FILED

November 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9801-CR-00007

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. JOSEPH B. DAILEY

WALTER JOHNSON, ) JUDGE

)

Appellant. ) (Especially Aggravated Kidnapping)

ON APPEAL 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 General and Reporter

Memphis, TN 38177

ELIZABETH T. RYAN

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

JAMES M. LAMMEY

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street 

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

On May 1, 1997, the Defendant, Walter Johnson, was convicted by a

Shelby County jury of especially aggravated kidnapping and was subsequently

sentenced to twenty-five years as a Range I offender. The Defendant now

appeals his conviction and sentence as of right, pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. We affirm the judgment of the trial

court.

On appeal, the Defendant presents three issues for review: (1) whether the

in-court identification of the Defendant was tainted by an unduly suggestive

lineup; (2) whether the trial court properly allowed proof of the rape of the victim

during the Defendant’s trial for especially aggravated kidnapping; and (3) whether

the trial court properly sentenced the Defendant to twenty-five years for especially

aggravated kidnapping.

On January 27, 1994, between noon and one o’clock p.m., the victim in this

case, Joyce Davis, stopped on her way hom e to use a pay phone on McLemore

Street in Memphis. While she was using the phone, the Defendant, whom she

did not know, pulled up in a red pick-up truck and asked how she was doing. She

responded that she was fine. The Defendant then got out of the truck, walked

over to her, touched her with a knife, and told her, “I think you need to get in my

truck.” Fearful, the victim followed his commands.
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The Defendant escorted the victim to the passenger side of his truck, and

before he shut the door, he tore the knob from the window lever and threw it on

the floorboard. Once inside the truck, the victim noticed that the passenger side

door handle had also been removed. The Defendant proceeded to drive the

truck across a bridge to Arkansas. During the drive, the Defendant asked the

victim to raise up her skirt so that he could see her legs. In Arkansas, they drove

on a dirt road to a secluded spot, where they stopped. The Defendant turned to

the victim and said, “Bitch, I’m going to kill you.” The victim began to cry, and the

Defendant told her to stop crying so that she would not arouse the suspicions of

the police should they drive by or stop. 

The Defendant had the victim place one leg on the floorboard and the other

on the seat of the truck, and he tore her pantyhose. His penis was outside of his

pants; and as he tore the victim’s pantyhose, he was ejaculating. He stated,

“What is a piece of p____y compared to your life.” He performed cunnilingus on

the victim and then penetrated her, holding to the back of her neck a knife, which

the victim described at trial as having a black handle and a long blade.

The Defendant penetrated the victim for approximately thirty minutes but

stopped the rape when he heard another car approaching. The Defendant

emerged from the truck to relieve himself, leaving the knife on the dash of the

truck. When he got back into the truck, he drove to another location. At the

second location, evidently the truck almost got stuck, and the Defendant decided

to take the victim home. At that time, the Defendant placed the knife in the sun

visor above his head. 
-4-

During the abduction and rape, the Defendant referred to himself several

times as “Willie.” Several times he told the victim, “Call me Mr. Willie.” One item

of evidence introduced at trial was a piece of paper taken from the Defendant’s

residence on which the words “W illie call me” were written. 

On the way back to Memphis, the Defendant apologized for raping the

victim and asked if she had been raped before. Although the Defendant believed

that he was taking the victim to her own home, the victim had the Defendant drop

her off at a neighbor’s house instead. The Defendant ordered her not to call the

police and then backed the truck down the street. The victim was able to see

three of the digits on the truck’s license plate as he backed down the street. She

testified at trial that she had seen the numbers “363,” although she also admitted

that she was not entirely sure she remembered the correct numbers. After the

Defendant left, the victim went inside, called the police, and was taken to the

Rape Crisis Center, where she submitted to medical testing. 

 

The victim told police that the Defendant’s truck had the word “Ford” on the

outside and the word “Ranger” on the inside. She described it as having a red

exterior and some white trim, a darker panel on the driver’s front side near the

fender, and torn seats in the interior. She described her perpetrator as “a male

black, approximately 200 pounds with a heavy build, a full gray beard, a blue

flannel shirt, blue jeans, and some type of green shoes.” 

A few days after the abduction and rape, the victim saw the Defendant

driving in the same truck, and she went into a nearby store to call the police. On

this occasion, she was able to take down the full license tag num ber,?YHN-633,”
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which she relayed to the police. However, evidently the victim was mistaken

about the tag, because the license numbers that she provided belonged to a

1985 Ford pick-up which was not red and which was registered to a man named

Victor McGee.

On August 18, 1994, a Memphis police officer who was working on the

investigation in this case received information that he could find the Defendant

near Vance and Orleans streets around six o’clock a.m. The officer went to the

area at that hour but had no luck finding the Defendant. He returned the

following morning at the same time and saw a red pick-up truck with ladder racks

on the top driven by a man who matched the description of the victim’s assailant.

The license plate on the vehicle was “YHW-363.” When he stopped the vehicle,

the officer noted and photographed a knife which was stuck in the sun visor

above the driver’s seat. He then arrested the driver, whom he identified as the

Defendant, Walter Johnson. 

The police conducted two separate lineups in which the Defendant

participated. Ms. Davis was present at the second lineup and picked the

Defendant out of the lineup as her assailant. At the police station, she also

identified the Defendant’s truck as the vehicle driven by her assailant.

I. MOTION TO SUPPRESS IN-COURT IDENTIFICATION

The Defendant first argues that the victim’s in-court identification of him as

her abductor and rapist was tainted by an unduly suggestive lineup. He argues

that although the trial court did suppress the lineup identification, the court erred
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in denying his motion to suppress the victim’s in-court identification of him. He

contends that this error resulted in a violation of his due process rights.

 The Defendant points to the fact that he was the only person in the lineup

who had a full, salt-and-pepper beard and salt-and-pepper hair. He therefore

asserts that he was the only suspect in the lineup who completely matched the

description of the perpetrator provided by the victim. The Defendant argues that

the lineup “was so extraordinarily suggestive that it created a virtual certainty of

irreparable misidentification.” He contends that the lineup thus tainted the

victim’s in-court identification of him as her perpetrator.

On a motion to suppress, deference is given to the trial court to assess the

credibility of the witnesses and determine issues of fact, and the prevailing party

is entitled to the strongest legitimate view of the evidence. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). The findings of fact of the trial court at a

suppression hearing will not be disturbed on appeal unless the evidence in the

record preponderates otherwise. Id.

The law in Tennessee concerning lineup procedures is quite clear. “A

defendant’s due process rights may be violated by a lineup if the identification

procedure was so suggestive as to give rise to ‘a very substantial likelihood of

irreparable identification.’” State v. Larry Blair, No. 01C01-9703-CR- 00084, 1998

WL 158750, at *3 (Tenn. Crim. App., Nashville, Apr. 7, 1998) (quoting Simmons

v. United States, 390 U.S. 377, 384 (1968)). “A pretrial confrontation procedure

may be unlawful if it is unnecessarily suggestive and conducive to irreparable
-7-

mistaken identification under the totality of the circumstances.” State v. Philpott,

882 S.W .2d 394, 399 (Tenn. Crim. App. 1994).

 

However, “[e]ven when pretrial identification procedures are found to be

suggestive, out-of-court and in-court identifications may still be admissible. The

inquiry is whether the identification was reliable even though the procedure was

suggestive.” Id. at 400; see State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim.

App. 1990). The United States Supreme Court set forth five factors to be

considered when evaluating the propriety of the identification process. Neil v.

Biggers, 409 U.S. 188, 199-200 (1972); Bennett v. State, 530 S.W.2d 511, 514

(Tenn. 1975). They are “[1] the opportunity of the witness to view the criminal at

the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the

witness’ prior description of the criminal, [4] the level of certainty demonstrated

by the witness at the confrontation, and [5] the length of time between the crime

and the confrontation.” Neil, 409 U.S. at 199-200.

In this case, the trial court suppressed the lineup identification but

overruled the Defendant’s m otion to suppress the victim’s in-court identification.

The trial judge stated that he “was satisfied that [the victim’s] in-court

identification was based on her recollection of the events and not on refreshing

of any memory as a result of the lineup that took place.” We agree with the trial

court’s decision to exclude the lineup identification at trial because of its

suggestive nature. However, we cannot agree with the Defendant that the

suggestive lineup tainted the victim’s in-court identification of her perpetrator. 
-8-

Applying the totality of the circumstances standard and the five factors

enumerated above, we find that the victim’s in-court identification of the

Defendant as her assailant was sufficiently reliable. With regard to factor one,

the victim’s opportunity to view her assailant, the victim in this case spent

approximately two hours during the middle of the day with her assailant, who

made no attempt to conceal his identity. Factor two is the degree of attention the

victim paid to her assailant. Like the victim in Neil v. Biggers, the victim in this

case “was no casual observer, but rather the victim of one of the most personally

humiliating of all crimes.” Id. at 200. The entire encounter, including the rape,

lasted approximately two hours, giving the victim ample time and cause to pay

close attention to her assailant. Factor three is the degree of accuracy of the

victim’s description. In this case, the description the victim gave to the police of

her assailant was detailed and accurate. She also described the Defendant’s

truck with great detail and even provided the police a strikingly similar license

plate number to that on the Defendant’s truck. With regard to factor four, the

victim expressed absolutely no doubt in court or at any other time as to the

identity of her assailant. Finally, factor five is the only factor that could

conceivably weigh against the reliability of the victim’s identification since there

was a three-year lag between the crim e and the trial. However, in light of the

totality of the circumstances and the other four factors, we believe that this factor

did not substantially affect the victim ’s ability to correctly identify the Defendant

as her assailant. 

 

 II. PROOF OF THE RAPE

The Defendant next contends that the trial court erred in not limiting the

proof of rape. While the kidnapping in this case took place in Tennessee, the
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actual rape of the victim took place in Arkansas. Therefore, the Defendant was

not tried for rape in Tennessee. Basing his decision on Rule 403 of the

Tennessee Rules of Evidence, the trial judge decided to allow evidence of the

rape during the Defendant’s trial for especially aggravated kidnapping, concluding

that the probative value of the rape testimony outweighed any prejudicial effect

it might have. He determined that evidence of the rape was not only relevant to

a determination of the victim’s credibility, but also inseparable from the

kidnapping evidence in this case.

The Defendant argues that the probative value of the rape testimony was

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, and misleading the jury. He contends that the trial court allowed the

victim to recount too many details of the rape, which shocked and horrified the

jury, “effectively turning what was technically a trial for kidnaping in to [sic] what

was, for all practical purposes, a trial for rape.” The Defendant contends that the

trial court’s decision to allow detailed rape testimony was an abuse of discretion.

In Tennessee, evidence is deemed relevant if it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Tenn.

R. Evid. 401. However, relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. Thus,

under Rule 403, prejudicial evidence is not automatically excluded; in order for

it to be excluded, its probative value must be “substantially outweighed” by its
-10-

prejudicial effect. (Emphasis added.) As this Court has previously noted, “[a]ny

evidence which tends to establish the guilt of an accused is highly prejudicial to

the accused, but this does not mean that the evidence is inadmissible as a matter

of law.” State v. Dulsworth, 781 S.W .2d 277, 287 (Tenn. Crim. App. 1989). 

The determ ination of whether evidence is relevant, and if so, whether it

should be excluded under Rule 403 of the Tennessee Rules of Evidence, is

within the sound discretion of the trial judge. State v. Williamson, 919 S.W.2d 69,

78 (Tenn. Crim. App. 1995); State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App.

1994). “In deciding these issues, the trial court must consider, among other

things, the questions of fact that the jury will have to consider in determining the

accused’s guilt as well as other evidence that has been introduced during the

course of the trial.” Williamson, 919 S.W.2d at 78. This Court will not overturn

a trial court’s ruling on a Rule 403 issue absent a clear showing of abuse of

discretion. State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim. App. 1995); State

v. Bigbee, 885 S.W.2d 797, 806 (Tenn. 1994).

In this case, when ruling in favor of admitting evidence of the rape, the trial

judge stated: 

[T]he burden on the State is to convince the jury, to prove beyond

a reasonable doubt and to do so by convincing the jury that this

victim is a credible witness. . . . And so to the extent to which this

witness can articulate what happened to her, and the details of what

happened, and the accuracy of what happened will go a long way

in convincing the jury that she is to be believed. This is a January

‘94 event. And so I think it’s important to allow this witness to

explain as much detail as she can to convince the jury that she still

remembers what went on over three years ago.
1

 The Defendant contends that the trial court also applied factor (16), which is that the

crime was committed under circumstances in which the potential for bodily injury to a victim was

great. Tenn. Code Ann. § 40-35-114 (16). However, from a reading of the record, it does not

appear that the trial court applied this factor when sentencing the Defendant. Therefore, we

have not considered it in our review. 

-11-

It is clear from the foregoing that the trial court was aware of the prejudicial effect

of the rape testimony, but balanced it against the probative value of the testimony

and concluded that it was necessary to the case. Viewing the case as a whole,

we cannot agree with the Defendant that the trial judge abused his discretion in

admitting evidence of the rape.

III. SENTENCING

The Defendant next contends that the trial court improperly sentenced him

to twenty-five years for especially aggravated kidnapping. He argues that the

court should not have applied the following enhancement factors when

sentencing him: 

(1) The defendant has a previous history of criminal

convictions or criminal behavior in addition to those necessary to

establish the appropriate range;

. . . 

(5) The defendant treated or allowed a victim to be treated

with exceptional cruelty during the commission of the offense;

(6) The personal injuries inflicted upon . . . the victim [were]

particularly great;

(7) The offense involved a victim and was committed to gratify

the defendant’s desire for pleasure or excitement;

. . .

(10) The defendant had no hesitation about committing a

crime when the risk to human life was high;

. . . .

Tenn. Code Ann. § 40-35-114(1), (5), (6), (7), (10).1

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.
-12-

Id. § 40-35-401(d). This presumption is “conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). 

In conducting a de novo review of a sentence, this Court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103, -

210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If our

review reflects that the trial court followed the statutory sentencing procedure,

imposed a lawful sentence after having given due consideration and proper

weight to the factors and principles set out under the sentencing law, and that the

trial court’s findings of fact are adequately supported by the record, then we may

not modify the sentence even if we would have preferred a different result. State

v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A. High Risk to Human Life

We first find that enhancement factor (10), which provides that “[t]he

defendant had no hesitation about committing a crime when the risk to human life

was high,” was improperly applied. Tenn. Code Ann. § 40-35-114(10). This

factor is essential to the crime of especially aggravated kidnapping. In Manning

v. State, this Court differentiated between crimes requiring “that the criminal
-13-

activity be ‘accomplished by the use of a deadly weapon’” and those requiring

only “that the defendant be ‘armed with a deadly weapon.’” 883 S.W.2d 635, 640

(Tenn. Crim. App. 1994). This Court concluded that statutes including the

phrase, “armed with a deadly weapon,” “do not require that the weapon be

actually employed in the commission of the offense” and therefore warrant

application of enhancement factor (10). Id.; see State v. Kern, 909 S.W.2d 5, 7

(Tenn. Crim. App. 1993).

Our especially aggravated kidnapping statute employs the following

language: “Especially aggravated kidnapping is false imprisonment . . .

[a]ccomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to believe it to be a deadly weapon . . . .” Tenn.

Code Ann. § 39-13-305(1). There is necessarily a high risk to human life

whenever a deadly weapon is used. Therefore, we find that enhancement factor

(10) was improperly applied in sentencing the Defendant.

 

B. Exceptional Cruelty

In addition, we find that there was not sufficient evidence in this case to

uphold application of enhancement factor (5), that the defendant treated the

victim with exceptional cruelty in the comm ission of the offense. Id. § 40-35-

114(5). The statute specifically requires a showing of “exceptional” cruelty, which

is usually found in cases of abuse or torture. See State v. Davis, 825 S.W .2d

109, 113 (Tenn. Crim. App. 1991); State v. Haynes, 720 S.W.2d 76, 80 (Tenn.

Crim. App. 1994). A showing of exceptional cruelty under the statute requires

something beyond that needed to effectuate the crime. State v. Embry, 915

S.W.2d 451, 456 (Tenn. Crim. App. 1995). 
-14-

In Manning v. State, the cruelty factor was found not applicable in a case

in which the Defendant abducted the victim and forced her to participate in four

sexual acts while holding a knife to her person, using abusive language toward

her, and making threats to harm her. 883 S.W.2d at 639. This Court also found

the exceptional cruelty factor did not apply in a case in which the defendant

entered the victim’s apartment, pushed her into the bathtub, and hit her in the

mouth causing injuries. State v. David Patrick Pearson, No. 03C01-9103-CR-87,

1992 WL 70547, at *5 (Tenn. Crim. App., Knoxville, Apr. 9, 1992), aff’d in part

and remanded for resentencing, 858 S.W.2d 879 (Tenn. 1993) (on appeal, the

Tennessee Supreme Court did not specifically address the exceptional cruelty

factor but upheld the judgm ent of the Court of Crim inal Appeals with regard to

enhancement and mitigation factors.). “In State v. Edwards, 868 S.W.2d 682

(Tenn. Crim. App. 1993), this [C]ourt rejected this enhancement factor for a rape

conviction in which the defendant ‘gagged, threatened and struck the victim’ while

committing the offense. The court held that the crime was ‘cruel but not

exceptionally so, so as to warrant application of the exceptional cruelty

enhancement factor.’” Embry, 915 S.W.2d at 456.

Clearly, the victim has suffered a great deal of emotional pain and anguish

as a result of her assault. As this Court has previously noted, “[a]nytime that an

individual is raped exceptional cruelty has been perpetrated upon the victim in the

eyes of this Court. . . . The crime of rape . . . is always a cruel, ruthless, and

atrocious crime. Rapists dehumanize their victims and generally inflict

everlasting scars on their lives.” Pearson, 1992 W L 70547, at *5. Not only did

the victim suffer the dehumanizing experience of rape, but she was also

abducted at knife point, threatened with her life, and driven to a secluded spot in
2

 We note that some facts which may have been used to uphold application of factor

(5) in this case may have been related to the commission of the rape, although it is unclear

from a reading of the record precisely which facts the trial judge relied upon in applying the

exceptional cruelty factor. As we have previously mentioned, the Defendant was tried and

convicted in our jurisdiction only of especially aggravated kidnapping.

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another state to suffer her fate, all of which is the basis for the crime for which the

Defendant was convicted in the court below. 

We acknowledge that the crime committed against the victim in this case

was especially cruel. It is for this reason that the legislature has classified the

crime of especially aggravated kidnapping as a Class A felony, the most serious

crime under our law excepting only those crimes which potentially carry the death

penalty. While fully recognizing the severity of this crime, we are unable to

conclude that the record supports application of enhancement factor (5). Tenn.

Code Ann. § 40-35-114(5).2 Although we certainly do not intend to belittle the

impact of this crime on the victim, we do not believe that the harm inflicted upon

the victim in this case rises to the level of “exceptional cruelty” prescribed by our

statute.

C. Other Enhancement Factors

Despite the trial court’s misapplication of factors (5) and (10), based upon

the other facts in this case, we do not hesitate to uphold the sentence imposed

upon the Defendant. Id. § 40-35-114(5), (10). Enhancement factor (1) requires

that the court consider the defendant’s past history of criminal convictions or

behavior. Id. § 40-35-114(1). The Defendant in this case has been arrested

many times, although his presentence report does not provide clear

documentation of all charges and convictions. It is clear, however, from the

presentence report that in 1979 the Defendant was convicted of murder in the
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first degree and that the Defendant was also convicted of robbery in 1971. This

evidence is clearly sufficient to warrant application of enhancement factor (1).

Enhancement factor (6) requires that the court consider whether the

personal injuries inflicted upon the victim were particularly great. Id. § 40-35-

114(6). This factor is not applicable to a crime involving serious bodily injury

because it is considered an essential element of such a crime. See State v.

Crowe, 914 S.W.2d 933 (Tenn. Crim. App. 1995). Although serious bodily injury

may be an element of especially aggravated kidnapping, the Defendant in this

case was charged because of his “use of a deadly weapon.” The indictment

does not charge the Defendant with the infliction of serious bodily injury on the

victim during the commission of the kidnapping. Therefore, enhancement factor

(6) may be applied here. In applying this factor, the trial judge read the victim’s

impact statement for the record and concluded, “[T]he damage that was done in

this specific case . . . was extensive and far-reaching. Virtually destroyed this

woman’s mental health, stability, family life.” After reviewing the record, we agree

that factor (6) was properly applied in sentencing the Defendant.

 

The final enhancement factor at issue is factor (7), which requires that the

offense be committed to gratify the defendant’s desire for pleasure or excitement.

Tenn. Code Ann. § 40-35-114(7). The State has the burden of demonstrating

that a crime is sexually motivated. State v. Adams, 864 S.W.2d 31, 35 (Tenn.

1993); State v. Clabo, 905 S.W.2d 197, 206-07 (Tenn. Crim. App. 1995); State

v. Smith, 910 S.W.2d 457, 460 (Tenn. Crim. App. 1995). In the case at hand, the

trial judge stated that he believed a court should presume that a crime of this

nature is sexually motivated unless there is evidence to the contrary. While we
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respectfully disagree with the trial court’s statement, we believe that there is

sufficient evidence in this case to uphold application of factor (7). Tenn. Code

Ann. § 40-35-114(7); see State v. Kissinger, 922 S.W.2d 482, 491 (Tenn. 1996);

State v. James Lloyd Julian, II, No. 03C01-9511-CV-00371, 1997 WL 412539

(Tenn. Crim. App., Knoxville, July 24, 1997). 

The record reflects that the Defendant kidnapped the victim for the express

purpose of raping her. The Defendant abducted the victim and drove her

immediately to a secluded spot in Arkansas, asking her on the way to pull up her

skirt so that he could see her legs. As he ripped her pantyhose, he was already

ejaculating. He then penetrated the victim , both orally and with his penis, over

nearly a two hour period. Therefore, the trial court properly applied this factor in

sentencing the Defendant. 

Finally, the Defendant argues that Tennessee Code Annotated § 39-13-

305(b)(2) should have been applied in sentencing him. This section provides that

“[i]f the offender voluntarily releases the victim alive . . . , such action[] shall be

considered by the court as a mitigating factor at the time of sentencing.” Tenn.

Code Ann. § 39-13-305(b)(2). We find no indication in the record that the trial

court applied this factor when sentencing the Defendant. However, in light of all

circumstances, we do not believe that this factor is of sufficient weight to warrant

reducing the sentence imposed on the Defendant by the trial court. 

We therefore affirm the Defendant’s conviction and sentence of twenty-five

years for the crime of especially aggravated kidnapping. 
-18-

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE