         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 21, 2002

        STATE OF TENNESSEE v. CARLOS MONTES WATERS and
                      LARAIEL J. WINTON

                  Direct Appeal from the Criminal Court for Knox County
                           No. 61974-A    Ray L. Jenkins, Judge



                                 No. E2001-00882-CCA-R3-CD
                                        March 6, 2003

The defendants appeal their convictions for especially aggravated kidnapping and attempted
aggravated robbery, as well as their twenty-five-year sentences. They claim there was insufficient
evidence to support their convictions for kidnapping, the statutes upon which they were convicted
are unconstitutional, they were denied a speedy trial, their trial counsel was ineffective, and their
sentences are excessive. Winton contends that he had a plea agreement with the State and the
prosecution committed prosecutorial misconduct by changing the terms of that agreement. After
careful review, we affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and NORMA MCGEE OGLE , JJ., joined.

Brandt Davis, Knoxville, Tennessee, for the appellant, Carlos Montes Waters.

Leslie Jeffress, Knoxville, Tennessee, for the appellant, LaRaiel J. Winton.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Robert L. Jolley and Paula Ham,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

       Originally, multi-count indictments were returned by the Knox County Grand Jury for the
defendants, Carlos Montes Waters and LaRaiel J. Winton. Defendant Waters was charged with two
counts of attempted first degree murder. Both defendants, Waters and Winton, were charged with
four counts of aggravated robbery and five counts of especially aggravated kidnapping. Following
a jury trial, both defendants were convicted of the especially aggravated kidnapping and the
attempted aggravated robbery of Mark St. Cloud, a Class A felony and a Class C felony, respectively.
The jury acquitted the defendants on Count 11, as to the aggravated robbery. Prior to trial, the State
moved to dismiss Count 11, which motion was granted by the trial court. The jury acquitted both
defendants on the other eight counts. Both defendants were sentenced to twenty-five years as violent
offenders, with 100% service for aggravated kidnapping, and six years as Range I standard offenders
for the aggravated robbery convictions, to be served concurrently.

                                                Facts

        In the early morning hours of October 21, 1996, Hubert Ewing entertained guests at his
girlfriend’s apartment in Knoxville. The guests were Ken Almon, Aconio “Qualo” McFerson, and
Mark St. Cloud. Ewing’s girlfriend, Tanesha Fitzgerald, was asleep in a back bedroom. Ewing
responded to a knock on the door by looking through the peephole. He saw the defendants, Carlos
Montes Waters (Hi-C) and Laraiel J. Winton, knew them both, and opened the door. The defendants
entered wearing masks or hose for concealment, and each carried a weapon. Waters had a small
handgun, and Winton had a sawed-off .22 rifle.

        The defendants ordered Ewing and his three guests down on the floor and demanded their
jewelry and money. St. Cloud, seeking a change of surroundings, suggested there was money at his
house. The defendants then ordered the four victims outside, still at gunpoint. All six of the party
got into St. Cloud’s Cadillac, and he drove them to his house. All disembarked there. St. Cloud’s
barking Rottweiler greeted the group. St. Cloud seized the opportunity to run, and Waters fired two
or three shots. The other victims bolted and ran, and a general clamor arose in the neighborhood.
During this period of confusion, the defendants scattered and left the vicinity of St. Cloud’s home.

        The police responded promptly, and the victims furnished the names of the defendants. After
the defendants’ arrest, Winton admitted to being a participant but claimed that the entire episode was
a conspiracy against St. Cloud, the only intended victim of the robbery and the only victim not
previously aware of the plan. According to Winton’s testimony, St. Cloud was a large scale drug
dealer who was believed to have in his possession a large quantity of cocaine, the actual objective
of the robbery.

       The Knox County Grand Jury returned multiple-count indictments against the defendants,
Carlos Montes Waters and Laraiel J. Winton. Waters was charged with two counts of attempted first
degree murder, in violation of Tennessee Code Annotated sections 39-13-202 and 39-12-101. Both
Waters and Winton were charged with four counts of aggravated robbery, in violation of Tennessee
Code Annotated section 39-13-402, and five counts of especially aggravated kidnapping, in violation
of Tennessee Code Annotated section 39-13-305. Count Eleven, as to aggravated robbery, was
dismissed on a motion of the State.

       Following trial, the jury returned a verdict of guilty as to both defendants for the especially
aggravated kidnapping of Mark St. Cloud, a Class A felony, in violation of Tennessee Code
Annotated section 39-13-305, and the attempted aggravated robbery of St. Cloud, a Class C felony,


                                                 -2-
in violation of Tennessee Code Annotated sections 39-13-402 and 39-12-101. The jury acquitted
the defendants on the eight other counts.

       Both defendants were sentenced to twenty-five years as violent offenders, 100% service for
aggravated kidnapping, and six years at 30%, concurrent, for the aggravated robbery convictions.

        The defendants appeal as of right and raise the following issues:
        (a) sufficiency of the evidence to convict of especially aggravated kidnapping;
        (b) constitutionality of Tennessee Code Annotated sections 39-13-304 and 39-13-
             305;
        (c) existence of a plea bargain between the State and Defendant Winton;
        (d) denial of speedy trial;
        (e) ineffective counsel; and
        (f) excessive sentences.


                                                Analysis

A. Sufficiency of Evidence to Convict The Defendants of Especially Aggravated Kidnapping

        The defendants contend the trial court failed to grant the motion for judgment of acquittal.
However, the standard applied by the trial court in reviewing this is the same as the standard on
appeal for determining the sufficiency of the evidence after a conviction. State v. Ball, 973 S.W.2d
288, 292 (Tenn. Crim. App. 1998).

        When an accused challenges the sufficiency of the evidence, this Court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Frost, 932 S.W.2d 1,18 (Tenn. Crim.
App. 1996) (citing State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)).

        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). Nor may this Court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the
State the strongest legitimate view of the evidence contained in the record, as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App. 1995).

        The trier of fact, not this Court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee Supreme Court stated, “[a]


                                                   -3-
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.”

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this Court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

       The defendants contend that the removal of St. Cloud from the initial scene, at gunpoint, a
distance of two or three miles, and the subsequent events were merely incidental to the attempted
robbery. In support of their contention, the defendants place their reliance on State v. Anthony, 817
S.W.2d 299 (Tenn. 1991), which addressed a kidnapping where the only restraint utilized was that
necessary to complete an accompanying felony. The Anthony court acknowledged that “the
determination of whether a detention or movement is incidental to another defense is highly
dependent on the facts in each case.” Id. at 306.

       The test, as enumerated in Anthony, is first to determine if the movement or confinement was
beyond that necessary to consummate the act of attempted aggravated robbery. Id. at 307. If
answered affirmatively, the next inquiry is whether the additional movement or confinement: (1)
prevented the victim from summoning help; (2) lessened the defendant’s risk of detection; or (3)
created a significant danger or increased the victim’s risk of harm. Id.

         Applying this test to the instant facts, we conclude that the attempted aggravated robbery was
fully consummated at the apartment of Hubert Ewing. The fact that the defendants had not realized
their intended goal did not justify the transportation of the victims at gunpoint to a different location
in their hope for further gain.

        Secondly, the multiple shots fired while at St. Cloud’s house certainly increased the victim’s
risk of harm, and we conclude that the evidence was sufficient to justify the trial court’s denial of
the defendants’ motion for judgment of acquittal.

B. Constitutionality of Tennessee Code Annotated sections 39-13-304 and 39-13-305

        We are asked by the defendants to revisit the language of Tennessee’s especially aggravated
kidnapping and aggravated kidnapping statutes to determine if the two statutes are unconstitutionally
vague. Pursuant to this issue, the defendants allege that this jury was confused by the trial court’s
instruction in this regard. The record before us does not contain a transcription of the jury charge.
The appellant is responsible for submitting a record which includes proceedings relevant to an issue
raised on appeal. Otherwise, this Court is precluded from considering this issue. State v. Miller, 737
S.W.2d 556, 558 (Tenn. Crim. App. 1987); Tenn. R. App. P. 24(b).

         As to the statutes’ alleged constitutionality, the guiding principle of statutory construction
is to seek out and give effect to the legislative purpose of the entire statute. State v. Williams, 854


                                                  -4-
S.W.2d 904, 907 (Tenn. Crim. App. 1993). The statutory meaning must be derived from the act in
light of its general purposes. Tennessee Manufactured Housing Ass’n v. Metropolitan Gov’t of
Nashville, 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990).

         The Criminal Sentencing Reform Act of 1989 modified the general rule requiring strict
construction of penal statutes. Presently, Tennessee Code Annotated section 39-11-104 dictates that
the “provisions of [the criminal code] shall be construed according to the fair import of their terms,
including reference to judicial decisions and common law interpretations, to promote justice, and
effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-104 (1991); see also Williams,
854 S.W.2d at 908.

        We have previously considered the constitutionality of the statutes and determined the
legislative intent clear and unambiguous. State v. James R. Bishop, No. 03C01-9308-CR-00268
(Tenn. Crim. App., Aug. 18, 1994) (perm. to app. denied, Tenn. 1994); Sterling v. State, No.
W1999-00608-CCA-R3-CD (Tenn. Crim. App. 2001); State v. Stephen Lloyd Givens, No. M2001-
00021-CCA-R3-CD, 2001 WL 1517033, at *5-6 (Tenn. Crim. App., Nov. 29, 2001). This issue is
without merit.

C. Plea Bargain

        Defendant Winton contends that he accepted the terms of a plea bargain offer just before
commencement of trial. Winton believed an offer to be open, although he had previously rejected
its terms. He further contends that the State added a condition that co-defendant Waters also must
plead. Waters refused to plead, and the matter proceeded to trial. Winton alleges that the added
condition amounted to prosecutorial misconduct.

        We deem these contentions unpersuasive in light of established authority regarding plea
bargains and their enforcement. The State has no obligation to extend any benefit to a defendant in
exchange for his plea of guilty. It is the trial court’s ultimate decision to accept or reject a plea
bargain, and the terms are revocable until such acceptance. Therefore, a plea bargain cannot be
enforced until acceptance by the trial court. Harris v. State, 875 S.W.2d 662, 666 (Tenn. 1994). We
hold that no plea bargain existed to enforce and that the prosecutor was not guilty of misconduct.
This issue is without merit.

D. Speedy Trial

        The defendants allege a violation of their rights to a speedy trial. The defendants were
arrested on October 1, 1996, and their trial commenced on December 1, 1999. There were numerous
intervening settings and continuances. From the record before us, it appears the continuances were
occasioned as follows: (a) the first two on the defendants’ motions; (b) four due to other trials taking
precedence; (c) one due to trial judge’s illness; (d) one on the State’s motion due to missing
witnesses; and (e) one due to failure of the clerk to have jurors available. A speedy trial motion was
filed on Defendant Winton’s behalf on June 12, 1997, and a pro se speedy trial motion was filed by


                                                  -5-
Defendant Waters on August 4, 1999.

        Without question, criminal defendants are constitutionally and statutorily entitled to a speedy
trial. U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9; Tenn. Code Ann. § 40-14-101 (2002). There
is no set time limit within which the trial must commence; rather, consideration must be given to
each case on an ad hoc basis. See State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001). The
Tennessee Supreme Court has adopted the balancing test set forth in Barker v. Wingo, 407 U.S. 514,
92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), as the method for determining whether a defendant’s right
to a speedy trial has been violated. State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v.
Baker, 614 S.W.2d 352, 353 (Tenn. 1981). If, after conducting this balancing test, it is concluded
that the defendant was in fact denied a speedy trial, constitutional principles require that the
conviction be reversed and the criminal charges dismissed. State v. Bishop, 493 S.W.2d 81, 83
(Tenn. 1973).

        In conducting this balancing test, we are required to examine the conduct of both the
prosecution and the appellant, focusing primarily on: (1) the length of the delay; (2) the reason for
the delay; (3) whether appellant asserted his right to a speedy trial; and (4) whether appellant was
prejudiced by the delay. Wood, 924 S.W.2d at 346; Bishop, 493 S.W.2d at 84; State v. Jefferson,
938 S.W.2d 1, 12-13 (Tenn. Crim. App. 1996). The most important factor is whether the defendant
was prejudiced by the delay. Simmons, 54 S.W.3d at 760. The most important inquiry with regard
to prejudice is whether the delay impaired the defendant’s ability to prepare a defense. Id. A delay
of as long as two years, standing alone, will not support a finding of a speedy trial violation.
Simmons, 54 S.W.3d at 759 (Tenn. 2001) (citing State v. Bishop, 493 S.W.2d 81,84 (Tenn. 1973)).
The triggering factor is the length of the delay. “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker,
407 U.S. at 530, 92 S. Ct. at 2192.

        A delay in excess of one year qualifies as “presumptively prejudicial,” sufficient to invoke
a Barker analysis. See Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691 n.1
(1992). The reasons for the various delays were previously set forth as clearly as the record before
us allows. Only two of the eight continuances could conceivably be laid to the State’s responsibility;
the State’s missing witnesses and the failure to have a jury panel on hand. The lack of a jury panel
occasioned only a two day delay. Neither these or the other continuances could rationally be
construed as a play to gain an advantage over the defense.

       Defendant Winton clearly asserted his right by demanding, by motion, a speedy trial on June
12, 1997. Waters’ pro se speedy trial motion was filed significantly later on August 4, 1999.
Attorneys for both defendants had, at various times, orally objected to continuances and requested
an immediate trial.

        The most important factor in this analysis is whether the defendants suffered prejudice from
the delay. State v. Simmons, 54 S.W.3d 755, 760 (Tenn. 2001). In evaluating possible prejudice,
we must be cognizant of the rights that speedy trial protects: (1) to prevent undue and oppressive


                                                  -6-
incarceration prior to trial; (2) to minimize anxiety and concern accompanying public accusation;
and (3) to limit the possibilities that long delays will impair the defense. State v. Bishop, 493
S.W.2d 81, 85 (Tenn. 1973).

         The defendants did endure extended incarceration. Winton was granted a bond reduction and
pretrial release on January 30, 1998. Waters’ bond was reduced twice, but he was unable to secure
pretrial release. The defendants allege that the delay caused them “extreme stress” and “anxiety.”
Significantly, no claim is made by the defendants as to the delay causing impairment of their ability
to prepare a defense. The serious charges in the indictment may very well have provoked some
degree of anxiety and stress, but our criminal laws would be ineffectual in deterrent value if they
failed to elicit such a reaction. There being no showing or claim of the delay causing impairment
of their defense, we conclude the defendants have failed to demonstrate sufficient prejudice to
violate their right to a speedy trial.

E. Effectiveness of Trial Counsel

        The defendants next allege that their respective trial counsel were ineffective. Before
discussing the defendants’ contentions regarding this claim, we must stress that “the practice of
raising ineffective assistance of counsel claims on direct appeal is ‘fraught with peril.’” Kirby
George Wallace v. State, No. 01C01-9308-CC-00275, 1994 Tenn. Crim. App. LEXIS 591,
(Tenn.Crim. App. at Nashville, Sept. 15, 1994). As in this case, we emphasize that “ineffective
assistance of counsel claims should normally be raised by petition for post-conviction relief.” State
v. Derenzy Turner, No. 02C01-9512-CR-00390, 1997 Tenn. Crim. App. LEXIS 552,(Tenn. Crim.
App. at Jackson, June 11, 1997), perm. to appeal denied (Tenn. 1998). In the instant case, an
evidentiary hearing was conducted during the motion for a new trial which addressed the ineffective
counsel claims. Therefore, we will deal with the issue on the merits.

         This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The defendant has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure
to prove either deficiency or prejudice justifies denial of relief; therefore, the court need not address
the components in any particular order or even address both if one is insufficient. Goad, 938 S.W.2d
at 370. In order to establish prejudice, the defendant must establish a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The defendant must overcome the presumption that counsel’s conduct


                                                  -7-
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a defendant must show “that counsel’s acts or omissions were so serious as to fall
below an objective standard of reasonableness under prevailing professional norms.” Goad, 938
S.W.2d at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

        In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689, 104 S. Ct. at 2065; Honeycutt, 54 S.W.3d at 768. The fact that a particular strategy or tactic
failed or hurt the defense does not, standing alone, establish unreasonable representation. However,
deference to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982).

        1. Defendant Winton’s Claim

        An evidentiary hearing was had on the motion for a new trial in which Defendant Winton
expressed general satisfaction with his attorney in terms of properly communicating plea bargain
offers, preparation of the client for trial, and trial performance. Winton’s primary complaint is the
attorneys’ failure to convey to the trial court on the day of trial that Winton had “accepted” a plea
offer. Defendant Winton also asserted there was no independent investigation made, and his counsel
admitted that he was unaware of the availability of funds for hiring an investigator.

       In this opinion, we have previously concluded that no plea bargain existed which would be
admissible to the trial court. Absent a meeting of the minds as to an agreement between the
defendant and the State, such submission would have been in vain and an exercise in futility.

        Winton’s trial counsel testified as to the investigation that he personally performed. The
transcript of the evidence reveals that Winton’s own testimony as to his version of events was
apparently accredited by the jury in their verdict. Therefore, it is disingenuous to suggest that further
investigation would have benefitted the defendant. We conclude that Defendant Winton has not
shown deficient performance on the part of trial counsel.

        2. Defendant Waters’ Claim

        Defendant Carlos Waters’ claim of ineffective trial counsel is essentially that a conflict
existed to the degree that he did not receive competent representation. Waters also says that his
attorney refused to take his phone calls. Waters estimated he talked to counsel on eight occasions.
His attorney did not recall the exact number. An investigator was employed to assist in Waters’
defense and talked with Waters both separately and together with counsel.

        On April 26, 1999, Waters filed a pro se “Motion for Withdrawal Counsel [sic].” The motion


                                                  -8-
appears boilerplate in nature, alleging conflict of interest, incompetence, professional negligence,
and ethical violations. It is not internally supported by specific examples or instances. The record
also contains similar motions filed by Waters as to his other attorneys at the preliminary hearing and
during the trial.

        The trial transcript reveals that Waters’ counsel conceded to a number of the defendant’s
demands, against counsel’s advice and professional judgment. Waters’ attorney made only one
peremptory challenge during jury selection and was then rebuked by Waters for that action. At
Waters’ insistence, no further challenges were made. His counsel waived opening statement rather
than accede to Waters’ demand that counsel address the jury in an impermissible fashion more
appropriate to ecclesiastical than judicial functions. Waters also insisted on testifying and proceeded
to present a discourse until stopped and removed from the stand at the direction of the trial judge.
The record glaringly reflects that Waters’ counsel was handicapped, not by his own incompetence
or indifference, but by impediments of his client’s making. We conclude that Waters’ trial attorney
rendered effective representation, though challenged by difficult circumstances.

F. Sentencing

        Both defendants appeal the length of their sentences and allege that certain enhancement
factors were improperly applied and mitigating factors improperly rejected. This Court’s review of
the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code
Ann. § 40-35-401(d) (1997). This presumption is conditioned upon an affirmative showing in the
record that the trial judge considered the sentencing principles and all relevant facts and
circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review is de novo. State
v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Comments. In conducting our review, we are required,
pursuant to Tennessee Code Annotated section 40-35-210(b) (Supp. 2000), to consider the following
factors in sentencing:
        (1) [t]he 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 the defendant’s own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be
the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors
do exist, a trial court should enhance the minimum sentence within the range for enhancement


                                                 -9-
factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.
§ 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each
factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the
trial court as long as the trial court complies with the purposes and principles of the sentencing act
and its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State
v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-210,
Sentencing Comm’n Comments. Nevertheless, should there be no mitigating factors, but
enhancement factors are present, a trial court may set the sentence above the minimum within the
range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967 S.W.2d at 806; Manning v. State, 883
S.W.2d 635, 638 (Tenn. Crim. App. 1994).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and 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. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        We conclude the trial court did not properly consider certain enhancement1 and mitigating
factors, therefore, review is de novo without a presumption of correctness.

       At sentencing, the trial judge considered the evidence adduced at trial, the presentence report,
enhancement factors relied upon by the State, mitigating factors submitted by Defendant Winton,
argument of counsel, the testimony of the defendants, and a statement by Defendant Winton’s
mother.

       The defendants were classified as Range I standard offenders with a sentencing range for
especially aggravated kidnapping of fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(1)
(1997). This being a Class A felony, the sentences would begin at the midpoint of the range before
application of enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c), (d), (e).

        As to attempted aggravated robbery, both defendants were Range I standard offenders with
a sentencing range of three to six years. Tenn. Code Ann. § 40-35-112(3). As a Class C felony,
sentencing would begin at the minimum sentence prior to consideration of enhancement or
mitigating factors. Tenn. Code Ann. § 40-35-210(c).

       The trial judge considered the proposed enhancement and mitigating factors and ruled in the
following manner:
          The State insists that certain enhancement factors contained in 40-35-114 apply,
       and these are separated as to the defendants in certain cases.



        1
           The 2002 amendment of Tennessee Code Annotated section 40-35-114 added present (1) and redesignated
former (1) through (22 ) as pre sent (2) through (23) respectively.

                                                    -10-
    Both defendants under No. 1 have a previous history of criminal convictions.
Although they may be minor, the enhancement factor does not differentiate between
serious and minor. So the Court finds the first one.

    Mr. Winton is – the State insists that – No. 2, that the defendant was a leader in
the commission of an offense. Mr. Winton – under that theory, he recruited rather
than discussed the offense with his co-defendant and that is sufficient to make him
a leader in the commission. The Court so finds.

    As to the third – the third offense, regardless of the finding of the jury, the Court
feels that there was more than one victim involved, that the verdict of the jury
indicates that the jury did not find that the defendants were guilty beyond a
reasonable doubt of the offense wherein the remaining victims were a party. And so
the Court relies upon that as to both defendants.

    The State insists that the defendant Winton in No. 8 has a previous history of
unwillingness to comply with the conditions of a sentence involving release, and,
two, that the defendant was adjudicated to have committed a delinquent act or acts
that would constitute a felony if committed by an adult. The Court so finds.

    All right. As to No. 13 under Mr. Winton, the State abandons that he was on bail
at the time of the commission; however, the defendant Waters was on probation
under that enhancement factor.

    Under Sections 10 and 16, the language is so – is almost identical, and the Court
considers those together. The activity – the criminal activity of both defendants was
calculated as such to – to create a risk to human life, and the Court finds that joint
designation.

    The defendant Winton insists that under the mitigating factors 40-35-113 the
defendant assisted the authorities in uncovering offenses or in detecting or
apprehending other persons who have committed the offenses. The Court finds to
the contrary. That did not exist.

   And under 13, any other factor consistent, the Court finds no other factor
consistent.

   The State does not insist on consecutive sentencing under 40-35-115, and the
Court will not consider that.




                                          -11-
       1. Defendant Winton’s Sentence

       The trial court applied six enhancement factors and no mitigating factors for Defendant
Winton. The finding of a previous history of criminal conduct or convictions, Tenn. Code Ann. §
40-35-114(1), was conceded by the defendant.

       Next, Defendant Winton was found to be a leader in the commission of the offense. Tenn.
Code Ann. § 40-35-114(2). This factor was supported by Winton’s own testimony and was properly
applied.

         The trial court found that the offenses involved more than one victim and thus applied
Tennessee Code Annotated section 40-35-114(3). Both defendants contend that they were acquitted
of all offenses against the other alleged victims and, therefore, only one victim is involved. Four
victims were named in the indictments, and the jury acquitted the defendants of all charges referring
to these victims, except the especially aggravated kidnapping and attempted aggravated robbery of
Mark St. Cloud. The statutory language of Tennessee Code Annotated section 40-35-114(3) limits
its application to “an offense” involving “more than one victim.” Therefore, there cannot be multiple
victims for any one offense against a specific, named individual. See State v. Imfeld, 70 S.W.3d
698, 706 (Tenn. 2002). Here, the trial court is limited to sentencing based upon the defendant’s
conviction involving the crimes against this one victim. We conclude the trial court improperly
applied this enhancement factor.

        The court next found that Defendant Winton had a previous history of unwillingness to
comply with the conditions of a sentence involving release into the community. Tenn. Code Ann.
§ 40-35-114(8). This was a result of the defendant’s admitted failure to report as ordered to Pretrial
Services. Despite the defendant’s admitted problems with compliance with Pretrial Services, we do
not feel the defendant’s failure to report is sufficient to apply this enhancement factor.

        Next, the trial court found that Defendant Winton had committed a delinquent act or acts that
would constitute a felony if committed by an adult. Tenn. Code Ann. § 40-35-114(20). The record
reflects Winton was adjudicated to have committed a juvenile act of “theft of a vehicle,” thus
supporting application of this factor.

        Finally, the trial court found that Winton had no hesitation in committing the crimes when
risk to human life was high, and the crimes were committed under circumstances under which the
potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-114(10), (16). The court
consolidated these as a single enhancing factor.

       The defendant argues that the use of a deadly weapon was an essential element of both
convictions, therefore, it cannot be used as an enhancement factor. We disagree. The record reflects,
and we have concluded, that Winton recruited the co-defendant Waters to engage in the crimes
committed. Waters’ act of discharging his weapon was not a necessary element of especially
aggravated kidnapping or attempted aggravated robbery and unquestionably increased the risk to


                                                -12-
human life and/or bodily injury. Tenn. Code Ann. § 39-11-401, 402.

        In addition, individuals other than the victim were in the area and at risk, both for their lives
and for great bodily injury. Both factors (10) and (16) may be applied under these circumstances.
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995); State v. Zonge, 973 S.W.2d 250, 259
(Tenn. Crim. App. 1997).

         Winton filed two mitigating factors for the court’s consideration: (1) that he assisted
authorities in locating and recovering any property or person involved in the crime, and (2) his
remorse and admission at trial of his involvement. Tenn. Code Ann. § 40-35-113(10), (13) (1997).
The record reflects that Winton did assist in locating the weapon he had used in the offenses. The
trial judge considered these factors but did not apply them. In addressing factor (10), the judge ruled
as follows: “The defendant assisted the authorities in uncovering offenses or in detecting or
apprehending other persons who have committed the offenses. The court finds to the contrary. That
did not exist.” The language of Tennessee Code Annotated section 40-35-113(10) is: “The
defendant assisted the authorities in locating or recovering any property or person involved in the
crime.” We conclude Winton’s action did assist in recovering property, i.e. the weapon, involved
in the crime. This mitigating factor was applicable to Winton.

         Pursuant to this analysis, there are four applicable enhancement factors (combining (10) and
(16)) and one mitigating factor. The sentences imposed were the maximum of twenty-five years for
especially aggravated kidnapping and six years for attempted aggravated robbery. Although we hold
that the trial court failed to apply a mitigating factor, that does not equate to a reduction in the
sentences. State v. Ruane, 912 S.W.2d 766, 785 (Tenn. Crim. App. 1995). As a result of our de
novo review, we hold that the remaining enhancement factors are entitled to significant weight which
justify the sentences imposed.

        2. Defendant Waters’ Sentence

        The trial court applied five enhancing factors and no mitigating factors to Waters’ sentence.
The first enhancing factor, that the defendant had a previous history of criminal conduct or criminal
convictions, Tenn. Code Ann. § 40-35-114(1), was conceded by the defendant and properly applied.

        The trial court also applied factor (4), that the offenses involved more than one victim. For
the reasons set forth in the analysis on Winton, we conclude the trial court improperly applied this
enhancement factor.

        Next, enhancement factor (13) was applied due to Waters’ probationary status when the
instant offenses were committed. However, the record does not reflect that the probated offense,
casual exchange, was a felony. We thus conclude this enhancement factor is inappropriate.

       Lastly, the trial court applied enhancement factors (10) and (16). We conclude these were
properly applied for the reasons cited previously herein under the Winton analysis.


                                                  -13-
       No mitigating factors were submitted by Defendant Waters, and none were applied. We
conclude, pursuant to de novo review, that two enhancement factors and no mitigating factors are
applicable. The elimination of an enhancement factor does not automatically equate to a sentence
reduction. State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). We conclude that the
remaining enhancement factors are of sufficient weight to justify the sentences as imposed.

                                       CONCLUSION

       For the aforementioned reasons, we affirm the judgments of the trial court.




                                                        ________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




                                              -14-
