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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
June 19, 2012 Session STATE OF TENNESSEE v. GLENN LYDELL McCRAY
Appeal from the Criminal Court for Davidson County No. 2010-C-2362 Monte Watkins, Judge

No. M2011-02411-CCA-R3-CD - Filed May 2, 2013

T HOMAS T. W OODALL, J., concurring in part and dissenting in part. I respectfully dissent from the majority opinion insofar as it concludes that aggravated assault involves some form of confinement in this case. In State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), the supreme court held, Under the standard we adopt today, trial courts have the obligation to provide clear guidance to the jury with regard to the statutory language. Specifically, trial courts must ensure that juries return kidnapping convictions only in those instances in which the victim's removal or confinement exceeds that which is necessary to accomplish the accompanying felony. Id. (emphasis added). In order for the White jury instructions to be applicable, the accompanying felony (in this case aggravated assault) must necessarily involve some removal or confinement of the victim during the commission the accompanying felony. White used the examples of robbery and rape as "accompanying" felonies, without suggesting that the jury instructions were "inapplicable to other felonies," as noted in the majority opinion. After a careful review of the elements of aggravated assault as charged in this case, I fail to see that some removal or confinement of the victim, such as is implicit in robbery and rape, exists in aggravated assault. In other words, and in stating the obvious, the element of sexual penetration in a rape necessitates some confinement. See Tenn. Code Ann.

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