State of Tennessee v. Robert Fusco

Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of especially aggravated kidnapping, which were merged, and one count of each of the following offenses: conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. See Tenn. Code Ann.§§ 39-12-101,-12-103,-13-202,-13-304,-13-305, -13-402, -13-403, & -14-403. The trial court determined that the Defendant was a Range II, multiple offender for sentencing purposes and imposed an effective 65-year sentence. In this appeal as of right, the Defendant raises the following issues: (1) whether the trial court erred in failing to charge the lesser-included offense of attempted especially aggravated kidnapping; (2) whether the assistant district attorney general committed prosecutorial misconduct during closing argument; (3) whether the evidence is insufficient to support his convictions for especiallyaggravated kidnapping,conspiracyto commit aggravated robbery,and conspiracy to commitaggravated kidnapping;(4) whether his dual convictions for especiallyaggravated kidnapping and attempted aggravated robbery violate due process concerns because the restraint of the victim was not beyond that necessary to complete the robbery; (5) whether the trial court erred bynot merging his two conspiracy convictions because the offenses were the object of the same agreement; (6) whether the trial court erred by using certain out-ofstate convictions to enhance his sentencing range; and (7) whether his sentence was excessive.Following our review, we remand this case to the Montgomery County Circuit Court for the entry of corrected judgments to reflect merger of the Defendant’s conspiracy convictions. In all other respects, we conclude that there is no reversible error in the judgments of the trial court and affirm.