State of Tennessee v. Aaron Reinsburg ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 9, 2015
STATE OF TENNESSEE v. AARON REINSBERG
Appeal from the Criminal Court for Shelby County
No. 1302058 Chris Craft, Judge
___________________________________
No. W2014-02436-CCA-R3-CD - Filed July 22, 2016
___________________________________
Defendant, Aaron Reinsberg, was convicted by a Shelby County Jury of two counts of
rape (Counts 1 and 2), one count of assault (Count 3), and two counts of official
misconduct (Counts 4 and 5). At the sentencing hearing, the trial court merged Counts 2
and 3 into Count 1, and Count 5 was merged into Count 4. The trial court imposed a
sentence of eleven years for rape in Count 1 and one year for official misconduct in
Count 4 to be served concurrently for an effective sentence of eleven years. On appeal,
Defendant argues that the evidence was not sufficient to support his rape convictions and
that the trial court erred in sentencing him to eleven years. After a thorough review, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which ALAN E. GLENN
and ROBERT W. WEDEMEYER, JJ., joined.
Joseph A. McClusky, Memphis, Tennessee, for the appellant, Aaron Reinsberg.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Carrie Shelton, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts
The victim testified that on January 19, 2013, at approximately 10:00 p.m., she
drove her friend to Beale Street to celebrate her friend‟s twenty-first birthday. While the
victim was stopped at a traffic light, she saw Defendant, who was a police officer. She
asked Defendant if Sammie Wicks, another police officer with whom the victim was
friends, was working that night. The victim and Defendant chatted a few moments before
the victim drove away.
The victim thought that she and her friend went to Silky O‟Sullivan‟s Pub first,
but she was not for certain. The victim was employed as a door monitor at Silky
O‟Sullivan‟s. The victim testified that she did not drink much alcohol while out with her
friend because she was concerned with taking care of her. The victim testified that her
friend later left with her boyfriend, and the victim went out with some of her co-workers
from Silky O‟Sullivan‟s, including Mario Olevar, and “enjoyed [her]self.” The victim
and her co-workers went to the Purple Haze Night Club and Club 152, and the victim had
several drinks until she began to feel “really drunk.” On the third floor of Club 152, the
victim again saw Defendant. They “did an initial side hug and talked[.]” The victim
testified that she gave Defendant her phone number because she invited him to meet her
and Sammie Wicks later at Alex‟s Tavern. She did not go to Alex‟s Tavern because “the
alcohol was starting to catch up with [her] and [she] had Mario [Olevar] drive her home.”
As the victim was leaving the Beale Street area, she received a text message from
Defendant asking her whereabouts. The victim told him that she was in the alley, which
was where Mr. Olevar‟s car was parked. She did not recall if she explicitly told
Defendant that she was leaving. At that point, she did not invite Defendant to her house.
At trial, Mr. Olevar confirmed that the victim had been drinking and that he drove her
home at approximately 3:30 a.m. on January 20, 2013. He did not enter the victim‟s
residence.
The victim testified, and phone records confirmed, that Defendant sent the victim
a text message at 3:55 a.m. with a “wink face.” The purpose of the text was for
Defendant to give the victim his phone number. Defendant next sent the victim a text at
3:59 a.m. to see if she was still at Club 152. The victim responded and told Defendant
that she was in the alley, and Defendant replied, “[D]on‟t leave.” Defendant again texted
the victim stating, “In the alley (sad face).” To which the victim replied, “[H]a ha.” The
victim testified that she did not ask Defendant to come with her, nor did she ask him for a
ride home. Defendant responded, “I‟m leaving, too, then. Ha ha.” He next texted,
“[Y]ou going home?” The victim did not respond.
The victim testified that her roommates, Leah Barnes and Hallie Daniels, and
several others were at the house when she arrived home. She changed into more
comfortable clothing, and then she and her roommates went into Ms. Barnes‟ room and
talked about their night. The victim could not remember the conversation. Sometime
later the victim‟s boyfriend, Sean Berry, arrived and brought her something to eat. The
victim and Mr. Berry got into an argument, and he left. The victim tried to talk him into
staying, but he refused and said that they would talk when she was sober. She and Mr.
Berry continued to text each other.
2
At some point, Defendant sent the victim a text asking if she was okay, but the
victim did not respond. He sent her another text at 4:05 a.m. with a “crying face” symbol
to which the victim responded, “TA.” The victim testified that she did not know what
she meant by that response. At 4:10 a.m., Defendant texted, “Let‟s hang out,” and the
victim responded, “Okay.” He then asked, “[W]hen, now?” Defendant sent another text,
“[D]on‟t go to sleep.” The victim did not respond to either text. At 4:22 a.m., Defendant
texted, “LOL,” and at 4:27 a.m., the victim responded, “I‟m by.” She did not know what
she meant by that text. Defendant responded, “By what?”
The victim testified that at some point, she texted Mr. Berry and asked him to call
her. At 4:31 a.m., she texted Defendant that she was home. Defendant responded, “I‟ve
had a crush on you since Sammie introduced me to ya [sic].” He also texted, “Oh, you
want me to come over?” The victim responded, “[H]a ha, later.” She testified that she
intended to dismiss Defendant. The victim received a call from Mr. Berry, and they
spoke for just over one minute.
Defendant texted the victim again at 4:33 a.m. and said, “You saying bye?” with a
“crying face” symbol. At 4:35 a.m., the victim sent a text message saying, “I hate you.”
She did not know to whom the message was sent. Defendant texted the victim at 4:35
a.m. and said, “Night darling.” The victim responded, “Hagan nah.” She did not know
what the text message meant. The victim testified that during this time, she accidently
texted Defendant to “come here.” She intended to send the text message to Mr. Berry
because she wanted Mr. Berry to come back to her house. Defendant responded to the
text by asking where she lived. The victim told Defendant that she lived in “Cooper
Young.” She did not provide him with her address. Defendant then attempted to call the
victim, but she did not answer.
Defendant next texted the victim and said, “[L]et‟s hang out.” The victim did not
respond. Defendant then texted, “I‟ll be good.” The victim responded, “Okay, in a bit.”
Defendant wrote, “When‟s a good time for you, [J.L]?” She testified that she was trying
to put off Defendant and texted him back, “I‟ll tell you.” The victim next received a text
stating, “If you‟re scared, say you‟re scared, I understand.” She was not sure who sent
the text. At 4:50 a.m., Defendant texted the victim and said, “Okay, gorgeous” with a
“smiley-face” symbol. He then wrote, “I wish I could have dance [sic] with ya [sic]
before you left.” The victim responded, “Ha ha, I was too drunks [sic].” Defendant
texted, “Let me take care of you. And dance with me.” The victim did not respond. He
then texted, “LOL, night, [J.L.]. Call me tomorrow.” Again, the victim did not respond.
The victim testified that she called Mr. Berry, and they had two conversations
lasting four and seven minutes. Defendant sent her several additional messages while the
3
victim continued texting Mr. Berry. Defendant called the victim again at 5:39 a.m., and
she did not answer. She continued exchanging texts with Mr. Berry. At 5:40 a.m., the
victim‟s phone records reflect an incoming call from Defendant lasting three seconds.
The victim did not recall speaking with Defendant. At 5:41 a.m., Defendant sent the
victim a text asking where she lived, and she received a missed call from Defendant
within one minute. The victim then received a text stating, “You suck, sweet dreams.
Call me if you ever want to go out and have a drink or dinner.” At 5:46 a.m., Defendant
texted the victim stating, “[W]ake up, darling.”
The victim said that she was very drunk and went to bed. She was wearing a bra,
underwear, shorts, and a camisole when she went to bed. The next thing that she
remembered was seeing Defendant‟s shadow in the doorway of her bedroom. She then
vomited in a bag that was on her floor, and Defendant handed a bottle of water to her.
The victim testified that she passed out and then awoke to the “weight” of Defendant‟s
body on hers. She passed out again and “came to when he was engaging in oral sex with
[her].” The victim specifically testified that Defendant‟s mouth and tongue were on her
vagina. She testified: “I remember during the oral sex part, me kind of turning to my
side and like half asleep moaning like, no, stop. But no. Moaning no. But I was - - I
wasn‟t really with it.” She did not remember removing her clothing. She only “faintly”
recalled Defendant “grappling” with her bra strap. When asked if she called out to her
roommates, the victim testified:
I was passed out for I assume ninety percent of it. I was not awake and I
would kind of come up and wake up but not really be there. Enough to
kind of get what was going on but not to fully understand the gravity of
the situation and even have the ability to move and get up and get out of
it.
The victim testified that her contact with Defendant was not consensual, and she did not
give him her phone number for the purpose of inviting him to her house. She never gave
Defendant her address. Concerning the text messages, the victim testified:
He was texting me and I was just very not [sic] interested. He was
texting me a lot. And I was just trying to be polite because he works
downtown and I‟m going to have to see him. He‟s a mutual friend. I
can‟t be like stop texting me, you‟re freaking me out. And so I just kind
of giving him the blow off, like I‟ll talk to you later, I‟ll see you later,
full well knowing I had no intention of wanting to see him.
The victim testified that when she woke up the morning after the rape, she did not
know the whereabouts of her phone. She had her roommate, Ms. Daniels, call it at 10:52
4
a.m. so that she could find it. The victim asked Ms. Barnes if anyone had come into the
house that night. She learned that Defendant came over. The victim called Officer
Sammie Wicks to ask if he had given Defendant her address, and Officer Wicks indicated
that he had not given it to Defendant. The victim testified that she was mostly concerned
with how Defendant got her address and came into her house. Officer Wicks arrived at
the victim‟s house and then called to report the rape. Other officers arrived at
approximately 11:00 a.m. The victim recalled talking to seven or eight law enforcement
officers that morning and afternoon about what had happened. The victim was taken for a
sexual assault examination, and she provided a statement at the police station. The victim
returned to the station a day or two later with her lawyer to make one correction to her
statement and to add some information that had been omitted. She noted that the officer
had written the word “annually” when she told him “anally.” The victim also told the
officer that she did not know if Defendant was circumcised, but the officer had written
that the victim told him Defendant was not circumcised. The victim did not sign the
statement the day that it was made.
Leah Barnes testified that when the victim arrived home on January 20, 2013, she
was “staggering” down the hallway, threw her purse down, used the restroom, and then
talked with her roommates. Ms. Barnes testified that the victim was obviously very
intoxicated and slurring her words. Ms. Barnes received a call from a friend at
approximately 6:00 a.m. on January 20, 2013, asking Ms. Barnes to open the front door
because the friend was coming to visit another roommate. After Mr. Barnes went back to
bed, she heard a knock on the front door. She looked through the peephole and saw a
man that she vaguely recognized standing outside the door. Ms. Barnes opened the door
and recognized Defendant, whom she knew as a police officer. Defendant asked for the
victim, and Ms. Barnes told him that she would see if the victim was awake. Defendant
waited inside the door while Ms. Barnes checked on the victim.
Ms. Barnes testified that the victim was in her bedroom asleep with the lights off.
Ms. Barnes told the victim that she had a visitor, to which the victim replied, “What?”
Ms. Barnes repeated herself, and the victim still did not understand her. Ms. Barnes told
the victim a third time that she had a visitor, and the victim said, “You‟re dumb,” and she
giggled. Ms. Barnes then asked the victim if she wanted her to tell Defendant to leave,
and the victim said, “Yeah, no, okay.” Ms. Barnes told the victim that she did not know
what the victim meant, but the victim did not respond. Ms. Barnes walked back to the
front door and told Defendant that the victim was “basically passed out,” and that she did
not know what he wanted her to do. Defendant responded, “Are you serious,” in a
perturbed tone. Defendant then indicated that he had just gotten off the phone with the
victim. Ms. Barnes again told Defendant that the victim was passed out. He responded,
“Alright, whatever,” and walked back toward the door. Ms. Barnes went back to her
room and shut the door. Although she did not see Defendant actually leave the house,
5
she trusted that he did so because he was a police officer. Ms. Barnes testified that she
went back to bed but she did not immediately fall asleep. She heard someone open a
cabinet in the kitchen, but did not get up to see who it was because there were several
others in the house at the time. A few minutes later, Ms. Barnes got up to lock the front
door, and she did not see anyone in the house.
Sean Berry, the victim‟s boyfriend, testified that he worked at Silky O‟Sullivan‟s
as a bartender. On January 20, 2013, Mr. Berry stopped by the victim‟s house after
leaving work to check on the victim before he went home. The victim had told him
earlier that she had been drinking and was going out with friends. Mr. Berry arrived at
the house at approximately 4:00 a.m. with some food from McDonald‟s for the victim to
eat. He said that the victim seemed intoxicated at the time but she was coherent. Mr.
Berry testified that he refused to spend the night with the victim because he worked
Thursday through Sunday, and he needed every hour of sleep that he could get. It was
his practice not to spend the night with her on those nights. Mr. Berry said that the victim
got upset because he refused to spend the night with her, and she slapped him. He then
removed the victim‟s house key from his key ring and placed it on the floor. He also told
the victim that they would talk when she was sober. Mr. Berry testified that the victim
texted him a few times after he left, but he did not return to the house. He said that the
victim called him later that morning. He knew that something had happened, and the
victim wanted him to be with her. However, Mr. Berry testified that he did not go see the
victim because he was going out of town the following night. Mr. Berry testified that the
victim told him that she had woken up and someone was on top of her. He said that she
did not initially know who it was. Within a couple of days, the victim told him who she
thought it had been.
Officer Sammie Wicks of the Memphis Police Department testified that he
attended Rhodes College with the victim, and they are friends. He also went through the
police academy with Defendant, and they were also friends. Officer Wicks testified that
he had introduced the victim and Defendant to each other. On January 20, 2013, the
victim called Officer Wicks and told him that Defendant had raped her. He said that the
victim was very upset and needed to be calmed down. Officer Wicks testified that he
initially called a fellow police officer to ask for advice. He then called the police
dispatcher and requested that an officer be sent to the victim‟s house. Officer Wicks also
went to the victim‟s house and arrived approximately ten minutes before other officers
arrived. He said that the victim was upset and crying. The officers asked the victim and
Officer Wicks questions about what happened. Officer Wicks remained with the victim
for most of the day. He testified that the victim told him that she sent Defendant a text
telling him to come over. However, she had not meant to send it to Defendant.
6
Glenda Moses, a forensic nurse at the Rape Crisis Center, examined the victim the
day after the rape. The victim reported to her that the victim had gone out with friends
and drank several shots, vodka drinks, and beer. She provided Ms. Moses with an
account of the events leading up to the rape which was consistent with the victim‟s trial
testimony. The victim told Ms. Moses that Defendant performed oral sex upon her,
penetrated her vaginally with his penis, and that her anal area was sore. Dr. Moses
performed a physical examination on the victim and observed a skin tear and some
redness of the victim‟s anal area. Dr. Moses confirmed that the injuries could have been
caused by anal penetration. She did not find any injuries to the victim‟s vaginal area. Dr.
Moses explained that it is common not to find vaginal injuries after a victim suffers a
sexual assault because vaginal tissues stretch.
Sergeant Melvin Amerson of the Memphis Police Department, Sex Crimes Unit,
was the lead investigator in the victim‟s case. He took a statement from the victim, and
he and Sergeant Burton spoke with Defendant. Sergeant Amerson testified that although
Defendant was a police officer, Sergeant Amerson did not know him. Defendant waived
his rights and provided a statement. He admitted that he used the Warrant Apprehension
Solution Program (WASP) to locate the victim‟s address and that he had sexual contact
with the victim. Defendant told Sergeant Amerson that the victim invited him to her
house and that her roommate let him inside. He walked to the victim‟s bedroom and
discovered that she was intoxicated. Defendant said that the victim vomited, and he then
gave her water and rubbed her back. He claimed that he asked the victim if she wanted
him to leave, and she said no. Defendant told Sergeant Amerson that he and the victim
began kissing, and they removed their clothing. Defendant admitted that he had oral sex
with the victim, and he attempted to have vaginal intercourse with her, but he could not
maintain an erection. He further admitted to inserting the tip of his finger into the
victim‟s anus. Defendant told Sergeant Amerson that he continued to have oral sex on
the victim in order to arouse himself, but she fell asleep so he stopped. He said that he
lay down beside the victim and tried to get an erection because he wanted to have sex
with her. Defendant admitted that he again attempted to vaginally penetrate the victim
but he could not maintain an erection. He then got dressed and attempted to give the
victim some more water, but she was passed out. Defendant said that he was
embarrassed by his inability to maintain an erection, and he left.
Defendant denied to Sergeant Amerson that he forcibly raped the victim, and he
said that the victim never said “no.” He noted that he did not wear a condom during the
incident, and he did not ejaculate. Defendant thought that the entire incident lasted
approximately twenty minutes. He told Sergeant Amerson that the victim had made the
comment earlier that she wanted to “f--k a police officer.” When Defendant told the
victim that he was jealous, he claimed that she said, “Well, we can f--k.”
7
Sergeant Roosevelt Twilley, of the Memphis Police Department, Sex Crimes Unit
Internet Crimes Against Children, testified that he works as a certified forensic examiner
of cellular phones and computers. His testimony revealed that between 3:51 a.m. and
6:00 a.m. on January 20, 2013, there were approximately fifty text messages exchanged
between the victim and Defendant. Sergeant Twilley testified that there were three
telephone calls, with one lasting three seconds and the others not showing a connection.
William Downen, Chief Inspector of information technologies for the Shelby
County Sheriff‟s Office, testified that he administers the WASP Program which provides
a database to assist with the resolution of arrest warrants. Inspector Downen testified that
WASP provides access to databases for local utilities, motor vehicle registration, driver‟s
licenses, and other record management databases. He said that police officers may apply
for access to the system for investigative purposes. Inspector Downen noted that the
login page contains a legal notice advising of acceptable uses of the database. He teaches
new police recruits that they are not permitted to use the system for personal purposes.
Inspector Downen testified that Defendant queried the victim‟s name at 6:00 a.m. on the
morning of the rape. Defendant also queried the “Visions” records management system
at 8:11 a.m. and 8:12 a.m. on the morning following the rape and pulled two crime
incident reports filed by the victim.
Analysis
I. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support his rape convictions
in Counts 1 and 2. He argues that he reasonably believed the victim consented to the
sexual encounter, and he was unaware that she was physically incapacitated.
When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789 (1979). The
trier of fact, not this Court, resolves questions concerning the credibility of witnesses and
the weight and value to be given the evidence as well as all factual issues raised by the
evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may this
Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d. 832, 835
(Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the
evidence and all inferences therefrom. Id. 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).
8
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
Rape is the unlawful sexual penetration of a victim by the defendant accomplished
by force or coercion, without the consent of the victim, and the defendant knows or has
reason to know at the time of the penetration that the victim did not consent, or where the
defendant knows or had reason to know that the victim is mentally incapacitated or
physically helpless. T.C.A. § 39-13-503(a)(2)-(3). “Sexual penetration” includes sexual
intercourse, cunnilingus, anal intercourse, or any other intrusion, however slight, of any
part of a person‟s body into the genital or anal openings of the victim‟s body. T.C.A. §
39-13-501(7).
Viewing the evidence in a light most favorable to the State, the proof shows that
the victim did not consent to the sexual contact in this case (Count 1), and Defendant
knew that she was mentally incapacitated or physically helpless during the attack (Count
2). There is no question that the victim was intoxicated during the early morning hours
of January 20, 2013, and that she and Defendant exchanged several text messages, some
of which she could not remember. The victim acknowledged that she sent Defendant a
text message that read, “[C]ome here;” however, she testified that the message was meant
for her boyfriend whom she had argued with earlier because she wanted him to stay at her
house, and he refused. The victim also responded “okay” when Defendant asked if they
could hang out, but she did not respond when he asked when. Defendant also texted,
“You want me to come over?” The victim responded, “ha, ha later.” Defendant next
texted the victim and said, “[L]et‟s hang out.” The victim did not respond. Defendant
then texted, “I‟ll be good.” The victim responded, “Okay, in a bit.” Defendant wrote,
“When‟s a good time for you, [J.L]?” She testified that she was trying to put off
Defendant and texted him back, “I‟ll tell you.” The victim did not respond to
Defendant‟s requests for her address and only told him that she lived in the “Cooper
Young” area. Defendant then improperly used his access to the WASP system through
the Memphis Police Department to look up the victim‟s address and show up at her house
asking to see her.
The victim‟s roommate, Ms. Barnes, testified that the victim was obviously very
intoxicated and slurring her words on January 20, 2013. She said that the victim was in
her bedroom asleep with the lights off when Defendant showed up. Ms. Barnes told
Defendant that the victim was “basically passed out,” and that she did not know what he
wanted her to do. Defendant responded, “Are you serious,” in a perturbed tone.
Defendant then indicated that he had just gotten off the phone with the victim. Ms.
Barnes again told Defendant that the victim was passed out. He responded, “Alright,
whatever,” and walked back toward the door. Ms. Barnes went back to her room and
9
assumed Defendant left because she trusted him as a police officer. However, Defendant
did not leave and went into the victim‟s bedroom.
The victim testified and Defendant acknowledged that the victim vomited as soon
as he walked into her bedroom. The victim passed out after that and awoke to the weight
of Defendant‟s body on top of her. She testified that when she went to sleep she was
wearing a bra, underwear, shorts, and a camisole. She did not recall removing her
clothes, although she vaguely recalled Defendant grappling with her bra strap. When
Defendant began having oral sex with the victim, she moaned, “No, stop.” Defendant
also tried to have intercourse with the victim but he could not maintain an erection. In his
statement to police, Defendant acknowledged that the victim passed out while he was
having oral sex with her. He then lay beside her while she was passed out and continued
to try and achieve an erection for the purpose of having sex with her. Defendant again
penetrated the victim vaginally but stopped because he could not maintain an erection.
Defendant admitted in his statement that he also penetrated the victim‟s anus with his
finger, and Glenda Moses testified that the victim‟s examination after the rape showed a
skin tear and some redness of the victim‟s anal area. The victim testified that her contact
with Defendant was not consensual, and she did not give him her phone number for the
purpose of inviting him to her house, and she never gave Defendant her address.
The victim testified that she went in and out of consciousness during the rape and
that she did not call for help because she was too intoxicated to fully understand the
situation. Defendant acknowledged in his statement that the victim was passed out when
he left her.
The jury obviously accredited the victim‟s testimony that she was physically
incapacitated during most of the encounter with Defendant due to her intoxication and
that she did not consent to sexual contact with him. Based upon the evidence presented, a
rational jury could find Defendant guilty of both counts of rape beyond a reasonable
doubt. Defendant is not entitled to relief as to this issue.
II. Sentencing
Defendant contends that the trial court erred by imposing a sentence that was only
one year below the maximum sentence for his merged rape convictions. The State
responds that the sentence was supported by the proof and “was determined in
accordance with the applicable sentencing principles.” We agree with the State.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of
10
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “„reflects that the trial court‟s logic
and reasoning were improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement and mitigating factors are advisory only. See T.C.A. § 40-35-114;
see also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
Our supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].” Id. at 343 (emphasis added). Appellate courts are “bound by a
trial court‟s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346.
In Bise, our supreme court held:
We hold, therefore, that a trial court‟s misapplication of an enhancement
or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005. So
long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by
the trial court within the appropriate range should be upheld.
Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed
out that in sentences involving misapplication of enhancement factors (even in those
cases where no enhancement factor actually applies) the sentences must still be affirmed
if the sentences imposed are within the appropriate range, and the sentences are in
compliance with statutory sentencing purposes and principles. Id. at 710.
Our General Assembly has enacted twenty-five (25) statutory sentencing
enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-
35-114 (Supp. 2015). As previously noted, the weighing of mitigating and enhancement
factors is left to the trial court‟s discretion, Carter, 254 S.W.3d at 345, and in fact the trial
court‟s weighing of enhancement or mitigating factors is not a ground for appellate relief.
Id.; T.C.A. § 40-35-401(b). The standard of review established in Bise provides that the
minimum sentence can be imposed even if the trial court correctly applies all twenty-five
enhancement factors, or conversely the maximum sentence can be imposed even if no
11
statutory enhancement factors are applicable, so long as the sentence is within the correct
range and the sentence complies with the sentencing purposes and principles.
Accordingly, appellate review of enhancement factor issues is arguably superfluous when
reviewing the length of a sentence.
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf
about sentencing. See T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The trial court must also consider the potential or lack of potential for
rehabilitation or treatment of the defendant in determining the sentence alternative or
length of a term to be imposed. T.C.A. § 40-35-103.
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-
35-210(e); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the articulation of
the reasons for imposing a particular sentence . . . should not negate the presumption [of
reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging the sentence on
appeal bears the burden of establishing that the sentence was improper. T.C.A. § 40-35-
401, Sentencing Comm‟n Cmts.
The applicable sentencing range for a Range I offender convicted of a Class B
felony is 8 to 12 years. T.C.A. § 40-35-112(a)(1)-(2). The trial court explained in detail
the factors that it considered in sentencing Defendant. With regard to Count 1, the trial
court found as an enhancement factor that the victim was particularly vulnerable due to
physical or mental disability. T.C.A. § 40-35-115(4). The trial court cited to several
cases holding that a victim is “particularly vulnerable when his or her ability to summon
assistance is impaired,” and a defendant took “advantage of one or more of these
conditions in the commission of the crime.” State v. Butler, 900 S.W.2d 305, 313 (Tenn.
Crim. App. 1994); State v. Poole, 945 S.W.2d 93, 97 (Tenn. 1997); State v. Lewis, 44
S.W.3d 501, 505 (Tenn. 2001). The trial court placed “pretty good” weight upon Factor
4 finding that Defendant had seized upon the victim‟s intoxication to rape her. The trial
court further stated: “[Defendant] accelerated his efforts because he wanted to make sure
that he could get to her while she was intoxicated, not the next day when she was sober.”
The record supports the trial court‟s findings.
12
The trial court also found as an enhancing factor that Defendant had abused a
position of public trust. T.C.A. § 40-35-115(14). The trial court noted that Defendant
was a police officer in the area where the victim worked, and his job was to keep the
public safe. The trial court also pointed out that Defendant abused his access to a police
database to look up the victim‟s address and show up at her house. Defendant admitted
to his conduct. Also, the victim‟s roommate recognized him as a police officer and let
him into the house. She also trusted that Defendant would leave when she told him that
the victim was in her bedroom passed out. Again, the record supports the trial court‟s
findings.
The trial court found one mitigating factor, that Defendant‟s conduct neither
caused not threatened serious bodily injury. T.C.A. § 40-35-113(1).
Because the trial court properly considered the evidence offered by the parties,
stated on the record what enhancement and mitigating factors were considered, and
complied with the purposes and principles of sentencing and imposed a within range
sentence, the trial court did not abuse its discretion in enhancing Defendant‟s sentence.
Defendant is not entitled to relief.
Accordingly, the judgments of the trial court are affirmed.
____________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
13