IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 8, 2003 Session

STATE OF TENNESSEE 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 defendant was convicted of especially aggravated kidnapping, aggravated kidnapping,

aggravated robbery, and robbery. The defendant contends on appeal that the trial court erred in (1)

not properly transferring the case from juvenile court, (2) denying her request for a continuance, (3)

admitting a tape recorded statement by the defendant, (4) admitting certain photographs of the

victim, (5) refusing to allow expert testimony regarding the defendant’s mental condition, (6)

refusing to allow evidence of a co-defendant’s subsequent crimes, (7) failing to instruct the jury on

certain lesser included offenses, and (8) sentencing. We conclude that the trial court erred in

applying enhancement factors six and ten. The trial court also erred in not applying the mitigating

factor (victim released alive) to the especially aggravated kidnapping conviction. The sentence is

reduced for (1) aggravated robbery from ten years to nine years, (2) aggravated kidnapping from ten

years to nine years, and (3) especially aggravated kidnapping from twenty-one years to twenty years.

We reverse the trial court’s determination that the sentences should be served consecutively. We

remand to the trial court to amend the judgment for case number 01-00564 to reflect that the

defendant was a standard violent offender rather than a repeat 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

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

ROBERT W. WEDEMEYER, J., joined.

Danese K. Banks and Gerald D. Skahan, Memphis, Tennessee, for the appellant, Nesha Newsome.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

William L. Gibbons, District Attorney General; Amy P. Weirich and Stephen P. Jones, Assistant

District Attorneys General, for the appellee, State of Tennessee.
1

 The judgment form for this conviction (No. 01-00564) indicates that the defendant was sentenced as a repeat

violent offender. The defendant was actually a standard offender, as correctly indicated on the other judgment forms.

However, the trial court considered the proper sentencing range. The judgment form must be amended on remand to

reflect that the defendant was a standard offender and not a repeat violent offender.

2

 At the time of trial, Miss Richardson’s last name had been legally changed to Wright.

3

 Jermaine Bishop is also referred to in the record as “Sean” or “Shawn.”

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OPINION

The defendant, Nesha Newsome, was charged with carjacking (No. 01-00560), especially

aggravated kidnapping (No. 01-00561), especially aggravated robbery (No. 01-00562), two counts

of aggravated robbery (No. 01-00563), and two counts of especially aggravated kidnapping (No. 01-

00564). A jury found the defendant not guilty of carjacking, guilty of the lesser included offense of

aggravated kidnapping (Class B felony), guilty of the lesser included offense of aggravated robbery

(Class B felony), guilty of the lesser included offense of robbery (Class C felony)(two counts

merged), and guilty of especially aggravated kidnapping (Class A felony)(two counts merged). The

trial court sentenced the defendant as a Range I, standard offender to twenty-one years on the

especially aggravated kidnapping conviction1, ten years on the aggravated robbery conviction, ten

years on the aggravated kidnapping conviction, and four years on the robbery conviction. The

sentences were ordered to be served consecutively for an effective sentence of forty-five years. This

appeal timely followed. 

The defendant contends on appeal that the trial court erred in (1) not properly transferring

the case from juvenile court, (2) denying her request for a continuance, (3) admitting a tape recorded

statement by the defendant, (4) admitting certain photographs of the victim, (5) refusing to allow

expert testimony regarding the defendant’s mental condition, (6) refusing to allow evidence of a codefendant’s subsequent crimes, (7) failing to instruct the jury on certain lesser included offenses, and

(8) sentencing.

Facts

On New Year’s Eve, 1999, Bryan Morris and Holly Richardson2 (the victims in this case)

were attending a party at a friend’s house in East Memphis. Around midnight, the victims left to get

something to eat. Both of them lived in Bartlett and were not familiar with East Memphis. Miss

Richardson drove Mr. Morris’s car because he was too intoxicated to drive. They followed some

other people from the party to the store. Before reaching their destination, the pair lost sight 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. However, they were unable to contact anyone from the party. 

Nesha Newsome (the defendant), Jermaine Bishop3, and Mozella Newsome were outside

the gas station where the victims stopped. Miss Richardson asked the group if they could help her,

because she was lost. Initially, the group tried to give her directions. They then agreed to ride with
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the victims and show them how to get back to the party. Miss Richardson agreed to bring them back

after they found out how to get to the party. The three got into the backseat of the car that Miss

Richardson was driving. Bishop instructed her to drive across the street to an apartment complex.

Bishop and Mozella Newsome went inside, while the defendant remained in the car with the victims.

They soon returned, and the group left, with Bishop giving directions.

On the way back to the party, Mr. Morris 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 car where Mr. Morris had vomited. The defendant, Bishop, and Mozella Newsome

remained in the backseat of the car. Mr. Morris returned to the car, and the group again set out to

find the party. On the way, Bishop and Mozella Newsome began whispering. They informed the

defendant that they intended to “stick up” 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 remained in the car with the engine running. At one point, a friend of the victims

came out and talked with them. The victims were in the house for several minutes. They returned

to the car and left to take the trio back to the area 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 going to his grandmother’s house. At one point, Bishop told Miss Richardson to stop and

turn out the lights. Believing that they had arrived at his grandmother’s house, she complied.

Bishop got out of the car and pulled a gun. He ordered them out of the car. Mr. Morris gave his

wallet to Bishop. Bishop then punched Mr. Morris in the face a couple of times and threw him in

the backseat with Miss Richardson and the defendant. Bishop got into the driver’s seat, and Mozella

Newsome got into the front passenger seat. Bishop gave the gun to Mozella Newsome. She turned

around and pointed the gun at the victims while Bishop drove for several miles.

As they drove, Miss Richardson screamed for help. Bishop instructed the defendant to “shut

her up.” The defendant punched Miss Richardson numerous times in the head and face 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 Bartlett bitch” and continued beating her. At some point, the

defendant told Miss Richardson to open her mouth. The defendant then burned her tongue with a

cigarette and forced her to swallow the ashes. The defendant also struck Mr. Morris a few times.

Miss Richardson asked the defendant if she was going to kill her. The defendant smiled and patted

her on the head saying, “[n]o Sweetie, I’m not going to kill you.” She then continued to beat Miss

Richardson. She stated that the defendant was laughing and smiling the entire time. Bishop said that

they should make Miss Richardson perform oral sex on the defendant. 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 driving. He noticed

that they had turned onto a dead end road. Sensing that “something bad was about to happen,” he

jumped from the car as they made a turn. Mr. Morris sustained a broken finger from the impact. The

assailants and Miss Richardson continued on in the car. They stopped a few minutes later and

ordered Miss Richardson out of the car. She was forced to give up her rings and all of her clothes,
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except for her socks. She ran into the woods naked and bleeding. Miss Richardson hid and waited

for the group to leave. After they left, she ran from house to house trying to get help. Ms.

Hammelore Stewart answered her door and helped the victim. Miss Richardson sustained a broken

nose and numerous bruises as a result of the incident. She was in pain for approximately two weeks.

The defendant was located a few weeks later and charged with carjacking, especially

aggravated kidnapping (Morris), two counts of especially aggravated kidnapping (Richardson),

especially aggravated robbery, and two counts of aggravated robbery. A jury found the defendant

not guilty of carjacking, guilty of the lesser included offense of aggravated kidnapping, guilty of

especially 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 sentence of forty-five years. This appeal timely followed.

Analysis

I. Transfer from Juvenile Court

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

required by Tennessee Code Annotated section 37-1-134, when it transferred her to adult court.

However, the defendant has not provided a transcript of this proceeding. “It is the duty of the party

seeking appellate review to prepare a record which conveys a fair, accurate and complete account

of what transpired with respect to the issues raised by the party.” State v. Dellinger, 79 S.W.3d 458,

484 (Tenn. 2002); see also State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “When the record

is incomplete, and does not contain a transcript of the proceedings relevant to an issue presented for

review, this Court is precluded from considering the issue.” Dellinger, 79 S.W.3d at 484; see also

State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Because the record is incomplete

with respect to this issue, the issue is waived.

II. Denial of Continuance

The defendant contends that the trial court erred in refusing her request for a continuance

after the case was severed from the co-defendants. The granting or denial 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 discretion and prejudice to the party seeking a continuance.

Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). The defendant argues that her trial

strategy changed after the cases were severed. The defendant wanted to have an independent

psychological evaluation performed. The trial court found that the defendant had ample time to

prepare for the possibility of being tried together with the co-defendants or individually. As the trial

court found, if the defendant needed an evaluation on the day of trial, she needed one a month earlier.

The record does not indicate that the trial court abused its discretion by denying the continuance.

Furthermore, the defendant has failed to demonstrate that she was prejudiced by the denial. 
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III. Tape Recorded Statement

The defendant contends that the trial court erred in overruling a motion 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 claimed that it was not aware of the tape until

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

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 verbatim to the transcript.

Even if there was a discovery violation, the defendant has failed to show prejudice. When

there has been a failure to produce discoverable material within the allotted time, the trial judge has

the discretion to fashion an appropriate remedy, such as a continuance. Tenn. R. Crim. P. 16(d)(2).

Whether the defendant has been prejudiced by the failure to disclose is always a significant factor.

State v. Baker, 751 S.W.2d 154, 160 (Tenn. Crim. App. 1987). Exclusion of the evidence is a drastic

remedy and should not be implemented unless there is no other reasonable alternative. See, e.g.,

State v. House, 743 S.W.2d 141, 147 (Tenn. 1987). After listening to the tape, we conclude that it

is essentially identical to the transcript. This issue is without merit.

IV. Photos of the Victim

The defendant contends that the trial court erred in overruling its motion in limine regarding

certain photos of the victim. Until the trial began, the State had provided the defense 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 State claimed that it was not aware of any additional photos.

Apparently, the additional 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 photos of

Miss Richardson to be introduced by the State.

As with the tape recorded statement, even if there was a discovery violation, the defendant

has failed to show prejudice. The defendant was already in possession of two photographs of Miss

Richardson that showed the injuries she sustained as a result of the incident. We agree with the trial

court that the photos that the defendant did have were more revealing than the additional photos.

The defendant claims that by not having the photos earlier, she did not have the opportunity to have

them examined by an expert to determine the cause of the injuries depicted in the photos. She offers

no reason as to why she did not have the photos in her possession examined. The defendant has

failed to show actual prejudice. We will not presume prejudice based on mere allegations. This

issue is without merit.
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V. Expert Testimony Regarding the Defendant’s Mental Condition

During the defendant’s bond hearing in May of 2000, a psychological report of the defendant

was introduced. It indicated that the defendant may have mental defects. 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 defendants changed her strategy so that

an additional mental evaluation was necessary. The trial court denied the introduction of expert

testimony regarding 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 district attorney in writing prior to the trial. Tenn. R. Crim. P.

12.2(b). If the defendant fails to give proper notice, “the court 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 contained in the initial report for over a year. No showing of good cause has been made

in this case. This issue is without merit.

VI. Subsequent Crimes of the Co-defendant

The defendant contends that the trial court erred in not allowing evidence of subsequent

crimes committed by Co-defendant Bishop. 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. See Tenn. R. App. P. 36(a); State

v. Eldridge, 951 S.W.2d 775, 783-84 (Tenn. Crim. App. 1997).

VII. Lesser Included offenses

The defendant contends that the trial court erred in failing to charge certain lesser included

offenses. Trial counsel orally requested that the jury be instructed all the way down to theft on the

aggravated robbery charge and all the way down to false imprisonment on the especially aggravated

kidnapping charges. The trial court instructed the jury down to robbery and kidnapping as lesser

included offenses. 

The trial in this case began on January 28, 2002. In 2001, the Tennessee legislature amended

Tennessee Code Annotated section 40-18-110 to provide that an instruction as to a lesser included

offense is waived unless the defendant requests in writing, prior to the trial court’s charge to the jury,

that such an instruction be provided to the jury. Tenn. Code Ann. § 40-18-110(c). This amendment

to Tennessee Code Annotated section 40-18-110 governs all trials 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 charge to the jury, the

defendant has not presented a ground upon which relief may be granted. See Tenn. Code Ann. § 40-

18-110(c). Therefore, this issue is without merit.
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Even if the trial court erred in failing to charge down to theft and false imprisonment as lesser

included offenses, the error was harmless. “In applying the lesser-included offense doctrine, three

questions arise: (1) whether an offense is a lesser-included offense; (2) whether the evidence

supports a lesser-included offense instruction; and (3) whether an instructional error is harmless.”

State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002). We agree with the parties that theft is a lesserincluded offense of especially aggravated robbery and false imprisonment is a lesser-included

offense of especially aggravated kidnapping 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 its statutory elements are included

within the statutory elements of the offense charged); see Tenn. Code Ann. §§ 39-13-403 (a), -

305(a). 

When a lesser included offense instruction is improperly omitted, . . . the harmless

error inquiry is the same as for other constitutional errors: whether it appears beyond

a reasonable doubt that the error did not affect the outcome of the trial. (citation

omitted). In making this determination, a reviewing court should conduct a thorough

examination of the record, including the evidence presented at trial, the defendant’s

theory of defense, and the verdict returned by the jury.

Allen, 69 S.W.3d at 191. 

In indictment number 01-00561, the defendant was charged with the especially aggravated

kidnapping of Mr. Morris, by use of a handgun. The trial court charged the jury down to kidnapping.

The defendant was convicted of aggravated kidnapping. The evidence was overwhelming and

undisputed that the kidnapping of Mr. Morris was accomplished through the use of a deadly weapon.

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 robbery

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

down to robbery. The defendant was convicted of aggravated robbery. As with the previous charge,

the evidence was overwhelming and uncontroverted that the kidnapping was accomplished by the

use of a deadly weapon. Additionally, the evidence was overwhelming that the victim suffered

serious bodily injury. Any error in failing to charge theft was harmless. Id. at 189. In indictment

number 01-00564, the defendant was charged with alternatively committing the especially

aggravated kidnapping of Miss Richardson, by either use of a deadly weapon or via inflicting serious

bodily injury. As noted above, the trial court charged down to kidnapping, but the jury convicted

the defendant of the charged offense. As with Mr. Morris, the evidence was overwhelming and

uncontroverted that the kidnapping was accomplished with a deadly weapon. The evidence was

overwhelming that Miss Richardson suffered serious bodily injury. . Therefore, any error in failing

to charge false imprisonment was harmless. Id.

Finally, in indictment number 01-00563, the defendant was charged with the aggravated

robbery of Mr. Morris, by use of a deadly weapon. The trial court charged down to robbery, and the

jury convicted the defendant of robbery. As applied to this case, robbery is defined 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

property, [when] the person knowingly obtains or exercises control over the property without the
4

 Effective July 2002, the legislature amended Tennessee Code Annotated section 40-35-114 by adding

“terrorism” as an enhancement factor. 2002 Tenn. Pub. Acts, ch. 849, § 2(c). “Terrorism” is listed as factor (1), thus

renumbering the previous factors as (2) through (23). See Tenn. Code Ann. § 40-35-114 (Supp. 2002). Our opinion

refers to the enhancement factors as they existed at the time of sentencing as specified in Tennessee Code Annotated

section 40-35-114(1997).

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owner’s effective consent.” Id. at -14-103. In this case, it is undisputed that Mr. Morris was put into

fear when the gun was produced and that his wallet was stolen as a direct result. Pursuant to Allen,

any error in not charging below robbery was harmless. 69 S.W.3d at 189.

VIII. Sentencing

The defendant contends that the sentence imposed by the trial court is excessive. 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 Commission Comments; State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 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

appeals the length, range, or manner of service of his or her sentence. 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 principles and all relevant facts and circumstances.

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

convictions. See Tenn. Code Ann. §40-35-114.4 The court applied enhancement factors five

(exceptional cruelty), six (injuries particularly great), seven (committed to gratify), and ten (risk to

human life was high) only to the convictions for aggravated kidnapping and especially aggravated

kidnapping. 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 car theft. The pre-sentence report

indicates that the defendant had no prior convictions. The trial court was apparently referring to a

document submitted in the bond hearing that showed the car theft. That document was not

introduced into evidence and is not a part of the record. However, 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 above” what is required to sustain a conviction for an offense.

See State v. Poole, 945 S.W.2d 93, 99 (Tenn. 1997) (requiring the facts in a case to “support a

finding of ‘exceptional cruelty’ that demonstrates a culpability distinct from and appreciably greater

than that incident to” the crime). In State v. Arnett, the victim and her boyfriend were kidnapped,

the boyfriend was assaulted by one of the kidnappers, the boyfriend managed to get away, and the

victim was left partially naked to seek help. 49 S.W.3d 250, 258 (Tenn. 2001). The Arnett court

held that the facts supported the finding that the psychological terror amounted to cruelty over and

above that necessary to sustain the conviction. The facts in this case are similar. The beating of the
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victims was not necessary to sustain the kidnapping convictions. We conclude that the trial court

properly applied factor five.

The trial court also found that the injuries inflicted in this case were particularly great. Miss

Richardson sustained a broken nose and numerous bruises as a result of the beating. She stated that

she had pain for two weeks. The burn to her tongue apparently produced no lasting effects. Mr.

Morris sustained a broken finger, swollen hand, and bruising. These injuries were not of the

magnitude contemplated by this enhancement factor. The trial court erred in its application of factor

six.

The trial court next found that the defendant engaged in her crimes to gratify a desire for

pleasure or excitement. Application of enhancement factor seven requires an examination of the

defendant’s motive for committing the offense. State v. Kissinger, 922 S.W.2d 482, 490 (Tenn.

1996). While the defendant’s initial motive for these crimes may have been robbery, her actions

went beyond those necessary for robbery. The defendant laughed and smiled while repeatedly

beating the defendant. She laughed as the victim was stripped naked and left in the woods. She

called her names and burned her with a cigarette. Additionally, the psychological report completed

in 1999 and introduced during sentencing indicates that the defendant enjoys “the tension of danger.”

The trial court correctly applied factor seven.

The trial court applied factor ten, finding that the risk to human life was high. The mode of

especially aggravated kidnapping of Mr. Morris charged in the indictment is that the defendant

“accomplished [the kidnapping] with a deadly weapon.” See Tenn. Code Ann. § 39-13-305(a)(1).

When an offense is committed with a deadly weapon, it is inherent within the offense that there 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). Because 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. The trial court also applied this factor to the especially

aggravated kidnapping of Miss Richardson. The defendant was charged with alternatively

committing the especially aggravated kidnapping of Miss Richardson by either use of a deadly

weapon or via inflicting serious bodily injury. She was found guilty on both counts, and it was

merged into one conviction. Again, factor ten is inherent in the offense as charged. Therefore, it

should not have been applied to the conviction for the especially aggravated kidnapping of Miss

Richardson. The trial court erred in its application of factor ten to the convictions for aggravated

kidnapping and especially aggravated kidnapping.

The trial court found that no mitigating factors applied in this case. We agree with the trial

court that none of the mitigating factors listed in Tennessee Code Annotated section 40-35-113 apply

in this case. However, there is one mitigating factor not listed in that section that does apply.

Tennessee Code Annotated sections 39-13-304(b)(2) and -305(b)(2), concerning aggravated

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 mitigating factor at the time

of sentencing.” These code sections require “mandatory consideration of this mitigating factor if the
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victim is released alive.” State v. Arnett, 49 at 264 n.9. Miss Richardson was released alive, so this

factor would apply to the conviction related to her especially aggravated kidnapping. Mr. Morris

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 are applicable enhancement factors but nomitigating factors for a Class A felony,

“the court shall set the sentence at or above the midpoint of the range.” Tenn. Code Ann. § 40-35-

210(d). When there are applicable enhancement and mitigating factors for a Class A felony, “the

court must start at the midpoint of the range, enhance the sentence within the range as appropriate

for the enhancement factors, and then reduce the sentence within the range as appropriate for the

mitigating factors.” Id. at -210(e). When there are applicable enhancement factors but no mitigating

factors for a Class B, C, D, or E felony, “the court may set the sentence above the minimum in that

range but still within the range.” Id. at -210(d). When there are applicable enhancement and

mitigating factors for a Class B, C, D, or E felony, the court must start at the minimum sentence in

the range, then enhance appropriately for the enhancement factors, then reduce appropriately for the

mitigating factors. The defendant was convicted of especially aggravated kidnapping (Class A

felony), aggravated robbery (Class B felony), aggravated kidnapping (Class B felony), and robbery

(Class C felony). The defendant is a Range I offender. The appropriate sentence ranges are fifteen

to twenty-five years for the Class A felony, eight to twelve years 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 years on the Class A felony, ten years on each

of the Class B felonies, and four years on the Class C felony. The weight given to each enhancement

or mitigating factor is in the discretion of the trial court, assuming the trial court has complied with

the purposes and principles of the sentencing act and its findings are supported by the record. State

v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). The statutes prescribe no particular

weight for an enhancement or mitigating factor. State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim.

App. 2001). A defendant’s sentence “‘is not determined by the mathematical process of adding the

sum total of enhancing factors present then subtracting from this figure the mitigating factors present

for a net number of years.’” State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (quoting

State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)). 

The only enhancement factor that applies to the convictions for aggravated robbery and

robbery is factor one, based on the defendant’s marijuana use. We affirm the sentence of four years

for robbery, and the sentence for aggravated robbery is reduced from ten years to nine years. The

court improperly applied enhancement factors six and ten to the especially aggravated kidnapping

and aggravated kidnapping convictions. However, enhancement factors one, five, and seven were

properly applied. The court erred in not applying the mitigating factor (victim released alive) to the

especially aggravated kidnapping conviction. The sentence for especially aggravated kidnapping is

reduced from twenty-one years to twenty years, and the aggravated kidnapping sentence is reduced

from ten years to nine years.
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The defendant also argues that the trial court erred in imposing consecutive sentencing in this

case. Generally, it is within the discretion of the trial court to impose consecutive sentences if it

finds by a preponderance of the evidence that at least one of following statutory criteria apply: 

(1) [t]he defendant is a professional criminal who has knowingly devoted such

defendant’s life to criminal acts as a major source of livelihood; 

(2) [t]he defendant is an offender whose record of criminal activity is extensive; 

(3) [t]he defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant’s criminal conduct has been characterized by a

pattern of repetitive or compulsive behavior with heedless indifference to

consequences; 

(4) [t]he defendant 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 human life is high; 

(5) [t]he defendant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating circumstances

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 extent of the residual, physical and mental damage to the

victim or victims; 

(6) [t]he defendant is sentenced for an offense committed 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 defendant is a dangerous offender under Tennessee Code

Annotated section 40-35-115(b)(4), it must make two further determinations in addition to applying

general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find

an extended sentence is necessary to protect the public from further criminal conduct by the

defendant, and, second, it must find consecutive sentencing to be reasonably related to the severity

of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific

factual findings are unnecessary for the other categories ofTennesseeCodeAnnotated 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 dangerous offender whose behavior indicated

little or no regard for human life and no hesitation about committing crimes in which the risk to

human life was high. In determining whether consecutive sentencing would be appropriate in this

case under the dangerous offender provision, the trial court stated:
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I do think that exists. I think that has been borne out by the proof over and over

again, and that this defendant should be considered to be a dangerous offender based

on her conduct that night - on what she did and her participation in these events - the

beatings that she inflicted, lengths that she went to , to ensure that these crimes were

committed, the callous manner in which she allowed these crimes to occur, her order

to the driver to drive on after the young man jumped out of the moving car, her

laughter when blows would be struck, her laughter when the young lady’s clothes

were stripped off of her, and she was ordered to walk into the woods at 2:00 in the

morning. Her conduct, from start to finish, in my judgment, suggests that she is a

dangerous offender, and I just don’t know how any other conclusion could be reached

given the facts of this case.

In Wilkerson, the defendant was convicted of vehicular homicide, four counts of vehicular

assault, and driving on a revoked license. 905 S.W.2d at 934. The trial court, finding that the

defendant was a dangerous offender, imposed consecutive sentencing pursuant to Tenn. Code Ann.

§ 40-35-115(b)(4). Id. This Court, however, remanded the case for resentencing because the trial

court did not expressly find that consecutive sentences were reasonably related to the severity of the

offenses and necessary to protect the public against further criminal conduct. Id. at 938-39.

However, it is not always necessary to remand when the court fails to make such specific findings.

See State v. Alexander, 957 S.W.2d 1, 8 (Tenn. Crim. App. 1997). This court may make its own

determination of whether consecutive sentencing is appropriate based on the record. Id.

Aside from marijuana use, the record does not indicate that the defendant has a history of

criminal conduct. There is nothing in the record indicating that the defendant has ever been arrested

for another crime. The defendant was sixteen years 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 concurrently, the defendant will be required to serve the entire twenty-year sentence. We

cannot say that consecutive sentencing is necessary to protect the public against further criminal

conduct. Therefore, we reverse the trial court’s determination that consecutive sentencing is

appropriate in this case.

Conclusion

We conclude that the trial court erred in applying enhancement factors six and ten. The trial

court also erred in not applying the mitigating factor to the especially aggravated kidnapping

conviction. The sentence for aggravated robbery is reduced from ten years to nine years. The

sentence for especially aggravated kidnapping is reduced from twenty-oneyears to twenty years. The

sentence for aggravated kidnapping is reduced from ten years to nine years. The sentence of four

years for robbery is affirmed. We reverse the trial court’s determination that the sentences should

be served consecutively. We remand to the trial court to amend the judgment for case number 01-
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00564 to reflect that the defendant was a standard violent offender rather than a repeat violent

offender. We affirm the judgments of the trial court in all other respects.

___________________________________ 

 JOHN EVERETT WILLIAMS, JUDGE