         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  November 21, 2000 Session

                      STATE OF TENNESSEE v. SEAN IMFELD

                   Direct Appeal from the Criminal Court for Knox County
                          No. 66960    Mary Beth Leibowitz, Judge



                                  No. E2000-00094-CCA-R3-CD
                                        February 27, 2001



Joseph M. Tipton, J., concurring.



       I concur in the results reached in the majority opinion. However, I respectfully disagree with
the opinion’s use of enhancement factors (3) and (16) for the aggravated assaults in this case.

        Pursuant to Tenn. Code Ann. § 40-35-114(3), a trial court may enhance a sentence if “[t]he
offense involved more than (1) victim.” I recognize that this court has previously enhanced
aggravated assault sentences under factor (3) based upon injuries received by persons not the subject
of the defendant’s convictions. See State v. Norris, 874 S.W.2d 590, 601 (Tenn. Crim. App. 1993).
However, I think the issue needs to be revisited. In each of the aggravated assault counts in the
present case, the indictment charged the defendant with recklessly causing bodily injury to a named
person by use of a deadly weapon. See Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(2)(A). The
essential element of the assault is that a particular person received bodily injury. It is not contingent
upon any specific conduct by the defendant that may place others in the zone of danger. As such,
each offense necessarily involved only one victim. With factor (3) referring to the offense, there
cannot be multiple victims for any one count referring to a particular person.

        I have a similar view regarding factor (16), which provides for enhancement if “[t]he crime
was committed under circumstances under which the potential for bodily injury to a victim was
great.” Tenn. Code Ann. § 40-35-114(16). Again, the factor refers to the crime and a victim. We
have conflicting cases. See State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995) (holding that
the factor (16) applies when persons other than the victim of the crime committed are in the realm
of danger); State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995) (limiting factor (16)
to the person who was the victim of the crime charged); State v. John Bradley Lowery, No. E1998-
00034-CCA-R3-CD, Knox County (Tenn. Crim. App. June 12, 2000), applic. filed (Tenn. Aug. 14,
2000) (majority of panel relying on Bingham to limit application of factor (16)); State v. Terrence
T. Wiggins, No. 01C01-9806-CR-00241, Davidson County (Tenn. Crim. App. July 1, 1999)
(majority of panel holding that Sims allows factor (16) to apply to persons in the zone of danger);
State v. Charles Justin Osborne, No. 01C01-9806-CC-00246, Perry County (Tenn. Crim. App. May
12, 1999) (relying on Bingham to limit application of factor (16)). However, I believe the better
reasoned view supports Bingham.

       However, I do not believe that the sentences for the aggravated assaults should change. The
culpability sought to be addressed by the trial court by applying factors (3) and (16) still exists
through factor (10). In other words, under the facts, reducing the number of enhancement factors
does not reduce the level of the defendant’s culpability. See State v. Hayes, 899 S.W.2d 175, 186
(Tenn. Crim. App. 1995). Thus, the sentences should stand.



                                                     ___________________________________
                                                     JOSEPH M. TIPTON, JUDGE




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