# FILED
November 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9801- CR-00007 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DA ILEY WALTER JOHNSON, ) JUDGE ) Appe llant. ) (Especially Aggravated Ki dnapping)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : ROBERT C. BROOKS JOHN KNOX WALKUP 707 Adams Avenue Attorney Generaland Reporter Memphis, TN 38177 ELIZABETH T. RYAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243-0493 WILLIAM L . GIB BONS Distri ct Attorney General JAMES M. LAMMEY Assistant Distri ct Attorney General Criminal Just ice Complex, Sui te 301 201 Po plar Stree t Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

On May 1, 199 7, the Def endant, W alter Johnson , was convicted by a ShelbyCounty jury

of especiall y aggravatedkidna pping and w as su bseq uently sentenced to twenty-fiveyears as a Range I of fender. The Defen dant now appe als his convicti on and sentence as of right, pursuant to Rule 3 of the Tennesse e Rules of Appell ate Procedure. We affirm the judgment of the trial court.

On appe al, the Defendant presents t hree issues for review: (1) whet her the in-c ou rt identification of the Defe ndant was tainted by an un duly sugges tive lineup; (2) whether

the tri al court pr

operly al lowed proof of the rape o f the victim during the De fenda nt’s trial fo r espe cia lly aggravated ki dnapping; and ( 3) whether the tr ial court

properly

sentenced the Defendant to twent y-fiv e years for

es pecia ll y aggravated ki dnapping.

On January 27, 19 94, be tween noon and o ne o’c lock p. m., the victim in this case, Joyce Davis, stopped on her way hom e to use a pa y phone on McLem ore Street in M emph is. While she was using the p hone, the Defendant, whom she did not know, pul led up in a red pi ck-up truck and asked how s he was doing. She responded that she was f ine. The Defendant then got out of the truck, walked
overto her, touched her with a knife, and told her , “I t hink you need to getin my truck.” Fearful , the vict im followed his commands.-3- The Defendant escorted the vict im to the passenger side of hi s truck, and before he shut the door , he tore the kno b from the window l ever and threw it on the floorboar

d. Once insid e the truck , the vi ctim noti ced that t he passenger side d oor handle had also bee n removed. The Defendant pr oceeded to dr ive th e truckacross a bridge to A rkansa s. During th e drive, the Defendant asked the victim to raise up her skirt so thathe could see her legs. In Arkan sas, they drove
on a dirt road to a seclud ed spo t, where they stopped. The Defendant t urned to the victim a nd sa id, “Bitch , I’m go ing to k ill you.” The victi m began to cry, and the Defendant told he r to stop crying s o that s he wo uld not arouse t he suspicions of the police should th ey drive by o r stop.

The Defendant had the victi m place one leg on t he floorboar d and the other
on the seat of

the truck, and he tore her pantyh ose. H is penis was o utside of his pants; and as he tore t he victi m’s pantyhose, he was ejaculat ing. He stated, “What is a piece of p____y compared to your l ife.” He performed cunnil ingus on the victi m and then penetrated her, holdi ng to the back of herneck a knife, which the vict im described at trialas having a bl ack handle and a l ong blade.
The Defendant penetrated the vict im for approximatel y thir

ty minutesbut stopped the rap e whe n he h eard a nothe r car ap proac hin g. T he Defendant emerged from the truck to rel ieve himsel f, leav ing the kn ife on thedash of the truck. Wh en he g ot back in to the truck , he drove to anothe r location. A t th e second locati on, evidently t he truck almost got stuck, and the Defendant dec ided to take the victi m home. At that ti me, the Defendant pl aced the knife in the sun visor abo ve his hea d.-4- During the abduc tion and ra pe, the D efenda nt referred to himself several times as “Willie. ” Several times he tol d the vict im, “Callme Mr. Willie. ” One item of evidence i ntroduced at trial was apiece of pap er take n from the De fenda nt’s residen ce on w hich the w ords “W illie call me” w ere written
.
On the way back to Memph is, th e Defendant apologi zed for rapi ng the victim and asked if sh e had been raped before. Although the Defendant beli eved thathe was taking the vict im to her own home, the vic

tim had the Defendant drop her off at a n eighb or’s house instead. The Defendant ordered her not to callthe police and then backed the truck down the st reet. T he victi m was able to see three of the di gits on t he truck’ s license pl ate as he bac ked do wn the s treet. She testif ied at tri al that she had seen t he numbers “363,” although she also admi tted thatshe wa s not e n tirely sure she remembered the correct numbers. After t he Defendant left, the vict im went insi de, call ed the po l ice, and was taken to the Rape Crisis Ce nter, whe re she su bmitted to med ical testing.

The victim to ld police that t he Defendant’s truck had the word “For

d” on the outside and the word “Rang er” on the i nside. She described it as having a red exteri or and some white t rim, a dark er panel on t he driver’s front side near t he fender, and torn seats in the i nterior . She describ ed her perpetr atoras “a m ale black, appr oximately

200 pounds with a heav y build, a full gray beard, a blue flannel shirt, blue jeans, an d some type of green sh oes.”

A few days after the abducti on and rape , th e victi m saw the Defendant drivi ng in the same truck, and she went into a nearbysto re to cal l t he po li ce. On this occasion, she w as ab le to take down the full license tag num ber, 

### ? YHN -633,”-5-

which she relay ed to the p olice. How ever, evide ntly the victim was m ista ke n about t he tag, because the li cense numbers that she provided bel onged to a 1985 Ford pick-up whi ch was not red and which was register ed to a man named Victor McGee.

On August

18, 1 994, a Me mphi s police of ficer who was working on the investi ga tion in t his case received information that he could fi nd the Defendant
near Vance and Orleans streets around six o’ clock a.m. The of ficer went

to the
area at that hou r but ha d no l uck findi ng the Defendant. He returned t he followi ng morning atthe same time and saw a red pick-up truck wit h ladder racks
on the top drive n by a m an who match ed the d escription of the victim ’s assailan t. The license p late on the vehic le was “YHW-363.” When he stopped the vehicl e, th e o fficer

noted and photogr

aphed a knife whi ch was stuck i n the sun vi sor above the driver’s s eat. He then arrested the driver, whom he identified as t he Defen dant, W alter John son.

The police conducted two separat e lineups i n which the Defendant partici pa ted
. Ms. Davis was pr esent at t he second lineup a nd picked the Defendant out of the lineup as her assa il ant. At the poli ce station, she also identified the Defen dant’s truc k as the ve hicle driven by her as sailant.

I. MOTION T O SUPPRESSIN- COURT IDE NTIFI CATION The Defendantfirst

argues that the victim’ s in-court identificatio n of him as her abductor and rapi st was tai nted by an undul y suggestiv e lineup. He argues thatalthough t he trialcourt did suppress the l ineup ident ificat ion, the court erre d-6-

in denyin g his m otion to supp ress th e victim ’s in-co urt iden tificatio n of hi m. He contends that this err or resulted in a vi olation of hi s due process rights.
The Defendant points to the fact that he was th e only perso n in the li neup who had a full , salt- and-pepper beard and salt-and-p epper hair. He therefore asserts t hat he was the onl y suspect i n the li neup who completely matched the descripti on of the perpet rator provided by the vict im. The Defendant argues t hat the lineup“was s o extra ordina rily sugg estive th at it created a vi rtual cer tainty of irrepa rable misiden tificati on.”He contends that the li neup thus tai nted the victim’s in-court identification of him as her perpe trator.

On a motion to suppress, deference i s given to t he trialcourt to as sess the credibility of the wit nesses and determineissues of fact, and th e prevailing party is enti tled to t he strongest legiti mate view of the evide nce. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996) . The findi ngs of fact of the tr ial court at a suppression hearing will not be disturbed on appeal unless the evi dence i n the record p repond erates o therwise
. Id.

The law in Tennessee concerning li neup pr oce dures is quite clea r. “A defen dant’s due pro ces s ri ghts ma y b e violated by a line up if the identif icatio n procedure was so sug gestive as to give ri se to ‘a very substantial l ikeli hood of irrepa rable identifi ca tion.’” State v. Larry Bla ir , No. 01C01-9703-CR- 00084, 1998 WL 158750, at *3 (Tenn. Crim. App., Nashv ille, Apr. 7, 1998)(quoting Simmons
v. United States , 390 U.S . 377, 384 (1968)). “A pretrial confrontation pro cedure may be unlawful if it is unnecessarily su ggest ive and cond ucive to irrepar able-7-

mistaken identificatio n under the tot ality of the circumsta nces.” State v. P hilpott , 882 S.W .2d 394, 399 (Tenn. Crim . App. 1994 ).

H owever, “[e]ve n when pretri al ident ificat ion procedures are foun d to b e suggestive, out-of-court and in-c ourt identificatio ns may stil l be admissibl e. The inquiry is whether

the ident ificat ion was rel iable even t hough the procedure was sugge stive.” Id. at 400; see State v. Brown , 79 5 S. W.2d 6 89, 694 (Ten n. C ri m. App. 1990). The United States Supreme Court set forth five factors to b e considered when evalua tin g t he prop riety of the ide ntification pro cess. Neil v. Biggers , 409 U.S. 188, 19 9-200 (197 2); Benn ett v. State , 530 S.W.2d 511, 514 (Tenn. 1975). They are “[1] the opportuni ty of the wit ness to view t he criminalat the ti me of the cri me, [2] the witness’ degree of attenti on, [3] t he accuracy of the witness’ prior de scriptio n of the crimin al, [4] thelevel of certaint y demonstrated by the witnes s at the conf rontati on, and [5] the lengt h of ti me be twe en t he c ri me and the con frontation.” Neil , 409 U.S. at 199-200.

In this c ase, the tri al court s uppressed the l ineup ident ificat ion but overruledthe Defe ndant’s m otion to suppress the v ictim’ s in-court identificatio n. The t ri al judge stated tha t he “was satisfied tha t [the victim’s] in-court identif icatio n was based on her recol lectio n of the event s and not on ref reshing of any memory as a result of the lineup that too k place.” We agree with the trial court’s decision to excl ude the lineup ide ntification at trial b ecaus e of its suggestive nature. However , we cannot agreewith the Defendant that t he sugge stive lineup tainted the victim’s in-co urt identificatio n of her p erpetrato r.-8- Applying the totali ty of the cir cumstance s sta ndard and the five factors
enume ra ted abo ve, we fi nd that the victi m’s in-cour t identificati on of the Defendant as he r assa ila nt was su ff icient ly rel iable. With regard to factor one, the victim’s opport unity to view her assailant , the vi ctim in t his case spent
a pproxi mate ly two hours duri ng the middle of the day wit h her assail ant, who made no attemp t to conceal his iden tity. Factor two i s the degree of attenti on the victim paid to her as sailan t. Lik e the vi ctim in Neil v. Biggers , the victim in this
case “was n o cas ual ob serve r, but ra ther the victim o f one o f the m ost pe rsona lly humiliat ing of all crimes.” Id. at 200. Th e entire encounter, i ncluding t he rape, lasted approximatel y two hours, giving t he v ict im ample time and cause to pay close attenti on to her assai lant. Fact or three is t he degree of accur acy of the victim’s descript ion. In thi s case, thedescript ion the vi ctim gave to the poli ce of her assai lant w as de tailed a nd ac curate . She a lso de scribe d the D efend ant’s tru ck with great

detail and even provi ded the poli ce a stri kingly s imilar l icen s e plate number to that on the Defendant’ s truck. With regard to factor fou r, the victim expressed absol utely no doubt in court or at any ot her time as to the identit y o f her as sailan t. Finally, fa ctor five is the on ly factor that co uld
conc eivably weigh again st the re liability of th e victim ’s identificatio n since there
was a three-year lag between the crim e and the tri al. However, in li ght of the totality of the circumsta nces and the other four factors , we believe that this factor did not su bstan tially affec t the victim ’s abili ty to cor rectly identif y the Defendant as her a ssailant.

II. PROOF OF THE RAPE The Defendant next

contends that

the tri al court erred in not l imitingthe proofof rape. While the kidnapping in t his case took place in Tennessee, the-9-

actual rape of the vic tim took place i n Arkansas. Therefore, the Defendant was
n ot tried f

or rape in Tennessee. Basing his deci sion on Rule 403 of the Te nnessee Rules of Evi dence, the t rial j udge decided to al low evidence of the rape during the Defe ndan t’s tria l for espec ially aggravated ki dnapping, con cludin g that the pr

obative value of the rape testimony outweighed any prej udicial effect it might have. He determined that eviden ce of th e rape was n ot only relevant to
a determinati on of the vi ctim’s cr edibil ity, but also i nseparab le from the kidnapping ev idence in t his case.

The Defendant argues t hat the probat ive val ue of the rape testimony was subs tantially outweighed by t he danger of unfair pre judice, confusion of the issues, and m is leading th e jury. He contends that the tri al court al lowed the victim to recount t

oo many details

of the r ape, which shocked and horrif ied the jury, “effectiv ely turning what was technical ly a trial for kidnaping i n to [si c] what was, forall prac

tical purposes, a t rial f or rape.” The Defendant contends t hat the trialcourt’s decision to allow detailed rape testi mony was an abuse of disc retion.

In Ten ness ee, evid ence is dee med releva nt if it has “any tendency to make the existence of any fact that is of consequence to t he determinati on of the action
more probable or l ess probable t han it woul d be w ithout t he e vidence.” Tenn. R. Evid. 401. However, rel evant evi dence “may be excludedif it s probativ

e value is substanti ally out

weighed by the dange r of unfai r prejudi ce, co nfusion of the issues, or mislea ding the ju ry, or by con sideration s of undu e delay, w aste of time,
or needless p resentation of cu mulative eviden ce.” T enn. R. Evid. 403. Thus, underRule 403, prej udicialevidence i s not automati cally excluded; i n or der for i t to b e excluded, its probative value must be “subs tantially outweig hed” by its-10-

prejudici al effect. (Empha sis added.) As this Cou rt has previously noted, “ [a]ny evidence which tends to establi sh the guilt of an ac cused is highly pre judicial to the accused, but t his does not mean that the evidenceis inadmissi ble as a matter of law.” State v. D ulsworth , 781 S.W .2d 277 , 287 (T enn. C rim. App . 1989).

The determ ination of whe ther ev idenc e is rele vant, an d if so , wheth er it shou ld be exclude d under Rule 4 03 of th e Te nnes see R ules o f Evide nce, is within the sound discr etion of the trial judg e. State v. Williamson , 919 S.W.2d 69, 78 (Tenn . Crim. A pp. 199 5); State v. Hill , 885 S.W.2d 357, 361 (Ten n. C ri m. App. 1994). “In deci ding these i ssues, the t rial cour t must consider , among other things, the questi ons of fact thatthe jury w ill have to consi der in determining the
a cc used ’s guilt as well as ot her evidence t hat has been int roduced during t he course of t he trial.” Williamson , 919 S.W .2d at 78. This C ourt will not overturn
a trialcourt’s ruling on a Rule 40 3 issue absen t a clear showing of abuse of discreti on. State v. Hayes , 899 S.W.2d 175, 183 (T enn. C rim. App . 1995); State v. Bigbee , 885 S.W .2d 797, 806 (Tenn. 199 4).

In this cas e, whe n ruling in favor of admitti ng evidence of the rape, t he trial judge sta ted: [T]he burden on the State is to convin ce the jury , t o prove beyond a reaso nable doub t and to do so by con vin cing the jury tha t this victim is a credi ble witnes s. . . . And s o to the ex te nt to wh ich this witness can articulate wh at happen ed to her, and the detai ls of what happened, and the acc uracy o f what happened wi ll go a l ong way in convincing the jur

y that she is to be believed. Th is is a January ‘94 event. And so I think i t’s i mpor tant to allow this w itness to explain as much detail as she can to convince the jury that she st ill remembers what went on over three year

s ago.1 The Defendant contends that the trial court also applied factor (16), which is that the crimewas committedunder circumstances in w hich the potential

for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-114 (16). However, from a readi ng of the record, it does not appear that thetrial court applied this factor when sente ncing th e Defend ant. The refore , we have not considered i

t in our rev

iew. -11- It is clear from the foreg oing that the trial court wa s aware of the prejudicialeffect of the rape testimo ny, but balanced it agai nst the probat ive val ue of the te stimony and concluded that

it was necessar

y to the cas e. Viewing the case as a whole,
we canno t agree w ith the Defendant t hat the trial judg e abu sed h is discr etion in admitting evidence of t he rape.

III . SENTENCI NG The Defenda nt next contends tha t the trial court impro perly se ntenc ed him to twenty-five years

for especi ally aggr

avated kidnappi ng. He argues that the court should not have applied t he following enhancement factors when senten cing him :

(1) The defe ndant has a previous history of crim inal convict ions o r criminal b ehavior in addition to those ne cessar y to establi sh the appropri ate range;

. . . ( 5) The defendant tr eated or all owed a victi m to be trea te d with except ional cru elty during the commissi on of the of fense; (6) The personal inj uries inflictedupon . . . t he victi m [were] particularly g reat; (7) The offens e involv ed a vic tim and wa s com mitted to g ratify the defe ndant’s d esire for ple asure o r excitem ent;

. . . (10) The defendant had n o hesitat ion about committ ing a crime when the ri sk to human lif e was high;

. . . . Tenn. C ode Ann . § 40-35-114 (1), (5), (6), (7), (10). 1
When an accused chall enges the length, range, or t he manner of service of a sentence, t his court has a duty to

conduct a de novo review of the sentence wit h a presumption that the determinati ons made by the trial court ar e co rrect
.-12-

Id. § 40-35-401(d) . This presumpti on is “condi tioned u pon the affirmative showing in the record t hat the trial court consi dered the sente ncing pri nciples and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn . 1991).

In conducting a de novo review of a sentence, this Court must consi der: (a) the evidence, if any, r eceived at t he trialand the sen tenc ing hearing; (b) the presentence report; (c) the principl es of sentenc ing an d argum ents as to sentencing alternat ives; (d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement thatthe defendant made on his own be half; a nd (g) the potential o r lack of potentialfor rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , - 210; see State v. Smi th , 735 S.W.2d 859, 863 (Tenn. Cr im. App. 1987). If our
r eviewreflect

s that the

trialcourt fol lowed the statutory sentencing pr ocedur e , imposed a lawful sentence after having given due con sider ation and prope r weightto the f

actors and prin ciple s set out under th e sentenci ng law, and thatthe trialcourt’s findings

of fact are adequately supported by the record, t hen we may not modify the s entence even if we wou ld have p referred a different res ult. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
A. High R isk to Hu man L ife We first f ind that enhancement factor (10), which provides tha t “[t]he defendanthad no hes itation abo ut com mitting a c rime wh en the risk to hum an life
was high,” was imp roperly applied. Te nn. Code Ann. § 40-3 5-1 1 4(10) . This factor is essenti al to t he c ri me of especial ly aggravated kidnapping. In Manning
v. State , this Court dif fer entiat ed between crimes r equiring “

that the c riminal-13-

activity be ‘accomplis hed by the use of a dea dly w eapon’” and tho se requiri ng only “that t he defendant be ‘ armed with a deadl y weapon.’” 883 S.W.2d 635, 640 (Tenn. Crim. App. 1 994). ThisCo urt co ncluded that statutes

includi ng the phrase, “armed wi th a deadl y weapon,” “do not requir

e that t he we apon be actua lly employed in t he commission of t he offense” an d t herefore warr ant applicat ion of enha ncem ent factor (1 0). Id. ; see State v. Kern , 909 S.W .2d 5, 7 (Tenn. C rim. App. 199 3).

Our especiall y aggravated k i dnapping stat ute employs thefollowi ng language: “Espec ially aggrava te d kidnap ping is false imprison ment . . . [a]ccompli shed with a deadl y weapon or by di splay of any articl e used or fashioned to lead t he victi m to believe it to be a deadly weapon
. . . . ” Tenn. Code Ann. § 39 -13 -30 5(1 ). Ther e is nec ess ari ly

a hi gh r isk

to h uma n l ife whenevera deadly weapon is used. Theref ore, we fi nd that enhancement factor (10) was improp erly applied in senten cing the D efenda nt.

B. Exce ptional C ruelty In addition, we fi nd that there was not su ffici ent evide nce in this c ase to upho ld application of enha ncem ent factor (5 ), that th e defend ant treated the victim with except ional cru elty i n the c omm issio n of the offe nse. Id. § 40-35- 114(5). The statute spe cifically r equires a showi ng of “exceptional” cruelty, whi ch is us ually found in cases of abuse or torture. See State v. Davis , 825 S.W .2 d 109, 11 3 (Tenn. Crim. A pp. 199 1); State v. Haynes , 720 S.W.2d 76, 80 (Tenn. Cri m. App. 1 994). A show in g of exce ptional cruelty under the statute requi res something bey ond that need ed to effec tuate the c rime. State v. Emb ry , 915 S.W .2d 451 , 456 (T enn. C rim. App . 1995).-14- In Mann ing v. State , the cruelty factor was found not appli cable in a case in which theDefendant abducted t he victi m and forced her to partici pate in fo ur sexual acts

while hol ding a knife to her person, using abusive l anguage toward her, and makin g threats to harm her. 883 S.W.2d at 639. This Court also found the exceptionalcruelty factor di d n ot apply i n a case in whic h the defendant entered the victim’s apartm ent, pushed her i nt o the bathtub, and hit her in the mouth causing injuries. State v. David Patri ck Pearson , No. 03C01-9103-CR-87, 1992 WL 70547 , at *5 (Te nn. Crim . App., Kn oxville, Apr. 9, 1 992), aff’d i n p art and remanded for resentencing , 858 S.W.2d 87 9 (Tenn. 1993) (on appeal, the Tennessee Supre me C ourt d id no t specifically a ddress the exce ptional cru elty f actorbut upheld the judgm ent of the C ourt of Crim inal App eals with re gard to enhancement and mitigat ion factors.). “In State v. Edwards , 868 S.W.2d 682 (Tenn. Crim. App . 1993), this [C]ourt rejected t his enhancement fact or for a r ape convicti on in which the defen dant ‘g agge d, threa tened and s truck th e victim ’ while committing the offense. Th e court held that the cri me wa s ‘cruel but not excep tio nally so, so as to w arrant ap plication of th e excep tional crue lty enhance ment factor.’” Embry , 915 S.W.2d at 456.
Clearly, the vict im has suffered a great deal of emotional pai n and anguish
as a result of her assaul t. As thi s Court has prev iously noted, “[a] nytime that an indivi dual is raped exceptional cruelty has been perpetrated upon the victi m in the eyes of this

Court. . . . The crime of rap e . . . i s always a cr uel, rut hless, and atrocious

crime. R apists d ehumanize their victi ms and generally infli ct everlast ing scars on their lives.” Pearson , 1992 W L 7054 7, at *5. Not on ly did the victim suffe r the deh uman izing expe rience of ra pe, but she was also abducted at knife point, th reaten ed with her life, a nd driv en to a seclud ed sp ot in2 We note that some facts which may have been used to uphold application of factor (5) in this case may hav e been related to the comm ission of the rape, although i t is unclear from a readi ng of the r ecord pr ecisel y whi ch facts the trial

judge relied upon in applying the exceptionalcruelty factor. As we have previously mentioned, the Defenda nt was tried and convic ted in our juris

diction only

of especially

aggrava ted kidnapping. -15- anotherstate to suffer her fate, all of whi ch is the basi s for the c rime for whi ch the Defen dant wa s convicte d in the co urt below
.

We acknowledge that the crime committed again st the vic tim in this case
w as espec ially

cruel. It is for thi s reason that the legi slature has

classif ied the cri me of especially aggra vated kidnap ping as a C lass A felony, the most seri ous cri me unde r our law excep ting on ly those cri mes which potenti ally car ry thedeath penalty. While fully

recognizi ng the sever ity of this crime , we are u nable to conclude that the record supports appl icatio n of enhancement factor (5). Tenn. Code Ann. § 40-35-11 4(5). 2 Although we cert ainly do not

intend to

belitt le the impact of this

crime on the vi ctim, we do not believe t hat the harm i nflicted upon the victi m in this case rises to the levelof “excepti onal cruelty ” prescri bed by our statute.

C. Other E nhancem ent Factors Desp ite the tri al court’s misapplicat ion of fac tors (5) and (10), based upon the othe r facts in this c ase, we do not he sitate to uphold the sentence imposed upon the Defe ndant. Id. § 40-35-114(5) , (10). Enhancement factor ( 1) requir es thatthe court consider the d e fendant’s past history of cr iminal conv iction s or be havior. Id. § 40-35-114(1) . The Defendant i n this case has been arres te d many times, alth ough h is presen te nce repo rt does not p rovide cl ear documentation of all charg es and convict ions. I t is cl ear, however, from the presentence report that i n 1979 the Defendant was convict ed of murder in t he-16-

first degree and that

the Defendant was also convic ted of ro bbery in 197 1. This evidence is clea rly sufficient to warrant application of enhance ment factor (1).

En hancement factor (6) requires that the court conside r whether th e perso nal injuries inflicted upon th e victim we re particula rly great. Id. § 4 0-35 - 114(6). This factor

is not appl icable to a cr ime involving seriou s bodily injury because it is cons idered an es sentia l ele ment of such a c rime. See State v. Crowe , 914 S.W .2d 933 (Tenn . Crim. A pp. 199 5). Although se rious bodily injury may b e an e leme nt of es pecia lly aggra vated kidna pping , the D efend ant in th is
case was charged because of his “use of a deadly weap on.” T he in dictment does not charge t he Defendant wit h the infl iction of serious bod ily inju ry on the victim during the commission of the k idnapping. Therefore, en hancement factor (6) may b e app lied he re. In ap plying th is facto r, the tria l judge read th e victim ’s impact statementfor the r ecord and concluded, “[T]he dam age th at was done in this specific c ase . . . was e xtensiv e and far-rea ching . Virtua lly destro yed this
wom an’s menta l health, stab ility, family life.” After revi ewing th e record, we agree that factor (6 ) was pro perly app lied in sente ncing the Defen dant.

The final enhancement factor at issueis factor (7), which requir es thatthe offense be committed to gr atify the defendant’s

desire for

pleasure or excitem ent. Tenn. Code Ann. § 40-35-114(7) . The State has t he burden of demons trati ng thata crime is sexually m otivated. State v . Ad ams , 864 S.W.2d 31, 35 (Tenn. 1993); State v. Clabo , 905 S.W .2d 197 , 206-07 (Tenn . Crim. A pp. 199 5); State
v. Smith , 910 S.W.2d 457, 460 (Tenn. Cri m. App. 1995). I n the case at hand, t he trialjudge stated that he be lieved a court s hould presu me th at a crim e of this nature is sexual ly motivated unless there is evi dence to t he contr ary. Whil e we-17-

respe ctfully disagree wi th the trial cour t’s st atem ent, we believe that the re is suffic ientevidence in this c ase to uphold appl icatio n of facto r (7). Tenn. Code Ann. § 40-35 -114(7); see State v. Kissinger , 922 S.W.2d 482, 491 (Ten n. 1996); Sta te v. Jame s Lloyd Ju lian, II , No. 03C01-9511-CV-00371, 1997 WL 41253 9 (Tenn . Crim. A pp., Kno xville, July 24, 19 97).

The record ref lects t hat the Defe ndan t kidna pped the victim for the express purpose of raping h er. The Defe n dant abducted t he victi m and drove her imm ediate ly to a seclu ded sp ot in Arka nsas, as king her o n the wa y to pull up her skirt so that he could see her legs. As he ripped her pantyhose, he was already ejaculat ing. He the n pen etrated the victim , both o rally and wit h his pen is, over nearly a two hour

period . Ther efore, th e trial co urt pro perly a pplied this fac tor in senten cing the D efenda nt.
Finally, the Defendant ar gues that Tennessee Code Annotated § 39-13- 305(b)(2) shou ld have been applie d in sentencing hi m. This secti on provides t hat “[i]f the offend er volunta rily releases the victim a live . . . , such actio n[] shall b e considered by the court as amitigati ng factor at the time of

sentencing. ” Tenn. Code Ann. § 39-1 3-305(b)( 2). We find no indicat ion in t he record that the tri al court applie d this factor w hen s enten cing th e Def enda nt. Ho weve r, in light of a ll circumstances, we do not beli eve that t his factor is of suffic ient weight to warrant reducin g the sen tence im posed on the D efenda nt by the trial co urt.

We therefor

e affirm the Defendant’s convicti on and sentence o f twen ty-five years for th e crime of espec ially aggrava ted kidna pping.-18- ____________________________________ DAVID H. WELLES , JUD GE CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ JOHN K. BYERS, SENIORJUDGE