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State v. Blackstock8/27/2001
d forced her to participate in four separate sexual acts while holding a knife to her side:"
While there is no doubt that the actions of the [defendant] were cruel, most of the facts relied upon in applying this enhancement factor to the appellant are the very facts which made these crimes aggravated under the law. Id.
In the case at issue, the trial court applied factor (5) based upon a finding that the defendant treated the victim with exceptional cruelty "by throwing her in the trunk, by throwing her in the bushes." The record establishes that the defendant initially placed the victim in the passenger compartment of his vehicle. Because of her screaming, however, he forced her into the trunk. When she continued to scream, he played his radio loudly so as to drown out her voice. During the rape, the victim broke free. The defendant became fearful and drove away. Abandoned in the street, the victim tried to cover her naked body with her arms. The defendant admitted to striking the victim. Her face was swollen and she had several bruises and abrasions. Photographs demonstrated that the victim sustained a black eye and a split lip.
There was extensive bruising and redness. In our view, the record establishes that the defendant treated the victim with cruelty "over and above" that necessary to sustain the conviction of especially aggravated kidnapping. Moreover, enhancement factor (5) was clearly applicable to each of the sentences for rape of a child.
Next, the defendant contends that the trial court erred by applying enhancement factor (6), that the personal injuries inflicted upon the victim were particularly great. Because he has failed, however, to make any argument or cite any authority in support of his position, the issue is waived. See Tenn. Ct. Crim. App. 10(b). Furthermore, our supreme court recently affirmed that the term "personal injury " contained in enhancement factor (6) embraces psychological or emotional injuries in addition to physical injuries. See Arnett, ___ S.W.3d at ___, slip op. at 9; see also State v. Melvin, 913 S.W.2d 195, 203 (Tenn. Crim. App. 1995). Before this factor may be applied, though, the proof must demonstrate that the emotional injuries and psychological scarring were "particularly great." Melvin, 913 S.W.2d at 203. Expert proof is not necessary so long as the record includes objective examples of the victim's mental injuries. Arnett, ___ S.W.3d at ___, slip op. at 10. Here, Linda Elligan diagnosed the victim with post-traumatic stress disorder as a result of the attack. In our view, her testimony established that the victim's psychological injuries were "particularly great."
The defendant next asserts that the trial court erred by applying enhancement factor (7), that the offense involved a victim and was committed to gratify a desire for pleasure or excitement. Because there is no evidence in the record to support its application, this court must agree. Our supreme court has held that enhancement factor (7) may be applied to rape convictions because rape is frequently committed for reasons other than sexual pleasure or excitement. See Arnett, ___ S.W.3d at ___, slip op. at 10; State v. Kissinger, 922 S.W.2d 482, 490 (Tenn. 1996); State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The critical inquiry in determining the applicability of this factor "is the determination of the defendant's motive for committing the offense." Arnett, ___ S.W.3d at ___, slip op. at 10 (emphasis in original). Further, " he motive [for commission of the offense] need not be singular for the factor to apply, so long as defendant is motivated by desire for pleasure or excitement." Kissinger, 922 S.W.2d at 490.
In applying enhan
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