### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 15, 2003 Se ssion

STATE OF TENN ESSEE v. WILLIAM RHEA JACKSON

Direct Appeal from the Criminal Court for Davidson County

No. 2000-D-2190 Steve Dozier, Judge

No. M2002-00762-CCA-R3-CD - F iled March 27, 2003

The Defendant, William Rhea Jackson, was convicted by a jury of a

ggravated burglar y , r ob be ry, misdemeanor

theft, attempted rape, agg ravated kidnapping, and

two counts of rape. Thetrial court sentenced the Defendant to an effective term of thirty -four ye ars in the Department of Correction. In this direct appeal, the Defendant raises eig ht issues: (1) whether the trial court erred in deny ing hi s m otion to suppress his statement to the police; (2) whether the trial court erred in admitting certain testimony concerning

fingerprints; (3) whether the tri al court erred in admitting hearsay testim onyabout the victim’s response to a photographic line-up; (4) whethe r the Defendant was entitled to a mistrial due to statements made by the prosecutor during closing arg ument; (5) whether the evidence is sufficient to support his convictions; (6) whether the conv iction for aggravated kidnapping violates due process under State v. Anthony ; (7) whether the t rial cou rt prope rly instructed the jury

concerning lesser-included off enses; and(8) whether the Defendant’s sentenc es
are excessive. Because the trial court committed reversible error when it failed to instruct the jury

on all of the

lesser- included

offense s of the in dicted of fenses of robbery

and aggravated ra

pe, we
revers e and remand for retrial the Defe ndant’s c onviction s of robbe ry and rape . In a

ll other r espects , we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Rem

anded

D AV ID H. W ELLES , J., delivered the opinion of the court, in which T HOM AS T. W OOD ALL an d R OBER T W. W EDEMEYER , JJ., joined.

Jeffrey A. DeVasher, Assistant Public Defender, Nashville, Tenne ssee, for the appellant, William Rhea Jackson.

Paul G. Summ

ers, Attorney Gene

ral and Reporter; Helena Walton Yarbroug h, Assistant Attorney Genera l; Victor S. Johnson, District Attorney Gene

ral; and Renee Erb and Kristen Shea, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.-2- OPINION

The victim in this case, a widow i n her ea rly eighties, testified that on the morning of September

9, 2000, she heard a knock at her door. She

lived in a house by herself on South Ele

venth Street in Nashville. When she opened the door, a black male covered her face withsomething and askedwhere her money

was. The

man took he

r by the arm a

nd push ed her down on her bed. He

covere d her hea

d with a pillow and a

gain as ked wher

e her money

was.

As the victim lay on her bed , the m an rumma ged thr ough he r house. A

fter ab out thirty minutes, she testified, the man returned to her bedroom, pulled up her g own, got on top of her, and insertedhis finger into her rectum. He then got up, again a sked about her money , and left the room.
The man returned some time later, still asking about the victim’s money. He got on top of her again and took four rings off of her finge rs and a necklace

off of he r neck. He then put

his penis i n the victim ’ s face, demanding that she “suck it.” The victim refused, and her attacker twice repeated his demand, but the victim did not comply. The victim testified that the man then grabbed a pillowcase, put it over her head, and tied her ha nds behind her back. He got on top of her again, rubbedhis penis on her body, and a gain inserted his finger into her rectum. He then got up and left the room.

The victim heard her attacker still in the house. Again, he returned to the bedroom, and again he demanded to kn ow where the victim’s money was. He then tied the victim’s feet together a nd askedher if she was going to have c ompany. When she replied, “ yes,” he the n a ske d, “ wh en ?” The victim told the man, “now,” and he finally left the house. The victim testified that the entire episode lasted a pproximate

ly tw o hours.

When the victim realized that her atta cker ha d left, she remove d the pillow case from her head and managed to get across the stre et to a neighbor. The neig hbor untie d the vict

im’s hand s, and she returned to her house, discovering that her car was gone. She called the police

.
The victim testified that, in a ddition to her car

and jewe lry , she was missing her VCR, three pocketbo oks, and a lar

ge spor t bag. T he victim t

estified that s he had heard the man rummaging throu gh her house , opening drawer s, and pull

ing the t op off of a larg e popcor

n tin in her

bedroom. She explained that this tin had been given to her, probably at Christmastime in 1999. Officer Charles Anglin subsequently rec overe d a latent thumbprint from the popcorn can, using the brush and powder technique. Lore

ta Marsh, a fingerprint examiner with the Metro Police Depar tment, testified that this latent print matched the D efendant’s left thumbprint. Julie Hooper, Ms. Marsh’s supervisor, also examined the la

tent print and veri fied tha

t it matche d the Def

endant’ s.

A latent print wasalso obtained

from the v

ictim’s c ar afte

r it was di scovere d abando ned in another county. T

his print did not match the Defendant and was never identified.-3-

After the finger

print matc

h was obta

ined, De tective Jul

ie Law son prepa

red a photograp

hic line-up of six black men, including a photograph of the Defendant. She showed this line-up to the victim at the victim ’s h ome. Det. Lawson testified that, upon viewing the six photographs, the victim said that she could “narrow it down to one of [p hoto graphs one, t hree an d six ],” s tati ng, “one of those is him.” The victim was unable to further identify her attacker; however , photograph number one in the line-up was of the Defendant. When asked to look at the Def endant at trial, the victim stated that, to her knowledge, she had never seen him.

After the Defendant was taken into custody on September 14, 200 0, o n unrela ted char ges, Det. Lawson and Detec tive Keith Sutherland met with the Defendant for the purpose of interviewing him about the attack on t he victim. Det. Lawson testified at trial that while she w as reading the Defendant

his Miranda

rights, the Defendant interrupted her by saying tha

t he wanted

to know what the allegations were. Det. L awson testified that

she told the Defendant she would tell him what the allegations were bu

t that she h ad to finis h with his r ig hts, first. She continued reading from the rights waiver form, took some personal information from the Def endant, and then explained the basic facts of

the attack. She asked the Defendant to sign the rig hts waiver. Det. Lawson e xplained that the Defe ndant refused to

sign the waiver and kept asking wha t people were say

ing about him. De t. Lawson aga

in read the Defendant his rights. He told her tha t he would talk with her if she didn’ttape-r

ecord th e conve rsatio n. Det. Lawson ag reed and then told the Defendant about the evidence the police h ad collected at that point, including the victim’s report and the matching finger print. According to Det. Lawson, the Defe ndant responded by

stating, “I’ve f

ucked up. I’ve messed my life up.” The

Defendant made no further statements conc erning the case.

When h e was taken into custody, the D efendant had a pawn ticket in his pocket. Further police investigation revealed that a pawn ticket to William R. Jackson had been issued by H ousehold Pawn Number O ne in Nas hville on the afternoon of September 9, 2000. This pawn ticket indicated that a necklace and three ring s had been pawned. Ray mond Houser

testified that he was the pawnshop employee who ha

d accepted the pawn and

issued the ticket. Mr. Houser explained that, in order to issue a ticket, he had to see a Tennessee i d entification card containing a photogr aph of the customer. The iden

tificatio n card pr

esented to him in this instance contained thesame information found on the identification card which the Defendant was carry ing when he was arrested, and this information was ref

lecte d on the paw n ticket. Mr. Houser explained that he verified the identification of the person presenting the card by comparing the photograph t o the pe rson. The police were a

ble to recover two of the rings from the pa wnshop, and Mr. Houser confirmed that these two rings were

the ones taken from the man who identified himself as William Rhea Jackson. The victim and her daughter both identified these ring s at trial as belonging to the victim.

Dennis Gordon testified on behalf of the Defendant. Mr. Gordon testified that he had known the Defendant for a “long time.” He and the Defendant

frequently spe

nt time together in the area of South Eleventh Street. Nearby

was a Family

Dollar store. Mr. Gordon explained that his girlfriend workedin the Family Dollar store and that he was in the store with the Defendant on severa l occasio ns.-4-

Natika Spann, Mr. Gordon’s girlfriend, testified that she worked in the Family Dollar store. She explained that the store carrie d Christma s popcorn tins like th

e one in the victim’s bedroom from which the Defendant’s fingerprint had been recovered. She also testified that she had never seen the Defendant in the store.

Sharon Jackson, the Defen dant’s sis ter, test ified tha t her bro ther had

lived in the

South Eleventh Street neighborhood

prior to his arrest. She explained that the Family Dollar st ore was just

a few blocks from his apartment. She furth er testif ied that sh

e had be en in

the Fami ly D ollar with the Defendant at Christmastime in 1999.

The victim

was called by

the State in rebuttal, and testified that she c leaned t

he popco rn tin every time she

dusted.

MOTION TO SUP PRESS In hisfirst

issue the Defendant contends that the trial court erre d by deny ing his motion to suppressthe statements he allegedly made to Det. Lawson during their interview. The Defendant alleged in his motion that “the State cannot show that [he] made a knowing and intellige nt waiver of his righ t to remai n silent or

his right to an attorney .” At the hearing on the motion, Det. L awson testified that she read the Defendant his rights not once , buttwice, be fore inf orming h imabout the evidence agains t him. She sta ted that th

e Defe ndant refused to s ign the r ights waiver form, but agreed to speak with her if she did not record the conversation. When prese nted with the evidence against him, the Defendant stated that he had “f ucked up” and “messed [his] life up.”

Det. Law son prepa

red a Sup plement Re

port which state s, in pertine nt part, that the Defendant

askedwhat had been said and I informed him that

I would tell him whe

n we got into the interview room. I beg an the interview by read ing [the Defendant] his Miranda rights. He said he wanted to know what was upbefore he spoke with us. I inf ormed him that I would tell

him as soon

as I g ot some inf

ormation f

rom him re gardin g his full name an d oth er thi ngs needed for the rights waiver. Af ter this information was obtained, I began a

dvising him of the allegations. I then read [the De fenda nt] his rights and he agreed to talk with us but did not want to sign the waiver. When I again confronted

him with the evidence , he looke d first at Det. Sutherland and then towards mys elf and made the statement “I fucked up.” He also made the statement that “he had messed up his life.” After talking with him about additional evidence that I had, he said that he did not want to talk about it anymore

.
Defens e counsel usedthis repo rt in his cro ss-examina tion of De

t. La wson, poin

ting out t hat it seemedto indicate that

she did not

read the Defend ant his rig

hts until after

she “advis[ed] him of the allega tions.” De

t. La wson res ponded th at “[a]dvis ing him of all the allegati ons and a

dvising h im of what all I have in my

case file is two, different things.” She explained that, after the first reading of the Defe ndant’s Miranda

rights, the Defe

ndant lea ned back in his chair and

crossed his arms. At that point, she told him what he was being accused of and read him his rights the second time. She-5-

testified that, after

the se cond r eadin g, the Defendant “said he would talk to us, but he wouldn’t -- he wouldn’t wanna sign the waiver.”

The trial cou

rt took the

Defend ant’s moti on under adviseme

nt and subs equently

issu ed a n eloquent and well-researched order , holding “that based on the totality of the circumstanc es . . . the [D]efendant

kn ow in gl y an d i nt el li ge nt ly w aived his Miranda rights.” Accordingly , the trial court denied th e Defe ndant’s m otion to sup

press.
On appea l, the Def endant c ontends th at Det. Lawson confronted him with evidenc e before reading him his Miranda

rights and thereby

“attemptedto elicit in

criminat ing info rmation” prior to advising him of his c onstitution al rig hts. The De fendant contends that this tactic was unconstitutional and that t he State h as fail ed to esta bl is h t ha t h e w ai ve d h is ri gh ts vo lu nt ar il y, kn ow in gl y, a nd in te ll ig en tl y.
“[A] trial cou

rt’s find ings of f act in a suppre ssion hea

ring will be uphel d unless the evidence preponde rates otherwise.” State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Here, the tri al cour t found that Det. Law son prope rly advised t he Defe ndant of h

is Miranda

rights befo re quest

ioning him. The evidence does not prepo nderate agains t this finding. Det. Lawson testified tha t she read the Defend ant his Miranda rights prior to advising him of the evidence that the police ha d collected which implicated him in the crimes. She also testi f ied that the Defendant indicated that he understood his rights. Det. Lawson’s Supplement Report doesnot contradict this testimony. I ndeed, the Supplemen

t Report is consiste

nt with De

t. Law son’s tes timony

that she r ead the D efenda

nt his rights not once, but twice. According to the report and her testimony, she advised him of the cha rges aga inst him after the first reading. She then rea d him his rights a second time and des cribed t h e evidence agains t him. The r eport refl ects, consistent with Det. Lawson’s testimony , that the Defendant

refuse d to sign t

he waive r but did a

gree t o speak w ith the de

te ctives. T

his is further bolsteredby t

he righ ts waiver form itself, on which Det. L awson wrote “M r. Jackson did not wish to sign the waiver but agreed to talk with my self and Det. Keith Sutherland.”

We acknowledge, of course, that the w arni n gs mandated by the Miranda

decision must be given to a suspect prior to custodial interrogation. See Miranda v. Arizona , 384 U. S. 43 6, 479 (1 966). Further

more, the term “int errog ation” “

refer s not only

to express questioni ng, but a lso to any words or actions on the part of the police . . . that the police sh ould know a

re rea sonably

likely to elicit an incriminating response.” Rh ode Is land v. In nis , 446 U.S. 291, 301 (1980). However, “[t]he disclosur

e of incr iminating evidenc e to a susp ect . . . do es not ne cessarily c onstitute an interrogation

within the meaning of Innis .” State v. Ma raschie llo , 88 S.W.3d 58 6, 603 (Te nn. Crim. App. 2000). F

urthermo re, the r ecord in this case supports the trial court’s finding that Det. L awson informedthe Defe

ndant of h

is Miranda

rights before p ro ceeding with any

attempt to

elicit information from him a

nd furthe r support s the tria

l court’sconclusi on that the Defend ant eff

ectively waivedhis Miranda rights

. See State v. Elrod , 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986) (finding that the “[l]ack of an explicit written waiver of the right to rema

in silent or

the right to counsel after Miranda

warnings does not per se require exclusionof a confession if waiver can be found fr om facts a

nd surrou nding c ircumsta

nces.”) Accord

ingly , this issue

is without me

rit.-6- FINGERPRINT TESTIMONY The Defendant’s theory

in this case was that he was not the perpetr ator of th e crimesagains t the victim. To

explain his thumbprint o n the popcorn tin located in the victim’s bedroom, the D efen dant

offered proof that the nearby Family Dollar store

sold such tins and that he could have touchedthe tin while it was still in the Family Dollar. Appare ntly, the State expected this line of proof because, during the State’s case in c hie f, the prosecutor asked Officer Char les Anglin, who lifted the latent print from the tin at the victim’s ho use, how e vaporat ion affected fin gerpr

ints. Office r Anglin responded as follo ws:

Ok ay. Some of - uh - t

he schoo ls that I ’ve bee

n to - uh - t

here ar e a coup le of schools that I’ve gone to, discussed th at. It depends on the atm ospheric condition s. Uh - the . . . instructor at - uh - two of the schools that I went to said that if you ’re in dir

ect sunlig ht, like a ca

r that’s o utside in direct sunlight, uh - that absent any conta minan ts or s uch, u h - suc h that delay the drying p rocess . . . f our to six hours it would be gone. Inside, uh - my experience is that- uh - a week to ten day s at the - uh - under normal household conditions.

At this point, defense co unsel ob jected th at there

had not be en a prop er found ation laid for this te st im on y. The court sustained the objection and then gave the State the opportun ity t

o lay th e necessary foundation. Office r Anglin subsequently te stified that he had been assigned to the identific ati o n section of the Metro police department’s criminal investigation division for sixteen ye ars. His duties with that section included collecting latent fingerprints from c rime scen es. His training consisted of working in-house with anothe r off icer with experience in crime scene investigation and attending two academic co urse s to learn about lat ent fing erprint d

evelopme nt. Each of these courses last ed forty hours a nd included training in the chemical components of finger prints and factors that could cause their deteriora tion. He testified tha t he had sixteen year s of experience lifting fingerprints and that he ha d been involved in lift ing thousand s of them. He acknowledged that he was not a ce rtified fingerprint examiner.

Following th is te st im on y, the trial court allowed the prosecutor to ask Office r Anglin about the lifespan of a fingerprint. Office r Anglin testified that, in his experience as a police office r working crime sc enes, he had not had success lifting finger prints with the brush and powder method after a week to ten day s. T he Defe ndant n ow contends that Officer Anglin’s testimony was inadmissib le because he was not properly qualified a s an expert witness to render such an opinion and that the State did not show that there was any scientific basis for this testimony. The De fendant also points out that the trial court never specifically designated

Officer Anglin as an expert, either during his testimony or in the jury char ge. The prosecutor, however , referred to Officer Anglin as an expert in her closing argument.

“Questions regarding the qua lifications, admissibility, relevancy , and competency of expert testimonyare matters left within the broad discretion of the trial court.” State v. Stevens , 78 S.W.3d 817, 832 (Ten

n. 2002). This Court will not over turn the tr

ial c ourt’s ruling regarding the-7-

admissibility

of expert testimony absent an abuse of discretion. See id. We will not find an abuse

o f discretion unless it appears that the trial court applied an incorrect legal standard or reac hed a decision which is against logic or reasoning and caused an injustice to the complaining party

. See id.

Ini ti al ly, we disagree with the Defenda nt’s characterization of Officer Anglin’s testimony as opinion, expert or

oth erwise . A close

reading of the record reveals tha

t Office r Anglin ’s speci fic testimonywas about his experi ences in th e field as a police officer trained in loca ting latent finger prints at crime

scenes. Significantly, Of ficer Anglin never offer

ed an opinion as to how long the Defend ant’s thumbprint ha d been on the popco

rn tin prior to the print being discovered. We do agree with the Defendant, howe v er, that Officer Anglin’s testimony was in the nature of expert te st im on y. Moreover, it is clear from the transcript of the trial that

the State elicited this testimony from Officer Anglin for the purpose of causing the jury

to draw the inference

that the Defendant’s thumbprint had be en left on the victim’s property no more than ten day s prior to Officer Anglin’s visit to the crime scene.

Under our Rule of Eviden

ce 702, “ [i]f scienti fic, technical, or oth er spec iali zed k nowle dge will substantially assist the trier of factto understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledg e, skill, exper ience, t raining , or educ ation may testify in the form of a

n opinion or

otherwis e.” Obvi o us ly, the fact in issue in this case w as how long the Defendant’s thumbprint had b een on the pop corn tin. The liftin g and a naly sis of fing erprintsis a form of specialized knowledg e for wh ich it is ap pr op ri at e t o e li ci t e xp er t t es ti mo ny. Ac co rd in gl y, upon the Defendant’s objectio n, the Stat e inquire d into Officer Anglin’s professional training and background.

After hearing this testimony, the tr ial court, over defense counsel’s objection, allowed the prosecutor

to ask Officer Anglin about how long a finge rpr in t wo ul d l ast bef ore it eva por ate d. In response to the State’s questions, Officer Anglin testified that he had not had success lifting latent fin gerpr ints using the b rush and p owde

r met hod pa st ten

day s. Dur

ing s ubse quen

t cro ss-exa minatio n Officer Anglin stated that

he had not conducted any scientific experiments to determine how long it takes for a fingerprint to evapora te. He furt her acknowledged being aware of research tha

t indicated that it was not possible to determine how long a fingerprint had been on an object. He

was also aware of cases in which fingerprints had been recove red from items ye ars after havingbeen lef t.

We turn first to the require ment s of Rule 702. Scientific, technical and other specialized knowl edge may

be testif ied to whe

re the te stimony

will “subs tantially

assist the

trier of fact to understandthe evide

nce or to determin e a fac t in issu e.” The fac t in issue a bout whic h the State sought to introduce Officer Anglin’stestimony was when the De fendant left his fingerprint on the popcorn tin. Obviously, the shorter the lifespan of the Defe ndant’s p rint, the m

ore likely it

was that he left the print during the attack on the victim. The lifespan of a fing erprint i s not a matte r within the or di na ry k no wl ed ge of th e a ve ra ge la ype rs on . A cc or di ng ly, ex pert testimony about this issue would meet the initial relevance test set forth in Rule 702.-8-

However, as admitte d by Office r Anglin , there i s no scien tific tes t for dete

rminin g the lifespan of a fingerprint. Thus, Officer A nglin’s testimony was not in the nature of scientific theory and/or methodology, but wa s rather in the natureof non-sc ientific “specia lized knowl edge, ” to wit, his experience. See State v. Stevens , 78 S.W.3d at 832. Indeed, our supreme court recognized in Stevens that crime-scene analy sis, inc luding the gather ing and analy sis of phy sical evidence, is gener ally considered

to be a body of specialized knowledge. See id. (citing Simmons v. Sta te , 797 So.2d 1134, 1151 (Ala. Cr im. App. 19 99)). Ne

verthel ess, such

nonscien tific tes tim ony

must still meet the fundamental requirements of relevanc e and reliability. See id. Indeed, Rule of Evidence 703 providesin pertine

nt part tha

t a trial c ourt “sha

ll disallow

[expert] testimony in the form of an opinion or inference if the underly ing facts or data indicate lack of trustwor thiness.”

Our supreme court has indicated that, before allowing expert tes timony about non scientif

ic specialized knowledge,

the trial cou

rt must fir st make a

determin ation tha

t the witne ss i s qu alified by knowledge, skill, experience, training, or education to express an opinion within the limits of the expert’s expertise. The det erminative factor is whether the witness’s qualifications authorize him or her to give an informed opinion on the subject at issue.

Stevens
, 78 S.W.3d at 834 (citation omitted). Next, the trial court must ensure that the basis for the witness’s op inion, w hether it is testing , resea rch, stud ies, or e xperienc e-base d observa tions, adequately

supports the witness’s conclusions. See id. Significantly,

[t]his “connection” between the expert’s conclusi on and the underly ing data supporting that conclusion is of especia l importance when

determin ing the r eliability of experience-based testimony , because observations and exper iences a re not ea sily verifia ble by t he court

. However, the court may make a finding of reliability if

the expert’s conclusi ons are s ufficie ntly straightforwa

rd and su ppo rted by a “

rational explanation which reasonable [persons] could accept as more cor rect than not correct.”

Id. (citatio n omitted) . Finally , the tria l court ma

y a pply , in its dis cretion , th e facto rs listed i n McDaniel v. CSX Tra

nsporta tion, Inc.
, 955 S.W.2d 257, 265 (Tenn. 1997), which include (1) whether the evidence about which the expert is testify ing has been tested

and the me

thodolog y w ith which it has been tested; (2) whether the evidence ha s been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether the evidence is gene rally acc epted in the community

involved in the body

of specialized knowledge; and (5) whether the exper t’s rese arch in the field has been conducted independent of litiga tion. See State v. Stevens , 78 S.W.3d at 834.

The trial court did not make any specific findings with respec t t o a ny o f th ese fac to rs. (In fairne ss to the trial court, how ever, we n ote that the Stevens decision had not been filed as of the time the Defendant’s case was tried). The court simply allowed Office r Anglin to testify about his-9-

experience with his atte mpts to lift prints with the brush and powder method after both the prosecutor

and defense counsel questione d the of ficer about his training and experience in lifting latent finger prints. Th

e court’ s allowing

Office r Anglin to testify , howeve

r, indica tes an impl

icit ruling t hat he wa s qualified to answe r the que stions.

Our review of Officer Anglin’s testimony in light of the guidelines set f

orth in the Stevens decision leads us to conclu de that Of ficer A nglin sho uld not hav e been a

llowed to t

estify about his experien ce with the p eriod of time during which a latent finge rprint could be recovered with the brush and powder method. We reach this conclusion fo r two r easons. First, proof about Officer Anglin’s failure to lift prints more than ten day s old was relevant only if that failure was caused by the passage of time. Here, the only evidence of

causation was Officer Anglin’s very limited and very vaguehears ay

testi mony about “atmospheric conditions,” “the drying process,” and “normal household

conditions.” None of those fact ors was add ressed vis a vis the victim’s bedroom. Moreover, Officer Anglin’s past efforts a tdelayed f

ingerprint recovery

were relevant only

insofar as they re flected conditions similar to those he encountered at the instant crime scene. Ther e was no testimony to establish any such similarities, however.

Second, the found ation laid for Off icer Ang lin’s test imony on this topic

didnot ensure that the basis for his observations — his professional experience — adequately

supported the conclusion for which the State was eliciting Officer Anglin’s testimony : that fing erprintsmo re th an te n d ays oldcannot be found with the brush and powder method. Officer Anglin’s experience qua lified him to testify about how

to develo p latent f ingerp rints at c rimescenes. It d id no t q ua li fy h im to te st if y, however, about how long fingerprints last. Although his testimony on this topic was couch e d in terms of his personal successrate wit h lifting finger prints using the powder and brush method, the clear implication of the testimony — a nd the reasons for the State’s inquiry along this line — was to establish that

the Defendant’s fingerprint had been left on the victim’s proper ty no more than ten da ys before Officer Anglin’s visit. Officer Anglin testified that, in his experience, he had no t succeeded

in the effort to lift latent fingerprints using the powder and brush method after more than ten days had ela

psed. There had been no foundation laid, however, to indicate how many times he had attempte d to lift pr

ints from a

crime sc ene more

than ten d ay s after t

h e crime had be en committed. If this number were no more than a dozen, for

instance, serious doubt would be cast on the r el iability of his data. Moreover , in the context of the State’s questions, Officer Anglin’s testimonyimplied that his failure after this period of time was due to evaporation; howeve r, he had

no actual data with which to su pp or t t hi s c on cl us io n. Ob vi ou sl y, his failure rate after this period of time could have been

due to other, unexplored factors. Officer Anglin’s reliability would have bee n much enhan ced if he

had testif

ied, for instance , that he h ad condu cted con trolled te sts wit h fingerprints left at a known time.

Therefore, we conc lude that the tria l c ourt erred in allowing Officer A nglin to testify concerning the lifespan of fingerprints. Neverthe less, we find this error to be harmless. The exclusi on of the challenged testimony would have left the jury with proof that the Defendant ’ s thumbprint was found on a popcorn tin in the victim’s bedroom; that thevictim remembered having the tin inher p ossession since the previous Christmas, more than eight months earlier; that she-10-

cleane d the tin

every time she du sted; and

that she heard he

r attack er open t he tin. To c ounter th

is strong circumstantial evidence of the Defendant’s identity

as the perpetrator, the Defendant offe red proof that he had bee

n in a neig

hborhood store whi ch sold tin s like the o ne belong ing to the victim at about the

same time

the victim

obtained the tin. Based on this ev idence, we have

no trouble determining that

the jury would have r

eached thesame conclusion about the Defendant’s presenc e in the victim’s home, even without the benefit of Officer Anglin’s testimony

about his i nability

to lift laten t prints af ter ten d ay s. Accor

dingly , this issue

is without me

rit.

TESTIMONY ABOUT PHOTOGRAPHIC LINE-UP The victi m never identified the Defendant at trial as her assailant, nor did she testify about herreview of the photographic line-up pre sented to her by D et. Lawson. Rather, D et. L awso n testified that she showeda photog raphic line-up of

six men, one of whom was the Defendant, to the victim. According to Det. L awson, the victim was not able to identify her attacker as one of the men depictedin the line -up. Rather, Det. Lawson testified, the victim told her that she c ould “nar

row it down” to three of the m en, stating that it w as one of the thre e. The De

fendant contendsthat Det. Lawson’s testimony was inadmissible hearsay . The State responds that this testimo ny w as prope

rly admitted as a prior identification.

Det. Law son’s tes t im on y about what the victim told her during the line-up viewing was he ar sa y. SeeTenn. R. Evid. 801(c). Hearsay is generally

not admissible. See Tenn. R. Evid. 802. However, hearsa

y ma y be admissible

if it consi sts of “[a] s tateme nt of identification of a person made after p erceiving the p erson if the decl arant te stifies a

t the tria l or hear ing and is subjec t to cross-examination concerning the statement.” Tenn. R. Evid. 803(1.1). Here, the victim-declarant testified at trial and was subject to cross-examination. Thus, the issue before this Court is whether her statement to Det. Lawson mee ts the definition of an identification.

We hold that it does not. The victim’s statement to Det. Lawson did not identify the Defendant

as her attacker ; rather

it i ndicated that the Defendant might have bee n her assailant, as might two of the other five men whose photographs were shown to her. Not only does the victim’s statement not qualify as a prior

identification, it barely mee ts the definition of

relevant evidence. See Tenn. R. Ev id . 4 01 . M or eo ve r, in so fa r a s i t m ay b e marginal ly relevant, it should have been excluded because its probative value is s ubstantia lly o utweighed by

the dang er of unf

air prejudice. See Tenn. R. Evid. 403. Accordingly , the trial court erred by allowing Det. Lawson to testify about the victim’s response to the photographic line-up.

However, we conclude that the error was harmless. See Tenn. R. A pp. P. 36(b ). The mos t significant

proof of the Defe ndant’s a ttack on t he vic tim co nsisted of his thumbprint found at the

scene and his possession of the victim’s jewelry later on the day

of the attack. It was c lear to the jury that the victim

did not recognize the Defendant at trial. Acc ordingly, we are confident that

the jury put very little weight on the contested statement and that the erroneous admission of this evidence didnot affect the jury ’s verdict or pre judice th e ju dicial process. This issue is, therefore, without merit.-11- IMPROPER PROSECUTORIAL CLOSING ARGU MENT During the State ’s c l osing argument, the prosecuting attorney explained that a c riminal defendant has the right to not

put on a defense, but if he o r she cho oses to do s o, “that d efense is scrutinized and closely examined by the jury, just like the State’s proof.” She c ontinued, stating the follo wing:

What is the def

ense in th

is case . . . i n the face of the overwhelming e vidence presented by t he State? Thi s man . . . was found . . . his fingerprint on this can in

Ms. Robinson’s bedroom that she testifies specifical ly she heard the man open . . . the

can. He is confronted by an officer and he ma kes admis sions, show s his consciou sness of his own guilt, is picked as one of three possible p eople out of a photo ID lineup by

[the victim], and is fou nd to have p awned her jewelry that afternoon.

This is remar

kably overwhe lming pr oof of the defenda nt’s gui lt. And, what does he have to say

in his defense?

Upon hearing this utterance by the State’s at torney, de fense counsel immediately objected and moved for a mistrial. The trial court denied the D efenda nt’s mo tion but issued no curative instructions to the jury. Howeve r, after the bench confere

nce concerning the Def

endant’s objection

was concluded, the prosecutor resumed her a rgument with the rhetorical question, “So, in the face of the over whelming evidenc e of th e State, wha t i s t he de fe ns e? Th e d ef en se is a w ho ll y, unbeliev able

. . . u nr el ia bl e a nd in ex pl ic ab ly . . . convol uted def ense tha t he must have touched that popcorn can at some other time.” The Defendant now contends that the trial court erred in deny

ing his motion for a mist

rial. He argues that the prosecutor’ s statement was an impermissible comment upon his constit

utional ri ghts not t

o testif y, and i mproper

ly s hifted the

State’s b urden of

proof to him.

A trial cou

rt has sub stantial d

iscretio nary

auth or it y in determining the propriety of final argume nt. See Coker v. St

ate , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). Although counsel is generally

given wide latitude, a trial court must restrict any im pr op er co mm en ta ry. See id. It is

never proper for

a prosec uting at torney to comment upon a defendant’s decision not to testify , and to do so constitutes misconduct. See State v. Thornton , 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999). Even if prose cutoria l argum ent does c onstitute m

isconduc t, howeve

r, whether it amou

nts to reversible error depends on whether it had a prejudicial effect upon the jury ’s verdict. See id.

The factor s to aid

us in makin g this de

terminat ion are s et forth in Judge v. St ate, 539 S.W.2d 340, 344 (Tenn.Crim.App.1976). The Judge factors, later adopted by our supreme court

in State v. Buck
, 670 S.W.2d 600, 609 (Tenn.1984), require this Court to consider:

(1) the conduct

complain ed of, vie

wed in co ntext and in

light of the fac ts and circumstances of the case; (2) the curative measures undertake n by the trial court a

nd the prosecutor;-12-

(3) the in tent of the

prosecu tor in making the im

proper s tatement ; (4) the cumulative effect of the improper c onduct and any othe r errors in the record; and (5) the relative strength or wea kness of the case.

See Judge
, 539 S.W.2d at 344.

The first Judge factor

require s us to cons ider the prosecu tor’s co mments in c ontext and i n light of the facts and circumstances of the c ase. See Judge
, 539 S.W.2d at 344. The State’s proof in this case was circumstantial in nature: no ey ewitness or

confess ion affir

matively identified the Defendant

as the pe rpetra tor. Howe

ver, the circumst antial evidence was strong: the Defe ndant’s thumbprin

t was found at the sc ene and the Defe ndant pawned some

of the victim’s jewelry on the afternoonof the attack. When confronted with the evidence ag ainst him, the Defendant stated that he had “fucked up” and “messed up” his life. The Defendant’s theory of defense was that he was notthe perp etrator , and that his thumbpr

int had be en innoce

ntly placed o n the vict

im’s prope

rty some months before the crimes. I n other words, the Defendant chose to meet circumst antial ev idence with circumstantial evidence, rather than takethe stand. The prosecutor’s comment, argua bly imply ing that the Defendant should have testified in order to overcome the State’s proof, was there fore improper.

The trial court did not issue a contempo raneou s curative instruction to the jury. Af ter the bench c onference following defe nse counsel’s objection, the prosecutor simply resumed her argument with the rhetorical question, “So, in the face of the overwhelming evidence of the State, what is the defense? The def ense is a who lly, unbelievable . . . unre liable and inexplicably . . . convoluted defense that hemust have to uc he d t ha t p op co rn ca n a t s om e o th er ti me .” Su bs eq ue nt ly, during i ts charg e to the ju

ry , the tria

l court ins tructed

the jury that

The defendant has not taken the stand to testify

as a witne ss, but, y

ou should place no significance on this fact. The defendan t is presumed innocent and the burden is on the State to prove his guilt bey ond a reasonable doubt. He is not require d to take the stand in his own behalf, and his election not to do so cannot be considered

for any purpose a

gainst him, nor can any inf

erence be drawn from

such fact.

. . . The S t ate has the burden of proving the g uilt of the defendant bey ond a

reasona ble doubt, and this burden never shifts, but, remains on the State throughout the trial of the case. The defendant is not require d to prove his innocence.

While a contemporaneous jury instruction would have been preferable, the prosecutor’s subseque nt question made clear

that she was no longer focusing on the De fendant’s failure to testify , but rather on the credibility of his defe nse.

The third factor is the prosecutor’s intent in making the qu estioned co mment. Here, the prosecutor

was intending to demonst rate tha t the Def endant’ s theory

of defe nse was specious when-13-

compared to the stre

ngth of t he State’ s case. O f course , every prosecu tor intend s to raise

questions about the credibility of proof

put on by a criminal defendant; neve rtheless, it is incumbent upon prosecutors to not couch their criticisms in terms of what the defendant ha s failed to say.

The fourth factor is the cumulative effect of the improper comment and other errors in the record. While we have found other errors in this record, we f ind that these errors were not enhanced

or magnified

by the prosec

utor’s improper comment. We find that the prosecutor’s comment, in the cont ext of the entire closing argument by the State and the totality of the evidence presented to the ju ry, had little or no effect on the jury . The jury wa s instructed by the cour t at the close of argument that the Defendant was presumed innocent; bore no bur den to prove his innocence; and that no negativeinference could be drawn from his fa ilur e to test

ify. The prosecutor did not repeat her mistake.

The fifth and

final Judge factor

is the rel ative str

ength o r weakness of the

State’s c ase. While

we disagr ee with the prosecutor that the State’s case was “over whelming,” we do find that the State made out a strong circumstantial case ag ainst the Defendant.

Considering all of the Judge factors, we hold that the prosecutor’s remark was improper, but does notrequire

revers al. Once

again, however , this Court cautionsthe State

agains tmaking such gratuitous and improper comments, and reminds prosecutors that “‘[r]emarks which skirt the edges of impermissible commentare neither desirable nor worth the risk of reversal of what may well be

a thoroughly de served conviction.’” State v. Copeland , 983 S.W.2d 703, 709 (Tenn. Crim. App. 1998) (quot ing Tay

lor v. Stat

e , 582 S.W.2d 98, 101 (Tenn. Crim. App. 1979)). The Defendant is not entitled to a new trial on this basis.

SUFFICIENCY OF THE EVIDENCE I n his fifth issue, the Defendant asserts that the evidence is not sufficie nt to sustai n a ny o f his convicti ons. Spec ifically , he conte nds that “ the State

failed to prove beyond a

reasonable doubt his identity as the perpetra tor of the crimes in question.” We respectfully disagree.

Tennessee Rule of Appellate Procedure 13(e) presc ribes that “[f]indings 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 trie

r of fact of guilt bey

ond a reasonable doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favorable to the prosecu tion, any rationa l trier of fact could have found the

essentia l element s of the c

rime bey ond a rea sonable

doubt. See Jackson v. V

irginia
, 443 U.S. 307, 319 ( 1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 200 0). I n addition , becau se conviction by a trier of

fact destroy s the presumption of innocence an d imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidenc e was insuffic ient. See McBee

v. State , 372 S.W.2d 173, 1 76 (Tenn . 1963); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1 999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); S tate v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).-14-

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence as well as all reasonable and legitimate inference s that may be dra wn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith
, 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the

evidence” in the record below. Evans , 838 S.W.2d a t 191; see also Buggs
, 995 S.W.2d at 105. Likewise, should the reviewing court fi nd particular conflicts in the trial te st im on y, the cour

t must reso lve them in

favor of the jury ver

dict or trial court judgment. See T uggle
, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight an d value to be given the evidence, and all factual issues are resolved by t he trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Of course, the identity

of the perpetrator is an

essential element

of any cr ime. See State v. Thompson
, 519 S.W.2d 789, 793 (Tenn. 1975). Sufficient proof of th e p er pe tr at or ’s id en ti ty m ay, however, be proven through circumstantial evidence a lone. See State v. D arnell , 905 S.W.2d 953, 961 (Tenn. Crim. App. 1995). As this Cour t has previously

note d, howeve r, for circumstantial evidence alone to be sufficient to support a conviction,

the circumst

antial ev idence m ust be not o nly

consiste nt with the guilt of

the accused butit must also be inconsistent with innocence and must exclude every othe r reasonable theory

or h ypot hes is ex cep t t hat of g ui lt . In addition, “it must es tablish such a certainty

of guilt of the accused as to convince the mind be

yond a reas onable doubt that [the defendant] is the one who committed the crime.”

Statev. Bigsby

, 40 S.W.3d 87, 90 (Te

nn.Crim.A

pp.2000) (citatio ns omitted) . While foll owing th ese guideli nes, this Court must remember that the jury decides the weight to be given to circumstantial evidence and that “‘ [t]he infere nces to be drawn from such evidence, a nd the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are que stions primarily for the jury.’” Marable

v. State
, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn.1958) (citation omitted).

In this case, ci rcumstantial evidence that the Defendant committed the instant crimes includes his thumbprint recovered at the scene of the cr ime; the victim’s testimony that she had had the popcorn tin on which the Defendant’s thumbprint was found for approximately a y

ear, that she heard the tin being

opened b y he

r attack er, and t hat she c leaned t

he tin every time she

dusted; the pawning of jewelry identifie d as the victim’s on the afternoon of the attack by a person using the Defendant’s identification card, including testimony that the pawn shop employee a

ccepting the pawn checke d the photograph on the card ag ainst the appearance of the person pr esenting it ; the Defendant’s statement to the police when present ed with some of the evidence against him that he had “f ucked up” and “mes sed [his ] life up”; and testimony by the Defendant’s sister that he resided in the neighborhood

in which the victim lived. These facts, t aken togethe r, are, we find, sufficie

nt to establish the Defend ant’s ide

ntity as the pe rpetra tor of the se crime s bey ond a rea sonable d oubt. The Defend ant’s co ntention in this reg ard is, therefor

e, withou t merit.-15- CONSTITUTIO NALITY OF KIDNAP

PING C ONVICTION In his sixth issue

the Defe ndant ar gues tha t his agg ravate d kidnapp ing con

vic tion must be reversed and dismissed pur suant to our supreme court’s opinion in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). In Anthony our supreme court he ld that a k id napping conviction violates due pr ocess if it is essentially incidental to the commission of another offense. See id. at 3 06. In Anthony
, the defe

ndants co nfined e

mploy ees o f a resta

urant durin g the co urse o f comm itti ng a
ro bb er y. The defendants were convicted of both a rmed robber y and ag gravated kidnapping. Our supreme court affirmed this Court’s reversal of the ag grava

ted kidna pping c onviction s on the ba sis that the conf inements were “essentially incidental” to the robbery and did no t “substa

ntially increa se the risk of harm ” to the victims. See id. at 306-08 . The Def endant c ontends th at the sa me result should obtain here because “[t]he proof established that the victim was forced into h er bedr oom, detained, and tied up solely to f acilitate the robbery , theft, rape, and attempted rape.”

We respectfully disa

gree. Agg ravated kidnapping as charg ed in this case is defined as “false imprisonment

. . . committe d: . . . [t]o facilitate the commission of any felony or flight thereafter.” Tenn. Code Ann. § 39-13-3 04(a)( 1). A per son commitsf alse imprisonment when he or she “knowingly

. . . confine s another

unlawfu lly

so as to interfere substantially with the other’s liberty.” Id. § 39-13-302(a). In this ca se, the Defendant pushed the victim down on her bed and covered her headwith a pillow after he forcibly entered her home . He left

her ly ing ther e while he rummaged throu gh her house. He returned, raped he r, and again left the room. He re turne d a secon d time
, robbedthe victim

of her je welry , attempte d to rape

her, pull ed a pillo wcase

over her head and

tied her hands behind her back. He raped her a second time and thenleft the room again. When he ag ain returned to the bedroom, he tied the victim’s feet before leaving her home.

Irrespective

of whether the victim’s initial confinement to her bedroom was “e ssen tially incident al” to the Defendant’s subsequent offenses, there is no question but t hat the Defendant’s tying of the victim’s h ands and

feet wa s not

incidental to the majority

of his cr ime spree . By

the time the Defendant tied the victim’s hands, he had already

co mm it te d t he ag gr av at ed bu rg la ry, ro bb er y, theft, one of the

rapes a nd the att empted r ape. By the time he tied he

r feet, he had c ommitted a ll of the accompa

nying felo nies. Thislast

act of confinement wa s clear ly to facilita te his flig ht becau se after he tied the victim’s feet, he asked her if she was g oing to have company. When she said that she was expecting company “now,” the Defendant fled the victim’s home.

A few ye ars after the Anthony decision, our supreme cou r t reconsidered that opinion and concluded that

[t]he Anthony

decision should only prevent the injustice whic h would occur if a defendant could be convicted of kidnapping where the only restraint utilized was that

n ecessary to comple

te the ac t of [the ac company ing fel ony ]. Accord

ingly
, an y restraint in addition to that which is neces sary to consummate [the ac companying felon y] may suppo rt a se parate convi ction for ki dnapp ing.-16-

Statev. Dixon , 957 S.W.2d 532, 534-35 (Tenn. 1997) (emphases added). For determining whether the separate kidnapping conviction withstands due proc ess scrutiny, the court se t out a two-prong in qu ir y:
(1) whether the . . . confinement was bey ond that necessary

to consummat e the associated felony ; and (2) whether the additional . . . confinement: (a) prevented the victim from summoning help; (b) less ened the defendant’s risk of detection; or (c ) created a signific ant dang er or inc

reased the victim ’s risk of

harm.

Id. at 535. I

n the inst an t case, the Defendant’s actions in ty ing the victim’s hands and feet was clearly an a dditional confinement which was bey ond that necessary to consummate the other felonie s. Moreove

r, the De fendant ’s acti ons in tying the victim up cer tainly increase d her risk of harm and gave the Defendant a t least some ad ditiona l time in which to effect his flight, thereby lessening his risk of detection. The victim wa s not able to call the

police un til after she was a ble to obtain the assistance of a neighbor acr oss the street

to untie her

hands. Accordingly , the Defendant’s aggravated kidnapping

conviction does not violate due process, and this issue is therefore without merit.

LESSER-INCL UDED OF FENSES In his seventh issue, the Defendant contends that his co nvictions for robb ery and two c ounts of rape must be reversed

and those charges retried because the trial court did not properly instruct the jury on

lesser- included

offense s. The Sta

te argues that the trial court did not err in its instructions and maint ains that, even if t

he court did err, such err

or is har mless bey ond a rea sonable d

oubt.

The Defendant

was charged with, inter alia, two counts of a ggravated rape

and one count

of

ro bb er y. With respect to these counts, the trial court instructed the jury

on the off

ense of r ape as a lesser-included

offense of agg ravate d rape. T

he tr ial court did not instruct the jury on anylesserincluded of

fe ns e o f r ob be ry. The Defendant contends that the trial court should also have instructed the jury on sexual battery

and assault as additional lesser-included offenses of aggr

avated rape, and

on th ef t a s a le ss er -i nc lu de d o ff

en se of ro bb er y.

Trial courts a

re under a duty to “‘instr

uct the ju ry on all less e r -included offenses if the evidence introduc ed at tria l is legally sufficient to support a conviction for the lesser offense.’” State

v. Burns
, 6 S.W .3d 45 3, 464 (Tenn . 1999 ) (quo ting State v. Langford , 994 S.W.2d 126, 128 (Tenn. 1999)). In Burns , our Supr eme Cou rt adopted a new three-part test for de termining whether an offense is a lesser-included offense. See 6 S.W.3d at 466-67. Under the new test, which was larg ely derived from the M odel Pena

l Code, an

offense is a lesse r-includ ed offe nse if:

(a) all of its statutory elements are included within the statutory elements of the offense charged; or (b) it fails to meet the d efinition in part (a

) only in the re spect tha

t it contains a statu tory elem ent or eleme nts es tabli shin g-17- (1) a diffe

rent men tal state indicatin g a less er kin d of cul pa bi li ty; and/or (2) a less serious harm

or risk of harm to the same person, property or public interest; or (c) it consists of (1) facilitation of the offense charged or of an offense

that othe rwise meets the definition of lesser-included offense in part (a ) or (b); or (2) an attempt to commit the offense charged or an offense that otherwis e m eets the definition of lesser-included offense in part ( a) or (b); or (3) solici tation to commit the offense charged or an of fense that otherwis e meets th e definition of lesser-included offense in part (a) or (b).

Id. If th e trial c ourt dete

rmines un der this te st that the re is one or more lesser-included offenses of the charged offense, then the trial court must determine whether the evidence adduced at trial justifies an instruction on the lesser-included offenses. See id. at 467. Th is determin ation is to be made usin g a two- part ana lys is :
First, the trial court must determine whether any evi denc e exists tha

t reason able minds could

accept as to the lesser-included offense. In making

this determination, the t r ial court must view the evidence liberally in the light most favorable to the existence of

the lesser-included offense without making any judgments on the credibi lity

of such evidence. Second, the trial court must determine if the evidence, viewedin this light, is le ga ll y s ufficient to support a conviction for the lesserincluded offense.

Id. at 469. If the answer

to these two inquiries is affirmative, then it is error for the trial court to not give an in st ru ct io n o n t he le ss er -i nc lu de d o ff en se . T he er ro r i s n ot ne ga te d s im pl y b ecause th e evidence is sufficient to convict on the greater offe nse. S ee Sta te v. Bowles , 52 S.W.3d 69, 75 (Tenn. 2001). Moreove

r, “[a] def endant need not dem

onstrate a basis for acquittal on the greater offense to be entitled to an instruction on the lesser offense.” Statev. Allen , 69 S.W.3d 181, 187 (Tenn. 2002). F

inally , “[t]he tria

l court mus t provide

an instru ctio n on a lesser- included offense supported by the evide

nce even if s uch instr

uction is n ot consiste

nt with the

theory of the Sta

te or of the defe nse . The evi dence, not the the ories of the part ies, cont rols whet her an in struction

is required.” Id. at 187-188.

“An errone ous fail

ure to g ive a lesser-included offense instruction will result in reversa l unless a reviewing court concludes bey ond a reason able doubt that the error did not affect the outcome of the tri al.” Id. at 189. Sta ted anoth er way , we must de

termine w

hether t here is a

rea sonable

possibility

that rea sonable m

inds would

have co nvicted t

he Defe ndant of t he omitt e d lesser-included

off ens es h ad t hey b een giv en t he o ppo rtu ni ty. In making t his deter mination, w e must conduct a thoroug

h examinati on of the r

ecord, including

the evide

nce pre sented a

t trial , the-18-

Defendant’s theory of de

fense, and the verdict returned by the jury. See id. at 191. We do not make any judgments on the credibility of the evidence, nor

is it necessary

that we find a basis for acquitting the Defendant of the greate r offense. See Bowles , 52 S.W.3d at 80. Furthe r more, the decision to convict on a lesser-included offense should not be taken fr om the jury

simply because the element distinguishing the greater

offense from the l esser of

fense is “uncontroverted.” See Allen , 69 S.W.3d at 189.

We turn now to

the Defendant’s contention that the trial court should have charged the jury

on sexual battery and assa ult as lesser-included offenses of ag gravated rape. A s charg ed in

this case, aggrav at ed rape is committed upon the unlawful sexual penetration of a victim by the defendant wher e the de fendant causes bodily injury to the victim. See Tenn. Code Ann. § 39-13-502(a)(2). The lesser-included offense of rape is the unla wful sexual penetration of the victim

by the defe

ndant accomplishedby force

or coercion. See id. § 39-13-503(a)(1). Unlawful sexual penetration includes digital penetration of the victim’s rectum. See id. § 39-13-501(7). Sexual battery, on the other hand, is unlawful sexual contact with a victim by the defenda nt accomplished by for

ce or coercion. See id. § 39-13-5 05(a)( 1). “Sexua l contac t” is defined as inc luding th e intentio nal touch

in g of th e victim’s intim ate par

ts, “if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.” Id. § 39-13-501(7). Our supreme court has deter mined that sexual battery is a lesse r-included offense of agg ravated rape under part (b) of the Bur n s calculus. See Bowles , 52 S.W.3d at 77.

Given that sexual battery

is a lesser-included offense of ag gravated rape, we must deter mine whether the evidence in this case warranted instructions on this off ense. Such an instruction was necessary only if the

Defend ant’s ac tions in

penetrating the victim’s rectum with his finger “ can be

reasona bly construedas being

for the purpose

of sexual arousal or gratification.” We conclude that such a con struction, unde r all of the fact s of th

is ca se, isreas onab le. We acknowledge that

there is

no proof tha

t the firs t penetr

ation wasaccompa

nied by any words or conduct indicati v e of the Defendant’s purpose in doing w hat he did . Howeve

r, he subs equently

attempted to rape the victim by putt ing hi s peni s in h er face a nd dem andin g, repeat edly , that she

fellate him. When she refused, the De fe nd an t r ub be d h is pe ni s o n h er bo dy. He then repeated his digital penetration of the victim’s rectum.

Hadthe proof

established only the dig ital penetrations and included no evidence of conduct so blatantly indicative of see king sexual arousal or gratification as the repeated demand of fellatio followed by p enile

rubbing , it

would be difficult to find sufficient proof in the record to support an instruction on se xu al ba tt er y. The Defendant’s entire course of conduct toward the victim, however
, would have permitted the fact-finder to rea sonably con clude th at the digital penetrations were for the purpose of sexual arousal or gratification. A ccor dingly, it was er ror for the trial court to have failedto instruct the jury on the lesser- included offe nse of sexual battery on the two counts of aggravated ra

pe.

We turn now to

the question of whether the State has demonstrated that the trial court’s er ror
was harmless beyond a

reasonable doubt. The only proof of sexual penetra

tion in this case was the-19-

victim’s testimony. There was no corroborative proof of any sort. The victim did not seek medical attention after the attack. Thus, the Defendant’s convictions of rape rest solely upon the testimony of the victim . If t

he reco rd demons trates th at the juryhad questions about the credibility of the victi m’s testimony , then the re is a re asonable

possibility

that the ju

ry would hav e convic ted th e De fe nd an t o f s ex ua l b at te ry r at he r t ha n r ap e, ha d t he ju ry b ee n g iv en th at op po rt un it y.

In this case, as noted above, the only proof of the Defendant’s sexual penetration of the victim wa s h er te st im on y. Si gn if ic an tl y, the jury acquitted the D efendant of the original charg e of aggravated

rape. In this case, the

element distinguishing aggra vated rape from ra

pe, of w hich the jury convicted the Defendant, was bodily injury to the victim. The victim in this case testified that the Defend ant’s ac tions cau sed her p ain in her hips, chest and right side which lasted for a per iod of three months. She explained that this pain was causedby the Defenda nt getting on top of her, “cru sh[ing ]” her. The proof established that

the Defe ndant wa s much lar

ger tha n the vict im. This proof was suff icient to establish “bodily injury

” as defined in our Criminal Code. See Tenn. Code Ann. § 39-11-106(a)(2). Nevertheless, the jury did not convict the Defendant of the agg ravated rapes withwhich he was charged, which included the eleme ntof bodily

injury . One expla

nation fo r this is that the jury simply did not fin d credib le the vic tim’s testimony on this ele

ment.

Given the jury’s appa

rent rejection of at lea st some of the victim’s testimony, we ca nnot conclude beyond a re asonable doubt that the jury would not have c onvicted the Defendant of sexual battery rather than rape had it been prese nted with that option. Accordingly , the tri al court committed reversible error in failing to instruct the jury on sexual battery

as a less er-inc luded off

ense of aggravated r

ape, and the Defendant must therefore be retried on the two charges of rape.

The Staterefers us to the decision in State v. Michael Elvis Green , No. W2001-00455-CCAR3-CD, 2002 WL 1482680 (Tenn. Crim. App., Jackson, Mar. 8, 2002), appeal denied (Tenn. 2002), in which a panel of this Court found that the trial court’s failure to instruct the juryon the lesserincluded offense of sexual battery where the defendant was char ged with rape, was harmless bey ond

a reasonable doubt. In that ca se, howe ver, the defenda nt’s theo ry of defe nse was th at the vic tim consentedto the sexu al penetration, not that he was not the perpetrator. Moreove r, there was medical and DNA proof corroborating the victim’s testimony that she had been sexually penetrated. Thus, in the Green

case, the jury

was not relying

solely on the vict im’s testim ony in order to determin e whether the defendant had committed the crime cha rged. For that reason, we fi nd th e Greencase to be distinguishable from the instant case, and ther efore inapposite.

We als o agree with the Defenda nt that an assault by intentionally or knowingly c ausing physical contact with anoth

er which a reaso nable pe

rson woul d rega

rd as extre

mely offensi v e o r provocative, see Tenn. Code Ann. § 39-13-101(a)(3), is a lesser-included off ense of rape. See State

v. Haskel D. Finch , No. M2001-00340-CCA-R3-CD, 2002 WL 1204931, at *15 (Tenn. Crim. App., Nashville, June 5, 2002), appeal denied(Tenn. 2002). Accord ingly , on retr

ial, the tr ial cour t should issue this i nstructio n if the evidence warran ts it.-20-

We turn now to the charge of robbery . A robbery is defined as “the intentional or knowing theft of property f

rom the person of another by violence or putting the person in fear.” Te nn. Code Ann. § 39-13-401(a). Obviously , because robbery is define d in terms o f theft, t he crime of theft i s
a lesser-included offense of robb ery under part (a) of the Burns calculus. See also Bowles , 52 S.W.3d at 80. Because the evidence proving a robbery necessarily

proves a theft, it is error for a trial court not to instr

uct on the

lesser- included

offense of theft w

hen the e vidence adduce d at trial

is sufficient to support a conviction of robbery

. See id. That was the case here. Acc ordingly, the tr ial court erred when it did not instruct the jury on the les ser-inc luded off ense of t heft. See also Allen
, 69 S.W.3d at 188 (noting that, “[a]s a general rule, evidence suf ficient to warrant an instruction on the greater offense a

lso will support an instruction on a lesser offense under part (a) of the Burns test. In proving the greater of

fense the State necessarily has proven the lesser offense because all of the statutory elements of the le sser offense are included in the g reater.”)

In Bowles , our supreme court considered a similar situation in which the jury convicted the defendant of robbery , but had not been given a n instruc tion on the

lesser- included

offense of theft. The evidence was sufficient to support the robbery c onviction. Nevertheless, the court found that the trial court committed reversible error when it failed to g ive the instructi on on thef

t. In so fin ding, the court explained:

Theft is committed if, “with int ent to d eprive the owner of property , the person knowingly obtains or e xercises control over the

propert y without the owner’s effectiveconsent.” Tenn.Code Ann. § 39-14-103 (1997). Ro bb er y is “the intentio nal or knowing theft of property from the person of another by violence or putting the pers on infear.” Tenn.Code Ann. § 39-13-401(a) (1997). Thus, it is the

use of “violence” or “fear” that elevates a the ft to robbery. Violenc e is defined as “physica l force u nlawfully exercised so a s to injure, damage or abuse.” Fitz
, 19 S.W.3d at 217. “T

he fear constituti ng an ele ment of [robbery] is fear of present p ersonal p eril from violence offered or impending .” Britt v. St ate, 26 Tenn. (7 Hu m.) 45 (1846). It must be a fear of “bodily dang er or impending peril to the person,” id
., which intimidates a nd promote s submission

to th e t he ft of

th e p ro pe rt y. Either the existenc e o f “ vi ol en ce ” o r “ fe ar ” w il l h ei gh te n t he of fe ns e t o a ro bb er y. James v. Sta

te , 215 Tenn. 221, 385 S.W.2d 86, 88 (1964). Based on the testimony describing the v iolent acts which occurred in [the victim’s] presence, including the admission of [the defendant] himself that he grabbed [another victim] and threw her to the floor, we conclude that the evidence

was sufficient to support [the defen d ant’s] conviction for robbery . In proving

ro bb er y, however , the State also proved theft, for all of the elements of theft are included within the

elementsof robbe

ry . Thus, evidence e

xisted whic h would support an instru ction on th

e lesser -include d offens e of theft. As established above, it is not necessary

that [the defendant] demonstrate a rational basis for acquittal on the ro bb er y charge before thef t could be submitted to the jury as a lesser -included offense; he merely must demonstra te that evidence also exists which rational minds could accept as to the offense of theft. B ecause all of the elements of th eft are-21-

sup ported by t

he evide nce, it wa s error

for the tr

ial cour t not to instr

uct the ju r y regarding that offe nse. More over, wh

ile it is certa inly possible that the ju

ry would have convicted [the defend ant] of robbery e

ven if it had been given an instruction concerning theft, we cannot say that the State has demonstrated bey ond a reaso nable doubtthat the result would not have been different had a theft instruction been given.

52 S.W.3d at 80.

Under our supreme court’s reasoning in Bowles , we believe that wemust hold that the trial court in this cas e likewis e commi tted rev ersi ble error in failing to instruct the juryon the lesserincluded offense of theft with respect to the robbery c harge. The only

proof distinguishing robbery from theft in th is case was the victim’s testimony that the D efenda

nt force d her onto

her bed, forcibly removedher jewelry , and that his actions while in her house made her fear that hewas going to “put [her] to sleep. ” It i s, of cour se, possib le that the jurors ha

d question s concer

nin g the vic ti m’s credibi lity

on these points. As discussed above, the jury a cquitted the Defendant of the charg es of aggravated

rape, wh ic h r eq ui re d a fi nd in g o f b od il y in ju ry. If the jury

rejected the victim’s testimony about her injuries, then thereis also a reasonable possibility that it would have r ejected other portions of her te stimony , as well. Accordingly , we cannot conclude that the trial court’s error isharmless bey ond a rea sonable

doubt. Therefore, we conclude that the trial c ourt committed reversible error in failing to instruc t the jury

on theft a s a lesse

r-includ ed offe nse of ro bbery , and the D efenda

nt must therefore be given a ne

w trial on the charge of robber y.

We take this o

pportunit y to express our concern for the special difficulties that a re trial will impose upon the victim in thiscase. A second tr ial is frustrating for every one involved. We note, however, that the victim in this case, already at an advanced

age at the time of the first trial, did not testify at the sentencing hearing because, in the prosecutor’s words, “she just can’t take any more.” Neverth eless, our law isnow clea

r that a criminal defendant has a constitutional right to have the jury charged on all les ser-in cluded offenses. See State v. El y , 48 S.W.3d 710, 726-27 (Tenn. 2001). This Court is charged with upholding the constitutional rights of ever y criminal defe

n dant, even thou gh doing so will cause additional difficulties for the v i ctims and t heir fa milies. Thi s case illustrate s, to a painful degree, the unfortunate consequences that acc rue upon a trial court’s failure to charge all lesser-included offenses required unde r the law.

SENTENCING In his final issue, the Defendant contends that the trial court erred in its application of two enhancement

factor s, there

by i mposing t

erms for his felony

convicti ons that a

re exces sive. He

also argues that the trial court erre d in ordering some of his sentences to run consecutively

.
When an accused challengesthe length, range, or manne r of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the tri al court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption i s “conditioned u pon the affirmative showing in the record that the tria l court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby
, 823 S.W.2d 166, 169 (Tenn.1 See Tenn. Cod e Ann. § 39-14-403 (b).

2 See id. § 39-13-401 (b).

3 See id. § 39-13-503 (b).

4 See id. §§ 39-13-50 3(b), 39-12-101, 39-12 -107(a).

5 The De fenda nt was a lso co nvicted of misd eme ano r theft and sentenc ed to eleven mon ths, twenty-nin e days for that of

fense, a sentence about which the Defendant does not complain.

-22- 1991). The burden is upon the ap pealing party to demonstrate tha t the sentence is improper. See Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments; see also Ashby , 823 S.W.2d at 169.

When conducting a de novo review o f a sente nce, thisCourt must

consider: (a) the evidence, if any , recei ved at the

trial and sentenc ing hea

ring; ( b) the pr esentence repo

rt; (c) the principles of sentencing and arg

uments as to sentencing al ternativ es; (d) th

e nat ure and characteristics of the criminal conduct involved; (e) any statutory mitigating

or enhancement factors; (f) any state ment made by the defe

ndant regarding sentenc ing; and (g) the potential or lack of p otential for rehabilitation or treatment. SeeTenn. Code Ann. §§ 40-35-1 02, -103, -210; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); Sta te v. Thom as , 755 S.W.2d 8 38, 844 (T enn. Crim. App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consider ation a nd proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the sentence

even if we would have preferred a different result. See State v. Pike , 978 S.W.2d 904, 926- 27 (Tenn. 19 98); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The Defendant was sentenced as a Rang e I offen der. Th e Defendant was convicted of aggravated

bu rg la ry, a C la ss C f el on y; 1 ro bb er y, a Cl as s C fe lo ny; 2 two counts of rape , a C lass B fe lo ny; 3 attempted rape, a C la ss C f el on y; 4 and aggravated kidnapping , a Class B felony

. See Tenn. Code Ann. § 39-13-3 04(b)(1 ). The Ra nge I sentenc e for Cla ss B felo nies is eight to twelve y ears. See id. § 40-3 5-112 (a)(2) . The R ange I sen tence f or Class C felonies is three to six years. See id. § 40-35-112(a)(3). The presumptive sentenc e for ea

ch of the se felon

ies is the minimum in the range, increased by applicable e

nhancement factors and decreased by applicable mitigating factors. See id. § 40-35-210(c), (e). The trial court sente nced the Defendant to five y ears for the agg

ravated burglary ; five year s for the robbery ; twelve yea rs for one of the rapes; ten years for the other rape; five years for th e atte mpted rape; a nd twe lve years f or the aggravat ed kid nappi ng.

In determin

ing the t erms to imp ose for e ach of th ese fel o ny convi ctions, 5 the trial court applied f our enha ncement factor s:-23-

(a) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (b) A victim of the offense was particularly vulnerable because of ag e or physica l or mental disability . . .; (c) the defe

ndant ha s a previous history of unwilling ness to comply with the cond ition s of a sente nce i nvolving r

elea se in t he co mmuni ty ; [and ] (d) The crime[s] w[ere] com m itted under circumstances under which the potential for bodil y in jury to a victim

was gr eat.

Tenn. Code Ann. § 40-35-114(2), (5), (9), (17) (Supp. 2002). The trial court placed particular weig ht on the fir st and las t of these factor s.

The Defend ant agues that the tr ial cour t erred when it en

hanced his sente nces on th

e basis that the victim

was particularly

vulnerable. He points out that, while the victim was eighty- two at the time of the offenses, “there is no sugg estion in the record that she suffered from any

physical or mental disability.” The

Def endant relies on State v. Poo le , 945 S.W.2d 9 3, 98 (Te nn. 1997) , in which our supreme court held that “unless the State produces evidenc e of physica l or mental limitations at the time of the offense, along with proof of the victim’s age, it cannot be presumed that the victim

was particu larly

vulnerable based solely

on her age.”

Our supreme court’s decision in Poolealso instr

ucts us tha

t whether a victim is “particularly vulnerable” for purp oses of the applic ation of th is enhanc ement fa

ctor is “‘ a factu al iss ue to be resolvedby the trier of

fact on a case by

case basis.’” Id. at 96 ( quot ing State v. Adams , 864 S.W.2d 31, 35 (Tenn . 1993)). The Sta te m ust proff

er proof in addition

to the vic tim’s ag e to esta blish particular vulnerability, but that proof “‘ need not be extensive.’” Id. at 97. Furthermore, the trial court may conside

r the natur al vulner abilities attenda

nt to the extreme ends of the aging spectrum by giving additional weight

to the age of the victim where the victim is extremely young or old. See id. “Use of the ‘particularly vulnerable’ enhancement factor is appropriate . . . if

the facts show that the vulnerabilities of the victim[] . . . had some b earing on, or some logical connection to, ‘an inability to resist the crime, summon hel p, or test ify at a later date.’” State v. L

ewis , 44 S.W.3d 501, 505 (Tenn. 2001) (quot ing Poole , 945 S.W.2d at 96).

In this case, the trial

court foundthat the victim “is not only eighty -two year s old but lived alone. And I think

that pre sented he

r, in this pa

rticular case, in a situatio n where

she was p articula

rly vulnera ble becaus e of her age and h er liv ing cir cumst ances. ” Alth ough not noted by the judge, the Stateintroduc ed proof

at trial th at the vic tim stood no m ore than five fe et, two inc

hes t all and weighed no more than one hundred pounds.

We agree with the D efenda nt that the

State did n ot put on suf

ficient p roof in th is case to establish that the victim was “particularly vulnerable because of ag e or physica l or mental disability.” Alth ough the victim was of an adva nced age, she testified that, prior to the cr imes, she bowled

re gu la rl y. At the time of the trial, she was going out dancing twice a week. The trial court noted that “she’s, in some respects -- I don’ t know if scrappy’ s the right word, but I think she could take care6 Th e trial co urt app lied the D efend ant’s car e of his two childre n as a m itigating facto r.

-24- of herself , under n ormal cir

cumstanc es, that might be her bowling or other activities that she enjoyed prior to this particular episode.” Obviously, the victim was at least “spry .” Al though we ar e outraged that the Defendant

would victimize an elderly citizen who lived by herself, the trial court’s reliance on the victim’s solo lifestyle was not an appr opriate factor for determining that she w as “particularly

vulnerable” as that term is used in the statute. In short, we conclude that the trial court erred in apply

ing this enhancement factor under the f acts and circumstances adduced in this case.

The Defendant next contends that the trial court erred in apply ing as an enhancement

factor that the crime s were “ committed under ci rcumstan ces unde r which th e potenti al for bo dily

injury to a victim was great.” We agree, insofar as this enhanc ement factor was applied to the Defenda nt’s sentence for the aggrava

ted burglary

conviction. This Court has previously noted that “[t]he Genera l Assembly has seen fit to enhance the punishment for ag gravated burglary and . . . [i]n doing so, the General Assembly

recognized that the potential for bodily injury to the

victim is grea t when [this ] crim e[] [is] committe d. Thus, a trial court should not apply this factor absent extraordinary circumstances.” State v. Smith , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). We do not think such extraordinary c ircumstances are present here.

We also agree with the Defenda nt that the trial court erred in apply ing this enhancement factor to his sentences on the robbery , rapes and attempted rape. Our supreme court has indicated that we must loo

k to the acts actua

lly c ommitted du

ring the course o f the cr

imin al conduc t which constitutes the offenses in order to determine whether the re was a great potential for bo di ly i nj ur y. See State v. Carico , 968 S.W.2d 280, 286 (Tenn. 1998). Here, the rapes consisted of the Defendant climbing on top of the prostrate victim and inserting his fing er into he

r rectum. These a

ctions do n ot, in and of t

hemselve s, create a grea

t potential for

bodily injury . Similarly, the Defenda nt’s actions in placing his penis in the victim’s face did not create a g reat potential for bodily injury . Nor did the Defendant’s actions in removing the victim’s jewelry from her hands and neck. Accordingly , the trial court erred

in applying this enhanc ement factor to the Defendant’s convictions for agg ravated bu rg la ry, ra pe , a tt em pt ed ra pe , a nd ro bb er y.

We find that the trial court did pro pe rl y ap pl y this enhancement factor to the Defendant’s sentence for aggravate d kidnapping. The Defendant covered the victim’s hea d, tied her hands and feet, and left

her help less in he

r bedroo m. She cou ld easily have fallen off the bed and broken bones in her attempt to free herself from her r estraints. Accordingly , the Defendant’s actions in committing this offense created a gr

eat potential for bodily injury to the victim.

In sum, we have determined that the trial court erred in apply ing two enhancement factors to at least some of the Defendant’s sentences. N evertheless, the Defendant is entitled to no relief on the basis of

these errors. The trial court properly applied two other enhancement factors to ea ch of the Defendant’s sentences, and eac h of the s entences reflects an appropriate term based on the application of two enhancement factors and only one mitigating factor of “minimal” weight

. 6 Accord ingly , we lea

ve intac t the leng

th of the te

rms of ea ch of the Defend ant’s se

ntences

.-25-

The Defendan t also challenges the trial court’s determination that par tial consecutive sentences were appropriate. The trial court orde red that the Defendant’s sentences for th e r ob be ry, the at te mp te d r ap e, an d t he ag gr av at ed ki dn ap pi ng be se rv ed co ns ec ut iv el y to each o ther and

consecu tively to the remaining sentences, for an effec tive sentence of thirty -four ye ars. The trial court ordere d these c onsecuti ve sente nces upo n finding

that the D efenda

nt is an offe

nder who se record of criminal activity is extensive, seeTenn. Code Ann. § 40-35-115(b)(2), and upon finding him to be a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. See id. § 40-35- 115(b)(4).

The Defendant argues that his rec ord of criminal activity is not “extensiv e” beca

use his prior convictions are all misdemeanors. While we agree that all of the Defe ndant’s prior convictions are misdemea

nors, the trial court

noted that, in the presentence report, the Defendant stated that he had used crack cocaine every

other day f

or the ten ye ar peri od preceding his a rrest on the instan t charg es. The st atu te does not restrict itself to prior convictions: it addresses the defendant’s record of criminal activity . The Defendant’s own acknowledg ed course o f criminal conduct is, indeed, extensive. Moreove

r, the actual leng

th of the D efenda

nt’s over all sente nce is just ly d

eserve d in relation t o the se riousness of the offenses and no grea ter than that deserved for the offense s committed. See Tenn. Code Ann. §§ 40-35-102(1), 103(2); see also State v. Lane , 3 S.W.3d 456, 460 (Tenn. 1999). Th

e trial c ourt did

not err in orderin g parti al conse cutive se ntenceson this bas is.

The Defend ant also c

halleng es th e trial co urt’s determination that he is a “dangerous offender.” We first note that consecutive sentenc es m ay proper ly be imposed on the basis of any single one of the seven grounds provided for in the statute. See Tenn. Code Ann. § 40-35-115(b). Thus, even if the trial court erred in finding the D efendant to be a dangero us offender, such error would not entitle the Defendant

to relief. However, we find that the record supports the trial court’s determination that the Defendant is a dangerous off ender. The Def

endant vi olently

forced his way into the elderly victim’s home, whe re she lived alone, forced

her into her bedroom

and onto her bed, kept her fac e cover

ed, and e ventuall y tied her up. He went on a two hour rampage throug h her house, viole ntl y r

emoved he

r jewelr y f rom her b ody , and sexua

lly a ssaulted

her on thr

ee sepa rate occasions. He left the victim tied and restrained when he finally fled her home. The Defendant’s repreh ensible and odious conduct gives this Court no pause in agreeing with the trial court that the Defendant

is a dangerous offender whose behavior indicates little or no regard for human life and

no hesitation abou t committi ng a crime in which the risk to human life is high. Moreove r, the D efendant’s viol ent at tack u pon t his v icti m, who m he di d not know, and hi s lon g h istory of dru g abuse support the trial c ourt’s findings th at an exte nded sen tence is necessa

ry to protec t the public agains tfurther

criminal conduct b y th

is Defendant. See State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1 995). The record further supports the trial cour t’s determination that the consecu tiv e sentences reasona

bly relate to the severity

of the offenses committed. See id. The trial court did not err in imp osing pa

rtial con secutive

sentenc es on this b asis.-26-

In sum, the Defendant is entitled to no relief on the trial court’s sentencing decisions.

CONCLUSION The Defend ant’s co nvictions for robb ery and rape are reversed a

nd reman ded for a

new tria l. The convictions for aggrava ted burglary , attempted rape, aggravated kidnapping , and misdemeanor theft, and the effective twenty -two year sentence for these convictions are af firmed.

___________________________________ DAVID H. WEL

LES, JUDGE