### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 5, 200 4

STATE OF TENNESS EE v . BERNARD J. HENRY

Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 02-05634 Ar thur T. Benn ett , Judge

No. W2003-03045-C CA-R 3-CD - F iled Dece m ber 9, 2004

A S helby County Criminal Court jury convicted the defe ndant, Berna rd J

. Henry , of t wo counts of
aggr av at ed ch i l d ab u s e a n d n egl ec t , a C l as s A f el o n y , an d t h e t ri al co u rt s en t en ce d h i mas a R an ge I , violent o ff

en d ert o co n cu rr en ts en t en ce s o f t we n t y -f i v e y ears

. T h e d ef

en d an t ap p ea l s , cl ai m i n g t h at the evidenc e is insufficient to support the c o n v i cti ons and that the trial c ourt misapplied

e nh a nc e me nt f

a c tor s. We co nc lud e that th e e vid e nc e is s uf fi c ie nt b ut tha t th e tr ia l c ou rt imp ro pe rl y enhanc ed the de fenda nt’s sentenc es. We reduc e the de fenda nt’s sentenc es to twe nty y ear s for e ach conviction and r emand the c ase f or the e ntry

of appr opriate judg ments of conviction.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt Aff irm ed in Par t, Modif ied in Part , Case Re m anded

J OS EP H M. T I PTON , J
., delivere d the opi nion of the court, in which J A M ES C UR WO OD W I TT , J R ., J
., joined. D AVI D G. H AYES , J ., filed a c oncurring opinion.

Robert Wils on J ones, District Public Defe nder; Tony N. B rayton, Assistant Publ ic Def ender (on

app e a l) ; B ill Rob ili o a ndRob e rt C. F e lkn e r, As sis ta nt P ub lic De fe nd e rs (at tria l) , f or the app e lla nt, B e r n ar d J

. H e n r y.
Paul G. Summers, Attorney Gene ral and Reporter ; Mic helle Chapman Mc I ntire, Assistant Attorney Gene ral; Will iam L . Gibbons, District A t t orney Gene ral; and Scot A. B ear up, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case rela tes to the defe ndant’s whipping his two- y ear -old daug hter. De lius Henry , the defe ndant’s ex-wife a nd the victim’s mother, testified that t h e v i ct im was born in Geor g ia on November

22, 1999, and that she a nd the def endant se parated in Aug ust 2000. She said that the de fe nd a nt m ov e d t o Me mph is b ut tha t th e vic tim liv e d w ith the de fe nd a nt f ro m Jan ua

ry to A pr il 2001 and fr om J anuary

to April 2002. She said that befor e the victim went to live with the def endant in 2 00 2, the vic tim ha d on ly a sma ll sc ar on he r l e ft ha nda ndha d n o ma

rk s o r s c ars a ny wh e re e lse-2-

on he r b od y

. She sa id that in Ap ri l 20 02
, sh e re c e ive d a te le ph on e c a ll f ro m th e de fe nd a nt, wh o to ld her tha t two police office rs had c ome to his apartment be cause “one of his neig hbors had c alled the
p o l i c e o n h i m

. ” S h e s a i d th a ta c c o r d i n g t o t h e d e f e n d a n t , t h e o f

f i c e r s h a d t a k e n t h e v i c t i ma w a y. She said that as a r esult of the def endant’ s call, she telephoned J ohnny Toy from the Depa rtment of Children’s Service s and that Mr. Toy told he r about what had happe ned to the victim. She said she flew to Memphis and w ent to L e B onheur Children’ s Medical Cente r to see the victim. She sa id that the vic tim ’s lip wa s b a nd a g e d, that the vic tim ha d s c ars a ll o ve r h e r b od y , a ndthat th e vic tim c ou ld
not w alk. She said that she stay ed with the victim f or two and one-ha lf day s and that the victim was rele ased f rom the h ospital and into the car e of a foster pa rent. She said that sc ars on the vic tim’s rig ht leg cause d the victim to lim p and that the victim had to have phy sical therapy . She said the vic tim wa s r e turne d to her on June 7, 20 02 , an d ha d to hav e thr e e su rg e ri e s. She sa id tha t th e vic tim had two sca

rs on her fac e and se vera l on he r leg s and that doctors injected steroids into the scars on the vic tim ’s fa c e tw ic e in a n a tte mpt to f la tte n th e m.

On cr oss-examination, Ms. Henry testified that when the vic tim st ay ed with the def endant for severa l months in 2001, she telephone d the def endant to che ck on the victim. She said that whe n the victim returne d to her in 2001, the victim had no proble ms and had be en tre ated ve ry well. She acknow ledg ed that the de fenda nt was a g ood fathe r.

Offic er Christophe r P ri ce o f the Memphis Police De partment testified tha t he and a nother office r we re dispatched to the de fenda nt’s apartment on April 18, 2002, in order to c heck on the well-be ing of

a two-y ear -old child. He sa id that w hen they arrived, they knocked on the door a nd the def endant let them into t he apartment. He said that a woman also was in the a partment a nd that the victim was sitting on the living room floor. He said that he saw a sore on the victim’s lip and that the woman told him the vi ctim had hurt her lip and had bee n picking it. He said that he be g an looking a t the victim further, that he noticed the victim had a cut on the br idge of her

nose, and tha t the def endant a nd the woman c ould not ex plai n h o w t h e v i ct i m got the c ut. He said he lifted the victim’s shirt, saw marks on he r bac k, and called hi s lieutenant to the s cene

. He sa id that when the l i eu t en an tar ri v ed
, t h eyp u l l ed d o wn t h e v i c t i m ’s p an t s an d s aw m ar k s o n h erl egs an d a l ar ge bandag e on the ba ck of he r rig ht leg . He sa id they took off the ba ndag e and sa w a lar g e sore behind the victim’s knee. H e said that t he victim would not put any weig ht on her rig ht leg and that the victim also had a round, skinless sore o n her buttock. H e said the de fenda nt and the woman explained that they

had whip p ed the victim because she was urinating on he rself. H e said that he took the victim into protective custody and that anothe r off

icer transporte d the vi ctim to L e B onheur Children’s Medica l Center. On cr o s s -examination, Office r Price te stified that the def endant wa s very cooper ative.

Of fi c e r D ia na

Di c ke rs on of

the Me mph is Pol ic e De pa rt me nt t e sti fi e d th a t sh e wa s c a lle d to the pr e c inc t to pic k u p th e vic tim a ndthat sh e too k th e vic tim to the ho sp ita l. She sa id the vic tim

was a fra id and quiet. She said that whe n she tried to pick up the vic tim, the victim moaned like she was in pain. She said the vic tim would not l et one side of her body touch the hospital bed.-3-

Serg eant Te rry

Pirtle of the Memphis Police Depa rtment’s Sex C rime Child Abuse Squad testified that he investig ated the c ase a nd asked the defe ndant to come to his offic e for an intervie w, wh ic h the de fe nd a nt an d the de fe nd a nt’ s g ir lf ri e nd , Ta mmy

Th omp so n, didthe ne xt da y . H e sa id that he and the defe ndant went into an int ervie w room, that he re ad the de fenda nt his rights, and tha t the de fe nd a nt t oldhim

the fo llo wi ng : T he vic tim ’s mothe r h a d c us tod y of the vic tim , but the vic tim ha d b e e n li vin g wi th the de fe nd a nt s inc e Janu ary 20 02

. Whe n the vic tim c a me to l ive wi th h im i n Janu ary , th e vic tim did no t hav e a ny sc ars or br uis e s. Th e de fe nd a nt ha d b e e n d isc ipl ini ng the vic tim beca use the victim was urinating on he rself. The defe ndant used a switch and a

belt to whip the vic tim , a ndthe de fe nd a nt d isc ipl ine d th e vic tim mos t of the tim e . H ow e ve r, Ms . T ho mps on a lso disciplined the victim. The def endant loved the victim and was not try ing to hurt her. The def endant told Serg eant Pirtle that he ha d last whipped the victim about two wee ks befor e the police took her

awa y from him

. On cr oss-examination, S erg eant Pirtle ac knowledg ed that the de fenda nt was cooper ative and that he ar rested the defe ndant and Ms. Thompson.

Dr. Ka ren L akin, who tre ated the vic tim at L e Bonhe ur Children’s Medica l Center, testified that th e vic tim

ha d ma ny so ft tis su e inj ur ie s to he r sk in, inc lud ing la c e ratio ns a nd br uis e s. She sa id that skin w a s mi ssi ng fr om so me of the inj ur e d are a s a nd that sh e ha d dif fi c ult y te lli ng wh e the r tho se injuries wer e lac erations or burns. She said that the victim had a se rious, deep inf ection on the ba ck of her rig ht le g and an infec ted wound on her upper lip. She said that the infec tions resulted from injuries to the skin, tha t it would have ta ken one to f

ive day s for the injuries to be come infe cted, a nd that both infecte d wounds would have been pa inful. She said that the vi ctim could not fully extend her right kne e, indicating that the wound behind t he knee had been “g oing on f or a little while,” a nd that th e v ic ti m w o u ld n o t p u t a n y w e ig h t o n th e k n e e

. Sh e s a id th a t b y th e ti me th e v ic ti m was discharg ed fr om the hospital on April 24, the victim sti ll walked with a sl ight limp. Reg arding the wound on the victim’s uppe r lip, she stated that excessive scar tissue f ormed betwee n the victim’s nose and uppe r lip, t h at t h er e was no “sure fir e wa y ” to re move the sca r tissue, and that it was possible the victim would have the sc ars f or the re st of her life

.

Dr. L akin t es t i fi ed that the victim had loop-shaped mar ks on her leg s, indicating that the victim had been hit with a looped cord, and that the marks on the vic tim were in va rious stag es of he a lin g

. She sa id that the vic tim ha d a n inj ury on on e of he r bu tto c ks a nd that “ we h ad d if fi cul ty try ing to f igur e out whethe r it was ac tually a burn or just where a

chunk of f

lesh had come of

f.” She said the victim was very

malnourished but g ained six pounds whil e in the hospital. She said that the vic tim re c e ive d mo rp hin e , a

he a vy pa inkill e r, a ndthat do c to rs us ua lly didno t g ive mor

ph ine to children. She said that when the victim wa s discharg ed fr om the hospital, the victim was still taking

a n t i b i o t i c s a n d t h a tt h e v i c t i mh a d t o r e c e i v e p h ys i c a l t h e r ap y.

On c ro ss- e xami na tio n, Dr . L akin ackn owl e dg e d th a t it wa s n ot u nu su a l f

or c hil dr e n to develop infe ctions and t hat t he victim ’s us ing dirty hands t o pick at a wound could cause the wound to become inf

ecte d. She also ac knowledg ed that the victim could have b ee n natura lly small and underw eig ht for her

ag e and that th e victim ’s open sore s could have been c aused by untrea ted imp e tig o o r u ntr e a te d jo int inf e c tio ns

. On re c ro ss- e xami na tio n, tho ug h, Dr . L a kin te sti fi e d th a t in her opinion, the victim’s open w ounds were not cause d by ring worm or impetig o.-4-

The de fenda nt testified that the victim was in hi s cust ody from January

to April 2001 and from January

to April 2002 because the victim’s mother was tired of he r. He said that during that tim e , he c lothe d an d fe d the vic tim

. He sa id the vic tim liv e d w ith him

on we e ke nd s b ut l ive d w ith his g ir lf ri e nd
, Ta mmy Th omp so n, du ri ng the we e k be c a us e he wa s wo rking

. He sa id tha t f ro m A pr il 15 to April 18, 2002, the victim lived with Ms. Thomps on an d that Ms. Thompson broug ht the victim to his apartment about 10:30 p.m. on April 18. He said that he notice d a m ark unde r the

v i ct i m ’s n o s e and that the victim was lim ping. H e said that he asked Ms. Thompson wha t had ha pp e ne d to the vic tim

a ndthat Ms . T ho mps on tol d him she ha d spa nk e d the vic tim . H e sa id M s. Thompson told him that the vi ctim had been pi cking at m arks on the victim’s leg a nd fac e, making sores. He said he put a ba ndag e on the victim’s leg and Ne osporin on the victim’s lip and hear d a kn oc k a t th e do or . H e sa id tha t th e po lic e we re the re a ndthat he le t the of fi c e rs int o h is a

pa rt me nt. He sa id that when the of

fice rs pulled down the victim’s pants, he saw for the f irst time the sores on the victim’s rig ht leg and buttock. He said that the off icer s took the victim to the hospital and that he tried to see the victim thre e times but was turned a way . He sa id that Serg eant Pirtle telephone d him on April 22 and that he met with Serg eant Pirtle the ne x t day . He sa id that during his interview, he admitted the victim receive d the injuries while she w as in his custody . He sa id, though, that he

ne ve r a dmi tte d c a us ing the inj ur ie s. He a c kn ow le dg e d th a t he ha d u se d a sw itc h a nda

be lt t o dis c ipl ine the vic tim

fo r u ri na tin g on he rs e lf

bu t sa id tha t he ne ve r l e ft mark s on the vic tim

. He sa id that Ms. Thompson also had used belts to whip the victim and that the fir st tim e he saw the vic tim’s injuries was on April 18.

On cr oss-exami n at i o n , t h e d ef en d an tac k n o wl ed ged t h at t h e v i ct i ml i v ed wi t h Ms. Thompson du ri ng the we e k e ve n tho ug h he wa s ho me abo ut tw e lve ho ur s pe r da y

. He sa id tha t th e fi rs t ti me he sa w m ark s o n th e vic tim ’s ba c k w a s a bo ut thr e e we e ks be fo re the po lic e too k he r a wa y fr om h im. He sa id M s. Th omp so n to ld h im tha t th e mar ks on th e vic tim ’s ba c k h a d r e su lte d f ro m Ms

. Thompson’s niece scratching the victim. He ac knowledg ed that the victim re peate dly returne d from Ms. Th omp so n’ s c are wi th s c ratc he s a nd br uis e s. He de nie d hitt ing the vic tim wi th a c or d a ndsa id that he only

disciplin ed her with a switch. Althoug h the def endant ha d testified on direc t examination that he had neve r left mar ks on the victim, he testified on cross-e x amination that he had le ft ma rk s o n th e vic tim ’s c a lve s. Th e jury c on vic te d him of tw o c ou nts of a g g ra va te d c hil d a

bu se

a ndne g le c t.

I. SUFF ICIENCY OF THE E VIDENCE

Th e de fe nd a nt c on te nd s th a t th e e vid e nc e is i n su ff ic ie nt t o s up po rt

his a g g ra va te d c hil d a

bu se

a nd ne g le c t c on vic tio ns be c a us e the e vid e nc e sh ow s th a t th e vic tim ha d b e e n in the c are of

Ta mmy Thompson immediately

befor e the police took the victim i n t o p rotec tive custody and bec ause he
trea ted the victim’s wounds. The sta te claims that the e vidence is sufficie n t. We ag ree with the
state.

Our s ta n d ar d o f r e v ie w w h e n th e d e f e n d a n t q u e s ti o n s th e s u f

f ic ie n c y o f th e e v id e nce on appea l is “whether , afte r viewing the evidenc e in the ligh t m o s t fa v o rable to the prosec ution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble-5-

d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7
, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the e vid e nc e bu t pr e su me that th e jury ha s r e so lve d a ll c on fl ic ts i n th e te sti mon y a nddr a wn a ll

rea sonable infe renc es fr om the evidenc e in fa vor of the sta te. S ee State v. Shef field, 676 S.W.2d 542, 547 (Te n n . 1984); State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). Que stions about witness cre dibilit y

wer e re solved by

the jury

. See S tate v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

.

Th e de fe nd a nt w a s in dic te d f or tw o c ou nts of

a g g ra va te d c hil d a

bu se a ndne g le c t, w hic h is

one crime that can be satisfied by two differ ent course s of conduct, serious bodily injury cause d by phy sical abuse or serious bodilyinjury cause d by

neg lect. See T .C.A. § 39-15-402(a ); State v. Ho dg e s, 7 S.W. 3d 60 9, 62 2 ( Te nn . Crim. Ap p. 19 98 ) ( pr ov idi ng that T .C. A. § 3 9- 15 -4 01 , th e c hil d abuse a nd neg lect statute, c reates only one crime). “Serious bodily injury ” is bodily injury involving “(A) A substantial risk of de ath; (B ) Protrac ted unconsc iousness; (C) Ex treme phy sical pain; (D) Protracte d or obvious disfigur ement; or (E ) P rotrac ted loss or substantial impairment of a f unction of a bodily

member, or g an, or me ntal fac ulty .” T.C.A. § 39-11- 106(a) (34).

Take n in the light most favor able to the s t at e, t h e evidenc e is sufficie nt to support the

c on vic tio ns . T he de fe nd a nt a nd his e x-w if e te sti fi e d that be fo re the vic tim we nt to liv e wi th h im i n Janu ary 20 02 , th e vic tim

ha d n o ma

rk s or inju ri e s on her bo dy

. Dr . L a kin te sti fi e d th a t th e vic tim had lar g e, open wounds on her face
, rig ht leg
, and butt ock and that it would have taken one to five day s for the wounds to become infec ted. She said that marks on the vic tim indi cate d the victim had been hit with a looped c ord and tha t the marks we re in various st ag es of healing . She also said that the victim rec eived a

power ful medica tion for her pain a nd that excessive sca r tissue resulted f

rom the wound on the victim’s fa ce. We no t e that photog raphs take n near the time of the trial a nd introduced into evide nce show larg e scar s betwee n the victim’s nose and uppe r lip. The def endant admitted whipping the victim wit h a s wi t ch and be lt. W e believe a rational jury could have conclude d bey o n d a re asonable doubt that the defe ndant phy sically abused the victim, causing extremely painful lac erations to her skin, and that he ne g lected to se ek prope r medical trea tment for her w ounds, which re su l t ed i n the wounds bec oming infe cted a nd disfiguring the victim. The evidenc e is sufficie nt to support the convictions.

II. SEN TEN CE S

Th e de fe nd a nt c la ims that hi s se nte nc e s a re e xce ssi ve becau se th e tr ia l c ou rt imp ro pe rl y applied two enha nceme nt fac tors. The state notes that the rec ent case of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), calls into que stion a trial court’s ability to enhanc e a de fenda nt’s
sentenc e ab o v e the presumptive sentenc e for any enhanc ement fa ctor other than for a

defe ndant’s prior convic tions. However , the s tate conte nds that the defe ndant has wa ived any Blakely issue be c a us e B lake ly

do e s n ot e sta

bli sh a ne w r ule in T e nn e ssee. S e e Sc hr ir o v . Su mme rl in,

__ _ U .S.

___, ___, 1 2 4 S. Ct

. 2 5 1 9
, 2 5 2 2 ( 2 0 0 4 ) ( s tati n g th a t “ [w ]h e n a d e c is io n o f th is Co u r t r e s u lt s in a ‘n e w r ule ,’ that rule app lie s to a ll c ri mi nal case s still p e nd ing on dir e c t r e vie w” ). Th e state a lso claims that, in any event, any misapplication of enhance ment fac tors under B lakely is harmless er

ror beca use the e vidence establishing those fac tors is uncontrove rted and overw helming. We hold that-6-

the trial court improperly applied enha nceme nt fac tors under Blakely and re duce the defe ndant’s

s e n t e n c e s a c c o r d i n g l y.

The trial c ourt applied the f ollowing e nhance ment fac tors as provided in T.C.A. § 40- 3 5-114: (3) that the de fenda nt was a “ leade r in the commission of an off ense involvi n g t wo (2 ) o r m ore criminal ac tors,” (5) t h at t h e v i ct im was particula rly vulnera ble bec ause of

her a g e, (6) that the defe ndant trea ted the victim with exceptional crue lty during the commission of the offe nses, (7) tha t the per sonal injuries inflicted on the victim wer e particularly gre at, and ( 16) that the de fenda nt abused a position of private trust. The tria l court noted that the defe ndant had no prior convic tions but held that he shoul d serve the m axim um punishment in the ra ng e for a Class A fe lony , twenty -five
y ear s, for e ach c onviction.

Appellate r eview of

sentenc ing is de novo o n the re cord w ith a presumption that the trial court’s de terminations are corr ect. T.C.A. § 40- 35-401(d) . As the Sen tencing Commi ssion Comments to this section not e, the burden is now on the appe aling party to show that the sentenc ing is improper. This means that if the trial court followe d the statutory sentenc ing pr ocedur e, made finding s of fa ct that are adequately supported in the rec ord, and g ave due consideration and proper

we ig ht to the fa c tor s a nd pr inc ipl e s that are re le va nt to se nte nc ing un de r the 19 89 Se nte nc ing Ac t, we may not disturb the sentence even if a diffe rent re sult were pr efe rre d. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

.

Ho we ve r, “ the pr e su mpt ion of c or re c tne ss w hic h a c c omp a nie s th e tr ia l c ou rt ’s act io n is conditioned upon the af

firmative showing in the rec ord that the trial c ourt considere d the sentenc ing principles and a ll releva nt fac ts and circumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). I n this respec t, for the pur pose of mea ningf

ul appellate r eview,

the trial court must pl ace on the re cord its re asons for a rriving at the final s e n te n c in g d e c is io n , id e n ti f y th e mi ti g a ti n g a n d e n h a n c e me nt fac tors found, state the spe cific f acts supporting ea ch enha nceme nt fac tor found, and a

rticul ate how the mitigating and enha nceme nt fac tors have be en eva luated and ba lance d in determini n g th e s e n te n ce. T.C.A. § 40-35-210( f) ( 1990).

State v. J ones, 883 S.W.2d 597, 599 (Tenn. 1994).

Also, in c onducting a de novo revie w, we must consider (1) the e vidence , if any , rec eived at the trial and se ntencing hearing, ( 2) the pre sentenc e re p o rt , (3) the principles of sente ncing and

arg ume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the na tur e a ndc ha ra c te ri sti c s o f the c ri min a l c on du c t, (5) a ny mitigating or statutory

enhanc ement fa ctors, (6) any statement that the def endant made on his own behalf, and (7 ) t h e potential for r ehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see A shby , 823 S.W .2d at 168; State v. Moss, 727 S.W .2d 229, 236-37 (Te nn. 1986).-7-

Th e ra ng e of

pu nis hme nt f

or a Ra ng e I of fe nd e r i s f if te e n to tw e nty -f

ive y e ars fo r a

Cla ss A felony . T.C.A. § 40-35-112( a)( 1). Unless ther e are e nhance ment fac tors prese nt, the presumptive
sentenc e to be imposed is the midpoint in the rang e. T.C.A. § 40-35- 210(c) . Our sente ncing ac t provides that proce durally
, the trial court is to incre ase the sentenc e within the rang e base d upon the exis tence of enha nceme n t fa ct o rs and, then, r educe the sentenc e as a ppropriate for a ny

mitigating fac tors. T.C.A. § 40-35-210( d), (e)

. The weig ht to be aff orded a n exis ting f

actor is left to the trial court’s discr etion so long as it c omplies w ith the purposes and principles of the 1989 Sentenc ing A ct and its fi n d i n gs are adequately supported by

the re cord. T.C.A. § 40- 35-210, Sentenc ing Commi ssion Com ments; Moss, 727 S .W.2d at 237; see Ashby , 823 S.W .2d at 169.

We conclude that Blake ly aff ects the portion of our 1989 Sentencing Act that allows judg es to f indapp lic able c e rt a in enhan c e me nt f a c tor s b y a pr e po nd e ra nc e of

the e vid e nc e a ndus e tho se fac tors to increa se a de fenda nt’s sentenc e above the presumptive sentenc e in t he ra ng e. This court has conclude d that Blakely essentially establishes a new rule in Tenne ssee a nd specifie s that other than prior c onvictions, a ny fac ts not ref lected in the jury ’s verdic t and used to incre ase a defe ndant’s punishment above the pr esumptive sentenc e mus t be found by the jury , not the trial court, be y ond

a re a so na ble do ub t. Se e Sta te v. Che ste r Way ne Wal te rs , N o. M2 00 3- 03 01 9- CCA -R 3- CD , Wh ite County , slip op. at 19-21 (Tenn. Crim. App. Nov. 30, 2004)

.

J udg e Ha y es conc urs in our re sults but writes separat elyto express his view that the de fe nd a nt w a ive d a ny

B lake ly re la te d issu e s by fa ili ng to pr e se nt the m in the tr ia l cou rt

. Se e Sta te

v. Carl os Ed din g s, No . W2 00 3- 02 25 5-CC A-R3 -C D, She lby Cou nty , s lip op . a t 2- 3 ( Te nn . Crim. App. Oct. 8, 2004) (Ha y es, J., concurring and dissenting ). Reg arding waiver , this court in Walters noted that o u r s u p reme court ha d expressly held in Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002), that Tenne ssee’ s sentencing proce dures c omplied w it hA p p r e n d i v

. N e w J erse y , 530 U.S. 466, 120 S. Ct . 2348 (2000), a nd stated,

we have a difficult time f aulting a defe ndant in T ennesse e fo r not raising th e is s u e b e f

o r e B la k e ly

. We c o n c lu d e th a t B la k e ly a lt e rs Te nn e sse e c ou rt s’ int e rp re ta tio n of the ph ra se “ statut ory ma ximum ” and esta blishes a new r

ule in this state. The def

endan t ’s raising the issue while his direct a

ppeal wa s still pending is proper.

Walters, slip op. at 21.

I n the present case , we note that T.C.A. § 40-35-114 pr ohibits usi ng enhanc ement fa ctors that

are elements of the offe nse and that our supr eme c ourt has held that “ proof of serious bodily

injury will alway s constitute proof of pa rticularly g reat injury .” Jones, 883 S.W .2d at 602. Ther efor e, the trial court imprope rly

applied enha nceme nt fac tor (7). The trial court a lso improperly applied the

rema ining f

actor s under B lakely

beca use the fa cts supporting their application were neither a dmitted by the def endant nor found bya jury bey ond a re asonable doubt. Whi le this court held in Walters that Blakely

err ors ar e subjec t to harmless err or ana ly sis, we conc lude that harmless error revie w would not affe ct the disposition of this case.-8-

When we dete rmine that the trial c ourt committed e rror in se ntencing a def endant, we revie w the def endant’ s sen t en ce d e novo with no presumption of corre ctness. See State v. Poole, 945 S.W .2d 93, 96 (Tenn. 1997) . Upon de novo r eview, how ever , “w e ca n n ot violate Blakely in our determination of appropriate enha nceme nt fac tors.” Walters, slip op. at 26. Be cause we ha ve d etermined that the trial court improperly applied fa ctor (7) , we must revie w the def endant’ s sentenc es de novo.

Given that the defe ndant has no prior convic tions, we conc lude that any rea pplication of the enhanc ement fa ctors found by the trial court would violate the rule a nnounced i n Bl ak ely . The defe ndant’s sentences must be re duced to twe nty y ear s, the presumptive sente nce in the r ang e for a Class A felony . Ba sed upon the fo regoing and the r ecor d as a w hole, we a ffirm the de fenda nt’s

c on vic tio ns bu t mo dif

y the se nte nc e s to tw e nty

y e ars a ndre ma ndthe c a se fo r en tr y of app ro pr ia te judgme nts of conviction.

___________________________________ J OSEPH M. TI PTON, J UDGE