         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 15, 2003

         STATE OF TENNESSEE v. MICHAEL DWIGHT STEWART
                     and JAMES HENRY BROWN

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2001-B-1193     Steve Dozier, Judge


                   No. M2002-02592-CCA-R3-CD - Filed February 24, 2004



THOMAS T. WOODALL, J., concurring.

         I concur in the result reached by the majority, and the reasoning used in the majority opinion
on all issues except its conclusion that enhancement factor (7), that Defendant Brown was motivated
by a desire to satisfy his pleasure or excitement, is inapplicable.

        While proof of this enhancement factor was not as strong as evidence of its application in
other cases, I still feel it was adequately proven. At the sentencing hearing, Defendant Brown
admitted that he and his co-defendant never discussed raping the victim and that “[t]his wasn’t - -
this wasn’t planned. Never meant to hurt [the rape victim].” The Defendant admitted that he was
unable to penetrate the victim on his first attempt, and denied penetrating her or attempting to
penetrate her with anything other than his penis. He admitted that he told the victim to “bend over
like she was a football player” after ordering her to take off her clothes for the second time. All of
this was in addition to the Defendant asking the victim “did it feel good.”

        I conclude that the record adequately supports the trial court’s application of enhancement
factor (7).


                                                       ____________________________________
                                                       THOMAS T. WOODALL, JUDGE
