### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 8, 2003 Session
STATE OF TEN NESSEE v. NESHA NEWSOME
Direct Appeal from the Criminal Court for Shelby County Nos. 0100561-64 Joseph B. Dailey, Judge

No. W2002-01306-CCA-R3-CD - Filed December 30, 2003

The def endant w as con victe d of es pecial ly aggravate d kid nappi ng, aggrav ated k idnap ping, aggravated

robbery, a

nd robbery. The

defendant contends on appeal that the trial court erred in (1) notproperl

y transferring the

case from juvenile court, (2) deny ing her request for a continuance , (3) admitting a tape recorded statement by the def endant, (4) admitting certain photogra phs of the victim, (5) refusing to allow expert testimony regar din g the defendant’s mental condition, (6) refusing to allow evidence of a co-defenda nt’s subsequent crimes, (7) failing to instructthe jury on certain lesser i n cluded of

fenses, and (8) s entencing. We c onclude t hat the tr ial cour t erred in applying e

nhancement factors six and ten. The trial court also err ed in not applying the mitig ating factor (victim released alive) to the especially aggravated kidnapping

convi ction. The sentenc e is reduced for (1) aggra

vated robbery

from ten yea

rs to nine year s, (2) aggravate d kidnapping from ten yearsto nine years, a

nd (3) especially

aggravated kidnapping

from twenty-one

yearsto twenty

ye ars. We reverse the trial court’s determination that the sentenc es should be served con secutive ly . We remandto the trial court to amend the judgment for case number 01-00564 to reflect that the defendant was a standard v iole nt offender rather than a repe at violent offender. We affirm the judgments of the trial court in all other respects. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part

as Modified, Reversed in Part, and Remanded

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBER T W. W EDEMEYER , J., joined.

Danese K. Banks and Gerald D. Skahan, Memphis, Tennessee, for the appellant, Nesha Ne wsome. Paul G. Summers, Attorney Gene ral and Reporter; David H. Findley , Assistan t Attorne y General ; William L. Gib

bons, Distr

ict Attorn ey Genera l; Amy P . Weirich and Stephen P. Jones, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.1 The judgm ent form for thi s conviction (No. 01-00564) indicates that the defendant was sent enced as a repeat violen t offend er. T he de fenda nt was a ctually a standa rd o ffende r, as co rrectly indicated on the other judgm ent forms. However, the trial co urt con sidere d the p rop er sente ncing ra nge. T he jud gme nt form must b e am end ed o n rem and to reflect that the def

endant was a standard offender and not a repeat violent offender.

2 At the tim e of trial, M iss Rich ardso n’s last nam e had been legally cha nged to W right.

3 Jerm aine B ishop is also refe rred to in the re cord as “Se an” o r “Sha wn.”
-2- OPINION

The defendan t, Nes ha Newso me, was c harge d with car

jacking (No. 01- 00560), e special ly aggravated

kidnapping (No. 01-00561), especially aggravated robbe

ry (No. 01-00562 ), two counts of aggravated robbe

ry (No. 01-00563), and

two counts of especially

aggravated kidnapping

(No. 01- 00564). A jury

found the defenda nt not gui lty

of carjacking, guilty

of the lesser included offense of aggravated

kidnapping (Class B felony ), guilty of the lesser included offense of agg ravated robbery (Class B felony ), guilty of the lesser include d offen se of rob bery (Class C fe

lony )(two co

unts merged), and guilty of e specially ag gravated kidnapping (Class A fe lony)(two counts merged). The trial court sentenced the defendant as a Rang e I, standard offe nder to twenty-one

years on the especially a

ggravated kidnapping

conviction 1 , ten years on the aggravated robbe

ry conviction, ten yearson the aggravated kidnapping conviction, and four y ears on the robber y conviction. The sentences were or

dered to be served consecutively

for an effectiv e sentence of fo rty -five y ears. Th is appeal timely followed.

The defendant contends on appeal that the trial court erred in (1) not properly transferring the case from juvenile court, (2) deny ing her request for a continuance , (3) admitting a tape recorded statement by the defe

ndant, (4) admitting certain photograph s of the vi ctim, (5) refusing to allow experttestimony reg arding the defendant’s mental condition, (6) refusing to allow evidence of a codefendant’s subseque

nt crimes , (7) failing to instruct the jury on certain lesser included offenses, and (8) sen tenci ng.
Facts

On New Year’s Eve, 1999, Bryan Morris and Holly Richar dson 2 (the vic tims in th is case )
were attendin g a par

ty a t a friend’s house

in East Memphis. Around midnight, the victims left to get something to eat. Both of them live d in Bar tlett and wer

e not fam iliar with East Memphis. Miss Richardson drove Mr. Morris’s car because he was too int oxi cated to

drive. Th

ey followed some other people from

the part y to the store . Befor

e reaching the

ir destinati on, the pa

ir lost sig ht of their friends from

the party. The

victims became lost in an unfamiliar part of town. They stopped at a gas station to use a payphone. H owever, they were unable to contact any one from the party

. Nesha Newsome (the d efendant), J ermaine Bi shop 3 , and Mozella Newsome were outside the gas station where the victims stopped. Miss Richardson asked the gr oup if they

could help her, because she was lost. Initially , the group tried to give her directions. They then agreed to ride

with-3-

the victims and show them how to get back to the party. Miss Richardson ag reed to bring them back after they found out how to ge

t to the party. The

t hree g ot into the b acksea t of the c ar that Mi ss Richardson was driving. Bis hop instru cted her to drive ac

ross the st reet to an apar tment comp lex. Bishop and Mozella Newsome went inside, while the defendant remaine d in the ca

r with the victims. They soon retu rned, and the gr

oup left, with Bish op giving directio ns.
On the way ba

ck to the party, Mr. Mor

ris became ill because of his intoxication, and the group had to pull over. He went into a gas station, and Miss Richardson attempted to clean off the side of the ca r where

Mr. Morr

is had vomited. The

defenda nt, Bisho p, and Moze

lla News ome remained in the backseat of the car. Mr . Morris returned to the car, and the group ag ain set out to find the party. On

the way, B ishop and Mozella Newsome began whispering. They informed the defendant that they intended to “stick u

p” the victims. The group soon arrived at their destination. The victims went inside to inform their friends as to their getting lost. The defendant, Bishop, and Mozella Newsome

remaine d in the ca

r with the engine running . At one po int, a fri end of the victims
came out and talkedwith them. The victims were in the house for several minutes. They returned to the car and left to take the trio back to the are a where they had been picked up. Bishop directed Miss Richardson to an area that she was not familiar with. He told her that they were g oing to hi s grand

mother’shouse. At

one point, Bishop to ld Miss Richardson to stop and turn out the li ghts. B elie ving that they ha d arrived at his grandmother’s house, she c omplied. Bishop got out of the car and pulled a gun. He ordered the m out of the car . Mr. Morr

is gave his wallet to Bishop. Bishop then punched Mr. Morris in t he face a couple of times a

nd threw him in the backsea

t with Miss Ric

hardson a nd the def endant. B ishop go t into the driver’ s seat, a nd Mozella Newsome got into the front passenger seat. Bishop gave the gun to Mozella Newsome. She turned around a nd pointed

the gun at the vic tims while B ishop drov e for several mil es.
As they drove, Miss Richardson screamed for help. Bishop instructed the defendant to “shut her up.” The

defenda nt punched

Miss Richards on numero us times in t

he head and fac e while restraining her by

her hair. The defendant would later say that “[she] hit her with all [her] might.” The defendant called her “a little Bar tlett bitch” and continued be ating her. At some point, the defendant told Miss Richardson to open her mouth. The defendant then burned her tongue with a cigar ette and forced her to swallow the ashes. The de fendant also struck Mr. Morris a few times

. Miss Richardson asked the defendant if she was going to kill her. The defenda nt smiled and patted her on the head saying , “[n]o Sweetie, I’m not going to kill y ou.” She then cont

inued to be at Miss Richardson. She stated that the defendant was laughing and smiling the entire time. Bishop said that they shoul d mak

e MissRicha

rdso n per form oral sex on the d efendant. However, they never followed through. The group just laughed, and the defendant continued hitting her.

Mozella Newsome was pointing the gun at Mr. Morris while they were drivi ng. He noticed that they had turned onto a dead end road. Sensing that “something bad w as about to happen,” he jumped from the car as they made a turn. Mr. Morris sustained a broken finger from the impact. The assailan ts and Miss Richardson continued on in the car. They stopped a few minut es later an d ordered Miss Richardson out of

the car. She was forced to give up her ring s and all o f her cl othes,-4-

except for her socks. She ran into the woods naked and bleeding. Miss Richardson hid and waited forthe group t o leave. After they left, she ran from house to house try ing to get help. Ms

. Hammelore Stewart a

nswere d her doo

r and hel ped the vi ctim. Miss Richardson sustaineda broken
noseand numerous bruises as a result o f the inc ident. She was in pa in for ap proximatel

y tw o weeks.

The defendant was located a few we eks later and charged with car jacking , especi ally aggravated

kidnapping (Morris), two counts of especially aggravated kidnapping

(Richardson), especia lly aggravated robbe

ry, and two

counts of aggravated r

obbery. A jury

found the defendant notguilty of ca

rjacking, guilty

of the lesser include d offense of aggravated kidna pping, guilty

of especi ally aggravated kidnapping

(two counts merged), guilty of the lesser included offense of aggravated

robbery (two counts merged), and guilty of the lesser included offense of robbery . She received an effective se

ntence of forty -five ye ars. This appeal timely f ollowed. Analysis

I. Transfer f

rom Juvenile Court

The defendant contends that the juvenile court failed to properly consider all of the factors required by Tennessee

Code A n notated s ection 37 -1-134, w hen it tra nsferr ed her to adult cou

rt. However, the defendant

has not pr

ovided a t ranscr ipt of this procee ding. “ It is th e duty of the pa rty s eeking appellate review to prepare a r ecord which convey s a fair, accurate and complete account of what transpired with respect

to the issues raised by the pa rty.” State v. Dellinger , 79 S.W.3d 458, 484 (Tenn. 2 002); see also State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993). “When the record is incomplete, anddoes not c ontain a transcript of the proceedings re levant to an issue presented for review, this Court is precluded from considering the issue.” Dellinger , 79 S.W.3d at 48 4; see also Statev. Robert s , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Because the rec ord is incomple te with respect to this issue, the issue is waived.

II . Denial of Continuance

The d ef endant contends that the trial court erred in refusing her request for a continuance after the case was severed from the c o-defendants. The granting or de ni al of a motion for a continuance lies in the sound discretion of the court. The ruling on the motion will not be disturbed unless the record clearly

shows abuse of discretionand prej udice to t he party seeking a continuance. Blake v. Plus Mark, Inc

. , 952 S.W.2d 413, 415 (Tenn. 1997). The defendant argues that he r trial strat egychanged after the ca ses were severed. T he de fendant wanted to have an independent psychologic al evaluation p erformed. The tria l court fo und that the defendant had a mple time to preparefor the possibility of being tr ied together with the co-defendants or individually . As the trial court found, if the defendant

needed an evalu ation on the day

of trial, she needed one a month earlier. The record does not indicate that the trial court abused it s discretion by deny ing the continuance. Furthermore, the defendant has fa iled to demonstrate that she was prejudiced by the denial.-5-

II I. Tape Recorde d Statement

The defenda

nt contends that the

trial cou rt erred in overr

uling a m otion in limine regarding the introduction of the defendant’s tape recorded statement. Several months before trial, the State provided the defense with a transcript of the statement given by the defendant. A tape recording of the statement given also existed. However, the State cla imed that it was not a

ware of the tape until trial. The defense was provided with a copy of the tape on the first day of trial. The def

ense requested that the trial court exclude the tape recorded statement. However , there was no objection to the use of the transcript. The trial court allowed the tape to be played for

the jury and

introduced it into evidence. The defendant additionally contends that the tape should not have been introduced because it is not ver

batim to the

transcr ipt.

Even if th ere wa s a discovery violation, the def endant has failed to show prejudice. When there has been a failure to produce discoverable material within the allotted time, the trialjudge has the discretion to fashion an appropriate remedy , such as a continuance. Tenn. R. Crim. P. 16(d)(2). Whether the defenda

nt has bee n prejudi ced by

the failu re to disc lose is alw ay s a

significant factor. Statev. Baker , 751 S.W.2d 1 54, 160 (T enn. Crim. App. 1987). Exclusion of the evide nce is a d rastic remedy and should not be implemented unless there is no other reasonable alternative. See, e .g. , Statev. House , 743 S.W.2d 141, 147 (Tenn. 1987). After listening to the tap e, we co nclude th at it is essenti ally

identica l to the tra

nscript. This issue

is without me

rit.

IV. Photos of the

Victim

The defendant contends that the trial court erred in ove rruling its motion in

limine regarding certain photos of the vic tim. Until the trial be gan, the State ha d provide d the def

ense with only two photos of Miss Richardson taken after she arrived at the hospital. There were ten other photos taken that had not been produced. The St ate cla imed that it was not a

ware of any additiona

l photos. Apparently, the a

dditional photos were at the lab waiting to be developed. The other photos were turned over to the defense on the second day of trial. The trial court allowed all of the p hot os of Miss Richardson to be introduced by the State.

As withthe tape recorded statement, even if there was a discovery violation, the defendant has failed to

show pre judice. T he defe ndant wa s alrea

dy i n possessi on of two photogra phs of Miss Richardson that showed the injuries she sustained as a result of the incid ent. We ag

ree with the trial court that the photos that the defendant did have were more re v ealing than the a

dditional p

hotos. The defendant claims that by not having the photos earlier, she did not have the opportunity to have themexamined by an expert to determine the cause of the injuries depicted in the photos. She offers
no reason a s t o why she di d not have the photos in her possession examined. The defendant has failedto sh ow actual prejudic e. We will n ot presum e prejud ice base d on mere

allega tions. This issue is without meri

t.-6-

V. Expert Testimony Regar ding the Defendant’s Mental Condition During the defendant’s bond hearing in May of 2000, a psycholog

ical report of

the defendant was introduced. It indicated that the defenda

nt may have men

tal defe cts. On the

first day of trial, the defendant filed a

motion seeking an additional mental evaluation. See Tenn. R. Crim. P. 12.2(b). The defendant claimed that the trial court’s severance of the def endants changed her strateg y so that
an additiona

l mental e

valuatio n was nec essary . The tria l c ourt denied the introduction of expert testimony reg arding the defendant’s mental condition.

If a defendant intends to introduce expert testimony regarding a mental disease or

defect, the defendant must give

notice to the distri ct a

ttorney in writing

prior to th

e trial. Tenn. R. Crim. P. 12.2(b). If

the de fendant fails to give proper notice, “the c ourt may exclude the testimony of any expert witness offered by the defendant.” Id. at (d). The court may grant additional time for

good
cause shown. Id. at (b). The trial court found that if the defendant’s mental condition was an issue after the severance, then it was an issue before the severance. The defendant had been

aware of the information containe d in the initial report for over a y ear. No showing of good ca use has been made in this cas e. This iss ue is without merit. VI. Subsequent Crimes of the Co-defenda nt
The defendant contends that the trial co urt erred in not allowing evidence of subseque nt crimes committed by Co-defenda ntBishop. The defendant did not make an offer of proof indicating when these crimes occurred or if they had any relevance to this case. This issue is waived

because the defendant failed

to make an offer of proof as to this testimony. SeeTenn. R. A pp. P. 36(a

); State v. Eld ridge , 951 S.W.2d 775, 783-84 (Tenn. Crim. App. 1997).

VII . Lesser I

ncluded offenses

The defendant contends that the trial court erred in failing to charg e certain lesser included offense s. Trial counsel orally re quested that the jury be

instructed all the way down to theft on the aggravated

robbery c harge and all the way

down to false imprisonment on the especially a

ggravated kidnapping c harge s. The tri al court instructe d the jury

down to ro

bbery and kidna

pping a s lesse

r included offenses.

The trial in th

is case began on January

28, 2002. In 2001, the Tennessee le gislature amended Tennessee Code Annotated section 40-18-110 to provide that an instruction as to a lesser included offense is waived unless the

defenda nt reque sts in writing, prio r to the tr ia l c ou rt ’s ch ar ge to th e j ur y, that such an instruction be provided to the jury. Te nn. Code Ann. § 40-18-110(c). This amendment to Tennessee Code Annotated section 40-18-11 0 gover ns alltrials on or after January 1, 2002. 2001 Tenn. Pub. Acts 338, § 2. Because the defendant did not request an instruction on the lesser included offenses of theft and false imprisonment in writing prior to the trial court’s char ge to the jury , the defendant has not presented a ground upon which relief may

be granted. See

Tenn. Code Ann. § 40- 18-110(c ). There

fore, th is issue is without mer

it.-7-

Even if the trial court

erred in failing to charg e down to theft and false imprisonment as lesser included offenses, the error was harmless. “In apply ing the lesser-included offense doctr ine, three questions arise: (1) whether an offense is a le sser-included offense; (2) whether the evidence supports a lesser

-include d offens e instruction; and (3) whether an instructional error is harmless.” Statev. Allen , 69 S.W.3d 18 1, 187 (Te nn. 2002) . We agr

ee with th e partie s t hat thef

t is alesserincluded offense o f especial ly ag gravated robbery and false imprisonment is a lesser-included offense of espec ially

aggr avated k idnapping pursuant to part (a) of the Burns v. State

test. 6 S.W.3d 453, 466-67 (Tenn. 1999) (offense is lesser-included if all of it s statutory elements are included within the statut

ory elementsof the of

fense charge d); see Tenn. Code Ann . §§ 39-13-403 (a), - 305(a). When a lesser

included offense instructi on is improp erly omitted, . . . the harm

less
error inquiry is the same as for other constitutional errors: whether it appea rs beyond
a reasonable doubt that the error did not affect the outcome of the trial. (citation omitted). In making t

his deter mination, a

reviewing cour

t should condu ct a th orough examination of the record, including the evidence presented

at trial, the defendant’s th eo ry o f d ef

en se , a nd th e v er di ct re tu rn ed by t he ju ry. Allen , 69 S.W.3d at 191.

In indictment number

01-00561, the defendant was charged with the especially a ggravated kidnapping of Mr. Morris, by use of a handgun. The trial court charg ed the jury down to ki dnapp ing. The defenda

nt was co nvicted o f agg

ravate d kidnapping. The evidence was overw helming and undisputed that

the kidnapping of Mr. Morris was accomplished throug h the use of

a deadly w eapon. Therefore, any

error in failing to charge false imprisonment was harmless. Allen , 69 S.W.3d at 189. In indictment number

01-00562, the defendant was charged with the especially aggravated robbe

ry of Miss Richardson, by use of a handgun and causing serious bodily injury. The trial cour

t charged down to robbery. The defendant was convicted of ag gravated robbery . As with the previous charge, the evidence was overwhelming and uncontroverted tha t the kidnapping was accomplished by the
use of a d eadly

weapon. Additionally, the e vidence was overwhelming that the victim suffer ed serious bodily

injury . Any

error in failing to charge theft

was harmless. Id. at 189. In indictment number 01-00564 , the def

endant w as char

ged wit h altern atively

committing

the espe cially aggravated

kidnapping of Miss Richardson, by either use of a d eadly weapon o r via inflicting serious bodily injury. As noted above, the trial court charged down to kidnapping, but the jury convicted the defendant of t he charged offense . As with Mr. Morris, the evidence was overwhelming a nd uncont roverted

that the kidnapping was accomplished with a deadly weapon. The evidenc e wa s overwhelming that Miss Richardson suffered serious bodily injury . . Therefore, any error in failing to charge false imprisonment was harmless. Id.

Fi na ll y, in indictment number 01-00563, the defen dant was charged with the ag gravated robbery of Mr. Morris, by use of

a deadly w eapon. The trial court charged down to ro bb er y, and the jury convicted the defendant of robbe ry. As applied to this case , robbery is def ined as “the intentional or knowing theft of property from the person of another by violence or putting

the person in fear.” Tenn. Code Ann. § 39-13-401(a). Theft is defined as the “intent to deprive the owner of prop er ty, [whe n] the person knowingly obtains or e xercises control over the property without the4 Ef fect ive July 2002, the legi slature amended Tennessee Cod e Annotated section 40-35-114 by add ing “terror ism” a s an en hanc eme nt factor

. 2002 Tenn. Pu b. Act s, ch. 849, § 2(c). “Terrorism” is l isted as f actor (1), thus renumbering the previous fact ors as (2) through (23 ). See Te nn. Co de A nn. § 40-35- 114 (Supp. 2002). Our opin ion refers to th e enhancement fact ors as t

hey exi sted at

the time of s entenci ng as spec ifi ed in Tenness ee Code Annotated section 40-35-114(199 7).
-8- owner’s effective consent.” Id. at -14-1 03. I n this cas e, it

is undisputed that Mr. Morris wa s put into fear when the gun was produced and that his wallet wa s stolen as a direct result. Pursuant to Allen , any err or in not charging below robber y was har mless. 69 S.W.3d at 189.

VII I. Sentencing

The defendant contends that the sentence imposed by the trial co urt is ex cessive. A defendant who challenges his or her sentence has the burden of proving the sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commiss ion Comment s; State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ). It is this Court’s duty to conduct a de novo review of the record with a presumption the trial court’s determinations are correct, when a defendant appealsthe leng

th, rang e, or man

ner of se rvice of his or her

se ntence. Tenn . Code Ann. § 40-35- 401(d). The presumption of correctness is conditioned upon the affirmative showing in the record that the trial court considered the sentencing pr i nciples and all rele

vant facts and cir

cumstanc es. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).

The trial court applied enhancement factor one ( previous criminal history) to all of the convicti ons. See Tenn. Code Ann. §40-35-114. 4 The co urt applied enhancement factors five (exceptional cruelty), six (injuries particular ly gre at), seven (committe d to gratif y) , and ten (

risk to human life was high) only to the convictions for aggravate d kidnapping and especially aggravated kidn appin g. Id. The trial court applied factor one based on the defendant’s admission that she had used marijuana

and that she had been adjudicated delinquent for ca r theft. The pre-sentence report indicates that the defendant had no prior convictions. The trial court was apparently r eferring to a document submitted in the bond hearing tha t showed the car theft. That document was not introducedinto evidence and is not a part of the record. Howe ver, her drug use does indicate prior criminal behavior and would support application of this factor.

It is well established that proper application of enhancement factor five requires a finding of cruelty under the statute “over and ab ove” wha t is required to sustain a conviction for an offense. See State v. Poo le , 945 S.W.2d 93, 99 (Tenn. 1997) (req uiring the fa cts in a c ase to “s upport a finding of ‘exceptional cruelty ’ that demonstrates a culpability distinct from and appreciably

greater than that incident to” the crime). In State v. A rnett , the victim and her boyf riend werekidnapped, the boyfriend w as assaulted by one of the kidnappers, the boyfriend managed to get a way, and the victim was left partially na

ked to seek h elp. 49 S.W.3d 250, 258 (Tenn. 2001). The Arnett court held that the facts supported the finding that the p syc

hologic al terro

r amounte d to cruelty over and above that nec essary

to sustain the conviction. The facts in this case are similar. The beating of the-9-

victims was not necessary to sustain the kidnapping convictions. We conclude that the trial court properly a

pplied factor five.

The trial cou

rt also fo und that the injurie s inflicte d in this case were particu larly

great . Miss Richardson sustained a broken nose and numerous bruises a s a result of the beating. She stated that she had pain for two weeks. The burn to her tong ue ap p arently produc ed no lasting effects. Mr. Morris sustained a broken finger, swollen h and, and brui sing. These injuries were not of the magnitude contemplated by this enhanc ement factor. The trial court erred in its application of

factor six.

The trial c ourt next found that the defendant engage d in her crimes to gratify a desire for pleasure or excitemen t. Application of enhancement factor seven r equires an examination of the defendant’s motive for committing the offense. State v. Kissinger , 922 S.W.2d 482, 4 90 (Tenn. 1996). While the de

fendant ’s initial moti ve for these crimes may have been robbery , her actions went be yon d t ho se ne ce ss ar y for robbe ry . The def endant la ughed a nd smiled w

hile rep eatedly beating the defendant. She laughed as the victim was stripped na ked and left in the woods. She calledher names and burned her with a cigarette. Additionally , the psychological report completed in 1999 and introduced during sentencing indica tes that the defendant enjoy s “the tension of danger.” The trial court correctly

applied factor seven.

The trial court applied factor ten, finding that the risk to human life wa s high. The mode of especi al ly aggravated kidnapping

of Mr. Morris charged in the indictment is that the defenda nt “accomplished

[the kidnapping] with adeadly we apon.” SeeTenn. Code Ann. § 39-13-305(a)(1). When an of

fense is committed

with a dea

dly weapon, it is inheren

t within the

offense that ther e is
a risk to human life and the potential for injury is great. See State v. Hill , 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994); State v. Kern , 909 S.W.2d 5, 7- 8 (Tenn. Crim. App. 1993). B ecause this factor is inherent in the offense as charged, it should not have been applied to the conviction for the aggravated

kidnapping of Mr. Morris. T he trial c ourt also

applied t his facto r to the e special ly aggravated

kidnapping of Miss Richardson. The defendant was cha rged with alterna

tively committing the esp ec ially aggr avated k idnapping of Miss Ric hardson b y e ither use of a dea dly weapon or via inflicting ser ious bod ily injury . She was found guilty on both counts, and it was merged into one conviction. Again, factor ten is inherent in the offe nse as charged. There

fore , i t should not have been applied to the conv iction for the espe cially

aggr avated k idnapping of Miss Richardson. The trial court er red in its ap plication of factor ten to the convictions for agg ravated kidn appin g and es pecial ly aggravate d kid nappi ng.
The trial court found that no mitigating factors applied in this case. We agree with the trial court that none of the miti gating

factor s listed in Tennesse e Code An notated s ection 40 -35-113 a pply in this case . Howeve

r, there is one mitig ating f

actor no t listed in th at sectio n that d oes apply

. Tennessee Code Annotated sections 39-13-304(b)(2) and -305(b) (2) , concerning agg ravated kidnapping and especially aggravated kidnapping , state that “[i]f the offender voluntarily releases the victim alive . . . such actions shall be considered by the court as a mitig ating f

actor a t the time of sentencing.” These code sections require “mandatory consideration of this mitigating factor if the-10-

victim is released alive.” State v. A rnett , 49 at 264 n.9. Miss Richardson was releas ed alive , so this factor would apply to the conviction rela ted to her espe ciall y a

ggra vated kid napping . Mr. Morr

is escaped rather than being released alive. Therefore, this factor does not apply to the conviction for the aggravated

kidnapping of Mr. Morris. We conclude that this mitigating factor should be considered as to the especially aggravated kidnapping

conviction related to Miss Richardson.

When there a

re appli cable e

nhance ment fac to rs but no miti ga ti ng fa ct or s f or a C la ss A fel on y, “the court shall set

the sentence at or above the midpoint of the range.” Te nn. Code Ann. § 40-35- 210(d). When there are applica ble enhancement and mitigating factors for a Class A felony , “the court must startat the midp oint of the range, e nhanc e the s enten ce wit hin t he range as appro priate for the enhancement factors, and then re duc e the sentence within the range as appr opriate for the mitigating factors.” Id. at -210(e). When there are applicable enhance ment factors but no mitigating factors for a Class B, C, D, or E felony, “the

court may set the se

ntence above the minimum in that
ra n ge but still within the range.” Id. at -210(d). When there are applicable e nhancement and mitigating factors for a Class B, C, D, or E felony, the cour

t must start at the mini

mum senten

ce in the range, then enhance

appropr iately for the e nhance ment fac tors, then reduce appropriately for the mitigating fac tors. The defenda nt was co nvicted o f espec ially aggr avated k idnapping (Class A felony), aggravated robbe ry (Class B f

elony), ag gravated

kidnapping (ClassB felony), a nd robbery (Class C felony). The de

fendant is a Range I

offender. The appropriate sentence rang es are fifteen to twenty-five y

ears for the Class A felony , eight to twelve y ears for the Class B felonies, and three to six years for the Class C felony . Tenn. Code Ann. § 40-35-112(a). The defendant was sentenced to twenty -one yea rs on the Class A felony, ten y ears on each of th e C la ss B f

el on ie s, an d f ou r ye ar s o n t he Cl as s C fe lo ny. The weight given to each enhancement
or mitigating factor is in the discretion of the tri al court , assuming the trial court ha s complied

with the purposes and principles of the sentencing act and its findings are suppor ted by the rec ord. State
v. Madden , 99 S.W.3d 127, 138 (T e nn. Crim. App. 2002). The statutes prescribe no particular weight for an enhancement or mitigating fac tor. State v. G osnell , 62 S.W.3d 740 , 750 (Te nn. Crim. App. 2001). A defendant’s sentence “‘is not determined by the mathematical process of adding the
sum total of enhancing factors prese nt then subtracting from

this figure the mitigating factors pre sent for a net number of

years.’ ” State v. Alder , 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (quoting Stat e v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)).

The only enhanc ement f

actor th at applies to the convictions for aggra vated robbery

and robbery is factor one, based on the defendant’s mar ijuana use. We affirm the sentence of four y ears for robbery, a

nd the sentenc e for aggravate d robbery is re duced from ten y ears to nine ye ars. The court improperly a

pplied enhancement factors six and ten to the especially aggravated kidnapping and aggravated kidnapping convictions. However, enhancement fac tors one, five, and seven were properl y applied. The court erred in not apply ing the mitig ating f

actor ( victim

released alive) to the especia lly aggravated kidnapping

conviction. The sentenc e for es pecially aggr avated k idnapping is reduced from twenty-one

ye ars to twenty y

ears, and the aggr

avated kidnapping sentence is reduced from ten y

ears to n ine years.-11-

The defendant also argues that the trial court er red in impo sing con secutive sentenc ing in thi s case. Genera

lly, it is within t

he discr etion of th

e trial c ourt to impo se conse cutive sen tences i f it finds by a preponderanc e of the e vidence that at le ast one of

following

statutory criteri a apply : (1) [t]he defenda n t is a professional criminal who has knowingly devoted such defenda nt’s life to crimina

l acts as a major sou

rce of l ivelihood ; (2) [t]he de

fendant is an off ender w hose rec ord of cr

iminal ac tivity

is extensive ; (3) [t]he defendant is a d angerous me nt al ly a bn or ma l p er so n s o d ec la re d b y a competent

psychiatrist who c onclud es as a r esult of a n investig ation prio

r to sentencing that the defendan t’s c ri mi na l c on du ct ha s b ee n c ha ra ct er iz ed by a p attern of repetitive or compulsive behavior with heedless indiffere nc e t o consequ ences; (4) [t]he defen dant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to huma

n life is hi gh; (5) [t]he defendant is convicted of two ( 2) or more statutory off enses involving
sexua l abuse of a minor with consideration of the agg ravating circumstan ce s arising from the relationship between the defendant and victim or victims, the time span of defendant’s undetected sexual activity , the nature and scope of the sexual acts and the ex tent of the residual, physical a nd mental damage to the victim or victims; (6) [t]he defendant is sentenced for an offense c ommitted while on probation; or (7) [t]he defendant is sentenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b).

If the court concludes the defenda nt is a dan gerou s offend er under Tenness ee Cod e Annotated section 4 0-35-115 (b)(4) , it must make two further determinations in addition to applying general sentencing principles. State v. I mfeld , 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find
an extended senten ce is necessary to protect the public from further criminal conduct by the defenda nt, and, second, it must find consecutive sentencing to be reasonably related to the sev erity of the offen ses. State v. Wilkerson , 905 S.W.2d 9 33, 939 (T enn. 1995 ). Howev er, such specific factual finding s are unnecessa ry for the o ther ca

tegori e s of Tennessee Code An notated section 40-35- 115(b). State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999).

The trial court

found that the defendant was a dange rous offender whose behavior indicated littleor no reg ard for

human life

and no he sitation a

bout commit

ting cr imes in whi c h the risk t o human life washigh. I

n determ ining whether c onsecuti ve sente ncing w ould be ap

propria te in this case under the dangerous of fender provision, the trial court stated:-12-

I do think tha

t exists. I

think that h as b een b orne out by the proof over and over again, and that t

his defendant

should be considered to be a dangerous of fender based
on her cond

uct that n ight - on what she did and her participation in these events - the beati ngs that she inflicted, lengths that she went to , to ensure that these crimes were committed, the callous manner in which sheallowed these crimes to occur, her order to the driver to drive on after the y oung man j umped out of the moving car, her laugh ter when blows would be struck, her laughter when the y oung lady ’s clothes
were stripped off of her, and she was ordere d to walk into the woods at 2:00 in the morni ng. Her con duct, fr om start to

finis h, in my judgmen

t, sugg ests that s he is a dangerous offender, and I

just don’t know how any

other co nclusion c ould

be reached given the facts of this case.

In Wilkerson , the defendant was convicted of vehicular homicide, four counts of ve hicular
a ssault, and driving on a r evoked li cense. 9 05 S.W.2d at 934. The t

rial cou rt, finding th at th e defendant was a da ngerous offender, impo sed consecutive se ntencing pursuant to Tenn. Code Ann. § 40-35-115(b)(4). Id

. This Court, however, remanded the case for resentencing because the tr ial court did not expr

essly find that consecutive sentences were re asonably re lated to the severity of

the offen ses and necessary

to protect the public against further criminal conduc t. Id. at 938-39

. However, it is no t a lw ays necessa ry to remand w

hen the c ourt fail s to make s uch spec ific find ings. See State v. Alexander , 957 S.W.2d 1 , 8 (Tenn . Crim. App . 1997). T his court m ay make its own determination of whether consecutive sentencing is appropriate based on the record. Id.

Aside f ro m m ar ij ua na us e, th e r ec or d d oe s n ot in di ca te th at th e d ef en da nt ha s a hi st or y o f criminal conduct. There isnothing in the record indicating that the defenda nt has ever been arrested for another crime. The defendant was sixteen y ears old at the

time these offenses were committed. Her conviction for especially

aggravated kidnapping

must be served

at 100%. Even if the sentences
are served c oncurre

ntly , the def

endant w ill be requi

red to serv e the

entir e twe nty -y ear s entence. We cannot say that consec

utive sent enc ing is necessary to protect the public against further criminal conduct. Therefore, we rever se the trial court’s determ inatio n that con secutive

sentenc ing is appropriate in this case.

Conclusion

We conclude that the trial court erred i n applying e

nhancement factors six and ten. The trial court also err ed in not a

pply ing the m

itigatin g fact

or to the e specially a

ggra vate d kidnapping conviction. The senten ce for aggra vated robbery

is reduced from ten years to nine ye ars. The sentence for especially

aggr avated k idnapping is reduc ed from tw enty-one year s to twenty y

ears. The sentence for aggravate d kidnapping is reduced from ten y ears to n ine yea

rs. The sentence of four years f or robbery

is affirmed. We reverse the trial court’s determination that the sente nces shou ld be served consecutively. We re

mand to the trial court to amend the judgment for case number 01--13-

00564 to refle ct that the

defenda nt was a stand ard violent offender rather than a r epeat violent offende r. We aff irm the jud

gments o f the tria

l court in a

ll other r espects

.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE