IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
AUGUST SESSION, 1998
FILED
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9801-CR-00007 ) November 10, 1998 Appellee, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk ) SHELBY COUNTY
VS. )
) HON. JOSEPH B. DAILEY WALTER JOHNSON, ) JUDGE )
Appe llant. ) (Especially Aggravated Kidnapping)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT C. BROOKS JOHN KNOX WALKUP 707 Adams Avenue Attorney General and Reporter Memphis, TN 38177 ELIZABETH T. RYAN
Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
JAMES M. LAMMEY
Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Po plar Stree t
Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
On May 1, 1997, the Defendant, W alter Johnson , was convicted by a Shelby County jury of especially aggravated kidna pping and w as su bseq uently sentenced to twenty-five years as a Range I offender. The Defendant now appe als his conviction and sentence as of right, pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. We affirm the judgment of the trial court.
On appe al, the Defendant presents three issues for review: (1) whether the in-court identification of the Defe ndant was tainted by an un duly sugges tive lineup; (2) whether the trial court properly allowed proof of the rape o f the victim during the De fenda nt’s trial fo r espe cially aggravated kidnapping; and (3) whether the trial court properly sentenced the Defendant to twenty-five years for especially aggravated kidnapping.
On January 27, 19 94, be tween noon and o ne o’c lock p. m., the victim in this case, Joyce Davis, stopped on her way hom e to use a pa y phone on McLem ore Street in M emph is. While she was using the phone, the Defendant, whom she did not know, pulled up in a red pick-up truck and asked how she was doing. She responded that she was fine. The Defendant then got out of the truck, walked over to her, touched her with a knife, and told her, “I think you need to get in my truck.” Fearful, the victim followed his commands.
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The Defendant escorted the victim to the passenger side of his truck, and before he shut the door, he tore the knob from the window lever and threw it on the floorboard. Once inside the truck, the victim noticed that the passenger side door handle had also been removed. The Defendant proceeded to drive the truck across a bridge to A rkansa s. During the drive, the Defendant asked the victim to raise up her skirt so that he could see her legs. In Arkan sas, they drove on a dirt road to a seclud ed spo t, where they stopped. The Defendant turned to the victim a nd sa id, “Bitch , I’m go ing to k ill you.” The victim began to cry, and the Defendant told he r to stop crying s o that s he wo uld not arouse the suspicions of the police should th ey drive by o r stop.
The Defendant had the victim place one leg on the floorboard and the other on the seat of the truck, and he tore her pantyh ose. H is penis was o utside of his pants; and as he tore the victim’s pantyhose, he was ejaculating. He stated, “What is a piece of p____y compared to your life.” He performed cunnilingus on the victim and then penetrated her, holding to the back of her neck a knife, which the victim described at trial as having a black handle and a long blade.
The Defendant penetrated the victim for approximately thirty minutes but stopped the rap e whe n he h eard a nothe r car ap proac hing. The Defendant emerged from the truck to relieve himself, leaving the knife on the dash of the truck. Wh en he g ot back in to the truck , he drove to anothe r location. A t the second location, evidently the truck almost got stuck, and the Defendant decided to take the victim home. At that time, the Defendant placed the knife in the sun visor abo ve his hea d.
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During the abduc tion and ra pe, the D efenda nt referred to himself several times as “Willie.” Several times he told the victim, “Call me Mr. Willie.” One item of evidence introduced at trial was a piece of pap er take n from the De fenda nt’s residen ce on w hich the w ords “W illie call me” w ere written .
On the way back to Memphis, the Defendant apologized for raping the victim and asked if she had been raped before. Although the Defendant believed that he was taking the victim to her own home, the victim had the Defendant drop her off at a n eighb or’s house instead. The Defendant ordered her not to call the police and then backed the truck down the street. The victim was able to see three of the digits on the truck’s license plate as he bac ked do wn the s treet. She testified at trial that she had seen the numbers “363,” although she also admitted that she wa s not entirely sure she remembered the correct numbers. After the Defendant left, the victim went inside, called the police, and was taken to the Rape Crisis Ce nter, whe re she su bmitted to med ical testing.
The victim to ld police that the Defendant’s truck had the word “Ford” on the outside and the word “Ranger” on the inside. She described it as having a red exterior and some white trim, a darker panel on the driver’s front side near the fender, and torn seats in the interior. She described her perpetrator as “a m ale black, approximately 200 pounds with a heavy build, a full gray beard, a blue flannel shirt, blue jeans, an d some type of green sh oes.”
A few days after the abduction and rape, the victim saw the Defendant driving in the same truck, and she went into a nearby store to call the police. On this occasion, she w as ab le to take down the full license tag num ber, ?YHN -633,”
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which she relay ed to the p olice. How ever, evide ntly the victim was m istaken about the tag, because the license numbers that she provided belonged to a 1985 Ford pick-up which was not red and which was registered to a man named Victor McGee.
On August 18, 1994, a Memphis police officer who was working on the investigation in this case received information that he could find the Defendant near Vance and Orleans streets around six o’clock a.m. The officer went to the area at that hour but had no luck finding the Defendant. He returned the following morning at the same time and saw a red pick-up truck with ladder racks on the top drive n by a m an who match ed the d escription of the victim ’s assailan t. The license p late on the vehicle was “YHW-363.” When he stopped the vehicle, the officer noted and photographed a knife which was stuck in the sun visor above the driver’s s eat. He then arrested the driver, whom he identified as the Defen dant, W alter John son.
The police conducted two separate lineups in which the Defendant participated. Ms. Davis was present at the second lineup and picked the Defendant out of the lineup as her assa ilant. At the police station, she also identified the Defen dant’s truc k as the ve hicle driven by her as sailant.
I. MOTION TO SUPPRESS IN-COURT IDENTIFICATION The Defendant first argues that the victim’s in-court identification of him as her abductor and rapist was tainted by an unduly suggestive lineup. He argues that although the trial court did suppress the lineup identification, the court erred
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in denyin g his m otion to supp ress th e victim ’s in-co urt iden tification of him. He contends that this error resulted in a violation of his due process rights.
The Defendant points to the fact that he was th e only perso n in the lineup who had a full, salt-and-pepper beard and salt-and-p epper hair. He therefore asserts that he was the only suspect in the lineup who completely matched the description of the perpetrator provided by the victim. The Defendant argues that the lineup “was s o extra ordina rily sugg estive th at it created a virtual certainty of irrepa rable misiden tification.” He contends that the lineup thus tainted the victim’s in-court identification of him as her perpe trator.
On a motion to suppress, deference is given to the trial court to assess the credibility of the witnesses and determine issues of fact, and th e prevailing party is entitled to the strongest legitimate view of the evide nce. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The findings of fact of the trial court at a suppression hearing will not be disturbed on appeal unless the evidence in the record p repond erates o therwise . Id.
The law in Tennessee concerning lineup procedures is quite clea r. “A defen dant’s due process rights may be violated by a lineup if the identification procedure was so sug gestive as to give rise to ‘a very substantial likelihood of irrepa rable identification.’” State v. Larry Blair, No. 01C01-9703-CR- 00084, 1998 W L 158750, at *3 (Tenn. Crim. App., Nashville, Apr. 7, 1998) (quoting Simmons v. United States, 390 U.S . 377, 384 (1968)). “A pretrial confrontation pro cedure may be unlawful if it is unnecessarily suggestive and cond ucive to irrepar able
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mistaken identification under the totality of the circumsta nces.” State v. P hilpott, 882 S.W .2d 394, 399 (Tenn. Crim . App. 1994 ).
However, “[e]ven when pretrial identification procedures are found to be suggestive, out-of-court and in-c ourt identifications may still be admissible. The inquiry is whether the identification was reliable even though the procedure was sugge stive.” Id. at 400; see State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990). The United States Supreme Court set forth five factors to be considered when evalua ting the prop riety of the ide ntification pro cess. Neil v. Biggers, 409 U.S. 188, 19 9-200 (197 2); Benn ett v. State, 530 S.W.2d 511, 514 (Tenn. 1975). They are “[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior de scriptio n of the crimin al, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the con frontation.” Neil, 409 U.S. at 199-200.
In this case, the trial court suppressed the lineup identification but overruled the Defe ndant’s m otion to suppress the victim’s in-court identification. The trial judge stated tha t he “was satisfied tha t [the victim’s] in-court identification was based on her recollection of the events and not on refreshing of any memory as a result of the lineup that too k place.” We agree with the trial court’s decision to exclude the lineup ide ntification at trial b ecaus e of its suggestive nature. However, we cannot agree with the Defendant that the sugge stive lineup tainted the victim’s in-co urt identificatio n of her p erpetrato r.
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Applying the totality of the circumstances standard and the five factors enume rated above, we find that the victim’s in-court identification of the Defendant as he r assa ilant was su fficiently reliable. With regard to factor one, the victim’s opportunity to view her assailant, the victim in this case spent approximate ly two hours during the middle of the day with her assailant, who made no attemp t to conceal his iden tity. Factor two is the degree of attention the victim paid to her as sailan t. Like the victim in Neil v. Biggers, the victim in this case “was n o cas ual ob serve r, but ra ther the victim o f one o f the m ost pe rsona lly humiliating of all crimes.” Id. at 200. The entire encounter, including the rape, lasted approximately two hours, giving the victim ample time and cause to pay close attention to her assailant. Factor three is the degree of accuracy of the victim’s description. In this case, the description the victim gave to the police of her assailant was de tailed a nd ac curate . She a lso de scribe d the D efend ant’s truck with great detail and even provided the police a strikingly similar license plate number to that on the Defendant’s truck. With regard to factor four, the victim expressed absolutely no doubt in court or at any other time as to the identity of her as sailan t. Finally, fa ctor five is the on ly factor that co uld conc eivably weigh again st the re liability of th e victim ’s identification since there was a three-year lag between the crim e and the trial. However, in light of the totality of the circumsta nces and the other four factors , we believe that this factor did not su bstan tially affec t the victim ’s ability to correctly identify the Defendant as her a ssailant.
II. PROOF OF THE RAPE
The Defendant next contends that the trial court erred in not limiting the proof of rape. While the kidnapping in this case took place in Tennessee, the
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actual rape of the vic tim took place in Arkansas. Therefore, the Defendant was not tried for rape in Tennessee. Basing his decision on Rule 403 of the Tennessee Rules of Evidence, the trial judge decided to allow evidence of the rape during the Defendan t’s trial for especially aggravated kidnapping, concluding that the probative value of the rape testimony outweighed any prejudicial effect it might have. He determined that eviden ce of th e rape was n ot only relevant to a determination of the victim’s credibility, but also inseparable from the kidnapping evidence in this case.
The Defendant argues that the probative value of the rape testimony was subs tantially outweighed by the danger of unfair prejudice, confusion of the issues, and m isleading th e jury. He contends that the trial court allowed the victim to recount too many details of the rape, which shocked and horrified the jury, “effectiv ely turning what was technically a trial for kidnaping in to [sic] what was, for all practical purposes, a trial for rape.” The Defendant contends that the trial court’s decision to allow detailed rape testimony was an abuse of discretion.
In Ten ness ee, evid ence is dee med releva nt if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or mislea ding the ju ry, or by con sideration s of undu e delay, w aste of time, or needless p resentation of cu mulative eviden ce.” Tenn. R. Evid. 403. Thus, under Rule 403, prejudicial evidence is not automatically excluded; in order for it to be excluded, its probative value must be “subs tantially outweig hed” by its
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prejudicial effect. (Empha sis added.) As this Cou rt has previously noted, “[a]ny evidence which tends to establish the guilt of an ac cused is highly pre judicial to the accused, but this does not mean that the evidence is inadmissible as a matter of law.” State v. D ulsworth , 781 S.W .2d 277 , 287 (T enn. C rim. App . 1989).
The determ ination of whe ther ev idenc e is rele vant, an d if so, wheth er it shou ld be excluded under Rule 4 03 of th e Te nnes see R ules o f Evide nce, is within the sound discretion of the trial judg e. State v. Williamson, 919 S.W.2d 69, 78 (Tenn . Crim. A pp. 199 5); State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App. 1994). “In deciding these issues, the trial court must consider, among other things, the questions of fact that the jury w ill have to consider in determining the accused ’s guilt as well as other evidence that has been introduced during the course of the trial.” Williamson, 919 S.W .2d at 78. This C ourt will not overturn a trial court’s ruling on a Rule 403 issue absent a clear showing of abuse of discretion. State v. Hayes, 899 S.W.2d 175, 183 (T enn. C rim. App . 1995); State v. Bigbee, 885 S.W .2d 797, 806 (Tenn. 199 4).
In this cas e, whe n ruling in favor of admitting evidence of the rape, the trial judge sta ted:
[T]he burden on the State is to convin ce the jury, to prove beyond a reaso nable doub t and to do so by con vincing the jury tha t this victim is a credible witness. . . . And so to the ex tent to wh ich this witness can articulate wh at happen ed to her, and the details of what happened, and the accuracy of what happened will go a long way in convincing the jury that she is to be believed. Th is is a January ‘94 event. And so I think it’s important to allow this w itness to explain as much detail as she can to convince the jury that she st ill remembers what went on over three years ago.
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It is clear from the foreg oing that the trial court wa s aware of the prejudicial effect of the rape testimo ny, but balanced it against the probative value of the testimony and concluded that it was necessary to the case. Viewing the case as a whole, we canno t agree w ith the Defendant that the trial judg e abu sed h is discr etion in admitting evidence of the rape.
III. SENTENCING
The Defenda nt next contends tha t the trial court impro perly se ntenc ed him to twenty-five years for especially aggravated kidnapping. He argues that the court should not have applied the following enhancement factors when senten cing him :
(1) The defe ndant has a previous history of crim inal convictions or criminal b ehavior in addition to those ne cessar y to establish the appropriate range;
...
(5) The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;
(6) The personal injuries inflicted upon . . . the victim [were]
particularly g reat;
(7) The offens e involv ed a vic tim and wa s com mitted to g ratify the defe ndant’s d esire for ple asure o r excitem ent;
...
(10) The defendant had no hesitation about committing a crime when the risk to human life was high;
....
Tenn. C ode Ann . § 40-35-114 (1), (5), (6), (7), (10). 1
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.
1 The Defendant contends that the trial court also applied factor (16), which is that the crime was committed under circumstances in which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-114 (16). However, from a reading of the record, it does not appear that the trial court applied this factor when sentencing the Defendant. Therefore, we have not considered it in our review.
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Id. § 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 circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn . 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 of sentencing 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 be half; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-1 02, -103 , - 210; see State v. Smith, 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 wou ld have p referred a different res ult. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
A. High R isk to Hu man L ife W e first find that enhancement factor (10), which provides that “[t]he defendant had no hes itation abo ut com mitting a c rime wh en the risk to hum an life was high,” was imp roperly applied. Te nn. Code Ann. § 40-3 5-114(10) . This factor is essential to the crime of especially aggravated kidnapping. In Manning v. State, this Court differentiated between crimes requiring “that the criminal
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activity be ‘accomplished by the use of a deadly weapon’” and those requiring only “that the defendant be ‘armed with a deadly weapon.’” 883 S.W.2d 635, 640 (Tenn. Crim. App. 1994). This Court concluded that statutes including the phrase, “armed with a deadly weapon,” “do not require that the weapon be actua lly employed in the commission of the offense” and therefore warrant application of enha ncem ent factor (1 0). Id.; see State v. Kern, 909 S.W .2d 5, 7 (Tenn. C rim. App. 199 3).
Our especially aggravated kidnapping statute employs the following language: “Espec ially aggrava ted kidnap ping is false imprison ment . . . [a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to believe it to be a deadly weapon . . . .” Tenn. Code Ann. § 39-13-305(1). There is necessarily a high risk to human life whenever a deadly weapon is used. Therefore, we find that enhancement factor (10) was improp erly applied in senten cing the D efenda nt.
B. Exce ptional C ruelty
In addition, we find that there was not sufficient evide nce in this c ase to upho ld application of enha ncem ent factor (5 ), that the defendant treated the victim with exceptional cruelty in the comm ission of the offe nse. Id. § 40-35- 114(5). The statute specifically requires a showing of “exceptional” cruelty, which is usually found in cases of abuse or torture. See State v. Davis , 825 S.W .2d 109, 113 (Tenn. Crim. A pp. 199 1); State v. Haynes, 720 S.W.2d 76, 80 (Tenn. Crim. App. 1 994). A show ing of exceptional cruelty under the statute requires something beyond that need ed to effec tuate the c rime. State v. Emb ry, 915 S.W .2d 451 , 456 (T enn. C rim. App . 1995).
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In Mann ing v. State , the cruelty factor was found not applicable in a case in which the Defendant abducted the victim and forced her to participate in four sexual acts while holding a knife to her person, using abusive language toward her, and makin g threats to harm her. 883 S.W.2d at 639. This Court also found the exceptional cruelty factor did not apply in a case in which the defendant entered the victim’s apartm ent, pushed her into the bathtub, and hit her in the mouth causing injuries. State v. David Patrick Pearson, No. 03C01-9103-CR-87, 1992 WL 70547 , at *5 (Te nn. Crim . App., Kn oxville, Apr. 9, 1 992), aff’d in part and remanded for resentencing, 858 S.W.2d 879 (Tenn. 1993) (on appeal, the Tennessee Supre me C ourt did not specifically a ddress the exce ptional cru elty factor but upheld the judgm ent of the C ourt of Crim inal App eals with re gard to enhancement and mitigation factors.). “In State v. Edwards, 868 S.W.2d 682 (Tenn. Crim. App . 1993), this [C]ourt rejected this enhancement factor for a rape conviction in which the defen dant ‘g agge d, threa tened and s truck th e victim ’ while committing the offense. Th e court held that the crime was ‘cruel but not excep tionally so, so as to w arrant ap plication of th e excep tional crue lty enhance ment factor.’” Embry, 915 S.W.2d at 456.
Clearly, the victim has suffered a great deal of emotional pain and anguish as a result of her assault. As this Court has previously noted, “[a]nytime that an individual is raped exceptional cruelty has been perpetrated upon the victim in the eyes of this Court. . . . The crime of rape . . . is always a cruel, ruthless, and atrocious crime. R apists dehumanize their victims and generally inflict everlasting scars on their lives.” Pearson, 1992 W L 7054 7, at *5. Not on ly did the victim suffe r the deh uman izing expe rience of ra pe, but she was also abducted at knife point, th reaten ed with her life, a nd driv en to a seclud ed sp ot in
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another state to suffer her fate, all of which is the basis for the crime for which the Defen dant wa s convicte d in the co urt below .
W e acknowledge that the crime committed again st the vic tim in this case was especially cruel. It is for this reason that the legislature has classified the crime of especially aggra vated kidnap ping as a C lass A felony, the most serious crime unde r our law excep ting on ly those crimes which potentially carry the death penalty. While fully recognizing the severity of this crime , we are u nable to conclude that the record supports application of enhancement factor (5). Tenn. Code Ann. § 40-35-114(5). 2 Although we certainly do not intend to belittle the impact of this crime on the victim, we do not believe that the harm inflicted upon the victim in this case rises to the level of “exceptional cruelty” prescribed by our statute.
C. Other E nhancem ent Factors Desp ite the trial court’s misapplication of factors (5) and (10), based upon the othe r facts in this c ase, we do not he sitate to uphold the sentence imposed upon the Defe ndant. Id. § 40-35-114(5), (10). Enhancement factor (1) requires that the court consider the defendant’s past history of criminal convictions or behavior. Id. § 40-35-114(1). The Defendant in this case has been arrested many times, alth ough h is presen tence report does not provide clear documentation of all charges and convictions. It is clear, however, from the presentence report that in 1979 the Defendant was convicted of murder in the
2 We note that some facts which may have been used to uphold application of factor (5) in this case may have been related to the commission of the rape, although it is unclear from a reading of the record precisely which facts the trial judge relied upon in applying the exceptional cruelty factor. As we have previously mentioned, the Defendant was tried and convicted in our jurisdiction only of especially aggravated kidnapping.
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first degree and that the Defendant was also convic ted of ro bbery in 197 1. This evidence is clea rly sufficient to warrant application of enhance ment factor (1).
Enhancement factor (6) requires that the court conside r whether the personal injuries inflicted upon th e victim we re particula rly great. Id. § 40-35- 114(6). This factor is not applicable to a crime involving seriou s bodily injury because it is cons idered an es sentia l element of such a c rime. See State v. Crowe, 914 S.W .2d 933 (Tenn . Crim. A pp. 199 5). Although se rious bodily injury may be an eleme nt of es pecia lly aggra vated kidna pping , the D efend ant in th is case was charged because of his “use of a deadly weapon.” T he indictment does not charge the Defendant with the infliction of serious bodily injury on the victim during the commission of the kidnapping. Therefore, enhancement factor (6) may b e app lied he re. In ap plying th is facto r, the tria l judge read th e victim ’s impact statement for the record and concluded, “[T]he dam age th at was done in this specific case . . . was e xtensiv e and far-rea ching . Virtua lly destro yed this wom an’s menta l health, stab ility, family life.” After reviewing the record, we agree that factor (6 ) was pro perly app lied in sente ncing the Defen dant.
The final enhancement factor at issue is factor (7), which requires that the offense be committed to gratify the defendant’s desire for pleasure or excitem ent. Tenn. Code Ann. § 40-35-114(7). The State has the burden of demonstrating that a crime is sexually m otivated. State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993); State v. Clabo, 905 S.W .2d 197 , 206-07 (Tenn . Crim. A pp. 199 5); State v. Smith , 910 S.W.2d 457, 460 (Tenn. Crim. App. 1995). In the case at hand, the trial judge stated that he believed a court s hould presu me th at a crim e of this nature is sexually motivated unless there is evidence to the contrary. While we
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respe ctfully disagree with the trial court’s statement, we believe that the re is sufficient evidence in this case to uphold application of factor (7). Tenn. Code Ann. § 40-35 -114(7); see State v. Kissinger, 922 S.W.2d 482, 491 (Ten n. 1996); State v. Jame s Lloyd Ju lian, II, No. 03C01-9511-CV-00371, 1997 WL 412539 (Tenn . Crim. A pp., Kno xville, July 24, 19 97).
The record reflects that the Defe ndan t kidna pped the victim for the express purpose of raping h er. The Defendant abducted the victim and drove her imm ediate ly to a seclu ded sp ot in Arka nsas, as king her o n the wa y to pull up her skirt so that he could see her legs. As he ripped her pantyhose, he was already ejaculating. He the n pen etrated the victim , both o rally and with his penis, over nearly a two hour period . Ther efore, th e trial co urt pro perly a pplied this fac tor in senten cing the D efenda nt.
Finally, the Defendant argues that Tennessee Code Annotated § 39-13-
305(b)(2) shou ld have been applie d in sentencing him. This section provides that “[i]f the offend er volunta rily releases the victim a live . . . , such actio n[] shall b e considered by the court as a mitigating factor at the time of sentencing.” Tenn. Code Ann. § 39-1 3-305(b)(2). We find no indication in the record that the trial court applie d this factor w hen s enten cing th e Def enda nt. Ho weve r, in light of a ll circumstances, we do not believe that this factor is of sufficient weight to warrant reducin g the sen tence im posed on the D efenda nt by the trial co urt.
W e therefore affirm the Defendant’s conviction and sentence of twenty-five years for th e crime of espec ially aggrava ted kidna pping.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE