### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec embe r 2, 200 8
STA TE OF TENNES SEE v . ROY SHOT WEL L, JR.

Direc t Appeal from the Circ uit Court forFayett e County

No. 5874 WeberMcC raw, Judge

No. W2008-00682-C CA-R 3-CD - Filed Augu st 27, 2009

The de fenda nt, Roy S hotwell, Jr., was c onvicted of two c ounts of rape , eac h a Class B felony, and one count of

sexual ba ttery, a C lass E felony. The defe ndant was se ntence d to ten year s for e ach Class B felony and to two yea rs for the Class E f

el o n y . The de fenda nt rec eived a total effe ctive
se nte nc e of

tw e nty ye ars

. Th e de fe nd a nt ap pe a ls, arg uin g tha t the tr ia l cou rt e rr e d in: de ny ing his motion for a seve ranc e; allowing the State to offer expert witnesses on DNA and fore nsic nursing;
a nd in se nte nc ing . Af

te r ca re fu l re vie w, we a ff

ir m the tr ia l c ou rt ’s de c isi on s to joi n th e ind ic tme nts in o ne tr ial and to adm it the Sta te ’s e xp e rt te sti mon y. Mo re ov e r, the tr ia l c ou rt didno t a bu se its discretion in applying the enhanc ement fac tors or in ordering consec utive sentenc es. Ther efor e, the judgments from the trial court are aff irmed. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Circ uit Court Aff irme d

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which C AM I LLE R. M C M ULLEN , J. , jo ine d. J. C. M C L IN , J., not participating. Gary F

. Ant rica n, District Public Defe nder, a nd Rickey W. G riggs and Ka ri I. We ber, A ssistant Public Defe nders, f

or the a ppellant, Roy Shotwell, Jr. Robert E. Cooper, Jr ., Attorney Ge nera l and Rep o r ter; Renee W. Turne r, Senior Counsel; D. Michae l Dunava nt, District Attorney Ge nera l; and Terry Dycus, Assist ant Dis trict Attorney Ge nera l, for the appellee , State of Tenne ssee.
OP IN ION

Th is c a se re la te s to the de fe nd a nt’ s rape a nd se xu a l ass a ult of his ste pd a ug hte r on s e pa rate
oc c a sio ns , o nc e wh e n s he wa s th ir te e n y e ars old a nd tw ic e wh e n s he wa s f if te e n y e ars old . T he Sta te originally char ged him with three c ounts of rape

.

At Trial-2-

Offic er Calvin Ridgell testified t hat he attended the police ac ademy with the de fenda nt and considere d him to be his best friend. He sa id that he went to visit the defe ndant, as a friend, w hen he wa s incarc erated o n t h e u n derlying cha rges. He asked the defe ndant if he ha d committed the crimes, and the defe ndant admitted he wa s guilty and “did it.” The def endant told him that the sex
was c onsensual, which a ngere d the witness. T h e defe ndant ac knowledged that he knew it wa s wrong. A serge ant with the Fayette County Sheriff’ s Depa rtment testified that he relieve d an off icer who was w ith the defe ndant in the hospital on Februar y 1 4 , 2 0 0 7

. Hi s job was to make sure the defe ndant did not leave. T he def endant wa s seated in a chair in the t riage room and st ated, “ I had sex with my stepdaughter . I know it was wrong and I’ll pay for it.” He further state d that he wa s in the ho sp ita l be c a us e he wa s th inking of c utt ing his wrist s.
A r e gis te re d n ur se te sti fi e d th a t sh e wa s e mpl oy e d a t Me tho dis t Fa ye tte Ho sp ita l in Som e rv ill e a ndthat sh e sa w the de fe nd a nt i n th e e me rg e nc y roo m on Febr ua ry 14 , 2 00 7. She sa id that the def

endant wa s brought in because he ha d been hearing voic es. During the assessment of the defe ndant, he told her

that he had done wrong a nd should have to pay f or wha t he did.

The victim’s mother testified that she was marrie d to the defe ndant. On February 2, 2007, she discover ed the victim’s paja mas hidden under a towel be hind the bed. She asked the victim why her pa jamas we re be hind the bed. The victim said she did not know but told her m other what the defe ndant had done. She called the defe ndant and told him she was taking the victim to the hospital be c a us e the vic tim

wa s si c k. W he n the de fe nd a nt ca me ho me , she c on fr on te d the de fe nd a nt w hil e they all sat outside in the truck. He initially denied the a llegations. When the victim stated what the de fe nd a nt h a d d on e to he r, he turne d a ro un d in the fr on t se a t, s tart e d p la yin g w ith his ha nd s, a ndhe ld his hands down. He the n apologized to the victim a nd her mother . He sa id that he started “ messing” with the victim severa l year s ago and tha t he was sor ry. The vic tim’s mother called the police, and the def endant wa s taken into custody.

Th e vic tim

te sti fi e d th a t w hen she wa s th ir te e n y e ars old , th e de fe nd a nt c a lle d h e r i nto his b ed ro o m an d as k ed her

to rub “Ic yHot” on his bac k. She said that he wa s only wearing a towel around his wa ist and was lying on his stomach. She said that he moved the t owel down his body, the n g ot u p, gr abb e d h e r a rm s, fl ipp e d he r on the be d, he ld h e r a rm s d ow n, a ndre mov e d h e r c lothe s. She said that she begged the defendant to stop and tried to get away. The de fenda nt penetrated her vagina with his penis.

The sec ond sexual a ssault occur red w hen the victim was f ifteen ye ar s o l d

. She stayed a t home bec ause she was sick. The defe ndant enter ed the victim’s bedr oom, turned her over on he r be d, sp re a d h e r l e gs , a ndre mov e d h e r c lothe s. Th e vic tim ask ed hi m to s top a ndun su c c e ssf ull y attempted to kee p the defe ndant from opening her legs. The de fenda nt again pene trated he r vagina but, this t ime, used a condom. She said that this ra pe did not last long be cause the victim’s brother
c a lle d h ome , a ndthe de fe nd a nt l e ft to p ic k h im u p f

ro m sc ho ol.

The third incident occurr ed whe n the victim was fifte en yea rs old. She said that she wa s washing dishes in the kitchen when the defe ndant pushed her into the living room and re moved her-3-

clothes. The de fenda nt laid her on the c ouch and he ld her a rms. The defe n d an t p enetrated he r vagina with his penis while she be gged him to stop. The victim did not tell anyone about t h e i ncidents bec ause she was a fra id and bec ause the defe ndant was a

police off

icer . The de fenda nt told her he would lose his job if she told anyone

. A nurse pr actitioner at the Memphis Sexual Assault Resource Center testified tha t she saw the victim on February 24, 2007. She took a history fr o m t h e victim and perf ormed a physical examination on her . The e xamination reve aled that the vic tim had an injury to the rea r of her hyme n cause d by blunt penetra ting trauma. A spec ial agent with the Te nnessee Bureau of Investigation (TBI) testified that she tested the victim’s pajamas that we re e ntere d into evidence . There was sper m fou n d i n t h e crotch of the pajamas, a nd it matched the de fenda nt’s DNA.

The de fenda nt called a fore nsic DNA e xaminer to testify on his beha lf. The e xpert testified that she tested a piece of the fabric from the pajamas and that the defe ndant could not be e xcluded
as a contributor of the DNA mixture found on the pajamas. Howeve r, she f ound fema le DNA tha t did not belong to the vi ctim. On cross-examination she testified t hat t he sperm found on the pa jamas
was a match to the def

endant’ s DNA.

The de fenda nt was convic ted of two c ounts of rape and one c ount of sexual battery. He was se nte nc e d to a

tot a l e ff e c tiv e se nte nc e of

tw e nty ye ars

. An a lys is On appe al, the State ar gues that this case is not properly bef ore this c ourt beca

use the re cord does not contain a n order disposing of the defe ndant’s motion for new trial

. The judgments of
c on vic tio n we re e nte re d o n D e c e mbe r 2 1, 20 07 . O n J a nu ary 11 , 2 00 8, the de fe nd a nt f ile d a tim e ly motion for new tria l. On F eb ru ary 15, 2008, the trial court de nied the motion for new trial and order ed the de fenda nt to prepar e an or der r efle cting the same. O n February 15, 2008, the def endant filed a notice of appe al. The r ecor d befor e us does not conta in an order dis posing of the de fenda nt’s motion for new tria l. Howeve r, the a ccompa nying rec ord does include a tra nscri p t o f the hea ring on the motion for new trial which cle arly shows th at t he motion was denie d. The Te nnessee Supreme Cou r t h a s r e c e n tl y d e te r mi n e d th a t a d is mi s s a l o f a n ap p e a l is n o t w arr a n te d w h e n the transcript of the hea

ring on the motion for new trial clea rly indicates that the trial judge has ruled on the def endant’ s motion. State v. Terry Lynn By ington , No. E2006-02069- SC-R11-CD, 2009 Tenn. LEXIS 308, at **6-7 (Te nn. May 5, 2009). Thus, be cause the re cord is cle ar tha t the trial court r uled on the motion, this court ha s jurisdiction over this case.
First, the defenda nt argue s that th e t ri al court erre d in denying his moti on for a sever ance

. The trial c ourt denied his motion to sever the offe nses beca use all three rape offe nses wer e subjec t to m a nd a tory jo ind e r. Tria l c ou rt ru lin gs a dd re ssi ng joi nd e r a nd se ve ra nc e of of fe ns e s, pu rs ua nt t o Rules of C riminal Procedur e 8, 13, and 14, a re r eviewe d for an abuse of discretion. State v. G o o d w in , 14 3 S .W .3 d 7 71 , 7 80 (T e nn . 2 00 4) ; Sp ic e r v . S tat e , 12 S.W.3d 438, 442 (Tenn. 2000)

.-4-

A t rial court’s decision t o consolidate or sever offe nses wil l not be reverse d unless the “c ourt applied
an incorre ct legal standard, or rea ched a dec ision which is against logic or re asoning that caused an injusti ce to the party complaining.” State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999) (quoting Sta te v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997) ).

Tenne ssee Rule of Criminal Procedur e 8(a)(1) mandates joinder of the off enses, a s alleged,
ari sin g f ro m th e “ sa me c on du c t or ari s[ ing ] f

ro m th e sa me c ri min a l e pis od e .” Te nn . R. Cr im. P. 8( a )( 1) (A ). Th e Te nn e sse e Sup re me Cou rt ha s e xp la ine d th a t “ [t ]h e pu rp os e of Rul e 8 is to p ro mot e e ff ic ie nt a dmi nis tr a tio n o f jus tic e a nd to p ro te c t th e ri gh ts o f the a c c us e d. Th e ru le c le arl y p e rm its a subseque ntly returned indict m en t t o b e joined with a pr evious indictment where the allege d offe nses rela te to the same c riminal episode.” Sta te v . Ca rru the rs , 35 S.W.3d 516, 573 (Tenn. 2000)

. He re , th e ind ic tme nts we re a ll r e turne d o n th e sa me da te a ndde a lt with th e sa me c on du c t. Acc ordingly, all three c ounts of rape in this case met the c riteria f or manda tory joinder.

In su pp ort of

his mot ion to s e ve r, the de fe nd a nt argu es th at the c ha rg e s w e re no t so distinctive as to be unable to be separ ated. Te nnessee Rule of Criminal Proc edure 14 provides that
e ith e r the Sta te or the de fe nd a nt m a y o bta in a se ve ra nc e of

of fe ns e s w he n it

is a pp ro pr ia te to p ro mot e a fa ir determination of the defe ndant’s guilt or innocence . Tenn. R. Crim. P. 14(b)(2)( A). The trial court de nied the motion to sever beca use the indictment entailed the sa me conduc t and involved the same plan. Bec ause, a s found below, mandatory joinder wa s appropriate, the de fenda nt’s argume nt that t h e ch arge s were subject to permissive joinder is without merit. The de fenda nt has not demonstrated tha t the trial court a bused its discretion or that he was pre judiced by the de cision.
Next, the de fenda nt argue s t h at t h e t ri al court erre d in allowing the State to offer expert wi tne sse s o n D NA a ndfo re ns ic nu rs ing . Sp e c if ic a lly , he c on te nd s that it wa s e rr or to a llo w the Sta te to offer expert testimony t hat: (1 ) t h e DNA found in the victim’s pajama s matched his DNA ; and (2) the victim ha d injuries to he r vagina l are a ca used by blunt trauma. The propr iety , scope, ma nner, and control of the examination of witnesses are within the sound discretion of the trial court. Sta te v. Humphre

ys , 70 S.W .3d 752, 766-67 (Te nn. Crim. App. 2001). A witness qualified as an expert by knowledg e, ski ll, experience , training , or educ ation may testify in the form of an opinion or ot herw ise, provided the scientific, technical, or other spec ialized knowledg e will substantially assist the trier of fac t to understand the evidenc e or to de termine a fac t in i ssu e . T e nn . R. Ev id. 70 2. An e xpe rt may ba se his or

he r o pin ion

up on fa c ts o r d a ta

imp art e d to or per ceive d by

the ex pert prior to or at a hearing ; the facts or data need not be admissi ble i f t hey are the ty pe of f acts or data re asonably

relied upon by

experts. Tenn. R. Evid. 703. I f the unde rlying fac ts or data lac k t ru s t wo rt h i n es s, the court sha ll disallow ex pert testimony based upon the m. Id

. Evidence and expert testimony reg ardingscientific theor y must be both releva

nt and re liable bef

ore it may be admitted. McD aniel v. CSX Transportat ion, Inc. , 955 S.W .2d 257, 265 (Tenn. 1997)

. Th e tr ia l c ourt

ha s b ro a d d isc re tio n in

re so lvi ngqu e sti on s c on c e rn ingthe qu a lif ic a tions, admissibili ty , rele vance , and competency of ex pert testim ony

. State v. Stev ens , 78 S.W .3d 817, 832 (Tenn. 2002) . An appe llate cour t should not overturn a trial c ourt’s dec ision in admit ting or-5-

excluding a pr oposed expert’s testimony unless it finds the trial court abuse d its d i s cr eti on. Sta te
v . B all ar d , 855 S.W .2d 557, 562 (Tenn. 1993)

. Her e, a nurse practitioner and TBI agent we re a cce pted as e xperts in their re spective f ields wi tho ut o bje c tio n f

ro m th e de fe nd a nt at tria l. H ow e ve r, he did ob je c t to the te sti mon y of the nu rs e prac titi o n e r

u p o n g r o u n d s th a t th e g ap o f ti me ma d e a n y e v id e n c e f r o m th e v ic ti m’ s e x a mi nation irrele vant. The trial court allowed the evidenc e and determined that the defe ndant’s argume nts went to the we igh t a ndno t to the a dmi ssi bi li ty of the e vid e nc e . T he de fe nd a nt w a s g ive n a mpl e op po rtun ity to c ro ss- e xamin e the wi tne ss a ndwa s a ble to q ue sti on he r a

bo ut the c a us e of

the tr a uma and the a ge of the injury to the victim. In fac t, on cross-e xamination, the nurse pr actitioner te stified that sh e c ou ld n ot d a te the inj ury to the vic tim a ndsa id tha t th e inj ury c ou ld h a ve oc c ur re d a s a re su lt of conse nsual sex. The testimony of t he nurse prac titioner was relevant, and the t rial court did not abuse its discre tion in admitt ing the testimony. With rega rd to the testimony about the pajamas, the S tate argues that the defenda nt conce des in h is b ri e f tha t th e vic tim ’s pa ja ma s w e re re le va nt i n o rd e r t o s ho w h ow the vic tim ’s mothe r b e c a me awa re of the allegations a gainst the defe ndant. Howeve r, he c ontends that the pre sence of his sperm in the victim’s pa

jamas was irrele vant beca use the rec ord did not contain any testimony fr o m the victim that she was we aring the pa jamas during any of

the incidents.

The trial c ourt allowed the testimony regar ding the DNA in the pajamas following a jury out he ari ng . T he vic tim

te sti fi e d th a t the pa

ja ma s b e lon ge d to he r a ndthat no on e e lse wo re the pa ja ma s. The fa ct that they wer e found hidde n in the defe ndant’s bedr oom and containe d the def endant’ s sperm wa s releva nt a nd was proper ly a dmitted by the trial court. The rec ord does not re flec t that the tr ia l c ou rt abu se d it s d isc re tio n in a llo wi ng the e xp e rt to t e sti fy re ga

rd ing the pa

ja ma s. Next, the de fenda nt argue s that the t rial court improperly considered enhancing factors. The de f e n d a n t w a s c o n v ic te d o f tw o Cl a s s B f e lo n ie s a n d o n e Cl a s s E f e lo n y
. T h e d e f

e n d a nt was
se nte nc e d a s a

sta nd ardof

fe nd e r a ndsu bje c t to a

ra ng e of ei gh t to twe lve ye ars fo r e a c h Cl a ss B felony a nd to a ra nge of one to two year s for the Class E felony. He wa s sentence d to ten year s for
eac h Class B felony and two yea rs for the Class E felony.

T h e e v e n ts u n d e r ly

in g o n e o f th e d e f

e n d an t’ s c o n v ic ti o n s o c c u r r e d b e tw e e n Se p te mber 1, 20 04 and De c e mbe r 3 1, 20 04 , p ri or to t he e na c tme nt o f t

he 20 05 a me ndme nts to t

he Se nte nc ingAc t, wh ic h b e c a me e ff

e c tiv e June 7, 20 05

. Th e re ma ini ng tw o inc ide nts oc c ur re d a ft e r t he a me ndme nts beca me ef fec tive. During the sente ncing hea ring, the def

endant a nnounce d t o t h e court that he would waive his rights t o b e sente nced unde r the Sentenc ing Act in eff ect at the time of the commission of the first crime. The amended sentencing statute no long er imposes a presumptive sente nce. State v. Carter , 254 S.W .3d 335, 343 (Tenn. 2008) . As furthe r explained by our supre me cour

t in Carter , the trial cour

t is fre e to selec t any

sentenc e within the applica ble ra ng e so longas the leng th of the sentenc e is con s i stent with the purposes and pr inciples of [the-6-

SentencingAct]. [ Tenn. Code Ann.] § 40-35-210( d). Those pur poses and pr inciples include the imposition of a sentenc e jus tly deser ved in relation to the seriousness of the offe nse, [Tenn. Code Ann.] § 40-35-102(1), a punishment sufficient to pre vent crime a nd promote re spect for

the law, [Tenn. Cod e An n .] § 40-35-102(3), a nd consideration of a defe ndant’s potential or lack of potential for . .

. re h ab ilitation, [Tenn. Code Ann.] § 40-35-103(5).

Id. (f oo tno te omi tte d) ; se e als o S tate v

. Ed dr ic k De v on Pe witte , No. W2008-00747-CCA-R3-CD, 2009 Tenn. Crim. App. L EXI S 5, at *23 (Tenn. Crim. App. at Jackson, J an. 5, 2009).

Fur ther, the 2005 A mendment to the Sentencing A c t d e le te d appellate revie w of the w eig hing of the e nhance ment and mitigating fac tors as it r ender ed these fac tors mere ly advisory , as opposed to binding, upon the tria l court’s sente ncing decision. Id. Under curr ent sentenc in g l aw , t h e t ri al court is nonethele ss require d to consider a n advisory

sentenc ing guideline that is rel ev an t t o the sentenc ing de termination, including the application of enhanc ing and m itigatingfac tors. Id. at 344. The trial c ourt’s we ighingof var ious mit iga ting a nd enhanc ing fac tors is now left to the trial cour t’s sound discretion. I

d. T h u s , t h e 2005 re vision to Tennessee Code Annotated se ction 40-35-210 incre ases the a

mount of discretion a tr ial court e x erc ises when imposing a sente ncing term. Id. at 344.

To fac ilitate appellate r eview, the trial court is re quired to plac e on the r ecor d its reasons for imposing the s p ecific sentenc e, including the identification of the mitigatingand enha nceme nt fac tors found, the spec ific facts supporting eac h enhanc ement factor found, and the method by which the mitigatingand enha

nceme nt fac tors have be en e v al u at ed and balance d in determining the sentenc e. See id. a t 34 3; Sta te v . S am ue ls , 44 S.W. 3d 48 9, 49 2 (T e nn

. 20 01 ). I f o ur re vie w r e fl e c ts that the trial cour

t applied inappropr iate mitigating a nd/or enha

nceme nt fac tors or otherw ise failed to fo llo w the Se nte nc ing Ac t, the pr e sumpt ion of c or re c tne ss fa ils and

our r e vie w i s de novo

. Carter , 254 S.W .3d at 345

. Her e, the tria l court applied the following enhanc ement factors pursua nt to Tennessee Code Annotated se ction 40-35-114:
(4) The victim of the of

fense was pa

rticularly vulner able be cause of age or physical or mental disability;
(7) The of

fe n s e i nvolved a victim and wa s committed to gratify the def endant’ s desire f or plea sure or

exciteme nt; and,
(1 4) Th e de fe nd a nt a

bu se d a po sit ion of

pr ivate trus t.
The trial c ourt place d great weight on fac tors (4) a nd (7). Additionally, the t ri al court applied a mitigating fa ct o r p u rsuant to Tennessee Code A nnotated sec tion 40-35-113 (13), a ny other fa ctor consistent with the purposes of this cha pter, that the de fenda nt had no prior c riminal activity.-7-

The e vidence ref

lects that all the e nhance ment fac tors applied we re w ithin the trial court’s discretion. The evidenc e demonstrated that the victim lost her virginity to th e d ef en d an t , her stepfathe r. The vic tim testi fied that she did not tell anyone about the ra pes and a ssault because of the def endant’ s position as her stepfathe r and as a police of fice r. The de fenda nt held a position of trust ov er t h e v ictim and made he r particularly vulnera ble. The of

fense was c ommitt ed to gra tify the def endant’ s desire f

or sexua l pleasureor exc itement. The re cord supports that the trial court wa s within its discretion to apply these enhanc ement fac tors, and they wer e not e rrone ously applied. The defe ndant is not entitled to a reduc tion in a sentence for his convic tions.

Ne xt, th e de fe nd ant a

rgue s th a t th e tr ia l co urt e rr e d in imp os ingc on se c uti ve se nte nc e s. Gene rally , it is wit hin the discretion of the t rial court to impose consec utive sentenc es i f i t finds by
a pr e po nd e ra

nc e of the e vid e nc e that at le a st o ne of fo llo wi ngstatut or

y c ri te ri a a pp lie s: (1) [t ]he defenda

nt is a profe ssional cri m i n al who has knowing ly devoted suc h de fe nd ant’ s li fe to c ri min a l a c ts a s a ma jor so ur c e of liv e lih oo d; (2 ) [t]he de fe nd ant i s an o f fe nd e r who se re c or d o f c ri min a l a c tiv ity is e xten siv e ;
( 3 ) [ t ] h e d e f

e n d an ti s a d a n g e r o u s m e n t a l l y a b n o r m a l p e r s o ns o d e c l ar e d

b y a

c omp e t e n t p s y c h i a t r i s t w h o c o n c l u d e s a s a r e s u l t o f an i n v e s t i g a t i o n p r i o r t o s e n t e n c i n g t h a t t h e d e f

e n d an t ’ s c r i m i n a l c o n d

u c th a s b e e nc h ar a c t e r i z e d b y a patte rn of re pe tit iv e or com

pu lsi ve be havio r w ithhe e dle ss i nd if fe re nc e to
c on se qu e nc e s; (4) [t ]he defenda

nt is a dang erous of

fende r whose be havior indi cate s litt le or no reg ard f or human life, and no hesitation about committing a c rime in which the risk to human life is high; (5) [t ]he defenda

nt is convicted of two ( 2) or more s t at u t o ry of fense s involving sexual ab u s e of a minor with consideration of the ag g ravating c ircumstance s arising from the r elationship betwee n the def endant a nd victim or victims, the time span of defenda

nt’s undetec ted sexual activity , the nature and scope of the
sexu a l a c ts an d th e e xte n t o f th e r e s id u a l, p h y s ic a l an d me n ta l d a ma g e to the vic timor vic tim s; (6) [t ]he defenda

nt is sentenced f

or an of fense committed while on probation; or (7) [t] he def

endant is sentenc ed for

criminal conte mpt.

T

. C

. A

. § 4 0

- 3 5

- 1 1 5 ( b ) ( 2 0 0 6 )

. T h e c o u rtm ay o r d e r s e n t e n c e s t o r

u n c o n s e c u t i v e l y i f

i tf i n d s b y a preponde ranc e of the evidenc e t h at one or more of the statutory

criter ia exist

. S

tate v . Black, 924 S.W .2d 912, 917 (T

enn. Crim. App. 1995). The trial c ourt imposed partial c onsecutive se ntencing based upo ns u

b s e c ti o n( 5 ) , b e c a

u s e th e d e f

e n d an t w a s c o n v ic te d

o f thr e e c r im e s inv o lv in g sexual-8-

abuse of a minor. The proof

demons t ra t ed that the de fenda nt was the victim’s stepfather a nd that the i ncidents occurre d over a period of sever al y ear s. The re cord f urther r efle cts that the victim was frig htened to tell any one about the a buse bec ause the defe ndant was a police of fice r , as we ll as her stepfathe r

. The rec ord ref lects that it wa s within the trial court’s discretion to impose consecutive
se nte nc e s. Th is i ssu e is w ith ou t me ri t.
Conclusion

Ba se d on the fo re go ing a nd the re c or d as a wh ole , we a ff ir m th e tr ia l c ou rt ’s de c isi on s to joi n the i n d i ct m en t s in one trial and to a dmit the St ate’ s expert testimony. B eca use the de fenda nt
e xe c ute d a

wa ive r o f his e x po st fa c to pr ov isi on s a ndwa s se nte nc e d u nd e r the 20 05 a me nd me nts to the Se nte nc ing Ac t, the tr ia l c ou rt did no t abu se its dis c re tio n in app lyi ng the e nh a nc e me nt f a c tor s. Further, conse cutive sente ncing was pr operly imposed.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE