State v. Taylor

739 S.W.2d 227, 1987 Tenn. LEXIS 980
CourtTennessee Supreme Court
DecidedSeptember 28, 1987
StatusPublished
Cited by153 cases

This text of 739 S.W.2d 227 (State v. Taylor) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Taylor, 739 S.W.2d 227, 1987 Tenn. LEXIS 980 (Tenn. 1987).

Opinions

OPINION

FONES, Justice.

Defendant, William H. Taylor, was convicted on two counts of aggravated rape. The trial judge sentenced defendant to serve twenty-four years on each count. The sentences were ordered to run consecutively. The Court of Criminal Appeals affirmed, and this Court granted permission to appeal, to consider whether consecutive sentencing was proper.

On 14 September 1984, the Davidson County Grand Jury returned an indictment charging defendant with two counts of aggravated rape of defendant’s daughter. The victim was seven years old at the time of the alleged incidents. At trial, the victim testified that in August of 1984, defendant forced her to engage in fellatio and sexual intercourse with him. According to the victim’s testimony, these acts were repeated on another occasion in September of 1984. The victim stated that defendant told her that if she ever told anyone about the incidents, he would spank her. Despite this threat, the victim informed her mother who took the girl to Metropolitan Nashville General Hospital for an examination. Three residents, two specializing in pediatrics and one specializing in obstetrics and gynecology, examined the victim at the hospital. Each testified that the victim exhibited numerous symptoms indicative of a sexually abused child. There was evidence at trial that the victim had been sexually abused by defendant for more than two [228]*228years. Based upon this evidence the jury found defendant guilty on both counts of aggravated rape.

The presentence report revealed that defendant had been charged with fourteen misdemeanor offenses between 1967 and 1984. In July 1984 he was sentenced to 11 months and 29 days for malicious mischief and 11 months and 29 days for assault, but was apparently granted probation with some unspecified restitution conditions.

The report also revealed that the sexual abuse had probably started when the victim was four years old and continued “until disclosure” when she was seven years old. It involved multiple types of sexual activity and inflicted physical and emotional damage upon the victim.

The trial judge found defendant to be a standard offender, range one, invoking a statutory range of punishment from 20 to 40 years. He fixed defendant’s punishment at twenty-four years on each count, to be served consecutively with eligibility for parole upon service of thirty percent of the sentence. The consecutive sentences were ordered because of the aggravated nature of the offenses and the evidence that the abuse had continued “over a period of several years”. The trial judge made no express reference to the criteria promulgated in Gray v. State, 638 S.W.2d 391 (Tenn.1976). The Court of Criminal Appeals concluded that defendant was a “multiple offender” under Gray and affirmed the trial court.

It is clear that neither of the courts below based consecutive sentencing upon defendant’s record of misdemeanors and that the decisive factors were the repetition of sexual abuse over a period of more than two years before disclosure, the reprehensible nature of the numerous types of sex acts committed upon a child of tender years and the resulting physical and mental damage to the victim.

Thus, we granted further review of this case to determine whether it was appropriate to impose consecutive sentences upon this defendant.

Persons convicted in Tennessee of two or more offenses may be sentenced to either consecutive or concurrent prison terms. T.C.A. § 40-20-111. The decision of whether the prison terms are to be consecutive or concurrent is left to the discretion of the trial court. The trial judge’s decision is subject to review by the appellate courts, de novo, without a presumption of correctness. T.C.A. § 40-35-402(d).

The relevant portions of Gray are as follows:

Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.
Types of offenders for which consecutive sentencing should be reserved may be classified as follows: ... (3) the multiple offender, one whose record of criminal activity is extensive....
⅝ sjc ⅝ $ $ ⅜
The prior record of the multiple offender may have been good, but the crimes for which he had been convicted indicate criminal activity so extensive and continuing for such a period of time as to warrant consecutive sentencing. See Sentencing Alternatives and Procedures, § 3.4, Comment C; Model Penal Code, § 7.03. The object is to use consecutive sentencing, where appropriate, to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle.

358 S.W.2d at 393.

The Court of Criminal Appeals held that although defendant was convicted of only two acts of sexual abuse, the record revealed that defendant’s “criminal activity directed against this child has been so extensive and has continued for such a long period of time that he is a ‘multiple offender’.”

In this Court the State insists that the Court of Criminal Appeals was correct in classifying defendant as a multiple offender under Gray.

[229]*229Defendant contends that none of the classifications in Gray are applicable to this case. He insists that factually this case is closely akin to State v. Grady, 619 S.W.2d 141 (Tenn.Crim.App.1980),1 wherein the intermediate court rejected the State’s insistence that the trial judge’s imposition of consecutive sentences was justified under the dangerous offender classification as defined in Gray.

An examination of recent sexual abuse cases reveals the difficulty encountered by the courts in applying the Gray classifications to justify consecutive sentences.

In Bethany v. State, 565 S.W.2d 900 (Tenn.Crim.App.1978), the defendant was convicted of six counts of committing a crime against nature (fellatio). The defendant was a scout master who took seven young boys on a camp-out. While on the outing, the defendant engaged in fellatio with six of the boys. Two of the victims were older than twelve, while the remaining victims were twelve or younger. Upon the guilty verdict, the trial court sentenced the defendant, and ordered the sentences to be served consecutively. The trial judge ordered consecutive sentences though he admitted he was unable to fit the defendant into one of the five Gray categories. Instead, the trial judge concluded that the defendant was “closely identified” with the dangerous offender and the dangerous mentally abnormal person. The Court of Criminal Appeals affirmed the order imposing consecutive prison terms. In its opinion, the court stated, “[w]e do not think Gray

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Bluebook (online)
739 S.W.2d 227, 1987 Tenn. LEXIS 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-taylor-tenn-1987.