         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                     On Remand from the Tennessee Supreme Court

                   STATE OF TENNESSEE v. ANTHONY RIGGS

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 13,665    Stella Hargrove, Judge



                         No. M2007-02322-RM-CD - Filed May 7, 2008


Following a jury trial, Defendant, Anthony Riggs, was found guilty of the offense of rape, a Class
B felony, and the trial court sentenced Defendant to twelve years for his conviction. On appeal,
Defendant argued that the length of the sentence was excessive and contrary to Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Upon review, this Court
found that the trial court improperly applied two of the five enhancement factors it found applicable.
Nonetheless, relying on State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) (“Gomez I”), we concluded
that the remaining three enhancement factors were sufficient to enhance Defendant’s sentence to
twelve years and affirmed his sentence. State v. Anthony Riggs, No. M2005-02105-CCA-R3-CD,
2007 WL 49553 (Tenn. Crim. App., at Nashville, January 8, 2007). Defendant filed an application
for permission to appeal pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. The
Tennessee Supreme Court granted Defendant’s application for the limited purpose of remanding to
this Court for reconsideration of the length of Defendant’s sentence in light of State v. Gomez, 239
S.W.3d 733 (Tenn. 2007) (“Gomez II”). After a thorough review of the record, we modify
Defendant’s sentence for rape from twelve years to eleven years.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
J., joined. JAMES CURWOOD WITT , JR., filed a separate concurring opinion.

Claudia S. Jack, District Public Defender; and R.H. Stovall, Jr., Assistant Public Defender, Pulaski,
Tennessee, for the appellant, Anthony Riggs.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General,
T. Michel Bottoms, District Attorney General; and Douglas A. Dicus, Assistant District Attorney
General, for the appellee, the State of Tennessee.
                                           OPINION

I. Background

       The facts supporting Defendant’s conviction of rape were previously summarized by this
Court as follows:

               The victim in this case, C.R., was thirteen years old at the time of the
       incident. (The minor victim will be referred to by her initials.) C.R. was spending
       the night with her friend Hope, who was Defendant’s daughter, at Defendant’s house.
       Defendant gave Hope and C.R. Natural Light beer. C.R. drank the beer mixed with
       Mountain Dew. The three played a drinking game known as “quarters.” The two
       girls then went to lie down on a bed. While they were lying down, Defendant’s ex-
       wife came to the house to argue about a bill. After the ex-wife left, Defendant and
       the two girls sat on the couch. Hope stated that she was tired and wanted to go to
       bed. C.R. remained on the couch to finish watching a movie they had begun
       watching earlier.

               Defendant and C.R. were on the couch watching the movie between 3:00 and
       4:00 a.m. Defendant brought a pillow and blanket for C.R. As they were watching
       the movie, Defendant removed C.R.’s sock and began rubbing her leg. He pulled
       C.R. close to him and tried to pull her shorts off, but they would not come off. He
       then unbuttoned the shorts, removed them, and threw them on the floor. Defendant
       inserted his finger in C.R.’s vagina “over and over for like three or four minutes,”
       according to the victim. Defendant then pulled off C.R’s boxer shorts, went to a
       shelf on her side of the couch and retrieved a condom. He put the condom on and
       proceeded to penetrate her vagina with his penis while lying on top of her. C.R. told
       Defendant to stop but he told her to, “stop acting like a bitch and take it like a
       woman.” Defendant then flipped C.R. over onto her knees and penetrated her vagina
       from behind, while saying, “[Y]ou know you want it.”

               When he finished, Defendant told C.R. to go to the bathroom. When she
       refused, Defendant went to the bathroom and left her alone. Defendant came out of
       the bathroom and threatened to kill C.R. if she ever told anyone what happened.

              C.R. was afraid to leave at 3:00 or 4:00 a.m., so she went to sleep. When she
       awoke the next morning, she and Hope went for a walk, and C.R. told Hope that
       Defendant had raped her. C.R. then walked to another friend’s house and called her
       mother. Her mother came to get her and immediately took C.R. to the hospital.

             The doctor at the hospital performed an examination. He found that C.R.’s
       hymen had been torn. C.R. also had an abrasion on the inside of her thigh. He opined



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       that C.R. had had sexual intercourse within twelve to twenty-four hours before the
       examination.

Anthony Riggs, 2007 WL 49553, at *1.

        Following a sentencing hearing, the trial court considered five enhancement factors in
determining the length of Defendant’s sentence: factor (1), that Defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range; factor (4), that the victim was particularly vulnerable because of age or physical disability;
factor (7), that the offense was committed to gratify the defendant’s desire for pleasure or
excitement; factor (8), that Defendant had a previous history of unwillingness to comply with the
conditions of a sentence including release in the community; and factor (14), that Defendant abused
a position of private trust. T.C.A. § 40-35-114(1), (4), (7), (8), and (14) (Supp. 2005).

        At the time that Defendant was sentenced, the General Assembly had made substantial
changes to the Tennessee Criminal Sentencing Reform Act of 1989, the “Sentencing Act,” in order
for our sentencing scheme not to violate a defendant’s Sixth Amendment right to a jury trial as
outlined in Blakely v. Washington. 2005 Tenn. Pub. Acts ch. 353; see Cunningham v. California,
549 U.S. ___, 127 S. Ct. 856, n.18, 166 L. Ed. 2d 856 (2007) (implicitly noting that Tennessee’s
sentencing scheme, as amended, is now in compliance with the Sixth Amendment concerns
regarding judge sentencing). The amendments to the Sentencing Act were effective June 7, 2005,
prior to Defendant’s sentencing hearing on July 18, 2005. However, defendants who are sentenced
after the effective date of the amended Sentencing Act for offenses committed prior to June 7, 2005,
are required to execute a waiver of the defendant’s ex post facto protections in order to be sentenced
under the amended Sentencing Act. Because Defendant did not execute such a waiver, his offense
is governed by prior law. See T.C.A. § 40-35-114 (2005), Sentencing Commission Comments.

        After a review of the record on appeal, we concluded that the trial court improperly
considered enhancement factors (4) and (7) in determining the length of Defendant’s sentence.
However, this Court also determined “that the remaining three have ample support.” Relying on
Gomez I, we concluded that the three remaining enhancement factors, and no mitigating factors, were
sufficient to enhance Defendant’s sentence to twelve years. Anthony Riggs, 2007 WL 49553, at *6.

       At the time of Defendant’s sentencing hearing, our supreme court had concluded that
Tennessee’s sentencing structure prior to the 2005 amendments to the Sentencing Act did not violate
a defendant’s Sixth Amendment rights. Gomez I, 163 S.W.3d at 661. However, the United States
Supreme Court vacated the Tennessee Supreme Court’s decision in Gomez I on February 2, 2007,
and remanded the case for reconsideration in light of Cunningham. On October 9, 2007, while
Defendant’s Rule 11 application for permission to appeal was pending, our supreme court issued its
decision in Gomez II.

       In Gomez II, our supreme court held that:



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       [a]pplying Cunningham, we conclude that the [Tennessee Criminal Sentencing
       Reform Act of 1989] failed to satisfy the Sixth Amendment insofar as it allowed a
       presumptive sentence to be enhanced based on judicially determined facts. That is,
       to the extent the Reform Act permitted enhancement based on judicially determined
       facts other than the fact of a prior conviction, it violated the Sixth Amendment [right
       to a jury trial] as interpreted by the Supreme Court in Apprendi, Blakely, and
       Cunningham.

Gomez II, 239 S.W.3d at 740.

        The trial court’s application of enhancement factor (1), which was upheld on appeal, was
based, in part, on Defendant’s prior misdemeanor convictions, which consisted of four convictions
for “worthless checks,” an undesignated traffic offense in Tennessee, and a DUI in Kentucky. Under
Gomez II, consideration of Defendant’s prior convictions in determining the length of his sentence
“does not offend the Sixth Amendment.” Id. The trial court, however, also applied enhancement
factor (1) on a finding that Defendant had engaged in prior criminal behavior. See T.C.A. § 40-35-
114(1) (providing for enhancement of a sentence if a defendant has either prior criminal convictions
or criminal behavior).

         At the sentencing hearing, Gloria Huckaby, Defendant’s ex-wife, testified that Defendant had
previously physically abused her on several occasions. Ms. Huckaby described situations during
which Defendant had broken her hand and her ribs. On cross-examination, Ms. Huckaby
acknowledged that it was “probably not” always Defendant who started the fights, and that
Defendant was also injured during some of the altercations. On cross-examination, Defendant
testified that he had previously engaged in physical altercations with Ms. Huckaby and had broken
Ms. Huckaby’s hand on one occasion. Defendant stated, however, that “it was a give and take”
situation, that is, that Ms. Huckaby hurt him, and he hurt her back. Defendant explained that Ms.
Huckaby was “not beyond picking something up and bashing [one] in the head with it.”

        Blakely provides that the “statutory maximum” sentence is the maximum sentence a judge
may impose based on facts reflected in the jury’s verdict, the defendant’s prior convictions, or facts
“admitted by the defendant.” Blakely, 542 U.S. at 304. Although the United States Supreme Court
did not elaborate on what constitutes an admission, our supreme court has implicitly found that an
admission of prior criminal behavior by a defendant during the sentencing process may support
consideration of enhancement factor (1) without running afoul of Sixth Amendment concerns.
Gomez II, 239 S.W.3d at 742 (noting that the proof at the sentencing hearing established that
Defendant Londono had previous convictions . . . and also admitted to prior illegal drug use).

         Various panels of this Court have also concluded that a defendant’s unequivocal admission,
at trial or during the sentencing process, may support application of a statutory enhancement factor
under Blakely. See State v. Jerry W. Tullos, No. E2006-01833-CCA-R3-CD, 2007 WL 2377354,
at *11 (Tenn. Crim. App., at Nashville, Aug. 21, 2007), perm. to appeal denied (Tenn. Feb. 4, 2008)
(concluding that the defendant’s history of criminal convictions and his admission in the presentence


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report that he had previously shot at another man and pulled a knife on the victim’s brother
supported application of enhancement factor (1) without violating Blakely); State v. Mohamed
Medhet Karim, No. M2006-00619-CCA-R3-CD, 2007 WL 1435390, at *5 (Tenn. Crim. App., at
Nashville, May 16, 2007), perm. to appeal denied (Tenn. Aug. 13, 2007) (concluding that the trial
court properly considered the defendant’s use of a deadly weapon in enhancing his sentence for his
second degree murder conviction because the defendant testified both at trial and at the sentencing
hearing that he possessed a knife during the altercation); State v. Christopher Franklin Waddell, No.
M2004-00126-CCA-R3-CD, 2005 WL 176495, at *6 (Tenn. Crim. App., at Nashville, Jan. 27,
2005), perm. to appeal denied (Tenn. May 3, 2005) (concluding that the defendant’s testimony at
the sentencing hearing that he had committed additional crimes while he was on probation supported
consideration of enhancement factor ([8])).

        At the least, we believe that an admission sufficient to support the enhancement of a
defendant’s sentence under Blakely must rest upon a defendant’s unequivocal testimony, at trial or
at the sentencing hearing, or a factual acknowledgment in the presentence report when the
presentence report is introduced as an exhibit at the sentencing hearing without objection. However,
ambiguity in a defendant’s testimony at trial or during the sentencing hearing, or a challenge asserted
by the defendant to the factual basis offered in support of the enhancement factor reflected in a
presentence report, at a minimum, requires the trial court to make an additional finding as to
credibility. If the trial court “‘must find an additional fact to impose the longer term, the Sixth
Amendment requirement is not satisfied.’” Gomez II, 239 S.W.3d at 740 (quoting Cunningham, 127
S. Ct. at 869).

         In the case sub judice, Defendant admitted that he had engaged in physical altercations with
Ms. Huckaby, and on one occasion, he broke Ms. Huckaby’s hand. Defendant’s testimony, however,
implied that he acted in self-defense on some occasions, and it is not clear whether one of those
occasions was the altercation which resulted in the breaking of Ms. Huckaby’s hand, or even whether
the injury to Ms. Huckaby was accidental. The trial court made a credibility finding, and found by
a preponderance of the evidence that Defendant’s testimony lacked candor. Based on this record,
it is not clear whether Defendant’s acknowledgment of prior criminal behavior rose to the level of
an admission as contemplated by Blakely necessary to support enhancement of his sentence on this
basis.

        Nonetheless, Defendant has prior misdemeanor convictions which support consideration of
enhancement factor (1). Gomez II, 239 S.W.3d at 740. Defendant also testified during the
sentencing hearing that he has had “probation revocations.” The presentence report reflects that
Defendant had his probation revoked in July 2003, and again in December 2003. The presentence
report was introduced as an exhibit at trial without objection. Thus, we conclude that consideration
of enhancement factor (8), that Defendant has a previous history of unwillingness to comply with
the conditions of a sentence including release in the community, is appropriate. See id. § 40-35-
114(8), Gomez II, 239 S.W.3d at 742. The trial court’s application of enhancement factor (14) based
on a finding that Defendant violated a position of private trust to commit the offense, however, was



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neither submitted to a jury nor admitted by Defendant. Therefore, the rule in Gomez II precludes
application of this factor.

        As a Range I, standard offender, Defendant is subject to a sentence of between eight and
twelve years for his conviction of rape, a Class B felony. Id. § 40-35-112(a)(2). In calculating the
sentence for a Class B felony conviction, the presumptive sentence is the minimum of the range, or
eight years, if there are no enhancement factors present. Id. § 40-35-210(c); Gomez II, 239 S.W.3d
at 740. Based on the presence of these two enhancement factors, we modify Defendant’s sentence
from twelve years to eleven years.

                                         CONCLUSION

       After review, we modify Defendant’s sentence for rape from twelve years to eleven years,
and remand to the trial court for entry of an amended judgment reflecting a sentence of eleven years.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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