         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION, 1997           July 23, 1997

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,            )    C.C.A. NO. 01C01-9606-CC-00255
                               )
      Appellee,                )
                               )    PUTNAM COUNTY
                               )
V.                             )
                               )    HON. LEON BURNS, JR., JUDGE
ROBERT KEVIN MOORE,            )
                               )
      Appellant.               )    (AGGRAVATED RAPE)



FOR THE APPELLANT:                  FOR THE APPELLEE:

DAVID NEAL BRADY                    JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

H. MARSHALL JUDD                    RUTH THOMPSON
Assistant Public Defender           Assistant Attorney General
215 Reagan Street                   425 Fifth Avenue North
Cookeville, TN 38501                2nd Floor, Cordell Hull Building
                                    Nashville, TN 37243

                                    WILLIAM EDWARD GIBSON
                                    District Attorney General

                                    BENJIMAN W. FANN
                                    Assistant District Attorney General

                                    LILLIE ANN SELLS
                                    Assistant District Attorney General
                                    145 South Jefferson Avenue
                                    Cookeville, TN 38501-3424



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

                              OPINION
         The Defendant appeals as of right from the trial court’s imposition of a

twenty-five (25) year, Range I sentence for his conviction of aggravated rape,

following a guilty plea in the Putnam County Criminal Court. In this appeal, the

Defendant argues that: (1) The trial court erred by not requiring the State to file

a written notice of the enhancement factors it planned to use against the

Defendant prior to the sentencing hearing; (2) the trial court erred in applying

enhancement factors found in Tennessee Code Annotated section 40-35-114(6),

(7), and (10); and (3) the trial court erred in not finding that the Defendant’s lack

of a criminal history was a mitigating factor. W e affirm the judgment of the trial

court.



         The Defendant met the victim a few weeks before the incident.          The

victim’s car stalled at a store and the Defendant, with his wife and children, took

the victim and her children to her house. On June 7, 1994, the Defendant broke

into the victim’s house. The Defendant threatened to kill the victim with the knife

that he had brought with him. He stated that if she screamed and woke her

children, he would cut her throat. He then forced the victim to perform more than

one sexual act.      However, Defendant was indicted for only one count of

aggravated rape, committed while armed with a weapon, which was the knife.




                                         I.




                                         -2-
      The Defendant’s first issue is that the trial court erred by not requiring the

State to file, prior to the sentencing hearing, a written notice of the enhancement

factors it intended to rely upon in requesting an enhanced sentence within Range

I. The Defendant cites Tennessee Code Annotated section 40-35-202 in support

of his argum ent. The relevant portions of Tennessee Code Annotated section

40-35-202 read:


              (a) If the district attorney general believes that a defendant
      should be sentenced as a multiple, persistent or career offender, he
      shall file a statement thereof with the court and defense counsel not
      less than ten (10) days before trial or acceptance of a guilty plea .
      . . .”
              (b) In all cases following a finding of guilt, the court may
      require that:
              (1) The district attorney general file a statement with the court
      setting forth any enhancement or mitigating factors he believes
      should be considered by the court;”


Tenn. Code Ann. § 40-35-202(a) & (b) (emphasis added).



      The Defendant was sentenced as a Range I Standard Offender. The

statute requires a statement of enhanced punishment only if the defendant is

going to be sentenced as a multiple offender, persistent offender or a career

offender. The Defendant clearly was not being sentenced as one of these

classifications and therefore, this portion of the statute does not apply.

Tennessee Code Annotated section 40-35-202(b) goes on to state that a trial

court may require the State to file a statement of the enhancing factors it intends

to rely on. The term “may” implies that such a statement is not a mandatory

requirement.

      In State v. Adams, 788 S.W .2d 557 (Tenn. 1990), our supreme court

stated that Tennessee Code Annotated section 40-35-202(a), “is to provide fair


                                         -3-
notice to an accused that he is exposed to other than standard sentencing.”

Adams, 788 S.W .2d at 559.         The court also stated that the statement of

applicable enhancement or mitigating factors mentioned in Tennessee Code

Annotated section 40-35-202(b), “may be required at the trial court’s discretion

after conviction.” Adams, 788 S.W .2d at 558. It is clear that the trial court did not

err in not requiring the State to file a statement of enhancement factors.



      This issue is without merit.



                                         II.



      The Defendant also argues that the trial court erred in applying the three

enhancement factors found in Tennessee Code Annotated section 40-35-114(6),

(7), and (10).



      The State concedes on appeal that enhancem ent factor (6), that the

personal injuries inflicted upon the victim was particularly great, does not apply,

and we agree.



      W hen an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

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 circum stances." State v. Ashby, 823 S.W .2d

166, 169 (Tenn. 1991).

                                         -4-
      In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

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

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



      W e first address enhancement factor (7), that the offense involved a victim

and was committed to gratify the defendant’s desire for pleasure or excitement.

Tenn. Code Ann. § 40-35-114(7). It has been held that this enhancement factor

can be applied to a defendant who comm its rape because it is not inherent in the

offense. State v. Adams, 864 S.W .2d 31, 35 (Tenn. 1993). It was also held in

Adams that the State has the burden in rape cases to prove that the rape was

sexually motivated. Adams, 864 S.W .2d at 35. However, in State v. Kissinger,

922 S.W.2d 482 (Tenn. 1996), our supreme court again addressed the

application of enhancem ent factor (7) to rape cases. Kissinger stated:




                                        -5-
             The focus of factor (7) is on defendant’s motive for the
      commission of the offense. The motive need not be singular for the
      factor to apply, so long as defendant is motivated by defendant’s
      desire for pleasure or excitement. Thus, factor (7) could be used to
      enhance a defendant’s sentence who raped an ex-lover out of spite
      and hatred and for the purpose of satisfying sexual urges. Clearly,
      the state need not prove a singular motive for the offense to rely on
      factor (7) in the appropriate case.


Kissinger, 922 S.W.2d at 490 (emphasis in original).



      W e note that a transcript of the guilty plea hearing was not included in the

record on appeal.    From a review of the sentencing hearing transcript, it is

obvious that the trial court, in sentencing the Defendant, relied upon proof it had

heard at the guilty plea hearing. Much of this was discussed by the lawyers.

Pertinent facts argued by the State at the sentencing hearing by reference to

facts which were proven at the guilty plea hearing, were unchallenged by the

Defendant. It is the duty of the party who seeks appellate review to prepare a

record which conveys a fair, accurate, and complete account of what transpired

with respect to the issues forming the basis of the appeal. State v. Ballard, 855

S.W.2d 557, 560 (Tenn. 1993). When there is less than an adequate record on

appeal, this court must presume that the trial court’s rulings were supported by

sufficient evidence. State v. Oody, 823 S.W .2d 554, 559 (Tenn. Crim. App.

1991). In the case sub judice, the record on appeal contains no evidence, as that

term is normally defined, regarding sentencing factors, other than the pre-

sentence report. The transcript reflects statements of counsel as to proof brought

out during the guilty plea hearing.     We will address the issues raised by

Defendant, but with a presumption that the proof heard by the trial court at the

guilty plea hearing is as was reflected in the statements of counsel and the court

at the sentencing hearing.

                                        -6-
      In the case sub judice, the trial court was aware of the victim’s statement

read by a police officer at the guilty plea hearing. The victim’s statement related

that the Defendant told the victim, while she was performing oral sex on him, that

“she’d better satisfy him or that he would slit her throat.” The record also reflects

that on the night of the offense, the Defendant entered the victim’s house by

coming through a window while armed with a knife. The victim was asleep. He

performed three separate acts of sexual penetration. During the course of the

aggravated rape, the Defendant held a knife to the victim’s neck and breast, and

threatened to cut off her breast if she did not cooperate. He also told the victim

that he was aware she had two little girls, that he knew they were in the home,

and if she screamed and woke them up, he would cut her throat.



      In Manning v. State, 883 S.W .2d 635 (Tenn. Crim. App. 1994), this court

held that where the Defendant made the statement, “do it like you do it to your

man,” and fondled and kissed the victim’s breasts, factor (7) applied. Manning,

883 S.W.2d at 640. W e find that the case sub judice is similar and the statement

by Defendant that “she’d better satisfy him” meets the State’s burden of proof

establishing that the Defendant committed the offense, at least in part, to gratify

his desire for pleasure or excitement.



      Regarding application of factor (10), that the Defendant had no hesitation

about committing a crime when the risk to human life was high, we note that this

court has previously held that our aggravated rape statute as used in Defendant’s

case only requires that the defendant be “armed” with the weapon. Neither the

statute nor the indictment in Defendant’s case required that the weapon be

actually employed in the commission of the aggravated rape. Manning, 883

                                         -7-
S.W.2d at 640 (Tenn. Crim. App. 1994). In Manning, the defendant pressed a

knife into the victim’s side throughout the commission of aggravated rape and

aggravated kidnapping. Our court held that application of factor (10) was proper

as the use of the weapon in that case involved a greater risk of harm than that

required by the standards of the aggravated offenses. Id. See also State v.

Richard J. Crossman, No. 01C01-9311-CR-00394, Wilson County (Tenn. Crim.

App., Nashville, filed October 6, 1994), perm. to appeal denied, (Tenn. 1995).



      As stated above, in situations where a defendant is charged as Defendant

was in this case, the aggravated rape statute only requires that the defendant be

“armed with a weapon.” Tenn. Code Ann. § 39-13-502(a)(1) (Supp. 1996). The

use and employment of the weapon by Defendant in this case demonstrates a

culpability “distinct from and appreciably greater than that incident to the offense

for which he was convicted.” See State v. Jones, 883 S.W .2d 597, 603 (Tenn.

1994). Therefore, use of enhancement factor (10) was proper.



      W e note the State argues that factor (10) applies because the victim’s

children were present in the house during the commission of the crime. In State

v. Makoka, 885 S.W .2d 366 (Tenn. Crim. App. 1994), this court stated that

enhancing factor (10) could be used, even though it was inherent in the offense,

when other people were present and were in danger. Makoka, 855 S.W .2d at

373. In Makoka, the defendant was firing a gun in front of a police station when

there was a shift change. Therefore, there were many others present who could

have been injured or killed by the gun.




                                        -8-
      In State v. Hill, 885 S.W .2d 357 (Tenn. Crim. App. 1994), the defendant

was convicted of aggravated assault for an incident where he attacked the victim

with a straight razor. There was a large crowd gathered in the vicinity of the

defendant and the victim.      This court stated that factor (10) did not apply

because, “Hill’s wrath and vindictiveness was directed solely at Johnson [the

victim]. The record is devoid of any evidence that individuals in close proximity

were in danger of being injured.” Hill, 885 S.W .2d at 363.



      The same can be said for the case sub judice. W hile the victim’s children

were present in the house, they were not in the room where the incident

occurred. There is no evidence that the children were in imminent danger from

the Defendant.



      Enhancement factors (7) and (10) were correctly applied when the trial

court was determining the Defendant’s sentence. Enhancement factor (6) does

not apply in this case.



                                         III.



      The Defendant’s final argument is that the trial court erred in not

considering the Defendant’s lack of a criminal record as a mitigating factor under

Tennessee Code Annotated section 40-35-113(13). It has been held that the

lack of a criminal record can be a mitigating factor. State v. Dykes, 803 S.W.2d

250, 258 (Tenn. Crim. App. 1990). However, we conclude that it was appropriate

for the trial court to refuse to apply this as a mitigating factor. The Defendant was

convicted of public intoxication in 1993. While in the Navy, he was accused of

                                         -9-
molesting his child which lead to a suicide attempt and counseling.             The

Defendant was discharged from the Navy on a less than honorable discharge,

but claims he was never court martialed. The Defendant may not have a criminal

record, but it is clear that he has a criminal history. W e find that the trial court

was correct in not applying this mitigating factor. See State v. Anthony Angelo

Scales, No. 01C01-9310-CR-00353, Davidson County (Tenn. Crim. App.,

Nashville, filed July 28, 1994) perm. to appeal denied, (Tenn. 1994).



      The Defendant pled guilty to the offense of aggravated rape. As a Range

I offender the sentencing range for this crime is fifteen (15) to twenty-five (25)

years. The trial court sentenced the Defendant to twenty-five (25) years. W e

have found that one of the three enhancement factors applied by the trial court

does not apply. Therefore, there are two enhancement factors and no mitigating

factors. We find that the trial court’s sentence of twenty-five years (25) is

supported by the two enhancem ent factors.



      The sentence imposed by the trial court is affirmed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge

                                        -10-
