       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE           FILED
                     JANUARY SESSION, 1999         March 2, 1999

                                               Cecil W. Crowson
STATE OF TENNESSEE,    )                     Appellate Court Clerk
                              C.C.A. NO. 01C01-9808-CC-00326
                       )
    Appellee,          )
                       )
                       )      LAWRENCE COUNTY
VS.                    )
                       )      HON . WILL IAM R. C AIN
BUFORD “DOCK” JESTER , )      JUDGE
                       )
    Appe llant.        )      (Sentencing)


             ON APPEAL FROM THE JUDGMENT OF THE
              CIRCUIT COURT OF LAWRENCE COUNTY


FOR THE APPELLANT:            FOR THE APPELLEE:

JERRY C. COLLEY               JOHN KNOX WALKUP
P.O. Box 1476                 Attorney General and Reporter
Columbia, TN 38402-1476
                              CLINTON J. MORGAN
PAUL B. PLANT                 Assistant Attorney General
P.O. Box 399                  425 Fifth Avenu e North
Lawrenceburg, TN 38464-0399   Nashville, TN 37243-0493

                              DON SCHWENDIMANN
                              District Attorney Pro Tem
                              P.O. Box 366
                              Hohenwald, TN 38462



OPINION FILED ________________________

SENTENCE MODIFIED; REMANDED

DAVID H. WELLES, JUDGE
                                  OPINION

      A jury found the Defendant guilty of aggravated burglary and rape.1 He

was sentenced to concurrent terms of three years for the b urglary and ten ye ars

for the rape. In this appeal, the Defendant argues that the trial judge erred by

sentencing him to ten years for the rape conviction. We modify the judgment and

remand to the trial court for further proceedings.



      W e will briefly summarize the facts as prese nted a t trial. Th e victim in this

case was thirty years old when the offense occurred. She was employed as a

live-in housekeeper for an elderly man w ho was appare ntly termina lly ill with

cancer. The victim was born to Amis h pare nts an d had been raised by them in

an Amish community. She attended Amis h sch ools u ntil she was fou rteen years

old. She left the Amish community and stopped living in the Amish faith when

she was twenty-eight years old.



      The Defendant was a long-time neighb or and a cquain tance o f the ma n with

whom the victim was employed and in whose house she lived. The Defendant

was sixty-nine ye ars old at th e time of th e offense . The victim testified that one

morning, while her employer had gone to receive a dialysis treatment, the

Defendant cam e to the hous e and aske d if her e mplo yer wa s there . She s aid

that when she told the Defendant that he was not there, the Defendant initiated

a conversation with her. She stated that the Defendant offered her some money

but that she declined. She stated that he put a $ 100 b ill in her hand and he then

ran his hand up under her skirt and panties and put his finger in her vagina. She



      1
          Tenn. Code Ann. §§ 39-14-403; 39-13-503.

                                          -2-
said that she d id not resis t him because she was afraid of him. She said that

after about five minutes the Defendant took her over to the couch, where he took

off her skirt and panties. She stated he then put his fing er in her vagina again.

She also said the Defendant pulled her blouse u p and p ut “his mo uth at m y left

breast.” She testified that the incident on the couch lasted about ten minutes and

the De fendan t never rem oved an y of his clothin g. She said that the Defendant

then left, and as soon as he left, she went and called a friend. Eventually, the

police were summoned, and the victim was exa mined by a nurse-practitioner,

who testified that the victim’s hymen was still intact but that there was some

redness and swelling in her genital area.



       The Defendant testified that he went to the victim’s house on the morning

in question to inquire a bout he r emplo yer. He sa id the victim told him th at her

employer was not there and that they had a brief conversation during which the

victim told him she was no longer Amish and that she had a boyfriend. He sa id

they talked about people that they both knew and a few other matters, and he

then left. He te stified th at their entire conversation took place with him standing

in the doorway with the door open. He denied any physic al contact between

them and denied that he sexually assau lted the victim in any wa y.



       The jury found the D efendant gu ilty of aggravated burg lary, not guilty of

one count of rape accomplished by the use of force or coercion, and guilty of one

count of rape by sexual penetration “accomplished without the consent of the

victim [when] the Defendant [knew] or [had] reason to know at the time of the

penetra tion that the victim did n ot conse nt.” 2




       2
           Tenn. Code Ann. § 39-13-503(a)(2).

                                           -3-
      Following a sentencing hearing, the trial judge sentenced the Defendant

to the minimum sentence of three years for the aggravated burglary and to the

mid-range sentence of ten years for the rape, with the sentences to be served

conc urren tly in the De partme nt of Corre ction. It is from the sentence ordered by

the trial court that the Defendant appeals.



      When an accused challenges the length, range, o r mann er 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 co urt are co rrect. Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      When conducting a de novo review of a sentence, this Court must

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

the presentence report; (c) the princ iples of sen tencing a nd argu ments as to

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

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

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W .2d 859 , 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



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

procedure , that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported


                                         -4-
by the record, then we may not modify the sentence even if we wou ld have

preferred a different res ult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



       The presen tence report reflects that at the time of sentencing, the

Defendant was seventy years old, had been married for forty-nine years, and had

one grown child. He had little formal education, having comp leted only th e sixth

grade in 193 8. He in dicate d that h e quit s choo l mainly to work full-time in a

farming operation to help support his family.           The Defen dant served for

appro ximate ly twenty years as a deputy sheriff in Lawrence County while also

farming. He su ffered a stroke while on the job as a deputy sheriff in 1980 and

retired shortly thereafter. He had at leas t one a ddition al strok e and was p artially

paralyzed on his left side.      He also suffered from “chronic obstructive lung

disease ,” rheumatoid arthritis, and “prostatic hypertrophy,” which has required

interm ittent urinary catheterization. The Defendant denied any past or current

use of either alcohol or illegal drugs . His only previous criminal history was a

conviction for hunting deer with illegal ammunition in 1972. At the sentencing

hearing, the Defendant acknowledged that he had been convicted and, although

he staunchly maintained that he did not sexually assault or rape the victim, he

stated that he would b e able to abide by any restrictions or requirements that

were placed on him if he were granted probation.



       In sentencing the Defendant for his rape conviction, the trial judge noted

that the law required him to start with the minimum sentence of eight years and

then to “balance the enhancement and mitigating factors.” See Tenn. Code Ann.

§ 40-35-2 10. The court stated that the record might “possibly” support a finding

that the offe nse invo lved a victim and wa s com mitted to gratify the De fenda nt’s


                                          -5-
desire for pleasu re or excite ment. See id. § 40-35-114(7). As our supreme court

has held, the desire for pleasure or excitement m ay not be pres umed from every

act of rape. State v. Kissinger, 922 S.W .2d 482, 490 (T enn. 19 96); State v.

Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In sentencing for a conviction of rape,

the State has the burden of proving that the rape was committed to gratify the

Defe ndan t’s desire for p leasure or excitem ent. Kissinger, 922 S.W.2d at 490;

Adams, 864 S.W.2d at 35. In this case, the court stated that this enhancement

factor was “possibly” applicable, but it is quite evident from the record that the

trial judge ga ve this facto r little, if any, weight in e nhan cing th e Def enda nt’s

sentence beyond the minimum of eight years.



      The trial judge clearly enhanced the Defendant’s sentence above the

minimum based upon th e court’s find ing that the victim of the offense was

particu larly vulner able because of age or physica l or men tal disability. See Tenn.

Code Ann. § 40-35-114(4). The judge stated, “the question in min d is whether

we are go ing to eig ht year s or are we go ing to n ine or te n year s, princ ipally

because of the sing le enha ncem ent factor th at this victim w as extr eme ly

vulner able within the meaning of the law?” The trial court further stated that the

main focus of the court’s finding and the primary reason the sentence was

elevated beyond the minimum sentence was the extr eme vulner ability of th is

particular victim.



      The narrow issue b efore u s is wh ether th e reco rd in this case su pports the

trial judge ’s findin g that th e victim was “particularly vulnerable because of age or

physical or mental disability.” There is no proof in the re cord th at the vic tim was

particu larly vulnerable because of her age or because of any physical disa bility.

The judge’s application of this enhancement factor was based upon the proof that


                                          -6-
the victim had grown up in and spent most of her life in the “sheltered

environment of the Amish community.” He noted that the victim “obviously had

not a history of any se xual activity, an d that is in ke eping w ith the knowledge of

the Amish lifestyle which [the Defe ndant] knew.” The only basis for upholding the

application of this enhancement factor is to find that the victim’s sexual

inexperience or backgrou nd of being raise d in an Am ish comm unity and in the

Amish faith renders her “mentally disabled” as contemplated by the legislature.

We decline to so hold. T hus, we must conclude that the trial judge erred when

he enhanced the Defe ndan t’s sentence above the minimum of eight years based

upon the victim ’s particular vulnerability becau se of men tal disability.



      W e modify the Defendant’s sentence to the statutorily mandated

presum ptive term of eight years. The concurrent sentence of three years for

aggravated burglary is affirmed. This c ase is rema nded to the trial cou rt for a

determination of the manner of service of the Defendant’s sentences.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE




                                         -7-
CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                              -8-
