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State v. Ducker3/25/1999
r, the basic rule is that " statutory provision is a penalty enhancer if its proof, while raising the felony level of an offense, is not necessarily required to secure a conviction." People v. Leske, No. 96SC693 (Colo. Apr. 13, 1998), reh'g denied, (May 18, 1998) (for publication) (citing Almendarez-Torres, 523 U.S. at --, 118 S.Ct. at 1229).
Guided by these principles, we conclude that, under the present circumstances, fundamental fairness requires that the fact be treated as a penalty enhancer. Considering the structure and plain language of the statute and the accompanying Commission Comments, we cannot conclude that the legislature intended to create an additional element to the offense. By adding the "provided" clause in subsection (b), the legislature did not create an offense that requires proof of elements different from the offense proscribed under the preceding provisions of the statute. The offense proscribed by the "provided" clause is precisely the same offense that is proscribed by the main portion of the statute. The legislature merely authorized an enhanced punishment for those offenders who victimize a certain subclass, i.e., children under six years of age, of those individuals, i.e., persons under eighteen years of age, sought to be protected by criminalizing such abuse and/or neglect. See ,e.g., Almendarez-Torres v. United States, 523 U.S. at --, 118 S.Ct. at 1219 (interpreting 8 U.S.C. § 1326(b)(2) as a penalty provision rather than an additional element); Chaine v. Commonwealth, 436 S.E.2d 187, 190 (Va. App. 1993), affi'd on reh'g, (Nov. 17, 1993) (clause setting forth age requirement in sodomy statute establishes penalty provision).
Additionally, in the present case, the appellant could have anticipated a sentence for a class A felony. Both counts of the indictment provided the appellant with notice of the age of the children. At trial, there was no factual dispute regarding the age of the two children. Although the trial court did not explicitly instruct the jury regarding subsection (b) of the offense, the court did instruct the jury that "the punishment for this offense is not less than fifteen years nor more than twenty-five years imprisonment," the sentencing range for a class A felony. See Tenn. Code Ann. § 40-35-112(a)(1) (1990). No objection was made to this charge. Cf. State v. Palmer, No. 01C01-9607-CR-00285 (Tenn. Crim. App. at Nashville, Nov. 20, 1997). In light of our interpretation that subsection (b) merely constitutes a punishment provision and considering the circumstances at trial, we cannot conclude that any error exists. The appellant's claim is without merit.
Conclusion
Finding no reversible error committed by the trial court, we affirm the appellant's convictions and sentences imposed for two counts of aggravated child abuse.
DAVID G. HAYES, Judge
CONCUR:
GARY R. WADE, Presiding Judge
JERRY L. SMITH, Judge
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Tennessee DUI Attorneys
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