T.P.I. -- CRIM. 8.02

AGGRAVATED KIDNAPPING

            Any person who commits an aggravated kidnapping is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

[Part A:

            (1)  that the defendant removed or confined another unlawfully

                   so as to interfere substantially with the other's liberty;

and

            (2)  that the defendant acted to facilitate the commission of any felony or

                   flight thereafter;

and

            (3)  that the felony was ________, which is defined as _______________            __________________________________;

and

            (4)  that the defendant acted knowingly.]

or

[Part B:

            (1)  that the defendant removed or confined another unlawfully

                   so as to interfere substantially with the other's liberty;

and

            (2)  that the defendant acted to interfere with the performance of a

                   governmental or political function;

and

            (3)  that the defendant acted knowingly.]

or

[Part C:

            (1)  that the defendant knowingly removed or confined another unlawfully

                   so as to interfere substantially with the other's liberty;

and

            (2)  that the defendant acted with the intent to inflict serious bodily injury

                   on or to terrorize the alleged victim or another.]

or

[Part D:

            (1)  that the defendant removed or confined another unlawfully

                   so as to interfere substantially with the other's liberty;

 and

            (2)  that the alleged victim suffered bodily injury;

and

            (3)  that the defendant acted knowingly.]

or

[Part E:

            (1)  that the defendant removed or confined another unlawfully

                   so as to interfere substantially with the other's liberty;

and

            (2)  that the defendant possessed or threatened the use of a deadly

                   weapon;

and

            (3)  that the defendant acted knowingly.]

            A removal or confinement is "unlawful" if it is accomplished by force, threat or fraud, or, in the case of a person who is under the age of thirteen (13) or incompetent, if it is accomplished without the consent of a parent, guardian or other person responsible for the general supervision of the minor's or incompetent's welfare.²

            ["Incompetent" means a person who is in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, advanced age, developmental disability, or other mental or physical incapacity.]³

            ["Deadly weapon" means a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.]⁴

            ["Force" means compulsion by the use of physical power or violence.]⁵

            ["Fraud” is defined as the term is used in ordinary conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.]⁶

            ["Serious bodily injury" means bodily injury which involves a substantial risk of death; protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement; or protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.]⁷

            ["Bodily injury" includes a cut, abrasion, bruise, burn, or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty.]⁸

            "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.⁹

            The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.¹⁰

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.¹¹

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-304(a).

  2.  Tenn. Code Ann. § 39-13-301(2).

  3.  The term "incompetent" is not defined in Title 39.  The Committee derived    

       the definition from Tenn. Code Ann. § 34-4-102(2).

  4.  Tenn. Code Ann. § 39-11-106(a)(5). 

  5.  Tenn. Code Ann. § 39-11-106(a)(12).

  6.  Tenn. Code. Ann. § 39-11-106(a)(13).

  7.  Tenn. Code Ann. § 39-11-106(a)(33).  Some trial judges are of the opinion

       that the definition of "bodily injury", Tenn. Code Ann. § 39-11-106(a)(2),

       should be given in connection with the definition of "serious bodily injury".

  8.  Tenn. Code Ann. § 39-11-106(a)(2).

  9.  Tenn. Code Ann. § 39-11-106(a)(20).

10. Tenn. Code Ann. § 39-11-301(a)(2).

11. Tenn. Code Ann. § 39-11-106(a)(18).

COMMENTS

            1.  Aggravated kidnapping is a Class B felony.  Tenn. Code Ann. § 39-13-304(b)(1).

            2.  It is not a defense to the offense of aggravated kidnapping that the offender voluntarily releases the victim alive or voluntarily provides information leading to the victim's safe release; however, such actions shall be considered by the Court as a mitigating factor at the time of the sentencing.  Tenn. Code Ann. § 39-13-304(b)(2).

            3.  If Part A is applicable and flight is fairly raised by the proof, the trial judge should consider including the instruction on flight, T.P.I.--CRIM. 42.18 (Flight), in the jury charge.

            4.  Note that the elements of Part E of aggravated kidnapping and Part A of especially aggravated kidnapping appear to be substantially similar.