IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 28, 2005 STATE OF TENNESSEE v. DONALD LUKE SEIBER, ALIAS Direct Appeal from the Criminal Court for Knox County No. 73049 Ray L. Jenkins, Judge

No. E2004-01794-CCA-R3-CD - Filed October 25, 2005

JAMES CURWOOD WITT , JR., J., concurring.

Respectfully, I find I cannot fully concur in the opinion because, based upon the absence of a contemporaneous objection, it treats as waived the issue of the trial court’s “reading the aggravated kidnapping as a lesser-included offense out of order during the charge to the jury.” The instructional problem alleged is one of instructional error, not instructional omission. In the case of the former, no contemporaneous objection is required, unlike when an instruction is omitted. See, e.g., State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411, slip op. at 8-9 (Tenn. Crim. App., Knoxville, Dec. 3, 1999).

Even though I see no requirement that appellate review of this issue is occluded based upon a lack of contemporaneous objection, I nevertheless would not reverse the conviction of aggravated kidnapping. In my view the arrangement of the jury instructions, if error, was harmless beyond a reasonable doubt.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE