### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 10, 2001 Sess

ion
STATE OF TENNESSEE v. ANTHONY H. DEAN
Direct Appeal from the Criminal Court for Shelby County No. 98-14047 James C. Beasley, Jr., Judge

No. W2000-01156-CCA-R3-CD - Filed September 28, 2001

The defendant was convicted of aggravat

ed rape and sent

enced to forty

years as a

violent offender. He timely appealed, alleging, inter alia , that the trial cou rt erred in not suppressi ng a confession obtained, following his warrantless arrest, after he had been jailed for f ive days without a determination of

probable cause; in allowing DNA results into evidence; and in permitting a fo

rensic
nurse examiner to testify as a keeper of the sexual assault resource center records. Based upon our review, we conclude that testimony regarding the records of

the Memphis Sexual Assault Resource Center was properly admitted as business records testimony a nd that the DNA evidence was properly admitted, as well. We conclude that the defendant’s confinement violated his Fourth Amendment rights and that his confession should have been suppressed. Howev er, this error was harml ess in light of the other evidence. Accordingly, we a ffirm the conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., delivered the opinion o f the court , in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.

A C Wharton, Jr., Shelby County Public Defender; and W. Mark Ward, Assistant Public Defender, for the appellant, Anthony H. Dean.

Paul G. Summers, Attorne y General

and Reporter; J . Ross Dyer , Assistant Attorne y General ; William L. Gibbons, District Attorney General; J. Robert Carter, Assistant District Attorney General; and Paula Wulff, Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION

The defendant, Antho

ny H. Dean,

was convicte

d in th e Shelby County Criminal Court of aggravated

rape and sentenced to

forty y ears imprisonment

as a violent offe

nder. In his

appeal, he presents the follo

wing issues:-2- I. The evidence of app

ellant’s identity

as the culprit

is insufficient to support the verd

ict beyond a

reasonable doub

t.

II. The trial judge erred in failing to suppre

ss appellant’s confession and DNA evidence that was the “fruit of the poisonous tree” of his i llegal detention without prompt presentation before a magis trate as required by the Fourth Amendm

ent of the U.S. Constitution and Article I, Section 7 of the Te nnessee Constitution.

III. The trial judg e err ed in allowing into evidence the bus

iness records of the S exual A ssault Resource Ce nter as business records when they were made for the sole purpose of litigation.

IV. The trial judge err ed in refusing to

strike the testimony concerning the DNA test ing of the appellant whe n the State failedto satisfy the

“chain of evid

e nce” requirement for admissibility of such evidence.

V. The errors which

allo wed into evidence both the alleged confession and the DNA testimony were such that their cumulative effect cannot be considered harmless error.

VI. The trial judge misap plied the enhanc

eme nt fact ors in sentencing appellant to the ma

ximum sentence of 40

years.
We conclude that the defendant’s co nfession, taken o

n the fifth day

of his confinemen

t, following his warrantless arrest, without a determination of probable cause, was in violation of his Fourth Amendment rights

although his rig

hts were not violated by the taking of a DNA sample from him, pursuant to a search warrant, while he was inc arce rat ed. Acco rdi ngly, it was error to admit the confession during the tria l but not the DNA evi

dence. We furthe

r conclude that th

ere was a sufficient showing as to the chain of custody of the defendant’s blood sample resulting in testimony that the defendant’s

DNA matched the s

emen sample

from the victim. As a result, we find that the admi ssion of the confession was harmless. Alth

ough the trial co

urt relied upon two

inapplicable enhancement

factors, the remaining factors justify the imposition of the sentence. Accordingly, we affirm the judg

ment of the trial c

ourt.1 Because of the nature o f the crime, we will identify the victim by her initials.
-3- DISCUSSION

The victim, R.G., 1 who was 92 ye ars old at the time

of trial, testified that as of the day of the crime, August 1, 1998, she was 89 years old, turning 90 about two weeks later. She said that she was awakened at about 4 a.m. after a man had come into her apartment through her balcony glass door. As she tried to rise

from the bed, the intruder grabb ed her throat and

pushed her back.

He tried to penetrate both her vagina

and her anus, but was unsuccessful at first. However, on a second attemp t, he did penetrate her vagina. As a result of the attack, the victim

sustained tears a

nd a laceration i

n her vagina and still had stiffness in her neck and pain in both

her arm and shoulder at the time of the trial. Also, because of the position she was forced into during the rape,she had to begin using a cane or a walker, and

was still doing so a

t the time of trial.

She testified that she recognized the intruder because he had beenin her apartment the day before the attack. She had noticed him near her apartment door, and he said that he lived in a nearby apartment and had not seen on

e like hers. She inv

ited him in

and, during thei

r conversation, said that she needed to have her hair cut. He told her that he was a barber and could cut her hair. He

left but returned later that

day, coming into her apartment without an invitation and telling the victim that he had come to cut her hair. She told him that she did not want her hair to be cut then, and he left again. While he was in her apartment, she told him that she kept her balcony door open during the night while she was slee

ping. She said tha

t, during one of h

er conversation

s with the defendant prior to the rape, he told her that he lived in apartm

ent 1011 with anothe

r person. Subseque

ntly, when f

irst interviewed, the defendant was in apartment 1011. The victim lived in apartment 1001. During direct e

xamination, the victi

mtestified that she had picked out a photograph of the
man who attacked

her, first saying, “That’s the one I picke d out and signed my name under it,” and then explaining that

she “[m]ight not have been positive but that’s the one I picked out.” When asked, during her trial testimony, whether the man who raped her was in the courtroom, she identified the defendant, s aying, “H e’s sitting over

there. I saw

him when he came in.” She a lso identified the defendant’s black and white tennis shoes as being like those worn by her attacker. During cross-examination, the victim was asked if, apparently during the preliminary hearing, she hadidentified anothe

r man in the General Sessions courtroom as her attacker and appeared to deny that she haddone so. However , Judge Tim

Dwyer, of the Shelby County General Sessions Criminal Court, testifying as a defense witness, recalled that the victim, in her whee lchair, had testified

during the preliminary hearing and had identified another man as he r attacker.

Michael Carl Davis, who was the janitor and also a resident of the sa

me apartment building where the victim lived, testified that he lived in apartment 1101, which was directly above the victim’s apartment. He said that o n the morning the v

ictim was attacke

d, he was awaken

ed just before 4 a.m . when a man , whom he identified as the defendant, came into his apartment. When Davis asked the defen

dant why he w

as there, the def

endant replied, “

I was ju st hollerin g at you.” Davis recognize

d the defendant a

s having been in t

he building on pre

vious occasions tr

ying to get-4-

residents to let him cut their hair. He said that he was shown a series of photographs either later that day or the following day, and identified the photograph of the defendant as the man who had earlier askedto cut his hair and who had entered his apartment the morning of the rape. Additionally , he identified the defendant in the courtroom as the same man.

Sandra K. Anderson, a sexual assault nurse examiner with t he Mem phis Sexual Assault Resource Center (“MSARC”), testified that she hadmet with the victim at the hospital on the day of the rape and collected evidence consisting of vaginal and oral swabs, a blood standard for DNA analysis, and pubic hairs. She described the injuries, which she observed to the victim, and said that she had placed th

e rape kit in a loc

ked storage ar

ea of the MSARC. Sergeant Donald Ray Dickerson, a sex crimes investigator with the Memphis Police Department,

testified that

he had met with the victim on the day of the rape at the Regional Medical Center in Memphis. After she gave him a description of the man who had raped her,he then began talking with residents of the apartment building to see if any of them recognized the man from the description. He was told

that a man meeting the description “frequent[ed]” an apartment which was
on the same

floor and a few units aw

ay from tha

t of the victim. Afte

r several visits w

ith no response to apartment 1011, the door was opened by

a man, whom Dicke

rson later identif

ied as the defend

ant. Dickersonobserved that

the defendant matched the description given by the victim of her attacker. During this visit to the apartment, Dickerson saw a pair o f tenni s shoes matching the victim’s description of the shoes worn by her attacker. The defendant said that his name was “Tony Adams” andgave several

different date

s of birth. He also g

ave Dickerson hi

s mother’s name and telephone number but, after talking with her, Dickerson determined that the man with wh om he had s poken
was not Tony Adams but was the defendant, Anthony Ha rold Dean. W ith this information, Dickersonobtained a photograph of the defendant and showed it, along with photographs

of others, to Michael Carl Davis. From this group, Davis identified that of the defendant as being the man who hadcome into his apartment on the morning of the rape. He also showed the photospread to the victim, and she ide

ntified and signe

d her name to a pho

tograph of the d

efendant.

Dickersonthen distributed a photograph of the defendant to other police officers because he wantedto question the defendant. Hewas notified on August 5, 1998, that the defendant had been taken int o cu sto dy. Taken from the defendant at that time were the tennis shoes he was wearing and
an entry card for the apartment building. Dickerson interview ed the defendant, who denied the rape or that he had been in thebuilding when it oc curred. The def

endant remained

in jail, and, on Aug

ust 10, Dickerson obtained and served on the defendant a search warrant to take hair and bl

ood samples, after the defendant had refused to voluntarily provide them. When the search warrant was served on the defendant, he told Dickerson that he wanted to talk about the case.

In the intervi

ew room, the defendant again was advised of his rights and gave a stateme

nt, which was read to the jury, admitting that he had entered the victim’s apartment and raped her. After the statement was completed, blood and hair samples were obtained from the defendan t by an employee of the MSARC, who also photographed the defendant and took his thumbprint.-5-

Dickersonsaid that, at the preli minary hearing, the victim had identified another man as the person who had raped her. In redirect examinat ion, Dic kerson said that the victim was in a wheelchair

during the preliminary hearing and that the defendant was standing in a group of nine or ten black males, all dressed in j ail- issued clothing, when the victim identified another as her
as sailant. H e described the person whom she identified as having “a lot of similarities” with the defendant,

mean ing t hey “had the approximate height, same height, same stature, build and somewhat complexion-wise” and the same “hairstyle.” Sally DiScenza, a forensic

nurse examiner with the MSARC, testified as to the records of the Center, consisting of samples taken from the victim following the rape and b loo d drawn from the defendant for DNA analy

sis. This evidence was provided to the Tennessee Bureau of Investigation (“TBI”) for examination and comparison.

Steven M. Wiechman, w ho at the time of the trial was employed by the Ohio B ureau of Criminal Identification and Inve stigatio n and a former em ployee of th

e TBI Crime L

aboratory in Jackson, Tennessee, testified that while he was with the TBI, as a specia l agent forensi

c scientist, he had received and

performed tests o

n the rape kit in this

matter. He determined that spermatozoa andsemen were present on the vaginal swabs and slide taken from the victim. He then sent the vaginal swabs and blood standard from the victim, as well as a second kit which contained a blood standard from the

defendant, to the

TBI Lab oratory in N

ashville for DNA a

nalysis. Raymond DePriest, a

special agent f

orensic scientist with the TBI in Nashville, testified that he received and perf

ormed tes ts on the swabs from the victim and the blood sample from the defendant. Utilizing DNA profiling, he determined that the sperm fraction of both the vaginal and vulvar swabs from the victim matched the blood sample taken from the defendant. He testified that the “statistical probability of someone else being a contributor [of the sperm samples] is 1 in 6 billion.” During cross-examination, he explained that this estimate

actually was conservative and that the probability that a person other than the defendant had

contributed the sperm recovered from the victim was one in forty-one quadrillion. Following the testimony of

Agent DePriest,

the State rested its case.

Kenneth Robinson, testifying as a defense witness, said that he was the building engineer for the apartment building in which th e victim lived. He s aid that the apar

tments, including

that in
w hi ch the victim resided, had balconies approximately three feet wide which extended to the stairwells. A photograph identified by the victim of the buildin

g showed that a h

orizontal, concre

te ledge ran al ongside each of the balconies and extended beyond them. Robinson testified that by standing on this ledge and holding onto

balcony railings, a person cou ld go fro m ba lco ny to bal con y.
ANALYSIS

Because of the relationship of the issues presented by the defendant, we

will consider them in an order diffe

rent from that set

out by the pa

rties.-6- I. Suppression of Confession and DNA Evidence

The defendant argues that both his confession and DNA evidenceresulting from the search warrant should have been suppressed because he was not taken timely befor e a magistrate. T

he State agrees that his appeara

nce was not timely

but argues that t

his fact does not r

equir e suppression of the confession or DNA evidence.

Relevant to our consideration is Tennessee Rule of Criminal Procedure 5(a) , which provides: Any person arrested except upon a capias pursuant to

an indictment
or presentment shal

l be taken without unnecess ary delay before the nearest appropriate mag

istrate of the county from

which the warrant for arrest issued, or the county in which the alleged offense oc curred if the arrest was made without a warrant unless a citation is issued pursuant to Rule 3.5. If a person arreste d without a warra

nt is brought before a magistrate, an affidavit of complaint shall be filed f orthwith. When an arrested person appears initially before a magistrate, the magistrate sha ll proceed in accordance with this rule.

Our supreme court explained, in State v. Carter , 16 S.W.3d 762, 765-66 (Tenn. 2000), the ba sis for the rule limiting the period of time an arrestee can be held in jail without a f inding o f probable cause:

The Fourth Amendment requires a prompt judi cial determinatio n of probable cause as a prerequisite to the ex tended detention of an individual after a

warrantless ar

rest. Gerstein v. Pugh , 420 U.S. 103, 114, 125, 95 S. Ct. 854, 863, 869, 43 L. Ed. 2d 54, 65, 72 (1975). Absent a bona fid

e emergency or extraordinary circumstance, a j udicial determination of probable cause is “prompt” if it occu r s within 48 hours. Riverside v. McL aughlin , 500 U.S. 44, 56-7, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49, 63 (1991). In making a judicial determin a tion of probable cau se, a full, adver

sarial proceed

ing is
unn eces sar y. Gerstein , 420 U.S. at 118-22, 95 S. Ct . at 86 5-67, 43 L. Ed. 2d at 68-70. This is so because the s tandard for prob

able cause for prolon geddetention is the same as the standard for determining probable cause for arrest--a standard “traditionally dec ided

. . . b y a magi strate in a nonadversary proceeding on hearsa y and written tes tim ony. . . .” Gerstein , 420 U.S. at 120, 95 S. Ct. at 866, 43 L. Ed. 2d at 69.

The parties agree that the defendant was not taken before a magistrate without “unnecessary delay,”that a blood sample was taken from him pursuant to a search warrant, the validity of whic h is not challenged, during

his fifth day of incarceration, and that he gave a confession to the charges-7-

also on the fifth day. We will now consider whether, as urged by the defense, either or both of these items of evidence must be suppressed.

The chronology

, upon which we ba

se our analy

sis, begins with the

defendant’s wa

rrantless arrest on August 5, 1998, at 8:15 p.m. and continuing incarceration. The record on appeal contains
an a ffida vit of complaint, executed by Sergeant Dickerson on August 9, 1998, before the Shelby County General Sessions Court Clerk but not an arrest warrant. Although the State referred to the August 9 document as the “affidavit of complaint, the State arrest warrant,” this is not the ca se. It appears to be a recitation of alleged probable cause for the arre st of the defenda

nt, as set out in Tennessee Rule of Criminal Procedure 3. However, the document does not reflect that, based upon the allegations, a finding of probable cause was made. See Ten n. R . Cr im. P. 4 . Ap pare ntl y, he was first taken before a

general sessio

ns judge on Augu

st 11. Because of the lack

of clarity in the record, we are not presu

ming that an arr

est warrant was

issued on August 9 , as the State asse rts.
A. Confession

The defendant argues that the trial court mistakenly combined the fac tors in determining whether the defendant’s confession must be suppressed because of the Rule 5(a), Tennessee Rules of Criminal Procedure, violation with those used to ascertain whether it should be suppressed be cause of the Fourth Amendment violation. We agr

ee with the defe

ndant’s analy

sis that these det erm ina tio ns, hav ing d iff eren t co nsi dera tio ns, mus t be mad e sep arat ely.
First, we will consider th

e effect of the

Tennessee Rule

of Criminal Procedure 5(a) violation. In making this determination, we will apply the factors set out in People v. Cipriano , 429 N.W.2d 781 (Mich. 1988), which were adopted by our supreme court in State v. Huddlest on , 924 S.W.2d 666, 671 (Tenn. 1996). To ascert ain whether the d

efendant’s con

fession must be supp

ressed because of the admitted Rule 5(a) violation, we must consider:

[T]he age of the accused; his lack of educ ation or his intelligence level; the extent of his previous experience with th e police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement

in question; the lack of any advice to the

accused of his c

onstitutional righ

ts; whether there was an unnecessary delayin bringing him befor e a magistrate beforehe gave the confession ; whether the accu s ed was injured, intoxicated or drugged, o r in ill health

when he gave the sta

tement; whether the accused

was deprived of food, sleepor medical attention; whether the accused was physically a bused; and whether

the suspect was threatened with abuse.

Id. (quoting Cipriano , 429 N.W.2d at 790).-8-

We will now review the applicable considerations. According to the presentence report, the defendant was 37 years of age at the time of his arrest. He was a high school graduate and said that he had attended State Technical Institute at Me

mphis, although his

attendance cou

ld not be verified. His first arrest shown on the presentence re port was in 1984, an

d, between that tim

e and his arrest on the rape charge, he had been arrested at least twenty times. These arr ests had res ulted in convictions for two Class C felonies, robbery and aggrava ted burglary, a

nd two Class E feloni

es, escape and attempted felony. In addition, he had approximately ten misdemeanor convictions and hadbeen charged

with being a par

ole violator. Fro

m all of this, it appears that the defendant is at least of averag

e intelligence

and is very e

xperienced with the

criminal process

. While incarcerated

, the defendant w

as questioned twic

e about the incide

nt, and both of his statement s, the first a denial and the second a c

onfession, were

typed and c

ontained his Miranda rights. According to Sergeant Dickerson, the seco nd statement, which the defendant signed, was spontaneous,

initiated by t

he defendant as

a sear ch warrant was being executed for the taking of
sa mples o f bodily fluids from him for DNA analysis. Although the de fendant was detained for nearly five days before giving a confession, no proof was presented that the defendant suffered deprivation during t his period , other than that resulting from confinement and from not being allowedto contact a

relative or an attorney. There was no proof that he was injured, dr

ugged, or in ill health at the time he confessed, or that he was threatened or abused to give the confession.

Based upo n thes e factors, we conclude that the defendant’s confession need not be suppressed despite the Rule 5(a) violation.

We will next consider whether the Fourth Amendment requires suppression of the confession. The factors in this consideration were outlined in Carter , 16 S.W.3d at 766:

In State v. Huddleston , this Court determined that when a person confes se s after having been detained for more than 48 hours following an arrest without a warrant and without a judicial determination of probable cause, the confession should be excluded unless the prosecution establishes that the confession “‘was sufficie ntly an act of free will to purge the primary taint of the unlawful invasion. ’” 924 S.W. 2d 666 (Tenn . 1996) (qu oting Brown
v. Illinois , 422 U.S. 590, 599, 95 S. Ct. 2254, 2261, 45 L. Ed. 2d 416, 424 (1975)). Four factors gui de the issue of admissibility: “(1) the presenceor absence of Miranda warnings; (2) th

e temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances;

and fin all y, of particular

significance,

(4) the purpose and flagrancy of the official misconduct.” Huddleston , 924 S.W.2d at 674-75 (cit ing Brown , 422 U.S. at 603-04, 95 S. Ct. at 2261-62, 45 L. Ed. 2d at 4 27). The bur den is o n th e St ate to p rov e by a preponderance

of the evidence the admissibility of a c onfe ssion obtained under the circumstances here presented. Id. at 675.-9-

We first note that

the defendant was a

dvised of his Miranda

rights prior to his first statement
on August 5 and, again, be fore h is statement was taken on August 10. Accordingly, this factor favors admission o

f the statement.
Next, we consider the “

temporal proximity

of the arrest a

nd the c onfession.” Here, the defendant was he

ld in the Shelby

County Jail

for approximately five days before confessing to the rape. This factor weighs in favor of suppression of the confession.

The record does not r eveal any attenuating cir

cumstances such a

s visits or telephone

calls with relatives, as occurred in Carter , which might have purged or attenuated the illegal detention

. In fact, the def

end ant did not speak with his mother until after he had made the confession. Accordingly, this factor weighs in favor of suppre ssion of the confession.

As for wh y the defendant was arrested and held for nearly five days before being charg ed, Sergeant Dickerson testi

fied that he had “conferred with an AG about the case, and we had other wit nesses that we had to obtain statements from.” Later in his testimony, he amplified hi s ex planati on by saying that, after the rape, the victim had been taken to a hospital and then to a nursing home, and he had trouble locating her and two other witnesses.

In this reg ard, we note that according to th

e handwritten sig

natures and date

s on th e defendant’s photograph, he was identified by the victim on August 4, 1998, at 2:30 p.m., and by the victim’s neighbor, MichaelC. Davis, on Augus t 8, 1998, at 1:20 p.m.

Thus, the defendant having been identified by the victim prior to his being arrested, it woul

d appear that pro

bable cause

existed for the ar rest, although the strength of the photograph identification may have been questionable, given the victim’ s explanation at tria l.

In weighing the

applicable factors, we will review the manners in which our supreme court performed the same task in the similar cases of Huddlestonand Carter

. In Huddleston , the only factor favoring admission of the defendant’s statement was the fact that he hadbeen advised of

his rights prior to the interview. Favoring suppression of the statement
were the facts that the

st atemen t was given approximately seventy-two hours a fter the arrest, the absence of attenuating circumstances, and that the arresting office r, believing that he did not have sufficient evi dence to obt ain a warrant, elected to hold the defendant in jail in order to further investigate

the ma tter. Weighin

g these factors, the court determined that the confession was obtained in violation of the defendant’s Fourth Amendment rights and should be suppressed.

In Carter , weighing against suppression were the facts that the defendant had been advised of his rights both when he was arrested and prior to giving the confession; had b

oth met in jail with relatives and be

en allowed unres

tricted telephon

e calls prior to

giving the state

ment; and probable
cause ex isted for the initia

l warrantless ar

rest, with no indica

tion that the deten

tion was f

or th e purpose of additional investigation. The only factor favoring suppression w as the fac t that the-10-

confession was obtained aft er seventy

-two hours of dete

ntio n, pro bable cause for the arrest not having been determined

by a magist

rate. Considering

these factors, our

supreme court determined that although the defendant was held in violation of the Fourth Amendment, the confession was not the product of an unlawful detention.

In the instant c

ase, the only

factor which cle

arly would

favor admission of

the statement is that the defendant was advised of his rights both prior to his initial statement of denial and to his confession. We also note that, arguably, probable cause would have existed for the arrest, based upon the victim’s identif icati on of a phot ograph of the defendant, although the strength of that identification is challenged by the defense. Alt

hough the defen

dant, himself, initiated the confession as a search war

rant was being s

erved on him

for the taking of bod

ily fluids for

DNA analys

is, this is not one of the enumerated factors in determining whether a confession must be suppressed be

cause of a Fourth Amendment violation. Thus, making an analysis like those in Huddleston and Carter , we conclude that the defendant’s confession should have been suppressed by the trial court. We will review the additional claims of erro r by the def endant before d

etermining whe

ther the error in allowing the jury to hear the defendant’s confession must result in rever sal of the conviction. B. Hair and Bodily Fluid Sam ples from Defendant

The defendant also argues that because of his being jailed in violation of his F ourth Amendment rights, the taking of hair and bodily fluids from him pursuant to a search warrant was illegal, and the results should have been suppre ssed. He does not dispute that the search warrant establishe d prob able cause fo r the takin g of such samp les from hi m. Citing Davis v. Mississippi , 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), the defendant argues that the DNA evidence
was a “fruit” of his illegal deten tion. However, in Davis , the defendant h ad objected to his fingerprints

being matched

to latent fingerp

rints left at the c

rime scene when

he and approximate

ly twenty-three

others had been taken into custody, without probable cause, where they were fingerprinted

and briefly questioned. Those circumstances differ greatly from the chronolo

gy in this matter.

In the instant case, the victim had identified the defendant, ac cord ing to the date on his photograph, the day before he was tak en i nto cus tod y. Aft er he had refu sed to p rov ide , vo lun tar ily, samples of his bodily fluids , police obtained a search warra

nt, the validity

of which is

not questioned, the warrant not appearing to rely upon any thing that had

occurred during the unlawful detention to establish probable cause. Accordingly

, we conclude tha

t although there

was a temporal re

lationship betweenthe illegal arr

est and the execution of the search warrant for bodily fluids, the connection, if any, between the dete

ntion and the proba

ble cause for the

search warra

nt was “so attenua

ted as to dissipate the tai n t.” Segura v. United States , 468 U.S. 796, 805, 104 S. Ct. 3380, 3385, 82 L. Ed. 2d 599 (1984) (quoting Nardone v. United States , 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939)); see also United States v. Ponce , 947 F.2d 646, 651 ( 2nd Cir. 1991) (“[A]p

parently illegal detention of defendants did not taint the subsequent search because the police later obtained a valid search warrant.”).-11-

Thus, we conclude that the obtaining of the defe ndant’s bodil

y fluids purs

uant to a valid search warrant was neither the

“fruit” of, nor tainted by, the illegal detention. Accordingly, we find no error in admission of the DNA evidence.

II. Admissibility of M

SARC Records as Business Records

The defe ndant argues that the trial court erred in allowing admission of records of the MSARC as business re

cords. We will now c

onsider that claim

. Rule 803(6) of the

Tennessee Rules o

f Evidence provi

des:

Records of Regularly

Con duc ted Act ivi ty. - A memorandum, re port, record, or data compilatio n in any form

of acts, event s, conditions, opinions, or diagnoses made at or near the time by or from information transmitted by a person wit h knowledge and a business duty to reco rd or transmit if kept in th e course of a re

gularly cond u ctedbusiness activity and if it was the regular practice of that bu siness activity to ma

ke the memorandum

, report, recor

d, or data compilation, all as shown by the testimony of the custodian or other qualifiedwitness, unless the source of information or themethod or circumstances of preparation indica te lack of trustworthiness. The term“business” as used on this paragraph includes every kind of business, institution, association, profession, occupation, and callin g, whether or not co

nducted for prof

it.

Two objections were presented by the defendant to t

he entry of

MSARC records as bu

siness records. The first was that Forensic Nur se Exam iner Sally DiScenza was not the “keeper” of the records. However, Rule 80 3(6) does not impose

that requiremen

t, as exp lained by Neil P. Cohen et al., Tennessee Law of Evidence , § 8.11[11] (4th ed. 2000) (footnotes omitted ), in pertinent pa

rt:
Rule 803(6) simply provides that the witness be the recor d s “custodian or other qualified witness.” Typically that witness will be in charge of

maintaining records of the particular business, but other employeesor officers or appropriately informed witn esses could be used as well. The k ey i s that the witness have knowledge of the method of preparing and preserving the records . If no witness is available to testify, th

e records cann

ot be authenticat

ed as business records, unless the parties stipulate to authentication.

Based upon Ms. DiScenza’s duties and experie nce, we conclud

e that she was a

“custodian or other qualified witness

” and, as such, qu

alified to testify

as to the business r

ecords.-12-

Add iti ona lly, the de fendant co ntends that even if the MSARC records are “business records,” they cannot come within

the Rule 803(6) hearsay exception because they were prepared for the purpose of litigation. We disagree with this argument. The distinction be tween records prepared in the normal course of business, as were the MSARC records about which testimony was given, and records used only incidentally in litigation, as opposed to being pre pared for it, was explai ned by Neil P. Cohen et al., Tennessee Law of Evidence , § 8.11[6] (4th ed. 2000):

In order to have suf

ficientindicia of trustwo

rthiness to qualify

as a business record

under Rule 803(6), the record must have been made in the “regular practice of that business activity,” and i t must ha ve been “kept in the cours

e of a regularly conducted business activity .” An extraordi nary repo

rt prepared for

an irregular p

urpose, particul

arl y when prepared with

litigation in mind, m

ay not be mad

e inthe regular
course of business and may

be i nadmissible as a business record under Rule 803(6). On the other ha nd, an investigative accident report com piled by a business as a routine matter should not be exclud ed sol ely because litigation sometimes ensues following an accident.

The testimony established that MSARC records were made in the regular course of the Center’s business, although, obviously, such records might be used in legal proceedings. However, that possibility did not mea

n that the r ecords were “dripping with motivations to misrepresent,” Hoffmanv. Palmer , 129 F.2d 976, 991 (2nd Cir. 1942), as might have been the case had they been prepared specifically

for use in lit igat ion . Ac cord ingl y, we conclude that the MSARC records were admissible as business records. See State v. Goldston , 29 S.W.3d 537, 540-42 (Tenn. Crim. App. 1999) (holding th at records o f Bradley Memori al Hospita l and Erlange r Medica l Center of defendant’s blood tests were admissible as business records for prosecution of defendant for DUI)

. III. Chain of Custody of DNA Evidence

We will next examine the defendant’s claim that the evidence was insufficient to establish the chain of custody to permit admission of the DNA evidence. O u r supreme court explained the necessity and purpose of such proof:

As required by Rule of Evidence 901(a), it is “well-established that as a condition precedent

to the introduction of

tangible evidence,
a witness must be able to ident ify th e evidence or establish an unbroken chain of custody.” State v. Holbrooks , 983 S.W.2d 6 97, 701 (Tenn. Crim. App. 1 998); see also, e.g

. , S tate v. Cameron , 909 S.W.2d 836, 850 (Tenn. Cri m. App. 1995). The purpose of the chain of custody requirement is “to demonstrate that there has been no tampering, loss, substitution, or mi stake with respec t to the evidence.” See State v. Braden , 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993).-13- The identity of tangible evidence, however , need not be proven beyond all possibility of doubt, see State v. Holloman , 835 S.W.2d 42, 46 (Tenn. Crim . App. 1992 ), and the State is n ot required to establish facts which exclude every possibility of tampering , see State
v. Ferguso

n , 741 S. W.2d 125, 127 (Tenn. Crim. App. 1987). The evidence may be admitted when the circumstances surrounding the evidence reasonably

establis h the identity o

f the evidence a

nd its int egri ty. Holloman , 835 S.W.2d at 46. Absent sufficient proof of the chain of custody, however, the “evidence should not be admitted

. . . unless both identity and integrity can be demonstra t ed b y o ther appropriate

me ans.” Neil P. Cohen, et al., Tennessee Law of Evidence § 901.12, at 624 (3d ed. 1995).

State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000).

To assess the defendant’s

claim, we will review the evidence from the taking of samples from the victim and the drawing of blood samples from the defendant to the testing of the samples at the TBI Labora tor y in Nashville, which was the final destination in the chain. Sandra Anderson, a sexual assault nurse examiner with the MSARC, testified that she had collected vaginal and or a l swabs, a blood standard, and pub ic hairs from the vic

tim, which she put in a

rape kit and plac

ed in a locked storag

e area at the MSA

RC. Sergeant Dickerson t estified t hat he was present when samples of blood were drawn from the defendant and placed into one or two vials by an employee from

the MSARC. The person who drew the samples did not testify. Dickerson said that the employee who took the sa mples from the defendant also took his photograph and thumbprint, and placed on the vial(s) an adhesive label with “the necessary information.” Sally DiScenza, a fore

nsic nurse examine

r with the MSARC, testified that her office keeps records regarding the drawing of blood samples from suspects, the Center being under a duty to do so, and the records

being made nea

r the time the blood i

s drawn. Accord

ing to their

records, the blood samples from

the defendant were drawn by their former employee, Jo Jones, who had since retired, and were received at the Center by “L. Henderson,” who was not called to testify.

DiScenza testified that the

Center’s standar

d procedure, wh

en asked to draw b

lood from a suspect, was to use a vacutainer, which would automatically move the blood from the s

terile needle in the suspect’s arm into a sterile tube. A sterile needle would then be used to withdraw blood from the tube and put it onto a blood standard. She sai d that samples are

put into envelopes,

upon which
are written the suspect’s name, the date and time the blood was collected, and the signature of the nurse-clinicianwho performed the tasks. As an additional safeguard, at the time the samples are drawn, a photograph is taken of the suspect, and he is fingerprinted.-14-

DiScenza was familiar with and identified thesignature of Jone s, but was unable

to identify that of Henderson, with which she was not familiar. The file contai ned aphotograph bearing the initials “J.J.” and the date August 10, 1998. The photograph bore the name “A. Dean,” the number 98-0030, and two fingerprints, one in red and the other one in black. A lthough not made an exhibit, the photograph was sh own to the jury. On the same page as the photograph, the f ile bore the MSARC number 98-0030, a notation that the sample was collected on August 10, 1998, at 2:00 p.m., andthe suspect’s nam

e , Anth ony Dean, age 37, date of birth September 25, 1959, as well as Memphis Police Department number 980800107. The Center’s records showed that the samples from the defendant, consisting of “[a] dried blood standa rd, a pubic hair c

ombing, and head

hair sample, as well as a saliva standard” were sent to the TBI L aboratory in Nashville. The victim’s vaginal swabs and bl ood st andar d were sent t o the T BI La borat ory in Jackson. Until shipment, specimens from the defendant were kept in a locked evidence room. She said that the samples were kept under case number 980800107.

DiScenza testified that the Center’s proce dure did not permit any items to be removed from a file, or for files to bechecked out. She said that all of their files contain exactly the same sort of information and have the same number of page

s. The defendan

t’s fil e, about whic

h she was testifying, contained the standard contents.

Steven Wiechman testified that he received

MSARC sealed sample kit 980800107 which, after testing, was del

ivered to the TBI L

aboratory in Nashville

under the same number as received in Jackson . He testi fied that “there was also a second kit from the subject that contained a blood standardin that,” and he se nt this kit as well to

the TBI Laboratory

in Nashville. He said that Loren Henderson had brought the evidence from Memphis to Jackson. Agent Raymond DePriest, of the Nashville TBI Laboratory, testified that he rece ived a sealed envelope from the TBI evidence vault on October 20 , 1 998, and began DNA profiling on the contentson Nov emb er 19, 1998. He stated that he had received a “swatch,” which consisted of a “piece of sterile cotton” with a bloodstain from the victim, as well as a swatch with a blood standard from the defendant. Additionally, he received vaginal and vu lvar swab sam ples from the victi m. According to the witness, the DNA profile of the blood swatch of the defendant matched the DNA profile of the sperm fraction of the vaginal swab from the victim.

Because the need for our ascertaining the sufficiency of the chain of custody proof is affected by wh ether the defendant made a timely objection to such evidence, we will first consider the procedural issue, that is, whether the defendant’s chain of custody objection was timely. To put the defendant’s objection into the proper context, we will review its timing. Agent DePriest testified as the State’s final witness on Wednesday, February 2, 2000. The following morning, before the State h ad r ested, the defense argued that the State had made an insufficient

showing as to

the chain of custody, and asked that the court instruct the jury to disregard the DNA proof. After the trial court declined to do so, the defense then asked that a mistrial be-15-

declared, which the trial court also declined to do. The trialcourt later concluded that the defendant had waived his rig

ht to object to the c

hain of custody

by not objec

ting timely:

Oka y. The analysis that I’m making is, had there be en a n objection, and I

don’t know what my ruling would’ve been, but I’ll be honest with you, with

all due respect t

o [the prosecutor’ s] analysis, I’m nota hundred percent satisfied the chain of custody was proven. But there was no objection. The testimony was that these things were done. The testimony was that these witnesses received them, and that they conducted their t

ests on them. That’s what’s in front of the jur y. And it’s my position that I’m not going to come along af ter the fact and say, well, there was no objection to it, and after

the fact I’m going to rule that it’s not

admissible

evidence. It’s already admitted, it’s already in front

[of] the jury, it’s already evidenc e. And as far as I’m concerned it’s proper evidence to be considered by the jury at this point. Although not denominated as such, in arguing that the State’s chain of custody pr oof was deficient,defense counsel, in effect, was presenting a motion to strike, the function and purp

ose of which is explained in Neil P. Cohen etal., Tennessee Law of Evidence , § 1.03[4][c] (4th ed. 2000): Although on most occasions an objection rather than a motion to strike is used, Rule 103(a)(1) sometimes dictates thelatter procedure. A motion to strike, which is essen tiall y a delayed objection, is used frequently

when evidence has been cond itionally admitted, and the condition is not later fulfilled. This motion should be made by counsel opposing the evidence. A motion to strike is

also appropriate any time inadmissible evidence has been heard by the trier

of fact. It may be accompanied by a request for a jury instruction to ignore the evidence.

That “a motion to

strike may properly be made a t any time prior

to the formal closing of the evidentiary record and the final resting of

the case by all parties” was explained in State v. Pilkey , 776 S.W.2d 943, 952 (Tenn. 1989), which further stated:

Nothing in either the ru les o f civil or criminal procedure was
ever intended to eliminate the trial motion to strike evidence from the record or to withdraw it from consideration by a jury. Sometimes

it
can serve as a late o

bjection or a ren

ewed objection, o

r it can serve to strike evidence which ha d previously been conditionally admitted when the condition has not later bee n met. The motion is e

xpressly-16- retained and recognized in the

new rules of

evidence, T.R.E. 103(a), as follows:

Effect of erroneous ruling--Error may not be predicated upon a ruling w

hich admit

s or excludes ev idence unless a substantial right of a party is affected, and
(1) Objection.--In case the r ulin g is one admitting evidence, a

timely objection

or motion to strike appears of record, stat ing the specific ground of objection if the specific ground was not apparent from the context . . . Although counsel did not characterize her obj ection in the present case as a motion to strike, it had the same effect, and the issue
was no t w aived simply because the motion was made after the evidence had been introduced.

Id. at 953.

Based upon these authorities, we conclude that the defendant made a timely objection to the State’s chain of custody proof. Sergeant Dickerson testified

that he observed Jo Jones of the MSARC draw blood from the defendant,

placing the blood into one or two vials. Jones then placed labels on which she had written certain information onto the vial(s).

Add iti ona lly, although the record is not completely clear, DiScenza said that the items from the defendant, including the dried blood standard, were sent from the Center to the TBI Laboratory in Nashville. TBI Agent DePriest from the Nashville L

aboratory testified that the

card, ostensibly witha sample of the de

fendant’s dried

blood, had the initia

ls “SRW,” the se being the initials of Steven Wiechman of the Jackson TBI Laboratory , who testified that his laboratory had received the sealed MSARC package containing samples from the victim and the defendant. Agent DePriest said that he had received the evidence in a sealed

envelope, bearing agency number 980800107. It was then given TBI number 98112128. Regarding the effect on his testing if the samples had be

en contaminated,

he said that it would

have resulted in n

o DNA being pre

sent. Further, he said that if the samples hadbeen “treated i nappropriately

,” he would not hav

e been able to get a DNA profile.

The nature of the proof needed to establish the chain of custody as to a sensitive sample was explained in State v. Scott , 33 S.W.3d 746, 760 (Tenn. 2000):-17- The appellant

maintains that the St

ate failed to

properly e

stablish the chain of custody of the hairs removed from the victim

because the Statecould introduce no proof of how the hairs weremounted on the glass slides for

examination. At tria

l, the State

introduced evidence establishing most of

the links in the chain of

custody. For example, the nurse prac titione r who examined the victim testified that she pl aced all of these hairs collected from th

e victim into a sing

le envelope. A police detective, Steve Kleek, then testified that he took the victim’s rape kit with the hairs to the Tennessee Bureau of Investigation

for analysis and t

hat he later regained custody of the hairs from t he TBI.

Dete ctive Kleek also testified that he was responsible for sending the hairs to the FBI

for DNA analy

sis, and prior

to sending the hairs to the FBI, the

detective noted that

only two hair

s were containe

d in the envelope. When the FBI return e d the hairs to detective Kleek, however, he noted that

two hairs were now mounted on glass slides for use in a microscope. The detective testified that he then sent the mounted hairs for analysis to LabCorp, who confirmed that the hairs were already mounted on slides when they were received.

Our supreme court, in Scott

, co ncl ude d th at t he S tat e had fai led to p rov e th e cha in o f cus tod y, explaining the deficiencies in the proof:

The hairs were not identified by a witness with knowledge that the mounted hair samples were the same hairs as the

ones originally

taken from the victim. Further, we can find no ev idence whatsoev er to show how the hairs cam

e to be mount

ed on the s

lides. We

also can find no evidence to show who mou nted the hairs on the slides or whether the hairs were mounted in a manner sufficiently free of contamination or alteration. Although the hairs were appa ren tly mounted on glass slides by someone with the FBI, no one was able to establish this important “link” in the chain of custody . Without this knowledge, it

is impossible to know wh ether anyo

ne tampered with the evidence, or w hether a nyone had the opportunity to “confuse, misplace, damage, substitute, lose, [or] replace” the hairs at issue. Cf. Cohen, et al., Tenness ee La w of Evidenceat 623-24. Beca use reas onabl e people cannot dis agree that the

State failed to est

ablish this important “link” in the chain, we find that the trial court erred in admitting the analysis of the hai r samples without r easonably establishing their identity and integrity. See Tenn. R. Evid. 901(a). 33 S.W.3d at 761 (footnote omitted).-18-

In the instant case, the MSARC procedure was for Jo Jones, who drew the defendant’s blood, to prepare the sam

ple on the sterile g

auze, which was c

ontained within the

MSARC f

il e. She did nottestify. However, there was no proof that the preparation of the dried sample of the defendant’s blood was as sensitive a procedure as was the making of the slide in Scott , where a mitochondrial DNA analysis had been made. According to Scott , “mtDNA samples are hy persensitive to contami nation, and the particular method of storing and mounting the hairs could ver y wel l compromise

the test results.” Id. at 761 n.13. Thus, with this distinction, and based upon the proof presented, we conclude that the “circumstances surrounding the evidence reasonably

establish the identity of the evidence and its integrity.” Id. at 760 (cit ing State v. Holloman , 835 S.W.2d 42, 46 (Ten n. Cri m. App. 1992)). Although the defendant stressed at trial and on appeal possibilities of tampering and contamination, there was no showing that this occurred. Rather, the State presented minimal but adequate

“proof that the evidence was handled according to normal procedures and that there [was] no indicia of ta mpering.” Neil

P. Cohen et al., Tennessee Law of Evidence , § 901[13][f] (4th ed. 2000). Accordingly, we conclude that the State proved the chain of custo

dy and that,

as a result, admission of the DNA results was not error.

IV. Effect of Erroneou s Admission of Confession

As an issue on appea

l, the defendant c

ontends that the cumulative effect of the erroneous admission of his confession and of the DNA evidence requires reversal of the conviction. However , having concluded that

only the confession was admitted in error, we will now determine whether, in light of that, the conviction can stand.

In Momon v. State , 18 S.W.3d 152, 163-65 (Tenn. 1999), our supreme court explained the application of the harmless e rror doctrine to

constitutional viola

tio ns o ccurring during a criminal trial:

In Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 19 67), the United States Supreme Court rejected the proposition th a t all federal constitutional errors that occur in the
course of a criminal trial require reversal. The Chapman Court held that the Fifth Amendment violation of prosecutorial comment upon the defendant’s fa

ilure to testify

would not require

reversal of a conviction if the State could show “beyond a rea sonable d oubt that the error complained of did not contribute to the verdict ob taine d.” Id

. at 24, 87 S. Ct. at 828. The Chapman standard recog nizes tha t “certain constitutional err

ors, no less

than other errors, may have been ‘harmless’ in terms of

their effect on the

factfinding process at trial.” Delaware v. Van Arsdall , 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986).

Since Chapman , the Court has “re peatedly reaffirmed the principle that an otherwise valid convictionshould not be set aside if2 In State v. Larico S. Ficklin , No. W 2000-0 1534-C CA-R 3-CD , 2001 WL 1 011470 (Tenn. Crim. App . Aug.

27, 2001), the defendant had been arrested without probable cause, and held without a subsequen

t judici al deter minati on of probable cause. His confession, given fif ty-three hours after his

initia l detention,

was determin

ed by thi s court t

o be the produc t of his illegal seizure a nd detentio n. There, u nlike in this matter, t he additional evidence against the defendant
was “circu

mstanti al and cer

tainl y not overwhelm ing,” resulting in the court’s reversing t he conviction and remanding the matter for a new trial. Id. at *10.
-19-

the reviewing court

may confidently say

, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id.

In this case, there was substantial evidence, in addition to the defendant’s confession, upon which the jury could find the defendant was guilty

. He was identified, as has been set out, by both the victim and her neighbor, Michael Carl Davis, the victim saying that the defendant was the man who had raped her, and detailing her previous experience when he had c ome into her apartment asking t o cut her hair. Davis, who lived directly above the victim, testified that, during the ear l y morning hours shortly before t he victim was raped, the defendant had come into his apartment withoutpermission. The DNA evidence established that there was a one in fo rty-on e quadrillion chancethat a

person other than the defendant had deposited the semen found on the vaginal swabs from the victim following the rape. From all of this, we conclude beyond a reasonable doubt that the erroneous a

dmission of the def

endant’s confe

ssion did not affec

t the verdict. 2 V. Sufficiency of the Evidence

The defendant argues that the evidence adduced at trial

was insufficient

to convict him

of the aggravated

rape of the victi

m. Recognizing the standards by which we measure the suffic iency of the evidence, he contends that a careful analysis will show the insuff icien cy of the proof of identification of him as the perpetrator.

In assessing the sufficiency of the evidence, we apply the rule that where sufficiency of the convicting evidence is challenged, the relevant question of the revi ewing cou rt is “whether, after viewing the evidence in

the light most favo

rable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged bey ond a reasonable doubt.” Jackson v
. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (T enn. 1992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 1 3(e) (“Findi ngs of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable do

ubt.”). All questio

ns involving the c

redibility of

witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier

of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty verdict by the jury , approved by the trial judge, accredits thetestimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:-20- This well-settled rule rests on a sound foundation. The trial judge and t he jur y see t he w itn ess es f ace t o fac e, h ear t hei r te sti mon y an d observe their demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility

to be given to the

testimony of w

itnesses. In thetrial forum alone is there human atmosphere and the totality of the evidence canno

t be reproduced

with a written rec

ord in this Court.

Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1 966) (citi ng Carroll v. State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction removes the p resum ption of innocence with which a defendant is initially cl

oaked and repla

ces it with one of g

uilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

As set out in the reci tati on of the testimony, evidence was presented showing that the defendant was living, appa

rently on a t

emporary b

asis, in the same high-rise apartment building as the victim. An entry card, which the defendant had, was nece ssary to enter the building. By utilizing
a common ledge which protruded from the balco nies of th e apartments, a person could enter the victim’s bedroom door, which the intruder used, from the stairwell. Micha

el Carl Davis

testified that the defendant had entered his apartment, nea rby that of the victim, shortly before the victim was raped. He further testified that the defendant had earlier come to his apartment asking to cut his hair. The victim testified that the man who had raped her was the same man who had previo

usly come to her apartment asking to cu t her hair. Additional testimony was that the blood drawn from the defendant matched the semensample taken from the victim. The victim identifi ed the defendan

t in the courtroom as the man who had raped her, and was questioned in detail abo ut he r earlier identifying

a photograph of the defendant and her identifying a person other than thedefendant at the preliminary hearing. Thus, we conclude that there wa s sufficient

proof as to identity, see State
v. Hill , 987 S.W .2d 867, 87 0 (Tenn. Crim. App. 1998), and that the

evidence was suf

ficient to support the conviction. VI. Sentencing

As his final issue, the defendant argues that in sentencing him to the maximum sentence of forty years, the trial court misapplied enhancement factors. Be cause the parties disagree as to which factors were applied by the trial court, we will set out the statement of thetrial court in sentencing the defendant. In sentencing the defendant, the trial court stated:

THE COURT: All right. This is indictment 98-14047, State versus Anthony Dean. Mr. Dean was convicted by a jury of the offense of aggravated

rape, which is a Class A f elony. Based upon the proof that’s been presented to the court via the presentencereport, the court-21- finds that Mr. Dean has previou

sly been co

nvicted of two prio

r Class C felonies. One ind

ictment number92-11129 for the offense of rob bery. The other in indictment number 9 2-11113. He was convictedof the offense of aggravated burg lary. Bo th of those offenses are a Class C felony. A Class C felony being two grades less than the offense of

aggravated rape, which is a Class A felony . The defendant, therefore, would qualify as a Range II multiple offender. With regard to the – so he’s not a – it’s a Range II multiple offender for purposes of sentenci ng. It’s a violent offense. So there’s no release eligibility or parole involved in this offense.

With regard to the e

nhancement fac

tors f ound i n 40-35-114, factor number one, that the defendant has a previous history of criminal convictions or criminal behavio r in addition to those necessary to establish the ap

propriate Range. Thecourt finds that that is an enhancement factor to be con si dered. Again, the presentence report speaks for

itself and will be a part of the record. But the court notes one, two, three, four, five, six, seven, eight, nine, at least nine prior misdemeano r convi ctions. Two prior Class E felonies convictions in addition to the two felon y con victions which have caused Mr. Dean to be a Range II offender.
Further, the court

finds that based on the proof in this case, Mr. Deanwas identifiedas having committ ed as, the best

description, an aggravated

burglary into the house

or the apartment of

, I believe it
was a Mr. Davis, Micha

el Davis on the same

night in question. The testimonyfrom

Mr. Davis was that he was awakened in the middle of the night by

Mr. Dean being

in his apartment.

The cr iminal behavior, I don’t know that I could classify that testimonyenough to call that an aggrav a ted burglary. There’s no proof of any felony to be committed or intent to commit. Because I don’t recall Mr . Dav is testifying that he was missing anything or anything had occurred. Si

mp ly that Mr. Dean awakened him in the middle of the night in

his apartment. But that would con stitute in my mind crimi nal behavior. So, based upon the record that’s been presented to the court andthe testimony that’s been presented in the trial, the court

finds and will put a great deal of emphasis on the fact that Mr. Dean has a lon

g history of

crimin al behavior and criminal convictions in addition to those necessary

to establish

the appropriate Range. I find factor[s] two and three are not applicable in this case.-22- Facto r number four, that the victim of the offense w a s particularly

vulnerable beca

use o f her age or physical or mental dis abi lit y. I don’t find any physical or m ent al d isa bil ity i n th is l ady. Quite to the contra

ry. I f ind that – I think it was [the victim]. From
a mental standpointI find this lady to, frankly , when she testified she
was 93 years old

. I only h ope that my

mental faculties are as good as her’s [sic] are wh

en I’m 93 y

ears old. But I

will add and I w

ill state for the record that

her physical appearance was that of a, obv iou sly,
a 93 year old

lady when she testified. She was small in stature. The court would estimate fiv

e feet to five fe

et two inches, poss

ibly. Frail for her a ge. O r I wo n’t say f or h er ag e, b ut a frai l la dy. And because of that, I think t

here are factors to be considered. And I think the legislaturespelled out when th ey set this – I don’t think that the fact that she has a sharp mind or that she’s capable of crying out necessarily

excludes this. Just as if

the fact that the courts discussed when they discussed the age of a c hil d. Obviously, a two or three year oldchild doesn’t have tha

t capability

to cry out or

to – I guess, they could cry o

ut – but to summon help

or to make identifications or tes tif y. I think the court and the legislature was looking at those. But I don’t think that’s the only thing that the legislature wa

s looking at. And I don’t think that’s the only thing the c ourts lo ok at. Based on the testimony that this court heard in this trial, Mr. Dean went in [the victim’s] apartment earlier that same day. So it was obvious this was nota random

selection of [the vi

ctim’s] apartment a

nd [the victim] as a victim in this case. Mr. Dean h ad been in h er ap art men t th at d ay, hadtalked with her, had visited with her. So Mr. Dean was obviously
awareof her physical size, her physical ability, her ag e. And I don’t think there’s any

thing in this reco

rd to indicate tha

t Mr. Dean had anything other than rape on his mind. The testimony that the court heard was that he came in, dragged her and threw her back in the be d, searched the room for some kind of lubricantand finally wound up using somekind of hair crem e or hair tonic as

a lubricant to pene

trate thi s la dy.

So in the court’s mind based onthe proof that was presented, Mr. Deanwent there with th

e intent to rape her. And I can’t help but look at her size, the frail nature of her size, her age, obviously, and say that Mr. Dean was just as aware of her age and her susceptibility to being manhandledand controlled by him. So I do find, basedon the proof that’s presented in this case, that [the victim] was particul a rly vulnerable

because of her age. And

her physical or her

lack of ability to fight off an indi

vidual such as Mr

. Dean at her age and in the condition that she was in. I do find and I do think the courts and the-23- legislaturehad in mind that – not simply because of age,

but because of the overall fac

ts and cir

cumstance s of the case, that she was particularly

vulnerable. She l

ived alone. She wa

s e lde rly. And I think Mr. Dean knew that and used that as a factor

in picking his victim out. And I think

the courts

or the legislature thinks that that’s
a fac tor that the courts should use in sentencing, above and beyond andnot to belittle in any way any rape victim. But above and beyond

–and I don’t kno w th at yo u can use the term a normal rape vic

tim. I don’t think that – that’s probably a poor choice of words. But I feel that this is a proper

case where the enhancement factor based on the victim’s age a

nd physical ch

aracteristics b

ecause of her a

ge, should be con sidere d by the court. And I intend to use that as an enhancement factor.

Factor number five that

the victim was treated with exceptional cruelty during the commission of the offense. The court accepts the fact that there has to be some proof of bodily injury. And that kind of flows into number six as well. The personal injuries inflicted on the vic tim were part icu lar ly gre at. Tho se t wo i n my min d in this particular case have to flow together somewhat. The testimony, a

s I recall it – and, agai n, t he re cord wil l sp eak f or i tse lf – the tes tim ony, as I recall it, w

as that [the victim] was grabbed by her hair and by one of her legs and tossed back onto the bed by Mr. Dean. And, again, that reiterates her size and her physical ability to fight off an individual by

the presentence report. Mr. Dean is approximate ly six feet one inches [sic] tall and weighs 160 pounds. I don’t even have
an estimate of [the victim’s] weight. But I dare sa y that it would not exceed 10 0 or 110 pounds. Bu t that, again, tha

t’s my obser

vatio n
. That she was tossed –

and I don’t re

callif that was her testimony or her choice of words or my choice of words – but bac k o nto the bed after she attemptedto get up. That Mr. Dean, as delicately as I know how to place this, my recollection of [the victim’s] testimony was that Mr. Dean is an extremely well-endowed man. [The victim’s] testimon y, an d I believe I recall her testimony that she’s a retired nurse, was that she doesn’t think she’s ever seen anybody with the physical characteristics of Mr. Dean. And that, again, he was u nable to penetrate her. He looked around the room to find a lubricant to try to assist him. He attempted to penetrate her anally. That when he did penetrate her vaginally

, because of his s

ize, according

to [the victim

], she felt like she was explod ing in side. It completely tore up her womb. But, further, she indi cated that in orde

r to penetrate

her it was necessary for Mr. Dean to take her leg, a leg of a 90year old woman, putit up over his shoulder and in an extremely awkward position for3 We have been unabl e to fi nd a refer

ence in t he record re

garding i njuries to the vi ctim’s hip.
-24- this lady in orde

r to penetrate her.

And as a result,

she suffered som

e permanent

injuries to her hip. 3 That she was not, in fact, having those types of problems before this. That she remained in the hospital for several days after this rape occurred.

Because of the way in which she was treated, this court finds that she was treated with exceptional cruelty by Mr. Dean. And, again, it goes back to my interpretation of the facts as I saw them.

And that is that there was nothing else on Mr. Dean’s mind other than sexual gratification. He went to

this apartment with

one thing on his

mind, that’s apparent to

the court, and he accomplished that one thing. And [the victim], who he had previously met an d seen, w as unable to fending [sic] him off in any form or fashion. And Mr. Dean knew that when he went

in that apartment.

I do find that the injuries that were inflicted to her wer e particularly

great. However, I am

not going to – I find that that is an enhancement

fa ctor that’s present, but I’m not going to put a great deal of emphasis on factor number six. I am going to put s ome emphasis, not as much as some of the others,but on the fact that she
was tre ate d wi th e xce pti ona l cr uel ty.

I find factor number seven not to be appropriate in this case. I do notfind that there’s anything to indicate that Mr. Dean had any thing
on his mind other than sex. And, obvious ly, the desire for pleasure
or excitement the cou

rts have told us ca

n be, and there’ s nothing to i ndicate to me anything to the contrary, a re a part of the offense o f aggravated

rape. So I find

that there’s nothing that thecourt can rely
on to show thatfactor

number seven is appropriate. So I find that that is not an appropriate factor.

Mr. Dean has a

previous history

of unwillingness

to comply with the co ndi tio n of a sen ten ce i nvo lvi ng re lea se i n th e com mun ity. Again, as evidenced by Exhibit one, the presen t ence report, he has been charged with pa

role violation bac

k in 1994. So the answ

er to that factor would

be yes.

Fact ornumbernine is not appropriate in this case. The defendant had no hesi tation abo ut commit ting a crime whenthe risk to human life was hig

h. Normall

y I wou ld say that that’s not an appropriate

factor for an aggravated rape case. Because I think that-25- the potential for – obviously you must have

bodily injury

in order to have an aggravated rape. An d, therefore, inc

orporated in bodil

y injury I think the cou

rt could conclude

that there has to b

e a risk to human life involved. And I think the general nature of agg ravated rape would lend itse

lf to t hat allegation.

However, aga

in, this case being unique simply because of the fact that this was not a random act by Mr. Dean. This was a thought-out, planned assault on t his lad y. Again, Mr. Dean was aware of her age, her frailty , the fact that she lived alone. And, obviously, he had no hesitation about committing this crime knowing th

at an assa ult a nd an attack on a 9

0 year old
woman could run the risk of costing her her life or some serious inj ury.
I just think that the unique facts of this case because of the victim’s age, this has to

be a factor to be considered. I’m not exactly
sure of the interpretation of the Co urt of Criminal Appeals or the Supreme Court with regar

d to this element.Ifind it’s apparent and approp riatein thi s case, but I’m not going to put a great deal of emphasison it simply bec ause there is some

question as to

wh ether or not it’s merged with the allegations of aggravated rape.

I find that none of the other factors listed under 40-35-114 were appropriate. I don’t find that the c rime was committed under circumstances under which the potential for bodily injury to the victim was great. Obviousl

y you mu st have bodily

injury to have an aggravated rape. So that factor is included.

As to any mitigating fac

tors, the court finds none. Based on the presentence report, based on the testimony that I’ve heard, I find no factors to mitigate this. Th is is not a crime tha

t involves p

r obation. So probation is not a factor to b e considered. Th

is presentence report was requested. It’s required by law. I ’ve r ead my reasons into the record or the enhancement factors that I’ve found. I ’ve given Mr. Dean an opportun

ity to speak.

He has waived tha

t right.
Therefore, the court feels under the guidelines that have been set out, this is a Class A

fel ony, which is a violent offense, it’s nonparola b le. The presumptive beginning Range for purposes of sentencing as a

Range II offender for a

Class A felony

, the Range is 25 to 40 years. The presumptive beginning plac e for a violent of

fense anda Class A offense is the mid-Range within that. So that I a

ssume it would be approximately 32, 32 1⁄2 years. The starting point under the law, the court is to enhance using enhancement factors to incre

ase-26- the punishmen t and then an y mitiga tors to reduce it back down. Since the court finds the

re are no mitiga

tors in thiscase, the court is going to put a great d

ea l of emphasis on Mr. Dean’s history of criminal convictions and c riminal behavior.

The vulnerability

of the victim in this case, the fact t

hat she was treated with exceptional cruelty and the fact that Mr. Dean has previously been on parole and has violated that parole. Thos e are the facto

rs the court is go

ing to consider with a grea

t deal of emphasis on his record and the vulnerability

of [the vi ctim]. B ased on Mr. Dean’s scoping out the scene and selecting her intentionally as his victim in this case.

The court, therefore, is going to impose a sentence of 40 years as a Range II offender, a

violent offender with no parole.

MR. WHARTON: Thank you, Your Honor. Could we get a date for our new trial motion?

THE COURT: Yes, sir. Let me add, again, for the record

because I intendedto do this earlier when we were discussing the definitions of bodily injury. Bod

ily injury is required by the aggravated r ape statute. It calls for a cut – or includ es a cut, abrasions, bruise, burn or disfigurement,

physical pain or temporary il lness or impairment of the function of a bodily member. The dis tin cti on t here bei ng te mpo rary. Serious bodily injury calls for a substantial risk of death, pro tr acted unconsciousness,

ext rem e ph ys ic al pain, protracted or obvious disfigurement

or protracted loss or substantial imp airme nt o f a function of a bodily member or mental faculties. With regard to the injuries that [the victim] susta ined, th is cou rt finds the distinction betweenbodily injury and serious injury is found in this case. I don’t fin d that the injuries in

flicted upon [the vic

tim] were simply

bodily inj ury. I think they were serious bodily injury abo ve that ne cessary to cause an aggravated rape, tha t the injuries that she suffered were above and beyond that that was needed to constitu

te Mr. Dean’s acts upon her. And for

those reasons,

again, I reitera te the court ’s findings withregard to the fact that she was trea t ed with exceptiona

l cruelty andthat the injuries inflicted upon her were particularly great. Because I think that they

amounted to serious bodily injury not simply bodily injury as called for by the statute.

Based upon these state

ment s by the trial court, the defendant argues that the trial court appliedenhancement factors (1), (4), (5), (6), (8), and (10). See Tenn. Code Ann. § 40-35-114(1), (4), (5), (6), (8), & (10). The State responds that, of these factors, the trial court did not apply (6) and(10). Based upon our review of the sentencing, we conclude that the defendant’s interpretation-27-

is c orrect as to the factors applied, although little weight was given to factors (6) and ( 10) . Th e defendant contends that only factor

(1) was applicable, while the State argues that the trial court was correct in applying the factors which it did. In vi ew of this dispute, we will review the sentence imposed by the

trial court.

When an accused cha

llenges the leng

th and manner of se

rvice of a sente

nce, it isthe duty

of this court to conduct a de novo review on the record with a presumption that “the determination s made by the court from which t he a ppeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “condition ed upon th e affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.” Statev. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial court which are predicated

up on u ncontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994) ; Statev. Bonestel , 871 S.W.2d 163, 166 (Tenn. Crim. Ap p. 1993). Howeve

r, this court is req

uired to give great weight to the trial court’s determination of controverted facts as the trial court’s determination of these facts is predicated upon the wi tnesses’ d emeanor and a ppearance wh en testifying.

In conducting a de novo r eview of a sentence, this court must consider (a) any evidence received at th e trial and/or sentencing hearing, (b) the presentence repor t, (c) the principles of senten c ing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g) any state ments made by the accused in his

own behalf, and (h) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 4 0-35-103 and -210 ; State v. S cott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987).

The party challenging the sentences imposed by the trial court has the burden of establishing that the sentences are erroneous. Tenn. Code Ann. § 40-35-401, Sentencin g C ommission Cmts.; Ashby , 823 S.W.2d at 169 . In this case, the defendant has the burden of illustrating the sentences imposed by the trial court are erroneous. Concluding that the trial court “considered the sentenci ng principles an d all relevant facts and circumstances,” we will now determine whether the enhancement factors upon which the trial court relied were applicable. A. Enhancement Factor (1)

The parties agree that the trial court was correct in apply ing factor (1), that the defendant had
a previous history of criminal convictions or criminal behavior. Tenn. Code Ann. § 40-35-114(1). He had previous convictions for robbery and aggr avated burglary, bo

th Class C felonies. Add iti ona lly, he had two Class E f elony convi

ctions and approxim

ately ten misdemeanor convictions. Thus, we conclude that factor (1), to which the trial court gave great we ight, was applicable.-28- B. Enhancement Factor (4)

The trial court applied factor (4), that the victim, who was nearly 90 y ears old at the time of the rape, was particularly vulnerable, see Tenn. Code Ann. § 40-35-114(4), because she was small, frail, lived alone, and the defendant had selected her as his victim for these reasons. The defendant arg ues t hat this factor was not applicable because the State did not prove that the victim’s age or physical or mental limitations affected her ability to resist the crime,to summon help, testif y in court, or that her vulnerability was a factor in the offense.

Enhancement

factor (4) may

be applied when th

e facts show that t

he “victim of the o

ffense
was particularly vulnerable because of age or physical or mental disability, . . . .” Tenn. Code Ann. § 4 0-35-114(4) (1997). Our supreme court, in State v. Adams , 864 S.W.2d 31, 35 ( Tenn. 1993) , concluded

that enhancement factor (4) “relates more to the natural physical and mental limitations of the victim than merely to the victim’s age.” Id. Thus, the Adams court found that f actor (4) could be used in an aggravated rape case of a child under the age of thirteen, even though the age of the child is an essential element

of the crime, “if the circumstances show that the victim , because of his age or physical or m ental condi tion, was i n fact ‘parti cularly vulner able,’ i.e. , incapable of resisti ng, summoning help, or testifying against the perpetrator.” Id.

In State v. Poole , 945 S.W.2d 93, 96-97 (Tenn. 1997 ), our supre me court explained the application of this factor:

In determining whe

ther the State has

met its b urde n, the trial court must consider a number of f act ors and must make factual findings. It should consider whether evidence in the record with regard to the victim’s age or physical and m ental attributes demonstratedan inability to resist the crime, summon help, or testify at a later date. See e.g. , State v. Clabo , 905 S.W.2d 197 (Tenn. Crim. App. 1995) (fa ctor properly applied where child victim of sexual offense suffered from learning disab ility); State v. Buckmeir , 902 S.W.2d 418 (Tenn. Crim. App. 1995) (factor proper where defendant knew victim

had “passed out” from drinking and wasunable to resist the commission of a sexual offense); State v. McKnight , 900 S.W.2d 36 ( Tenn. Crim. App. 199 4) (factor prop

erly applie

d where victims of sexual acts were v

ery y oung, lacked fa

mily support,

and looked to defendant for friendship and approval). . . . The evidence need not be extensive andadditional weight may be given to the age of the victim in those cases where a victim is extremely young or old. Nonethele

ss, the State must prove the factor is applicable and there must be evidence in the record in addition to the victim’s age.
Here, the pro of showed that the victim, who lived alone, was within two weeks of her ninetieth birthday at the time of the rape. She had an artificial knee, and

was in a wheelchair at the-29-

time of the preliminary hearing. At time of trial, she was nine

ty-two and o

ne-half ye ars old and said that she was “weak” and that her body was “giving out.” Based upon this, we cannot conclude that the trial court erred in finding that the victim was particularly vulnerable. C. Enhancement Factors (5) and (6)

Because of the relationship between factor (5), that the victim was treated with exceptional
c ruel ty, and factor (6), that the injuries to the victim were particularly gr eat, see Tenn. Code Ann

. § 40-35-114(5) & (6), we will consider these factors together, especially f or the purpose of

setting out applicable testimony. The victim testified as to the details of the attack:

Q. So this per

son ca me in a nd gr abbe d yo u by the ne ck[?]

A. Grabbed me

by the neck and never turned my neck aloose [sic] until the y c ouldn’ t do what they came in to do. And they were hunting for some medication to put on their body to make their body useful. And I got off the

bed, and went to

the front, and went around in the kitchen to get me some water in a cup. And the cup was sitting there in the bathroom when the police came.

And when I turne

d around, he was r

ig ht a t my shoulder, following me around. And I – and pulled me on ba

ck to the bedroom. And caught me

by the ball of h air and by this leg. See this leg has an artificial knee

in it and this leg, ca

ught me by th

is leg and threw

me up over the foot, straight up to the pillow on my bed.
Q. All right. And I’m sorry again to have to

go through this w

ith you but what did he do then?

A. And went to – went back to attempting to r ap e me, to have whatever pleasure they thought they’ d get out of it. Took this leg and pulled it up over his shoulder and put his arm on it so I couldn’t get it down, like you see

the people on the stage doing the splits. That’s the way my leg was. This leg was straight out and I was on the side butthis leg was u

p over his shoulder. And – and he had his arm under there so I couldn’t get it down. So it was nothing I could do.

And he kept doing what

– he tried both

entrances, my

rectum, my vagina. And I still have

a little slight

protrusion of – you know what you hav e whe n your rectum comes out, but I have alway s been the type of nursing service, I keep my rectum in with the trea tments that I know to use. B

ut there’s alway

s a little part that s

till sticks out.-30- Q. All right.

A. A nd then finally, I don’t know if he tore it ope n or wha t happened, but he finally got that – that was the largest organ on a man I’ve ever seen or he

ard of in all of my

90 years. F

inally with

my back to him, got it into my stomach – this – my womb n

ow, my fractured ribs, and my

– I have a rib up here that we thought was br

oken, got to the hospital, but all of these ribs were wounded on that side.

I was so roughly

handled, they

said when I g

ot to the hospital I wouldn’t live. But my doctor knew me and

I told him I would live. So they went on and worked on me.
Q. All right.

A. This arm andthis shoulder, when I touch t hat right now like

that, it hurts as if

though it was right now happening. This whole side that helpedme to get around

withthis artificial knee that had been planted in ‘91, now I have

to have a walker

or a walking stic

k to get around. I’ve done pretty good coming out of it but I haven’t got

[sic] over it.

The trial court applie

d enhancement f

actor (5), findi

ng that the victim w

as treated wit

h exceptional cruelty because,in order to penetrate her vagina, the defendant put one of her legs over his shoulder, and tha

t, because of this, she had permanent hip injuries. The court did not state how much weight it was ascribing to this factor.

The proper application of factor (5) was explained by this court in State v. Spratt , 31 S.W.3d 587, 607 (Tenn. Crim. App. 2000):

Defendant

challenges the application of enhancement factor (5), that Defendant trea

ted the victim with

exceptional crue

lty during the commission of the offense. We conclude that factor (5) was properl

y applied. The T enn essee Supreme Cou rt has stated that b

efore this factor may be applied, the facts in the case must “support a finding of ‘exceptional cruelty’ that ‘demonstrates a culpability distinct from andappreciably greater than that incide nt to’” the crime. State v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997) (citation omitted). See also State v . Embry , 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995) (holding that a

pp lication of enhan

cement factor (

5) “requires a finding of cruelty over and above th at inherently attendant to the crime”). We conclude that Defendant's a

ctions of striking

the victim
on the head with a beer bottle with suc h force to cause the bottle to shatter and then dragging the victim around the offi ce b y her hair-31- represents

a culpability distinct from and appreciably g reater than that incident to the offense.

Additional ly, the trial court also applied factor (6), that the injuries to the victim were particularly great, although it did not give gr eat weight to this factor.

In State v. Carico , 968 S.W.2d 280, 286 (Tenn. 1998), our supreme court explained tha

t this factor cannot be applied in sentencing following a conviction for aggrava

ted rape unless th

e victim “sustainedappreciable personal injuries beyond those incidental to the crime .

. . .” Here, the vic

tim testified that the defendant held her by her hair and her leg and pulled her ba ck into the bedroom. Attempting to penetrate her, he raised one of her legs and put it on his shoulder, holdin

g it there with his arm. The victim likened it to being forced to do the splits. At the time of trial, approximately two andone-half y

ears following

the rape, she sa

id that her arm an

d shoulder still “hu

rt[] as if though it
was right now happening.” Additionally, she said that an artificial knee had been implanted into her in 1991, andthat since the rape, she had to use a walker or cane

to get around. I

n view of the fac

ts of the rape and the resulting disability of the elderly victim two years after it, we cannot conclude that the trial court erred in applying enhancement fac tors (5) and (6). D. Enhancement Factor (8)

This enh ance men t fa cto r is app lic abl e wh en “[ t]h e def end ant has a pre vio us h ist ory o f unwillingnes s to c omp ly with the conditions of a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(8). The defendant argues that this factor should not have been applied because the presentence

report showed only that, in 1994, he had been arr ested for an alle

ged parole violation, but that no disposition was shown. We ag ree. T he applicable entry on the presentence report for Septe

mb er 27, 1994, states “violation of parole – held for parole board.” Since no disposition was shown for this charge, we conclude that it should not have been applied. E. Enhancement Factor (10)

This factor is applied

when th e proof shows that “[t]he defendant had no hesitation about committing a crime when the risk to huma

n lif e was high.” Tenn. Code Ann. § 40-35-114(10). Although this factor was applied by the trial court, little emphasis was placed on it. The limits of this enhancement

factor were explained in State v. Kelley , 34 S.W.3d 471, 480 (Tenn. Crim. App.), perm. to appeal denied

(Tenn. 2000):
[T]he trial court may consider this factor when the de f endant endangers the lives of people other than the victim. See State v. Ruane , 912 S.W.2d 76 6, 784 (Tenn. Crim. App. 1 995); State v. Johnson , 909 S.W.2d 461, 464 n. 1 (Tenn. Crim. App. 1 995); see also Statev. Butler , 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994) (holding that factor

(10) should not be applied when the victim is the only one at risk). In this case, the defendant fired three shots into a-32- car containing two people. The passenger, Chasity McGuire, te stified that she ducked when she saw the explosion from the gun. The defendant put Ms. McGuire's life at risk, andthus, factor (10) applies.

Since only the victi m was put at risk durin g t he rape, e nhancement factor (10) was not applicable.
Thus, in sentencing the defendant, the trial court applied enhancement factors (1), (4), (5), (6), (8), and (10), with the latter two being applied

erroneously. In ascertaining the effect, if any, of the erroneous application of the two factors on the defendant’s sentence, we note tha t of these factors, the trial court stated that it was giving great emphasis only

to factor (1), the application of which the defendant

does not dispute. We have concluded that the applicable enhancement factors
are (1), (4), (5), a

nd (6). Based up

on the applicabili

ty of these enhancement factors and the fact that there were no mitigating factors, we cannot conclude that the trial court erredin imposing the maximum s entence of for ty years. See Lavender v. State , 967 S.W.2d 803, 809 (Tenn. 1998) (holding that elimination of enhancement fa

ctor does not auto

mati cally require reduction of sentence); State v. Freeman , 943 S.W.2d 25, 32 (Tenn. Crim. App. 1996) (concluding that trial court’s improper application of enhancement factors did not require sentence reduction, when other enhancement factors, but no mitigating factors, remained).
CONCLUSION

Based upon the foregoing reasoning and authorities, we affirm the judgment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE