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State v. Blackstock8/27/2001
cement factor (7), the trial court ruled as follows:
I find number 7, because the appellate courts have said that rape can be committed for reasons other than to gratify a defendant's desire for pleasure or excitement, so that is not necessarily an element included in that offense . . . .
The trial court failed to elaborate further or to articulate the specific facts supporting application of the factor. After a thorough review of the record, this court must conclude that the record does not include specific evidence, as is required, that the defendant was motivated to commit the offenses by a desire for pleasure or excitement. The state argues that Dr. David Solovey's cross-examination testimony describing the defendant as "feeling these internal impulses, and . . . crazy desires" demonstrates that the crimes were committed for pleasure or excitement. Notably, however, Dr. Solovey's testimony is devoid of any indication that the "impulses" and "desires" were related to pleasure or excitement. To the contrary, Dr. Solovey testified that the defendant suffered from a previous head injury and was a victim of prior sexual abuse. It was his opinion that the defendant suffered from depression, traumatic stress disorder, and schizotypal personality disorder. In our view, factor (7) cannot be used to enhance the sentences.
Next, the defendant claims that enhancement factor (10), that he had no hesitation about committing a crime when the risk to human life was high, should not have been applied because it is an element of especially aggravated kidnapping. He also complains that the trial court was unclear as to whether it was applying the factor solely to the especially aggravated kidnapping sentence or to the rape of a child sentences as well. The state maintains that enhancement factor (10) is applicable to all three sentences.
In our assessment, the trial court properly applied enhancement factor (10) to the especially aggravated kidnapping sentence. False imprisonment is committed when a person "knowingly removes or confines another unlawfully so as to interfere substantially with the other's liberty." Tenn. Code Ann. § 39-13-302(a). False imprisonment becomes kidnapping where it occurs " nder circumstances exposing the other person to substantial risk of bodily injury ," or " here the confinement . . . is in a condition of involuntary servitude." Tenn. Code Ann. § 39-13-303(a). Kidnapping is aggravated when, among other things, it occurs to facilitate the commission of any felony. Tenn. Code Ann. § 39-13-304(a)(1). The crime is especially aggravated if any of the following conditions apply:
(1) [it is] ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon;
(2) the victim was under the age of thirteen (13) at the time of the removal or confinement;
(3) [it is] committed to hold the victim for ransom or reward, or as a shield or hostage; or
(4) the victim suffer serious bodily injury , Tenn. Code Ann. § 39-13-305(a).
Here, the defendant was initially charged with two counts of especially aggravated kidnapping, the first alleging that the victim was under the age of 13 and the second alleging that the victim suffered serious bodily injury. The judgment form reflects that the defendant pled guilty to the first count. Thus, a high risk to human life was not an element of the especially aggravated kidnapping conviction. Cf. State v. Kern, 909 S.W.2d 5 (Tenn. Crim. App. 1993) (holding that enhancement factor (10) was inapplicable to sentences for especially aggravated kidnapping and especially aggravated robbery
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