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State v. Blackstock8/27/2001
at or below the midpoint. Id. A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the mitigating factors present. Id.
The defendant does not contest the application of enhancement factor (1), that he has a history of criminal convictions or behavior beyond that necessary to establish the appropriate range. Instead, he argues that the trial court erred by applying Tennessee Code Annotated § 40-35-114(4), that the victim was particularly vulnerable because of her age. Because the state did not present specific proof of the victim's vulnerability or show that it was a factor in the commission of the crime, as is required, this court must agree. The vulnerability enhancement factor relates more to the natural physical and mental limitations of the victim than to age. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The state bears the burden of showing that specific limitations made a victim particularly vulnerable or that the vulnerability was a factor in the commission of the crime. Id. Here, there was only a showing that the victim was young. When the offense is rape of a child or kidnapping that is especially aggravated due to the victim's age, that the victim is young is an element of the offense. Because that factor has been taken into account by the legislature in establishing the range of possible sentences for those offenses, courts may not use that factor to enhance. Moreover, proof age, standing alone, is insufficient to establish particular vulnerability. See State v. Collins, 986 S.W.2d 13 (Tenn. Crim. App. 1998). Thus, the trial court erred by the application of Tennessee Code Annotated § 40-35-114(4).
The defendant next argues that the trial court misapplied enhancement factor (5), that he treated the victim with exceptional cruelty during the commission of the offense. Recently, in State v. Arnett, our supreme court held that before enhancement factor (5) may be applied, the facts must support a "finding of cruelty under the statute 'over and above' what is required to sustain a conviction for offense." ___ S.W.3d ___, No. E1998-00051-SC-R11-CD, slip op. at 7 (Tenn. 2001); see also State v. Poole, 945 S.W.2d at 98 (holding that facts must "support a finding of 'exceptional cruelty' that 'demonstrates a culpability distinct from and appreciably greater than that incident to' the crime") (quoting State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994)); State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995) (holding that enhancement factor (5) "requires a finding of cruelty over and above that inherently attendant to the crime"). The trial court "'should state what actions of the defendant, apart from the elements of the offense, constituted "exceptional cruelty.'" Poole, 945 S.W.2d at 98 (quoting State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995)). This rule is intended to "avoid enhancing the length of sentence[ ] based on factors the egislature took into consideration when establishing the range of punishment for the offense." Id. Exceptional cruelty is "usually found in cases of abuse or torture." State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995). In Manning v. State, the defendant pled guilty to four counts of aggravated rape, armed robbery, and aggravated kidnapping. 883 S.W.2d 635, 639 (Tenn. Crim. App. 1994). While noting that other enhancement factors had been correctly applied, this court ruled that application of the exceptional cruelty enhancement factor was erroneous where the defendant had "abducted the victim in broad daylight an
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