FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 15, 1999
NOVEMBER 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9712-CR-00543
)
vs. ) Knox County
)
DUSTIN DWAYNE DAVIS, ) Hon. Ray L. Jenkins, Judge
)
Appellee. ) (Especially Aggravated Robbery,
) Aggravated Rape - 2 counts,
Theft, Especially Aggravated
Kidnapping)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY P. ISAACS (on appeal) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 2448
Knoxville, TN 37901 TODD R. KELLEY
Assistant Attorney General
SUSAN E. SHIPLEY (at trial) 425 Fifth Ave. N., 2d Floor
Attorney at Law Nashville, TN 37243-0493
602 S. Gay St., Ste. 501
Knoxville, TN 37902 RANDALL E. NICHOLS
District Attorney General
ROBERT JOLLEY
Asst. District Attorney General
City-County Bldg.
Knoxville, TN 37902
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Dustin Dwayne Davis, appeals from his convictions
of especially aggravated robbery, theft, especially aggravated kidnapping and two
counts of aggravated rape. He received these convictions in the Knox County
Criminal Court following a trial before a jury of his peers. He is presently serving an
effective 100-year sentence consecutively to a sentence for other criminal activity.
In this appeal, he raises several challenges to his convictions:
1. Whether the trial judge erred in presiding at trial after initially
recusing himself.
2. Whether the evidence sufficiently supports the jury's findings
of guilt beyond a reasonable doubt of the five convictions.
3. Whether he was denied a fair trial by the trial court's admission
of evidence of the victim's pregnancy and subsequent abortion.
4. Whether the trial court properly denied his motion for judgment
of acquittal on the especially aggravated kidnapping count and
two of the three aggravated kidnapping counts.
5. Whether the trial court properly sentenced him to an effective
100 year sentence.
Finding no error in the proceedings below, we affirm the judgment of the trial court.
In the late evening hours of August 7, 1991 or early morning hours of
August 8, 1991, the defendant and another man identified only as "Baby"
approached 20-year-old S.W. and her 16-year-old female companion, M.T,1 outside
the Carousel Club in Knoxville. The men asked if they could buy the women a beer,
and the women accepted. The group went to the men's vehicle, where the
defendant and S.W. got into the front seat and their companions got into the back
seat.
The defendant began driving toward Magnolia Avenue, and S.W.
inquired why they were not going to Cumberland Avenue. The defendant replied
1
The names of the young women the defendant and his companion
victimized are of no consequence to the issue presented in this appeal. Thus,
we identify them only by their initials.
2
that beer was cheaper on Magnolia.
After the beer was purchased, S.W. told the defendant that she and
M.T. needed to go back to the Carousel. The defendant said okay but drove in the
opposite direction. He said they were going to his cousin's house. They drove
through a housing project area, and the defendant said his cousin was not home.
S.W. again told the defendant she was ready to go back to the
Carousel. She asked the defendant where they were going, and he replied that
people had been killed and raped in the area but she did not need to worry about
that.
The defendant pulled into a dead-end road near a ball park. The
defendant asked to see S.W.'s jewelry and inquired about its authenticity. S.W.
again asked to go back to the Carousel and said she and M.T. would walk back if
necessary. The defendant said, "You won't get anywhere" and took a lead pipe
from under the car seat. He threatened to hit S.W. with the pipe. S.W. and M.T.
attempted to escape the car, but they were unsuccessful. The defendant hit M.T.
on the leg with the pipe.
The defendant pulled S.W. by her long hair to the hood of the car,
where he hit her in the face with his fist until she surrendered her diamond ring. The
defendant then pulled S.W. up by her hair and then forcibly led her to the ball field.
At the top of a flight of steps, he demanded her watch. She surrendered it, and he
pushed her toward the steps.
The defendant demanded that S.W. perform oral sex on him, and she
told him she had a venereal disease in her throat to try to get out of the situation.
3
The defendant forced S.W. to remove her pants, and he forced her down and
penetrated her anally. He told her if she moved he would strike her with the lead
pipe.
The defendant became angry when S.W. would not perform as he
demanded. He yanked her up by her hair and hit her on the leg with the pipe. A car
drove by and frightened the defendant, and he made S.W. pick up her clothes and
walk over to the dugout. Inside dugout, the defendant forced himself on S.W.
vaginally.
While these events were transpiring, the defendant's companion
demanded M.T.'s jewelry. He told her that if she did not turn it over, the defendant
would take it anyway, and she would rather have him take it than the defendant.
The defendant's companion told M.T. to take off her clothes. When she refused,
he told her that the defendant would make her do it. However, he took no steps to
force her to comply with his demand. M.T. eventually convinced the defendant's
companion to yell to check on S.W.
The defendant's sexual assault of S.W. ceased when M.T. began
yelling from the area above. The defendant's companion appeared, and the
defendant took more jewelry from S.W. after hitting her several times. W hile this
was going on, M.T. flagged down a car. The defendant and his companion fled.
I
The defendant complains that the trial court erred by presiding at trial
after initially recusing himself. On March 30, 1993, Judge Ray L. Jenkins entered
an order recusing himself and the other Knox County Criminal Court judges
"because the victim of the alleged crimes is an employee of the Knox County
4
Criminal Clerk's Office." Judge Bill Swann, sitting by interchange, presided until
April 16, 1996, on which date the court minutes reflect Judge Swann ordered the
cases transferred to Judge Jenkins for trial, "[t]he reason for . . . [the transfer] . . .
no longer existing . . . ." The record reflects no objection whatsoever prior to trial,
at trial, or in the motion for new trial.
The Code of Judicial Conduct provides that "[a] judge shall disqualify
himself or herself in a proceeding in which the judge's impartiality might reasonably
be questioned . . . ." Tenn. R. Sup. Ct. 10, Canon 3(E)(1). When a judge is
disqualified under the Code, he "may disclose on the record the basis of the judge's
disqualification and may ask the parties and their lawyers to consider, out of the
presence of the judge, whether to waive disqualification." Tenn. R. Sup. Ct. 10,
Canon 3(F). If the basis for the disqualification is any reason other than personal
bias or prejudice concerning a party and "the parties and lawyers agree, without the
participation of the judge, . . . that the judge should not be disqualified, the judge
may participate if he is willing." Tenn. R. Sup. Ct. 10, Canon 3(F). Such agreement
shall be reflected in the record. Tenn. R. Sup. Ct. 10, Canon 3(F).
The law relating to recusal further provides that failure to raise an
issue regarding the judge's impartiality in a timely manner may result in waiver.
See, e.g., Thompson v. State, 958 S.W.2d 156, 171-72 (Tenn. Crim. App. 1997).
For otherwise the parties would be allowed to experiment with the
court by tacit acquiescence, and raise the objection when the result
of the trial proved to be unfavorable.
...
And, generally, if the facts are known to the party recusing, he is
bound to make his objection before issue joined, and before the trial
is commenced, otherwise he will be deemed to have waived the
objection . . . . If the objection be raised of record, and the court
undertake to proceeding notwithstanding, the judgment might be held
void under these principles . . . . But if no objection be made, and the
court is permitted to go to a trial of the case on the merits, the
judgment is clearly not void on its face, and something more than the
mere existence of the fact on which the incompetency rests should be
5
required to authorize a resort to another tribunal.
Thompson, 958 S.W.2d at 172 (quoting Holmes v. Eason, 76 Tenn. 754, 757, 761
(1882)).
This situation falls squarely within the waiver rule recited in Thompson.
The defendant did not object to Judge Jenkins' service in the court below. Clearly,
he knew of the previous recusal and the basis therefor. Having now received an
unfavorable verdict and sentence, he should not now be allowed to mount a belated
attack to Judge Jenkins' impartiality in the absence of "something more than the
mere existence of the fact on which the incompetency rests . . . ." Thompson, 958
S.W.2d at 172.
Moreover, this issue lacks merit. Judge Jenkins recused himself and
his colleagues because "the victim" was an employee in the Criminal Court Clerk's
office. Apparently, "the victim" left this employment, and Judge Jenkins resumed
his duties with respect to the defendant's cases. Because the reason for recusal
no longer existed when Judge Swann turned the cases back over to Judge Jenkins,
the situation did not fall squarely within the provisions of the Code requiring formal
consideration and memorialization of consent for the judge to hear the case. See
Tenn. R. Sup. Ct. 10, Canon 3(F). Thus, Judges Jenkins and Swann cannot be
faulted for failing to comply with those provisions.
II
Next, the defendant contends that the evidence is insufficient to
support the jury's findings of guilt beyond a reasonable doubt because the testimony
of S.W. and M.T. was inconsistent and raised questions about their veracity and
because S.W. was unable to identify the defendant at trial. In evaluating the
6
sufficiency of the evidence, it is relevant that S.W. was the victim of the especially
aggravated robbery, two counts of aggravated rape, and especially aggravated
kidnapping. M.T. was the victim of the theft.
When an accused challenges the sufficiency of the evidence, an
appellate court’s standard of review is whether, after considering 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,
443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d
63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.
1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
In the case at bar, M.T. testified that an earring which the police took
from the defendant was one of the earrings that “Baby” had stolen from her and that
7
the defendant had a gun, as well as a pipe. She admitted she may not have
mentioned this to the police officers. S.W. mentioned nothing about a gun in her
testimony. The trial in this case took place over six years after the offenses
occurred. The defense highlighted the apparent inconsistency regarding the
defendant's use of a gun to accomplish his crimes, yet the jury nevertheless chose
to accredit the state's proof that the crimes occurred. It is not our province to revisit
the jury's factual determinations.
Furthermore, the record reflects that S.W.'s inability to identify the
defendant at trial was inconsequential in light of overwhelming proof of his identity
as the perpetrator of the crime. The state presented evidence that S.W. had
chosen the defendant from a photographic lineup six years earlier, when her
memory was fresh. DNA evidence preserved in the rape kit and from aborted fetal
tissue collected from S.W. established with a very high degree of certainty that the
defendant had engaged in sexual relations with the victim.
The evidence sufficiently supports the defendant's convictions beyond
a reasonable doubt.
III
The defendant claims he was denied a fair trial by the trial court's
admission of evidence of S.W.'s pregnancy and subsequent abortion. This
evidence was admitted as proof of the defendant's identity via the DNA tests done
on the aborted fetal material, which established the defendant's paternity of the
fetus with 99.89 percent certainty. The defendant's specific complaint is that the
evidence was cumulative of other DNA evidence and highly prejudicial.
"[Relevant] evidence may be excluded if its probative value is
8
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Tenn. R. Evid. 403. We review a
trial court's decision to admit or exclude evidence only for abuse of discretion. See,
e.g., State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994).
In the present case, the evidence was relevant for two reasons. First,
as urged by the prosecutor at the hearing on the motion in limine to exclude the
evidence, it was relevant to establish the defendant's identity. Second, the
evidence was relevant to establish that S.W. suffered bodily injury from an
aggravated rape as alleged in Count 6 of the indictment.2 Cf., e.g., State v. Smith,
910 S.W.2d 457, 461 (Tenn. Crim. App. 1995) (under sentencing statute prescribing
mitigating and enhancement factors, unwanted pregnancy constitutes bodily injury).
Viewing the evidence of S.W.'s pregnancy and abortion in light of its
dual relevancy, we find no abuse of discretion in the trial court's ruling allowing its
admission. Although it admittedly carried some component of prejudice to the
defendant, any evidence probative of a defendant's guilt is prejudicial. Any
prejudice which resulted from the admission of this evidence was not unfair. See
State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993). Further, the evidence
was not needlessly cumulative. S.W. was unable to identify the defendant at trial.
Also, the state was entitled to prove the defendant suffered bodily injury as alleged
in Count 6.
2
The defendant was not convicted of aggravated rape pursuant to Count
6. The indictment alleged alternatively aggravated vaginal rape while armed with
a weapon (Count 4) and aggravated vaginal rape causing bodily injury (Count 6).
The jury was instructed it could find the defendant guilty of one, but not both
counts. They returned a verdict of guilt on Count 4.
9
Because the evidence was appropriately admitted under the Rules of
Evidence, there is no basis for the defendant's claim of constitutional error.
IV
In his next issue, the defendant claims the trial court erred in denying
his motion for judgment of acquittal on the especially aggravated kidnapping count
and two of the three aggravated kidnapping counts. Specifically, he claims the
confinement necessary for the especially aggravated kidnapping conviction was
only incidental to accomplishment of the aggravated rape convictions. Therefore,
under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), separate convictions are
impermissible under the due process provisions of article I, section 8 of the
Tennessee Constitution.
In Anthony, the supreme court established the guidelines for
determining whether a defendant may be convicted of kidnapping and another
felony based upon a single criminal episode. Anthony was a consolidation of two
cases, and in both, the defendant robbed a business establishment. Both
defendants forcibly confined employees of the businesses they robbed by requiring
them to remain in the same location or to move to a different location within the
business establishments. Both defendants were convicted of robbery and
kidnapping offenses.
In determining whether separate convictions were proper, the supreme
court looked to "whether the confinement, movement, or detention is essentially
incidental to the accompanying felony and is not, therefore, sufficient to support a
separate conviction for kidnapping, or whether it is significant enough, in and of
itself, to warrant independent prosecution and is, therefore, sufficient to support
such a conviction." Anthony, 817 S.W.2d at 306.
10
More recently, in State v. Dixon, 957 S.W.2d 532, 534 (Tenn. 1997),
the supreme court cautioned that Anthony should not be read "to provide the rapist
a free kidnapping merely because he also committed rape." In determining whether
separate convictions may stand, the court must first consider "whether the
movement or confinement was beyond that necessary to consummate the [sexual
offense]." Dixon, 957 S.W.2d at 535. In this regard, "it is the purpose of the
removal or confinement and not the distance or duration that supplies a necessary
element of aggravated kidnapping." Dixon, 957 S.W.2d at 535. If the additional
movement or confinement was beyond that necessary to consummate the offense,
the court must then inquire whether that "additional movement or confinement: (1)
prevented the victim from summoning help; (2) lessened the defendant's risk of
detection; or (3) created a significant danger or increased the victim's risk of harm."
Dixon, 957 S.W.2d at 535.
As charged in the indictment, especially aggravated kidnapping is
false imprisonment accomplished with a deadly weapon. See Tenn. Code Ann. §
39-13-305(a)(1) (1997). False imprisonment is the knowing removal or confinement
of another "unlawfully so as to interfere substantially with the other's liberty." Tenn.
Code Ann. § 39-13-302(a) (1997).
The defendant emphasizes the fact that S.W. and M.T. voluntarily left
the Carousel with the defendant and his companion. He contends that his act of
moving S.W. a short distance from the car to the ball field was "slight, incidental
and/or inconsequential," and therefore, separate convictions cannot stand.
We disagree that Anthony bars separate convictions on the facts of
this case. The defendant used threats and application of force to confine S.W. to
the vehicle when she tried to exit. Thereafter, he removed her to a more remote
11
location away from the other two individuals in the car, at least one of whom might
interfere with his assault on S.W. S.W. testified that during the first rape, the
defendant became scared when a car drove by, so the defendant forced S.W. to
move into the dugout. The defendant remained alert to for passing vehicles during
the events which transpired thereafter. From these facts, it is apparent that the
defendant's actions prevented the victim from summoning help and lessened the
defendant's risk of detection. See Dixon, 957 S.W.2d at 535.
Thus, the evidence clearly demonstrates that the removal and
confinement were not incidental to the defendant's aggravated rapes of S.W.;
rather, the defendant's actions were the proper basis for a separate conviction of
especially aggravated kidnapping. Cf. Dixon, 957 S.W.2d at 533 (separate
convictions of aggravated kidnapping, aggravated assault and attempted sexual
battery where defendant assaulted victim on sidewalk then dragged her behind
bushes in vacant lot and attempted sexual assault).
V
Finally, the defendant alleges the trial court improperly sentenced him
to an effective 100 year sentence. For the felony convictions in this case, he
received Range I sentences of 25 years for especially aggravated robbery, 25 years
for each of two aggravated rape convictions, and 25 years for especially aggravated
kidnapping. Each of these sentences was imposed consecutively. He received 11
months and 29 days at 75 percent for the misdemeanor conviction of theft. The
misdemeanor sentence was imposed concurrently to the felony sentences. The
defendant's specific complaints are, first, that the trial court inappropriately applied
enhancement factors in determining the length of his individual sentences, and
second, that the trial court improperly ordered him to serve four of his five
convictions consecutively, resulting in an effective sentence which violates the
12
Eighth Amendment.
In determining whether the trial court has properly sentenced an
individual, this court engages in a de novo review of the record with a presumption
that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)
(1997). This presumption is "conditioned upon the affirmative showing in the record
that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we must consider the evidence at sentencing, the presentence
report, the sentencing principles, the arguments of counsel, the statements of the
defendant, the nature and characteristics of the offense, any mitigating and
enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code
Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann. § 40-35-103(5) (1997); Ashby,
823 S.W.2d at 168. On appeal, the appellant has the burden of showing that the
sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing
Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.
In felony sentencing, the trial court has an affirmative duty to state in
the record, either orally or in writing, which enhancement and mitigating factors it
found and its findings of fact. Tenn. Code Ann. §§ 40-35-209(c) (1997); Tenn.
Code Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998). In contrast, the misdemeanor sentencing statute only requires that
the trial court consider the enhancement and mitigating factors when calculating the
percentage of the sentence to be served prior to "consideration for work release,
furlough, trusty status and related rehabilitative programs." Tenn. Code Ann. §§ 40-
35-302(d) (1997); Troutman, 979 S.W.2d at 274.
In imposing a felony sentence, the trial court must begin with the
13
presumptive minimum sentence. Tenn. Code Ann. § 40-35-210(c) (1990)
(amended 1995).3 It may then increase the sentence for any applicable
enhancement factors and reduce it for any applicable mitigating factors. Tenn.
Code Ann. § 40-35-210(d), (e) (1990) (amended 1998).
Although the trial court announced its consideration of the sentencing
principles and made factual findings regarding the application of enhancement
factors, it misapplied enhancement factors and did not specify how the
enhancement factors applied to the individual felony convictions. Thus, our review
of the defendant's felony sentences is de novo without the presumption of
correctness. See State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)
("If the trial court applies inappropriate factors or otherwise fails to follow the 1989
Sentencing Act, the presumption of correctness fails."); see also State v. Curtis Lee
Majors, No. 01C01-9602-CR-00076, slip op. at 17-18 (Tenn. Crim. App., Nashville,
July 30, 1997), perm. app. denied (Tenn. 1998).
The defendant before us was 21 years old when he committed these
crimes and 27 years old when he came before the court for sentencing. He
dropped out of the ninth grade and has no GED. His verified work history consists
of six weeks of employment at Hardee's. He reported other employment in the food
service industry which could not be verified. The defendant blamed his lack of
stable employment on substance abuse, which began at age thirteen. Also, he has
been in and out of prison all of his short adult life. He had been released from
prison on parole status for eight days when he committed these offenses. His
3
Under the law applicable to the defendant, the presumptive sentence is
the minimum within the range. See Tenn. Code Ann. § 40-35-210(c) (1990). In
1995, the Code was amended to provide that the presumptive sentence for a
Class A felony is the midpoint within the range. See Tenn. Code Ann. § 40-35-
210(c) (1997). The amendment applies to crimes committed on or after July 1,
1995. Acts 1995, Ch. 493, § 1.
14
criminal history at the time of sentencing consisted of convictions for two counts of
aggravated robbery, first degree burglary, concealing stolen property, receiving
stolen property, felony escape, violation of the registration law and driving without
a license. Additional charges were pending for robbery and theft.
Length of Sentences
In determining the length of the individual sentences, the trial court
applied enhancement factors (1), (2), (4), (5), (7), (8), (11) and (13).4 The defendant
claims the trial court should not have applied factors (2), (4), (5) and (7). Because
we are proceeding without the presumption of correctness, we will examine all of
the enhancement factors applied by the trial court as well as any others supported
by the evidence.
4
(1) The defendant had a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;
(2) The defendant was a leader in the commission of an offense
involving two (2) or more criminal actors;
...
(4) A victim of the offense was particularly vulnerable because of
age or physical or mental disability . . .
(5) The defendant treated or allowed a victim to be treated with
exceptional cruelty during the commission of the offense;
...
(7) The offense involved a victim and was committed to gratify the
defendant's desire for pleasure or excitement;
...
(8) The defendant has a previous unwillingness to comply with the
conditions of a sentence involving release in the community;
...
(11) The felony resulted in death or bodily injury or involved the
threat of death or bodily injury to another person and the defendant
has previously been convicted of a felony that resulted in death or
bodily injury;
...
(13) The felony was committed while on any of the following forms
of release status if such release is from a prior felony conviction:
...
(B) parole;
...
Tenn. Code Ann. § 40-35-114(1), (2), (4), (5), (7), (8), (11), (13)(B) (1997).
15
The defendant does not contest that he has a previous history of
criminal convictions or behavior. See Tenn. Code Ann. § 40-35-114(1) (1997). The
evidence of his prior convictions supports the application of this factor to each of his
present convictions.
The evidence supports a finding the defendant was a leader in the
commission of some of the offenses. See Tenn. Code Ann. § 40-35-114(2) (1997).
By all accounts, he was aggressive while his unidentified companion was quiet and
passive. The defendant intimidated S.W. and M.T. through the application of force.
This factor clearly applies to the especially aggravated kidnapping and especially
aggravated robbery convictions. It should not apply to the two aggravated rape
convictions because the defendant's companion was not an active participant in
those crimes. Although its application to the theft conviction is arguable based upon
the defendant's friend's statements that the defendant would make M.T. surrender
her belongings, we decline to apply this factor to the theft conviction
The trial court incorrectly found that S.W. and M.T. were particularly
vulnerable due to age.5 See Tenn. Code Ann. § 40-35-114(4) (1997). Although the
women were young, this factor may be applied only where the state proves that the
victims were "particularly vulnerable" due to age because they were unable to resist,
summon help or testify at a later date. State v. Kissinger, 922 S.W.2d 482, 487
(Tenn. 1996). In the present case, the state offered no such proof.6
The trial court also erred in its finding that the defendant treated S.W.
5
The trial court accorded only slight weight to this factor.
6
We infer that the state concedes this factor should not be applied from its
failure to argue in its brief that the trial court's application of this factor was
correct.
16
and M.T. with exceptional cruelty. See Tenn. Code Ann. § 40-35-114(5) (1997).
This factor is generally applied in cases of abuse or torture. See, e.g., State v.
Davis, 825 S.W.2d 109, 113 (Tenn. 1991); State v. Haynes, 720 S.W.2d 76, 80, 86
(Tenn. Crim. App. 1986). In effect, it requires a finding of cruelty above and beyond
that inherently attendant to the crime itself. State v. Embry, 915 S.W.2d 451, 456
(Tenn. Crim. App. 1995). The cruelty employed by the defendant in this case was
of a level inherent to the crimes committed.
With respect to the aggravated rape conviction on count four, the
personal injuries inflicted on the victim were particularly great. See Tenn. Code
Ann. § 40-35-114(6) (1997). The state's proof at trial established that S.W. became
pregnant from the sexual assault. As a result, she underwent an abortion. See
State v. Max Eugene Martin, No. 01C01-9609-CR-00414, slip op. at 6-7 (Tenn.
Crim. App., Nashville, Apr. 29, 1998) (pregnancy and abortion), perm. app. denied
(Tenn. 1998); cf. State v. Smith, 910 S.W.2d 457, 461 (Tenn. Crim. App. 1995)
(pregnancy and childbirth); State v. Jones, 889 S.W.2d 225, 231 (Tenn. Crim. App.
1994) (pregnancy and childbirth).
The proof also supports a finding that the defendant committed the
aggravated rapes and the especially aggravated kidnapping in order to gratify his
desire for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(7) (1997).
In this case, the defendant apparently obtained some level of orgasm, as he
impregnated his victim. See Kissinger, 922 S.W.2d at 490-91 (whether an offender
attains orgasm is a factor that may be considered in determining whether factor (7)
applies). S.W. testified that the defendant became enraged when she would not
fondle him during the first rape. The defendant also made a lewd comment to his
companion about S.W.’s anatomy after the second rape. These facts support a
conclusion the defendant committed the rapes to gratify himself. Cf. Manning v.
17
State, 883 S.W.2d 635, 640 (Tenn. Crim. App. 1994) (defendant made explicit
comments and fondled victim). Further, the kidnapping was ongoing during the
rapes. There is evidence the abduction of the women was a predesigned plan to
gratify the defendant's sexual desires. M.T. testified that when she refused to take
her clothes off, the defendant's companion told her the defendant would make her
do it.
The trial court found that the defendant's sentence should be
enhanced because he had a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community. See Tenn. Code Ann.
§ 40-35-114(8) (1997). The court based its finding upon the fact that the defendant
was on parole when he committed these offenses. However, this factor applies
where there is a previous history of unwillingness to comply with the conditions of
release, not where the only evidence is the commission of the present offense while
on some form of release. State v. Hayes, 899 S.W.2d 175, 185-86 (Tenn. Crim.
App. 1995). Despite the defendant's history of criminal activity, the record does not
demonstrate that he committed crimes while serving earlier non-incarcerative
sentences. Thus, this factor cannot be applied.
The state presented proof at the sentencing hearing that the
defendant had a previous conviction for a felony which resulted in bodily injury via
the testimony of Carol Ann Henderson, whom the defendant had been convicted of
robbing while armed with a lead pipe. The felony convictions before the trial court
all involved the threat of or actual bodily injury. Thus, each of the defendant's felony
convictions should be enhanced under factor (11). See Tenn. Code Ann. § 40-35-
114(11) (1997). The factor does not apply to the theft conviction.
The defendant did not contest at the sentencing hearing that he was
18
on parole when he committed these offenses. See Tenn. Code Ann. § 40-35-
114(13)(B) (1997). The enhancement factor applies to each of his sentences.
The defendant does not challenge the trial court's determination that
no mitigating evidence existed. Nevertheless, pursuant to our duty of de novo
review, we have considered each of the mitigating factors listed in Code section 40-
30-113, as well as the evidence of record for any indication of non-statutory
mitigating evidence. See Tenn. Code Ann. § 40-35-113(13) (1997). We find no
mitigating evidence.
To summarize, we find the following enhancement factors applicable
to the defendant's felony convictions:
Offense Enhancement Factors
Especially Aggravated Robbery (1), (2), (11), (13)(B)
Aggravated Rape - Count 3 (1), (7), (11), (13)(B)
Aggravated Rape - Count 4 (1), (6), (7), (11), (13)(B)
Especially Aggravated Kidnapping (1), (2), (7), (11), (13)(B)
Theft (1), (13)(B)
Especially aggravated robbery, aggravated rape and especially
aggravated kidnapping are all Class A felonies. For these offenses, the defendant
is a Range I offender. 7 See Tenn. Code Ann. § 40-35-105 (1997). For a Class A
felony committed by a Range I offender, the range of punishment is 15 to 25 years.
Tenn. Code Ann. § 40-35-112(a)(1) (1997).
Turning first to the especially aggravated robbery conviction, we find
enhancement factors (1), (11) and (13)(B) worthy of great weight. The defendant
has a prodigious criminal record for someone so young. He has demonstrated a
7
We have considered only those crimes listed in the state's Notice of
Intent to Seek Enhanced Punishment in determining the defendant's sentencing
range classification. See Tenn. Code Ann. § 40-35-202(a) (1997).
19
pattern of violence. Further, he committed these offenses only eight days after
achieving parole status. He justly deserves a maximum sentence of 25 years.
Next, considering the aggravated rape conviction from count 3, the
first of the two rapes, we again find factors (1), (11) and (13)(B) deserving of great
weight for the reasons stated above. We find a maximum sentence of 25 years
appropriate.
With respect to the aggravated rape conviction from count 4, the
second rape, we weigh factors (1), (11) and (13)(B) heavily, as above. Further,
factor (6) deserves great weight due to S.W.'s ordeal in becoming pregnant and
having to undergo an abortion due to the defendant's criminal conduct. These
factors make a maximum 25-year sentence well deserved.
For the last felony conviction of especially aggravated kidnapping, we
again weigh factors (1), (11) and (13)(B) heavily. As a result, we again find a
maximum sentence of 25 years appropriate.
Our final length-of-sentence determination relates to the misdemeanor
theft sentence. Theft of property valued at $500 or less is a Class A misdemeanor.
Tenn. Code Ann. § 39-14-105(1) (1997). Punishment for a Class A misdemeanor
can be no greater than 11 months and 29 days.
Bearing in mind, as we must, the sentencing considerations, the
applicable enhancement factors and the lack of mitigating factors, we believe a
maximum sentence of 11 months and 29 days at 75 percent service prior to being
eligible for work release, furlough, trusty status and other rehabilitative programs is
appropriate. See Tenn. Code Ann. § 40-35-302(d) (1997).
20
Consecutive Sentencing
The final component of our sentencing review involves whether
consecutive sentencing is appropriate for this defendant. In general, consecutive
sentencing may be imposed in the discretion of the trial court upon a determination
that one or more of the following criteria exist:
(1) The defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose record of criminal activity
is extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a
result of an investigation prior to sentencing that the
defendant's criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless
indifference to consequences;
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b) (1990). In State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995), the supreme court imposed two additional requirements for
consecutive sentencing -- the court must find consecutive sentences are reasonably
related to the severity of the offenses committed and are necessary to protect the
public from further criminal conduct. At this time, it is unsettled whether Wilkerson
applies to all seven of the statutory categories for consecutive sentencing or only
the "dangerous offender" category. See State v. David Keith Lane, No. 03C01-
21
9607-CC-00259, slip op. at 11 (Tenn. Crim. App., Knoxville, June 18, 1997), perm.
app. granted (Tenn. 1998).
Because we have stripped the trial court of the presumption of
correctness in its sentencing determination, we review the issue of consecutive
sentencing de novo.
The trial court found that the defendant is a professional criminal who
knowingly devoted his life to criminal acts as a major source of his livelihood. See
Tenn. Code Ann. § 40-35-115(b)(1) (1997). Upon de novo review, we agree that
the existence of this factor has been established by a preponderance of the
evidence. See Tenn. Code Ann. § 40-35-115(b) (1997). Although young at the
time of his crimes, the defendant had already amassed convictions for robbery,
burglary and stolen property related offenses. In stark comparison, his work history
when not incarcerated is almost non-existent. He had a history of abusing alcohol,
marijuana, cocaine and Valium on a regular basis. He reported to the presentence
officer, "I was a drug addict in [sic] needed money to support my habits [sic] so thats
[sic] what cause [sic] me to robb [sic]." These facts support the application of
consecutive sentencing under Code section 40-35-115(b)(1). Cf. State v. Jason
Morin, No. 02C01-9512-CR-00370, slip op. at 11 (Tenn. Crim. App., Jackson, June
2, 1997) (defendant's extensive criminal record including several theft offenses, lack
of employment at the time of the crime and sketchy work history support finding that
he is a professional criminal under Code section 40-35-115(b)(1)).
The trial court also found that the defendant was an offender with an
extensive record of criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2)
(1997). On de novo review, we find this conclusion supported by a preponderance
of the evidence. See Tenn. Code Ann. § 40-35-115(b) (1997). The defendant has
22
a lengthy record of criminal convictions for someone of his young age. The
presentence report indicates that he has used illicit drugs since age 13. Further, he
has engaged in criminal activity while incarcerated.
The third basis upon which the trial court premised consecutive
sentencing was that the defendant was a dangerous offender as described in Code
section 40-35-115(b)(4). The record supports our de novo conclusion that this
factor applies to the defendant. He employed a lead pipe to ensure the successful
commission of his crimes. He also assaulted S.W. by repeatedly punching her in
the face with his fist, and he hit both S.W. and M.T. with the pipe. In addition, there
was evidence he assaulted Ms. Henderson with a lead pipe during another crime.
S.W. testified that she complied with the defendant's demands because she was
concerned for her life. M.T. testified that she was concerned for S.W .'s life, as well.
The preponderance of the evidence supports a conclusion that the defendant would
have employed as much violence as was necessary to the perpetration of his
crimes. Thus, his behavior "indicates little or no regard for human life, and no
hesitation about committing a crime in which the risk to human life is high[.]" See
Tenn. Code Ann. § 40-35-115(b)(4).
With respect to the Wilkerson factors, the defendant clears this final
hurdle for consecutive sentencing. Consecutive sentences are reasonably related
to the severity of these offenses and the public deserves protection from further
criminal conduct by this defendant. See Wilkerson, 905 S.W.2d at 937-38. Only
eight days out of prison on parole, the defendant committed four Class A felonies.
He began his criminal career at an early age and has distinguished himself as a
hardened criminal by graduating from property and drug crimes to violent felonies
against other persons.
23
Although our review is de novo, we have come to the same conclusion
as that reached by the trial court -- the defendant's felony sentences should all be
served consecutively to each other, and the misdemeanor theft sentence should be
served concurrently to the especially aggravated robbery conviction. Furthermore,
the defendant's sentences should be served consecutively to the sentence for which
he was on parole at the time he committed these offenses. See Tenn. R. Crim. P.
32(c)(3)(A).
Finally, with respect to the defendant's argument that his sentence
violates the Eighth Amendment prohibition against cruel and unusual punishment,
our consideration of this issue has been waived. In his brief, the defendant devoted
a cursory, one-sentence argument to this proposition. He has failed to cite any
authority beyond the Eighth Amendment itself. When a party fails to provide a
sufficient argument and citation to relevant authorities, this court treats the affected
issue as waived. Tenn. R. Ct. Crim. App. 10(b); see Tenn. R. App. P. 27(a).
Moreover, despite the defendant's deficient argument, no Eighth Amendment
violation is readily apparent.
In sum, the defendant's appellate issues are without merit. The
judgment of the trial court is affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
DAVID H. WELLES, JUDGE
_______________________________
L.T. LAFFERTY, SPECIAL JUDGE
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