State of Tennessee v. Curtis Keller

After a trial by jury the defendant, Curtis Keller, was convicted of two counts of especially aggravated kidnapping (against Tamika Jones and M.B.), Class A felonies; one count of attempted especially aggravated robbery (against Andrew Morrow), a Class B felony; one count of especially aggravated burglary, a Class B felony; three counts of aggravated assault (against Andrew Morrow, Tamika Jones, and M.B.), Class C felonies; and one count of employing a firearm during the commission of a “dangerous felony,” a Class C felony. The trial court sentenced the defendant to a total effective sentence of two hundred and forty years. On appeal, the defendant claims that: (1) the jury instructions concerning the especially aggravated kidnapping charges were inadequate in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous, and (3) his eight separate convictions violate the Double Jeopardy Clause because his crime spree “was one continuous act.” After careful review, we conclude that: (1) the jury instructions were inadequate in light of White, but harmless beyond a reasonable doubt, and (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous because they did not foreclose the possibility that the jury used one of the especially aggravated kidnappings—which, as stated in the indictment, were based on the defendant’s use of a firearm—as predicate felonies. As the State concedes, the statute prohibiting an individual’s use of a firearm during the commission of a “dangerous felony” expressly forbids charging a defendant for a violation of that statute “if possessing or employing a firearm is an essential element of the underlying dangerous felony as charged.” T.C.A. § 39-17-1324(c). Accordingly, the defendant’s conviction for employing a firearm during the commission of a dangerous felony is reversed. In addition, it was plain error for the defendant to be convicted of both especially aggravated burglary and attempted especially aggravated robbery based on the same act of causing serious bodily injury to victim Andrew Morrow. The defendant’s conviction for especially aggravated burglary is reduced to a conviction of aggravated burglary, and a new sentence of fifteen years is imposed on this count. With respect to his other claims, the defendant has failed to establish any entitlement to relief, and his convictions of two counts of especially aggravated kidnapping, one count of attempted especially aggravated robbery, and three counts of aggravated assault are affirmed.