             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                            JANUARY 1997 SESSION
                                                        December 16, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,                )    No. 03C01-9602-CC-00076
                                   )
      Appellee                     )
                                   )    SULLIVAN COUNTY
V.                                 )
                                   )    HON. FRANK L. SLAUGHTER,
FREDDIE JOE DAY, JR.,              )    JUDGE
                                   )
      Appellant.                   )    (Especially Aggravated Kidnapping;
                                   )     Aggravated Assault)
                                   )


For the Appellant:                      For the Appellee:

Stephen M. Wallace                      John Knox Walkup
District Public Defender                Attorney General and Reporter

Terry L. Jordan                         Clinton J. Morgan
Assistant Public Defender               Assistant Attorney General
P.O. Box 839                            450 James Robertson Parkway
Blountville, TN 37617                   Nashville, TN 37243-0493


                                        H. Greeley Wells, Jr.
                                        District Attorney General

                                        Rebecca H. Davenport
                                        Assistant District Attorney
                                        P.O. Box 526
                                        Blountville, TN 37617




OPINION FILED: ___________________

AFFIRMED AS MODIFIED

WILLIAM M. BARKER, JUDGE
                                         OPINION

       The appellant, Freddie Joe Day, Jr., appeals as of right his convictions and

sentences in the Sullivan County Criminal Court. After a jury trial, the appellant was

convicted of especially aggravated kidnapping and aggravated assault and was

sentenced as a Range I offender to twenty five (25) years for the kidnapping offense

and six (6) years for aggravated assault. The sentences were ordered to run

concurrently for a total effective sentence of twenty five years.

       Appellant raises three issues on appeal: (1) whether the evidence was

sufficient to sustain his convictions; (2) whether the trial court erred in denying his

motion to dismiss the aggravated assault charge; and (3) whether the trial court erred

in sentencing him to the maximum sentence on each offense. After a careful review

of the record and applicable law, we affirm the appellant’s convictions but modify his

sentence for aggravated assault.

                               FACTUAL BACKGROUND

       Around 8:00 p.m. on the evening of January 7, 1995, Carolyn Wilson left her

home in Church Hill and was traveling to Colonial Heights to visit friends. En route,

she passed a mini-van driven by a friend of hers traveling in the opposite direction.

Soon thereafter, she noticed a vehicle behind her with its headlights repeatedly

flashing from bright to dim. Believing this to be the friend she had just seen, she

pulled over to the side of the road at the entrance to the Eastman Chemical facility in

Kingsport. She then exited her car and walked toward the vehicle which had pulled in

behind her. Appellant, the driver of the car, had stepped from his vehicle. Wilson

realized that she did not know the driver and stopped walking. Appellant asked her if

she knew how to get to Duffield, Virginia. Wilson replied that she knew nothing about

Virginia and turned to get back in her car.

       Wilson testified that as she turned away, appellant grabbed her arm and pulled

her toward his car. She screamed, “Let me go,” and tried to push him away. They



                                              2
struggled and she told appellant to take her money and her car, but pleaded with him

to let her go. Appellant responded by saying he had a gun and would shoot her if she

did not get in his car. When Wilson continued to resist, the appellant pulled out a

small silver handgun saying, “You see this? I’ll shoot you.” Wilson testified that she

was not really afraid that he would shoot her, so she continued to resist. The

appellant then struck her on the back of the head, apparently with the gun. Wilson

testified at that point she became afraid and believed he would shoot her. Appellant,

thereafter, forced Wilson into the driver’s side door of his car and allowed her to crawl

to the passenger’s seat. He then sped away, driving through the Eastman facility by

security headquarters and making a U-turn in order to get back onto a main

thoroughfare.

       Wilson testified that appellant drove on Eastman Road and then turned right

onto Fort Henry Drive, which took them into Colonial Heights. He asked her to try

opening the passenger door. When Wilson replied that it would not open, appellant

said, “I know, I’ve jammed it.” While driving, appellant would point the gun at her head

and threaten to shoot her if she did not calm down. He also told her that he had

robbed a bank. When they reached Colonial Heights, appellant stopped to buy gas

at a Texaco station. Appellant ordered Wilson to get out of the car, pump $10 of gas,

and avoid any attempts to escape. He threatened to shoot her and everyone in the

store if she acted against his wishes. Wilson complied with appellant’s instructions

while he entered the store and paid for the gas. He came back to the car, opened the

passenger door for Wilson, returned to the driver’s side, and drove away.

       They again traveled on Fort Henry Drive, but in the opposite direction toward

Kingsport. Appellant told Wilson that if she would take him to the mall, he would let

her go because he knew how to get home from there. Wilson directed him

accordingly, but he drove past the Fort Henry Mall and continued driving through

Kingsport. He then told Wilson he would take her to Duffield, Virginia and call a taxi to

take her home. During the drive, he asked Wilson about her head injury and whether

                                            3
she would live. When she replied, “No,” appellant then said, “Well, if you’re not going

to live then I’m going to go ahead and shoot you anyway.” Wilson told him she would

be fine.

       Security officers at the Eastman facility had witnessed appellant and Wilson

struggling at the scene. Although they were unable to stop the appellant as he sped

through the facility, they contacted the Kingsport Police. Officers investigated

Wilson’s car, which remained on the roadside and discovered her personal

identification. They also obtained a description of appellant’s car from the security

personnel. All law enforcement officials were notified about the incident and advised

to look for appellant’s car, a gray 1980's model Oldsmobile with Virginia license plates.

       Wilson stated that they drove from Center Street onto Lynn Garden Drive,

which leads into Virginia. Appellant then noticed that a police car was behind them

and in response to its flashing blue lights, he pulled over. He instructed Wilson that he

did not have a gun and that he did not want her to say anything. He then placed the

gun in the car’s console between the driver and passenger seats. An officer

approached the car and asked Wilson her name. When it matched the identification

found in the abandoned car, the officer asked appellant to step out of the car. Another

officer arrived and Wilson, hysterical by that time, jumped from the car and informed

him that appellant had a gun. A .38 caliber Rossi revolver containing three live rounds

was recovered from the car’s console. Police officers then arrested the appellant.

       Wilson was taken to the hospital where she received three stitches for her head

injury. Pictures at trial depicted blood smeared on the head rest of the passenger’s

seat in appellant’s car. In addition, Wilson’s jacket, introduced at trial, had a

significant amount of blood on it. Wilson sustained no other injuries.

       The appellant’s wife testified that she and appellant had owned the gray

Oldsmobile since 1993 and that the passenger door was broken since the time of the

purchase. According to her testimony, the door could be opened from the outside, but

not from the inside. In addition, she stated that the revolver, found in the car, had

                                             4
been placed in the car on January 6, 1995, and had not been removed. Finally, she

stated that since their marriage, appellant had only been to Kingsport on one

occasion.1

        Based upon the foregoing evidence, appellant was convicted of especially

aggravated kidnapping and aggravated assault.

                                                ANALYSIS

        The appellant challenges the sufficiency of the evidence supporting both

convictions. This issue is without merit.

        An appellant challenging the sufficiency of the evidence has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned

by the trier of fact. This Court will not disturb a verdict of guilt for lack of sufficient

evidence unless the facts contained in the record and any inferences which may be

drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find

the defendant guilty beyond a reasonable doubt. See State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). We must consider the evidence in the light most favorable to

the prosecution in determining whether “any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt.” See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

        We do not reweigh or re-evaluate the evidence and are required to afford the

State the strongest legitimate view of the proof contained in the record, as well as all

reasonable and legitimate inferences which may be drawn therefrom. See State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). We further note that a guilty verdict


        1
          The appellant did not testify at trial. However, the defense called appellant’s wife and two other
potential witnesses. The defense called an investigator from the public defender’s office to testify about
pictures of the gas station where appellant and Wilson stopped. The trial court did not permit the
investigator to testify because it found that the basis of his testimony was inadmissible. Additionally, the
defense called the detective investigating the crime to testify about appellant’s state of mind after he was
arrested and confined at the local jail. The trial court ruled that the detective was not com petent to testify
about appellant’s state of mind because he lacked the requisite expertise. Furthermore , the detective
had already testified on cross-examination that appellant was nervous and scared when he was in the
jail. The trial co urt found that any add itional testim ony from the detec tive would b e cum ulative.
Therefore, the trial court ruled that the detective could not testify for the defense. Those rulings are not
cha llenge d on a ppe al.

                                                      5
rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

       In this case, the appellant was indicted for the especially aggravated

kidnapping and aggravated assault of Carolyn Wilson by use of a deadly weapon.

See Tenn. Code Ann. §§ 39-13-305(a)(1) and 39-13-102(a) (1991). On the

kidnapping charge, the State was required to prove beyond a reasonable doubt that

the appellant, with the use of a deadly weapon, knowingly removed or confined the

victim unlawfully so as to substantially interfere with her liberty. There was

overwhelming proof of those elements at trial.

       The victim, Wilson, testified that appellant grabbed her arm as she tried to

return to her car. He refused to release her arm and threatened her with a weapon if

she would not get into his car. He then shoved her into the car and kept her captive

while he drove around the city. Other witnesses corroborated Wilson’s testimony.

Two security officers from the Eastman facility testified that they witnessed a struggle

between appellant and Wilson and that appellant used force to place W ilson into his

car. That evidence is sufficient to show that appellant knowingly confined Wilson and

substantially interfered with her liberty. Moreover, during the course of the kidnapping,

appellant possessed a gun, revealed it to Wilson, and threatened to shoot her with it.

That evidence is sufficient to support a conviction of especially aggravated kidnapping.

       The second count of the indictment alleged that appellant “did unlawfully,

intentionally, knowingly, or recklessly and feloniously cause bodily injury to Carolyn

Wilson by striking and cutting her head with a deadly weapon . . .” See Tenn. Code

Ann. § 39-13-102(a) (1991). Those elements of aggravated assault were also proved

at trial. After struggling with Wilson, appellant struck her on the back of the head with

his gun, causing an injury which bled extensively and required three stitches. From

those facts, a rational trier of fact could find that the appellant knowingly or

intentionally caused bodily injury to Wilson by use of a deadly weapon. The jury’s

guilty verdict on both counts was amply supported by evidence at trial.

                                             6
       The appellant, however, argues that the proof was inadequate to show that he

used a deadly weapon. He relies upon the testimony from the Eastman security

guards who stated that they did not observe him wielding a gun. He further points to

Wilson’s testimony in which she stated that she did not actually see the gun strike her

head. This argument is without merit.

       Wilson testified that, during the initial struggle, appellant specifically drew her

attention to the gun in his hand. He then threatened to shoot her with it. As she

turned her head away from the appellant, he struck her with a blunt object, causing an

injury which required three stitches. Although Wilson did not see the gun strike her, it

was reasonable for the jury to infer that appellant struck Wilson with that weapon. The

appellant suggests that the injury could have been inflicted by a ring or a set of keys.

However, such a finding would have been pure speculation absent any proof.

       Moreover, the security guards testified that they were between 250 and 300

feet from the appellant and Wilson when they witnessed the struggle. Considering

their distance and the fact that the struggle occurred at eight o’clock in the evening,

their vision was more obscured than Wilson’s, who was in close proximity to the

appellant. The jury’s verdict credits Wilson’s testimony and we find appellant’s

argument unpersuasive.

                                             II.

       The appellant next contends that the trial court erred in denying his motion to

dismiss the aggravated assault charge.

       This issue is without merit.

       Appellant’s argument relies upon the principles announced by our supreme

court in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In Anthony, the court held

that due process of law will not permit a kidnapping conviction where the detention of

the victim is essentially incidental to the commission of another felony, such as




                                             7
robbery or rape.2 See id at 306. The court recognized that under the statutory

definition of kidnapping, evidence proving an offense of robbery or rape inherently

proves the elements of kidnapping. However, as reasoned by the court, the

legislature did not intend for defendants convicted of robbery or rape to also be

convicted and punished for the incidental kidnapping. Under that analysis, the

supreme court concluded that the kidnapping convictions could not stand.

         In contrast to Anthony, the appellant in this case does not contest the validity of

his kidnapping conviction, but instead contends that his conviction of aggravated

assault cannot stand. He asserts that the aggravated assault was committed during

the course of the kidnapping and was “essentially incidental” to the kidnapping.

Although we acknowledge that the rule from Anthony is not limited to cases involving

robbery and kidnapping3, we find that Anthony does not apply in appellant’s case.

         The appellant was charged and convicted of especially aggravated kidnapping

and aggravated assault, in violation of Tennessee Code Annotated sections 39-13-

305 and 102 (1991). The Tennessee Code defines especially aggravated kidnapping

as false imprisonment4 “accomplished with a deadly weapon or by display of any

article used or fashioned to lead the victim to reasonably believe it to be a deadly

weapon.” See Tenn. Code Ann. § 39-13-305 (a)(1). Aggravated assault is defined as


         2
          The Anthony decision is premised solely upon due proce ss grounds and the c ourt there
emp hasized th e inadeq uate natu re of a do uble jeop ardy analysis in such c ases. See 817 S.W.2d at
303-304. We note, however, that the supreme court recently formulated a more stringent analysis for
double je opardy pu rposes . See State v. Denton, 938 S.W .2d 373, 381(Tenn. 1996 ). We have therefore
conducted the double jeopardy analysis outlined by our supreme court in Denton, although not raised as
an issue on appeal. We conclude that the statutory offenses charged and the factual circumstances
giving rise to the o ffen ses do no t violate appe llant’s prote ction again st do uble j eop ardy. H owe ver, th is
does not preclude a poss ible due process violation under Anthony.

         3
          See State v. R oberts , 943 S.W.2d 403 (Tenn. Crim. App. 1996) (finding the due process
concerns of Anthony applicab le to convic tions for bu rglary and a ttemp ted theft); State v. Gregory, 862
S.W .2d 574, 579 (Tenn. Crim . App. 1993) (upholding trial court’s application of Anthony although armed
robbery w as not invo lved); State v. Timothy Adams, aka Skinny Rock, No. 02C01-9512-CC-00376
(Tenn. Crim. App., at Jackson, January 2, 1997) (applying double jeopardy analysis and Anthony
analysis to c onvictions for attem pted first de gree m urder an d aggra vated as sault); State v. Cornelius T.
Luster, No. 02C01-9201-CR-00019 (Tenn. Crim. App., at Jackson, November 25, 1992) (applying
Anthony to convictions for attempted aggravated rape and aggravated assault and dismissing
aggravated assault as esse ntially incidental to the rape).

         4
          False im prisonm ent is define d as kn owingly rem oving or c onfining th e victim s o as to
substa ntially interfere with h is or her liberty. See Tenn. Code A nn. § 39-13-302(a) (1991).

                                                         8
intentionally, knowingly, or recklessly causing bodily injury to the victim by use of a

deadly weapon. See Tenn. Code Ann. §§ 39-13-101 -- 102 (1)(B).

       Our task under Anthony is to apply those statutes narrowly, “so as to make

[their] reach fundamentally fair and to protect the due process rights of every citizen,

even those charged with robbery, rape, or the like.” See 817 S.W.2d 299, 306 (Tenn.

1991). In this case, we find that the application of both the especially aggravated

kidnapping statute and the aggravated assault statute does not offend the principles of

due process announced in Anthony. The offenses of especially aggravated

kidnapping and aggravated assault are defined separately in the Tennessee Code,

and each offense requires proof of distinct elements that the other does not.

Furthermore, unlike the robbery and kidnapping offenses in Anthony, neither offense

in this case inherently proves the statutory elements of the other.

       Moreover, we find from the record that the appellant had technically completed

the especially aggravated kidnapping before he assaulted the victim with his gun. The

evidence shows that the appellant grabbed Wilson by her arm and threatened to shoot

her with his wielded gun if she did not accompany him to his car. That act alone

substantially interfered with Wilson’s liberty and was sufficient to constitute especially

aggravated kidnapping. As the struggle continued, the appellant kept Wilson from

returning to her car before he struck her on the head with his gun.

       From that evidence, we find that appellant’s aggravated assault was not

essentially incidental to the kidnapping offense within the meaning of Anthony. The

evidence necessary to prove especially aggravated kidnapping did not inherently

prove aggravated assault. Furthermore, under the particular facts of this case,

appellant’s aggravated assault subjected the victim to a “‘substantially increased risk

of harm over and above that necessarily present in the crime of [especially aggravated

kidnapping] itself.’” See Anthony 817 S.W.2d at 307. We therefore conclude that the

appellant was properly convicted and sentenced on the charges of especially

aggravated kidnapping and aggravated assault.

                                             9
                                           III.

       The appellant next challenges the length of his sentences. He contends that

the maximum sentences within Range I are unwarranted by the factual circumstances

of both offenses. W e find that appellant’s twenty-five year sentence for especially

aggravated kidnapping is supported by the record; however, we modify his sentence

for the aggravated assault conviction.

       When a defendant complains of his or her sentence, we must conduct a de

novo review of the record. See Tenn. Code Ann. § 40-35-401(d) (1990). The

sentence imposed by the trial court is accompanied by a presumption of correctness

and the appealing party carries the burden of showing that the sentence is improper.

See Tenn. Code Ann. § 40-35-401(Sentencing Commission Comments). This

presumption, however, is conditioned upon an affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and

circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       A portion of the Sentencing Reform Act of 1989, codified at Tennessee Code

Annotated section 40-35-210, mandates the court’s consideration of the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;
       (2) [t]he presentence report; (3) [t]he principles of sentencing and
       arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

See Tenn. Code Ann. § 40-35-210 (Supp. 1996).

       At the time of appellant’s offense, the minimum sentence within the set range

was the presumptive sentence for a Class A felony. If there were enhancing and

mitigating factors, the trial court was required to start at the minimum sentence in that

range and enhance the sentence as appropriate for the enhancement factors and

then reduce the sentence as appropriate for the mitigating factors. If there were no




                                           10
mitigating factors, the court could set the sentence above the minimum in that range

but still within the range. See Tenn. Code Ann. § 40-35-210(d)-(e) (Supp. 1996).

        The trial court sentenced appellant, as a Range I offender, to the maximum

twenty five (25) years for especially aggravated kidnapping and the maximum six (6)

years for aggravated assault.5 The trial court found the following enhancement

factors: (1) The appellant has a previous history of criminal behavior; (5) The

appellant treated a victim with exceptional cruelty during the commission of the

offense; (10) The appellant had no hesitation about committing a crime when the risk

to human life was high; and (12) The appellant willfully inflicted bodily injury upon

another person during the commission of the felony. See Tenn. Code Ann. § 40-35-

114 (1), (5), (10), (12) (Supp. 1996). The trial court declined to find any mitigating

factors despite the submission of eleven character references, evidence that appellant

has a very low IQ, and evidence that he was intoxicated at the time of the offenses.

        The appellant first challenges the application of enhancer (1) to his convictions

of especially aggravated kidnapping and aggravated assault. Tenn. Code Ann. § 40-

35-114(1). He contends that the use of enhancer (1) was improper because his prior

criminal history consists solely of his juvenile record. Our supreme court, however,

has held that trial courts may consider juvenile records when evaluating a defendant’s

history of criminal behavior. See State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). It

serves no societal interest, nor does it protect the public to deny the sentencing

authority the benefit of considering the appellant’s past history of criminal activity

merely because it occurred when he was a juvenile. See id.

        The record shows that appellant committed grand larceny and breaking and

entering on two separate occasions. Those charges were combined for purposes of




        5
          For Ra nge I stan dard off enders , a Class A felony ca rries a se ntencing range o f fifteen (15 ) to
twenty five (25 ) years. See Tenn. Code Ann. § 40-35-112 (a)(1) (Supp. 1996). Class C felonies, for
Rang e I offend ers, carr y a possib le senten ce of thre e (3) to six (6 ) years. See Tenn. Code Ann. § 40-35-
112 (a)( 3).

                                                      11
punishment. That evidence demonstrates a previous history of criminal behavior and

supports the application of enhancer (1).

       The appellant also challenges the application of the “exceptional cruelty”

enhancer. Tenn. Code Ann. § 40-35-114(5) (Supp. 1996). He argues that cruelty is

inherent in the offenses of especially aggravated kidnapping and aggravated assault

and that no specific facts support the application of that enhancer. We disagree with

both contentions.

       Initially, we acknowledge that the trial court should have stated on the record

the particular actions of the appellant, apart from the elements of the offenses, which

constitute exceptional cruelty. See State v. Chad Douglas Poole, No. 02S01-9607-

CC-00064 (Tenn. Crim App., at Jackson, May 12, 1997). Nevertheless, our de novo

review of the record reveals that there was sufficient evidence to support the trial

court’s finding that appellant treated the victim with exceptional cruelty during the

commission of the offenses.

       As the trial court found, appellant struck Wilson over the head with a gun,

causing an injury and extensive bleeding. He used violent force to confine her in his

car and he tormented her by repeatedly threatening to take her life. We also find

additional evidence to support a finding of cruelty. The appellant apparently realized

that Wilson was bleeding profusely, as demonstrated by the bloody seat and

significant blood on her jacket, and he inquired as to whether she would live. When

she stated “No,” the appellant callously replied that he should go ahead and shoot her

if she were going to die anyway. The appellant showed absolutely no remorse or

concern over Wilson’s well being despite her head injury. Moreover, his feigned

concern and callous remarks were extraordinarily heartless.

       The appellant, nevertheless, argues that the “exceptional cruelty” enhancer is

not applicable in this case because it is an essential element of especially aggravated

kidnapping and aggravated assault. We disagree. First, the facts necessary to



                                            12
demonstrate “exceptional cruelty” are not inherent in every especially aggravated

kidnapping, nor are they elements of that offense. See Tenn. Code Ann. § 39-13-305

(1991). The evidence of appellant’s cruel treatment of the victim went over and above

that necessary to prove the kidnapping charge. Therefore, the application of

enhancer (5) is not barred on that basis.

       As applied to the conviction of aggravated assault, we also find that the use of

enhancer (5) was proper. “Exceptional cruelty” is not an essential element of

aggravated assault. See Tenn. Code Ann. § 39-13-102 (1991). Moreover, proof of

assault with a deadly weapon, which is an element of aggravated assault, is not the

only evidence sufficient to support the application of that enhancer. See State v.

Poole, 945 S.W.2d 93, 98 (Tenn. 1997). In this case, we find that the appellant

exhibited cruelty over and above the act of striking Wilson with a gun. The record

reflects that he forced Wilson to remain with him in his car where he repeatedly

pointed his gun at her and threatened to end her life. Despite her head injury and

extensive bleeding, the appellant did not allow her to seek medical attention. Instead,

he indicated a willingness to shoot her if she were going to die anyway. From that

evidence, we conclude that the trial court properly applied enhancer (5) to increase

the appellant’s sentences.

       The appellant next contends that the trial court erred in applying the “risk to

human life” enhancer. Tenn. Code Ann. § 40-35-114(10) (Supp. 1996). He first

argues that when especially aggravated kidnapping is accomplished with a deadly

weapon, enhancer (10) is inherent in that offense. We agree. This Court has

previously held that a risk to human life is inherent in the offense of especially

aggravated kidnapping. See State v. Timothy L. Laster, No. 03C01-9507-CR-00194

(Tenn. Crim. App., at Knoxville, July 9, 1996), per. app. denied (Tenn. 1996); State v.

Ronald Collier, No. 02C01-9402-CC-00029 (Tenn. Crim. App., at Jackson, October 5,

1994). Although not a designated element of the offense, any enhancement factor



                                            13
which is inherent in the offense itself may not be used to increase the defendant’s

sentence. See State v. Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994),

per. app. denied (Tenn. 1995) (citations omitted). Therefore, enhancer (10) was

incorrectly applied to the appellant’s kidnapping conviction.

         The appellant also asserts that enhancer (10) was improperly applied to his

aggravated assault conviction. The aggravated assault in this case consisted of bodily

injury inflicted upon Wilson with a deadly weapon, to wit: a gun. See Tenn. Code Ann.

§ 39-13-102 (a) (1991). Although we fully appreciate the extent of W ilson’s injuries,

we find that the appellant’s aggravated assault with a deadly weapon inherently

included a high risk to human life.6 There is no evidence to demonstrate the existence

of a high risk to human life other than the essential elements of the charged offenses.

Therefore, we conclude that enhancer (10) should not have been applied to the

assault conviction in this case. See State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim.

App. 1994), per. app. denied (Tenn. 1994).7

         The appellant next challenges the application of enhancer (12) pertaining to the

willful infliction of bodily injury during the commission of the felony. Tenn. Code Ann.

§ 40-35-114(12) (Supp. 1996). He contends that enhancer (12) is inapplicable as an

element of the offenses.

         First, we find that especially aggravated kidnapping, accomplished with the use

of a deadly weapon, does not necessarily entail the infliction of willful bodily injury on a

victim. A kidnapper may simply use the presence of a deadly weapon to coerce and


         6
           See State v. Hill, 885 S.W .2d 357, 363 (Tenn. Crim . App. 1994) per. app. denied (Tenn. 1994)
(holding tha t enhanc er (10) is inh erent in the offens e of agg ravated assau lt). See also State v. Ro nald
Collier, No. 0 2C0 1-94 02-C C-0 002 9 (T enn . Crim . App ., at Ja cks on, O ct. 5, 1 994 ) (hold ing th at es pec ially
aggravated kidnapping, involving the use of a deadly weapon, inherently included a high risk to human
life); State v. Roger Stewart, No. 01-C-019012-CR-00342 (Tenn. Crim. App., at Nashville, Aug. 30,
1991) (h olding that a rme d robbe ry inherently includ ed a high risk to hu man life).

         7
          Our holding is limited to the facts of this case. We do not conclude that enhancer (10) is never
applicable to aggravated assault with a deadly weapon. To the contrary, there are cases where the
application of enhancer (10) would be proper. For example, if the appellant’s aggravated assault had
plac ed pe ople, othe r than the vic tim, a t a high risk o f injur y, then enha nce r (10) wou ld app ly to his
aggrav ated as sault con viction. See State v. Sim s, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995) (holding
that enhancer (10) was applicable to aggravated robbery where the defendant placed other potential
victims at risk of inju ry).

                                                           14
detain the victim without ever inflicting bodily injury. Thus, the appellant’s conduct in

this case supports the application of enhancer (12) to his kidnapping conviction. He

acted beyond the mere statutory elements of especially aggravated kidnapping and

intentionally struck the victim over the head with his weapon, causing bodily injury.

       We find, however, that enhancer (12) should not have been applied to the

aggravated assault conviction. This Court has previously held that enhancer (12) is

already included in the offense of aggravated assault. See State v. Tony Von

Carruthers, No. 02C01-9102-CR-00019 (Tenn. Crim. App., at Jackson, Aug. 7, 1991).

In this case, the bodily injury inflicted upon Wilson was an essential element of

aggravated assault. Therefore, the application of enhancer (12) was not proper.

       The appellant next contends that the trial court erred in not finding any

mitigating factors. We disagree. Appellant has failed to demonstrate how his age or

his relatively low intelligence level mitigate his criminal actions. Moreover, we decline

to find that his alleged intoxication was relevant in mitigating his culpability. The trial

court did not err in refusing to apply mitigating factors.

       In summary, we find that the trial court erred in applying enhancer (10) to the

kidnapping conviction and enhancers (10) and (12) to the aggravated assault

conviction. Accordingly, we conclude that the six-year sentence for aggravated

assault should be modified to four (4) years. However, regarding the twenty-five year

sentence for especially aggravated kidnapping, we cannot say that the maximum

sentence is unjustified. Appellant committed a particularly violent crime without any

provocation and has failed to demonstrate any remorse. He terrorized a young

woman, inflicted bodily injury upon her, held her captive, and threatened her life. Due

to the unusual circumstances surrounding the crime and the application of three

enhancement factors, the twenty-five year sentence for especially aggravated

kidnapping is affirmed.




                                             15
      Based upon the foregoing, appellant’s convictions and his twenty-five (25) year

sentence for especially aggravated kidnapping are affirmed. Appellant’s sentence for

aggravated assault, however, is reduced to four (4) years.




                                               ______________________________
                                               WILLIAM M. BARKER, JUDGE




CONCUR:


____________________________
JOSEPH M. TIPTON, JUDGE


____________________________
CURWOOD WITT, JUDGE




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