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State v. Peek5/3/2000
n addition to those necessary to establish the appropriate range;
(6) The personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great;
(7) The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement.
Tenn. Code Ann. § 40-35-114.
No enhancement factor may be used to increase a sentence within the appropriate range unless the factor is established by the evidence. See State v. Melvin, 913 S.W.2d 195, 203 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995); Tenn. Code Ann. § 40-35-210(g) (1997). Weight to be given each sentencing factor is left to the discretion of the sentencing judge. See State v. Gray, 960 S.W.2d 598, 610 (Tenn. Crim. App.), perm. app. denied (Tenn. 1997). When the court finds enhancement factors but no mitigating factors, as in this case, then the court may set the sentence above the minimum in that range but still within the range. See Tenn. Code Ann. § 40-35-210 (1997).
Factor (1)
Tennessee Code Annotated § 40-35-114(1) allows for enhancement of a sentence when " he defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range." In this case, the defendant was determined to be a Range I offender. The trial court found that he had a previous history which included an arrest in 1987 for burglary with a conviction of attempt to commit a felony larceny. The defendant's record of criminal behavior spans some fifteen years. See e.g. Gray, 960 S.W.2d at 611 (finding that criminal behavior of defendant spanning twenty years justified application of factor (1)). Enhancement factor (1) was properly applied to this defendant.
Factor (6)
Tennessee Code Annotated § 40-35-114(6) provides for enhancement if the personal injuries to the victim or property taken were great. The property taken was not great in any of the robberies. None of the victims suffered serious physical injury . Nevertheless, personal injury in enhancement factor (6) is "broad enough to embrace the emotional injuries and psychological scarring sustained by the victim of a sexual offense. See Melvin, 913 S.W.2d at 203. Before this enhancement factor may be used, the State must establish "that the emotional injuries and psychological scarring are `particularly great.'" Id. This court has found enhancement factor (6) applicable in rape cases in which victims suffered "depression, anxiety, and other emotional problems in addition to their physical injuries." State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995) (citing State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994)). The Williams court held that where a rape victim experienced periods of depression, suffered from low self-esteem, was often unable to work, and had difficulty maintaining personal relationships, factor (6) had been appropriately applied by the trial court. See id.
T.P. testified at the sentencing hearing that she lives with a constant kind of fear that is so strong she is afraid to even let her dog outside after dark for fear of having to open her door again. She testified about her anxiety over little sounds; she never sits down to do paperwork now without checking all windows and doors to make certain they are locked. She testified that her two sons have terrible nightmares that someone will break in and hurt their mother and knowing that they have this memory has caused her great sorrow. K.S. testified at the sentencing hearing about the sick kind of feeling she has remembering the anal rape she endured. She testified that wearing winter clo
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