### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M ay 4, 2004

STATE O F TENN ESSEE v. BILLY H ARRIS
Appeal from the Criminal Court for Shelby County Nos. 01-02675, 01-02676 W. Otis Higgs, Judge

No. W2003-01911-CCA-R3-CD - Filed August 4, 2004

The defenda

nt, Billy Harris, was convicted by

a Shelby County Criminal Court jury of rape and three counts of aggravated kidna pping, Class B felonies. The trial court senten ced him as a Range I offender to te n ye ars for each conviction and ordered that the se ntences for the aggr

avated kidnapping convictions be served concurrently to each other but consecu tively to the rape sentence for an effe ctiv e sentenc e of twenty y ears in the Department of Correction. I n this appeal, the defendant raises ma ny i ssues, inc luding that the ev idence i s insuffic ient to sup port the c onviction s, that the trial court should have merged his ag gravated kidnapping convictions, and that his sentences

are excessive . We concl

ude that t he evide nce is sufficient but that the trial court should have merged the aggravated

kidnapping convictions. In addition, we hold that the trial c ourt incorrectly

applied at least one enhancement factor and be lieved that the presumptive sentence for a Class B felony was the midpoint in the range rather than the minimum in the range. See T.C.A.§ 40-35-210(c). Regarding

the de fendan t’s re maini ng issues, we hold that they have be en waived because the defendant failed to file a timely motion for new tria l and that no plain error exists. We remand the case fo r entr y of an appr opria te jud gment f or aggrav ated k idnap ping an d for re sente ncing.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Modified in Part, Reversed in Part, Case Rem anded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.

Lance R. Chism, Memphis, Tennessee (on appeal); Robert Wilso n Jones, Dist

rict Public

Defender, Robert C. Felkner, and WilliamC. Moore, Jr., Assista nt Public De fender s, and Samu el L. Perkins, Memphis, T ennesse e (at tri al), for the appe llant Bill

y H arris.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; William L. Gibbons, District Attorney General; and David Michael Za k, Jr., Assi stant District Attorney Gene

ral, for the appellee, State of Tennessee

.-2- OPINION

This case relates to th e defen dant’s ki dnapping

and rapi ng his ex- girlfr

iend. The

victim testified that a bout 4:00 p.m. on November 21, 2000, she borrowed her best friend’s c ar and left work in order

to pick up her and the defendant’s one-y ear-old son from day

care. She said that

she walked out of the day

care center with the baby

and that as she opened the back d oor to put h

im in his car seat, the defendant jumped out of the backsea

t and told h er he ne eded to ta lk to her. She said

a woman came out of the day care center and asked if the victim wanted her

to stay. She said she

told the woman to le ave bec ause she did not wa

nt to make the situation worse. She said she put the baby inthe car seat and went to the driver’s side of the car. She said that she tried to get in the car but that the defendant pushed her into the passenger seat, got in the driver’s side, and drove away

. She said that at the time of

the incident, she had been living with her best friend for two to three weeks and had an order of protection against the def endant. She said she had lived in her own apartment before butmoved in with her friend because the defenda nt jumped on her, hit her , and threw her to the floor.

The victim testified that the defendant drove her to some apartments on Cossette Place a nd told her to go to the door of

apartment 353. She said the defendant reached into a window beside the apartment’s front door and unlocked the door. She said that they entered and that the defendant pulled a gun fro m his j acket, telling her he was g oing to kill her and himself. She said that the defendant returned to the car in order to get their baby

and that she stood

in the apartment and looked around. She said that the de fendant could not g et the baby out of the car and that he allowed the victim to get the baby

. She said that the three of them entered a bedroom, that she laid the ba by on the bed, and that

the defendant told her to take off her clothes and lie on the bed. She said that the baby was crying

and that the defendant

left the b edroom in

order to fix the bab y a

bottle. She

said that the defendant gave the

baby the bottle and that he put his fingers in her vagina and told her, “I’m going to check you, I

want to see what y

ou’ve been

doing.” She said that the defendant also made her bend over and that he looked at her from behind. She said that the de fendant then made her go into a second bedroom and that he put his penis in her vagina but did not ejaculate. She said she was crying and told the defendant no.

The victim tes tified tha

t the baby

was still c

ry in g in the ot her bedroom, that someone knocked on the front door, and that the defendant left the room in order to answer the door. She said the defendant

asked the person at the door to keep the baby . She said that the gun was ly ing on the dresser, that she w as try

ing to remain calm and did not want to make the situation worse, and that she could not grab the gun. She said that the person a t the door took the bab y, that the defend ant returned to the bedroom, and that the defendant allowed her to put on her clothes. She said that she and the defendant left the apartment and that the defendant drove them throug h an alley. She

said the defendant had been

enraged earlier but see

med to be calming down. She said that she asked the de fe nd an t w hy h e w as do in g t hi s a nd th at he to ld he r t he y we re a f am il y.

The victim testified that she asked the defendant to take her bac k to her son and that they returned to the apartment. She said that a woman and some children were in the apa rtment and that-3-

the woman had her baby . She said that she put the baby in the car and that she and the defendant left again w ith the victim driving. She said that she dropped the defendant off around the cor ner from the apar tment and that she r eturned to work. Sh e said

that her best friend was waiting for her and that her friend and a security

guard telephoned the police. She said she gave a statement to the police and took them to apartment 353. She said the police took her t o the Memphis Sexual As sault Resource Center where a counselor examined her.
On cross-examination, the victim acknowledged that she and the defendant had been in an “onagain, off again, a

rguing relationship.”She said that she and the defendant had lived together butthat she had moved into her own apartment. She said s he later moved in with her best friend beca use the defendant kicked in her doors, telephoned her a ll the time, and would not leave her alone. She said this was her second order of protection against the defendant and a cknowledged that she withdrew

the first order. She denied contacting the defendant while the f irst order of protection

was in effect but said the defendant contacted he r. She said that while the first order was in ef fect, she saw the defendant once at his aunt’s house. She acknowledged that she visite d the def

endant in jail almost

immediately after

he was arrested in this case and that she loaned him money . She denied knowing that the defendant had another girlfr iend or m aking up her

story in order to g et the defendant into trouble. Sh e s ai d t he de fe nd an t w or ke d a nd su pp or te d h er an d t he ba by. On redirect examination, the victim testified that she got the second order of protection on November 13, 2000. She said that according to the second order, she and the defendant had to schedule the defendant’s visitation with the baby through the de fendant’s aunt, Evia Harris. She said that she did not leave the day care c enter wi llingly

with the de fendant

and that she gav e him mone y in jail beca use she felt sorry for him.

Ch er yl Laquita Stafford testified that on the af ternoon of November 21, 2000, she was picking up her

children fr om daycar

e and saw the victim and the defendant. She said that they appeared to be arguing and that as she app roached her ca

r, the victim asked her not to leave the victim. She said th e vic t im told her that the d

efenda nt was not s

upposed to

be near her. She said that she put her children in the car and that the victim asked her to get the victim’s baby out of the victim’s car. She

said that t

he defe ndant had his hand in

his right p ocket and that she thought he might have a gun. She said that she wa nted to he lp the victim but that she did not

feel sa fe. She sa

id that she asked the victim to step away f rom her car, that she got in her ca r, and th at sh e d ro ve aw ay. She said she stopped and used her cellular telephone to ca ll the daycar

e center. She said

she told the dayca re center’s director that the victim was outsideand being attacked by

the victim’s ex-husband. Oncross-examination, she said that it was dark outside at the time of the incident but that sh e could

see what was going on. She acknowledg ed that it was cold outside and that the defendant may have had his hands in his po ckets because he was cold. She said she hea rd the victim or the defendant mention a gun du

ring the alterca tion but co

uld nottell which one said something about a gun. She said she did not

t ele phone the police because the day care director had said she would handle the problem.

Janice Taylor, the owne

r of Joshua’s Learning Tre e Day- Care, testified that abou t 5:15 p.m.

on Novembe

r 21, 2000 , she hea

rd noises outside th e day

care c enter. She said Che ry l St affor d-4-

telephoned

her and told her that the victim was begging Ms. Stafford not to leave her inthe parking lot. She said Ms. Stafford was afraid and told her the defe ndant may have

a gun. She said she looked outside and saw the defendant pushing the victim into a car. She s aid she want ed to telephone the police but

did not ca

ll them bec ause she

could not see the car’s license tag number and believed she did nothave en ough in formation to report the incident. She said she telephoned the victim’s moth er. On c ross- exam inati on, Ms . Taylor t estif ied th at alt hough it was dark, she could see very well. She

acknowl edged

that she d

id not see a gun and that

she told the police the defendant had both o f his hand s in his pockets.

Bernita Henley testified tha

t she and the victim were best frie nds and worked in th e same building downtown. She said t hat on t he afte rnoon of N ovember

21, 2000, she loane d the vict im her ca r i n o rd er fo r t he vi ct im to pi ck up th e v ic ti m’ s b ab y fr om da yc are. She said t hat she had loaned the victim her car before, tha t t he victim had alway s returned the car on time, and that the victim was supposed to return the car about 5:30 p.m. She said that when the victim had not returned to work by 5:30, she be c ame worried and telephoned the victim’s mother. She said the victim had bee n living w

ith her for about a

month bec ause the

victim and

the defe ndant h adan altercation. She said that based on what the victim’s mother told her, she got nervous. She said that she waited for the victim in the parking lot and that the victim pulled into the parking lot about 6:30 p.m. She said the victim jumped out of the car and was hysterical. She said that the victim’s clothes

were hanging and that the victim told her the defenda nt had a gun and had raped her

. She said that

a security g

uard telephoned the police, that the victim’s mother and the police arrived, and that the police took the victim to the Sexual Assault Resource Center. On cross-examination, Ms. Henley testified that she did not have any f eelings for the defendant

and denied that the victim’s seeing the defendant upset her. She said she allowed the victim to use her car whe never th e victim ne eded it and would be s

urprise d to lear

n that the victim use d the car

to vis it the defen dant. She said that when the victim entered the parking lot, the victim’s clothes wer e not torn.

Linda Woodard, the victim’s mother, testifi ed tha t on November 21, 2000, she received a telephone call from someone at her grandson’s da ycare center. She said she became hy sterical after the caller told her the victim had left the center with the defe ndant. She said that when her husband got home from work, they

drove to the dayc are center but that no one was there. She said they drove to the victim ’s workp lace an d saw the victim in the parking lot. She said the victim ran to her, was hysterical a

nd crying , and told her that the defendant had raped her

.
Offi cer Thomas Pa

rker te stified th at he wor ked for t he Memphi s Police De

partm ent o n November

21, 2000, a

nd respon ded to a c riminal a ssault ca

ll downto wn. He said t he victim t old officers she had been raped and took them to 353 Cosset te Place. He sa

id the defe ndan t’s e xgi rlfriend answered the door, told them the defendant was not there , and allowed them to loo k around the a pa rtment. He said that the lay out of the apartment was exactly as the victim had described and that a

child in the

apartm ent told anoth er offic er that the defen dant was at Keith Wilmer’s apartme

nt, which was a fe w doors down. He sa

id officers went to Mr. Wilmer’s apartment and found the defendant hiding in a bedroom closet. He sa id officers arrested the d efendant an d patted him down but found no weapons. He said that he transported the defendant to jail and that-5-

the defendant went

from being angry

and cursing to cry

ing. He said the defendant also uttered that he was going

to kill the victim, himself, andtheir baby. Of ficer Parker testified that based on what the victim told him, he filled out an ar rest ti cket. He acknowledged that on the ticke t, he did not writethat the defendant digitally penetrated the victim. He said that officers looked for a gun but never found one.

Officer Kevin M. Shaver of the Memphis Police Department testified that he was dispatched to 353 Cosset

te Place about 8:30

p.m. on Nov ember 21 . When he a rrived, office

rs at the s cene tol d him that someone had been raped in the apartment. He said that he talked to a woman who lived in the apartment and that he took photographs of the apa rtment’s front

door and a window to the left of the front door. He said that the window was open slightly and that the police believed someone had entered the apartment by putting his or her hand through the window and opening the door. He said that he c ollected

sheets a nd pillowc ases fr

om a bed a

nd that the

sheets lo oked dirt

y. On crossexamination, Officer Shaver acknowledg ed that nothing in his crime scene report s ta ted that the window beside the door was open.
Sally Discenza, a

forensi c nurse

examiner for the Memphis Sexual Assault Resource Center, testified that she examined

the victim about 10:00 p.m. on November 21, 2000. She said she took

a blood samplefrom the victim, collected vaginal swabs, and prepa red a vaginal slide. She said she also used a hair lifter to collect evidence from the victim’s pubic area and collected the victim’s underwear. She sa id th e vict im to ld her the fo llow ing: The defendant hid in the victim’s car while the victim wa s in the da

yc are ce nter. Whe

n the vict imreturned to the car, the defendant held her at gunpoint a nd dro ve her to

his ex-gi rlfrien d’s apar tment. He

told the vic

tim that he

was goi ng to check her to s ee if she

had bee n having sex and vag

inally penetra ted her. The def

endant a lso threatened

to kill the v

ictim and their baby . Ms. Discenza

testifie d that she

did not see

any trauma to the victim but that failing to find injury was not uncommon in sexual assault cases. She said the victim told her that the defendant did not ejaculate and that the victim

had not ha

d sexual inte

rcourse within the last fo ur days. On

cross-examination, Ms. Discenza testified that the victim appeared “controlled.”

Donna Wilson, a forensic scientist with the Tennessee Bure au of Investiga tion, testified that she examined the evidenc e collected from t he victim. She said

that she did not find semen or sperm

on the victim’s vaginal swabs or slide and that she found one sperm head on the victim’s underwea r. She said that

she found genetic material on the victim’s underwea r and that the victim was the major contributor

of the material. She said, though, that she fo und gen etic material consistent with the defendant’s DNA

profile in one area of the victim’s underwear. She did not test any bedsheets or pillowca ses. On cr oss-examination, Ms. Wilson testif ied that she did not te st the evid ence un til August 2002 and t

h at she coul d not say the g enetic material found on the victim’s underwear be longed to the defendant. She said the fact that the sperm’s tail was missing indica ted that th e sperm may have

been one or two day s old.

The state introduced into evidence the order of protec tion t hat the vict im filed against the defendant on November 13, 2000. Attached to the order is a statement by the victim in which she-6-

stated that on August 6 , 2000, the defenda nt went to t

he victim’ s apartme

nt, threw her to the floor, and tore off her clothes. The victim also alleged in the sta tement that on October 29, 2000, the defendant came to her home, struck her in the face five times with his fist, kicked her in the back and on her legs, and hit her across the bac k with a mop handle.

Evia Harris, the defe

ndant’s a unt, testif ied for the defen

dant that at the time

of the crime s in question, the defendant had been living with her

off and on. She said that she had been named as

anintermed

iary in the vic tim’s orde

r of prot ection a nd that t he victi m would take the baby to he r house. She said that one da y, t he victim brought t

he baby to her home and

waited for the defendant to return from work. She said that when thedefendant got home, the victim and thedefendant talked inher driveway . She said that the victim and the defendant saw each other ag ain and that they a cted normally during both meetings. She said the victim al so t elephoned her home several times and spoke with the defendant. She said she kn ew that t he victim telephoned her home because the victim’s cellular telephone and work numbers appea red in her caller identification box. On cross

e xamination, Ms . Harris acknowledged that she ha d been trying

to help the defendant stay out of trouble. She said

she did not know if the defendant had guns, but she acknowle dged that he had been known to use a gun before.

Maria Alexander testified

that she and the defendant had three childre n together and that they

curren tly were in a romantic relation ship. She sa

id that on November 21, 2000, she was living at 353 Cossette Place an d that the defenda nt came to her apartment that morning. She said she borrowed the defenda

nt’s car , took the d

efenda nt to his aunt’s house, and went to he

r mother’ s house. Sh e said she left her

mother’s home about 5:45 p.m., picked up her children from day care, and returned to her apartme nt. She said that

a white car pulled up to her apartment and that the defendant and another person were in the car. She said that she could not see the other person and that the defendant a sked her to wa tch his son . She said

that she took the defendant’s baby and that the defendant drove the

car away but late

r returne d to her a

partmen t with the victim. She said that the defendant introduced the victim to her and that the victim was hugging and kissing the defendant. She said that the victim told her the v ictim had to return a friend’s car and that the vic tim and the defendant got their baby and left the apartment. She said that her apartment had been locked that day and that she had not noticed anything w

rong with her door or window. She said that her bed had been neat when she left the apartment

that morning and that it was still neat when she returned. She said that she had known the victim and the defendant were dating, that the victim was notcrying, and that she had not seen any signs of a struggle or torn c lothing onthe victim. She said that l ater tha

t night, t he police came to her apartment and she told them the defendant might be a t a friend’s house.

Oncross-examination, Ms. Alexander testified that she had known the defendant for about tenye ars. She s aid that h e did not pa y child suppor

t and that she visite d him in jail

whenever she could. She said that on November 21, the defendant was not living with he r and did not have permission to be in he

r apart ment. She said the defendant did not have a key to her apartment and could not get in the apartment if she was not there.-7-

Officer Kevin Shaver testified on rebuttal that he spoke with Maria Alexander on November 21 and that Ms. A lexander t old him the defendant was able to get into her apar tment through a window next to the front door. He said he examined the front door and

sa w n o s ig ns of

fo rc ed en tr y.

The defendant introduced into evide

nce the s tatement

that the victim

gave to the police the day after the crimes . In the stateme nt, the victim gave almost an identical account of the crimes as she did at trial . She a lso s aid in the st ateme nt th at she was no t inj ured d uring the inc ident. Alth ough the defendant had been charg ed with aggravated ra

pe, the jury convicted him of the lesser included offense of rape. The jury also convicted the defendant of three co unts o f aggravated kidn appin g.

The defenda

nt claimsthat (1) the evidence is insufficient to support the convictions; (2) the trial court erred by

allowing hearsay

into evidence; (3) the trial court erred by not following the procedural requirements of Rule 404(b), Tenn. R. Evid., and by allowing the jury

to hear about the defendant’s prior

bad acts; (4) the trial court erred by not questioning a juror when the trial court learned that the ju

ror knew a state w

itness; (5 ) the tria

l court erred

by play ing for the jury

an audiotape of witnesses’ testimony; (6) the tria l court gave an erroneous jury instruction on kidn appin g; (7) the trial court should have merged his agg ravate d kidnapp ing con

victions; and (8) his sentences are excessive. We note that the defendant filed an untimely motion for

new trial and that only issues which would result in a dismissal, rather than a new trial, may be considered when the motion for new trial is filed late because all other issues contained in the motion are considered waived. See T.R.A.P. 3( e); State v. Givhan , 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). However, we do not b elieve that a def endant’ s failing

to file a t ime ly n ew trial motion will waive

a double jeopardy c laim if support for the claim is apparent from the face of the record. See Menna

v. New York , 423 U.S. 61, 62 , 96 S . Ct. 241, 2 42 (19 75) (re versi ng, per curiam, a state decision that

a guilty plea “w aived” a

double je opardy

claim); State v. Rhodes , 91 7 S.W.2d 708 ( Tenn. Cri m. App. 1995) (stating that defendant’s guilty plea did not waive a double jeopardy claim when support for claim was apparent from face of the record). Thus, we will consider the defendant’s claims that the evi dence is insufficient to support his convictions, that the trial court should have merge d h i s aggravated

kidnapping convictions, and that his sentences are exce ssive. His

remainin g issues , however, are waived.

I. SUFFICIENCY OF THE EVIDENCE

The defenda

nt claimsthat the evidence is insufficient to support his convictions. He argues that the victim’s a

ccount of the crime s is full

of inconsistencies and is not credible. He points out that the victim

had seve ral oppor tunities to summon hel

p and that the defendant even left her alone with the gun, which she failed to grab. He notes that no DN A eviden ce conc lusively

links him to the crimes and argues that the victim made up her story bec ause she was angry about his being in a romantic relation ship with Ma

ria Alexander. The state claims that the evidence is suf fici ent. We agree with the state.-8-

Our standar d of review when the defendant questions the suffic iency of the e vidence on appeal is “whether, after viewing the e v idence in the light most favorable to the prosecution, any rational trier of

fact co uld have f

ound the e ssential e lements of the crime

bey ond a rea sonable doubt.” Jackson v. V

irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not re weigh the evidenc e but pre sume that t he jury has reso lved all c onflicts i n the testi

mony and draw

n all

reasona ble infere nces f rom the evidence in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Ten

n. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility were

resolved by

the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

The victim testified

that the defenda

nt force d her into

her best friend’ s car an

d drove h er to 353 Cossette Place. Witnesses testified that the victim and the defendant were arguing outside

the dayca re center and that t

hey saw the d

efenda nt force the victim

into the c ar. Altho

ugh thos e witnesses did not see a gun, the victim testified that the defendant pulled a gun from his jacket whe n they got in side a partm ent 35 3. In add itio n to p ulli ng t he gun a nd saying that he wa s going to kill t hem, the defendant digitally penetrated the victim and stuck his penis in her vagina. Sever al witnesses testifie d that soon after the alleg ed crime s, the vic tim was hy sterica l, crying, and claimed that the defendant had taken her from the da ycare center and raped her. The victim stated that the defendant did not ejaculate, which would explain the lack of DNA evid

ence. Also, altho

ugh Sally Disc enza did not find any

phy sical tra

uma to the

victim, she

said that the lack of physic al trauma was notunusual in sexual assaults. The jury heard the testimony and resolved the issues in fa vor of the state. The weight and value to be given to the e viden ce ar e resolv ed by

the trier of fact , not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Viewing the evidence in the light most favorable to the state, a rational jury could have found be

yon d a reas onable

doubt that the defe ndant k idnapped the victim from the day care center and rape d her in the apartment. The evidence is sufficient to support the convictions.

II. MERG

ER

The defendant contends, and the state conced es, that the tr

ial cour t should ha

ve merg ed his aggravated

kidnapping convictions. The indictments reflect that the s tat e charg ed the de fendant with three counts of aggravated kidna pp i ng based upon three alternative theor ies: that the defendant falsely imprisone d the vict

im (1) to facilita

te rape ; (2) with

the inten t to terrorize her; and (3) w hile possessing a deadly w eapon. Although the jury found the defendant guilty of all three c oun ts, “dou ble j eopardy pr

otects against multiple punishments for the same offense.” North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969). When a jury convicts under a lternative theorie s, “a merg er and im posi tion o f a sing le judgment of conviction protects a gainst d ouble jeopardy a

nd preserves the validity

of the jury

verdicts for future avoidance of proble ms related

to
unnece ssarily

dismissed ‘charges’ or ‘convictions.’” State v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1 997); s ee also State v. Howard , 30 S.W.3d 271, 275 (Tenn. 2000). The trial court should have merged the three sepa rate convictions for aggr avated kidnapp ing and should have entered a single judgment of conviction.-9- III. EXCESSIV

E SENTENCES

The defendant

claims that the trial court erred by applying certain enhancement factors a nd by ordering that he serve his sentence s consecutively. The stat e acknowledg es that the trial court improper ly applied one or two enhancement factors but contends that the def endant’s ten-year sentences are pro

per. The state als o contend s that the t ria l cour t properly orde

red consecutive sentencingbecause the defendant is a “dang erous offender”pursuant to T.C.A. § 40-35-115(b)(4). We conclude that the trial court improperly applied several enhancement fa ctors in t his case. Moreover, the trial court sentenced the defendant base d upon the incorrect bel ief that the presumpt ive sente nce for a Class B felony

was the midpoint in the range rather than the minimum inthe range. See T. C. A. § 4 0- 35 -2 10 (c ). Fi na ll y, we are unable to discern from the record the trial court’s reason for imposing consecutive sentencing pursuant to T.C.A. § 40-35-115(b). Howeve r, given that the presentence report is not in the record be fore us, this court cannot conduct its own de

novo review of the sente nces an d mus t rema nd th e cases for res enten cing.

At the sentencing hearing, the victim testified that she and the defendant used to live together buthad prob lems throughout their relationship because the defe ndant was phy sically and menta

lly abusive. She said th e defen dant f inally left her a

partment but returned one day and hit her in the face, dropped her on the floor, hit her in the back with a mop handle, and dr ug her down

the back steps. She said that she immediately moved in with her best friend but that the defendant telephoned her at work constantly. She said that a week or two later, the present crimes occurred. She said that she was terrified of the defendant and that the time he had been confined in jail was the best time of her life. She said she was afraid the defendant would g et out of prison and come after her ag ain. She said that she wanted the defendant to pay for what he had done to her and that he should serv e twenty ye ars in confineme

nt.

Oncross-examination, the victim acknowled ged that while she and the defendant were living together, the defendant would leave her for a while but that she would let h im r eturn. She also acknowledged

that she never changed

th e lo cks to her apartment. She said, though, that she was afraid of him and

that he ha

d kicked i n the doors to her apartment before. She said that she visited the defendant in jail twice after he was ar rested for the offenses and

that she gave him money . She said that she no longer loved the defendant and that he would notstay away

from her unless he was confined. She said that she had not spoken to t he de fendant and acknowledged that he had not bothered her since he had been in jail.

The defenda

nt testifie d that he had been injail for twenty-nine months and tha t he would not bother the victim again. He said that he loved the victim but realized that she no longe

r wanted him inher life. He said that he would like to know how his son was doing but that he could check on his

son without contacting the victim

. He said that the victim had visited him in jail, had cried, and had told him that she did not want to see him in jail. He said he was angry butwas not a

ngry at t he victim and would not do anything to her

.-10-

Oncross-examination, the defendant testified that he did not kidnap or rape the victim and did not tell a police officer

that he was going to kill himself, the victim, and their son. He said that the state offer ed to let h im plead guilty to a sex offense in return for a sentence of eig ht years on probationbut that he

refuse d to plead

guilty to a sex cr ime. He said he had a prior conviction for involuntary

manslaughter that

resulted from his a

ccident ally shooting and killing

his cousin . He said he did not have a gun on November 21, 2000, b ut acknowledged violating the victim’s order of protection. He said

that he had violated the order because he a nd the victim had loved each other and because he was try

ing to get his family

back. He said that he had forgiven the victim for having him i ncarcer ated. Alth ough the trial court’s Findings of Fact F orm notes that a presentencereport was requested, neither party introduced the report into evidence.

The trial court stated that as a Range I offender convicted of Class B felonies, the defendant

was facing

eight-to twelve -y ear sen

tences. See T.C.A. § 40-35-112(a)(2). The trial court also noted that as a standard offender, the defe ndant would serve thirty pe rcent of his sentences. See T.C.A. § 40-35-501(c). Based on the defe ndant’s prior involuntary

manslaughter conviction, the trial court applied enhancement factor (2), that the def endant had

a “previous history of criminal convictions

or criminal behavior

inaddition to those necessary to establish the appropriate range.” See T.C.A. § 40-35-114(2). The trial court also applied enhanc ement fa

ctor (5) , that the

victim wa s particu

larly vulnera ble because

of her age or phy

sical or mental disability, due to the fac t that the defendant had hit the victim while she was pregnant with their child, and fac tor (6), that the defendant treated the victim with exceptional cruelty, bec ause he raped her in his ex-girlfriend’s a partment. See T.C.A. § 40-35-114(5), (6). The trial cou rt applied factor (7), that the personal injuries inflicted on the victim wer e particularly g

reat, because the victim suffered e motional injuries as a result of the crimes. See T.C.A. § 40-35-114(7).

The trial court

applied f actor ( 8), that the defen

dant comm

itted the o ffense s again st a victim inorder to gratify

his desire for pleasure or excitement, on the basis that t he defendant raped the victim “in anoth er woman’s be d with the other woman outside the door getting the child.” See T.C.A. § 40-35-114(8). The trial cour t h eld that defendant’s violating the order of prote ction warranted apply ing fac tor (9), that the “ defenda

nt has a pr evious his tory

of unwilli

ngness to comply with the conditions of a sentence involving releas e into the c ommunity,” and tha t his using

a gun to commit the offenses warranted apply ing factor (10), that

the defendant possessed a firearm during the offenses. See T.C.A. § 40-35-114(9), (10). Finally, the trial cour t applied factor (11), that the defendant “had no hesitation about

committing

a crime when the risk to human life was high”; factor (12), that the “felony

resulted in . . . bodily injury or in vo lv ed th e t hr ea t o f d ea th or bo di ly i nj ur y .

. . and the d

efenda nt has pre

viously been co nvic ted of a f

elony that resu lted in de ath or bod

ily injury”; and

factor (17), that

the defendant committed the crime “under circ umstances under which the potential for bodily injury to a victim was great.” See T.C.A. § 40-35-114(11), (12), (17). The trial court applied no mitigating factors. See T.C.A. § 40-35-113.

The trial court stated that the presumptive sentence was the midpoint in t he range, or ten ye ars, for each conviction. However, despite ha ving found ten

enhancement factors applicable, the trial court held that a ten-y ear sentence was appropriate for each conviction. Regarding c onsecutive-11-

sentenc ing, the

trial cou rt stated that “und er these circumstances where the defendant has violated

a court order, kidnapped a lady off the street, and taken her to a location as she ha s indicated, I think this case deserves consecutive time and so be it.”

When a defendant appeals the length, ra nge, or manner of service of a sentence imposed by the trial cou

rt, this court conducts a de novo review of the record with a presumption that the trial court’s determinations are correct. T.C.A. § 40- 35-4 01(d). T he presu mption of c orrect

ness is “conditioned

upon the affirmative showing in the record that the tria l court con s idered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appealing party

. T.C.A. § 40-35-401(d), Sentencing Commission Comments. Howeve r, if the record shows that the trial court failed to consider

the sentencing principles and all relevant facts and circumstances, then review of th e s en te nc e i s p ur el y de novo

. Ashby , 823 S.W.2d at 169.

The defendant was sentenced as a Range I offender for whic h the appl icable r

ange f or a Class B felony is eight to twelve yea

rs. T.C.A. § 40-35-112(a)(2). The presumptive sentenc e for a Class B felony is the minimu

m in the ra

nge whe n no enha

ncement or mitiga

ting fa ctors ar e present

. T.C.A. § 40-35-210(c). Procedurally , the trial court is to increa se th e sent ence wi thin the ran ge based upon the existence of enhancement factors and then r educe the sente

nce as a ppropria te for any mitigating factors. T.C.A. § 40-35-210(e). The weig htto be afforded an existing factor is left to the trial court’s discreti on so long as it complies with the purposes and principles of the 1989 Sentencing Act andits findings are adequately supported by the re cord. T.C.A. § 40-35-210, Sentencing Commission Co mments; Ashby , 823 S.W.2d at 169.

The defendant contends that the trial court improperly a pplied all of the enhancement factors except for factor (2). The state acknow ledges that the trial court misapplied enhancement factor

(5), that the victim was particularly vulnerable, because the defenda nt’s having hit the victim while she

was pregnant with th eir

child is no t relate d to the pr esent of fenses. We agre e with

the state and note that in addition to the misapplication of factor (5), the trial court misapplied factors (6) and (7). Regarding

factor (6), that the defendant trea ted the victim with exceptional cruelty, applica tion of this factor is usually found in c ases of a

buse or torture. See State v. Will iams , 920 S.W.2d 247, 250 (Tenn. Crim. App. 1995). Moreove r, prope r applic ation of th

is factor require s a findin

g of cr uelty “over and above” what is required for the off ense itself. State v. A

rnett , 49 S.W.3d 250, 258 (Tenn. 2001). The fact

that the defendant took the victim to his ex-girlfriend’s apartment in order to ra pe her does not amount to exceptional cruelty. Reg arding factor (7), that the victim

suffer ed parti cularly great persona l injuries , Sally

Dis c enza foun

d no physical tra

uma to the

victim and

the victim

said inher statement to police that the defendant did not injure her. Personal injuries encompassed by this enhancement factor may also include emotional and psychological injuries. See St at e v . H oyt , 928 S.W.2d 935, 948 (Ten n. Crim. App. 1995). However, nothing in the record bef ore us demonstrates tha t the vic tim suffered particularly great emotional injuries. See id. Finally, we believe that the trial court improperly applied factor (9), that the defendant has a previous history of unwilling ness to comply with the conditions of a sentence involving release into the community, on the basis that the defendant violated the order of protec tion.-12-

Inaddition to misapplying enhanc ement factors, the trial court sentenced the de fenda nt b ased upon the incorrect belief that the presumptive sentence for a Class B felony was the midpoint in the range and made no findings for ordering consecutive sentencing pursuant to th e criter ia listed i n T.C.A. § 40-35-1 15(b). O rdinaril y, t hese er rors wou ld eliminate the presumption of correctness and result in this court’s determining the appropriate sentence s. However, the presentence re port was notmade an exhibit at

the sentencing hearing, is not in the rec ord before us, and prohibits us from conducting a proper de novo revie w. Th eref ore, we mu st remand

the c ases for r esen tenc ing. We note that although the trial court stated at thesentencing hearing that the de fendant would ser ve thirty percent of his sentences, the judgment forms reflect that the de fendant was senten ced as a violent offender. Because the defendant was convicted

of agg ravate d kidnapp ing and

rape, he is statutor

ily requ iredto s erve one hundred percent of his sentenc es with the potential to have his sentences reduced fifteen percent for sentence reduction credits. See T.C.A. § 40-35-501(i).

IV. PLAI

N ERROR

Alth o ugh the defe

ndant’s f ailure to file a time ly mo tion for n ew trial has waiv ed his remainingissues, he

claims tha

t the err ors const it ute plai n error . This cou rt has the discreti on to notice an error that has affected the substantial rights of an ac cused when necessary to do substantial justice. Tenn. R. Cr

im

. P. 52(b). The following factors should be considered in de termining the existence of plain error:

“(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substan

tial rig ht of the a

ccused m ust have b een adv ersely affected;
(d) the accused did not waive the issue for tactica l reasons; and
(e) consideration of the error is ‘necessary

to do substantial justice.’”

State v. Smith , 24 S .W.3 d 274, 282-8 3 (Ten n. 200 0) (qu otin g State v. Adkisson , 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). As noted in Adkisson , “recognition should be limited to errors that had an un fair

prejudicial impact which undermined the fundamental fairne ss of the trial.” 899 S.W.2d at 642.

The defenda

nt claims t

hat the tr ial cour t committed

plain er ror by allowing hearsa y in to evidence; by

not foll owing the procedural requireme nts of Rule 404(b), Tenn. R. Evid., and by allowing the jury

to hear about the defendant’s prior bad ac ts; by not questioning a juror whe n the trial court learned that the juror knew a state witness; by pl ay in g for the jury

an audiotape of witnesse s’ testimony; and by giving an erroneous jury

instruction on kidnapping. While the record demonstrates that

the defendant requested a 404(b) hea ring and that the trial cou

rt should h ave held-13-

a hearing regar

ding the defendant’s request to exclude prior bad act evidence, the trial court’s e rror does not rise to th e level of plain error. Moreover, we discern no plain error rega rding the defenda nt’s rema ining cl aims.

Inconsideration of the foregoing a nd the reco rd a s a whole, we affirm the defendant’s convicti ons. However, we hold that the trial court erred by not merg ing the defendant’s aggravated kidnapping convictions and by misapply ing several enhancement fa ct ors to the defendant’s sentenc es. We remand the case for modify ing the judgments to reflect tha t the aggrav ated kidnapping convicti ons in coun ts two and three are merge d into count one in case number 01-02676 and fo r resen tenci ng.

___________________________________ JOSEPH M. TIPTON, JUDGE