IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 1, 2024

STATE OF TENNESSEE v. ORLANDO NICHOLS

Appeal from the Criminal Court for Shelby County

Nos. 20-03480, C2005623 Lee V. Coffee, Judge

___________________________________

No. W2023-01183-CCA-R3-CD

___________________________________

The Defendant, Orlando Nichols, was convicted in the Shelby County Criminal Court of 

especially aggravated kidnapping and aggravated rape, Class A felonies, and received 

consecutive twenty-five-year sentences to be served at one hundred percent. On appeal, 

the Defendant contends that (1) the time delay between the commission of the offenses and 

the issuance of the indictment violated his right to due process; (2) his effective fifty-year 

sentence is excessive; and (3) the evidence is insufficient to support his convictions. Upon 

review, we affirm the judgments of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and JILL BARTEE AYERS, JJ., joined. 

Gerald S. Green (on appeal) and Joseph McClusky (at trial), Memphis, Tennessee, for the

appellant, Orlando Nichols. 

Jonathan Skrmetti, Attorney General and Reporter; Raymond J. Lapone, Assistant 

Attorney General; Steve Mulroy, District Attorney General; and Dru Carpenter and J.D. 

Hamblen, Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

FACTS

In October 2020, the Shelby County Grand Jury returned a two-count indictment, 

charging the Defendant with the especially aggravated kidnapping and the aggravated rape

of the victim in November 2005. The Defendant went to trial in May 2023. 

06/12/2024
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At trial, Brandon Martin testified that in November 2005, he was eighteen years old

and was in a romantic relationship with the victim. Mr. Martin and the victim were in high 

school and were living with the victim’s sister, A.B., in the Poplar Place apartment

complex.

1

 On the night of November 26, Mr. Martin and A.B. were at the apartment, but 

the victim was not home. At some point, the victim telephoned and “frantically” asked 

Mr. Martin and A.B. to put some money underneath the mat outside their apartment door. 

Mr. Martin told the victim that they did not have any cash, so the victim hung up. Mr. 

Martin later heard the victim’s car, which had a “distinct sound,” pull up outside. He went 

to the apartment door and looked outside. The victim was sitting in the car, and a man was 

getting out of the car. Mr. Martin did not remember if the man was getting out of the 

driver’s seat or the passenger’s seat. Mr. Martin made eye contact with the man, and the 

man “took off.” 

Mr. Martin testified that he and A.B. got the victim out of the car and called 911. 

Mr. Martin looked for the man before the police arrived but did not find him. On June 16, 

2009, the police showed Mr. Martin a six-photograph array. He selected two photographs

as the possible perpetrator but was unable to make a positive identification. Mr. Martin 

said the victim was “a different person” after November 26, 2005. 

On cross-examination, Mr. Martin testified that on the night of incident, the victim 

had “gone out to do some stuff.” Earlier that day, Mr. Martin and the victim may have 

been “bickering, arguing, but not true fighting.” After the victim’s telephone call for 

money, Mr. Martin and A.B. were concerned because the victim’s tone of voice and 

behavior were unusual. Mr. Martin acknowledged that when the victim’s car pulled up 

outside, the victim was naked in the car. The victim screamed and said something to Mr. 

Martin, but he did not remember what she said. Mr. Martin and the victim eventually 

married but divorced. 

The victim testified that in November 2005, she was a seventeen-year-old high 

school student and was living with Mr. Martin and her sister. On the night of November 

26, the victim “went and hung out with a friend.” When she returned to her apartment

complex, she pulled her Saturn sedan into a parking space, got out of the car, and heard 

someone running. A man hit her on the head and knocked her down. He told her to get up 

and get into the car. The man said he had a gun and threatened to shoot the victim. 

The victim testified that the man was African-American; about five feet, six inches 

tall; and weighed one hundred sixty pounds. He was wearing a white hoodie and white 

pants, and he kept his right hand in the pocket of his hoodie. The victim was “frazzled” 

 

1

In order to protect the victim’s identity, we will refer to her sister by her sister’s initials. 
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and thought he had a gun, so she did as she was told. The victim got into the driver’s side

and “scooted” over to the passenger’s side. The man sat in the driver’s seat, backed out of 

the parking space, and drove onto Kirby Parkway. He kept asking the victim for money, 

but she kept telling him that she did not have any money. The victim told the man that she 

had a bank debit card, so he drove her to an ATM at the Regions Bank on Poplar Avenue. 

The victim withdrew about $115 from her bank account. The man took the money, the 

victim’s debit card, and the receipt. 

The victim testified that the man drove back to her apartment complex but that he 

drove through her apartment complex to another apartment complex. He told her to get 

undressed and threatened to shoot her, so she took her off clothes. The man parked near 

some trees, crawled into the passenger’s seat, and put his penis into her vagina. The victim

said she did not know if he used a condom or if he ejaculated. He then made her “flip over” 

and “had sex with [her] that way.” Someone was walking a dog nearby, so the man got 

back into the driver’s seat and told the victim that she “needed to find him money.” The 

victim telephoned her sister and asked her sister to put money underneath the mat outside 

their apartment door. 

The victim testified that the man drove her back to her apartment and pulled into a 

parking space. Mr. Martin came outside and was “frantic” because he did not know what 

was happening. The man saw Mr. Martin and ran away. Mr. Martin got the victim out of 

the car and took her inside. 

The victim testified that she had a physical examination at the Rape Crisis Center

and that a nurse collected evidence for a sexual assault kit. The victim spoke with a male 

police investigator, and he asked if she had had consensual sex in the past seventy-two 

hours. The victim told him no. The investigator explained DNA evidence to the victim, 

so she told him that she had consensual sex with her friend, “Chad,” on November 25. The 

victim acknowledged that she initially lied to the investigator but said, “He made it -- made 

me feel like I was -- like, I had done something wrong. I mean, I was only seventeen. I 

didn’t even talk to my parents about having sex, so discussing anything with him was just 

-- it was extremely uncomfortable.” 

The victim testified that in June 2009, the Memphis Police Department (MPD)

showed her a six-photograph array. She selected two photographs as the possible 

perpetrator but was unable to make a positive identification. In 2020, Sergeant Joshua

Davis contacted her with additional information about her case and asked if she wanted to 

pursue her case. The victim told him yes. The State asked the victim how the assault had 

affected her, and she responded, “It’s affected my whole life. Like, every single day I have 

thought about this. Every time I get in my car. I’ve done years of therapy. I have cameras 
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all around my home. I literally think about this too much.” The victim said that she did 

not know the Defendant and that she did not have consensual sex with him. 

On cross-examination, the victim testified that the man kept his hand in the pocket 

of his hoodie when he was driving and that she never saw a gun. Defense counsel asked 

how he was able to get his pants down with one hand in his pocket, and the victim said he 

was wearing sweatpants that he could pull down. The victim acknowledged that when she 

telephoned her sister, she did not tell her sister what was happening. The victim also 

acknowledged that the police asked her after the incident if the man penetrated her and that 

she told the police, “‘I don’t think so. It didn’t feel like he did.’” The victim said she did 

not know what “penetrate” meant when she was seventeen years old. 

A.B. testified that she was two and one-half years older than the victim and that she 

lived with the victim and Mr. Martin in an apartment in November 2005. On the night of 

November 26, the victim was away from the apartment, and A.B. and Mr. Martin were at 

the apartment with some of A.B.’s friends. The victim telephoned A.B. and asked A.B. to 

put money underneath the mat outside the front door. The victim sounded “desperate,” but 

A.B. told the victim that she did not have any money. A.B. tried calling the victim back, 

but the victim would not answer her cellular telephone. 

A.B. testified that she was concerned about the victim and that she and Mr. Martin 

kept looking out the windows for the victim. The victim finally arrived home. When she 

came into the apartment, she said that “‘[h]e raped me’” and collapsed onto the floor. 

A.B. testified that after November 26, the victim’s behavior changed. The victim 

was anxious, stopped going out at night unless absolutely necessary, and was “constantly 

checking her security cameras” and “setting the alarm.” The victim never spent another 

night in the apartment and never got back into her car. On cross-examination, A.B. testified 

that she did not see what occurred outside the apartment. 

Sergeant Andra Dwayne Jones of the MPD testified that he was a uniform patrol 

officer in 2005, and that he responded to a criminal assault call on November 26. Sergeant 

Jones went to the victim’s apartment and took a report, but he could not remember anything 

about the case. Officer Charles Cathey of the MPD testified that the victim’s Saturn was 

towed to the MPD’s impound lot on Klinke Avenue and that he processed the vehicle for 

evidence. He identified a photograph that appeared to show a debit card on the driver’s 

floorboard. 

Mr. Paul Pritt, who was retired from the MPD, testified that he formerly worked as 

an investigator for the Sex Crimes Bureau and that he was the lead investigator for this 
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case. The day after the incident, the victim and Mr. Martin came to the MPD and gave 

statements. The victim told Mr. Pritt that the perpetrator had “backed the vehicle in” at the 

ATM so that the victim, who was sitting in the passenger’s seat, could use her debit card 

to obtain money. Mr. Pritt contacted Regions Bank, and the bank provided him with video 

of the ATM. The video confirmed the victim’s story. The Tennessee Bureau of 

Investigation (TBI) obtained semen from the victim’s sexual assault kit and uploaded the 

DNA profile into the CODIS database.2 However, no immediate match was found. 

Another officer processed the victim’s car for evidence, but the officer did not obtain 

fingerprints from the vehicle. The victim’s cellular telephone also was processed for 

fingerprints, but no fingerprints were obtained. Mr. Pritt said that he ended up putting the 

case “on a back burner” but that he knew “we would get a hit in CODIS eventually 

somewhere down the road.” 

On cross-examination, Mr. Pritt testified that the victim’s cellular telephone had 

been found outside a commercial building and was “tagged” as evidence. In 2005, the 

MPD did not have the technology to extract data from cellular telephones. 

Sally DiScenza testified as an expert in sexual assault examination. She was a 

sexual assault nurse at the Rape Crisis Center in November 2005, and she examined the 

victim at 3:30 a.m. on November 27. The alleged assault occurred about 10:40 p.m. on 

November 26, and Ms. DiScenza noted in her report that the victim’s demeanor was 

“controlled and cooperative.” The victim claimed that the perpetrator hit her on the head 

and “‘forced unprotected vaginal penetration.’” Ms. DiScenza examined the victim but 

did not see any injuries to the victim’s head or genital area. Ms. DiScenza collected 

evidence for a sexual assault kit. The victim reported having consensual sex within four 

days of the alleged assault. 

On cross-examination, Ms. DiScenza testified that “forced unprotected vaginal 

penetration” were her words, not necessarily the victim’s words, and that the victim never 

mentioned a gun. Ms. DiScenza prepared a vaginal slide and saw sperm on the slide. She 

acknowledged that she could not say the victim’s sexual encounter on the night of 

November 26 was forced or consensual based on the victim’s physical examination. 

In response to Ms. DiScenza’s testimony that the victim never mentioned a gun, the 

State recalled Mr. Pritt to the stand. He testified that he asked the victim if the perpetrator

was armed and that she answered, “‘He said he was, but I never saw a gun.’” Mr. Pritt also 

 

2 CODIS is the acronym for the TBI’s Combined DNA Index System. State v. Cannon, 254 S.W.3d 

287, 293 (Tenn. 2008). 
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asked the victim if the perpetrator threatened her, and she said he repeatedly threatened to 

shoot her. 

Sergeant Joshua Davis of the MPD testified that in 2020, he was assigned to the

DNA Unit. He reviewed the victim’s case and noticed that “the statute of limitations was 

coming up.” He also noticed that a “CODIS hit” for the DNA in the victim’s rape kit had 

identified the Defendant as the suspect in 2009. After the “hit,” a police officer had 

collected a “confirmation swab” from the Defendant. The MPD then closed the case but 

failed to submit the case to the district attorney’s office. 

Sergeant Davis testified that he reviewed the two photograph arrays that the MPD 

had shown to Mr. Martin and the victim in June 2009. The Defendant’s photograph was 

in both of the arrays, albeit in a different position, and Mr. Martin and the victim both had 

selected the Defendant’s photograph as one of two possible suspects. Sergeant Davis also 

reviewed a VHS tape that had been provided by Regions Bank. The video had been

recorded on a “multiplexer,” so Sergeant Davis could only review the video “frame by 

frame.” The video showed that at 10:43 p.m., the passenger’s side of the victim’s car, 

rather than the driver’s side, was at the ATM and that the victim appeared to reach out of 

the car to access the ATM. 

Sergeant Davis testified that given the amount of time that had passed since the 

alleged crimes, he met with the victim and asked if she wanted to move forward with the 

case. The victim immediately said yes. Although a confirmation swab had been collected 

from the Defendant in 2009, Sergeant Davis collected another confirmation swab from the 

Defendant on April 11, 2023. 

On cross-examination, Sergeant Davis acknowledged that he did not become 

involved in this case until almost fifteen years after the alleged offenses occurred. He also 

acknowledged that during that time, law enforcement had learned to obtain valuable 

evidence from cellular telephones. He said that he tried to find a video multiplexer so that 

he could view the videotape “correctly” but that he was unable to find one due to the 

outdated technology. Sergeant Davis tried to find the Defendant but was unable to do so. 

He later learned the Defendant had moved to Nashville. 

Lawrence James, a special agent forensic scientist for the TBI, testified as an expert 

in forensic biology and DNA analysis that he analyzed the evidence in the victim’s sexual 

assault kit in January 2006. Microscopic examination of the victim’s vaginal swabs 

showed the presence of sperm cells, and Special Agent James obtained a DNA profile from 

the cells. The DNA profile was a mixture of two contributors with one male being a major 

contributor and another individual being a minor contributor. Special Agent James 
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uploaded the DNA profile for the major contributor into CODIS. In 2009, the profile had

a “hit” matching the Defendant. After the “hit,” Special Agent James received a saliva 

sample from the Defendant and confirmed that the DNA from the victim’s vaginal swabs

matched the Defendant’s DNA. In 2023, Special Agent James received a second saliva 

sample from the Defendant and again confirmed that the DNA from the victim’s vaginal 

swabs matched the Defendant’s DNA. On cross-examination, Special Agent James 

testified that he was unable to identify the minor contributor to the DNA mixture but that 

the minor contributor could have been the victim. 

At the conclusion of Special Agent James’s testimony, the State rested its case. The 

Defendant did not present any proof, and the jury convicted him as charged in the 

indictment of especially aggravated kidnapping and aggravated rape, Class A felonies. See

Tenn. Code Ann. §§ 39-13-305(b)(1), -502(b). 

ANALYSIS

The Defendant raises three issues in his appellate brief: (1) that the time delay 

between the commission of the offenses and the filing of the indictment violated his right 

to due process; (2) that his effective sentence is excessive; and (3) that the evidence is 

insufficient to support his convictions. As noted by the State, though, the Defendant’s brief 

is grossly inadequate. His statement of the case provides as follows: “This case comes 

before this court as a direct appeal subsequent to the indictment, trial, conviction, 

sentencing, Motion for New Trial and the Order Denying the Motion for New Trial from 

the Criminal Court of Tennessee for the Thirtieth Judicial District at Memphis, Honorable

Lee V. Coffee presiding.” Moreover, as noted by the State, the facts section of Defendant’s

brief is a summary of the prosecutor’s opening statement to the jury and does not contain 

any citations to the record. In the argument section of his brief, Defendant’s issue on

preindictment delay relies on the four-prong test set out in Barker v. Wingo, 407 U.S. 514, 

530 (1972), which is used to analyze alleged speedy trial violations, not preindictment 

delay. Additionally, his issues on sentencing and sufficiency span a total of just more than 

two pages with virtually no argument. 

Tennessee Rule of Appellate Procedure 27(a) provides that a defendant’s brief shall 

contain, among other requirements, “[a] statement of the case, indicating briefly the nature 

of the case, the course of proceedings, and its disposition in the court below”; “[a] statement 

of facts, setting forth the facts relevant to the issues presented for review with appropriate 

references to the record”; and an argument setting forth “the contentions of the appellant 

with respect to the issues presented, and the reasons therefor, including the reasons why 

the contentions require appellate relief, with citations to the authorities and appropriate 

references to the record (which may be quoted verbatim) relied on[.]” Tenn. R. App. P. 
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27(a)(5), (6), (7)(A). Based on the Defendant’s deficient brief, the State urges us to 

conclude that his issues are waived, and we are tempted to do so. However, we are also 

mindful that the Defendant is serving a fifty-year sentence at one hundred percent for 

especially aggravated kidnapping and aggravated rape. Therefore, while we could treat his 

issues as waived due to his failure to comply with Tennessee Rule of Appellate Procedure 

(27)(a), we choose to address his issues briefly. See State v. Potts, No. M2020-01623-

CCA-R3-CD, 2022 WL 2348233, at *22 (Tenn. Crim. App. June 29, 2022) (“When issues 

are not properly raised and developed in briefs, when the briefs are wholly inadequate to 

present specific issues for review, we will not engage in an exhaustive review of the merits 

thereof.”), perm. app. denied, (Tenn. Dec. 14, 2022).

I. Preindictment Delay

First, the Defendant contends that the almost fifteen-year delay between the 

commission of the offenses and the filing of the indictment violated his right to due process. 

The State argues that the Defendant has waived plenary review of this issue and that he is 

not entitled to plain error relief. We agree with the State. 

Generally, the accused must prove the following prerequisites, also known as the 

Marion-Dykes test, to establish a due process violation stemming from a preindictment 

delay: (1) there was a delay; (2) the accused sustained actual prejudice as a direct and 

proximate result of the delay; and (3) the State caused the delay in order to gain a tactical 

advantage over the accused or to harass the accused. State v. Utley, 956 S.W.2d 489, 495 

(Tenn. 1997) (citing United States v. Marion, 404 U.S. 307, 324-25 (1971), and State v. 

Gray, 917 S.W.2d 668, 671 (Tenn. 1996)); see also State v. Carico, 968 S.W.2d 280, 284-

85 (Tenn. 1998). 

Ordinarily, we review a trial court’s ruling on a motion to dismiss the indictment 

for an abuse of discretion. State v. Harris, 33 S.W.3d 767, 769-70 (Tenn. 2000). However, 

Tennessee Rule of Criminal Procedure 12(b)(2) provides that defenses and objections 

based on “a defect in the institution of the prosecution” or “a defect in the indictment” must 

be raised before trial. Tenn. R. Crim. P. 12(b)(2)(A), (B). The federal counterpart to 

Tennessee Rule of Criminal Procedure 12(b)(2) lists “preindictment delay” as a defect in 

instituting the prosecution. Fed. R. Crim. P. 12(b)(3)(A)(ii). “Unless the court grants relief 

for good cause, a party waives any defense, objection, or request by failing to comply with

[Rule 12(b)(2)].” Tenn. R. Crim. P. 12(f). 

The Defendant acknowledges that he did not file a pretrial motion to dismiss the 

indictment but requests that we review the issue anyway. The Defendant’s failure to file a 
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pretrial motion alleging preindictment delay waives the issue.3 See State v. Lindsey, No. 

W2018-01987-CCA-R3-CD, 2020 WL 774047, at *6 (Tenn. Crim. App. Feb. 14, 2020); 

State v. Coleman, No. W2015-01925-CCA-R3-CD, 2016 WL 7687124, at *7 (Tenn. Crim. 

App. June 15, 2016). Therefore, we are limited to plain error review. 

We may consider an issue to be plain error when all five of the following factors are 

met:

(a) the record must clearly establish what occurred in the trial court; (b) a 

clear and unequivocal rule of law must have been breached; (c) a substantial 

right of the accused must have been adversely affected; (d) the accused did 

not waive the issue for tactical reasons; and (e) consideration of the error is 

“necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); 

see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for 

determining plain error). Furthermore, the “‘plain error’ must be of such a great magnitude 

that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (quoting 

United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)). 

We conclude that no clear and unequivocal rule of law was breached in this case. 

Although the proof at trial established that there was an almost fifteen-year delay between 

the commission of the offenses and the filing of the indictment, the reason for the delay 

was oversight by the MPD in failing to submit the case to the prosecutor in 2009, when the 

DNA in the victim’s sexual assault kit was found to match the Defendant’s DNA. The 

State did not cause the delay in order to gain a tactical advantage over the Defendant or to 

harass him. Moreover, the Defendant has not shown that his defense was prejudiced by 

the delay. He does not allege that witnesses were unavailable or that evidence was lost. 

He does claim that he was prejudiced by the delay because he “suffered a long pretrial 

incarceration,” but the record reflects that he was not in custody when the indictment was 

returned in October 2020. Therefore, the Defendant cannot establish a due process 

violation under the Marion-Dykes test, and he is not entitled to plain error relief. 

 

3 We note that the Defendant also did not raise this issue in his motion for new trial. However, he 

was not required to do so because the remedy for a defective indictment is dismissal of the indictment rather

than a new trial. See Tenn. R. App. P. 3(e). 
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II. Sentencing

Next, the Defendant claims that his effective fifty-year sentence is excessive 

because the trial court should have sentenced him based on his criminal history at the time 

of the offenses, not his criminal history at the time of the sentencing hearing. He also 

suggests that the trial court improperly imposed consecutive sentencing. The State argues 

that the trial court properly sentenced the Defendant. We agree with the State. 

No witnesses testified at sentencing. The State introduced into evidence certified 

judgments of Defendant’s 2009 conviction for three counts of aggravated assault and one 

count of misdemeanor theft and certified judgments of adjudication in California juvenile 

court for aggravated burglary, aggravated robbery, and a rape that the Defendant 

committed when he was twelve years old. The State also introduced into evidence the 

Defendant’s presentence report, which showed that he had numerous misdemeanor 

convictions including eight convictions of driving on a suspended, canceled, or revoked 

license. His Strong-R assessment classified his risk to reoffend as low. 

The trial court found that the thirty-five-year-old Defendant was a Range I, standard 

offender and applied four enhancement factors to his convictions, including that he had a 

previous history of criminal convictions or behavior in addition to those necessary to 

establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1). The trial court gave

the enhancement factors great weight and found that no mitigating factors were applicable. 

The trial court sentenced the Defendant to twenty-five years, the maximum punishment in 

the range, for each conviction. See Tenn. Code Ann. § 40-35-112(a)(1). The trial court 

also ordered that Defendant serve the sentences consecutively for a total effective sentence 

of fifty years to be served at one hundred percent. See Tenn. Code Ann. § 40-35-

501(i)(2)(C), (F). 

This court reviews the length, range, and manner of service of the sentence imposed 

by the trial court under an abuse of discretion standard with a presumption of 

reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Pollard, 432 

S.W.3d 851, 860 (Tenn. 2013) (applying the Bise standard to consecutive sentencing 

determinations). The trial court is granted broad discretion to impose a sentence anywhere 

within the applicable range, and the sentencing decision of the trial court will be upheld 

“so long as it is within the appropriate range and the record demonstrates that the sentence 

is otherwise in compliance with the purposes and principles listed by statute.” Bise, 380 

S.W.3d at 709-10. 

In determining a defendant’s sentence, the trial court is to consider the following 

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the 
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presentence report; (3) the principles of sentencing and arguments as to sentencing 

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) 

evidence and information offered by the parties on the mitigating and enhancement factors; 

(6) any statistical information provided by the Administrative Office of the Courts as to 

sentencing practices for similar offenses in Tennessee; (7) any statement by the defendant 

on his own behalf about sentencing; and (8) the result of the validated risk and needs 

assessment conducted by the department and contained in the presentence report. See

Tenn. Code Ann. § 40-35-210(b); see also Bise, 380 S.W.3d at 697-98. 

Sentences involving confinement should be based on the following considerations:

(A) Confinement is necessary to protect society by restraining a 

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of 

the offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or 

recently been applied unsuccessfully to the defendant[.] 

Id. at § 40-35-103(1). In addition, “[t]he sentence imposed should be no greater than that 

deserved for the offense committed” and “should be the least severe measure necessary to 

achieve the purposes for which the sentence is imposed[.]” Id. at § 40-35-103(2), (4). A 

trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal standard, 

or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the 

party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citation omitted).

The defendant bears the burden of proving that the sentence is improper. Tenn. Code Ann. 

§ 40-35-101, Sentencing Comm’n Cmts. 

The Defendant contends, without any authority, that the trial court should have 

sentenced him based on his criminal history at the time of the offenses for which he was 

convicted. However, this court has previously held that trial courts “can consider criminal 

convictions or any other criminal behavior which occurred prior to the sentencing hearing 

as being ‘a previous history of criminal convictions or criminal behavior’ under Tenn. Code 

Ann. § 40-35-114(1), regardless of whether the convictions or behavior occurred before or 

after the criminal conduct under consideration.” State v. Jordan, 116 S.W.3d 8, 24 (Tenn. 

Crim. App. 2003) (quoting State v. Waters, No. 01-C–01-9106-CR-00158, 1992 WL

28457, at *3 (Tenn. Crim. App. Feb. 20, 1992)). Therefore, we find no merit to this claim.
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Regarding consecutive sentencing, a trial court may order that multiple sentences

run consecutively if it finds by a preponderance of evidence that any one of the seven 

factors listed in Tennessee Code Annotated section 40-35-115(b) applies, including the two 

factors that the trial court applied in this case: the Defendant is an offender whose record 

of criminal activity is extensive, and 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 was high. See Tenn. Code Ann. § 40-35-115(b)(2), (4). 

Regarding the first factor, the trial court found that the Defendant began committing crimes 

when he was twelve years old and that he has been committing crimes throughout his adult

life. Regarding the second factor, that the Defendant is a dangerous offender, the trial court 

specifically addressed the required “Wilkerson factors” and found that an extended 

sentence was necessary to protect the public against further criminal conduct by the 

Defendant and that the consecutive sentences reasonably related to the severity of the 

offense committed. See State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. 

Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995). The Defendant does not contest the trial 

court’s finding that his criminal history was extensive or that he was a dangerous offender, 

either of which justifies consecutive sentencing. See State v. Farley, No. M2003-02826-

CCA-R3-CD, 2005 WL 366890, at *11 (Tenn. Crim. App. Feb. 16, 2005) (noting that the 

factors in Tennessee Code Annotated section 40-35-115(b) are listed in the disjunctive 

“or”; therefore, the trial court need find only one factor to impose consecutive sentencing). 

Accordingly, we conclude that his effective fifty-year sentence is not excessive. 

III. Sufficiency of the Evidence

Finally, the Defendant claims that the evidence is insufficient to support his

convictions because the jury could have found that the acts were consensual. The State 

argues that the evidence is sufficient. We agree with the State. 

When the sufficiency of the evidence is challenged on appeal, the relevant question 

of the reviewing court is “whether, after viewing 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, 319 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or 

jury shall be set aside if the evidence is insufficient to support the findings by the trier of 

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). 

Therefore, on appeal, the State is entitled to the strongest legitimate view of the 

evidence and all reasonable inferences that may be drawn from it. State v. Williams, 657 

S.W.2d 405, 410 (Tenn. 1983). All questions involving the credibility of witnesses, the 
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weight and value to be given the evidence, and all factual issues are resolved by the trier 

of fact. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “A jury conviction removes 

the presumption of innocence with which a defendant is initially cloaked and replaces it 

with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating 

that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). 

The guilt of a defendant, including any fact required to be proven, may be predicated 

upon direct evidence, circumstantial evidence, or a combination of both direct and 

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 

1999). The standard of review for the sufficiency of the evidence is the same whether the 

conviction is based on direct or circumstantial evidence or a combination of the two. State 

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). 

As charged in this case, especially aggravated kidnapping is false imprisonment 

“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to 

lead the victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-

305(a)(1). “A person commits the offense of false imprisonment who knowingly removes 

or confines another unlawfully so as to interfere substantially with the other’s liberty.” Id. 

at § 39-13-302(a). Aggravated rape is “unlawful sexual penetration of a victim by the 

defendant” where “[f]orce or coercion is used to accomplish the act and the defendant is 

armed with a weapon or any article used or fashioned in a manner to lead the victim 

reasonably to believe it to be a weapon.” Tenn. Code Ann. § 39-13-502(a)(1). 

Taken in the light most favorable to the State, the evidence shows that the Defendant 

ran up to the victim after she got out of her car and that he hit her on the head, knocking 

her down. He told her that he had a gun, threatened to shoot her, and ordered her to get 

back into her car. The Defendant kept his right hand in the pocket of his hoodie so that the 

victim thought he had a firearm, and she did as she was told. The Defendant demanded 

money from the victim. She told him that she did not have any money but that she had a 

debit card, so he drove her to an ATM and backed up her car to the ATM so that she could 

withdraw money from the passenger’s side. The Defendant then drove her to a secluded 

area in an apartment complex next to her own apartment complex and penetrated her vagina 

with his penis. The Defendant drove the naked victim back to her apartment and fled the 

scene. During the victim’s physical examination, sperm were found on her vaginal swabs,

and the DNA profile for the perpetrator was uploaded into CODIS. Four years later, a “hit” 

on the profile matched the Defendant. That match was confirmed with saliva samples 

collected from the Defendant in 2009 and 2023. The victim testified that she did not have 

consensual sex with the Defendant, and it was the jury’s prerogative as the trier of fact to 

evaluate the credibility of the witnesses. Thus, the evidence is sufficient to support the

convictions. 
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CONCLUSION

Based upon our review, we affirm the judgments of the trial court. 

_________________________________ 

JOHN W. CAMPBELL, SR., JUDGE