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# FILED October 14, 1999 Cecil Cro wson , Jr. Appellate Co urt Clerk IN THE COURT OF CRI MINAL A PPEALS OF TENNESS EE AT KNOXVILLE MARCH 19 99 SESSI ON STATE OF T ENNESSEE, ) C.C.A.03C01-9807-CC-00249 ) RHE A CO UNT Y CIR CUIT ) Appellee, ) Hon. Buddy D. Perry, Judge ) ) ) vs. ) (ATTEMPT TO COMMIT ) AGGRAVAT ED RAPE)

) NO. 14229 ) CARLOS D. MA

THIS, ) ) Appe llant. )
FOR THE A PPELLA NT : FOR THE APPELLEE :
B. JEF FERY HARM ON JOHN KNOX WALKUP Assistant

Public Defender Attor ney General & Reporter P.O. Box 220 Jasper, TN 37347 ERIK W . DAAB Assistant

Attor ney General 425 F ifth Aven ue N orth 2nd Floor,

CordellHull Bl dg. Nashvill e, TN 37243 JAMES MI CHAEL TAYLOR Distri ct Att

orney General WILL DUNN Assistant D istrict Attorney 365 Third Av

enue, Suite 300 Dayton, TN 37321
OPINION FILED:_________________ REVERSED AND REMANDED
CORNELIA

A. C LARK Special Judge

OPINI ON2 Appellan t appeals a s of right from his conviction fo r attem pt to com mit aggravatedrape, a Cl ass B felony . He was sent enced to serve twelv e years. Appellant

raises th e followin g issue s for revie w: (1 ) the trial c ourt c omm itted pla in error in fail ing to give a j ury inst ruction as to alibi ; (2) the co urt co mm itted rev ersible error in failing to give a jury ins truction as to id entity; (3) th e cou rt com mitted plain error in tel ling t he jury

“ther e are six

(6) potent ial crimes that could have been com mitted”; and (4) t he court er red in sent encing the app ellant . Upon revi ew of the reco rd, we conc lude th at we mus t revers e an d rem and for a n ew tria l.
On May 1 7, 199 7, Rose Runyon, the vi ctim i n this cas e, opened her f lower sho p locat

ed in Ri chlan d Plaza in Day ton, Tennesse e, abo ut 8: 30 a.m. At a ppro xima tely 9:00 a .m., a bla ck ma le unkn own to Mrs. Ru nyon e ntered her flowe r a nd g ift shop. He indi cated he was l ooking for a late anniversary

present for his wife, having forgo tten th eir anni versary a few days bef

ore. He l ooked around the store for about twenty

to thi rty minutes, then selected sever al st uffe d animals for purch ase. As Mrs. R unyon proc eed ed to the re ar of th e stor e to w rap a nd ta pe th e pre sents selected,the man foll owed her to get cards to si gn. Suddenly he grabbed her from behind, placed a kni fe to her throat , an d stated, “Be quiet or I’ ll ki ll y

ou.” As she struggl ed, he cut her on t he throat, mouth, chin, and neck. He attempted to place duct tape over her mou th but, because h er face was co ve red with bl ood, the t ape did not s tick. Mrs. Runyo n pleaded with the att acker and tol d him where her cas h wa s located.The attacker then thr

ew her to t he floor

and d ema nde d th at she undress. Mrs. Run yon sta ted, “Yo u mig ht as w ell kill me now . I’m no t pulling my clo thes o ff.” The a ttacker pul led off her cl othing and began to kiss her.He unzipped his pan ts , grab bed her b reas t, and attem pted to pe netra te he r. At tha t mom ent, however , K enn eth Robbi ns, a customer, enter ed the store. The att acker fled thr

ough the back door, leaving behind t he gifts he had chose n and a n ecktie with strips of duct tape on it. He took hi s knife with him. Mr s. Runyon was obv iously upset and asked Robbi ns to stay untilthe poli ce came.3 Mrs. Runyon test ifi ed that she ca reful ly l ooked at her at tacker so that she wou ld be able to i dentif y him i n the fut ure. The ro oms were well lit . She descri bed the attacker to po lice as a blac k ma le, app roxim ate ly five feet s even inche s tall, app roxim ately twenty -fiv e years ol d, wei ghing between one hundred t wenty and one hundred forty po und s, cle an-sha ven, and weari ng tortoise-shel l fra med prescri ption glass es.
Prior to M rs. Runyon’s ulti mate identif ication of the appellant,Dayton Police Officer Chris Sneed showed her photographs of approxi mately ten t o twelve black male susp ects, b ut she could not ide ntify an y of th em as her a ttacke r. App ellant’s pho togra ph w as n ot inc lude d in th e arr ay.
Sho rtly after th e atta ck M rs. Runyon h ad o ccas ion to d escrib e he r attac ker to other Richlan d Plaza st ore owners. Margaret Phi lpott , manager of t he neighbori ng Mou ntain Air Natur

al Food Shop, r

esponded that a man matching the des cript ion of the attack er ha d com e into h er sto re on the tw o da ys prec eding the a ttack. S he testified at trial t hat on May 15, 1997, the same man r emained in her store for a ppro xima tely forty-five minut es but did not make a purchase. On May 16, he staye d in the stor

e for approximat ely one ho ur, t hen purchased chi ldren’ s vitamins wit h a chec k. Du ring h er trial tes timon y, she id entifie d the app ellant a s the c heck writer.
Another Richland Pl aza stor e owner tol d Mrs. Runyon that a person meeti ng the attacker

’s descri ption f requ ented his store. This owner bel ieved t hat the i ndivi dual worked at a local Arby ’s Restaurant . About two or t hree weeks after her at tack, Mrs. Runy on and h er dau ghter vis ited Arb y’s and, u pon o bservin g the a ppellan t there , imm ediate ly recognized him a s her att acker. She cal led the pol ice and the ap pellant was arres ted.
After the a rrest, O fficer Ch ri s Sneed testified t hat he conducted a search of t he app ellant’s residence andrecovered t ortoi se-shell

prescri ption gl asses and duct tape. Mrs. Runyon later i dentifi ed the glasse s as thos e wo rn by he r attac ker. T he a ppe llant, clean-shav

en at the time of arrest , tol d O fficer Sneed that he was f ive feet six and one -half inches tal l, t hat he weighed on e hundred for ty pounds,and was twenty -one1 The cas e had first b een tried s ever al m onth s ear lier an d app aren tly resu lted in a m istrial. 4 years old. These det ai ls fi t the ge neral descri ption given by Mrs. Runyon. Sneed also o btain ed the appell ant’s marr iage li cense showing t hat his weddi ng anniver sary was May 12, five days b efore the inc ident. N o knif e, shirt, o r pan ts ma tc hing t he description given by the v icti m were ever found.
At trial Ros e Run yon iden tified the a ppellan t as her a ttacker.
The appellant testifi ed in his own behalf and denied committ ing the offense ch arged. He st ated that at th e time of the incide nt he was at his f athe r-in-law ’s broth er’ s housewit h his wife, at

tempting t

o bor row mo ney fro m his fat her- in- law.He testified thathe then p roce ede d to a f orme r emp loyer’s lo cation in Ch attan oog a to obta in his pa ychec k. He testified th at he had never been i n the vi ctim’ s store, that he had bought a present for hi s wife pri or to his anni versary,that he had always w eighe d more than 140 pounds, and that he never wore gl asses.
The appe llant’s alibi wa s corro bora te d by his f ather- in-l aw, Don Creasman. Creasman testified t hat he par ticul ar ly r

emembered the day i n question because he had worked the thir

d shift, left work early i n the morning, and cashed a check befor e drivin g to his br

other’ s house. He int ended to lend the appellant money. Crea sma n further testified t hat his daught er, her two chil dren , a nd the appell ant allwere in t he car when t hey arrived at his brot her’s house.His daughter was driv ing because t he appellant

could not d rive a s tick-sh ift. Crea sma n testif ied tha t the ap pella nt was a cting norm ally and showed no unusu al mark s or b lood. The appel lant and hi s family left for Chattanoogabetween 9:10 and 9: 15 a.m. Creasman al so t estif ied tha t at t he time of the incident

the appell ant weigh ed between one hundred s eventy and one hundred seve nty-five p oun ds, an d tha t he n ever w ore g lasse s.
On c ross-exami nation, Don Creasman admitte d certai n inconsi stencies between his testimony i n the fi rst t rial 1 and the i n stant t rial . For exampl e, at t he time of the fi rst t rialhe said he had deposited his own pay check on the day

of the attack . However, a bank videotape showed that he cashed his check the day before t his incide nt. At the second t rialhe said it w as his wif e’s check he cashed i n order to get money for his son- in-law. C re asman also acknowle dged that he nev er rai sed the ali bi2 In the court reporter’s transcri pt, Mrs. Mathis’s fir st name i s spe lled “ Kelli ”. However, in her statement, signed in her own ha nd, Mrs. Mathis spells her nam e “Kelly”. 5 defe nse to the p olice d uring their initia l inves tigation . App ellant’s uncle -in-law , Clau de C reas man , a lso te stified a bou t the ev ent. H is story was consistent wit h those of hi s br ot her a nd th e ap pellan t. How ever, h e cou ld not remember details about the exact

day when the meet ing occurr ed.
The defense also call ed Sp ecial Agent Forensic Sci entist

Robert McFadden of the Tennessee Bureau of I nvesti gation . Age nt M cFadden testified t hat he had developed three latent prints o n the duc t tape fo und on the ti e which was l eft at the scene of the offens e. The finge rpri nts did not match those of

either the vi ctim or the app ellant. Kelly 2 Math is, app ell ant’s wi fe, was called by t he state as a rebutt al witness. She identified a statement she gave to poli ce on June 5, 1996, indicating that she and her husban d were ho me at the time of th e atta ck a nd d id no t leav e the hou se a ll day. The statement

was given before Mrs. Mathi s had an opp ortun ity to spe ak w ith appellant

after h is arre st. He r state men t contr asted with the state men t o rigi nally given by appellant

that he was in Memphis visiting his mother at the ti me of the attack.
Mrs. Mathis explain ed tha t the origin al statem ent wa s incorr ect because she was scare d an d up set a t the time she gave it. At tri al she testifi ed that on t he evening of May 16, she ask ed her father if

sh e could borr

ow money so that

she and her husband could go to Ch attanooga t he next morni ng to pick u p his fi nal payche ck. She concur red with t he testi mony of her f ather t hat she, her

husband, and her t

wo c hildre n arri ved at Cla ude Cre asm an’s hom e in D ayt on, Tennessee, between 9: 00 a.m. and 9:30 a.m. H er fath er loa ned them twen ty dollars and they lef t to go to Chattanooga. She stated t hat neit he r she nor her husband had been at Richl and Plaza t hat morning. She f urthe r testif ied th at he r hus ban d ha d no t forg otten their a nniv ersa ry and ha d bou ght h er an ang el ring a s a gif t.6 JURY IN STRUCTI ONS Appellant

raise s tw o issues concerning err or in t he jury

instructions:(1) t he failure to instru ct the ju ry as to th e de fens e of a libi, and (2) the failu re to inst ruct the jury as to identifi cation.
A. ALI BI Trial courts have an affir mative dut

y to i nstruct

the jur y on every i ssue raised by the proof , incl udi ng the accused’ s theory of defense, and specifi cally includi ng the de fense of a libi. Poe v. State , 212 T enn. 4 13, 37 0 S.W . 2d 48 8, 491 (Tenn . 1963 ). See al s o State v.McPherson , 882 S.W. 2d 365, 374 (Tenn. Crim. App. 1994)( citat ions omitted ). When a defendant pursues an ali bi defens e at trial, t he trialcourt must instruct the jur y on the def

ense when it is “fairly rais ed” b y the ev idenc e. Manning v. State , 500 S.W. 2d 913, 91 6 (Tenn . 197 3); Poe , 370 S.W . 2d a t 491 . See also State v. Hard in , 691 S.W. 2d 578, 581 (Tenn. Cri m. App. 1985 ). The duty exists irrespective of a re que st for th e instru ction b y the de fend ant. Poe , 370 S.W . 2d a t 491 . Our Supreme Co urt has pr ovided t hree scenari os refl ecting when an a libi de fense has b een “fairly raise d”, the reby m aking the ins truction man dato ry. M anning , 500 S.W. 2d at 916. Those scenarios are:

(1) where the defendant’s ali bi has been c orr oborated by other credible wi tnesses; (2) where the vi ctim has been unabl e to ident ify the defendant ; or (3) whe re the proo f aga inst the defe nda nt is wh olly circu msta ntial.
Id. Only when the evide nce fairly raises the defense b y meeting one o f the above circumstances does the trial cou rt h ave an u neq uivo cal d uty to in struc t the ju ry. W here the evi dence does not meet t hese circumst ances, the t rialcourt i s no t requi red to give s uch a n instru ction. Almo nrod e v. Sta te , 56 7 S. W. 2d 184 , 18 6 (Te nn. Cri m. App . 197 8).7 T he app ella nt’s wife, her father a nd her uncle al l test ifi ed that appel lant was with t hem at or suff iciently near the ti me of the offense to make his commiss ion of i t impossibl e. Although appel lant’ s wife admit ted that her initial

statement

t o police was inconsistentwith her tri al test imony, she explai ned that she was ne rvou s and upset when she ma de the initialstatement . There exi sted a dir ect confl ict i n the fact ual tes timony

of the defe nse witness es and the vi ctim. Thus the appell ant fai rly raised t he defense of alib i and it w as fo r the jur y to eva luate the credibi lit y of wi tnesses and decide the fact ual issu e. Because the ev idenc e sa tisfies th e first Manning prong, we find that an instruction on the defens e of alibi was warranted, and that failure to give i t cons tituted erro r. Finding that t he tri al court er red in its jur y charge by

omitti ng the ali bi instruction, we can not say that it is harm less error. W hen the d efe nse o f alibi i s fairly rai sed by th e pro of at tria l, the fa ilure so to instru ct the ju ry is reve rsible e rror. Poe , 370 S.W . 2d a t 490 -491 ; See also Manning , 500 S.W. 2d at 916. When a n alibi i s supported by the p roof, t he ins tructi on is f und ame ntal to th e de fens e an d ess ential to a fair trial. Poe , 370 S.W. 2d at 491. It fol lows th at the appel lant’ s convict ion must be revers ed a nd a new trial orde red.
B. IDENT IFI CATI ON The app ellant a lso co nten ds tha t the trial c ourt e rred in failin g to instru ct the jury as to identifi cation.In State v. Dyle , 89 9 S.W.2d 607 , 612 (Tenn. 1995), t he Tennessee Supreme Court hel d that whenever ident ifi cation i s a materi al issue in a case, and it is r

eque sted b y appe llant’s c oun sel, a s pecif ic new instruc tion on identity adopted by the co urt mu st be given. Fai lure to give the instruction under those circumstances cons titutes p lain err or. Id . at 612 ; Stat e v. Cr ibbs , 967 S.W.2d 773, 780 (Ten n. 19 98).
In this cas e, however,appe l lant’ s counsel di d not request that an i nstruct ion be given concerning i dentit y. Nei ther was t he issue rai sed in the motio n for ne w trial. Therefore, we m ust de termin e whet her the t rialcourt’ s fail ure to give the Dyle instruction is harml ess or prej udicial error.Tenn. R. Cri m. P. 52(a)(“No judg ment of conv ic tion shall b e reve rsed on a ppe al exc ept fo r errors which affirm atively a ppe ar to have affectedt he re sult o f the tria l on the merits .”); State v.Cribbs , 967 S.W.2d 773,8 780 (Ten n. 19 98). The victim in this ca se ga ve a d etail ed d escrip tion of her at tacker almost imm ediate ly after th e po lice arriv ed. S he te stifie d thatshe h ad loo ked c arefu lly at him so that she woul d be able t o identify hi m in the fut ure. Her des cript ion was consi stent with the appell ant’s appear ance at the time of his a rres t . The victim ulti mately made a positive identificat ion of t he appellant when she visited his pl ace of employ ment, and aga in at trial. Another nearby busines s owner identifi ed the appell ant as a per son who had loit e red in her s tore fo r som e time on th e two days b efore the cr ime. T he vic tim also ultim ately

ide ntified gla sses she c laimed were w orn by he r attacke r and th at were foun d in his reside nce.
N otwit hstanding that identification testim ony, much of the rest of the proof wa s circum stantia l. Because (1) appel lant i ntroduced ev idence of al ibi, (2) no cl ot hes or knife m atching those descri bed by the v icti m were ever found,and (3) no f ingerprint s matching the appell ant’s wer e identified, we would be incli ne d to fin d tha t the er ror in fail ing to give the Dyle instruction, standing alone, did affect the ve rdict i n this cas e. Having already determined that fai lure to i nstruct t he jury as t o th e defense of al ibi constitutes reversi ble err or, we addr

ess this issue separ

ately for the benef it of th e tri al court on re man d. Ta ken to geth er, it is cle ar tha t failure to give the tw o instr u ctions may h ave a ffecte d the verdic t.
SENTENCI NG For the benefit

of the t rialcourt on r emand we willalso address the all eged erro rs in sentenc ing. The appel lant asser ts that the trial cour

t err ed in imposi ng the ma ximu m tw elve -year sen tenc e for this C lass B fe lony.
W h e n an accused chall enges the leng th, r ange, or manner of

ser vice of a sentence, this cour

t has a duty

to conduct a de novo review of th e sentence wi th the presumpti on that t he det erminati ons made by the t rialcourt ar e correct . Tenn. Code Ann. §40-35-401(d). I f our rev iew ref lects that thetrial c ourt follow ed the statutory sentencingproc edu re, imp osed a lawf ul sen tence afte r givin g due consider ation and proper weight t

o the factors and pri nciples set out under the se nte ncing law,and the tri al cour t’ s findi ngs of fact are adequately support ed by the r

ecord, t hen we may not modify the sentence even if we woul d have preferred a diffe rent re sult. State v.9 Fletcher , 805 S .W .2d 78 5, 789 (Tenn . Crim. A pp. 19 91).
How ever, “the presumption of correctness which acc omp anies the trial c ourt’s action is cond i tioned u pon th e affirm ative sh owing in the rec ord tha t the trial cou rt considered sente ncing princip les an d all rele vant fa cts and circu msta nces ”. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91). In this r espect, f

or the purpose of meaningf ul appel laterevi ew,

the trial cou rt mus t place on th e record i ts reasons f or arri ving at the finalsentencingdecisio n, ident ify the miti gating and enhan cement factors found, state the sp e cifi c facts suppor ting each enh ancement facto r found, and arti culate how the miti gating and en hancem ent factors have been evaluated and balanced i n determini ng the sentence. T.C.A. §§40- 35-21 0(f) (199 0).
State v.Jones , 883 S .W .2d 59 7, 599 (Tenn . 1994 ).
Under Tenn. Code Ann. §40-35-210 a court at senten cing is requ ired to con sider

all the follow ing: (a) the eviden ce, if any, re ceived at the tri al and th e sentencinghearing; (b) t he presentence r eport; (c) t he princi ples of sent encing and argumen ts of sentenci ng alternative s; (d)the natur e and character

isti cs of the criminal conduct invol ved; (e)evidence a nd information offered by t he parti es on the enhancement and miti gating factors; and (f) any statem ent th e de fend ant w ishes to make in his own be half ab out sen tencing.The court can use ev idence or i nformati on off ered by either part y at any

phase of the pr

oceeding in determini ng wha t enhancement and miti gating factors apply. The court can al so receiv e infor mation as t o these fact

ors from t he presentence r eport, even though t he information was no t asserted by the par

ties. Tenn. Code Ann. §40-35-20 7(a)(5 ). Neither party is requi red to fil e a statem ent o f prop osed enh ance men t or mitig ating f actor s unle ss req uired to do so by the cour

t. Tenn. Code Ann. §40-35- 202(b). However, a cour t is alway s requir ed to consider t he exist ence of these factors i n making its sentenci ng determinati ons. Finally, in co nduc ting our de novo review , this co urt is au thorize d to consider

any en han cement or mit igati ng factor s supported by

the recor

d, even i f not reli ed upo n by the trial cou rt. Sta te v . Ad ams , 864 S.W.2d 31, 34 (Tenn. 1993) . The burden is on the def endant to show that the sent ence w as im proper. Sentencing Com missio n Com men ts, Ten n. Cod e Ann . §40-3 5-401 (d). In impos ing its se ntenc e the co urt cons idere d three enhancing fact ors under10 T.C.A.§40-35-114: (1) t he appellant has a previous hist ory of cri minal convict ions; (11) the f elon y r esulte d in death or bodily injur y and the appel lant has pr eviousl y been convicted of a felo ny inv olvi ng bodily

injur y; and (20) t he app ellant w as ad judica ted to have committed del inquent act s as a juveni le that would consti

tute a fe lonies if committed by an adult . The tri al judge al so apparently cons ider ed as a miti gating facto r the fa ct that a ppe llant ha d a g ood work history a nd a willingn ess to work . App ellant, as a juveni le, was adjudicat ed delinquent

for commit

ting t he of fenses o f fir

st degree murder

of one woman, and aggrav ated assaul t and attempted aggravatedrape of a second woman . He w as co mm itted to th e De partm ent o f Youth De vel opme nt untilhis twent y-fi rst bi rthday . While at Taft Youth Center , but af ter he turned eig hte en, appe ll ant was convi cte d of

cri mi nal conspiracy

to commit aggr

avated riot . He was sentenced t o serve a consecutive sentence for t his adult offense. App ellant’s arg ume nt as to the erroneous appli cation of the thr

ee enhancement facto rs is un clear. H e do es no t spec ific al ly cont est the appl icati on of factors (1) o r (20).Indeed he cannot . He has one pri or adult convict ion and thr

ee very seriou s juve nile ad judica tions, a ll of wh ich wo uld havema ndated lengthy pri son sente nces if com mitted by an a dult.
The state t

akes the posi tion t hat the t hird enhancement factor reli ed upon by the tri al court

is fact or (11) , which permits enhancement whe re bodily inj ury i s infl icted and the d efen dan t has prev ious ly bee n co nvic ted o f a fe lony in volvin g bo dily inju ry. The trial cou rt’s state men t on this issue is con fusin g:
THE COURT: . . . The enh ancin g fac tors a re, at lea st, three . I am goin g to refer t

o them by numbers.

. . . Number 2. Th e felo ny resu lted in d eath or bo dily in jury, and in this case bod ilyinjur

y, be it minor bodi ly i njury but sign ificant m ental inju ry obvio usly, . . .
The app ella nt ass erts only that psychol ogical or

emotionalinjuries are not considered enh ance men t facto rs. W e agree that such emotionalinjuries, by t hemse lves, do not

estab li sh any

of t he enhancement factor s containedin T. C.A. §40-35-114which would al low for enhancement of t he sentence above the11 pres ump tive m inimu m. State v. Reid , 882 S .W .2d 42 3, 430 (Tenn . Crim. A pp. 19 94).
To the exte nt that

the court

intended t

o app ly f actor (11 ), it did so in e rror. App ellant’s only prior a dult con viction is fo r cons piracy to co mm it aggra vated r iot, a Cl ass A m isdem ean or. W hile he was adjud icated delinq uen t as a ju venile for th e very serious of

fenses of fi rst degr

ee murde r, attem pt to commit aggr avated rape,and aggravatedassault,these juv enile adj udicati ons cannot be ut ili zed to m ake factor (11) app licab le. W hen imp osin g se nten ce fo r offe nse s co mm itted o n or a fter J uly 1 , 1995 , a cou rt may co nsider p rior juvenile offens es on ly under T .C.A. §4 0-35-1 14(20 ). State v. Willi am Jason McMahan , No. 03C01- 9707- CR- 00262, Knox County ( Tenn. Cri m. App ., at Kn oxville, M arch 31, 19 99); State v. Brent Brown , CCA No. 02C 01- 9710-CC-00419, Hardeman County (Tenn. Crim. App., at Ja ckso n, October 26, 1998 ).
For a Range I, Standard Offender, the range of punishment upon convict ion of a Clas s B fe lony is e ight (8 ) to twe lve (12 ) years . The min imum sentence within the range is the pr

esum ptive s ente nce. If there are e nha ncing but n o mitig ating f actor s, a court may set t he s entence above t he minimum in t hat range but stil l wit hin the r

ange. The weigh t to be g iven e ach f actor is left to th e disc retion of the trial judge. State v. Shelton , 845 S .W .2d 11 6, 123 (Tenn . Crim. A pp. 19 92).
The tri al court

appeared to give the most wei ght to t he serious nature of t he offenses committed while appe llant was a juveni le, poi nting out that, if he had been convicted of fir

st degree murder

as an adult,the offense before hi m would never have occu rred, s ince th e ap pellan t wou ld hav e rem ained in jail. Since the court

misappli ed one enhancem ent fac tor, our review is de novo upon the re cord. Howe ver, a fter conducting that revi ew, we conclud e that t he tri al court properly sentenced the appellant. Appellant’s record of vi ol ent behavior against women from a young age is entit led to gr eat we ight. Having found t he existence of two enhancing fact

ors, and only one mit igati ng factor , we fi nd the recor d supports the tri al cour t’s ju dgment tha t a twelve-year sentence i s appropri ate. Thi s issue has no merit. For therea sonsset for th a bove , werevers e th e ju dgme nt of the trial cour t and rema nd th is cau se fo r a ne w trial.12 _________________________________ CORNELI A A. CLARK SPECIA L JUDGE

_______________________________ GARY R. WADE PRESIDI NG JUDGE

_______________________________ NORMA McGEE O GLE JUDGE