           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                              MARCH 1997 SESSION
                                                           FILED
                                                         November 20, 1997

                                                         Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,             *          C.C.A. # 02C01-9605-CR-00153

                 Appellee,      *          SHELBY COUNTY

VS.                             *          Hon. John P. Colton, Jr., Judge

ANTHONY D. CUTTLE,              *          (Attempted Especially Aggravated

                 Appellant.     *          Kidnapping)

                                *




For Appellant:                             For Appellee:

A. C. Wharton                              Charles W. Burson
Shelby County Public Defender              Attorney General & Reporter
(on appeal)
                                           Merrilyn Feirman
Walker Gwinn                               Assistant Attorney General
Assistant Public Defender                  500 Charlotte Avenue
Second Floor                               Nashville, TN 37243
Criminal Justice Complex
201 Poplar                                 James Lammey
Memphis, TN 38103                          Assistant District Attorney General
(on appeal)                                Third Floor
                                           Criminal Justice Complex
Barry Kuhn                                 201 Poplar
Assistant Public Defender                  Memphis, TN 38103
5100 Stage Road, Suite 4
Bartlett, TN 38134
(at trial)



OPINION FILED:



AFFIRMED



GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Anthony Cuttle, was convicted by a jury of attempted

especially aggravated kidnapping. The trial judge imposed a Range II, twenty-year

sentence. In this appeal of right, the defendant presents the following issues for our

review:

              (I) whether the evidence is sufficient;

              (II) whether his right to a speedy trial was violated; and

              (III) whether his sentence is excessive.

The conviction and sentence are affirmed.



              On the night of April 5, 1994, the victim, Norma Voyles was sitting in

her car outside her home when the defendant approached her vehicle, stuck a gun

to her head, and ordered her to open the door. When the defendant insisted on

taking the driver's seat, the victim struggled and managed to escape to the driveway

where the defendant held his cocked gun to her head and threatened to kill her.

The struggle lasted for around ten minutes before the victim's son heard the

screams and emerged from their residence. At that point, the defendant pushed the

victim to the ground and ran away.



              The victim called police who arrived some five minutes later. When

the investigating officers received word that a man fitting the assailant's description

had been taken into custody, the victim was asked to make an identification. Initially

uncertain, the victim made a positive identification after the defendant put on the

hood of his sweatshirt. Later, the victim was able to identify the defendant two more

times, once in a lineup at the police station and again at the preliminary hearing.



              On the same night, only a few minutes later, Debra Hanna was


                                  2
attacked by a man she identified as the defendant. She stated that as she was

unlocking her residence door, the defendant approached her holding a gun. Ms.

Hanna was able to get inside, lock the door, and call police. Within ten minutes,

police arrived and reported that they had taken a man into custody only a few

houses away, who fit her description of the attacker. When escorted by the police to

where the defendant was held, Ms. Hanna identified the defendant as her assailant.



              Officer J.D. Simon of the Memphis Police Department was in his patrol

car searching the area near the Voyles residence when he received notice of the

second attack. When apprehended, the defendant was carrying a butcher knife but

had no gun.



              At trial, the defendant denied any involvement in either attack. He

claimed that he and a friend had been visiting with his cousin. He asserted that he

had decided to visit his ex-girlfriend, walked over to her apartment, and, unable to

locate her, was returning to his cousin's residence when stopped by police.



              Antoine Thompson, a witness for the defense, claimed that he and the

defendant were at a mutual friend's residence watching television until sometime

between 10:30 and 11:30 p.m. Thompson recalled that when he went to bed, the

defendant was still at the residence.



              While the jury found the defendant guilty of the attempted especially

aggravated kidnapping of Ms. Voyles, it acquitted the defendant of the charges

relating to Ms. Hanna.




                                  3
                                              I

              The defendant challenges the sufficiency of the evidence, insisting that

there was no evidence that he intended to kidnap the victim, Ms. Voyles. He also

argues that there was insufficient proof of his identity.



              On appeal, of course, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted to the jury as triers of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



              A kidnapping occurs when one "knowingly removes or confines

another unlawfully so as to interfere substantially with ... liberty ... [u]nder

circumstances exposing the other to substantial risk of bodily injury...." Tenn. Code

Ann. §§ 39-13-302, -303. It becomes especially aggravated when, among other

things, it is "[a]ccomplished with a deadly weapon ..." Tenn. Code Ann. § 39-13-

305. "A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense [a]cts with intent to ... cause a result that would

constitute the offense ... [and the action is] a substantial step toward the commission

of the offense." Tenn. Code Ann. § 39-12-101(a)(3).



              In our view, the proof clearly established that the defendant attempted


                                    4
to commit the especially aggravated kidnapping of the victim. He pointed a gun to

her head, told her to move from the driver's seat to the passenger's seat, and

informed her that she would go with him. There was a violent struggle in the front

seat as the victim attempted to escape her vehicle. When the victim got out of the

car, the defendant continued to restrain her until he was startled by the arrival of the

victim's son.



                The defendant also argues that because the victim was uncertain of

his identify until he put the hood on his head, the evidence is insufficient. "It is well-

established that the identification of a defendant as the person who committed the

offense for which he is on trial is a question of fact for the determination of the jury

upon consideration of all competent proof. ... [T]he testimony of a victim, by itself,

is sufficient to support a conviction." State v. Strickland, 885 S.W.2d 85, 87 (Tenn.

Crim. App. 1993) (citations omitted). Here, the victim's inability to initially recognize

the defendant was well-established by the proof. The defense vigorously cross-

examined the victim about the accuracy of her identification. The trial court correctly

instructed the jury as to how to determine the reliability of the identification. See

State v. Dyle, 899 S.W.2d 607 (Tenn. 1995). Under these circumstances, it was the

prerogative of the jury to accredit the victim's identification.



                                             II

                Because he was arrested on the day of the offense, April 5, 1994, and

continuously incarcerated until the day of his trial, August 8, 1995, the defendant

claims he was denied a speedy trial. The indictment was returned November 22,

1994. Several weeks later, the defendant filed a "Notice for Demand for Speedy

Trial." Eighteen more days passed before the trial court entered an order

scheduling the trial for May 23, 1995. At the conclusion of a hearing on the motion


                                    5
for a speedy trial some two weeks earlier, the trial court determined that "[t]he case

has been set as quickly as possible .... I don't see how it can be done any quicker

than that." Thereafter, the defendant asked for continuances on three separate

occasions before his trial on August 8, 1995. The defendant complains that his

sixteen-month period of pretrial incarceration was "prejudicial to [him] and to the

judicial process."



              The right to a speedy trial is founded in the constitution of Tennessee,

art. I § 9. This same right has been codified by Tenn. Code Ann. § 40-14-101 which

provides: "In all criminal prosecutions, the accused is entitled to a speedy trial ...."

Our rules of criminal procedure also require a prompt trial: "If there is unnecessary

delay ... in bringing a defendant to trial, the court may dismiss the indictment,

presentment, information or complaint." Tenn. R. Crim. P. 48(b).



              In State v. Bishop, 493 S.W.2d 81 (Tenn. 1973), the Tennessee

Supreme Court adopted a four-factor test for determining whether one has been

denied his right to a speedy trial. Adopting a test first established in Barker v.

Wingo, 407 U.S. 514 (1972), our court identified the factors as

              (1) the length of the delay;

              (2) the reason for the delay;

              (3) whether the defendant asserted his right to a speedy
              trial; and

              (4) the prejudice which accrued to the defendant as a
              result of the delay.

Bishop, 493 S.W.2d at 84 (citing Barker, 407 U.S. at 530). See State v. Wood, 924

S.W.2d 342, 346 (Tenn. 1996) (reaffirming the factors established in Barker).



              In Barker, the United States Supreme Court held that "[t]he length of


                                   6
the delay is to some extent a triggering mechanism. Until there is some delay which

is presumptively prejudicial, there is no necessity for inquiry into the other factors

that go into the balance." Barker, 407 U.S. at 530. "Serious charges are, however,

expected to take longer than 'ordinary street crime[s].'" State v. Thomas, 818

S.W.2d 350, 362 (Tenn. Crim. App. 1991) (quoting Barker, 407 U.S. at 531)

(alteration in original). Some courts have held "that a two-year delay is not

inordinately long." Thomas, 818 S.W.2d at 363. Other courts, however, have found

that a delay of one year or longer "marks the point at which courts deem the delay

unreasonable enough to trigger the Barker inquiry." Doggett v. United States, 505

U.S. 647, 652, n.1 (1992). Because there was a sixteen-month delay in this case,

this court will consider the other factors.



              The proof indicates that a major reason for the delay was a crowded

trial docket. The defendant's requests for continuances also accounted for some of

the delay. Our courts have held that a crowded docket is often a "legitimate reason"

for delay. State v. Brooks, 880 S.W.2d 390, 394 (Tenn. Crim. App. 1993).



              The defendant requested a speedy trial in January 1995, ten months

into his period of pretrial incarceration. That favors the position of the defense.



              Prejudice, the most important of the considerations, is assessed in the

light of three interests to the defendant:

              (1) to prevent oppressive pretrial incarceration;

              (2) to minimize anxiety and concern of the accused; and

              (3) to limit the possibility that the defense will be
              impaired.

Barker, 407 U.S. at 532. "Of these, the most serious is the last, because the

inability of a defendant adequately to prepare his case skews the fairness of the

                                   7
entire system." Id.



              That the defendant was incarcerated for sixteen months before there

was a determination of his guilt is troublesome. In Barker, where the defendant was

incarcerated for ten months before trial, the United States Supreme Court

expressed concern about a lengthy pretrial incarceration:

              The time spent in jail awaiting trial has a detrimental
              impact on the individual. It often means loss of a job; it
              disrupts family life; and it enforces idleness. ... The time
              spent in jail is simply dead time. ... Imposing those
              consequences on anyone who has not yet been
              convicted is serious.

Id. at 532-33. Despite the expression of concern about pretrial incarceration, the

Supreme Court did not deem ten months "sufficiently oppressive to call for a ruling

in his favor." 2 Wayne Lafave, Criminal Procedure, § 18.2, 410 (1984) (commenting

on the ruling in Barker). "Lower courts have reached the same conclusion as to

substantially longer periods of imprisonment." Id. (citing United States v. Herman,

576 F.2d 1139, 1147 (5th Cir. 1978) (twenty-two-month period of incarceration did

not, standing alone, constitute speedy trial denial)). See also State v. James H.

Masters, No. 03C01-9503-CR-00092, slip op. at 6-7 (Tenn. Crim. App., at Knoxville,

July 19, 1995) (acknowledging that the "proof, on its face, shows [the defendant]

was exposed to unreasonably stressful conditions during his pretrial confinement

that could have been avoided or substantially reduced by a speedy trial" but ruling

the delay did not cause "sufficient prejudice to justify a dismissal.")



              The most important factor in determining if the defendant had been

prejudiced is whether his ability to present a defense has suffered. Barker, 407 U.S.

at 532. The defendant has made no allegation that he could not adequately prepare

a defense. There has been no showing that evidence has been lost, witnesses

have disappeared, or memories faded. The defendant has offered no proof to show

                                   8
he was actually prejudiced in the presentation of his defense. Without condoning

the lengthy period of pretrial incarceration, we conclude the prejudice factor weighs

favorably for the state.



              In our view, a dismissal on grounds of the denial of a speedy trial is

unwarranted in these circumstances.



                                           III

              Next, the defendant claims that his sentence was excessive.

Convicted of a Class B felony, the defendant received a Range II, twenty-year

sentence, the maximum possible within the statutory range of twelve to twenty

years. Tenn. Code Ann. § 40-35-112(b)(2). When there is a challenge to the

length, range, or manner of service of a sentence, it is the duty of this court to

conduct a de novo review with a presumption that the determinations made by the

trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is

"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); see State v. Jones, 883 S.W.2d

597 (Tenn. 1994). The Sentencing Commission Comments provide that the burden

is on the defendant to show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and


                                   9
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              At the time of this offense, the presumptive sentence was the

minimum in the range absent enhancement or mitigating factors. Tenn. Code Ann.

§ 40-35-210. Should the trial court find mitigating and enhancement factors, it must

start at the minimum sentence in the range and enhance the sentence based upon

any applicable enhancement factors, then reduce the sentence based upon the

appropriate mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight given

to each factor is within the trial court's discretion provided that the record supports

its findings and it complies with the Sentencing Act. See Ashby, 823 S.W.2d at 169.

The trial court should, however, make specific findings on the record which indicate

its application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209 and

-210.



              In this instance, the trial court failed to make specific determinations

on each of the enhancement factors:

              And it appears that since you have been an adult ... you
              have been arrested 24 times. I don't know about all the
              convictions. ... [T]his was what I find to be a violent
              crime. One woman was not convicted (sic); but as the
              State has stated, she certainly was a witness in this
              case. And it appeared from her testimony that she was
              attacked also. Two women attacked at night. On the
              first case ... there was a lengthy time of struggle--violent
              struggle with a gun put to a woman's head. If that
              woman had not been able to get away from you, I don't
              know where she would be ... None of us know what the
              outcome could have been. And the Court has a great
              concern about the violence of that and the possibility of
              what could have happened to that victim. The Court will
              sentence you to 20 years ... the maximum.




                                  10
                  The court also entered a form styled "Written Findings of Fact"1 which

contains the following handwritten statement: "SENTENCE ... Due to several prior

felonies, twenty-four (24) arrests and several convictions, violence involved, cruelty

of the act, prior violation of probation, firearm used, risk of life." This suggests that

the trial court applied the following statutory enhancement factors:

                  (1) previous history of criminal convictions ... in addition
                  to those necessary to establish the appropriate range;

                  (2) the offense involved more than one victim;

                  (3) the defendant treated ... the victim with exceptional
                  cruelty;

                  (4) the defendant has a history of unwillingness to
                  comply with the conditions of a sentence involving
                  release to the community;

                  (5) the defendant used a firearm;

                  (6) the defendant had no hesitation about committing a
                  crime when the risk to human life is high; and

                  (7) the potential for bodily injury to a victim was great.

Tenn. Code Ann. § 40-35-114(1), (3), (5), (8), (9), (10), and (16).



                  The record establishes a history of criminal convictions beyond that

necessary to establish the defendant as a Range II offender. The presentence

report shows prior convictions for theft under $500; disorderly conduct (2 counts);

assault (2 counts); driving on a suspended license (2 counts); DUI; selling cocaine;

assault and battery; possession of cocaine; weapons offense; armed robbery;

second degree murder; and third degree burglary. Thus, the number and degree of

his prior criminal history was entitled to significant weight in the determination of the

sentence.


         1
          The form contains contradictory information. For example, the court marked on the form that
the d efen dan t is a st and ard o ffen der, a pers isten t offe nde r, a ca reer offe nde r, and an es pec ially
mitigated offender. The court also m arked affirmatively that it was considering every single statutory
mitigating circumstance and that the defendant was eligible for probation because his sentence was
eight years or less.

                                           11
              The trial judge indicated that he relied on the fact that the defendant

had twenty-four arrests. In reviewing the presentence report, however, we have

concluded that seven of those charges resulted in dismissals. Section 40-35-

207(a)(4), Tenn. Code Ann., which sets forth the contents to be included in a

presentence report, provides that the report should contain the "defendant's record

of prior convictions." In State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App.

1993), this court held as follows:

              An arrest or charge is not considered evidence of the
              commission of a crime. See State v. Miller, 674 S.W.2d
              279, 284 (Tenn. 1984). A trial court should not use
              evidence merely showing arrests, without more, to
              enhance a sentence. State v. Newsome, 798 S.W.2d
              542, 543 (Tenn. Crim. App. 1990).

While this enhancement factor is still sufficiently established without relying on the

arrests, the trial court should not have relied on the mere arrests to enhance the

sentence. See also State v. Ben Ingram, No. 01C01-9509-CC-00297 (Tenn. Crim.

App., at Nashville, Oct. 29, 1996); Tenn. Code Ann. § 40-35-114(1).



              The record also suggests the trial court enhanced the sentence

because the offense involved more than one victim. In State v. Lambert, 741

S.W.2d 127, 134 (Tenn. Crim. App. 1987), this court held that where a defendant

receives a separate sentence for each victim, use of the more than one victim factor

is inappropriate. The ruling in Lambert has been extended to bar use of this factor

when the jury acquits the defendant of the charges against the additional victims.

State v. John L. Smith, No. 01C01-9309-CR-00308, slip op. at 10 (Tenn. Crim. App.,

at Nashville, Oct. 20, 1994); State v. Greg Patterson, No. 03C01-9106-CR-180, slip

op. at 9 (Tenn. Crim. App., at Knoxville, May 19, 1992). Thus, this enhancement

factor was inappropriately applied. Tenn. Code Ann. § 40-35-114(3).



              The trial court also enhanced the sentence because the defendant

                                     12
treated the victim with exceptional cruelty. Application of this factor requires a

showing of "exceptional cruelty." State v. Williams, 920 S.W.2d 247, 250 (Tenn.

Crim. App. 1995). "Exceptional cruelty is usually found in cases of abuse or torture."

Id. Our supreme court recently discussed application of this factor and ruled that

the trial court had a duty to state on the record the circumstances qualifying as

"exceptional cruelty." State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997) (citing State

v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995)). Before the factor may be

applied, the facts in the case must "support a finding of 'exceptional cruelty' that

'demonstrates a culpability distinct from and appreciably greater than that incident

to'" the crime. Poole, 945 S.W.2d at 98 (quoting State v. Jones, 883 S.W.2d 597,

601 (Tenn. 1994)). In Poole, the supreme court found this factor applicable in an

especially aggravated robbery case where the defendant hit an elderly woman over

the head with a baseball bat and left her alone while bleeding and unconscious. In

State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995), our court found this

factor applicable in especially aggravated kidnapping and aggravated robbery case,

where the victim had been raped and left "naked in freezing weather." In State v.

Kern, 909 S.W.2d 5, 7 (Tenn. Crim. App. 1993), an especially aggravated

kidnapping and especially aggravated robbery case, this court found the exceptional

cruelty enhancement factor applicable where the defendant "made repeated sexual

comments and threats to the victim and ordered her to remove her clothing at knife

point."



              Here, the defendant accosted the victim, struggled with her for several

minutes, threatened her with a gun, and pushed her to the ground before leaving

her. While egregious, these facts do not establish a culpability appreciably greater

than what is required to sustain a conviction for attempted especially aggravated

kidnapping. Thus, the trial court should not have applied this factor. Tenn. Code


                                  13
Ann. § 40-35-114(5).



              The trial court also considered that the defendant has a history of

unwillingness to comply with the conditions of a sentence involving release to the

community. The presentence report indicates probation violations; thus, there is

adequate proof to support application of this enhancement factor. Tenn. Code Ann.

§ 40-35-114(8).



              The next three enhancement factors used by the trial judge are that

the defendant used a firearm, that the defendant had no hesitation about committing

a crime when the risk to human life is high, and that the potential for bodily injury to

a victim was great. Tenn. Code Ann. § 40-35-114(9), (10), and (16). The trial court

may only consider enhancement factors that are "not themselves essential elements

of the offense as charged in the indictment." Tenn. Code Ann. § 40-35-114. In

Poole, our supreme court explained this rule:

              Facts which establish the elements of the offense
              charged may not also be the basis of an enhancement
              factor increasing punishment. The legislature, in
              determining the ranges of punishment within the
              classifications of offenses, necessarily took into account
              the culpability inherent in each offense.

Poole, 945 S.W.2d at 95-96 (quoting Jones, 883 S.W.2d at 601).



              The indictment charging the defendant with attempted especially

aggravated kidnapping alleged the defendant attempted to "interfere with the liberty

of [the victim] by use of a deadly weapon ...." Because the use of a deadly weapon

is an element of the charged offense, it cannot be used to enhance the sentence.

Tenn. Code Ann. § 40-35-114(9).



              Kidnapping is defined as a false imprisonment "[u]nder circumstances

                                  14
exposing the other person to substantial risk of bodily injury." Tenn. Code Ann. §

39-13-303 (a)(1). Thus, the trial court also erred by applying the enhancement

factor that the defendant had no hesitation about committing a crime when the risk

to human life was high. See Jones, 883 S.W.2d at 603. In Jones, our supreme

court held that "[t]he determinative language of this factor is 'the risk to human life

was high.'" Id. at 602. To justify use of this factor, the state must prove the

defendant "demonstrated a culpability distinct from and appreciably greater than that

incident to the offense for which he was convicted." Id. at 603. Here, the state

failed to prove that the defendant demonstrated an "appreciably greater" type of

culpability. Thus, application of the factor was erroneous. The same reasoning

would bar application of the final factor, that the potential for bodily injury to a victim

was great. See State v. Kern, 909 S.W.2d 5, 7 (Tenn. Crim. App. 1993) (ruling

enhancement factors Tenn. Code Ann. § 40-35-114(10) and (16) were erroneously

used to enhance a sentence for especially aggravated kidnapping).



              The trial court erred in its use of five of the seven mentioned

enhancement factors. "If the trial court applies inappropriate factors or otherwise

fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State

v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The state concedes the

trial court may have erroneously relied on certain enhancement factors but urges

this court, in its de novo review, to apply the enhancement factor that the "felony ...

involved the threat of death or bodily injury ... and the defendant has previously

been convicted of a felony that resulted in death or bodily injury." Tenn. Code Ann.

§ 40-35-114(11). The record does demonstrate that the defendant was previously

convicted of second degree murder. This additional factor warrants considerable

weight.




                                   15
             While the trial court misapplied a number of enhancement factors,

those applicable are entitled to much weight. The gravity and number of the

defendant's prior felonies, his unwillingness to comply with conditions of release into

the community, his previous second degree murder conviction, and his uncurbed

propensity towards violence warrant the maximum sentence possible.



             Accordingly, the judgment of the trial court is affirmed.




                                         Gary R. Wade, Judge

CONCUR:




Joe B. Jones, Presiding Judge




Curwood Witt, Judge




                                 16
