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State v. Morrow9/18/2001
offense and, therefore, should not have been applied. The court explained,
At the heart of the criminal statute which prohibits a person from knowingly exposing another to HIV without consent lies the fact that this disease is ultimately fatal. It follows that high risk to human life is inherent in committing the crime. Therefore, enhancement factor (10) is inapplicable to enhance sentences for violating Tenn. Code Ann. ยง 39-13-109 (1997). Pamela Denise Wiser, slip op. at 8.
We conclude that factor (16) also is inherent in the criminal exposure to HIV offense. The trial court, accordingly, erred in considering that factor.
III. Mitigating Factors
As for mitigation, the trial court took into consideration that the defendant had apologized to the victim during the plea and sentencing proceedings. The trial court assigned little weight to this mitigating factor. No challenge has been raised to this factor, and we see no basis to disturb the trial court's assessment in this regard.
IV. Weighing the Appropriate Sentencing Factors
Our de novo review of the enhancement and mitigating factors yields six applicable enhancement factors and one minor mitigating factor, with some of the enhancement factors applying to less than all of the convictions as follows:
Conviction Applicable Enhancement Factors
HIV Exposure (1), (5), (6), (9)
Especially Aggravated Kidnapping (Count 1) (1), (5), (6), (7), (12)
Aggravated Rape (Count 2) (1), (5), (6), (7), (12)
Aggravated Rape (Count 3) (1), (5), (6), (7), (12)
In weighing the enhancement factors, the trial court indicated that factors (5) and (7) deserved great weight. Consistent with our de novo review, we conclude that factor (6) is also deserving of great weight, particularly considering the psychological abuse, trauma, and injury to the victim.
For the especially aggravated kidnapping and the aggravated rape convictions, the presumptive midpoint of the defendant's sentencing range was 20 years. The trial court increased each sentence by five years to take into account the enhancement factors, decreased each sentence by one year in recognition of the defendant's apology as a mitigating factor, and arrived at a sentence of 24 years for each Class A felony. We agree that the number and weight of enhancement factors and the slight weight of the one mitigating factor fully justify the 24-year sentence for each Class A felony.
As for the Class C HIV exposure conviction, the defendant's sentencing range was three to six years, and the trial court imposed a maximum six-year sentence. Although the trial court should not have considered enhancement factor (16), that error does not equate to a reduction in the sentence. See State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). The applicable enhancement factors, (1), (5), (6), and (9), support the trial court's determination, and we will not disturb the sentence imposed.
V. Consecutive Sentencing
The trial court ordered the defendant's sentences to be served consecutively for an effective sentence of 78 years. The trial court found that the defendant was a dangerous offender who "need to be removed from society for as long a period of time" as the law allows. The defendant complains that the trial court improperly used consecutive sentencing as a vehicle for imposing a sentence of life without parole. We disagree and affirm the consecutive sentencing ordered in this case.
Code section 40-35-115 addresses consecutive sentencing and the criteria for ordering consecutive, instead of concurrent, sentenci
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