         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 10, 2002 Session

                   STATE OF TENNESSEE v. JODY LANE ORR

                   Direct Appeal from the Circuit Court for Carroll County
                         No. 01cr-1636    C. Creed McGinley, Judge



                  No. W2001-02075-CCA-R3-CD - Filed November 27, 2002


The Appellant, Jody Lane Orr, was convicted by a Carroll County jury of aggravated burglary,
aggravated rape, and class E felony theft. He received an effective twenty-five-year sentence. On
appeal, Orr raises the following issues for review: (1) whether the trial court erred by denying his
motion to suppress; (2) whether the State lost and/or mishandled a blood sample drawn by law
enforcement after his arrest; (3) whether the evidence was sufficient to support the verdicts; and (4)
whether his sentence was proper. After a review of the record, the judgments of the trial court are
affirmed.


                Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY, J., joined. JOSEPH
M. TIPTON, J., filed a concurring opinion.

Charles N. Griffith, Waverly, Tennessee, for the Appellant, Jody Lane Orr.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin
Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor
Cahill, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        On September 24, 2000, the victim, Trina Knowles, returned home from a friend’s birthday
party at approximately 12:30 a.m. Upon returning home, she had a message on her answering
machine from Richard Forrest, the co-defendant in this case. She did not return his call; instead, she
“put a movie in and laid down on the couch and went to sleep.” Later, the victim was awakened by
the co-defendant “banging on the doors and on the windows, calling [her] name;” she did not answer
the door and fell back asleep. Later, she was awakened by the Appellant and co-defendant; “one was
holding [her] down . . . and the other one was duct-taping [her] ankles and wrists and around [her]
mouth and [her] head.” Both men wore bandannas covering their faces; however, the victim
recognized the co-defendant and said, “Richard,” before duct-tape was placed over her mouth and
a bandanna over her face. After ransacking the trailer, the two men “ripped [the victim’s] panties
off, pulled [her] legs up in the air and penetrated [her] vaginally.” Then, the victim was flipped over
on the couch, and “they anally raped [her].” After the victim was raped, she was told not to tell
anybody of the incident or she would be killed. A telephone cord and breathing tube were also
wrapped around her ankles, and a New Year’s Eve hat was placed on her head. After freeing herself,
she drove to a friend’s house and, from there, the police were called. Upon examination at the
hospital, the victim complained of bleeding from the rectum and red marks, “which later turned into
scabs, around [her] ankles and . . . wrists and . . . mouth.”

         After the victim told police she recognized one of her assailants, the co-defendant was
developed as a suspect in the rape. The Appellant and co-defendant were found at Peggy Lane
Trailer Court in the co-defendant’s residence. A search of the trailer was conducted and several
items belonging to the victim were discovered; jewelry, two VCRs, medicine bottles, and a piggy
bank. Also discovered were items which incriminated the Appellant and his co-defendant in the
alleged crimes; bandannas, gloves, and part of a breathing tube. Thereafter, both men were taken
to the police department and signed written confessions, detailing the crimes committed against the
victim. A Carroll County grand jury indicted the Appellant and co-defendant for aggravated
burglary, three counts of aggravated rape, and theft between $500 and $1,000. The co-defendant
pled guilty, received a seventeen-year sentence, and testified against the Appellant at trial. After a
trial by jury, the Appellant was convicted of one count of aggravated burglary, aggravated rape, and
class E felony theft. Following a sentencing hearing, he received a twenty-five-year sentence and
was ordered to pay a $61,000 fine. His motion for new trial was denied, and this timely appeal
followed.

                                            ANALYSIS

                                      I. Motion to Suppress

        The Appellant argues that the trial court erred by denying his motion to suppress.
Specifically, he contends that: (1) evidence found inside his “living quarters” should have been
suppressed because the person who granted the waiver to search was without authority to do so, and
(2) the waiver of his right to remain silent was not voluntarily and knowledgeably given because he
was sleep-deprived and under the influence of intoxicants or other substances and, therefore, any
statements made to law enforcement officers were inadmissible.

       In reviewing a denial of a motion to suppress, this court looks to the facts adduced at the
suppression hearing which are most favorable to the prevailing party. State v. Daniel, 12 S.W.3d
420, 423 (Tenn. 2000) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). In considering the
evidence presented at the hearing, this court extends great deference to the fact-finding of the


                                                 -2-
suppression hearing judge with respect to weighing credibility, determining facts, and resolving
conflicts in the evidence. Id.; see also State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Indeed,
these findings will be upheld unless the evidence preponderates otherwise. Daniel, 12 S.W.3d at
423. In this case, the trial court denied the Appellant’s motion to suppress, finding that:

       . . . I’m satisfied that the defendant, while he might have been sleepy or under the
       influence of possibly alcohol or controlled substances, that he understood his rights,
       that he waived those rights freely and voluntarily, and he understood those rights
       when he in fact waived them. . . .

       Concerning the search of the house, first of all, I find that essentially, he has no
       standing. He might have been a temporary resident there, but certainly the officer got
       a consent from the person that owned this property. There was someone there to let
       them in that had access, and there is no indication that this search was anything other
       than valid and with the consent of the property owner. . . .

                                              A. Search

1.      Standing.       First, the State maintains that the Appellant does not have standing to contest
the search of the residence. The Fourth Amendment to the United States Constitution provides that
"[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be
violated." U.S. CONST . amend. IV. Article I, Section 7 of the Tennessee Constitution similarly
provides "[t]hat the people shall be secure . . . from unreasonable searches and seizures." TENN.
CONST . art. I, § 7. In the context of these constitutional provisions, the so-called "standing"
requirement is simply the rigorous application of the principle that the rights thereby secured are
personal. Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 428 (1978). One who challenges the
reasonableness of a search or seizure has the initial burden of establishing a legitimate expectation
of privacy in the place or thing to be searched. State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1991). One who does not have such an expectation of privacy
lacks "standing" to challenge the search. See State v. Patterson, 966 S.W.2d 435, 441 n.5 (Tenn.
Crim. App. 1997). Standing is ultimately a question of law, subject on appeal to de novo review,
against the backdrop of a trial court's factual determinations. State v. James A. Jackson, No. M1998-
00035-CCA-R3-CD (Tenn. Crim. App. at Nashville, May 5, 2000) (citations omitted). There are
seven factors to be considered when determining if a legitimate expectation of privacy exists: (1)
ownership of the property; (2) whether the defendant has a possessory interest in the thing seized;
(3) whether the defendant has a possessory interest in the place searched; (4) whether the defendant
has a right to exclude others from that place; (5) whether he has exhibited a subjective expectation
that the place would remain free from intrusion by the State; (6) whether the defendant took normal
precautions to maintain his privacy; and (7) whether he was legitimately on the premises. Oody, 823
S.W.2d at 560.

         The fact that a person is an overnight guest in a residence or an apartment, standing alone,
is sufficient to clothe the guest with a legitimate expectation of privacy in the premises sufficient to


                                                  -3-
challenge the search and any resulting seizure. State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim.
App. 1996) (citing Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 1688 (1990)).
However, a "casual visitor" or a "transient party guest" does not have a reasonable expectation in the
host's residence or apartment. Id. (citing United States v. David Dix, No. 94-4065 (6th Cir., June 9,
1995); United States v. Maddox, 944 F.2d 1223, 1234 (6th Cir. 1991), cert. denied, 502 U.S. 992, 112
S. Ct. 600 (1991)).

        In this case, the evidence established that the Appellant had been staying at the residence for
approximately two to three weeks at the time the search of the premises was conducted. The
Appellant stated he “was staying at Mr. Forrest’s trailer for a time, ‘cause [he] was in between
houses.” The Appellant did not pay rent but, rather, the arrangement was that he would “buy the
food and stuff and cook.” The Appellant was present in the residence when the search was
performed. Based upon the foregoing principles, we conclude, contrary to the ruling of the trial
court, that the Appellant did have a legitimate expectation of privacy in the residence and, therefore,
had standing to challenge the validity of the search. Accordingly, we proceed to address the merits
of the Appellant’s argument concerning the search of the premises.

2.      Consent.       Under both the Fourth Amendment to the United States Constitution and
Article I, Section 7 of the Tennessee Constitution, a warrantless search of a person's home is
presumed unreasonable. State v. Bartram, 925 S.W.2d 227, 229-230 (Tenn. 1996) (citing Coolidge
v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971)); see also State v. James
Darrell Horn, No. 03C01-9810-CR-00363 (Tenn. Crim. App. at Knoxville, Jan. 26, 2000).
However, there are many well-recognized exceptions to this rule, including a search conducted
pursuant to consent. Bartram, 925 S.W.2d at 230. The State has the burden of establishing that the
search was conducted pursuant to this exception. Id. If the State fails to satisfy its burden, the
exclusionary rule may operate to bar the admissibility of any evidence obtained directly or
derivatively from the unconstitutional search. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.
Ct. 407, 416 (1963); State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992). Our review is de novo, as
mixed questions of law and fact are involved. State v. William Donald Ellis, No. M1999-783-CCA-
R3-CD (Tenn. Crim. App. at Nashville, Oct. 13, 2000) (citing State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999)). Review is not limited to the record of the suppression hearing; rather, it extends to
the entire record of proceedings, including, in this case, the Appellant’s trial. Id. (citing State v.
Henning, 975 S.W.2d 290, 299 (Tenn. 1998)).

          In this situation, Officer David Bunn obtained verbal consent to search the residence from
the property owner, Barbara Forrest, the co-defendant’s mother. When Officer Bunn arrived at the
residence, Tim Forrest was present at the residence and executed a written waiver to search the
trailer. Tim Forrest is the brother of the co-defendant Richard Forrest. During the search of the
trailer, items belonging to the victim were discovered. At trial, all of these items were admitted into
evidence, the trial court finding that consent of the property owner was sufficient to search the
residence.




                                                 -4-
        We, first, conclude that the property owner did not have authority to permit a search of the
residence. She did not live at the trailer; therefore, she did not possess authority over its premises.
“To justify a warrantless search of premises owned or occupied by a citizen as a residence, he must
give his consent, or such consent must be given by someone authorized by him, or having a common
possessory interest or right. . . .” Rippy v. State, 550 S.W.2d 636, 640 (Tenn. 1977) (apartment
manager’s sister cannot consent for a tenant); see generally Stoner v. California, 376 U.S. 483, 84
S. Ct. 889, reh’g denied, 377 U.S. 940, 84 S. Ct. 1330 (1964) (hotel clerk cannot consent for guests);
Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961) (landlord cannot consent for a tenant).
The modern test concerning consent searches, as enunciated by the United States Supreme Court,

        is that the consent of one who possesses common authority over premises or effects
        is valid as against the absent, non-consenting person with whom that authority is
        shared. The court defined common authority as the "mutual use of the property by
        persons generally having joint access or control for most purposes, so that it is
        reasonable to recognize that any of the co-inhabitants has the right to permit the
        inspection in his own right and that the others have assumed the risk that one of their
        number might permit the common area to be searched."

Bartram, 925 S.W.2d at 230-31 (quoting United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct.
988, 993 n.7 (1974)). Ownership of the property alone is not enough; mutual use by one having joint
access or control of the premises is required. Id.; see Rippy, 550 S.W. 2d at 640; McGee v. State,
451 S.W.2d 709, 712 (Tenn. Crim. App. 1969), perm. to app. denied, (Tenn. 1970) (citation
omitted). Barbara Forrest did not use or occupy the trailer and, therefore, could not validly consent
to a search of the premises.

         Next, we must determine whether the waiver by Tim Forrest constituted valid consent
to search the trailer. When Officer Bunn arrived at the trailer, Tim Forrest, who had slept in the
trailer that evening, gave written permission to search the residence. Thus, the issue is whether Tim
Forrest had “common authority” over the trailer. In the Appellant’s brief, he asserts that Tim Forrest
did not reside in the trailer; in contrast, the State contends that the co-defendant testified at trial that
he lived at the residence with both Tim Forrest and the Appellant. The following colloquy is the
only testimony of the co-defendant Richard Forrest which references the residents of the trailer:

        Q. Mr. Forrest, where were you living on September the 24th 2000?

        A. Peggy Lane Trailer Court.

        Q. Who was residing with you?

        A. My brother was starting to move in, and Jody Orr had been living with me for
        about two months – I mean, two weeks.




                                                    -5-
The co-defendant Richard Forrest has two brothers, Tim and Greg, both of whom were present when
Officer Bunn arrived to conduct a search of the premises. The co-defendant provided no explanation
as to the meaning of the phrase “starting to move in,” i.e., it is unclear whether Tim Forrest had
"mutual use of the property by generally having joint access or control for most purposes. . . .”
Bartram, 925 S.W.2d at 230-31 (quoting Matlock, 415 U.S. at 171 n.7). Tim Forrest did not testify
at trial. Furthermore, there is no other evidence or testimony which supports the State’s assertion
that Tim Forrest resided in the trailer. Because the State has the burden of establishing that the
search was conducted pursuant to this exception, we conclude that the State has not sufficiently
shown that Tim Forrest had “common authority” over the trailer. Accordingly, the search of the
premises was unconstitutional, and the evidence seized during the search was inadmissible.

3.      Harmless error.         We must now determine whether the convictions must be reversed
under the circumstances of this case. Once constitutional error is found, the burden shifts to the State
to prove the error is harmless and the reviewing court must be persuaded beyond a reasonable doubt
that the error did not affect the trial outcome in order to deem the error harmless. Chapman v.
California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). The inquiry is “whether the State has proved
'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'"
Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S. Ct. 1792, 1798 (1988) (quoting Chapman, 386
U.S. at 24). In this case, the co-defendant testified against the Appellant at trial, and the Appellant
confessed to his crimes. Given the strength of the State's case, we hold that no prejudice to the
Appellant occurred as a result of the evidence being admitted. Any error was harmless beyond a
reasonable doubt. See Rippy, 550 S.W.2d at 641. Accordingly, we find this issue to be without
merit.

                                            B. Confession

         The Appellant argues that his confession was not given knowingly and voluntarily because
he was “sleepy and slow” due to his use of drugs and alcohol. He contends that his “statement was
made by paraphrasing the statement of Richard Forrest and out of the need to get some sleep.”
Inherent in the admissibility of the written statement is that the statement was voluntarily given by
a defendant knowledgeable of his constitutional rights and accompanied by a valid and knowing
waiver of those rights. See Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624, (1966);
State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992), cert. dismissed, 510 U.S. 124, 114 S. Ct.
651 (1993). In determining the admissibility of a confession, the particular circumstances of each
case must be examined as a whole. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996). A
defendant's subjective perception alone is not sufficient to justify a conclusion of involuntariness in
the constitutional sense. Id. (citations omitted). The primary consideration in determining the
admissibility of the evidence is whether the confession is an act of free will. State v. Chandler, 547
S.W.2d 918, 920 (Tenn. 1977). A confession is not voluntary when "the behavior of the state's law
enforcement officials was such as to overbear" the will of an accused and "bring about confessions
not freely self-determined." State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980) (quoting Rogers v.
Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741 (1961)). With regard to the claim that a confession
is involuntary, findings of fact made by the trial court after an evidentiary hearing on a motion to


                                                  -6-
suppress are afforded the weight of a jury verdict, and an appellate court will not set aside the trial
court's judgment unless the evidence contained in the record preponderates against the findings of
the trial court. State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996) (citation omitted).

        In the present case, the Appellant testified that he did not understand his rights because he
had ingested numerous drugs and a large amount of alcohol prior to his arrest. After a suppression
hearing, the trial court found the statement constitutional and ruled that it was admissible. We agree.
The record indicates that the Appellant was advised fully and completely of his Miranda rights and
at no time did the Appellant indicate that he did not understand his rights. Officer Bunn testified that
the Appellant’s “speech was good” throughout the interrogation, and he understood his rights even
though he appeared sleepy. A sample of the Appellant’s blood drawn within five to six hours after
his arrest and statements revealed no alcohol or drugs in the Appellant’s system. Furthermore, the
Appellant testified that he confessed because he believed the blood tests would exonerate him of the
charges. The trial court obviously accredited the testimony of Officer Bunn in finding a valid and
knowing waiver of rights and finding a voluntary statement made from the free will of the Appellant.
We find no reason to disregard the findings of the trial court with respect to the voluntariness of the
Appellant's statement. As such, the trial court properly admitted the Appellant's statement into
evidence.

                                         II. Blood Sample

         Robert Marshall, a Tennessee Bureau of Investigation (TBI) forensic scientist in Jackson,
testified that he received a five-milliliter blood sample taken from the Appellant after his arrest. He
tested a one-milliliter portion for the presence of alcohol. The portion tested negative, and the
remaining blood, four-milliliters, was transferred to the TBI lab in Nashville for drug testing. Edward
Lewis Kuykendall, a TBI forensic scientist in Nashville, testified that he received a two-milliliter
sample, rather than a four-milliliter sample. Kuykendall performed a “basic drug screen,” for which
the blood tested negative. The sample was not tested for the presence of barbiturates and marijuana
because it had been completely consumed by prior testing. At trial, Kuykendall, in order to explain
the discrepancy in the amount sent by Marshall and received by Kuykendall, testified to the
following:

        Q. Now, the sample that came in, could it have leaked out, or could it have dried up
        and stuck to the sides or anything like that?

        A. I didn’t see any sample that had been in a leaking fashion. Now, it was a blood
        tube, so, obviously, it was being contained in there. But when you’re talking about
        glancing at a tube – I’ve dealt with Mr. Marshall for a long time, and he’s dealt with
        my notations, also, and when we make those notations and we look at those tubes,
        it’s a one gray five-milliliter tube. That means it can contain up to five-milliliters.
        It doesn’t mean necessarily that it does. Now, he’ll take and he does his portion. At
        that point in time, there is some amount left. That is an estimate of how much that
        is there, but that doesn’t necessarily mean that by the time I get to it and I actually


                                                  -7-
       draw it out, when I physically measure how much it is, that you’re going to have
       exactly what he thinks he sent me or exactly what I look at. It’s an estimate. It’s an
       eyeball. But when I draw it out with a physical measuring instrument, then I know
       exactly how much is there. In that case, I had two-milliliters to work with.

The Appellant argues that he was materially harmed by the loss or unexplained absence of a portion
of his blood sample because testing for barbiturates and marijuana would have shown that he was
under the influence of drugs at the time he gave his statement to Officer Bunn, thereby, rendering
his statement involuntary.

        In State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), our supreme court addressed “what
consequences flow from the State's loss or destruction of evidence alleged to have been exculpatory."
Ferguson, 2 S.W.3d at 915. Specifically, our supreme court rejected the bad faith analysis required
under the United States Constitution, set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333
(1988), and held that a broader inquiry is required under Article 1, Section 8 of the Tennessee
Constitution. Ferguson, 2 S.W.3d at 914. The critical inquiry is whether a trial conducted without
the lost or destroyed evidence would be fundamentally fair. Id.

        In resolving the question of fundamental fairness, a court must first determine whether the
State had a duty to preserve the lost or destroyed evidence. Id. at 917; see also State v. Coulter, 67
S.W.3d 3, 54 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 2001). "Generally speaking, the
State has a duty to preserve all evidence subject to discovery and inspection under Tenn. R. Crim.
P. 16, or other applicable law." Ferguson, 2 S.W.3d at 917.

       Whatever duty the Constitution imposes on the States to preserve evidence, that duty
       must be limited to evidence that might be expected to play a significant role in the
       suspect's defense. To meet this standard of constitutional materiality, evidence must
       both possess an exculpatory value that was apparent before the evidence was
       destroyed, and be of such a nature that the defendant would be unable to obtain
       comparable evidence by other reasonably available means.

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-489, 104 S. Ct. 2528, 2534 (1984)). Only
if the proof demonstrates the existence of a duty to preserve and further shows that the State has
failed in that duty must a court turn to a balancing analysis involving consideration of the following
factors:

       1. The degree of negligence involved;

       2. The significance of the destroyed evidence, considered in light of the probative
       value and reliability of secondary or substitute evidence that remains available; and

       3. The sufficiency of the other evidence used at trial to support the conviction.



                                                 -8-
Id. (footnote omitted); see also State v. Ricky Hill Krantz, No. M1999-02437-CCA-RM-CD (Tenn.
Crim. App. at Nashville, Jan. 25, 2000), perm. to appeal denied, (Tenn. 2000).

         Applying the above analysis to the instant case, we find that there is no proof in the record
that the State lost, destroyed, or mishandled the Appellant’s blood sample. Kuykendall explained
the discrepancy in the sample amounts; thus, the evidence was not “lost or destroyed” by the State
but, rather, was used for testing in its entirety . Furthermore, even if the State had a duty to preserve
the blood sample and failed to do so, the Appellant has failed to show how testing for barbiturates
and marijuana would have significantly affected the voluntariness of his confession. Officer Bunn
testified that, at the time the statement was given, the Appellant understood his rights and only
appeared sleepy. At the time of the motion to suppress hearing, none of the blood test results were
available to the trial judge. The trial judge, finding the confession to be voluntary, assumed that the
Appellant had ingested some sort of intoxicant. Based upon Officer Bunn’s testimony the evidence
does not preponderate against this finding. Therefore, the Appellant is not entitled to relief.

                                  III. Sufficiency of the Evidence

        The Appellant argues that the evidence introduced at trial was insufficient to support his
convictions for aggravated burglary, aggravated rape, and class E felony theft. A jury conviction
removes the presumption of innocence with which a defendant is cloaked and replaces it with one
of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence
is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency
of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this court to revisit questions of
witness credibility on appeal, that function being within the province of the trier of fact. State v.
Holder, 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.
App. 1993). Instead, the Appellant must establish that the evidence presented at trial was so
deficient that no reasonable trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable to
findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both
direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). As in the case of direct evidence, the weight to be given circumstantial evidence and “the
inferences to be drawn from such evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v. State,
313 S.W.2d 451, 457 (Tenn. 1958) (citation omitted).

        Tennessee Code Annotated § 39-13-502(a)(2) (1997) defines aggravated rape as the
"unlawful sexual penetration of a victim by the defendant . . . accompanied by . . . bodily injury to
the victim." A person is guilty of aggravated burglary if that person, without the effective consent
of the property owner, enters a habitation with intent to commit a theft. Tenn. Code Ann. §§ 39-14-


                                                  -9-
402(a)(3), -403(a) (1997). In order to sustain a conviction for theft, the State must prove that a
person, with intent to deprive the owner of property, knowingly obtained or exercised control over
the property without the owner's effective consent. Tenn. Code Ann. § 39-14-103 (1997). Theft of
property is a Class E felony if the value of the property obtained is more than $500 but less than
$1,000. Tenn. Code Ann. § 39-14-105(2) (1997).

        The proof at trial, in the light most favorable to the State, established that the Appellant and
co-defendant forced their way into the victim’s home with the intent to commit rape and theft
therein. Both men proceeded to sexually penetrate the victim both vaginally and anally, causing
bodily injury to the victim. After raping the victim, the men left the residence with items belonging
to the victim. The testimony of the co-defendant and the Appellant’s confession are sufficient to
support the jury's verdict. This issue is without merit.

                                           IV. Sentencing

         The Appellant argues that his twenty-five-year sentence as imposed by the trial court was
excessive. The Appellant was sentenced to concurrent sentences of two years for class E felony
theft, six years for aggravated burglary, and twenty-five years for aggravated rape. He contends that
the trial court improperly applied or weighed enhancement factors and failed to apply appropriate
mitigating factors.

        When an accused challenges the length, range, or the manner of service of a sentence, this
court 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) (1997); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances." Ashby, 823 S.W.2d at 169. When 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 pre-sentence report; (c) the principles of sentencing and arguments 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 Appellant made on his own behalf; and (g) the
potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210 (1997); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts relevant to sentencing
must be established by a preponderance of the evidence and not beyond a reasonable doubt. State
v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997)).

        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 made findings of fact that 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). However, where the trial



                                                  -10-
court fails to comply with the statutory provisions of sentencing, appellate review is de novo without
a presumption of correctness.

         In determining the Appellant’s sentence, the trial court applied the following enhancement
factors: (1) The Appellant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range; (2) The Appellant was a leader in the
commission of an offense involving two or more criminal actors; (5) The Appellant treated or
allowed the victim to be treated with exceptional cruelty during commission of the offense; (7) The
offense involved a victim and was committed to gratify the Appellant’s desire for pleasure or
excitement; and (8) The Appellant has a previous history of unwillingness to comply with the
conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(1),
(2), (5), (7), (8) (Supp. 2001).

         The Appellant first contends that enhancement factor (1) was misapplied because the trial
court considered two charges, assault and vandalism, for which the Appellant was “placed on pre-
trial diversion and apparently later dismissed.” However, in addition to the two charges referenced
by the Appellant, the record reflects that the Appellant has convictions for public intoxication and
misdemeanor failure to appear. These convictions are sufficient to support the application of
enhancement factor (1) to all of the Appellant’s convictions.

       The Appellant argues that enhancement factor (2) should not have been applied because his
co-defendant, not he, was the leader in the offense. Specifically, he contends that:

       . . . Richard Forrest admitted his role in picking out the victim, had sole knowledge
       of her residence location, had trafficked in drugs with her, provided the tools to break
       in and was older than the Appellant herein. . . .

       The State elicited direct testimony by Richard Forrest, that he picked the victim,
       planned the robbery, procured the tools, tape, work gloves and bandannas, and
       removed the loot. Direct testimony by Trina Knowles was that she recognized
       Richard Forrest and that he was the first one to have sex with her, and it could be
       concluded that he was the only one based upon her testimony about being flipped
       over and subjected to anal intercourse almost simultaneously.

The trial court rejected the Appellant’s argument that Richard Forrest was the leader in the
commission of the offense, finding that:

       . . . [B]ased upon the proof in this case, [the Appellant] was in fact a leader in the
       commission of the offenses involving two or more criminal actors. I base that upon
       the proof that was presented during the trial of this case. Also having had the
       opportunity to observe the other co-defendant, both during his plea of guilty and
       sentencing, as well as listening to his testimony during the trial of this case.



                                                -11-
       And it is without question in the court’s mind that this defendant, given his attitude,
       given the proof that was developed, that he was in fact a leader of a commission, the
       leader in the commission of this offense.

        This court has held that “enhancement for being a leader in the commission of an offense
does not require that the Appellant be the sole leader but only that he be ‘a’ leader” in the
commission of the offense. State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993) (citation
omitted). The co-defendant testified that the Appellant taped the victim’s legs together and first
“started having sex” with the victim. The victim testified that, after the rape, the Appellant and co-
defendant threatened to kill her, wrapped a breathing tube and telephone cord around her ankles, and
placed a New Year’s Eve hat on her head. Based upon the circumstances of this case, we find the
Appellant was a leader in the commission of these offenses. Furthermore, the trial court was in the
best position to adjudge the demeanor and credibility of the witnesses. Accordingly, the trial court's
application of enhancement factor (2) to all of the Appellant’s convictions was proper.

         The trial court applied enhancement factor (5), the Appellant treated or allowed a victim to
be treated with exceptional cruelty during commission of the offense, to the aggravated rape
conviction and placed great weight on this factor, concluding that: “I don’t think I’ve ever had the
misfortune to hear a case in which the victim, even including some homicides, was treated in the
manner this victim was. The conduct of the defendants was vile. It – words to truly describe how
heinous this crime is, escape the court.” To support this aggravating factor, the State must prove
“exceptional cruelty,” demonstrating “a culpability distinct from and appreciably greater than that
incident to" the crime. Poole, 945 S.W.2d at 98. In other words, such evidence must denote the
infliction of pain or suffering for its own sake or from the gratification derived therefrom and not
merely pain or suffering inflicted as the means of accomplishing the crime charged. State v. Arnett,
49 S.W.3d 250, 258 (Tenn. 2001) (quoting State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD
(Tenn. Crim. App. at Jackson, Mar. 14, 2000)). Our courts have upheld the application of this factor
based on proof of extensive physical abuse or torture, as well as proof of psychological abuse or
torture. Id. (citations omitted). We acknowledge the inherently cruel nature of the rape and do not
wish to minimize the anguish of the victim. However, we are bound by precedent and, therefore, are
unable to conclude that the record supports application of the "exceptional cruelty" enhancement
factor to the Appellant’s aggravated rape conviction.

         Regarding enhancement factor (7), the offense involved a victim and was committed to
gratify the Appellant’s desire for pleasure or excitement, we, also, find the trial court’s application
of this factor to the Appellant’s aggravated rape conviction improper. Enhancement factor (7) calls
into question an appellant's motive for committing a crime. State v. Kissinger, 922 S.W.2d 482, 491
(Tenn. 1996); see also Arnett, 49 S.W.3d at 261-62. "Human motivation is a tangled web, always
complex and multifaceted." Kissinger, 922 S.W.2d at 491. Proving an appellant's motive will
always be a difficult task. Id. "But the legislature . . . has placed that obligation on the State when
the state seeks an enhanced sentence." Id. We find that the trial court improperly applied this factor
because the State has failed to carry its burden of showing that the offense was committed to gratify



                                                 -12-
the Appellant's desire for pleasure or excitement above and beyond that inherent in the act of rape
itself.

        The Appellant does not contest the trial court’s application of enhancement factor (8), i.e.,
the Appellant has a previous history of unwillingness to comply with the conditions of a sentence
involving release into the community. The trial court applied this factor because the pre-sentence
report reflected that the Appellant “has a pending felony escape charge” and a probation violation.
However, the record fails to reflect a probation violation, and an escape charge is not a sentence
involving release into the community. Accordingly, we find that, upon de novo review, enhancement
factor (8) was misapplied to all of the Appellant’s convictions.

       With respect to mitigating proof, the Appellant contends that the trial court erred by not
applying mitigating factor (6): The Appellant, because of youth or old age, lacked substantial
judgment in committing the offense. Tenn. Code Ann. § 40-35-113(6) (1997). Specifically, the
Appellant contends that he “is of a young age where mistakes and errors in judgment can occur” and,
as a Range I standard offender, he “is considered amenable to rehabilitation.” The trial court
declined to apply mitigator (6), finding that:

        . . . [T]here’s nothing to indicate that because of his youth he lacked the judgment,
        as the statute said, to realize essentially the nature of his conduct. . . . Certainly, he
        showed no judgment in committing the offense, but it was not because of his youth.
        It essentially just had to do with the commission of the crime.

In determining whether the sentence should have been mitigated because the Appellant lacked
substantial judgment because of his youth, "courts should consider the concept of youth in context,
i.e., the defendant's age, education, maturity, experience, mental capacity or development, and any
other pertinent circumstance tending to demonstrate the defendant's ability or inability to appreciate
the nature of his conduct." State v. Carter, 908 S.W.2d 410, 413, (Tenn. Crim. App. 1995) (quoting
State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993)). At the time of the commission of the offense, the
Appellant was twenty years old and in good mental and physical health. Although he had dropped
out of school in the eleventh grade, he had obtained his G.E.D. The Appellant worked as a deck
hand for various barge and towing companies. His familiarity with the criminal justice system, his
several opportunities at rehabilitation, and his active role in these crimes indicate a full appreciation
for the seriousness of his acts. Id. From these facts, we think the trial court acted within its
prerogative in determining that the Appellant was sufficiently mature to understand the nature of his
conduct.

       When there are enhancement factors and no mitigating factors, there is no presumptive
sentence and the court may sentence above the minimum in the range. Tenn. Code. Ann. §
40-35-210(d). The weight to be afforded an existing factor is left to the trial court's discretion so
long as the court complies with the purposes and principles of the 1989 Sentencing Act and its
findings are adequately supported by the record. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim.
App. 1996). The weight to be afforded mitigating and enhancement factors derives from balancing


                                                  -13-
relative degrees of culpability within the totality of the circumstances of the case involved. Boggs,
932 S.W.2d at 476; see also State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). Of
particular weight in this case are the Appellant's prior convictions and his role as a leader in the
commission of the offense. We conclude that the record supports the trial court’s decision to
enhance the Appellant's sentence. Therefore, we find that a sentence of twenty-five years is
appropriate.

        Additionally, the Appellant argues that he was penalized for exercising his constitutional
right to plead not guilty and proceed to trial because the trial court was overcome by passion,
prejudice, or caprice during the sentencing of the Appellant. However, because we find that the trial
court properly applied enhancement factors (1) and (2), there is no evidence that the trial court acted
improperly. This argument is without merit.

       Based upon the foregoing principles, the judgments of conviction and resulting sentences of
the Carroll County Circuit Court are affirmed.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




                                                 -14-
