### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 17, 2001 S ession

STATE OF TENNESSEE v. JOSEPH DA RRYL TAYLOR

Direct Appeal from the Circuit Court for Marshall County

No. 13945 Charles Lee, Judge

No. M2000-00525-CCA-R3-CD _ Filed May 31, 2001

Defendant,

Joseph Darryl Taylor, was convicted of attempt to commit sexual bat ter y, attempt to commit rape, and aggravated kidna pping. In this appeal as of right, Defendant contends that the evidence adduced at trial concerning all three offenses was insufficient to findhim guilty and that the trial court erred when it sentenced Defendant. Following a review of the record, we affirm the judgment of the tr

ial court in part a

nd reverse in pa

rt.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part and Reversed in Part.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in whichJ ERRY L. S MITH and R OBERT W. W EDEMEYER , JJ., joined.

John B. Nisbet, III, Cookeville, Tenne ssee (on a ppeal); Donna Or r Hargrove, D

istrict Public Defender; and Andrew Jackson Dearing, III , Assistant Public

Defender, Fayetteville, Tennessee (a t trial), for the appellant, Joseph Darryl Tay lor.

Paul G. Summers, Attorney General and Rep

orter; Jennifer L

. Smith, Assistant Atto

rney Gene

ral; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistan t Dis trict Attorney General, for the appellee, the State of Tenne ssee.

OPINION

Defendant,

Joseph Darryl Taylor, was indicted by a Marshall County Grand Jury for attempt
to commit sexual battery, attempt to com m it rape, and two counts of aggravated k idnapping. Fo llowing a jury trial, Defendant was convicted of attempt to commit sexual battery , a Class A misdemean or, attemp t to commi t rape, a Cla ss C felony, an d one count of aggravated k idnapping,

a Class B felony. The jury returne d a v er dict of not guilty on the second count of aggrava ted kidnappin g. Thereafter, the trial court sentenced Defendant to eleven months, twenty-nine day s for his attempte d sexua l battery conviction, fifteen yea rs as a career offender for his attempted rape-2-

conv iction, and twelve years as a violent 100% Range I offender for his aggravated ki dnappin g conviction. The trial court further ordered that Defendant’s conviction for

attempted sexual battery be merged as a lesser-included offense with his conviction for attempted rape. Further, the trial court ordered Defendant’s conviction for attempted rape be merged with his conviction for aggravated kidnappin g, p ursuant to the decision of our supreme court in State v. Anthony , 817 S.W.2d 29 9 (Tenn. 1991).

In this appeal, Defendant contends that the evidence adduced at trial was insufficie

nt to convict him for all three offenses and

that the trial cour

t erred when it se

ntenced Defend

ant. In its repl y br ief, the State app eals the trial cou

rt’s “merger

” of Defendant’ s convictions into a single conviction for aggrava

te d kidnappin g, arguing th at the facts pre

sented at trial we

re sufficient to support independent convictions for all offenses. The Sta

te further requ

ests that this Court r

einstate separate sentences for Defendant and order consecutive sentencing

.

After reviewing the record, we conclude t hat the evidence was sufficient to support Defendant’s three convicti o ns. Notwithstanding, we reverse and dismiss Defendant’s conviction for attemptedsexual battery because dual convictions for attempted rape and sexual battery cannot be sustained on the facts presented. See State v. Barney , 986 S.W.2d 545 (Tenn. 1999). Similarly, the trial court correctly determined t hat Sta te v. Anthony

also precludes Defendant from suffering criminal liability for both aggravated kidnapping and attempted r ape. According to Anthony and its pro geny, a separate conviction for kidnapping may violate due proc es s when the kidnapp

ing is essentially

“incidental” to other

offenses for which a

defendant has been convicted. We hold that Defendant’s crime of

ag gravated kidnapping was “incidental” to his attempt to commit rape. Therefore, we reverse the trial court’s judgment merging Defendant’s conviction for attempted rape into his aggravat

ed kidnapping co

nviction; we reve

rseand dismiss the kidnapping conviction and reinstate Defendant’s conviction and sentence for attempted rape.

I. FACTUAL BACKGROUND

Defendant

met the victim, thirteen-y ear-old A.S ., while he lived next door to the victim’s family on Park Street in Lewisburg, Tennessee. (The minor victim will be refe

rred to herein by

his initials.) On May 16, 199 9, approximately three to four weeks after Defendant moved to another house in the same neighborhood, A.S. rode his bicycle past Defendant’s new address. Hestopped
to say “H i” w hen he n oti ced D efen dan t wo rki ng on his car i n th e dri vew ay. Defenda nt informed A.S. that he was planni

ng to drive to Shel

byville to visi

t a friend and, if A.S. came back at 11:00 a.m., he could accompany Defendant on the

trip. Defendant

also told A.S. that his parents did not need to know of their plan.

In the m eantime, A.S. went to look for his sixteen-year-old brother, Timothy, who w a s fishing in a nearby

creek. Beca

use Timothy wore a watch, A.S. asked him to keep him informed of the time so A.S. could return to Defendant’s house at 11:00. Timothy did not comply with hi s request. When A.S. arrivedat Defendant’s house twenty

minutes late, Def

endant told

him the trip was off and invited him into the house to watch television instead. A.S. accepted.-3-

The television was in Defendant’s be droom, and they

started watching

a scary pr

ogram. Init ial ly, A.S. sat on one end o f Defendant’s b

ed and Defenda

nt sat on the other. Approximately fifteenminutes later, Defendant started “scooting” closer to A.S.. Eventually, when they were sitting only inches apart, Defendant placed his hand on A.S.’s belly near his belly butto

n and began to

rub it in a circular moti

on. Defendant tol

d A.S. that “he like

d girls, but he like

d boys, too” a

nd that, “if [A.S.] f---ed him, hewou ld b uy [A .S. ] an ythi ng.” A.S . st art ed t o cry. He told Defendant he “wasn’t like that” andpushed him away. A.S. was scared at this point and decided to leave. But before he could take more than five step s toward the door, Defend ant picked him up by

the waist with both

arms and “slammed” him

onto the bed. A.S.

landed on his back

and his head hit the

wall. Defendant pinned A.S. down with his body and told him to stop crying--he “didn’t have to be scared.”

A.S. was unable to

move his arms with Defendant on top of him, and he did not stop crying

even after De fendant orde red him to stop. When Defendant told A.S. that “he might as well f— [him] now because

he knowed [sic] that [A.S.] was going to go home and tel

l mom and dad,” A.S. startedcrying even harde r. Defendant let him si t up then, b ut stayed righ t beside him on the bed. They were sitting only inches

apart, and the television was still on. When Defendant turned his head
to look at it, A.S. saw his chance for escape and “took off running” as fast as he could. Once out the front door, A.S. leaped onto his bicycle and rode away . He testified that

he did not look

back and was unaware whether or not Defendant chased him.

After A.S. arrived home, he immediately found his brother, Timothy, who w as next door at the neighbor’s house. Timothy testified that A. S. was crying and upset. After A.S. told him that Defendant

“triedto rape him,” Timothy made A.S. tell their father, James, what happened. James took A.S. with him

to find Defendan

t. Shortly thereafter, they discover ed Defendant as they were driving to his house. Defe ndant was heade

d in the opposite dir

ection and smiled a

t them as h e passed. By the time James turned the car around, Defendant was gone. Jame s proceeded to the police dep art men t an d rep ort ed t he i nci den t. T he p oli ce ar res ted Defe nda nt e arl y the nex t da y, between 2:00 and 3:00 a.m.

At trial, A.S. further testified that he had visited Defendant on other occasions but Timothy

was ordinarily

with him. They usually only stayed fifteen or twenty minutes and wa tched television

or talked about car

s and baseball

cards. They

often sat in Defe

ndant’s bedroom b

ecause it was the only room with a television. A.S. testified that , prior to this

incident, Defen

dant had never g

iven him a reason to believe that he and Defendant were not friends.

Beth Rhoton, an investigator w ith the Lewisbur g Police Depart

ment, testified tha

t she usually workedcases where sex abuse was involved. Rhoton interviewed A.S. on May 16, 1999, between approximately

5:00 and 6:30 p.m. A. S. was still shakin g, and appeared very nervous and scared. On cross-examinat

ion, Rhoton testifie

d that A.S. did not re

quire medical tre

atment.-4- II. SUFFICIENCY OF THE EVIDENCE

Defendant

contends that the e

vidence presen

ted at t rial was insufficient

to support his conviction for attempted sexual battery, attempted rape, and aggrava

ted kidnapping. T

he State responds that the e

vidence was suff

icient to support se

parate convicti

ons for all three

offenses.

When evidentiary sufficiency is questioned on a ppeal, we must determine “whether, after considering the evidencein a light most favo rable to the prosecution, a

ny rational

trier of fact co

uld have found the essential elements of thecrime beyond a reasonable doubt.” State v. Hall , 8 S.W.3d 593, 599 (Tenn. 1999). “On appeal, the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.” Id. Add iti ona lly, we re cogn ize tha t a gu ilt y verd ict by a j ury, approved by the trial court, “accredits the testim ony of the witnesses for the State and resolves all conflicts in favor of the prosecu tion’ s theory.” State v. Bland , 958 S.W.2d 651, 659 (T enn. 1997). A gu

ilty verdict removes the p resumption o f innocence, replacing it with a presumption of guilt. Id. The defendant has the b urden of demonstrating that the evidence

is insufficient to s

upport his or her c

onvicti on. Id

. Questions conc erni ng the credibility of witnesses, the weight and value of evidenc e, and factual issues raised by the evidence are resolved by the trier of fact. Id

. This Court does not reweigh or reevaluate the evidence. Id.

A. Attempt to Commit Sexual Battery

As applicable to thi s case, sexual battery is unlawful sexual contact with a victim by the defendant accomp lished without the consent of the victim and where the defendant knows or has

reasonto know at the time of the contact that thevictim did not consent. See Tenn. Code Ann. § 39- 13-505(a)(2) (1997). Unlawful sexual contact “includes the intentional touching of the victim’s, the defendant’s,

or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the . . . intimate parts, if that intentional touching can be reasonably construed

as being for the pu

rpose of sexual ar

ousal o r gratificatio

n. Id. § 39-13-501(6). “ Intimate par

ts” include the “primary genital area, groin, inner thigh, buttock or breast of a human being.” Id. § 39- 13-501(2).

A person can be convicted of criminal attempt who, “a cting with the kind of culp ability otherwise required for the offense . . . [a]ct s with intent to complete a course of action or cause a result that would constitu

te the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.” Id. § 39-11-101(a)(3).

Defendant

argues that the proof does not support the jury’s finding that Defendant engag ed in conduct that cons

tituted a “substa

ntial step” toward touchin g the victim’s inti

mate parts. Although the proof shows that Defendant rubbed the victim’s belly, held the victim down, and talked dirty to the victim, Defe

ndant maintains tha

t this conduct was me rely inappr opriate and only frightened

the victim. As such, Defendant argues that

his actions did not rise to the level of a “substantial step” necessary to find him guilty of attemptedsexual battery. While we disagre e with-5-

Defendant

and hold that the evidence was sufficient to support the conviction, we further hold that the facts presented do not

support a separate conviction for attempted sexual battery. After a review of the record, we f

ind Defendant’s

rubbing of the vi

ctim’s belly

button area was an “in

cidental” act, performed

merely to facilitate his plan to rape A.S. As such, dual convictions for attempted sexual battery and attempted rape cannot be sustained.

The Tennessee Supre

me Court had occa

sion to address the

is sue whether

due process principles support

separate convictions for tw

o or more felonie

s arising from on

e particular co

urse of conduct in Statev. Barney , 986 S.W.2d 545 (Tenn. 1999). The question was whether two or more sexual acts may be the subject of separate convictions, and the supreme court fo und the test articulated

in People v. Madera , 231 Cal. App.3d 845 , 282 Cal. Rptr. 674 (1991), to be instructive. In Madera , the court upheld dual convictions for a defendant who rubbed a young boy ’s penis and also engaged in fe

llatio. The defen

dant argued tha

t the touching wa

s not only

“incidenta

l” to engaging in fellatio but also a part

of the act. The California court considered the defendant’s intent
to be the critical consideration. T he cardin al question was “whether [Madera's] touching of [the vict i m’s] penis was to commit a separate base criminal act or to facilitate the oral copulations . . . that sho rtl y f ollowed.” Id. at 679. If the act in question dir

ectly fac ilitated or was mer

ely “i ncidental”

to the accompanying sexual conduct (e.g., apply ing lubricant to the area of intended copulation), convictions for both acts would be barred. Id. at 680. On the other hand, if theact in issue was “preparatory” in the sense that the goa l was sexual arousa

l of either victim o

r defendant, then separate convictions would not be improper. Id.

In its analysis, our supreme court suggested the following several factors may be relevant in determining whether conduct is “incidental,” barring separate convict ions, or “p reparatory,” with the intentto arouse the vict

im or perpetrator

so that s eparate co nvictions are proper: (1) “temporal proximity,” which analyzes time intervals between the acts; (2) “spatial proximity,” which examines
movement

or re-positioning; (3) “intervening events” or an interruption in the occurrence of events; (4) “the sequence o

f the acts,” e.g ., serial penetr ation of differe

nt orifices a

s distin guished from repeated penetrations of t

he same orifice ; and (5) “the def endant’s intent”

as demonst

ra ted by conduct and statements. Barney , 986 S.W.2d at 548-49.

Considering the facts of this case in light of the decision in Barney , we find that Defendant’s touching of the victim’s bel ly was “mer

ely inciden

tal” to his attempt to

commi t rape, in l ieu of “pre para tor y” which would allow a separate convic

tion for attempted

sexual battery

. To recount, A.S. testified that whil

e he and Defend

ant were watchi

ng television, De

fendant “scoote

d” close to him and rubbed his bel

ly. While Def

endant was eng

aged in rubbing the victim’s belly button area, he also proposition

ed him, stating tha

t “if [A.S.] f---ed him, he

would buy [A.S. ] anything.” A.S. refused Defendant ’ s offer and started to cry, telling Defendant that he “ wasn’t like that” and then pushed him away. Whe

n A.S. tried to leav

e, Defendant pic

ked him up by th

e waist and“slammed” him onto the bed. At th

is point, Defendant pinned A.S. down with his body and told him that “he might as well f— [him] now because he knowed [sic] that [A.S.] was going to go home and tell mom anddad.” Clearly, Defendant’s languag e indicated his intent to have unlawful penetr ation of A.S. by Defendant or of Defendant by A.S., as defined in Tenn. Code Ann. § 39-13-503 (rape).-6-

Applying th

e test from Barney
, we find that four factors support a

single convictio

n in this case--the fift

h factor is inappl

icable. Consider

ing the first,

“temporal proximity,” we observe that the time i nterva l, if any, se parating the be

lly rubbing

from Defendant

’s statement of int

ent to penetrate the victim while he pinned the victim down was quite brief. As such, it did not suffice to sufficiently

distinguish them. Likewise, the second factor concerning “s

patial proximity

” supports

one conviction–there

was no significa

nt movement or re-

positioning of the

victim between the acts. Since there was no interrupt ion in the occ urrence of events, the third factor does not support independ ent prosecut ion and the fourth f actor, “sequen

ce of the acts,”

does not apply . The last factor, “defendant’s intent” as demonstrated by conduct and statements,

also suggests one criminal
act. Defendant’s fondlingof A.S.’s belly, declaration of homosexuality, and proposition for sexual penetration can be viewed collectively as incidental to an attempt to commit rape . In sum, we have determinedthat the actions taken by Defendant which would support a conviction f or attem pted sexual battery were one continuous action committed to directly facilitate the attempted rape and, therefore, Defendant’s co nviction for the mis

demeanor offen

se of attemptedsexual battery must be reversed and dismissed.

B. Attempt to C

ommit Rape

As applicable to

Defendant’s case, rape is defined as unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim, accomplished by force or coercion. See

Tenn. Code Ann. § 39-13-503 ( 1997). As previou sly noted , a person is guilty of criminal attempt who, “acting wi th the kind of c ulpability oth erwise require

d for the offense

. . . [a]cts with intent t

o complete a course of action or cause a result that would constitute the offense . . . andthe conduct constitutes a substantial step toward the commission of the offense.” Id. § 39-11-101(a)(3).

Similarly to his previous argument, Defendant maintains that the proof is insufficient to find
t hat Defendant eng

aged in conduc

t that constituted a

“substantial step”

toward commi

tting th e offense of rape. Defen

dant concedes th

at he rubbed the v

ictim’s belly

, held the victim

down, and talkeddirty to the v

ictim, but insists that

this conduct was merely inappropriate and only frightened A.S. By contra

st, the State conte

nds that the eviden

ce is su ffici ent to support a finding that Defendant

intended to

rape the victim and

that his entire course of action was corroborative of that intent. We agree with the State.

The record

shows that, after

Defendant rubbe

d the area surro

unding A.S.’s bel

ly button and clearly stated his desire to penetra te him, he forcibly prevented A.S. f

rom leaving his be

droom, restrained him on the bed, then conveyed for the second time his intent to engag e in unlawful sexual penetration. Only when A.S.’s crying incr eased did Defendant get off from on top of him so that A.S. could sit up. Although Defendant remained close to A.S.’s side, A.S. nevertheless escaped by unexpectedly

bolting out of the r

oom when Defenda

nt turned his head.

Atte mpt to co mmit rape requires the State to prove that Defendant intended to complete the crime and that he took a “substantial step,” i.e., that Defendant’s entire cours e of actio n was corrobora tive of his intent to commit the offense. T he State met th is burden. See State v. Fowler , 3 S.W.3d 910, 912 (Tenn. 1999) (evidence suff

icient to find substantial step taken toward commission of statutory rape where defendant stated his intention to have sex with a young boy and paid money; requiring more, e.g.,-7-

that the defe nda nt t ake d eli very of t he b oy o r actually begin some act that would approach sexual penetration, would be “i nconsiste nt with th e ge neral goal of crime prevention” and create a “danger ous precedent”). Defendant’s statement to the victim in conjunction with the other fact s noted above are sufficient for a rational trier of fact to find the essen tial elements of th e crime beyond a reasonable do

ubt, especially

when we consider

the evidence in a

light most favora

ble to the prosecution as we must. Defendant is not entitled to relief on this issue.

C. Aggravated K

idnapping

As relevant to the

facts in Defendant’s ca

se, aggrava

ted kidnapping is

false imprisonmen

t,

as defined in § 39-13 -302, committed to f acilitate the commission of any felony or flight thereafter. See Tenn. Code Ann. § 39-13-304 (1997). Acc ording t o Tenn. Code Ann. § 39-13-302, a person commits the offense of false imprisonment when he or she knowingly removes

or confines another unlawfully so as to interfere substantially with the other’ s liberty.

In h is brief, De fendant contend s that “there is no

evidence in the r

ecord that [Defe

ndant] interfered substantially

with the victim’s lib

erty in o rder to facilitate the commission of sexual battery.”Instead of arguing that the proof fails to show interfe rence with

the vic tim ’s l ibe rty, however, Defendant maintains that his conviction for aggravated kidnapping cannot stand bec

ause guilt for the accompanying felony was not established. We disagree.

The indict ment alleges that the false imprisonment was committed to facilitate the commission of the felony, sexual battery. The evidence presented at trial established that Defendant confined A.S. by forcibl y grabbing him and “slamming” him onto the bed when he tried to lea ve Defendant’s bedroom. The unlawf ul c onfinement was e

xacerbated when

Defendant pinne

d A.S. underneath

him with his body. Our current aggravated kidn appin g statute does not require a particular distance of removalor any particular duration or place of confinement. State v. Dixon

, 957 S.W.2d 532, 535 (Tenn. 1997). It is the purposeof the re mov al or confinement and not the distance or duration that supplies a n ece ssary element of aggravated kidnapping

. Id. (emphasis added).

Moreov er, we found the evidence sufficient to convict Defendant of attempted sexual battery

. However, we concluded that under the facts in this case, dual convictions for attempted rape and attemptedsexual battery were not permissible under State v. Barney , 986 S.W.2d 545 (Tenn. 1999). The State was not requ

ired to prove that

Defendant actu

ally succe eded in com mit tin g sex ual bat ter y; proof of attempt to commit the crime was sufficient. Defendant is not entitled to relief on this issue.

III. MERGER OF CONVICTIONS

The State appeals the trial court’s decisions to merge Defendant’s convictions for attempted sexual battery into the conviction for attempted rape and to merge Defe

ndant’s convictio

ns for these
two crimes into

a single convic

tion for aggr

avated kidnappin

g. The State asks

this Court to rever

se-8-

the trial court’s judgment, reinstating the jury’s verdict ag ainst Defen dant as three separate convictions.

At the con clusio n of Defendant’s trial, the jury rendered guilty verdicts against Defendant for attempted sexual battery, attempted rape, and aggra vated kidnapping. The trial court first merged Defendant’s convictio

n for atte mpted sexu

al battery into his conviction for attempted rape on the ground tha t “t he at tem pte d se xua l ba tte ry is – was a part of the attempted rape and it’s a lesserincluded[offense].” As sta te d above, dual convictions for attempted rape and attempted sexual battery in this case are not permissible under Barney

.

In addition to mergi

ng Defendant’ s conviction for a ttempted sexual battery in to his conviction for attempted rape, the trial court also merged Defendant’s conviction for attempted rape into his c on viction for aggravated kidnapping pursuant to State v. Anthony , 817 S.W.2d 299 (Tenn.1991). Specifically, the trial court stated that “the victim in

this case was detained during the

course of the attempted rape” and that there was “n

o question in

the court’s mind tha

t the Supreme Courtof our Sta

te would se

t one of the

se aside i f the [tria l] c ourt did not merge them.” The trial
court was correct when it determ ined th at Anthony

controls this issue. However, since the aggravated

kidnapping was “incidental” to the attempted rape, we hold that the aggravate d kidnapping con vic tion should be reversed and dismissed and the conviction for attempted rape reinstated.

Anthony outlines the Tenne

ssee Supreme

Court’s attempt to delineate exactly when criminal conduct, itself an element of or inherently part of a particular crime, should also be prosecuted as a separate crime. Id. at 306-07. Anthony pertained to a kidnapping convi c tion, and the test that evolvedfocused on whether the con finement, moveme nt, or detention at

issue was essentia

lly incidental to the accompanying felony and, therefore, not sufficient to supp ort a separate conviction

. Id. at 306 (emphasis added). In State v. Dixon , 957 S.W.2d 532 (Tenn. 1997), the supre me cour t refined the Anthony

test holding that, once thecourt determines that the movement or confinement [kidnapp ing] was beyond that necessary to consummate the act of the concurrent felony, further inquiries should determi

ne w hether the additional movement or confinement: (1) prevented the victim from summoning help; (2) lessened the defen dant’s risk of detection; or (3) created a significant

danger or increased the victim’srisk of harm. Dixon , 957 S.W.2d at 535. Anthony and Dixon are intended to prevent the injustice which would occur if a defendant could be convicted of kidnapping where t

he on ly restraint utilized was that necessary to complete the a ct of rape or robbery.

Applying the test delineated in Dixon , we findthat the restrain t used by Def

endant to commit the offense of aggravating kidnapping was not beyond that necessary to consummate Defendant’s attemptedsexual offense. In other words, the record reveals no proof that A.S. suffered additional confin ement or movement bey ond that directly

related to Defe

ndant’s attempts to

rape him. This conclusion is supported by a statement from the decision in Dixon where the supreme court held that, “[h]ad [the defendant ] confined a nd attempted to sexua lly penetra

te the victim wher

e he initially physically

assaulted her, the confinement would have been merely

incidental to

the attempted sexual battery.” Id. at 535. At the sentencing hearing, neith er party di sputed that, in

the event the evidence-9-

was deemed sufficient to convict Defendant of aggravated kidnapping, the rationale of Antho ny would defeat convictions for both aggravated kidnapping and attempted rape according to principles of due process . Accordingl y, because t he confinement a

nd/or detention of

the victim was mere

ly “incidental”

to the ac companying

felony, an

d because it was n

ot sufficient to sup

port a separate conviction, the conviction for aggravated kidnapping cannot stand.

In cases decided under Anthony , the kidnapping conviction, when involved, is the conviction that has been dismissed. See State v. Carson , 950 S.W.2d 951, 953 n.3 (Tenn. 1997) (trial court set aside defendant’s conviction for aggravated kidnapping post-trial under Anthony ); State v. Denton
, 938 S.W.2d 373, 378 (Tenn. 1996) (when kidn apping is “esse

ntially in cidental”to another offense--most

notably, robbery and rap e –then the due process provision of the Tennessee Constitution prohibits a conviction for kidnapping); State v. Coleman , 865 S.W.2d 455, 457 (Tenn. 1993) (fac ts f ull y s upport convictions for aggravated robbery and aggravated rape, but not kidnapping under the Anthony rule); St ate v. Binion , 947 S.W.2d 867, 872-73 (Tenn. Crim. App. 1996) (trial court’s dismissal of defendant’s conviction for es peciall y aggravated kidnapping affirmed where defendant was also convicted of attempted aggravate d rape); State v. Gregory , 862 S.W.2d 574, 579 (Tenn. Crim. App. 1993) (judgment of acquittal regarding defendant’s conviction for aggravated kidnapping held proper under Anthony ).

In sum, we reverse the trial court’s judgment merging Defendant’s convic tions. Because we determinedtha t the convi ction for attempted sexual battery cannot stand and the aggra vated kidnapping offense was “incidental” to the attempted rape, these convictions are reversed and dismissed and Defendant’s conviction for attempted rape is reinstated.

IV. SENTENCING

Defendant

argues that the trial court erred by fai li ng to consider a

properly a

pplicable mitigating factor when it imposedDefe nda nt’ s se nte nce f or ag grav ate d ki dna ppi ng, a Cla ss B fel ony, andthat it also erred

when it categorized De

fendant as a ca

reer offender

in determining his sentence for attempted rape, a Class C felony. We disagree.

Appellate review of sente

ncing is de novo on the record w ith a presumption that the trial court's determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), 402(d). The burden is on the appealing party

to show that the sentencing is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401. If the trial court followed the statutory sentencing p rocedure, m ade findings of fact that are adequately supported in the record, and ga

ve due considera

tion and proper we

ight to the factors and principles relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Howe ver, “the presumption of correctness which accompanies the trial court’s act ion i s conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby
, 823 S.W.2d 166, 169 (Tenn. 1991). Therefor

e, meaningful a

ppellate review

requires that the

trial court place

on the record its-10-

reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specifi

c facts supporti

ng eac h enhancement factor applied, and articulate how the mitigating and enhancemen t factors were e

valuated and bal

anced in determining the sentence. Tenn. Code Ann. § 40-35-210(

f) (1990); State v. Jones , 883 S.W.2d 597, 59 9 (Te nn. 1994). Since the record reveals that the trial court considered the sentencing principles and all re levant facts and circumstances,

our review is de novo with a presumption that the trial court’s

judgment is corr

ect.

In conducting a de novo review, we must consider ( 1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of s entencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct

, (5) any mitiga

ting or statutory

enhancement fa

ctors, (6) any statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, 103, 210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sen ten ce t o be imp ose d by the trial court for a Class B, C, D and E f elony is presumptively the minimum sentence in the range when no enhancement or mitigating factors are present. See Tenn. Code Ann. § 40-35-210(c). Procedurally, t he trial court is to increase the
sentence within the range based upon the exis

tence o f enhancement factors and then reduce the
sentence as appropriate for any mitigating factors. Id. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the trial court’s discretion so long as it complies with the purposes and principles of the Sentencing Act, and its finding

s are adequate

ly supported bythe record. Id. § 40-35-210, Sentencing Commission Comments; Moss
, 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The record reveals that the trial court sentenced Defendant to twelve y ears as a violent 100% Range I offender for his aggravated kidnapping conviction andfifteen years as a career off ender for his attempted rape c

onviction. The tr

ial courtfound no mitigatin g factors wer

e applicable to Defendant’s case and then ap plied the following

enhancement fa

ctors to all counts: (1) the defendant has a previous history

of criminal convictions or criminal behavior in additi on to those necess

ary to establish the appropriate

range, and (8)

the defendant ha

s a previou s history of u

nwillingness to comply with the conditions of a sentence involving release in to the community, giving “great weight” to factor (1). Tenn. Code Ann. § 40-35-114(1), (8) (1997). In the time period between 1978 and1990, Defendant was convicted of assault with intent to sexually molest a child under twelve, 3rd degree crimin

al sexual conduct,

sexual battery, and four

counts of statutory rape. The trial court also applied enhancement factor (7), used wh en the offense involves a victim and was committed
to gratify the defendant’s

desire for plea

sure or excitemen

t, to Defendant’s sentence for aggravated kidnapping and statedregarding this offense that “if there is eve

r a case where

the defendant sh

ould receive the maximum sentence, it is this case.” Id. § 40-35-114(7).

Defendant

first contends that the court erred when it failed to consider the mitigating factor containedin Tenn. Code Ann. § 39-13-304(b)(2), which may be applied to a sentence for aggravated kidnapping when “the offender voluntarily releases the victim alive . . . .” The State

responds that the record is devoid of proof to support Defendant’sclaim that he released the victim “voluntarily.” We agree wi th the State that the record is devoid of proof to support Defendant’s claim that he-11-

released the victim “voluntarily.” The evidence shows that the victim’s “ release” was d

ue only to his successful escape.

Defendant

also contends that the trial court erre d when it catego

rized him as a

career offender when determining

his sentence for the attempted rape conviction because “the State failed to give adequate notice pretrial that the State intended to seek enhanced punishment” as either a multiple, persistent, or career

offender. Defendant complains that “in order to have a defendant sentenced

as something other than a standard, Range I offender, the State is re quired to givethe defendant notice ” pursuantto Tenn. Code Ann. § 40-35-202(a). The State responds that Defendant waived consideration of any

defect in the notice of enhancement, filed by the State on September 10, 1999, when he failed to object at t he sentenci ng hearing. Notwithstanding waiver, the State further submits that the notice provided

in this case substantially complied with statutory requirements and, f urther, that it served its purpose of providing f air notice to Defendant that his sentence was subject to being enhanced above the “standard” range.

The subject of Defendant’s complaint is the alleged noncom

pliance by t

he State with

part (a) of Tenn. Code A nn. § 4 0-35- 202 wh ich st ates, in rel evant part, the fo llowi ng: “If the district attorney general believes that a defendant should be sentenced asa multiple, persistent or career offender, the districtattorney sh

all file a stateme

nt thereof with the

court and defen

se counsel n

ot le ss than ten (10) days befor

e trial or acce

ptance of a gui

lty plea.” Tenn. Code Ann. § 40-35-202(a) (1997). The notice “must set forth the nature of the prior felony convictions, the dates of the convictions and the identity of the courts of the convictions.” Id. Part (b) of Tenn. Code Ann. § 40-35-202pertains to the applicability of enhancement factors and whether a sente nce should be enh anced within the appropriate

range. It a

lso speaks in terms o

f notice to the def

endant following a finding of gu ilt. Since Defe nd ant’s argument on this issue relates to the trial court’s determination concerning the appropriate

range of his sentence, and does not dispute the applicability of the enhancement factors used by the trial c

ourt, we conclude

that only par

t (a) is relevant to the instant issue and confine our anal ysis acco rdi ngly.

The purpose of the not

ice requiremen

t is to provide a def

endant with “fair

notice” that he is “exposed to other than standard sentencing.” State v. Adams

, 788 S.W.2d 557 (Tenn. 1990). It is intendedto facilitate ple

a-bargaining

, to inform decisi

ons to en ter a guilty

plea, and to assist

with decisions regarding trial strategy. When a de tail of the required information is omitted or incorrect, the inquiry should be

whether the notice was “materially misleading.” Id. at 559. The supreme court specifically

held that “when the State has substantially complied with Section 40-35-202(a), an accused has a duty to inquire ab out an ambiguous or incomplete notice and must show prejudice
to obtain relief. But it is the State’s re sponsibility

to assert the appropriate sentencing status in the first instance, and it may not shift these burdens to an accused by

filing what is ess

entially an empty notice.” Id. (emphasis added).

The court in Adams found that the State had filed an eff

ectively “ empty notice

” because the notice at issue gave “no relevant information at all.” Id. Specificall y, the noti

ce did not provide details of former judgm

ents and, “[n]ot only

was it inadequate

to advise that a Range II sentence

was sought, it was positively

misleading, as it d

ealt exclusively

with matters rele

vant toanother phase-12-

of sentencing.” The notice in Adams is distinguishable from the State’s notice before us now. The record reveals that

the State filed a document entitled “Notice of Enhancement” on September 10, 1999, more than two months prior to Defend a nt’s trial and more than three months p

rior to his sentencing hearing, which also included a citation to Tenn. Code Ann. § 40-35-202. The body of the notice stated that “the Office of the District Attorney Genera l . . . gives notice

of intent to

seek enhanced punishment, should the defendant be convicted of a felony, for the following

convictions

. . . ,” then proceeded to list seven of Defendant’s co

nvictions for Class

E felonies, including four for statutory rape, all involving unlawful sexual conduct with children.

We find th at the State substantially complied with Tenn. Code Ann. § 40-35-202(a). The notice in the record contains the State’s express intent “to seek enhanced punishment,” sets forth the
nature of the prior felo

ny convictio

ns, the dates, and

the identity of the courts of the convictions, and

was filed months in advance of the trial and sentencing hearing. It is undisputed that the information

was accurate. I

n addition, the notic

e plainly stated that the State would seek “enhanced punishment.” Since our sentencing

system conta

ins only thre

e range cate

gories a bove the “ standard” range, the “enhanced

punishment” here

in log ically means punishment as a multiple, persistent, or career offender.

Where, as here, theState has substantially complied with the statute, the accused has a duty
to inquire about an ambiguous or incomplete notice a nd must show prejudice to obtain relief. Id. In the case before us, there is no question that the State’s notice made Defendant aware of its intent
to seek an enhanced range of punishment. He was provided a list of the convictions upon which the
state intended to rely well

in adv ance of t ria l an d he was , th us, in a pos iti on t o pl an ca se s tra tegy, including trying to determine whether or not the defendant had actually been convicted of the crimes listed in the notice. The early filing of the notice provided Defenda ntwith sufficient time to conduct inquires regarding any

ambiguities or mistakes in the document. He declined to do so. Neither di

d he object to the notice’s ambiguity at the sentencing hearing

. We may assume that Defendant was

awareof his own extensive criminal history prior to trial and note that he has failed to show any prejudice arising from a la ck of knowledge

as to which particular range the State was contemplating
to seek for purposes of

sentencing. Eve

n where the notic

e is not filed until

the date the trial

begins, it is not rendered ineffective in the absence of some showing of prejudice on the part of the accused, particularly

where defense

counsel does not move for a continuance or postponement of the trial as he is clearly authorized t

o d o under Rule 12.3(a). State v. Stephenson , 752 S.W.2d 80, 81 (Tenn. 1998). This result is

especially true in the present case where the matter of improper notice was not even raised in the

trial court, at the

sentencing hea

ring, or in the mot

ion for new trial.

Since Defendant has not alleged, much less established, any prejudice from his perce ived shortcoming in t he n oti ce, a nd t he n oti ce wa s cl earl y s uffici ent under Tenn. Code Ann. § 40-35- 202(a) to provide Defendant with the “fair notice” contemplated by our supreme court in Adams , he is not entitled to relief on this issue.

V. CONCLUSION-13-

For the foregoing reasons, we affirm Defendant’s conviction for attempted rape and reinstate that conviction and sentence. Defendant’s convictions for attempted sexual battery and

aggravated kidnapping are reversed and dismissed.

____________________________________ THOMAS T. WOODALL, JUDGE