04/29/96 State Tennessee V. Michael R. Kissinger

Michael R. Kissinger and Guy Phelan Roberson were each convicted of one count of aggravated sexual battery. Kissinger was also convicted of one count of aggravated rape. The victims of each of these crimes were children of less than thirteen years. In each case, the trial courts enhanced defendants' sentences beyond the minimum in the range based on a number of factors found in Tennessee Code Annotated Section 40-35-114. The Court of Criminal Appeals affirmed the convictions of both defendants. However, in the Kissinger case, a panel of the intermediate court held that enhancement factor (7), "the offense was committed to gratify the defendant's desire for pleasure or excitement," was an element of aggravated sexual battery and therefore, could not be used to enhance convictions for that offense. In Roberson, a different panel came to a contrary Conclusion.