# FILED

August 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1999

STATE OF TENN ESSEE, ) ) No. 01C01-9802-CC-00075 Appellee ) ) HICKMAN COUNTY vs. ) ) Hon. Cornelia A. Clark, Judge GARY EUGENE

ALDRIDGE, )

) (Aggravated Kidnapping; Appellant ) Aggravat ed Rape, 2 cts; ) Rape; Simple Assau lt, 2 cts)
For the Appellant : For the Appellee : John P. Cauley Paul G. Summers Asst. Public Defender Attorney General and Repor ter 407-C Main Street P. O. Box 68 Daryl J. Brand Franklin, TN 37065-0068 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North John H. Henderson 2d Floor, Cordell Hul l Building District Public Defender Nashville, TN 37243-0493
Joseph D. Baugh District Attorney General Ronald Davis Asst. District Attor

ney General P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 The a ppellant w as cha rged an d convic ted of ag gravate d rape p ursuan t to an exc eption to the limited spous al exclus ion. See Tenn. Code Ann. §§ 39-13-502(a)(2) ( 1996 Supp.); 39- 13- 507(b)(1)( C) (1990). Li kewise, he was convi cted of rape pur suant to an except ion to t he limited spous al exclus ion. See Tenn . Code A nn. §§ 39 -13-503 (a)(1)(19 96 Sup p.); 39-13 -507(b) (1)(C). We note that Tenn. Code Ann. § 39-13-507(b) and (c) do not defi ne new and separate of fenses apart from the sexual offenses by a n on-spouse contai ned in Tenn. Code Ann. § 39-13-501 et seq. (1990). Rat her, the pur pose of these subpar ts is to eliminate the marital exemption for sexua l offense s unde r certain circ ums tances

. But cf. State v. Terry All en Dominy , No. 01C01- 9512-C C-004 04 (Te nn. Crim . App. at N ashville, Ma y 30, 1997 ), perm. to appeal gr anted , (Tenn. Mar. 2, 1998) (finding spousal rape a lesser grade offense of aggravated rape).

2 The appellant

was charged in a t

en count indi ctment with t hree alter native count

s of aggravat

ed kidnapp ing, f

our count

s of aggra

vated r ape, one co unt of ag gravated assaul t, and two counts of si mple assault. The State nolled Coun t 2 of the indic tmen t (aggrav ated kid napping to facili tate a fel ony) pri or to it s submission to t he jury.The jury r eturned a gui lty

verdict as to Count 1, aggravated kidnapping causi ng bodily injury , and not gui lty as to Count 3, aggravated kidnapping i n order to t erroriz e the victim. The appell ant was also f ound guilt

y as to Counts 4 & 5, aggravated rap e (vaginal and anal). The jury fou nd the appell ant not gui lty of Count 6, aggr

avated rape (oralpenetrati on), and gui lty of the l esser offense of r ape in Count 7, aggravated r ape (vaginal pe netration). T he trial cour t granted the appe llant’s mo tion for judg men t of acqu ittal as to Count 8, aggravat

ed assault committed i n violation of an ord er of prote ction. The appellant was also fou nd guilty of the m isdem eanor a ssaults c harged in counts 9 and 10

.

3 Specifical ly, the tri al court i mposed the followi ng sentences: Count 1: Aggravated Ki dnapping Class B 12 years Coun t 4: Aggravated Rape Class A 24 years Count 5: Aggravated Rape Class A 25 years Count 7: Rape Class B 11 years Count 9: Misd em ean or As sau lt Class A 11 m onth s 29 d ays Count 10: Misd em ean or As sau lt Class A 6 months
The court ordered that Counts 4, 5,7, 9, and 10 be served consecutively t o each other and concurrently wit h Count 1, for the resul ting eff

ective sent

ence of sixt

y years,seventeen months, and twenty

-nine day

s. 2

OPINION

The appellant, Gary Eugene Al dridge, was convi cted by a Hickman County jury of one count of aggrav ated kidnapping, two count s of aggravated rape, 1 one count of rape, and two counts of si mple assault. 2 For these offenses, the trial court imposed an effective sentence of six ty years to be serv

ed in the Tennessee Departm ent of Cor

rectio n to be fol lowed b y an effec

tive c onsecut ive sentence of seventeen months and twenty -nine in the local wor

khouse. 3 In this appeal as of right, the appellant challenges the sufficiency of evidence necessa ry to sustain his convictions for aggr

avated rape and rape. He al so disputes the propriety of the trial court’s imposition of consecutive sentences.

After a review of the rec ord, we find the appellant’s issues without merit.The judgments of conviction and s entences entered by the tri al court are affirmed.3 Background

In May of 1996, Etta Mae Aldr idge traveled from Monter rey, California to the appellant’s residence in Hickman County to visit and, apparently, to discuss their prospects for marriage. The appellant and Etta Mae had know n each other for approximately two years and had engaged in a long-distance relati onship via the telephone. On June 23, 1996, the appel lant and Etta Mae Aldridge were married. Two weeks

later, Etta’s childr

en joined her

in Tennessee.By August that same year, the couple began ex periencing marital problems. The couple separated and Etta went to Arkansas to l ive with relati ves. On October 20, 1996, E tta returned to Tennessee to reconcile with the appellant.

On Novemb er 1, 1996 , the app ellant an d Etta tra veled to th eir respe ctive places of employment together, they shared lunch, and retur ned home together that evening. The appellant w as in a good mood and every thing seemed “fine” at dinner. During their meal, the appellant asked Etta if she had an affair while she was li ving in Arkansas. Etta denied any extramarital liais

on. Her denial infuriated the appellant who overturned the dinner table and backhanded Etta across the face. He called her a

“bitch” an d a “liar.”

The appellant

forced Etta i nto the coupl e’s bedroom, where he disrobed. He then “doubled” his leather bel t and began beating Etta upon her legs. While being beaten, he info rmed her that “he was gonna teach [her] to lie and to cheat.” When the appellant finally ceas ed his beating, he observ ed the bruises he had inflicted on his wife. He apologiz

ed to her, told her he lov ed her, and informed her that he would never hurt her again. The couple later engaged in sexual intercourse.

On November 15, 1996, Etta picked up her final paycheck from her former employer and completed some errands. She then picked up the appellant from his place of employment later that after noon. On the drive home, the appel lant started4

yelling at Etta about spending her paycheck. The t opic then changed from money to “the guys from Arkansas that [Etta] supposedly had an affair with.” Although sh e, again, denied the allegati on, the appellant “backhanded” her in the face. He then instructed her to drive onto a dirt road. Etta pleaded with the appellant not to hurt her. He responded that “[they ] were going to set

tle it once and for all.” Et ta stopped the vehicle and obeyed the appellant’s command to “get out ” of the car. The appellant then “started hitti ng [her] with his fis t double handed.” The hitting w as followed with a beating with his belt. He threatened that “he felt like just killing [her] and throwing [her] i nto the river.” Etta begged him to stop for the sake of the children. The appellant then in structed Etta to get in the passenger side of the car. Still enraged, he then drove to another location. He stopped the car and again ordered her out of the car. “[ H]e beat [her] some more,” thr ew her on the hood of the car, and began to choke her. He exclaimed that “he w anted the truth and if [she] wasn’t going to tel l the truth, he was goi ng to beat it out of [her].” The appellant wrapped his belt around her neck and started choking her. W hen he released his hold, Etta fell to the ground. He then placed his hand in his pocket and told Etta that “he felt like putting a bul let in [her] head.” The appell ant’s anger subsided and he told Etta to get back in the car. On the way home, how ever, he again backhanded her, giving her a “bloody nose.” The vi ctim suffered two black ey es, a bloody nose, and a swollen lip from thi s incident.

On Thanksgiving Day, Etta decided to leave the appellant. That evening, she left their home and, accompanied by her children, went to a motel. The following day, she went to a w

omen’s shelter. The Hickman C ounty Sheriff’s Department w as informed of the November 1 and Nov ember 15 assaults and charges were filed against the appellant. Someti me during the month of December, Etta contacted an attorney to initiate di

vorce proceedings against the appellant. On December 9, 1996, an order of protection iss ued from the Hickman County Gener al Sessions Court enjoining the appell ant from abusing, threatening to abuse, or committing any4 The victi m’s daughter, Dawn, was subpoenaed for trial. The subpoena was never served as she could not be located. In her absence, the proof dev eloped at t rial i ndicated t hat Dawn had been invol ved in a sexual relati onship wit h the appell ant. In deed, the vi ctim testified that the appellant

had told her

that she was bet

ter in be d than her daught er. Testi mony also reveal ed that the appell ant was engaged inpromoting Dawn and another female for purposes of prostitution at a local t ruck stop.

5 "Cindy” is the appel lant’ s daughter fr om his first

marriage. His first wife is d eceased and his daughter was in the custody of her stepfather and h is present wife. Custody hearings were proceeding due to allegations that Cindy’s stepfather abused her. 5 acts of violence upon Etta. Despite this order of protecti on, Etta encountered the appellant at the home of a mutual friend, Peggy Mitchell, dur ing the early part of January. The appellant told E tta that “he started wanti ng to be with [her] again” and that he was “sorry

and that [they] could w ork things out.” Cons

equently, Etta “we nt with him to his home w here [they ] made love that night.”

On January 14, 1997, Etta Mae Aldridge filed a complaint of divorce in the Hickman County Chancery Court alleging i rreconcilable differences and inappropriate marital conduct. The complaint alleged tha t the couple last resided in the same household on November 28, 1996.

Between 11:00 and 12:00 p.m. on January 18, the ap pellant arrived at Etta’s apartment wanting to talk with her. The appellant at tempted to persuade Etta to leave the apartment with him so they could talk i n private. Etta resis ted. The appellant then quietly warned her that if she did not accompany him, “he would shoot [her] and then [her] kids .” Etta retrieved her coat and told her twenty -one year old daughter Dawn to di al “911.” It was lat er revealed that Daw

n did not place the telephone ca ll until the foll owing morning. 4

On the way to the appellant’s house, he reminded Etta that he ha d previously warned her, “if he didn’t get to take Cindy home w ith him on Wednesday,” 5 “[Etta’s] life wouldn’t be worth two cents.” Etta pleaded for him not to harm her. He responded, “Oh, I’m not going to hurt you, I’m going

to kill you.” He added that “he would give [her] two choices, either a . 357 or a .44.” Shortly thereafter, they arriv ed6 Testimony at t rial i ndicated t hat Peggy Mit chell and the appellant enjoyed an i ntermitten t sexual rel ationshi p throughout most of their adult l ives. 6 at the appellant’s house and w ent inside. The appellant then adv ised Etta that “[they] could do it [her

] way or his w

ay” and he began questi oning her about her affairs in Arkansas. When she denied having an affair, he hit her in the face. And then he grabbed [her] . . . by the arm, then we w ent into the bedroom and he shut the door, and I tried to grab a statue a nd it fell out of my hand, and then he grabbed me by this arm and he picked me up and he shoved me against the wall. Then he took his hand and he choked me and I started fightin g him back, I started ki cking and fighting hi m back, and th en I fell to th e floor and he s tarted choki ng me some more and I started kicki ng him trying to get him off of me. And then he picked me up and he threw me across the bed and I hit a night stand and I cut my ear, and I knocked over the ni ght stand and a lamp and broke it and he told me to s it it back up, so I did. A nd then he - - - grabbed me agai n and he told me to take off my clothes,so I took them off and we went into the bathroom and the water pipes ha d broken, so he raised the back of the toilet and he dipped a towel and he washed my face . . . and I thought maybe he wasn’t going to hurt me anymore. . . .And then w

e went back

into the bedr

oom and he star

ted hitting

me again and he threw me on the bed and he started choking me, s o I scratched him and he let go, and then he kept holding me dow n and I twisted his penis and he ripped my underwear at the same time.

. . . He forcib ly had [vagin al] sex with me. I told him no, b ut he did anyway.

. . . He made me roll over and he put some liquid, it smelled like cherries, on me and he [put it] . . . on my anal area.

. . . And then he had forced sex wi th me there.

. . . I asked him to quit and he w ouldn’t. I kept trying

to get away, but I couldn’t.

. . . It hurt. I can’t descri be how bad it hurt.

. . . He told me that all whit e trash, white whor

es liked it.

. . . I got dressed, he said he wanted to go to a friend’s h ouse . . . to Peggy Mitchell’s house[ 6 ] . . . . We went there because Gary said he wanted to have a threesome and that she liked women. So when we got there Gary sat in the recli ner. . . . So Gary pulled me down i n his lap and he raised my denim skirt. . . I had on high knee boots . . .and he didn’t let me put my underw ear back on.

. . . And he pulled my skirt up and he showed Peggy - - and he asked her how would she like to get a hold of that.7 Although t his fin al act of sexual int ercourse was not char ged as a rape, Et

ta testi fied at trial that she di d not consent t o this act . Rather, she explaine d that “I just wanted the whole t hing to be over with. I k new that h e wa sn’t g oing t o kill m e the n, bu t I didn ’t wan t to be beat en ag ain either.”

8 The two incide nts forming th e bases of the appel lant’ s convicti ons for aggravat ed rape are the fi rst act of

vaginalpenetrati on foll owing the vi ctim’s ini tialbeating ( count 4) and t he ensuing act of

anal penetr

ation (coun t 5). The second episode of vaginal intercour

se, which occ urre d upo n the appe llant a nd E tta’s re turn f rom the re side nce of Pe ggy M itche ll, is the basis for the rap e in count 7. 7 . . . [Peggy responded] ‘It looks real good, Gary, but I don’t think so tonight. I don’t feel wel l.’ So Gary put my s kirt back down. . . . we left.

. . . [When we got back to his house] [w]e had sex again. . . . . . .[H]e wa nted to h ave oral se x.

. . . I didn’t want to do anything with him. I jus t wanted to go home.

. . . We had vaginal sex and then we w ent to sleep.

The next morning, the appellant told Etta he loved her and that he was sorry. The couple then “just made love again.” 7 He asked her if she wanted to stay at the house with him. She decli ned his offer. Later, the appellant w arned Etta that if she told anyone about what happened he would beat her and then ki ll her. Early the next afternoon, before returning her home, the appellant told Etta that he was “proud of her because she had put up a good fig ht.”

I. Sufficiency of the Evidence

In his first issue, the appel lant contends that the evidenc e is not sufficient to sustain his convictions for aggravated rape (counts 4 and 5) and rape (count 7). 8 Specifically, he argues: (1) the testimony of Etta Ald ridge was not credi ble because she consistently sought r

eunion with the appellant after episodes of physical abuse; (2) the evidence presented shows that, based on the nature of his marital relationship w

ith the victim, the incidents of sexual penetration were consensual; and8 (3) the second act of vaginal penetration forming the basis of h is conviction for rape was “ completely unaccompanied by threat of force or coercion and should not be considered an act of rape .” Finding them to be witho ut merit, we reject the appellant’s contentions.

When reviewing a trial cour t's judgment, the appellate c ourt will not distur

b a verdict of guilt unle ss the fa cts of th e record a nd infer ences whic h may be dr awn from it are insufficient as a matter of law for a rational tri er of fact to find the defendant guilty beyond a r easonable doubt. Tenn. R. App. P. 13( e); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn.1982). In other words , this court will not reevaluate or reweigh the evidence bro ught out at trial. It is presumed th at the judge or jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in fav or of the State. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn.1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978); State v. Grace , 493 S.W.2d 474, 476 (Tenn.1973). Since a verdi ct of guilt removes the pres umption of a defendant's innocence and replac es it with a presumption of guilt, the defendant has the burden of proof on the sufficiency of the evidence at the appellate le vel. Grace , 493 S.W.2d at 476.

We in turn review the appellant’s first contention challengi ng the credibility of Etta Aldridge. Specifically, the appellant argues that her testimony is not believable because, even after his initial assaults against her in November 1996, “Etta continued to seek reunion w ith Gary. Such behavi or does nothing to streng then the portrayal of those assaults offered by Etta at trial.” In essence, the appellant requests that this court trespass upon the jury’s responsibility to evaluate the credibility of the w

itnesses and reweigh the evidence introduced at the trial by reassessing the credibility of the victim, Etta Aldridge. It is not the duty of this court to revisit questi ons of witness credibil ity on appeal, that function bei ng within the province of the trier of fact. See generally State v. Adkins , 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993);9 The term “bodily injury ” inclu des “a cut, ab rasion, bruise, burn or disfi gurement; physi cal pain or temporary il lness or i mpairment of the funct ion of a bodi ly member, organ, o r mental faculty.” See Tenn. Code A nn. § 39-11-106(a)(2) (1996 Su pp.). 9 State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.1990). We decline the appellant’s invitation

to overturn his conv

ictions by making a c

hoice different from that of the jury.

Next, the appellant contends that “Etta’s testimony depict[ing] an incredible pattern [of] immediate forgivenes s of acts of violence follow ed [by] voluntary sexual relations” precluded the jury from concluding that acts of sexual penetration were non-consensual. Additionall y, the appellant specifical ly challenges his conviction for the spousal sex offense of rape, arguing that, unlike the acts supporting his convictions for aggravated rape, this act of intercourse was “ completely unaccompanied by threat of force or coercion and should not be considered an act of rape.” (emp hasis in original). He adds that, “[i]f it were rape then Ga ry Aldridge could be prosecuted for every occasion upon which he and Etta ‘made love.’” (emphasis in original).

Rape, as charged herein, i s “the unlawful sexual penetration [by force or coercion] of one spouse by the other where . . .[t]he spous es are living apar

t and one (1) of them has filed for separate ma intenance or divorce.” See Tenn. Code Ann. §§ 39-13-503(a)(1); - 507(b)(1)(C). As c

harged in counts 4 and 5, ag gravated rape requi res the additional eleme nt of causing bodily in jury to th e victim. 9 See Tenn. Code Ann. §§ 39-13-502(a)(2) ; -503(a)(1); -507(b) (1)(C).

The undisputed proof shows that the victim and the appellant had been living apart since November 28, 1996, and that the victim had filed f or divorce on January 14, 1997. See Tenn. Code Ann. § 39-13-507(b)( 1)(C). Additionally, the appellant does not deny the three acts of s exual penetration, both v aginally and anally

. See Tenn. Code Ann. §§ 39-13-502(a); - 503(a); 507(b)(1). Fi nally, he concedes that10 The te rm “u nlawful” m ay genera lly refer to non-c onsen sual acts

. See gene rally State v. Jones , 889 S.W .2d 225, 2 27 (Te nn. Crim . App. 199 4); cf

. State v. Barney , No. 01C01- 9509- CR00317 (Tenn . Crim. A pp. at Na shville, Jul. 23, 1 997) (P eay, J., disse nting), judgment aff ’d on ot her grounds by, 986 S.W .2d 545 ( Tenn . 1999) (te rm “u nlawful se xual pen etration” is s ufficient on ly to allege a non-consensua l intrusion by the defendant”). 10 infliction of bodily injury to the victim accompanied the acts of sexual penetrat ion in counts 4 and 5. See Tenn. Code Ann. § 39-13-502(a)( 2); see also State v. Locke , 771 S.W.2d 132, 13 6 (Tenn. Crim. App. 1988) (phrase “accompanied by bodily injury” intended to enco mpass acts committed in associ ation with the unlawful sexual penetration, w

hether the acts occur before, dur ing or after the actual sex ual penetration).

Thus, the only disputed fact is the “unlawful” nature of the three incidents of sexual penetration. 10 Although the appellant’s pr esentation of the issues is cl ouded by his waffling arg ument, in essence, the appellant c ontends that, notwithstandi ng the filing of divorce, Ett a’s consent to sexual r

elations with the appell ant continued due to the established pattern of cons ensual sex following

episodes of physical abuse. Moreover, as additional fodder to his challenge to his rape conviction in count 7, he argues that the Stat e failed to show that he perpetr ated the vaginal penetration with force or coercion.

The spousal exclusion set for th in Tenn. Code Ann. § 39-13-507(a) , excludes a person from culpability in committing a sexual offense contained in Tenn. Code Ann. § 39-13-501 et seq., if the victim is his or her legal spouse. In those jurisdictions which have retained the common law tenet of spousal immunity, it is said that “the marriage c onstitutes a blanket consent to sexual intimacy w hich the woman may revoke only by dissolving the marital relationship.” Comments, M ODEL P ENAL C ODE § 213.1(8)(c) (1980). Al though Tennessee has codified the common law defense of spousal exclusion, exceptions have been carved out of this per se consent to the sexual misco nduct of one’s spouse. See generally Tenn. Code Ann. § 39-13-507(a)-(c). For example, as in the present case, where the parties are11 A person, leg ally married to t he victi m and not “living separate,” may commit rape upon his legal spouse if “the defendant i s armed with a weapon . . .” or “the defendant

causes serious bodily injury

to the victim.” See Tenn. Code A nn. § 39-13-507(b)(1)(A) & (B). 11 “living apart” and one of them has “filed for separate mainte nance or divorce,” a person is liable for all of the rape and sex offenses to the same ex tent as if the victim were not hi s/her spouse. 11 See Tenn. Code Ann. § 39-13-507(b)( 1)(C). Indeed, it is important to dr aw a line somewhere w hen extending the presumptio n of marital consent. Obvious ly, the filing of div orce signals the end of consens ual sexual relations w

ithin the marital relati onship so as to exclude it from the reasoning behind the spousal exclusi on. See generallyComments, M ODEL P ENAL C ODE §§ 213.1(8)( C ); 213.6(3).

The appellant asserts that his and Etta’s marital relati onship included incidents of physical abus e immediately followed by forgiveness and sexual intercourse. The appellant’s supposition that the na ture of their marital relationship imputes the victim’s con sent upon his acts of forced sexu al penetration is devoid of reason, an insult to the institution of marriage, and generally, an indignity to all women. We find the same to be true of his assertion that, because his wife did not physically resi st and acquiesced in his endeavor, the second act of v aginal penetration, the basis for count 7 , cannot constitute a rape becaus e it was unaccompanied by force.

Rape is a truly v

iolent and reprehensible cr ime. Even when accompli shed behind the veil of a marriage license, it is a cri me of violence not only damag ing to the body, but scarring

upon the mind. DeStefano , 467 N.Y.S.2d at 512. Eve n though the appellant and Etta w ere still legally

married, the appellant cannot hi de behind the antiquated assumption of i mplied consent by a spouse. The couple had been living separate since November 28, 1996, and Etta filed fo r divorce on January 14, 1997. Our legislatur e has determined that, at this poi nt, the wife’s implied consent is dissolved. The nature of their marital relationship prior to the cou ple’s12 W e ack now ledge that th e app ellant capt ions this is sue as “T he ap pellan t’s se nten ce is grossly disproport ionate t o his cri mes.” However, in support of t his all egation, he reli es on law applicabl e to the consecut ive sentences imposed, rather than asserti ng princi ples of l aw relevant to an Eight h Amendment challenge. Accordi ngly, we proceed to rev iew thi s finalissue under 12 separation is irrelev

ant in establishing the non- consensual nature of the incidents presently

before this c

ourt. More

over, the appellant’s

physical abuse of the v

ictim, both during their marital relationship and accompanyi ng the acts of forced sexual penetration in counts 4 and 5, i ndicates that Etta had a reason to fear the appellant and that her acquiescence w as out of fear of further beatings. Dur ing their brief marriage, Etta endured the pos ition of one who was contr olled, terrorized, an d intimida ted by a com binatio n of the appellan t’s abusi ve tactics and threa ts. Clearl y, a reasonable juror could c onclude that the sexual inte rcourse in question w as accompl ished by co nduct th at was tant amount to force or coercio n. Accord ingly, we conclude that the evidence at trial is more than sufficient t o establish the elements of both rape committed as an excepti on to the spousal exclusi on and aggravated rape committed as an exception to the spousal exclusion. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); Ten n. R. App. P. 13(e). This issue is without merit.

II. Consecutive Sen tences

The trial court imposed an effectiv e penitentiary sentence of si xty years. Pursuant to the provisi ons of Tenn. Code Ann. §§ 39-13-523 (1996 Su pp.) and 40- 35-501(i)(2) (1996 Supp.), the appellant will be required to serve the entire sentence imposed without any reductions or c redits. Accordin gly, he contends th at, although the crimes for which he w as convicted are unques tionably serious, “th[e]se crimes do not justify a de facto sentence of life without the possibility of parole.” Specifi cally, the appellan t challen ges the tri al court’ s imposit ion of co nsecutive
sentenc es as bein g premise d, not up on recogn ized princ iples of consecut ive sentencing, but upon the “tr ial court’s disdain for M r. Aldridge as a human being .” 12Wilkerson . Non ethe less , we c onc lude t hat a n eff ective sixty ye ar se nten ce is n ot gro ssly disproport ionate t

o the crimes for which he has been convict ed so as to consti

tute cruel

and unusu al punish men t under the Eighth Am endm ent of the U nited State s Con stitution or Ar ticle I, Section 16 of the T ennes see C onstitution. See State v. Ha rris , 844 S.W.2d 601, 603 (Tenn. 1992).

13 The trialcourt stat ed: “His behav ior in dicates l ittl e or no regard f or human life, no hesitat ion about committi ng a crime in whi ch the risk t o human life i s high, Aggr avated kidn app ing, a ny for m o f spo usa l rape , are a ll crim es in w hich risk to hum an life is high , in wh ich in this case bodi ly i njury was actually infli cted. And I think the y all indicat e a lack of any

respect for life, a lack of any respe ct for the p erson w ho at som e point, pre sum ably, Mr. Aldrid ge prom ised to love, honor , and cheri sh until death do us part . He has gone just as far as a human being possibly ca n to disho nor thos e vows or any othe r respon sibility to a spous e that one can.” 13 At the conclusion of the sentencing hearing, the trial cour

t found the appellant to be a dangerous offender under Ten n. Code Ann. § 40-35-115(b)(4)(1990), 13 and that the appellant has “a recor d of criminal activity

that’s extensive,”

under Tenn. Code Ann. § 40-35-115(b)(2) . Furthermore, in imposing consecutive sentences for counts 4, 5, 7, 9, and 10, the trial court determined “[this] is a senten ce that is very justly deserved in relation to the seriousness of these offense s and that it is appropriate and adequate. . . .”

In finding consecutive s entences warranted, the tr ial court considered the appellant’s prior criminal record, including a prior conviction for “crime against nature involving the moles

tation of his step-daughter,” the psychological i mpact the offenses have had upon the victim; the severity of the phy sical abuse inflicted upon the victim; and evidenc e of prior incidents of the appell ant’s maltreatment of women, including, an attempted sex ual assault on a friend’s preg nant girlfriend, the phy sical abuse and sexual assault of his second wife, and the sexual molesta tion of his stepdaughter. Additionall y, the trial court c

onsidered the testimony of the appel lant. Specifically, the appellant blamed his “marital probl ems” on Etta, stating that s he complained “about not being abl e to afford the things she wanted .” He added that “[s]he made a lot of accusations that are untrue,” includ ing her denial of an affair while in Arkansas. In repudiation of the allegati ons of his prior abuse of women, the appellant explained to the c ourt that “[m]y opinion of it is my first wife w

anted a divorce, she wanted the children, and that’s why the accusations were made. Since that time its been like a snow ball rolling down hill.” Moreover,in a somewhat similar14

vein reflecting total indifference for his actions, w e note the appellant’s comments following his incar

ceration, which w

ere overheard by a cor rectional officer, that he just “gave the bitch what she asked for.”

This court's review of the manner of service of a sentence is de novo with a presumption that the determination made by the trial court i s correct. Tenn. Code Ann. § 40-35-401(d) (1990). See also State v. Bingham , 910 S.W.2d 448 (Tenn. Crim. App.), perm. to appeal denied , (Tenn.1995). This presumption is only applicable if the record demonstr ates that the trial court pr operly considered rel evant sentencing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn.1991). We agree with the State’s observation that “the trial court in this case addressed sentencing in an uncommonly thorough and meticulous manner.” According ly, as conceded by the appellant, the presumption of cor rectness applies to the cour t’s decision. Moreover, the appellant bears the burden of proving the impropriety of the consecutive nature of the sentenc es imposed in this case. Sent encing Commission Comments, Tenn. Code Ann. § 40-35-401(d).

While consecutive sentences should not be routinely imposed, Sentenci ng Commission Comments, Tenn Code Ann. § 40-35-115, Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976), when one or more statutory criter

ia are present, the imposition of consecutive s entences is within the d iscretion of the trial cour t. State v. Taylor , 739 S.W.2d 227, 22 8 (Tenn. 1987); Sentencing Commission Commen ts, Tenn. Code Ann. §40-35-115. A finding by the trial court that one of these factors exists is not alone suffici ent to justify the impositi on of consecutive sentences. “ The proof must also establish that the terms imposed are reasonably related to the severity of the offenses committed and are nece ssary in order to protect the public from further criminal acts by the offender.” State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). Notwithstanding proof of these three criterion, a sentencing court retains the discretion of imposing consecutive sentences. On appe al, the exercise15

of the trial court’s discretion is afforded great weight, provided the court correctly applied the principles of cons ecutive sentencing. M oreover, in determining whether the trial court provi dently exercised its discretion, “the ov erriding concern” i s the fairness of the resulting sent ence under all the circumst ances.

Upon de novo

review, we con clude tha t the imp osition o f consec utive sentences is appropriate. Although not disputed on appeal by the appellant, the record supports the trial court’s findings regarding the appellant’s cl assification as both a dangerous offender and a multiple offender. Moreover, we find, based on the evidence presented and the t rial court’s findings , that the aggregate sent ences are reasonably related to the severity of the offenses and tha t an extended sentence is necessary to protec

t the public from further crimi nal acts of the appellant. The appellant has failed to establis h that the trial court abused its discretion in order ing consecutive sentences. Thus, we conclude that consecutive sentences a re warranted in the present case.

For the foregoing reasons , the judgments of convicti on and sentences entered by the trial cour t are affirmed.16 ____________________________________ DAVID G. HAYES. Jud ge

CONCUR:

______________________________________ JERRY L. SMITH, Jud ge

______________________________________ NORMA MCGEE OGLE, J udge