             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                              AT KNOXVILLE
                                                                 September 29, 1999

                            AUGUST 1999 SESSION                  Cecil Crowson, Jr.
                                                                Appellate Court Clerk




STATE OF TENNESSEE,            )
                               )
             Appellee,         )    No. 03C01-9808-CC-00303
                               )
                               )    Jefferson County
v.                             )
                               )    Honorable Rex Henry Ogle, Judge
                               )
JAMES JASON GILBERT,           )    (Rape of a child)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

Robert W. Scott                     Paul G. Summers
Assistant Public Defender           Attorney General of Tennessee
Post Office Box 416                        and
Dandridge, TN 37725                 Marvin S. Blair, Jr.
                                    Assistant Attorney General of Tennessee
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    Alfred C. Schmutzer, Jr.
                                    District Attorney General
                                            and
                                    Steven Hawkins
                                    Assistant District Attorney
                                    Sevier County Courthouse, Suite 301
                                    Sevierville, TN 37862




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



                The defendant, James Jason Gilbert, appeals as of right from his

conviction for rape of a child, a Class A felony, following a bench trial in the Jefferson

County Circuit Court. He was sentenced to twenty-five years confinement in the

custody of the Department of Correction. On appeal, the defendant contends that the

trial court erred in sentencing. We affirm the sentence imposed by the trial court.



                This case arises from the twenty-year-old defendant’s rape of his five-

year-old male cousin. Testimony at trial shows that while the defendant was babysitting

the victim, the defendant told the victim to bend over, penetrated the victim’s anus with

his penis, and ejaculated. The evidence shows that the victim suffered from a torn

anus and rectal bleeding.



                At the sentencing hearing, the defendant’s mother testified that the

defendant had never been in trouble before the rape. She testified that as a child, the

defendant was sexually abused by his uncle.



                A presentence report was admitted into evidence. The report states that

the defendant is five feet, eleven inches tall and weighs two hundred ninety-five

pounds. In the report, the defendant states as follows:

                I was babysitting my cousin. During that time I had my
                blackout spells. It seemed to be 2 to 3 hours but it must have
                been a few minutes. I woke up hearing [the victim] scream,
                “Stop stop it hurts.” My mom and dad came home and asked
                me what happened. My cousin told them what happened but
                I wouldn’t speak to them and ran off to the woods.

According to the report, the defendant has no previous criminal history. He graduated

from high school and has a work history. The defendant reported that he was abused

by his uncle.




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              In reaching its twenty-five-year sentence, the trial court applied the

following enhancement factors, as listed in Tenn. Code Ann. § 40-35-114:

              (4) A victim of the offense was particularly vulnerable because
              of age or physical or mental disability . . . .;

              (7) The offense involved a victim and was committed to gratify
              the defendant’s desire for pleasure or excitement; [and]

              (15) The defendant abused a position of public or private trust
              ....

In mitigation, the trial court found that the defendant had mental problems. See Tenn.

Code Ann. § 40-35-113(8). The record indicates that the trial court gave great weight to

enhancement factor (15) and little weight to mitigating factor (8).



              The defendant contends that the trial court erred by imposing a sentence

of twenty-five years. With respect to the enhancement factors, he argues that the trial

court should not have applied factors (4) and (7) and that the trial court gave too much

weight to factor (15). With respect to the mitigating factors, he argues that the trial

court should have found that his conduct neither caused nor threatened serious bodily

injury and that because of his youth, the defendant lacked substantial judgment. See

Tenn. Code Ann. §§ 40-35-113(1), (6). He also argues that the trial court should have

given more weight to the defendant’s mental problems in mitigation. The state

contends that the trial court properly sentenced the defendant.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-

401(d). As the Sentencing Commission Comments to this section note, the burden is

now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing




                                             3
Act, we may not disturb the sentence even if a different result were preferred. State v.

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



              However, “the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).



              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              The sentence to be imposed by the trial court for a Class A felony is

presumptively the midpoint in the range when there are no enhancement or mitigating

factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to

increase the sentence within the range based upon the existence of enhancement

factors and then reduce the sentence as appropriate for any mitigating factors. Tenn.

Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the



                                             4
trial court's discretion so long as it complies with the purposes and principles of the

1989 Sentencing Act, and its findings are adequately supported by the record. Tenn.

Code Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at

237; see Ashby, 823 S.W.2d at 169.



                              I. ENHANCEMENT FACTORS

              The defendant contends that the trial court erred by applying

enhancement factor (4), the victim was particularly vulnerable because of his age. At

the time of the rape, the victim was five years old and the defendant was twenty years

old. Initially, we note that the state contends that it did not file notice of intent to use

this factor and that the trial court did not apply this factor. However, although the trial

court did not state the specific statutory numbers of the enhancement factors it found, it

stated as follows:

              The age of this young man made him completely defenseless.
              The defendant in this case is a large, heavy set man, obviously
              very much stronger and more powerful . . . . [I]n this case,
              especially this case, this was a little five year old boy, had no
              way to escape, none whatsoever, from this defendant.

The record shows that the trial court did apply enhancement factor (4).



              With respect to factor (4), our supreme court has stated that it “relates

more to the natural physical and mental limitations of the victim than merely to the

victim’s age.” State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The court held that

particular vulnerability is shown when, because of age or physical or mental condition,

the victim is “incapable of resisting, summoning help, or testifying against the

perpetrator.” Id. In Adams, the court concluded that the state failed to prove that the

victims, who were ages three, four, and twelve, were particularly vulnerable to the

defendant, who was twenty years old. We believe the same is true in the present case.

Thus, the trial court erred by applying factor (4).




                                               5
               Next, the defendant contends that the trial court erred by applying

enhancement factor (7), the offense was committed to gratify the defendant’s desire for

pleasure or excitement. The record shows that the trial court applied this factor

because the defendant had an erection and ejaculated. Our supreme court has held

that ejaculation, alone, is inadequate to support the application of factor (7). State v.

Kissinger, 922 S.W.2d 482, 489-90 (Tenn. 1996). However, in the present case, the

defendant provided a statement to the authorities in which he said that he got an

erection when the victim sat on his knee and that he then raped the victim. We believe

that evidence of the defendant’s sexual arousal immediately before committing the

rape, in addition to evidence of the defendant’s ejaculation, supports a finding that the

defendant raped the victim to gratify the defendant’s desire for pleasure or excitement.



               The defendant also contends that the trial court erred by placing great

weight on enhancement factor (15), the defendant’s abuse of private trust. If the trial

court followed the sentencing purposes and principles, the weight to be afforded an

existing factor is left to the trial court’s discretion, and we hold that the trial court’s

findings with respect to factor (15) are adequately supported by the record. Tenn. Code

Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see

Ashby, 823 S.W.2d at 169.



               From our de novo review, we also determine that sentencing

enhancement factor (16) applies in that the defendant committed the offense “under

circumstances under which the potential for bodily injury to a victim was great . . . .”

Tenn. Code Ann. § 40-35-14(16). Needless to say, the actual injuries suffered by the

victim support the use of this factor.




                                                6
                                II. MITIGATING FACTORS

              The defendant contends that the trial court erred by rejecting factor (1),

the defendant’s conduct neither caused nor threatened serious bodily injury. He argues

that the state failed to prove that the victim’s injuries were serious. The state contends

that the record supports the application of the factor.



              Serious bodily injury is defined as bodily injury which involves the

following:

              (A) A substantial risk of death;

              (B) Protracted unconsciousness;

              (C) Extreme physical pain;

              (D) Protracted or obvious disfigurement;

              (E) Protracted loss or substantial impairment of a bodily
              member, organ, or mental faculty.

In the present case, considering that the victim was a small child and the defendant

was a large adult, that the penetration caused the victim’s anus to tear and caused

rectal bleeding, and that the victim screamed for the defendant to stop, the record

supports a finding that the penetration threatened extreme physical pain.



              Next, the defendant contends that the trial court erred by not considering

the defendant’s youth as a mitigating factor. See Tenn. Code Ann. § 40-35-113(6).

The defendant was twenty years old at the time of the crime. The trial court stated that

factor (6) was inapplicable because “his statement and so forth indicates to the Court

that he knew what he was doing . . . .” We note that, in addition, mental evaluations of

the defendant show that he was articulate and that he knew what he did was wrong.

He graduated from high school and held several jobs. The defendant has not shown

that the trial court erred by denying this factor.




                                               7
               Finally, the defendant contends that the trial court erred by giving little

weight to the defendant’s mental problems as a mitigating factor. Again, we note that if

the trial court follows the sentencing purposes and principles, the weight to be afforded

to an existing factor is left to the trial court’s discretion. We hold that the trial court’s

findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210,

Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d

at 169.



               Although we conclude that the trial court should not have applied

enhancement factor (4), we have also determined that enhancement factor (16)

applies. Thus, the defendant remains with three enhancement factors and one

mitigating factor. Under these circumstances, we hold that the record adequately

supports the twenty-five-year sentence imposed by the trial court.



               In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.




                                                    __________________________
                                                    Joseph M. Tipton, Judge

CONCUR:


__________________________
John Everett W illiams, Judge


__________________________
Alan E. Glenn, Judge




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