         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  September 9, 2003 Session

                      STATE OF TENNESSEE v. HOLLY FANT

                       Appeal from the Circuit Court for Gibson County
                          No. 16030    Clayburn Peeples, II, Judge



                   No. W2003-00211-CCA-R3-CD - Filed January 14, 2004


GARY R. WADE, P.J., concurring.

        I agree that the defendant’s sentence should be affirmed. In my view, however, it was error
for the trial court to apply enhancement factor (6), that the defendant treated the victim with
exceptional cruelty. See Tenn. Code Ann. § 40-35-114(6). Application of this factor requires a
finding of cruelty over and above that inherently attendant to the crime for which the defendant is
convicted. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). In other words, such
evidence must “denote[ ] the infliction of pain or suffering for its own sake or from the gratification
derived therefrom, and not merely pain or suffering inflicted as the means of accomplishing the
crime charged.” State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD (Tenn. Crim. App., at
Jackson, Mar. 14, 2000). Enhancement factor (6) has typically been applied in situations where the
victim was tortured or abused. See State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991).
This court has upheld the application of this factor based on proof of extensive physical abuse or
torture, see State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995), as well as proof of
psychological abuse or torture, see State v. Thomas Lebron Mills and Carl Franklin Mills, No. 936
(Tenn. Crim. App., at Knoxville, Dec. 19, 1985) (holding that acts of mental cruelty, by themselves,
can be as vicious and scarring as acts of physical cruelty). Here, there is no evidence that the
defendant tortured or abused the victim or that she inflicted pain and suffering greater than that
necessary to complete the offense. Rather, after shooting the victim, the defendant dialed 911 and
waited with him until emergency assistance arrived. Nevertheless, I concur with the majority that
the four-year sentence, one year above the minimum, was warranted.



                                               _______________________________________
                                               GARY R. WADE, PRESIDING JUDGE
