State v. Dustin Dwayne Davis

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 15, 1999
• Docket: 03C01-9712-CR-00543
• Status: Published

Opinion

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

24 25