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State v. Dean9/28/2001
ust have bodily injury in order to have an aggravated rape. And, therefore, incorporated in bodily injury I think the court could conclude that there has to be a risk to human life involved. And I think the general nature of aggravated rape would lend itself to that allegation. However, again, this case being unique simply because of the fact that this was not a random act by Mr. Dean. This was a thought-out, planned assault on this lady. Again, Mr. Dean was aware of her age, her frailty, the fact that she lived alone. And, obviously, he had no hesitation about committing this crime knowing that an assault and an attack on a 90 year old woman could run the risk of costing her her life or some serious injury.
I just think that the unique facts of this case because of the victim's age, this has to be a factor to be considered. I'm not exactly sure of the interpretation of the Court of Criminal Appeals or the Supreme Court with regard to this element. I find it's apparent and appropriate in this case, but I'm not going to put a great deal of emphasis on it simply because there is some question as to whether or not it's merged with the allegations of aggravated rape.
I find that none of the other factors listed under 40-35-114 were appropriate. I don't find that the crime was committed under circumstances under which the potential for bodily injury to the victim was great. Obviously you must have bodily injury to have an aggravated rape. So that factor is included.
As to any mitigating factors, the court finds none. Based on the presentence report, based on the testimony that I've heard, I find no factors to mitigate this. This is not a crime that involves probation. So probation is not a factor to be considered. This presentence report was requested. It's required by law. I've read my reasons into the record or the enhancement factors that I've found. I've given Mr. Dean an opportunity to speak. He has waived that right.
Therefore, the court feels under the guidelines that have been set out, this is a Class A felony, which is a violent offense, it's non-parolable. The presumptive beginning Range for purposes of sentencing as a Range II offender for a Class A felony, the Range is 25 to 40 years. The presumptive beginning place for a violent offense and a Class A offense is the mid-Range within that. So that I assume it would be approximately 32, 32 ½ years. The starting point under the law, the court is to enhance using enhancement factors to increase the punishment and then any mitigators to reduce it back down. Since the court finds there are no mitigators in this case, the court is going to put a great deal of emphasis on Mr. Dean's history of criminal convictions and criminal behavior. The vulnerability of the victim in this case, the fact that she was treated with exceptional cruelty and the fact that Mr. Dean has previously been on parole and has violated that parole. Those are the factors the court is going to consider with a great deal of emphasis on his record and the vulnerability of [the victim]. Based on Mr. Dean's scoping out the scene and selecting her intentionally as his victim in this case.
The court, therefore, is going to impose a sentence of 40 years as a Range II offender, a violent offender with no parole.
MR. WHARTON: Thank you, Your Honor. Could we get a date for our new trial motion?
THE COURT: Yes, sir. Let me add, again, for the record because I intended to do this earlier when we were discussing the definitions of bodily injury. Bodily injury is required by the aggravated rape statute. It calls for a cut - or includes a cut, abrasions, bruise, burn or disfigurement, physical pain or temporary illness or
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