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State v. Blackstock8/27/2001
where it was based on the defendant's use of a deadly weapon, an element of the offenses). Additionally, the record supports the application of enhancement factor (10) to the especially aggravated kidnapping sentence. During the heat of the summer, the defendant transported the victim in the locked trunk of a car. He struck her and administered several injuries during the course of the sexual assault.
Any application of enhancement factor (10) to the aggravated rape sentences, however, was erroneous. The record does not support a finding that the commission of these offenses, as heinous as they were, involved a high risk to human life, as traditionally defined. Enhancement factor (10) is properly applicable only to the especially aggravated kidnapping conviction.
Finally, the defendant maintains that enhancement factor (16), that the crime was committed under circumstances where the potential for bodily injury to a victim was great, was erroneously applied because it is an "implied element" of both especially aggravated kidnapping and child rape. Criminal offenses are statutorily defined in Tennessee. See Tenn. Code Ann. § 39-11-102(a).
Our criminal code is intended to replace common law offenses. Id., Sentencing Commission Comments. That the crime was committed under circumstances where the potential for bodily injury to a victim was great is not a statutory element of either of the offenses for which the defendant was convicted. See Tenn. Code Ann. §§ 39-13-305, 39-13-522. In our view, there is no "implied element."
The trial court properly applied enhancement factor (16) to the especially aggravated kidnapping. Enhancement factor (16) may be considered when the proof establishes harmful or physically threatening conduct clearly beyond what is necessary to prove the underlying offense. State v. Williams, 920 S.W.2d 247, 260 (Tenn. Crim. App. 1995). That the defendant locked the victim in the trunk of his vehicle created a great potential for bodily injury beyond that necessary to effectuate the offense. The record does not, however, support the application of enhancement factor (16) to the convictions for rape of a child. In our view, the circumstances appearing in the record, as egregious as they are, do not establish that the defendant exposed the victim to potential bodily harm beyond that inherent in practically every child rape.
In summary, enhancement factors (1), (5), (6), (10), and (16) are applicable to the especially aggravated kidnapping sentence. Enhancement factors (1), (5), and (6) are applicable to the sentences for rape of a child. Three mitigating factors - that the defendant was suffering from a mental or physical condition that significantly reduced his culpability for the offenses; that the defendant cooperated with law enforcement; and that the defendant was a victim of child abuse himself - are applicable to all three sentences.
The defendant was sentenced as a Range I offender. A Range I sentence for especially aggravated kidnapping and rape of a child, both Class A felonies, is not less than 15 nor more than 25 years. See Tenn. Code Ann. § 40-35-112. Beginning at the midpoint of the range and considering the relative weight of the applicable enhancement and mitigating factors, the 25-year sentence for especially aggravated kidnapping is supported by the record. In assessing the appropriate sentence for each child rape, it is our view that enhancement factors (5) and (6) are entitled to considerable weight. Because some mitigating factors exist, as the trial court found, a 23-year sentence, three years above mid-range, is warranted on each of the two convictions.
II.
The defendant next co
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