night of the altercation. She admitted that her testimony was equivocal as to whether she could have left the Defendant's residence before, during, or immediately after the altercation, and recalled that she had blacked out during the altercation, not because of a blow by the Defendant, but "because [she] was in a rage." She could not, therefore, recall "who hit first" and was uncertain about some of the other details. When asked whether the Defendant had a bloody lip, she responded, "Well, me punching him several times, I'm sure ... he got bloody somewhere." She conceded that when she was younger, she had been given the nickname "Gangstaboo" because of her involvement in "a lot of fighting situations," during which she had a tendency to black out because of her "anger state of mind." The victim also acknowledged that three days after the altercation, she sent a text message to the Defendant stating, "If I get in
Shutane "Shaun" Walls, who had been "good friends" with the Defendant for fifteen or sixteen years, testified in his defense. He recalled that he arrived at the Defendant's trailer between 12:00 and 12:30 a.m. on June 26, 2010, and that the victim arrived about an hour or an hour and a half later. According to Walls, when he answered the door for the victim, "she just went straight back into [the Defendant's] room." Walls recalled that the victim remained in the bedroom with the Defendant for some fifteen or twenty minutes, left the trailer, and then returned some five minutes later. After watching television for another fifteen minutes, Walls retired to a second bedroom located on the opposite end of the trailer and fell asleep. He estimated that an hour had passed before he discovered that the police were in the living room. He claimed that upon seeing the police, he went back to sleep because he "didn't want no part of it." Although Walls admitted that he was a "pretty sound sleeper," he testified that he did not hear any argument, screaming, yelling, or fighting between the victim and the Defendant.
Rachel Thomas, who was dating Walls in 2010, also testified for the defense. She and the victim had become friends while working together at Sun Tan City, but they had not been in close contact since the incident. Although she was in Seattle at the time of the altercation, Thomas recalled that the victim had sent her a text message detailing her version of the events. Thomas acknowledged that, after the incident, she saw the victim's bruises on her right shoulder, cheek, and eye, and she also testified that she was present when the victim and the Defendant went into his bedroom together shortly after Thanksgiving in 2010. Donna Howell testified that she had been friends with the victim at the time of the incident and had previously lived with her. Although called as a witness for the defense, on cross-examination, Howell identified several photographs depicting the victim's injuries, and she recalled observing the victim's injuries on the day following the altercation.
At the conclusion of the proof, the jury returned verdicts of guilt for assault and false imprisonment.
In the order granting this appeal, we stated the issue as "[w]hether, in analyzing the sufficiency of the evidence in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), the Court of Criminal Appeals erred in holding that the jury was correctly instructed and that the [Defendant's] due process rights were not violated." While the Defendant argues error and further contends that if the instruction set out in White had been given the jury would not have convicted him of false imprisonment, the State concedes that the Court of Criminal Appeals erred by holding that the trial court correctly instructed the jury on the false imprisonment charge. The State argues, however, that the instructional error was harmless beyond a reasonable doubt. In order to appropriately consider this issue, we have reviewed the history of this area of the law, our holding in White, and several opinions by the Court of Criminal Appeals that have addressed the White instruction, particularly those that conducted a harmless error analysis.
False imprisonment, which has been described as the definitional "building block" of our kidnapping offenses, is committed when a person "knowingly removes or confines another unlawfully so as to interfere substantially with the other's liberty." Tenn.Code Ann. § 39-13-302(a); see Melanie A. Prince, Comment, Two Crimes for the Price of One: The Problem with Kidnapping Statutes in Tennessee and Beyond, 76 Tenn. L.Rev. 789, 791 (2009); see also Tenn.Code Ann. § 39-13-302 sentencing commission cmts. (describing false imprisonment as "the basic offense for the kidnapping statutes"). "[F]alse imprisonment is meant to `broadly
In State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), the Court considered, as issues of first impression, "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," and "what legal standard should be applied in deciding whether a separate conviction for kidnapping can be sustained." Id. at 300.
Id. The Court emphasized that "[t]he test is not whether the detention was an `integral part or essential element' of the [accompanying offense], but whether it was `essentially incidental' to that offense." Id. at 307.
Six years after the Anthony ruling, in State v. Dixon, this Court modified the "essentially incidental" due process analysis. 957 S.W.2d 532 (Tenn.1997). In Dixon, the Court properly observed that "Anthony and its progeny ... are not meant to provide the rapist a free kidnapping merely because he also committed rape," and described the "essentially incidental" standard 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." Id. at 534-35. The Court further stated 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. Accordingly, the two-part Dixon test addressed (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. State v. Richardson, 251 S.W.3d 438, 442-43 (Tenn.2008). Under the first prong of the Dixon test, the distance of the victim's movement and the duration or place of the victim's confinement were identified as factors to be considered when determining if the movement or confinement was beyond that necessary to consummate the accompanying crime. Id. at 443. The second prong was to be addressed only if the threshold inquiry in the first prong was satisfied. Id. at 442. When each of the criteria was met, a separate kidnapping conviction was permitted to stand. In Richardson, we explicitly recognized the Dixon two-part test as a replacement for the Anthony "essentially incidental" analysis. Id. at 443.
Just last year, in State v. White, we revisited our rulings in this area of the law and determined that the separate due process test articulated first in Anthony, and subsequently refined in Dixon and its progeny, was not the most workable manner of addressing a kidnapping conviction that accompanied a separate offense. White, 362 S.W.3d at 578. After overruling Anthony and the entire line of cases that included a separate due process analysis in appellate review,
Id. We also cautioned, however, that our decision "should not be construed as creating a new standard for kidnapping. Instead, we ... merely provid[ed a] definition for the element of the offense requiring that the removal or confinement constitute a substantial interference with the victim's liberty." Id. We then provided an appropriate instruction as to the "substantial interference" element, which was subsequently adopted by the Tennessee Pattern Jury Instruction Committee:
7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 8.01-.03, 8.05 (footnote omitted) (citing White, 362 S.W.3d at 578-81). In White, we concluded that even though the jury instructions by the trial court tracked the language of the relevant kidnapping statute, they were deficient because "they did not define the key element — the substantial interference with the victim's liberty — as requiring a finding by the jury
In the seventeen months since our ruling in White, the Court of Criminal Appeals has grappled with a variety of kidnapping cases that were in the "appellate pipeline" at the time the opinion in White was filed. Initially, our decision did not "creat[e] a new standard for kidnapping," and, in consequence, "d[id] not articulate a new rule of constitutional law or require retroactive application." Id. at 578. There was a question as to whether this Court intended White to be applied to any cases that were pending direct appeal or to be limited to those trials held after the filing of the White opinion on March 9, 2012. As the Court of Criminal Appeals properly observed in State v. Osby, our statement in White was not intended to preclude consideration of the newly required instruction in cases already in the various stages of the appellate process. No. W2012-00408-CCA-R3-CD, 2012 WL 5381371, at *7 (Tenn.Crim.App. Nov. 2, 2012) ("We note ... that the [supreme] court has remanded a number of cases for reconsideration in light of its ruling in White, suggesting that it intended ... application of the ruling to those already-tried cases in the appellate pipeline, that is[,] pending direct appeal[] at the time it was filed[,] and that its use of the word `retroactive' was intended to prevent use of the ruling for collateral attack." (citation omitted)), perm. app. denied (Tenn. Mar. 5, 2013). Because this case was on direct appeal at the time White was decided, the issue has been preserved, and the Defendant is entitled to the benefit of our ruling. See Lease v. Tipton, 722 S.W.2d 379, 379 (Tenn. 1986) (per curiam) (adopting the "pipeline approach," which applies a new legal principle "to the litigants at bar, to all actions pending on the date the decision announcing the change becomes final[,] and to all causes of action arising thereafter").
Relying upon the separate due process analysis articulated in Anthony, the Defendant argued to the Court of Criminal Appeals that the false imprisonment was "essentially incidental" to the assault, and, therefore, the evidence was insufficient to support both convictions. Cecil, 2012 WL 2674521, at *5 & n. 2. The Court of Criminal Appeals found this argument to be without merit because Anthony had been overruled by White, and made the following further observation:
Id. at *6. The Court of Criminal Appeals found no error at all, concluding that "[t]he jury was correctly instructed." Id. at *7.
Although some panels of the Court of Criminal Appeals have similarly administered a simple sufficiency of the evidence
Although the Court of Criminal Appeals found that the jury was correctly instructed in this case, we must disagree. The State has properly conceded this point. The same instructional error that existed in White is present in this case — the jury was not adequately charged on the question of whether the victim's removal or confinement, as an element of false imprisonment, was essentially incidental to the assault.
Of importance, "[t]he failure to instruct the jury on a material element of an offense is a constitutional error subject to harmless error analysis." State v. Faulkner, 154 S.W.3d 48, 60 (Tenn.2005) (emphasis added) (citing State v. Ducker, 27 S.W.3d 889, 899 (Tenn.2000)); see also State v. Garrison, 40 S.W.3d 426, 434 (Tenn.2000) (holding that "harmless error analysis is appropriate when evaluating omissions of an essential element of an offense from the jury charge"). In consequence, the lack of the instruction set out in White, while entirely understandable because the trial predated our ruling, qualified as constitutional error. The Court of Criminal Appeals should have addressed whether the error was harmless beyond a reasonable doubt.
In a number of cases, the Court of Criminal Appeals, having addressed the omission of the White instruction, conducted proper analyses and remanded for new trials. See, e.g., State v. Davis, No. M2011-02075-CCA-R3-CD, 2012 WL 5947439, at *6 (Tenn.Crim.App. Nov. 16, 2012) (reversing conviction and remanding for new trial because the evidence was subject to differing interpretations and the jury was not instructed on the definition of "substantial interference"); State v. Raymer, No. M2011-00995-CCA-R3-CD, 2012 WL 4841544, at *7 (Tenn.Crim.App. Oct. 10, 2012) (reversing conviction and remanding for new trial because the evidence was subject to differing interpretations and the proper jury instruction could have changed the outcome of the trial); State v. Powell, No. E2011-00155-CCA-R3-CD, 2012 WL 1655279, at *9 (Tenn. Crim.App. May 10, 2012) (same).
The circumstances here are not so certain. The proof in this case demonstrated that sometime after midnight on June 26, 2010, the victim drove to the Defendant's residence and walked directly into his bedroom to confront him about his infidelity and to break off their relationship. At some point she left the residence, but chose to return. An argument ensued and the two exchanged multiple blows over the course of one to two hours. The victim acknowledged that she "blacked out" when she got angry, and she could not recall "who hit first." She maintained that at some point the Defendant threw her onto the bed, but she also admitted that she threw punches and bloodied the Defendant's lip. When the Defendant left the bedroom to replace his shirt that was torn during the struggle, the victim was able to use her cell phone to dial 911 and, without making a complaint, alert the police dispatcher of her location. Eventually, the Defendant and the victim both "calmed down" and the physical altercation ceased. According to the victim, she lay in bed with the Defendant for some fifteen minutes and planned to leave after he fell asleep, but when the police arrived at the residence, the Defendant "wouldn't let [her] get up and answer the door." She acknowledged that they initially believed the knock at the door may have come from a neighbor, and that the Defendant answered the door after approximately ten minutes. The victim estimated that she attempted to leave three times during the course of the altercation.
A harmless error analysis is necessarily imprecise, requiring that appellate courts assess the cold, written record rather than seeing and hearing the witnesses firsthand. Because of these limitations, we cannot say that the omission of the White instruction qualified as harmless beyond a reasonable doubt. The victim offered conflicting testimony as to who initiated the physical altercation, whether she inflicted wounds upon the Defendant, and when she may have been able to leave the Defendant's residence. The trial judge expressed doubts about the propriety of a separate conviction for false imprisonment, making the following observations at the sentencing hearing:
(Emphasis added.) Similarly, when discussing his role as the thirteenth juror at the hearing on the motion for a new trial, the trial judge expressed doubt as to whether the confinement was substantial enough to support a separate conviction for false imprisonment:
(Emphasis added.)
The record supports this assessment. On one hand, the evidence could support a finding that the Defendant intended only to assault the victim, and that any removal or confinement of the victim — such as dragging her into the bathroom — was in furtherance of that goal, making it essentially incidental to the assault. On the other hand, the evidence could support a finding that the removal or confinement of the victim was greater than that necessary to accomplish the assault, particularly in light of the victim's implication that the Defendant may have prevented her from answering the door when the police arrived. From our review of the record, it is impossible to determine beyond a reasonable doubt whether there was a removal or confinement of the victim that was not essentially incidental to the assault. We cannot, therefore, conclusively say that a properly instructed jury would have found that the Defendant's actions toward the victim constituted a substantial interference with her liberty. See White, 362 S.W.3d at 579 ("In our view, this proof could be interpreted in different ways and, therefore, the determination of whether the removal or confinement of [the victim] constituted a substantial interference with her liberty was a question of fact for the jury to resolve.").
The Court of Criminal Appeals erred by conducting a sufficiency of the
Osby, 2012 WL 5381371, at *8 n. 3 (emphasis added) (citation omitted).
