1 It is the poli cy of th is court to use i nitia ls when r

eferri ng to a min

or who has bee

n sexual ly vic timize d. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

une 27, 2001
STATE OF TENNESSEE v. ROBERT M ORROW
Appeal from the Criminal Court for Cocke County Nos. 7793 & 7794 Robert Cupp, Judge, sitting by interchange

No. E2000-02796-CCA-R3-CD September 18, 2001

The defendant

entered a best-

interest guilty

plea in the Cocke County Criminal Court to one count of especially aggravated kidn apping , two counts of aggravated rape, and one count of criminal exposure to HIV. The trial court sentenced the defendant as a Range I standard offender to six years incarcerati

on in th e Tenn essee Depar tment of Cor recti on for the cr imin al ex posur e to HIV conviction, as a violent offender to 24 years incarcera tion for the especially

aggravated kidnapping conviction, as a violent offender to 24 years incarceration for one of the aggravated

rape convictions , and as a multiple rapist to 24 years incarceration for the other ag gravated rape conviction. The trial court ordered consecutive

service of the sentences for an effective sentence of 78 years incarceration. On appeal, the defendant takes issue with the len gth of the sentences and the consecutive service imposed. Based upon our review, we affirm the sentences imposed.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined.

Edward C. Miller, District Public Defender; Susanne Bales, Assistant Public Defender (on appeal); and Edward C. Miller, Assistant Public Defender (at trial), for the Appellant, Robert Morrow.

Paul G. Summers, Attorne y General

and Reporter; P atricia C. Kussmann, Assistant Attorney General; Alfred

C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General for the Appellee, State of Tennessee

. OPINION

On March 15, 1999, TH, who at the time was a 16-y ear old high sch

ool student, 1 was working alone at Tropica l Pets i n Greenville. Be

tween 8:00 p.m. and

8:20 p.m., the defe

ndant,2 As describe d in State v. Ronald W . Byrd , No. E2 000-0 0520- CCA- R3-CD , slip op. at 2 n .1 (Tenn . Crim. A pp., Knoxville, July 26, 2 001), a fle xicuff “is a th in strip of pla stic that bend s to form a circle that bi nds a suspect’s h ands.” After the device is

secured, “the cuff can only be removed by cutting the plast ic.” Id

. -2- Robert Morrow, came into the store and inquired about gerbils. He left when another

customer came into the store, b ut he re turned when the customer departed. The defendant approached TH from behind and held a gun to h e r head. When she tried to escape, the defendant became enraged; he slammed TH against thewall and screamed for her to open her mouth. When she complied, he stuck the gun in her mouth and threatened to kill her if she “tried that again.”

The defendant immobilized TH with flexicuffs 2 and forced her into his truck. He put
a toboggan over her

head and drove a

round for about 45

minutes. The defendant to ok TH to a cabin in a deserted area. He told her t hat if she d id anything, “he’d cut [her] and just leave [her].” Inside the cabin, the defendant again put a gun to her head and asked her if she knew “what was fixing t

o happen.” TH replied that

she just wanted to go home. The defendant cocked the gun, and TH began crying. Her cry

ing angered the defendant, and he told her to stop.

The defendant removed the toboggan and flexicuffs and ordered TH to remove all her clothes except her bra and panties. H e chained her hands together behind her back, put a tobacco stick between her ankles, and tied her feet apart. The defendant then tied a rope to her hands, already chained behind her back. The rope was thrown over a rafter in the cabin, and the defendant tightened the rope until TH was standing on her toes, partially suspended in air.

While tracing TH’s suspended body with a knife, the defendant told TH that she was going to be his “sex toy” for awhile. He offered her the choice of performing fellatio on him for either five or ten minutes

. If only for five minutes,

the defendant wo

uld do anythin

g he wanted with her body, but if f

or ten minutes, he w

ould just touch her chest. TH chose ten minutes whereupon the defendant cut the rope suspendin g TH. With h er arms and l egs still tied, TH performed oral sex
on the defendant. Wh

en he ejaculate

d, he ordered he

r to swish the semen around her mouth before swallowing it. When TH finished, her stomachwas hurting “real bad like [she] was going to puke.” Afterwards, the defendant put TH in bed.

Despite that the defendant had

assured TH that hewould not t ouch her u

ntil the ne xt day, he abruptly changed his mind. The defendant ripped off her panties and vaginally raped her. When TH tried to resist, the defendant shoved and hit her. The defendant also joked and taunted TH that she could be preg

nant. After raping TH, the defendant fell asleep. TH saw her chance to escape and left the cabin unclothed. The temperature was below freezing, but she hid in the woods until the defendant drove of f in his truck. TH returned to the cabin and stayed until sunrise, when she wrapped herself in a blanket, walked to a nearby tra iler, and summoned the police.

TH provided the police with a description of the defendant and the license

tag number
on his truck. From that

information, the police determined the defendant’s identity. The defendant
was arrested a fewdays later in Louisiana; h e had in his possessi

on TH’s panties, a

gag, ropes,-3-

handcuffs, and a

cordless telephone that had been taken from the pet store. The defendant, it was learned, was HIV positi

ve, having contrac ted the AIDS vi rus in 1985 when he

was stationed in Korea.

The defendant was charged with two counts of aggravated r ape, on e c ount of especially aggravated kidnapping, and one count of criminal exposure to HI V. See Tenn. Code Ann. §§ 39-13-109 (exposure to HIV), -305 (especially aggravated kidnapping ), -502 (aggravated rape) (1997). He entered a best interest plea to the charges with no agreement a bout sentencing. A detailedpresentence report was prepared and submitted to the trial court. Attached to the report were victim impact letters from the victim’s mother and sister. At the sentencing hearing, the trial court heard testimony from the victim and the defendant’s mother, and the defendant offered

an unsworn statement. At the conclusion of the hearing, the trial court imposed a total effective sentence of 78 yearsincarceration: six years as a Range I standard offender for the criminal exposur e to HIV conviction; 24 yearsas a violent offender for the especially aggravated kidnapping conviction; 24 years as a violent offende r for one of the a

ggravated r

ape convictions; a

nd 24 years

as a multiple rapist for the other aggravated rape conviction.

The defendant compla

in s on appeal that the trial court erroneously applied several enhancemen tfactors to incre ase the length o

f his sentences a

nd erroneously

ordered consec

uti v e service of his sentences. The defendant does not specify what sentence s he co nsi ders to be appropriate; he claims only tha t the sentences should be reduced and that some portion of the sentences should be served c oncurrently . For th e reas ons that follow, we decline to disturb

these sentences on app

eal.
I. Standard of Review

When there is a challenge to the length, range, or manner of service of a s

entence, it is the duty of this co urt to conduct a de novo review of the record with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1 997). This presumption is "conditioned upon the affirmative showing in the record that t he trial court considered

the sentencing principles and all relevant facts and circu mstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). "The burden of showing that the sentence is im proper is upon the appel lant." Ashby , 823 S.W. 2d at 169. In the eventt he record fails to demonstrate the required consideration by the trial c ourt, review of th e se nten ce is p urel y de novo

. Id. If appellate review, howeve

r, reflects that

the trial court pr

operly considered

all relevant fac

tors and its finding

s of fact are ad

equately supported by

the record, this court must affirm the sentence, "ev en if we would have preferred a di fferent result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The mechanics of arriving at an appropriate sentence

are spelled out in the Criminal Sentencing Reform Act of 1989. At th e conclusion of the sentencing hearing, the trial court determines the range of sentence and then determines the specific sentence and the propriety of sentencing alternatives by considering (1) the evidence , if any, received at the trial and the sentencing-4-

hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives,

(4) the natu

re and characteristics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhanceme

nt and mitigating

factors, (6) an

y statements

the defendant wishes to make in the

defendant's be

half abo ut sentencing, and (7) the potential for rehabilitation or treatment.Tenn. Code Ann. § 40-35-210(a), ( b) (Supp. 2000); id . § 40-35-103(5) (1997).

The def

endant’s conv ictions for aggravated rape and especially aggravated kidnappin g are classified as Cla

ss A felonies. Id . §§ 39- 13- 305 (b) (1) , -5 02( b) ( 199 7). Acco rdi ngly, in arriving at appropriate sen

tences for these

offenses, the sentencing court starts with the presumption that the defendant should recei ve a sentence in the midpoint of the range without any enhance ment or mitigating factors. Id . § 40-35-210(c) (Supp. 2000). If enhancement or mitigating fact ors do a ppl y, the sentencing court is directed first to“enhance the sentence within the range as appropriate for the enhancement

factors, and then

reduce the sentence within the range as appropriate for the mitigating factors.” Id . § 40-35-210(d), (e). The same analysis applies to the d efendant’s conviction for criminal exposure to HIV , which is a Class C fe

lony, except t

he sentencing c

ourt starts with th e presumption that the defenda nt should receive

a minimum sentence

in the range without any enhancement

or mitigating factors. Id

. § 40-35-210(c). In undertaking this task, the sentencing court is required to make on the record specific findings of fact supporting the application of each factor. Id

. § 40-35-210(f). Provided thecourt follows the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record, we will not disturb the ultimate sentence ordered.

II. Enhancement Factors

Enhancement

factors may be considered only if they are “appropriate for the offense” and “not themselves e

ssential elements

of the offense.” Tenn. Code Ann. § 40-35-114 (Supp. 2000). This statutory limitation is designe d to ne utralize the risk of repetitive punish

ment; it operates t

o exclude enhancement factors that are not supported by the facts and cir

cumstances of the

offense and enhancement factors that are supported by the fa cts but wh ich duplicate the evidence establishing the elements

of the conviction offense. See State v. Jones , 883 S.W2d 597, 601 (Tenn. 1994). With these principles in mind, we now turn to the enhancement factors applied in this case.

A. Section 40-35-114(1): Prior History of Criminal Convictions/Behavior

The trial court in this case found that the defendant had a previous history of criminal convictions or criminal behavior in addition to what was necessary to establish the appropriat e range and, therefore, applied enhancement factor (1) from Code section 40-35-114 to his convictions for aggravated

rape, especially aggrava

ted kidnapping, and criminalexposure to HIV. See Tenn. Code Ann. § 40-35-1 14(1) (Supp.2000) . Application of thi s enhancement fa

ctor is not include

d within the ensemble of errors catalogued by the defe ndant on appeal, and our review of the record discloses that enhancement factor (1) was properly consider ed and weighed in this case. In 1990, while serving in the military, the defendant threatened, assaulted, and kidnapped a fe male airman for which3 The defe ndan t neithe r concedes nor disputes applicat ion of the “exceptional ly cruel” enhancement fact

or to his s econd rape convic tion or hi s HIV exposure convi ction.
-5- he was prosecuted by general courts-martial a nd sentenced to s ev en years confinement and dishonorably discharged. Within a short time of his release, he then kidnapped and brutalized the minor victim in this case.

B. Section 40-35- 114(5): Exc eptional Cruelty

The trial court in this case also found tha t the defendant tr eated the victim w

ith exceptional cruelty during the commission of eachconviction offense. Tenn. Code Ann. § 40-35- 114(5) (Supp. 2000). The defendant concedes that the facts support applicat ion of en hancement factor (5) to the first rape offense involving fellatio. He argues, however, t hat this enh ancement factor was err

oneously applied to the especially aggravated kidnapping conviction. 3 We disagree.

The defendant was charged under subsection (a)(1) of the e sp ecially aggravated kidnapping statute, which proscribes, in part, false imprisonment “[a]cco mplished with a deadly weapon.” Tenn. Code Ann. § 39-13-305(a)(1) (1997). Exceptional cruel ty is not an el

ement of this offense; therefore, if sustained by the facts, this enhancement factor is applicable. See State v. Kern , 909 S.W.2d 5 (Tenn. Crim. App. 1993); State v. Carter , 908 S.W.2d 410 (Tenn. Crim. App. 1995). At sentencing, the trial court not ed and relied on th

e following fac

ts as indicative of

exceptionally cruel treatment

:
He tied her hands behind her; he put a toboggan over her head

so she would not know wh ere she was going; he brought her to that cabin, k ept her hands behind h

er with those cuff

s that’s been desc

ribed to this Court. That

wasn’t enough. He then took a rope, put it between her hands and raised her to the extent and each of us has experienced that as a kid or

even as a

dults horsing around, you can’t raise y our arms very high. He hit her. He us ed a gun to

get her there

but then he threatened her with a

knife and told her the consequences of what he would do.

These facts , w e are convinced, meet the legal standard for enhancement fac tor (5) requiring exceptional cruelty in excess of what is needed to sustai

n a conviction for the particular offense. See State v. Poole , 945 S.W.2d 93, 99 (Tenn. 1997). Not only did the defendant physica lly torture TH, he psychologically abused he r. Recently in State v. Adrian R. A rnett , – S.W.3d –, No. E1998-00051- SC-R11-CD(Tenn., Knoxville, July 3, 2001), the psychological dimension of enhancement factor (5) in the context of an espec ially aggr avated kidnapping was highlighted. The supreme court explained,

As the record reflects, the victim was ordered into the back of her boyfriend’svehicle. She witnesses the defendant hit her boyf

riend in-6- the side of

his head, hard enough to temporarily “daze him,” thereby recognizing that

the defendant wa

s capable of, and perfectly willing to use, violence if s

he tried to resist.

When her boy

friend manage

d to
esca pe, the victim found herself on the floor of the moving vehicle, alone withtwo masked and potentially violent males in the middle of the nigh t in an u nfam ili ar ci ty.
When t he veh icle stopped in a secluded area, the victim was physically

dragged outsi

de and thrown to

the ground. She landed on her back as the defenda nt stood over her. She saw him unzip his pants, and she was then ordered to take off her clothes. When she did notcomply, her

clothes were forcibly ripped off of her body . The teenaged victim was eventually left alone, naked and bound. She was fo rced to untie herself, dress herself as best as she could asth e defendant had taken so me of her clo thing, and, partially naked, knock
o n a stranger’s door to seek help. In this case, the defend ant wen t above and beyond

placing the y

oung victim in

fear of her life; instead, the facts revealevidence of exceptional mental cruelty separate and apart from the facts es

tablishing the el

ements that consti

tute the offense of es pecially aggravat ed kidnapp ing.

Id. at –, slip op. at 7-8.

The abusive treatme

nt of TH in this case

was, at least fro

m an objective sta

ndpoint,
more egregious than that inflicted upon the victim in Arnett . Excluding the facts directly attendant to the oral and vag

inal rapes in this c

ase, the evidenc

e reveals that the defendant fo

rced the victim into his truck

and shoved a toboggan over her head, thereby disorienting her while he drove around for approximatel y 45 minutes . At the cabin, the defendant lashed a tobacco stick between the victim’s ankles, tied and chained her hands behind her back, and hoisted her by her chained hands into the air to the point that she was balancing on her toes. He repeatedly thre atened the victim, and despite the sub-freezing temperature, he forced her to strip down to her underwear. The only piece of outer clothing that the victim could find when she had the chance to escape was her

shirt, but it
was ripped and useless. After hiding in the woods until the defendant left, the victim found a blanket in a trash bag in the cabin

to cover her body

. To summon help, the

victim had no choic

e except to present herself, clothed only in the blanket, to strangers living in a nea rby trailer.

We note that the trial court referred to the defendant’s use of a gun and knife, b u t under the particular circumstances shown in this case, we do not believe that co nsidering the weapons via

the “exceptionally cruel” factor for sentence enha ncement duplicates the deadly we apo n element of especially

aggravated kidnapping. See Tenn. Code Ann. § 39-13-305(a)(1) (1997). To be sure, aggressive tendencies are understood to be intertwined with violent crimes

. Threatening to shoota victim, for instance, is inherent in the offense of especially ag gravated kidnapping committed by the use of a firearm and does not usually conn

ote “exceptionall

y cruel” treatment. See State v.4 According to the Prese ntence In vestigation Report p repared in this case, t he defendant i s 5'9" and wei ghs 145 pou nds.

5 As previousl

y noted, the

aggravating fac tor alleged in the charg ing instrumen t for the kidnapp ing offense
was use of a de adly weapon; seri ous bodily inj ury was not al leged. Si

milarly, with the r

ape offenses , the aggra vating factor alleged was being “armed wit h a weapon”; the “bodily inj ury” aggravat or was not char

ged. See Tenn. Code Ann. § 39-13-502(a)(1), (2) (1997).
-7- Turner , 41 S.W.3d 663, 673 (Tenn. Cri m. App. 2000). I

nasmuch as a cer

tainamount of cruelty

is inherent in any especially ag

gravated kidnapping, the task becomes one of determining when “cru elt y” reaches the level of being “exceptional.” That level is achi

eved when the fa

cts demonstrate “a culpability distinct

from and appreciably greater than that incide nt to” the crime. State v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997).

Aiming a gun or pointing a knife at a kidna

pping victim almost

invariably

results in compliant submissiveness.The defendant, h owever, went ab

ove and bey

ond placing the v

ictim in fear of her life. In subduing her at the pet store, the defendant slammed her against a wall, screamed for her to open her mouth, stuck his gun inside her mouth, and threatened to kill her. In our view, the invasion and violation of a body cav ity with a dea dly weapon c

an be, and in this c

ase was, “exceptiona lly” cruel. Among other things, inserting the gun into the victim’s mouth was unnecessary

to kidnap this victim w

ho, at the time , was approximately 5'4" tall and weighed 100 pounds. 4 A gunshot wo und inflicted in that fashion, moreover, is nearly alway s fatal, and the physical disfigurement is particularly gory. The message that thedefendant was w illing not only

to murder but also to butcher the victim in this fashion was, we are confident, not lost on this young girl.

As for the knife, there was evidence that while the victim was bound and suspended from the cabin ce iling, the defendant took a large, hunting type knife and tr aced it across and around the victim’s exposed body. As he did so, the defendant told the victim what he planned to

do to her and taunted her about becoming his “sex toy” for awhile. The Presentence Report indicates that the defendant also cut off some of the victim’s hair with the knife and that he threatened to cut off her hands. The knife, in other words, wa s not employe

d to facilitate

the victim’s imprisonment; instead, it was wielded to te

rrorize the defe

nseless victim.

The facts in the case fully justify application of e nhancement factor (5) to the especially aggravated kidnapping conviction. C. Section 40-35-114(6): Particularly Great Personal Injuries

The personal injurie

s that the victim in thi

s case sustained w

ere, without ques

t i on, “particularly

great,” as t he trial court found. The defendant does not dispute this finding or the resulting application of enhancement factor (6) to the conviction offenses. See Tenn. Code Ann. § 40-35-114(6) (Supp. 2000). 5 Based, however, on our de novo re view of th e record, we add the following commen

ts and observation

s.-8- The trial court’s stated basis for applying enhancement factor (6) related to t

h e victim’s appendix. At some point during the second rape, the defendant punched TH in the stomach. A fe w days after her ordeal, the victim started having seve re abdominal pain. Over the ne xt fe w months, sh e was hospitalized on numerous occasions for diarrhea, vomiting, and dehydration. Shortly after Than ksgiving i n 1999, the severe abdominal pain returned. Exploratory surgery revealed that the victim’s appendix had been dislocated and was attached to her abdominal wall; the appendix was dangerously gangrenous and ha d to be removed.

This injury, in our view, justified enhancing the defendant’s sentence

for the second aggravated

rape, but the connection with the other convi ction offen ses is a closer question. Nonetheless,

our de novo review of the record reveals that the victim sustained severe psychological injuries attributable to all of the offense co nvictions. See State v. Melvin , 913 S.W.2d 195, 203 (Tenn. Crim App. 1995) (te rm "personal inju

ry," as use

d in enhancement

factor (6) i s broad enou gh to embrace emotional injuries and psychological scarring sustained by victim).

In Adrain R. Arnett

, the supreme court

declined to requireexpert testimony or proof of the extentof

a victim’s psychological injuries before enhancement fa ctor (6) could apply. Rather the court held that “application of the fact or is appropriate where there is specific and objective evidence demonstrating ho w the vic tim’s mental injury is more serious or more severe than that which no rmall y results from [the] offense.” Adrian R. Arnett , – S.W.3d at –, slip op. at 9. Such evidence could be presented, for instance, through live testimony of the victim or others or through specific examples included in the presentence report. See id. , slip op. at 9-10.

Included with the presentence report in this case are two lengthy victim impact letters submitted by

the victim’s mother andsister. They chronicle in vivid detail TH’s emotional injuries and handicaps. Since her ordeal, TH has attempted suicide. She developed an eating disorder that, according to her treating

pediatric psychiatri

st, was a type of post-traumatic stress disorder whereby her body was trying to ge t ri d of the pain resulting from the defendant’s victimization of her; the victim has required in-patient treatment at a nearby

psychiatri

c hospital for this dis

order. The victim
was ridiculed and shunned by classmates when she returned to school based on newspaper acc

ounts that the defendant was HIV positive. She missed so much school because of illness and being hospitalized that she was unable to graduate with her class. She no longer

attends church b

ecause her “faith has been shaken.”

I n our view, the contents of these letters, written by close family members, suppl y specific and objective evidence

demonstrating how the victim’s mental injuries are more serious or
more severe than those

which normally

result from th

e convicti on offenses. This evidence, combined with the evidence of the physica

l trauma to the victim’s appe

ndix, is certainly

adequate to support application of enhancement factor (6).-9- D. Section 40-35-114(7): Gratify Desire for Pleasure or Excitement

The defendant also does not challenge the trial court’s application of enhancement factor (7) that the defendant

committed the aggravated rapes and especially aggravated kidnapping to gratify his desire for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(7) (Supp. 2000). The trial court did not specify what facts supported this enhancement factor, stating only that the record “is full of things” that show why the defendant acted as he did. Even so, our de novo review persuades us tha

t factor (7) app

lies.

Because pleasure or excit

ement is not an essential element of the of fense of rape,

it may be a viable sentence enhancing factor. See State v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993). The same holds true for esp ecially aggravate d kidnappi ng. See State v. Antonio M. Byrd , No. 02C01- 9508-CR-00232, slip op. at 44 (Tenn. Cri m. App. , Ja ckson, Jan. 2, 1997) (that offense was committ ed for pleasure or excitement is not inherent in offense of especially ag gravated kidnapping), perm. app. denied

(Tenn. 1997). The defendant’s “motive” for com mitting the offen

se is central to enhancement

factor (7). Adrian R. Arnett , – S.W.3d at –, slip op . at 10; State v. Kissinger , 922 S.W.2d 482, 490 (Tenn. 1996).

The defendant in this case did not rob the pet store, and TH’s pocketbook, coat, and money were left behind at the store. Nothing suggests that the kidnapping was financially inspired. The victim’s testimony and evidence in this case indicate that the defendant abducted and ra ped her for sexual p le asure and gratification. Although ejaculation is not dispositive of motivation, Kissinger , 922 S.W.2d at 490, it is relevant, and in this case, the defendant ejaculated at least once during the first rape. H

e also instructed

the victim how to per

form fellatio

and what to do with

the
semen. Another significant indicator of the defendan

t’s motivation is his le

wd remark to the v

ictim that she was going to be his “sex toy.” These

facts, although not specified by the trial court, support the finding that the defendant committed the kidnapping and rapes to gratify himself.

E. Section 40-35- 114(9): Posse ssed or Employed a

Firearm

T he trial court enhanced the defendant’s sentence on the conviction offense o f criminal exposure to

HIV pursuant to factor (9) that the defendant “possessed or employed a firearm

. . . or other deadly weapon during the commission of the offense.” Tenn. Code Ann. § 40-35-114(9) (Supp. 2000). Bec ause th e aggravating element for the kidnapping and rape offenses involved a weapon and/or a

deadly wea

pon, factor (9) d

id not come into play

in determining th

e length of the defendant’s sen

tences for those

convictions.

The defendant does not argue that the trial court improp

erly considered enhancement factor (9) with respect to the HIV e xposu re conviction, an

d we find no basis in

the record to fa

ult the trial court’s determination in this regard. The vi ctim ’s testimo ny about the gun and the large hunting knife that the defendant possessed is sufficient to support this factor.-10- F. Section 40-35-114(12): Bodily Injury Enhancement Factor

Even though “bodily injury” was not alleged as an element of the aggravated rape or especially aggravated kidnapping offenses, the defendant arg ues that the trial court

erred in applying to thos e convictions enhancement factor (12) that the defendant “willfully inf licted bodily injury upon another person”

or that his actions “

resulted in

the death or serious bodily injury to a victim.” T enn. Code Ann. § 40-35-114(12) (Supp. 2000). The defendant appears to be complaining that although the victim sustaine d bodily inju

ry, t he injury is attributable only to the second rape a nd should not be usedto enhance either the first aggravated rape sentence or the especially aggravated kidnapping sentence.

The tri al c our t di d no t ar tic ula te a revi ewab le b asi s fo r app lyi ng factor (12). Enhancement

on that basis, it comm

ented, “goes to

those other thing

s th at he did” and “ [i]n particular going back to that appendix and those things.” Considerations simil ar to those that influenced

our de novo treatment of enhancement factor (6) are involved with enhancement factor (12). “Bodily injury,” as

referenced in

enhancement fa

ctor (12) include

s “physical

pain or temporary illness or imp airment of the function or a bodily member, organ, or mental faculty .” Tenn. Code Ann. § 39-11-106(a)(2) (1997). “Serious bodily injury ,” also referenced

in enhancement

factor (12) includes “[p]rotracted loss or substantial impairment of a function of a bodily member, organ, or mental faculty.” Id . § 39-11-106(a)(34).

In addition to having the defendant punch her in the stomach, the victim was exposed to below freezing temperatures while hiding naked in the woods until the defendant drove away from the cabin. In particular, the victim’sfeet were red and swollen for days because of exposure to the cold. The victim, according to her mother, was fearful that her feet would have to be amputated. Furthermore, a s a result of the defendant’s sadistic treatment, the victim developed an eating d isorder, and at one point she weighed roughly 80 pounds. The eating disorder was diag nosed a s a manifestation of

post-tra umatic stress. At a nother point, the vi

ctim attempted suic

ide. These physical and mental impairm

ents readily

qualify for

consideration pur

suant toenhancement factor (12) and properly enhance the kidnapping and rape convictions. Because, however, of the factual overlap between factors (6) and (12), factor (12) is deserving of less weig ht. Se e, e .g., State v. Ch arles C hesteen , No. E1999-00910-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Knoxville, June 8, 20 00) ( factor (15) applied in theft case but assigned moderate weight in view of the application of factor (4)).

G. Section 40-35-114(16): Potential for Injury Great

The last enhance ment factor applied by the trial court was (16), that the crime was “committed under circumstances under which the po tential for bodily

injury to a victim was great.” Tenn. Code Ann. § 40-35-114(16) (Supp. 2000). The trial court applied this factor to the criminal exposur e to HIV conviction offense. The defendant has not complained about the application o f factor (16), but we conclude, as a matter of first impression, that this factor is inapplicable.-11- Enhancement

factor (16), in ou r opinion , is inherent in the offense of criminal exposure to HIV. In State v. Pamela Denise Wiser , No. M1999-02500-

CCA-R3-CD (Tenn. Cr

im. App., Nashville, Oct. 30, 2000), the defendant was convicted of 22 counts of criminal exposure to HIV. The sentencing court applied, inter alia , en hancement fac tor (10), which r equires that a defendant have “no hesitation about committing a crime w h en the risk to human life [sic] high.” Tenn. Code Ann. § 40-35-114(10) (Supp. 2000). On appeal, this court held that enhancement factor (10) is inherent in that offense and, therefore, should not have been applied. The court explained,

At the heart of the criminal statute which prohibits a person from knowingly

expo sing a nothe r to HIV without consent lies the fact that this disease is ultimate

ly fatal . It follows that high risk to human life is inherent in committing the crime. Therefore, enhancement factor (10) is in ap plicable to enhance sentences for violating Tenn. Code Ann. § 39-13-109 (1997).

Pamela Denise Wiser, slip op. at 8. We conclude that factor (16) also is inherent in the criminal exposure to HIV offense. The trial court, accordingly , erred in considering that factor. III. Mitigating Factors

As for mitigation, the trial court took into consideration that the defendant had apologizedto the victim

during the plea and

sentencing pro

ceedings. The

trial court assig

ned little weight to this mitigating factor. No challenge has been raised to this factor, and we see no basis to disturb the trial court’s assessment in this regard.

IV. Weighing the Appropriate Sentencing Factors

Our de novo review of

the enhancemen

t and mitigating

factors yi elds six applicable enhancement

factors and one minor mitigating factor, with s om e of the enhancement factors applying to

less than all of the

convictions as fol

lows:

Conviction Applicable Enhancement Factors HIV Exposure (1), (5), (6), (9)

Especially Aggravated Kidnapping (Count 1) (1), (5), (6), (7), (12) Aggravated Rape (Count 2) (1), (5), (6), (7), (12) Aggravated Rape (Count 3) (1), (5), (6), (7), (12)-12- In weighing the enhancement factors, the trial court indicated that factors (5) and (7) deserved great weight. Consistent with our de novo review, we conc lude that facto

r (6 ) is also deserving of great weight, particularly considering the psychological abuse, trauma, and injury to the victim.

For

the especially aggravated kidnapping and the aggravated rape convictions, the presumptive midpoint of the defen dant’s sent encing range was 20 years. The trial court increased each sentence by five y

ears to take into account the e nhancement fac

tors, decreased each sentence by one year in recogn ition of t he defendant ’s apology as a mitigating factor, and arrived at a sentence of 24 yea rs for ea ch Class A f

elony. We agree that the number and weight of enhancement factors and the slight weight of the one mitigating factor fully justify the 24

-year sen tence for each

Class A fel ony. As for the Class C HIV exposure conviction, the defendant’s sentencing range was three to six years, and the

trial court imposed a maximum six-year sentence. Although the trial court should not have considered enhancement factor (16), that error

does not equate to a reduction in the sentence. See State v. Keel , 88 2 S .W.2d 410, 423 (Tenn. Crim. App. 1994). T he applicable enhancement

factors, (1), (5), (6), and (9), support the trial court’s determination,and we will not disturb the sentence imposed.
V. Consecutive Sen tencing

The trial court order

ed the defendan

t’s sentences to b

e served consec

uti vel y f or an effec tive sentence of 78 years. The trial court found that the defenda nt was a dangerou s offende r who “need [ed] to be removed from society for as long a period of time” as the law al lows. Th e defendant complains tha t the trial court improperly used consecutive sentencing as a vehic le for imposing a sentence of life without pa r ole. We disagree and affirm the consecutive sentencing ordered in this case.

Cod e section 40-35-115 addresses consecut ive sentencing and the criteria for orderin g consecutive, instead of concurrent, sentencing. Tenn. Code Ann. § 40-35-115(a) (1997). One statutory basis upon which to impose consecutive sentencing is that the defendant

“is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about
committing a crime

in which the risk to human life is high.” Id . § 40-35-115(b)(4). To support consecutive sentencing of a “dangerous” offender, the evidence must demonstrate t hat the “terms imposed are reasonably related to the severity of the offenses committed and are necessary

in order to protect the public

from further cr

iminal acts by

th e offender.” S tate v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995).

The trial court in thi s case pointed to ho w the defendant h

ad brutalized the v

ictim; indeed, the trial court

noted for the record that it had “never seen a more horrendous crime outside of a homicide” than what happened in this case. The trial court als o relied on the defendant’s indifference

to the contagious and lethal nature of his disease. See Pamela Denise Wiser , slip op.-13-

at 10 (trial court co

rrectly fo und that defenda

nt was dangero

us based on proof t

hat d efenda nt repeatedly

exhibited reckless indifference about the contagious nature of her disease and the poten tial for death that existed). We share the trial court’s opinion that the horrendous circumstances of the offenses reflect no appreciation or respect whatsoever for the value of life and no impulse control even when the risk to human life is high.

As for Wilkerson ’s requirement of necessity to protect the publ ic, nothing in the record r efutes th e need for an exte nded sentence of

incarceration . Favorable fa ctors, such as a defendant’s yout

hfulness , lack of criminal record, or potential for rehabilitation, are not present. See Tadaryl Darnell Shipp , No. 03C01-9907-CR-00312, slip op. at 5 (Tenn. Crim. App., Knoxville, Mar. 21, 2000) (noting these favorable factors). The defendant was 35 years old at the time of the offenses,and this case was not th e first time

that he had kidnapped and abused a female. He already had a criminal record

for kidnapping and

assaulting a military servicewoman. Finally , as in Tadaryl Darnell Shipp , “the ci rcumstances of the offenses are so egregious that they not only serve t

o identify [the defendant] as a dangerous offender, butthey also inform the inquiry into whether the extended sentenc

e is necessary

in order to protect the public.” Id ., slip op. at5 (emphasis added). Consecutive sentencing is eminently appropriate in this case. Such sentencing is reasonably related to the seriousness of the offenses and is necessary to safeg uard the public.

From our review of the len gth o f the defendant’s sentences and the consecutive service ordered, we affirm the final judgments and sentences imposed.

__________________________________________ JAMES CURWOOD WITT, JR., JUDGE