        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE              FILED
                       DECEMB ER SESSION, 1997          March 26, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,           )    C.C.A. NO. 03C01-9607-CC-00279
                              )
      Appellee,               )
                              )
                              )    ANDERSON COUNTY
VS.                           )
                              )    HON. JAMES B. SCOTT, JR.
GREGORY SCOTT TYREE,          )    JUDGE
                              )
      Appe llant.             )    (Aggravated Rape)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF ANDERSON COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

NANCY MEYER                        JOHN KNOX WALKUP
Office of the Public Defender      Attorney General and Reporter
101 South Main Street, Suite 450
Clinton, TN 37716                  PETER M. COUGHLAN
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   JAMES M. RAMSEY
                                   District Attorney General

                                   JAN HICKS
                                   Assistant District Attorney General
                                   127 Anderson County Courthouse
                                   100 S. Main Street
                                   Clinton, TN 37716



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

       The Defen dant, G regory S cott Tyree, appeals as of right pursu ant to R ule

3, Tennessee Rules of Appellate Procedure. He was convicted by a Anderson

Coun ty jury of aggravated rape and sentenced as a standard, Range I offender

to twenty-five years imp risonmen t. He argues three issues in this appeal: (1)

That the trial court erred by introducing evidence of the content of a 1-900

telephone call made from the victim’s home; (2) that the trial court misapplied

sentence enhancement factors and erred in sentencing the Defend ant to twenty-

five years; and (3) tha t the trial court erred b y refus ing to g ive pre trial jail credit.

We affirm the ju dgme nt of the trial co urt.



       In Oak Ridge, Tennessee, at approximately 3:00 a.m. on August 20, 1994,

Marie Davis , age 7 9, was awak e, had been in her ya rd “wo rking” on her pear

trees and then had gone back inside her house. The Defendant had been out

with friends to the Am-Vets in Harriman, Tennessee, and drank some beer. At

around 2:30, the group left and some wanted to go to a Krystal Restaurant for

hamburgers, but the De fenda nt dec lined. H e ask ed to b e drop ped o ff at his

moth er’s house. Shortly thereafter, the Defendant knocked on Mrs. Davis’ door

and asked to use the telepho ne. He had b een livin g next d oor to h er with h is

mother since May, 1994.           They had used her telephone on a number of

occasions becau se they d id not hav e their ow n telepho ne servic e. Mrs. D avis

was reluctant to let the Defendant in her house that late at night, but he told her

that it would only take a few minutes. The Defendant stated that his mother was

sick an d nee ded to go to th e hos pital.



                                             -2-
       Mrs. Davis said that the Defendant went to the phone in the living room and

made a call. The Defendant was just s tanding there an d Mrs. D avis told him to

hurry up bec ause s he wan ted to go to bed. Suddenly, the Defendant turned and

grabbed her blouse and bra and tore them off. The Defendant hit her in the head

with his fist and choked her. He threw Mrs. Davis down against the couch. The

Defendant threaten ed “I’m g oing to kill you.” The Defendant went to the kitchen

and turned off the light. Mrs. Davis attempted to run and the Defendant hit her

in the head a nd she was blee ding. He grabbed her neck and choked her. The

Defendant sucked the victim’s breast, threatened to chew it off, and bit her

breast. Mrs. D avis the n felt the Defe ndan t’s pen is in her vagina. The Defendant

later admitted to penetrating the victim with his fingers. Mrs. Davis recalled that

the Defendant was wearing black shorts with white buttons. The victim was

wearing large, baggy shorts when the rape occurred and, afterwards, there was

blood on her und erwear. Mrs. Davis blacked out at some point and awakened

in the morning. She called her friend, Adele Haun, and her brother-in-law, James

Hicks to come over. Mr. Hicks called the police. After the police arrived, the

Defendant came to the victim’s yard and asked what h ad ha ppen ed. A b aseb all

cap was found under the coffee table and the Defendant later admitted that it was

his.



       Dr. Anthony DiFranco examined the victim at the Oak Ridge Methodist

Medical Center.     The exam revealed that Mrs. Davis had bruising of th e

conjunctiva of her e yes, br uising on the left side of her face, and a bruise that

went along her neck. She also had a ruptured tympanic membrane, or eardrum,

and blood and drainage was visible. These injuries were consistent with her

claims of being hit about the head and choked. There were small bite marks on

                                        -3-
the left nipp le. Mrs. Davis also h ad a b ruise o n the b ack o f her left hand. A

pelvic exam ination show ed vag inal tea rs from rabic n oire an d sm all intravaginal

tears on both side of the vaginal walls.         Thos e tears w ere con sistent with

penetration and could result from penile penetration or penetration by fingers.

Swabs taken revealed no presence of semen.



       The Defendant submitted a written statement on August 20, denying that

he was at the victim’s home at the time the crime was comm itted. The next da y,

the De fendan t subm itted a state ment im plicating him self in the crim e:

   I, Grego ry Scott Tyree, remember going into Marie Davis’ home to use the
   phone. After using the phone, I struck Davis with my hand and only my
   hand. I do remember touching her sexually with my hand. I’m very sorry
   for hurting her and would never kill her. I would like some help for the
   problems that I now, that I, I know I have.


The Defendant was charged with one count of aggravated rape.                    He was

convicted and sentenced to twenty-five years. He now appeals the judgment of

the trial cou rt.



                                           I.



       As his first issue, the Defendant contends that the trial court committed

revers ible error by admitting rebuttal testimony regarding a 1-900 call placed from

the victim’s ho me. D uring the investigatio n of this ca se, it cam e to the victim’s

attention that a telephone call was placed from her residence around 3:30 a.m.

on the night o f the incide nt. The v ictim d id not re cogn ize the num ber no r did she

pay the char ge of $6 .98. Detective Mike Uher called the number, which stated




                                           -4-
it was the “Hotte st Girls in Am erica.” After voice activa tion, a woman on the line

talked to the caller about performing sexual acts.



          At trial, the State attempted to admit testimony regarding the call in its case

in chief. The victim was un able to identify the telephone bill because she forgot

her glasse s. Nex t, the victim ’s brother-in-law, James Hicks, testified that he was

respo nsible for handling Mrs. Davis’ telephone bills every month. He knew who

she regularly ca lled and h e did not r ecognize the long distance number. He

testified that the charge was $6.98.          The trial judge allowed no testimony

regarding the conte nt of the ca ll becaus e the teleph one b ill was n ot prop erly

authenticated.



          The Defe ndan t testified on dire ct exam ination that he went to the victim ’s

house with the inte nt to rob he r. He state d that he called a friend in Oliver

Springs. On cross-examination, the Defendant denied that he called a 1-900

number for the p urpos e of se xual ar ousa l. The S tate offered Detective Uher as

a rebuttal witness. Uher testified that the content of the 1-900 number was

sexual in nature. The testimony was adm itted as proba tive of the Defe ndan t’s

intent.



          The Defendant argues that the testimony was inadmissible for a variety of

reasons.      He contends that Uher’s testimony about the 1-900 number was

hearsay and not admissible under any exception.              He also argues that the

testimony was no t relevant be cause the trial cour t had earlier ruled that the

telephone bill could not pro perly b e adm itted be caus e a relia ble found ation c ould

not be es tablish ed. Fin ally, the Defendant claims that the testimony could not

                                            -5-
prope rly be admitted to impeach him because it was impermiss ible extrin sic

evidence. He concludes that the evidence was unduly prejudicial, warranting that

the verdict be set aside and a new trial granted. The State counters that the

evidence was properly admitted as highly probative of the Defendant’s intent and

even if it was error, it was harmless in light of the overwhelming evidence of the

Defen dant’s gu ilt.



       W e cannot agree with the Defendant that any statements made by the 1-

900 line to prove that its content was of a sexual nature is impermissible hearsay

evidence. “‘Hearsay’ is a statement, other than o ne m ade b y the de claran t while

testifying at the trial or hearing, offered in e vidence to prove the truth of the

matter asserted.” Tenn. R . Evid. 801(c). The State argues that Uher’s testimony

regarding the “Hotte st Girls in Am erica” wa s not offere d for its truth that the line

actua lly offered such “g irls” and therefore, such statemen ts were not he arsay.

The statements made on the 1-900 line that it had the “Hottest Girls in America”

would constitute hearsa y if offered to prove the truth of the m atter as serted in the

statem ent. Here, the testimony was offered to prove that the line’s content was

sexual in nature and the declarant, Officer Uher, was available for cross-

examination regard ing the credib ility of his statements. Therefore, we do not

believe that the testim ony offered wa s imperm issible hearsay.



       The record ind icates tha t rather than admitting the testimony for the

purposes of impeachment, the trial judge allowed Uher’s statement as

substantive rebutta l eviden ce pro bative o f the D efend ant’s intent. In the case sub

judice, defense counsel requested and received a jury-out hearing on the issue.

After vigorou s and length y argu men t, the trial ju dge a greed to adm it Uher ’s

                                          -6-
testimony regarding the c all as probative of the Defendant’s intent to commit the

rape. The Defendant had testified that he entered Mrs. Davis’ home with the

intent to rob her and that robbery motivated his actions. The trial court concluded

that the Defendant’s intent became a material issue p robative of the aggravated

rape. However, evidence is only relevant if it has a tendency to assist the trier of

fact resolve an issue of fact. See Ten n. R. E vid. 401 ; Neil P . Coh en, et. a l,

Tennessee Law of Evidence § 401 .3 (3d. e d. 199 5). Alth ough the issu e is

difficult, we do not believe the evidence should have been admitted.



      The elements of aggravated rape as charged in this case are that the

Defendant unlaw fully sexually penetrated the victim and that the Defendant

caused bodily injury to the victim. See Tenn. Code Ann. § 39-13-502. The

requisite mens rea is that the offense was committed either intentionally,

know ingly or reckles sly.    See Tenn. Code Ann. § 39-11-301(b), (c). The

Defe ndan t’s intent when he gained entrance to the victim’s home or when he

made the telephone call is irrelevant to prove the elements of aggravated rape.

See State v. McC ary, 922 S.W .2d 511 , 514 (T enn. 19 96); State v. Tizard , 897

S.W.2d 732, 744 (Tenn. Crim. App. 1994). Therefore, the admission of the

testimony regard ing the nature of the c all had little probative value of the

eleme nts of the offense for which he was charged. The evidence that a call was

made to a “sex line ” was clea rly prejudicia l to the De fendan t as it suggests a

proclivity for sexual stimulation. Because of the lack of any su bstantial probative

value of the evidence concerning an issue of material fact, we believe it was error

to introduce testimony regarding the 1-900 number for the purpose of proving

motive or intent. Without adequate substantiation as proof of a material issue,

the evidence becomes primarily character evidence used to prove that the

                                        -7-
Defendant acted in conformity with a negative character trait. Suc h evide nce is

genera lly inadmis sible. See Tenn . R. Evid. 40 4(b).



      Genera lly, “[e]vidence of a person’s character or trait of character is not

adm issible for the purpose of proving action in co nformity with the cha racter or

trait on a particular occ asion.”    Tenn . R. Evid. 404(a).     H owever, specific

examples of “other crimes, w rongs, or acts” may be admitted as substantive

evidence for other purposes. Tenn. R. Evid. 40 4(b) (em phasis a dded). In order

to admit such evidence:


             (1) The co urt upon reques t must h old a hearing outside the
      jury’s presence;

            (2) The court must determine that a material issue exists other
      than condu ct conform ing with a character trait and must upon
      request state on th e record the ma terial issue, th e ruling, and the
      reasons for admitting the evidence; and

            (3) The court must exclude the evidence if its probative value
      is outweighed by the danger of unfair prejudice.

Tenn . R. Evid. 40 4(b); State v. West, 844 S.W .2d 144, 149 (Tenn. 199 2).


      Because we conclude that the probative value of the evidence of the

telephone call was o utweig hed b y the da nger o f unfair prejudice, we believe the

trial judge erred in admitting the evidence as probative of the Defe ndant’s in tent.



      Because we have determined that the telephone call was of such limited

relevance, we also agree that the testimony, if offered to impeach the

Defe ndan t’s testimony, was an improper use of extrinsic evidence to impeach

the Defendant’s statement that he called a friend, and not the 1-900 line. During

cross-examination of a witness, counsel may generally challenge the accuracy



                                         -8-
of any relevant fact. A court m ay limit cros s-exam ination ab out irreleva nt facts

mentioned during direct exam ination. See Neil P. C ohen, e t. al, Tennessee Law

of Evidence § 607.3 (3d.ed.1 995). In addition, the “collateral fact rule” limits the

introduction of extrinsic proof of contradictory facts regarding collateral or

irrelevant matters testified abo ut during direct exam ination. See Id. As such, the

evidence was inadmissible for impeachment purposes.



      Although we believe that the issue presents a close call, we conclude that

admission of Officer Uher’s testimony was error. Even if it was, howe ver, such

error does not require reversal unless it “affirmatively appear(s) to have affected

the res ult of the trial on the me rits.” Tenn. R. Crim . P. 52(a). The victim knew

the Defendant because he was her next door neighbor. She testified to the facts

surrounding the aggravated rape and her injuries were apparent. The Defendant

confessed that he was at the victim’s home at the time of the incident and that he

hit and touched the victim sexually. There was overwhelming evidence of the

Defendant’s guilt such that the prejudicial effect of the 1-900 testimony is not

likely to have a ffected the verdict. After considering the entire record in the case

sub judice, we are satisfied that this was harmless error. T.R.A.P. 36(b); Tenn.

R. Crim . P. 52(a).



                                         II.



      The Defendant argu es that his senten ce is excessive b ecause the trial

court misapplied five enhancement factors and failed to recognize mitigating

factors. The D efenda nt was se ntence d as a R ange I, sta ndard o ffender to

twenty-five years in the Department of Correction. The trial judge found seven

                                         -9-
sentence enhancement factors. The Defendant questions the following

enhancement factors : (4) Th at the vic tim wa s partic ularly vu lnerab le because of

age; (5) that the Defendant treated the victim with exceptional cruelty; (6) that the

personal injuries inflicted upon the victim were particularly great; (7) that the

offense involved a victim an d was c omm itted to gratify the Defendant’s desire for

pleasure or excitement; and (15) that the Defendant abused a position o f private

trust. Tenn. C ode Ann . § 40-35-114 (4), (5), (6), (7), (15). The Defendant does

not conte st the tria l court’s application of enhancement factor (1), that he has a

previous history of criminal convictions; and (8) that he has a previous history of

unwillingness to com ply with the co nditions o f a senten ce involving release in to

the comm unity. Tenn. Co de Ann. § 4 0-35-114(1 ), (8).



      When an accused challenges the length, range, or the manner of service

of a senten ce, this Co urt has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles o f sentenc ing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

                                         -10-
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



         If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

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



         The Defendant asserts that the proof did not establish that the victim was

particu larly vulnerable because of her age.       See Tenn. Code Ann. § 40-35-

114(4).     A victim is particularly vulnerable when, because of age, he or she is

incap able of resisting, summ oning help, or testifying against the pe rpetrator.

State v. Adams, 864 S.W .2d 31, 35 (Tenn . 1993). T he State bears the burden

of proving that the victim possesses limitations that make him o r her pa rticularly

vulnerable. State v. Poo le, 945 S.W.2d 93, 96 (Te nn. 199 7); Adams, 864 S.W.2d

at 35.



         The record reveals tha t the victim was 79 years old at the time the offense

was committed. She was “working” on her pear trees in the b ackyard just be fore

the Defendant came to her ho use. H owev er, ther e is evid ence that the victim d id

not drive and that Adele Haun took her to the ma rket and did erra nds for her.

The victim’s brother, James Hicks, handled her financial affairs.                 He

characterized the victim’s working in her garden as “piddling around.” He testified

that the victim had been having trouble walking for five or six years before the

                                          -11-
incident and that sometimes, she co uld hardly walk. The victim herself testified

at trial that she attempted to get aw ay from th e Defe ndant, but tha t he wo uld pu ll

her back and h it her. From the record before us, it appears that the Defendant

took advantage of the victim’s frailty during the comm ission of the offense. See

State v. Butler, 900 S.W .2d 305 , 313 (T enn. C rim. App . 1994); State v. Larry

Fields, C.C.A. No. 02C0 1-9201 -CC-0 0012, F ayette C ounty (T enn. C rim. App .,

Jackson, Nov. 18, 1992), perm. to appeal denied (Tenn. 1993). We cannot

conclude tha t the trial court erred in applying this enhance ment factor.



       The trial judge also applied enhancement factor (5), that the Defendant

treated the victim with exceptional cruelty. Tenn. Code Ann. § 4 0-35-11 4(5). In

order to appro priately find th is factor, it requ ires a finding that the acts were

“exceptionally” cruel, over and above that inhere nt to the offe nse. See State v.

Embry , 915 S.W .2d 451 , 456 (Tenn . Crim. A pp. 199 5); Mann ing v. State , 883

S.W.2d 635, 63 9 (Ten n. Crim. A pp. 199 4). Excep tional crue lty is usually found

in cases o f abuse or torture. State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim.

App. 1995); see State v. Davis , 825 S.W .2d 109 , 113 (T enn. 19 91); State v.

Haynes, 720 S.W .2d 76, 86 (Tenn . Crim. A pp. 198 6).



       In the ca se at b ar, the in juries received by the victim were a part of the

proof which elevated the offense to aggra vated rap e unde r the law. Although the

victim suffered painful injuries during the offe nse, th ese in juries a re inclu ded in

the statutory de finition of bod ily injury that con stitutes aggravated rape. Our

criminal code prohibits th e use o f eleme nts of a crim inal offens e to enhance the

sentence for the offense. Tenn. Code Ann. § 40-35-114. This case involved no

extended length of torture, no weapons, nor any unusual type of abuse. Beyond

                                          -12-
the obvious cruelty inherent in every rape involving bodily injury, we find no

evidence introduced in the record to supp ort a finding of exceptional cruelty.

Thus, we must conclude that the trial court misapplied this e nhancem ent factor.



        The Defendant contends that the trial court erred in finding that the

personal injuries inflicted upon the victim were particularly great. Tenn. Code

Ann. § 40-35-114(6). "Personal injury" a s expre ssed in enhancement factor (6)

encompasses emotional and psychological injuries as well as physical injuries

sustained by the victim . State v. Hoyt, 928 S.W.2d 935, 948 (Tenn. Crim. App.

1995); State v. Melvin , 913 S.W.2d 195 (Tenn. Crim. App. 1995)(citing State v.

Smith , 891 S.W.2d 922 (Tenn. Crim. App. 1994)). Howeve r, before this factor

may be applied, the State has the burden of establishing that the emotional

injuries an d psych ological sc arring are "particularly g reat." Id.



       The victim testified that she still experiences pain from the injuries to her

eyes, jaw and vagina. Her brother testified that the victim has not lived in her

home since the attack.        It is clear that the victim’s life has been severe ly

disrupted. Prior to the offense, the elderly victim was maintaining her

independence in her own ho me with assistance from her family and friends and

has been unable to do so since the rape.              W e believe that such severe

consequences for the victim constituted injurie s that wer e “particula rly great.”

See State v. Williams, 920 S.W .2d 247 , 259-60 (Tenn . Crim. A pp. 199 5). W e

therefore find no e rror in the application of this fac tor.



       Next, the Defendant argues that he trial court misapplied enhancement

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

                                          -13-
pleasu re or excite ment. Tenn . Code Ann. § 4 0-35-11 4(7). In State v. Adams,

864 S.W.2d 31, 34-35 (Tenn.1993), our supreme court rejected the proposition

that, "as a matter of law, every rape is implicitly committed for the purpose of

pleasure or excitem ent." The supreme court noted tha t not all such crime s are

committed for pleasu re, but rath er may be mo tivated by a cts such as bruta lity,

revenge, punishm ent, or intim idation.    Id.; State v. Hoyt, 928 S.W.2d 935, 949

(Tenn. Crim. A pp. 1995). In State v. Kissinger, 922 S.W.2d 482, 491 (Tenn.

1996), the suprem e court added tha t the comm ission of a crime to gratify a desire

for pleasure or excitem ent is not limited to p roof of sexual desire or sexual

pleasure. Thus , evidence of the ach ieveme nt of sexu al orgasm will not, by itself,

prove factor (7), nor will the absence of orgas m neg ate such application . Id. The

State must demonstrate that a defendant was motivated to com mit a crim e to

gratify a desire for pleasure or excitement. Id. “The foc us is the offend er’s

motive, not the eve ntual result.” Id.



       The trial judge applied this factor, citing that the Defendant called the 1-900

sex line and that it “got him into such a state of froth that he was an animal there

in that home.” The Defendant did enter the victim’s residence and use the

telephone.     There was evidence in the record, that we have held was

inadmissible, that a two-minute call to a 1-900 sex line was placed from the

victim’s home. Apart from that testimony, the record shows that the Defendant

told the victim: “I’m going to kill you. I’m going to bite your breast off.” At one

point, the De fenda nt told th e victim to perform fellatio. When the victim struggled

to get loose, the Defe ndan t said “Y ou be tter stop ; he’d chew it [he r breast] off.”




                                          -14-
      Although the evidence points to a violent a ttack b y the D efend ant, the re is

little to indicate the motivation behind the rape. No semen was detected by

forens ic testing, however its presence or absence is not controlling. There is no

evidence in the record that the Defendant’s acts took place to gratify a desire for

“pleasure or excitement.” We note the instruction provided by ou r supreme court

in this regard:

   It applies anytime an offender commits an applicable offense to gratify the
   offend er's desire for any pleasure or any excitem ent. Wh ile that pleasure
   or excitement may be of a sexual nature, it does not have to be.
   Therefore, an offender who is motiva ted to rap e by his or h er desire to
   overpower or brutalize, when that desire creates pleasure or excitement
   for the offender, may suffer a factor (7) sentence enhance ment. Mo reover,
   factor (7) may be used to enhance sentences for offenses that are not of
   a sexua l nature . An offe nder w ho ste als be caus e of a p leasure
   experienced in "not getting caught;" an arsonist who bu rns hou ses du e to
   the excitement that watching fire brings; an assaulter who breaks an arm
   to hear the victim be g for mercy--all m ay have their sentences enhanced
   under factor (7) p roviding the state pro duces pro of of the factor.


Kissinger, 922 S.W .2d at 490. The record lacks evidence that the Defendant

experienced pleasure or excitem ent bec ause o f the crime. Be cause the State

has failed to m eet its burden of proof to support the application of this factor, we

must c onclud e that it was applied e rroneou sly by the trial co urt.



      The Defe ndan t also ch alleng es the impo sition of factor (15), that the

Defendant abused a position of private trus t. Tenn. C ode Ann . § 40-35-114 (15).

W e find no erro r in applying this factor. T he De fendan t was the next-door

neighbor of the victim. Over the cours e of se veral m onths , the D efend ant an d his

family established a pattern of using the victim’s telephone on a regular basis

without incident. O n the nigh t in question, the victim was initially relu ctant to

allow the Defe ndant in her home because it was late at night. The Defendant

persuaded the victim to let him in because he said that his mother was sick and

                                         -15-
that it would only take a few minutes. The D efend ant us ed his prior re lations hip

with the victim to ga in entran ce to her home . Such circumstances surrounding

the offense su pport the app lication of factor (15).



         Finally, the Defendant argues that the trial court failed to properly consider

the mitiga ting fac tors tha t he wa s intoxic ated a nd did not remember committing

the acts and that he was extreme ly remors eful. However, voluntary intoxication

is not ava ilable as a mitigatin g factor. See Ten n. Co de An n § 40 -35-1 13(8) . This

Court has previously held that genuine, sincere remorse is a proper mitigating

factor. See Tenn . Code Ann. § 4 0-35-11 3(13); State v. Williamson, 919 S.W.2d

69, 83 (Te nn. Crim . App. 19 95); State v. B uttrey, 756 S.W.2d 718, 722 (Tenn.

Crim. App . 1988).     Even if the Defendant’s remorse was considered under the

catch -all provisio n, this mitigator is not sufficient to outweigh the host of

enhancement factors applicable to this cas e. See Tenn. Code Ann. § 40-35-

113(13).



         W e recognize that the trial court failed to properly apply the sentencing

principles as are re quired w hen im posing a senten ce. However, our de novo

review of the evidence at trial, the presentence report, the testimony from the

sentencing hearing and the sentencing principles supports the imposition of the

maximum senten ce of twen ty-five years. Although we have concluded that two

enhancement factors were misapplied, the weight of the remaining factors

militates in favor of the sentence of twenty-five (25) years as imposed by the trial

court.




                                          -16-
                                           III.



       As his final issue, the Defendant charges that the trial court erred by failing

to grant pre trial jail credit for the time he spent in the Roane County Jail. After

trial and sentencing, the Defendant filed a motion to correct the judgment, which

was heard o n July 1, 19 96. The trial court de nied the motion. The Defendant

states that the aggra vated rape occurred on August 20, 1994 and that he was

arrested on August 21, 1994 and held continuously until his trial on April 12,

1996. The State notes that the time the Defendant spent in Roane County was

service of a se ntenc e for joyr iding a nd tha t it shou ld not a pply as credit fo r his

aggravated rape conviction. The Defendant was transferred to Roane County on

November 16, 1994 and entered a guilty plea to joyriding .               He se rved h is

sentence in Roane County and essentially remained there until being sentenced

on June 12, 1996 to the Department of Correction. The record does not reflect

any of the circumstances nor the length of sentence for the joyriding conviction.

The trial court gave the Defendant ninety days of pretrial jail credit on his

aggravated rape conviction. The Defendant claims that he is entitled to 601 days

of jail credit.



       Tennessee Code Annotated section 4 0-23-10 1(c) states , in pertinen t part,

that “[t]he tria l court s hall . . . allow the defendant credit on the sentence for any

period of time for wh ich the de fendan t was com mitted an d held in th e city jail . .

. or county jail or workhouse, pending arraignment and trial.” The awarding of

these credits is m andato ry.    Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150

(1965).




                                           -17-
       W e first note that the primary p urpose of award ing pretrial jail cre dit is to

prevent discrimination against indigent defendants who are unable to make bond

prior to trial and a ppeal, un like their cou nterparts with the financ ial mean s to

obtain a bond . See State v. Silva, 680 S.W.2d 485, 486 (Ten n. Crim. App . 1984);

Trigg v. State, 523 S.W.2d 375, 376 (Tenn. Crim. App. 1975).           This Court has

held that a defendant was not entitled to pretrial jail credit for time he served for

a federa l crime prior to h is conv iction in state court for arm ed robbery. Trigg, 523

S.W.2d at 376. Likewise, a defendant was not entitled to credit for jail time on a

separa te charge in anothe r state. Majeed v. State, 621 S.W.2d 153, 155 (Tenn.

Crim. App. 1981 ). Yet, if a defe ndan t is held on two or mo re cha rges, h e cou ld

earn pretrial credit for separate offenses commencing at the time he or she was

charged for each offense if the senten ces are ordered to run con currently. See

State v. Henry , 946 S.W .2d 833, 835 (Tenn. Crim . App. 1997 ).



       Here, the Defendant was incarcerated pretrial and was tran sferred to

Roane Coun ty whe re he p leade d guilty a nd pro ceed ed to s erve tim e in jail on the

Roane County offense.        Because the Defendant was serving a sentence, he

could not have been released even if he had the means to post a bond.

Furthermore, the rea son fo r his inc arcera tion did not aris e from the offe nse in

question. See Trigg, 523 S.W .2d 376 . From the record that has been provided,

we cann ot con clude that the trial judg e erred or abu sed h is discretion in denying

the De fendan t’s motion to correct ja il credit.



       Accord ingly, we affirm the judgm ent of the tria l court.




                                          -18-
                         ____________________________________
                         DAVID H. WELLES, JUDGE




CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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