# FILED
March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9712-CR- 0 054 3 ) vs. ) Knox County ) DUSTIN DWAY

NE DAVIS, ) Hon. Ray L. Jenkins, J udge ) Appellee. ) (Especia lly Aggravate d Robbery, ) Aggravated Rape - 2 counts, Theft, Especially Aggr

avated Kidnapping)
FOR THE APPE LLANT: FOR THE APPELLEE: GREGORY P. ISA

ACS (on appeal) JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter P.O. Box 2448 Knoxville, TN 37901 TODD R. KELLEY Assistant Attorney Gener al SUSAN E. SHIPLEY (at trial) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 602 S. Gay St., Ste. 501 Knoxville, TN 37902 RANDALL E. NICHOLS District Attorney General ROBERT JOLLEY Asst. District Attor

ney General City-County Bldg. Knoxville, TN 37902 OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE1 The names of the young women the defendant an d his companion

victimized are of no consequence to the issue presented in this appeal. Th us, we identify them only by their initials. 2 OPINION The defend ant, Dust in Dwayne Da vis, appea ls from h is convi cti ons of especiallyaggravated robbery, theft, especially agg ravated kidnapping and two counts of aggravated rape. He received these convi ctions in the Knox County Criminal Court following a trial before a jury of his peers. He is presently serv ing an effect ive 100-year s entence consecut ively to a se ntence f or other c riminal a ctivity. In this appeal, he raises several challenges to his convictions: 1. Whether the trial judge erred in presiding at trial af ter in itially recusi ng himself. 2. Whethe rt he evidence suf ficiently suppo rts the jury's find ings of guilt beyond a reasonable doubt of the five convictions. 3. Whether he was denied a fair tria l by the trialcourt's admission of evidence of the vi ctim's pr egnancy and subsequent abor tion. 4. Whether the trial court properl y denied his motion for

judgment of acquittal on the especial ly aggravated k idnapping count and two of the three aggravated kidnapping counts. 5. Whether the trial c ourt prop erly sente nced him to an eff ective 100 year sentence. Finding no error

in the pro ceedings below, we affirm the judgment of the tri al court.

In the late evening hours of August 7, 1991 or early morning hours of August 8, 1991, the defen dant and another man identifi ed onl y as "Baby" approached 20-year-old S.W . and her 16- year-old female companio n, M.T, 1 outside the Carousel Club in Knox ville. The men asked if they could buy the women a beer, and the women accepted. The group w ent to the men's vehicle, w here the defendant and S.W. got into the frontseat and their companions got into the back seat.

The defendant began driving to ward Magnolia Av

enue, an d S .W. inquired why the y were n ot going to Cumberland Av enue. The defendant replied3

that beer was cheaper on M agnolia.

After the beer

was purchased, S.W. told the defendant that she and M.T. needed to go back to the Carousel. The defendant said okay but drove i n the opposite direction. He said the y were going to his cousin 's house. They drove through a housingproject area, andthe defendant said his cousin w as not home.

S. W. again told the d efendant s he was ready to go ba ck to the Carousel. She ask

ed the de

fe ndant wh ere they were goi ng, and he replied that people had been killed and raped i n the area but she did not need to worry about that.

The defendant pulled into a dead-end road near a ball park. The defendant asked to see S.W.'s jewelry and i nquired about its au thentici ty . S .W. again asked to go back to the Carousel and said she and M.T. would walk back if
necessa ry. The defend ant sa id, "You won't get any where" and took a lead pipe from under the car seat. He thre a tened to hit S .W. with the pipe . S.W. and M.T. attempted to escape the car, but they were unsuc

cessful. The d efendant hit M .T. on the leg with the pipe

.

The defe ndant pulled S.W. by her long hair to the hood of the car , where he hit her in the face with his fist until s he surrendered her diamond ri ng. The defendant then pulled S.W. up by her hair and then forcibly l ed her to the ball field. At the top ofa flight of steps, he demandedher watch. She surrend ered it, and he pushed her toward the steps.

The defendant demanded that S.W. perform oral sex on him, and she told him she had a venereal dise ase in her throat to try

to get out of th e s ituation.4

The defen dant forced S.W. to remove her pants, and he forced her down and penetrated her anally . He told her if she moved he w ould strike her with the lead pipe.

The defendant became angry when S. W. would not perfor m a s he demanded. He yanked her up by her hair and hi t her on the leg with the pipe. A car drove by and frightened the defendant, and he made S.W. pick up her clothes and walk over to the dugout. Insi de du go ut , t he defe nd an t f or

ce d h im se lf

on S. W. vaginally.

While these events were tr anspiring, the defendant's compani on demanded M.T.'s jewelry. He told her that if she did not turn it over, the defendant would take it anyway, and she would rather hav e him tak e it than the defendant. The defendant

's compa nion tol d M.T. to take off her clothes. When she refused, he told her that the defendant would make her do it. However, he t ook no steps to force her to comply with his deman d . M.T. eventually convinced the defendant's
co mp an io n to y

el l to c he ck

on S. W.

The defendant's sexual assault of S.W. ceased when M.T. began yelling from the area above. The defendant's compani on appeared, a nd the defendant took more jewelry from S.W. after hitting her several times. W hile this was going on, M.T. flagged down a car. The defendant and hi s companion fled.

I The defendant complains that the trial court erred by presiding at trial afterinitially recusi ng himself. On March 30, 1993, Judge Ray L. Jenk ins entered
an order r ecusing himself and the other Kno x County Criminal

Court judges "because the victi m of the alleged crimes is an employee of the Knox County5

Criminal Clerk's Office." Judge Bi ll Swann, sitting by interchange, presided until April 16, 1996, on which date the court minutes refle c t Judge Swann ordered the cases transferred to Judge Jenkins for tria l, "[t]he reason for . . . [the transfer] . . . no longer existing . . . ." The record reflects no objection whatsoever prior to trial, at trial, or in the motion for new trial.

The Code ofJudicial Conduct provi des that

"[a] jud ge shal l disq ualify himself or herself in a proceeding in whic h the judge's impartiali

ty might reasonably be questioned . . . ." Tenn. R. Sup. Ct. 10, Canon 3(E)(1). When a judge is disqualified under the Code, he "may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to con sid er, out of the presence of the ju dge, wh ether to wa ive disqualification ." Tenn. R. Sup. Ct. 10, Canon 3(F). If the basis for the disquali fication is any reason

other than personal bias or prejudice concerning a party and "the parties and lawyers agree,without the partici pation of the judge, . . . that the judge should not be disqualified, the judg e mayparticipateif he is willing. " Tenn. R. Sup. Ct. 10, Canon 3(F). Such agreement shall be reflected in the record. Tenn. R. Sup. Ct. 10, Canon 3 (F).

The law relating to r

ecusal further provides that failure to raise an iss ue rega rding the judge's impar tiality in a timely

manner may result in w aiver. See, e.g. , Thompson v. State , 958 S.W.2d 156, 17 1-72 (Tenn. Crim. App. 1997). For o therwise the parties w ould be allowed to exper iment with the court by tacit acquiescenc e, and raise the objection when the result of the trial proved to be unfav orable.

. . . And, generally, if the facts ar e known to the party recusing, he is bound to make his objection before is sue joined, and before the trial is commenced, otherwise he will b e deemed to have waived the objectio n . . . . If the objection be raised of record, and the court undertake to proceeding no twithstanding, the judgment might be held void under these principles .

. . . But if no objection be made, and the court is permitted to go to a trial of the case on the merit s, the judgmentis clearly not v oid on its face, and something more than the mere existence of the fact on whi ch the incompetency rests should be6 required to authorize a resort to another tribunal. Thompson , 958 S.W.2d at 172 (quoting Holmes v. Eason , 76 Tenn. 754, 757, 761 (1882)).

This situation falls squarely within the waiver rule recited i n Thompson

. The defendant did not object to Judge Jenkins' service in the court below. Clearly, he knew of the pre vious rec usal and the basis therefor. H aving now receiv ed an unfavorable verdict and sentence, he s hould not now be allowed to mount a belated attackto Judge Jenkins' impartia lity in the absence of "something more than the
mere existence of the fact on whi ch the incompetency rests . . . ." Thompson , 958 S.W.2d at 172.

Moreover, this issue lacks merit. Judge Jenkins recused himself and his colleagues because "the v ictim" was an employee i n the Criminal Court Clerk's office. Apparently, "the vic tim" left this employment, and Judge Jenkins resumed his duties with respect t o the defendant's cases. Bec ause the r eason for recusal
no longer existed w

hen Judge Swann turned the c ases back over

to Judge Jenkins, the situation did not

fall squarely within the provisions of the Code r equiring formal consideration and memorializationof consentfor the judge to hear the case. See Tenn. R. Sup. Ct. 10, Canon 3(F) . Thu s, Judges Jenkins and Swann cannot be faulted for failing to comply w ith those provisions.

II Next, the defendant contends that the evidence is insuf ficient to support the jury's findings of guilt beyond a reasonable doubt because the testimony of S.W. and M.T. was inconsistent and rais ed qu estions about their vera city and because S.W. was unable to identify the defendant at tr ial. In ev aluating the7

sufficiency of the evidence, it is rel evant that S.W. was the victim of the especially aggravatedrobbery, t wo counts o f aggravat ed rape, and espe cially a g gravated kidnapping. M.T. was the victim of the theft.

When an accus ed cha llenges the sufficiency of the evidence, an appellate court’s standard of review is whether, after considering the evi dence in the light most favorable to

the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a re asonable d oubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 ( 1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e). This rule applies

to findings of guilt based upon direct evidence, circumstanti al evidence, or a combination of direct and circumstantial evidenc

e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determin ing the su fficie ncy of t he evidence, this court s hould not reweigh or reevalu ate the e vi dence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses, the weight and val ue of the evidenc e, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305, 28 6 S .W. 2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

In the case at bar, M.T. testified that an earringwhich the police took from the defendant wasone of the earrings that “Baby ” had stolen from her and that8

the defendant had a gun, as well as a pipe. Sh e admi tted she may not ha ve ment ioned this to the police officers. S.W. mentioned nothing about a gun in he r testimo ny. The trial in this case t ook place over six years after the offenses occurred. The defense highlighte d the apparent inconsistency r egarding the defendant's use of a gun to accomplish his crimes, yet the jury nevertheless chose to accredit the state's proof that the crimes occurred. It is not our province to revisit the jury's factual determinations.

Furthermore, the record reflects that S.W.' s ina bility to identify the defendant at trial was

inconsequential in light of overwhelmi ng proof of his identity
as the pe rpetrato r of the crime. The state presented evidence that S.W. had chosen t he defendant from a photographic lineup s ix years earlier, when h e r memory was fresh. DNA evidence preser ved in the rape kit and

from aborted fetal tissue co ll ec

te d f ro m S .W. established with a v ery high degree

of certainty that the defendant had en gaged in sexual rel ations with the victim.

The evid ence sufficiently support s the defendant's convictions beyond a reasonable doubt.

III

Th e defendant claims he was denied a fair trial by the tri al court' s admission of evidence of S.W.'s pregnancy and subsequent abortion. This evidence was admitted as proof of the defendant's identity v ia the DNA tests done
on the aborted fetal material, w hich estab lished the defendant's paternity of the fe tus with 99.89 percent cert ainty. The defendant's specific c omplaint is that the evidence was cumulati ve of other DNA evidence and highly prejudicial.
"[Relevant] evidence may be excluded if its probative value is2 The defendant was not convicted o f aggravated rape pursuant to Count 6. The indictment alleged alt ernatively agg ravated vaginal r ape while armed with a weapon (Count 4) and agg ravated vaginal r ape causing bodily inj ury (Count 6). The jury was instr

ucted it could find the defendant guil ty of one, but not both counts. They returned a v erdict of guilt on Count 4.

9 substantially outweighed by the dang er of unfair prejudice, confusion of the issues,
or mi sleadi ng the jury, or by considerations of undue delay,waste of time, or needless presentation of cumulative evidence." Tenn.R. Evid. 403. We re view a trial court's decision to

admit or exclude evi dence only for abuse of discreti on. See, e.g. , State v. Bigbee , 885 S.W.2d 797, 80 7 (Tenn. 1994).

In the present

case, the evidence was relevan t for two reasons. First,
as urged by the prosec utor at the hea ring o n t he motion in limine to excl ude the evidence, it was relevant t o es tablish the defendant's identity . Second, the evidence was relevant to establish that S.W. suff ered bodily in ju ry from an aggravatedrape as alleged in Count 6 of the indictment. 2 Cf., e.g. , State v. Smith , 910 S.W.2d 457, 461 (Tenn

. C rim. App. 1995) (under sentencing statute prescribi ng mitigating and enhancement factors, unwa nted pregnancy constitutes bodily injury).

Viewing the evidence of S.W.'s pregnancy and abortio n in light of its dual rele vancy, we find no abuse of discretion in the tr ial court's ruling

allowing its admission. Although it admittedly carried some component of prejudic e to the defendant, any evide n ce probative of a defendant's gui lt is prejudicial. A ny prejudice which resulted from the admi ssion of this evidence was not unfair. See State v. Gentry , 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993). Further, the evidence
was not needlessly cumulative. S.W. was unable to identif y the defendant at trial. Also, the state was

entitled to prove the defendant s uffered bodily injury as alleged in Count 6.10 Because the evidence was appro priately admitted under the Rules of Evidence, there is no basis for the defendant's claim of constitutional error.

IV In his next issue, the defendant claims the trial court erred in denying his motion for judgment of acquittal on the especially agg ravated kidnapping count and two of the three agg ravat ed kidnapping counts. Specifically, he claims the confinement necessary for the especi all y aggravated ki dnapping conviction w as onlyincidental to accomplishment of the aggravated rape conv ictions. Therefore, under State v. Anthony , 817 S.W.2d 299 ( Tenn. 1991), separate convictions are impermissible under the due proce ss provisions of articl e I, section 8 of the Tennessee Constitution.

In Anthony , the supreme court esta blished the guidelines for determining wheth era defendant may be convicted of ki dnapping and another felony based upon a single criminal episode. Anthony was a conso lidation of two cases, and in both, the defendant robbed a bu si ness establishment. Both defendants forcibly confined employees of the businesses they robbed by requiring them to remain in the same location or to move to a different location within the business establishments. Both defend an ts were convicted o f robbery and kidnapping offenses.

In determining whether separate c onvictions were pr oper, the suprem e court looked to "whether the confinement, movemen t, or detentio n is esse ntially incidental to the accompanyingfelony and is not, therefore, s ufficient to support a
se parate conviction for kidnapping , or whether it is s ignificant enough, in a nd o f itself, to warrant independent pro secution an d is, the refore, sufficient to support such a conviction." Anthony , 817 S.W.2d at 306.11 More recently, in State v. Dixon , 957 S.W.2d 532, 53 4 (Tenn. 1997), the supreme court cautioned that Anthony should not be read "to provi de the rapist
a free kidnapping merely bec ause he also committed rape." In det ermining whether separ ate convictions may stand, the court must first consider "whether th e movementor confinement was beyond that necessary t o consummate the [sexual offense]." Dixon , 957 S.W.2d at 535. In th is regard, "it is t he purpose o f the removal or

confinement and not the distance or dur ation thatsupplies a necessary element of aggravated kidnapping ." Dixon , 957 S.W.2d at 535. If the additional movementor confinement was beyond that necessary t o consummate the offense, the court must then inquire w hether that "additional movement o r confinement: (1) prevented the victim from summoning help; (2) l es sened the defendant's risk of detection; or (3) created a significant danger or

increased the victim's risk of harm." Dixon , 957 S.W.2d at 535.

As charged in the i ndictment, especially aggravated kidnapping is false imprisonment accomplished w ith a deadly weapon. See Tenn. Code Ann. § 39-13-305(a)(1) (1997). False imprisonment is the knowing remov

al or confinement of another "unlawfully so as to interfere substantially wi th the other's liberty ." Tenn. Code Ann. § 39-13-302(a) (1997).

The defendant emphasizes the fact that S.W. and M.T. vo luntari ly left the Carousel with the defendant an d his companion. He contends that hi s act of moving S.W. a short distance fro m the car t o the ball field was "sli ght, incidental and/or inconsequential," and therefore, separate convicti ons cannot stand.

We disagree that Anthon y ba rs separate convicti ons on the facts of this case. The defendant used threats and application of force to confine S.W. to the vehicle when she tried to exit. Thereafter, he removed her to a more remot e12

location away from the

other two individu als in the car, at least one of whom might interfere with his assault on S. W. S.W. testified that during the first rape, the defendant became scared when a car dr ove by, so the defendant forced S. W. to
move into the dugout. The defendant remained alert to for passing vehicles du ring the events which trans pired thereafter. From these facts , it is apparent that th e defendant's actions prevented th e victim from summoning help and lessened the defendant's risk of detection. See Dixon , 957 S.W.2d at 535.

Thus, the evi dence clearly demonstrates that the removal and confine men t were not incidental to the defendant's aggravated r apes of S.W.; rather, the defendant's actions were the proper basis for a separ ate convict ion of especiallyaggravated kidnappin g. Cf

. Dixon , 957 S .W.2d at 533 (separate convictions

of aggravatedkid napping, aggravated assault and attempted sexual battery where d efe ndant assaulted victim on s idewalk then dragge d her behind bushes in vacant lot and attempted sexual assault).

V Finally, the defendant alleges the trial court improperly sentenced him to an effective 100yea r sentence. For the felony convictions in this case, he received Range I sentences of 25 years for especially aggravated robbery, 25 years foreach of two aggravat ed rape convictions, and 25 years for especially

aggravated kidnapping. Each of these sentences was i mposed consecutively. He received 11 month s an d 29 days at 75 percent for the mi sdemeanor conviction of theft. The misdemeanor

sentence was imposed concur rently to the felony sent ences. T he defendant's specific complaints are, first, that the trial court inappropriately applied enh ancement factors in determining the l ength of his individual sentenc es, an d second, that the trial co urt impro perly orde red him to serve fou r of his f ive convictio ns co nsecutively, resul ting in an effective sentence which violates the13

Eighth Amendment.

In determining whether th e tr ial cour t has properly sentenced a n individual, this court engages in a de novo review of the record with a presumption that the trial court's deter minations were correct. Tenn. Code Ann. § 40- 35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencin g pr inciples and all relev ant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we must consider the evidence at sentencing, the presentence report, the sentencing pr inciples, the arguments of counsel, the statements of the defendant , the na ture and characteristics of the offense, any mitigating and enhanceme nt factors, and the defendant’s amenability

to rehabili

tation. Te nn. Cod e Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann. § 40-35-103( 5) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showing th at the sentence im posed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

In felony sentencing, the trial court has anaffirmative duty to state in the record, either orally or in w riti ng, which enhancement and mitigating factors it found and i ts findin gs of fact. Tenn. Code Ann. §§ 40-35-209( c) (1997); Tenn. Code Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). In contrast, the misdemeanor

sentencing statute only requires that the trial court consider the enhancementand mitigating factors w hen calculating the percentage of the sentence to b e serve d prior to "consideration for work release, furlough, trusty status

and related rehabilitativ e programs." Tenn. Code Ann. §§ 40- 35-302(d) (1997); Troutman , 979 S.W.2d at 274.

In imposing a felony sentence, the trial court must begi n with the3 Under the law applicable to the defendant, the presum ptive sentence is

the minimum within the rang e. See Tenn. Code Ann. § 40-35-210(c) ( 1990). In 1995, the Code was amended to provide that the presumpt ive sentence for a Class A felony is the midp oint within the range

. See Tenn. Code Ann. § 40-35- 210(c) (1997). The amendment applies to crimes committed on or after J uly 1, 1995. Acts 1995, Ch. 493, § 1. 14 presump tive minimum sentence. Tenn. Code Ann. § 40- 35-210(c) (1990) (amended 1995). 3 It may then increase the sent ence for any applicable enhancement factors and reduce it for any appl icable mi tigating factors. Tenn. Code Ann. § 40-35-210(d), (e) (1990) (amended 1998).
Although the trial court announced its consideration of the sentenc ing principles

and made factual fin dings re garding the applicati on of enhancement factors, it misapplied e nhancement factors and did not specify how the enhancement factors applied to the individual felony convictions. Thus, our review of the defendant's felony sen tences i s de novo without the presumption of correctness. See State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992) ("If the trial court applies inappropriate factors or othe rwise fails to follow the 1989 Sentencing Act, the presumption of correctness fails."); see also State v. Curtis Lee Majors , No. 01C01-9602-CR-00076, slip op. at 17-18 (Tenn. Crim. App., Nashvil le, July 30, 1997), perm. app. denied (Tenn. 1998).

The defendant before us was 21 years old when he committedthese crimes and 27 years old when he came before the cour t fo r sentencing. He dropped out of the ninth grade and has no GED. His ver ified work history

consists of six weeks of employment at Har dee's. He reported other empl oymentin the food service in dustry which could not be verified. The defendant blamed his lack o f stable employment on substance abuse, which bega n at age thirteen. Also, he has been in and out of prison all of his s hort a du lt life. He had been released fro m prison on parole status for eight days when he committed these off enses. His4 (1) The defendant had a previous hi story of criminal conv ictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;

. . . (4) A victim of the offense w as particularly v

ulnerable because of age or physical or mental disability . . . (5) The defendant treated or allow ed a victim to be treated w ith exceptional cruelty

during the commission of the offense;

. . . (7) The offense involved a v ictim and was committed to g ratify the defendant's desire for pleasure or excitement;

. . . (8) The defendant has a previous unwillingness to c omply with the conditio ns of a se ntence in volving rele ase in the communi ty;

. . . (11) The felony resulted in death or bodily injur

y or involved the threat of death or bodily inj ury to another person and the defendant has previously been c

onvicted of a felony that res ulted in death or bodily injury;

. . . (13) The felon

y was comm itted whil e on any of the following

forms of release status if such releas e is from a prior felony conv iction:

. . . (B) parole;

. . . Tenn. Code Ann. § 40-35-114(1), (2), (4), (5), (7), (8), (11), (13)(B) (1997). 15 criminal history at

the time of sentencing consist ed of convictions

for two counts of aggravatedrobbery, fir st degree burglary,concealing stolen proper ty, receiving stolen property, felony

escape, violation of the reg istration law and driving without a license. Additional char ges were pending for r

obbery and theft.
Length of Sentences In determ ining t he length of the individual sentences, the trial court applied enhancementfactors (1), (2), (4), (5), (7), (8), (11) and (13). 4 The defendant claims the trial court should not have applied factors (2) , (4), (5) and(7). Because
we are proceeding with out the pr esumption of correctness, w e will examine all

of the enhancement factors applied by th e trial court as wel l as any others supported by the evidence.5 The trial court accorded only slight weight to this factor.
6 We infer that the state concedes this factor should not be applied from its failure to argue in its br ief that the trial court's application of this factor w as correct. 16

The defendant does not contest that he has a pr evious history of criminal convictions or behav ior. See Tenn. Code Ann. § 40-35-114(1) ( 1997). The evidence of his prior convicti ons supports the application of this factor to each of his present convictions.

The evidence supports a find ing th e defendant was a leader in the commission of some of the offenses. See Tenn. Code Ann. § 40-35-114(2) (1997). By all accounts, he was

aggressive w

hile his unidentified companion w as quiet and passive. Th e d ef en da nt in ti mi da te d S .W. and M.T. through the application of force. This f actor clearly applies to the especially aggravated kidnapping and especiall y aggravatedrobbery convictions. It should not apply to the two aggra vated r ape convictions

because the defendant's compani on w as not an active participant in those crimes. Although its application to the theft conviction is arguable based upon the defendant's friend's statements that the defendant would make M.T. surrender her belongings, we decline to apply this factor to the theft conviction
The trial court incorrectly found that S.W. and M.T. were particularly vulnerable due to age. 5 See Tenn. Code Ann. § 40-35-114(4) (1 997). Although the
women were young, this factor may

be applied only where the state proves that the victims were "particularly vulnerable" due to age because they were unable to resist,
summon help or testify at a later date. State v. Kissinger , 922 S.W.2d 4 82 , 487 (Tenn. 1 996). In

the pres ent case , the sta

te offered no such

proof. 6

The trial court also erred in it s finding th at

th e d ef en da nt

tr ea te d S .W.17

and M.T. wit h exceptional cruelty

. See Tenn. Code Ann. § 40-35-114(5) (1997). This factor is g enerally app lied in cases of abuse or torture. See, e.g. , State v. Davis , 825 S.W.2d 109, 113 (Tenn. 1991); State v. Haynes , 720 S.W.2d 76, 80, 86 (Tenn. Crim. App. 1986). In effect, it requires a findi ng of cruelty above and beyond that inherently attendant to the crime itself. State v. Embry , 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). The cruelty employed by the defendant in this case was of a level inherent to the cr imes committed.

Wit h resp ect to the aggravated r ape conviction on count four, the personal injuries inflicted on the v ictim were particul arly great. See Tenn. Cod e Ann. § 40-35-114(

6) (1997). The state's p roof at trial established that S.W. became pregnant from the sexual assault. As a result, she underwent an abor tion. See Sta te v . Max Eugene Martin , No. 01C01-9609-CR-00414, slip op. at 6-7 (Tenn. Crim. App., Nashville, Apr. 29, 1998) (pregnancy and abortion), perm. app. denied (Tenn. 1998); cf

. State v. S mith , 910 S.W.2d 457, 461 (Tenn. Crim. App. 1995) (pregnancyand childbirth); State v. Jones , 889 S.W.2d 225, 231 (Tenn. Crim. App. 1994) (pregnancy and childbirth).

Th e proof also supports a finding that the defendant committed th e ag gr avated rapes and the especially aggravated kidnapping in order to gratify his desire for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(7) (1997). In this case, the defendant apparently obtained some leve l of orgasm, as he impregnated his victim. See Kissinger , 922 S.W.2d at 490-91 (whether an offender attains orgasm is a factor that may be considered in determining whether factor (7) applies). S.W. testified that the defendant became enraged when she would n ot fondle him during the first rape.The defendant also made a lewd comment to his companion about S.W.’s anatomy after the se cond rape. These facts support a
con clusi on the defendant committed the rapes to gr atify himself. Cf

. Manning v.18

State , 883 S.W.2d 635, 640 (Tenn. Crim. App. 1994) (defendant mad e explicit comments and fondled victim). Fur th er, the k idnapping was ongoing during the rapes. There is evidence the abduction of the women was a predesi gned plan to gratify the defendant' s sexual de sires. M. T. testified that when she refused to take her clothes off, the defendant's companiontold her thedefendant would make her do it.

The trial court found that t he defendant's sentence should be enhanced because he had a previous hi story of unwilling n ess to comply with the conditionsof a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(8) (1997). The cour t based its finding upon the fact th at the defendant
was on parole w

hen he comm itted these offenses. However, thi s factor applies where there is a previous history of unwilli ngness to comply wi th the conditions of release, not where the only ev idence is the commission of the present offense while
on some form of release. State v. Hayes , 899 S.W.2d 175, 185- 86 (Tenn. Cri m. App. 1995). Despite the defendant's history of criminal activity, the record does not demonstrate that he commit ted crimes while ser ving earlier non-inca rcerative sentences. Thus, this factor cannot be applied.

The state presented pro of a t the sentencing hearing that the defendant had a previous convi ction for a felony which resulted in bodily injury via the testimony of

Carol Ann Henderson, whom the defendant had been convicted of robbing while armed with a lead pipe. The fel ony convictions before the trial court all involved the threat of or actual bodily injury. Thus, each of the defendant's felony convictions

should be enhanced under factor (11). See Tenn. Code Ann. § 40-35- 114(11) (1997). The factor does not apply to the theft convic tion.

The defendant did not contest at the sentencing hearing that he was7 We have considered only those crimes listed in the state's Notice of

Intent to Seek Enhanced Punishment in determining the defendant's sentencing range classification. See Tenn. Code Ann. § 40-35-202(a) (1997). 19 on p arole when he committed these o ffenses. See Tenn. Code Ann. § 40-35- 114(13)(B) (1997). The enhancement fact or applies to each of his sentences.

The defendant does notchallenge the trial co urt's determinationthat
no mi tigati ng evi dence ex isted. Nevertheless,pursuant to our duty of de nov o review, we have considered each of the mitigati ng factors listed in Code section 40- 30-113, as well as the evidence of r ecord for any indication of non-statutory mitigating evidence. See Tenn . C ode Ann. § 40-35-113(13) (1997) . We find no mitigating evidence

.

To summarize, we find the foll owing enhancement factors applicable to the defendant's felony convictions:

Offense Enhancement Factors Especially Aggravated Robbery (1), (2), (11), (13) (B) Aggravated Rape - C

ount 3 (1), (7), (11), (13) (B) Aggravated Rape - C

ount 4 (1), (6), (7), (11) , (13)(B) Especially Aggr

avated Kidnapping (1), (2), (7), (11) , (13)(B) Theft (1), (13)(B) Especiallyaggrav

ate d robbery, aggravated rape and especially aggravatedkidnapping are all Cl ass A felonies. For these offenses, the defendant is a Range I offender. 7 See Tenn. Code Ann. § 40-35-105 (1997).For a Class A felony committed by a Range I offender, the range of punishment is 15 to 25 years. Tenn. Code Ann. § 40-35-112(a)(1) (1997).

Turning first to t he espec ially aggrava ted robb ery convict ion, we find enhancement factors (1), (11) and (13)(B) worthy of great weight. The defendant has a prodigi ou s criminal record for someon e so young. He has demonstr ated a20

pattern of violence. Further, he commit ted these offenses only eight day s after achieving parole status. He justly deserves a maximum sentence of 25 years.

Next, considering the agg ravated rape conviction from count 3, the first of the two rapes, we again find factors (1), (11) and (13)(B) deser ving of great
w eightfor the reasons stated above. We find a maximum sentence of 25 year s appropriate.

W ith respect to the aggrav ated rape conviction from count 4, the second rape, we weigh factors (1), (11) and (13)(B) heavily, as above. Further, factor (6) deserves great weight due to S.W.'s ordeal in becoming pregnant and having to undergo an abort ion due to the defendant's criminal conduct. These factors make a maximum 25-year sentence well deserv

ed.

For the last felony convic

tion of especially aggr

avated kidnapp ing, we again weigh factors (1), (11) and (13)(B) h eavily. As a result, we again fin d a maximum sentence of 25 years appr opriate.

Our final length-of-sentence determination relates to the misdemeano r theft sentence. Theft of property val ued at $500 or less is a Class A misdemeanor. Tenn. Code Ann. § 39-14-105(1) (1997). Puni shment for a Class A misdemeanor can be no greater than 11 months and 29 days.

Bearing in mind, as we must, the sentencing consi deratio ns, the applicable enhancement factors and the lack of miti gating factors, we bel ieve a maximum sentence of 11 months and 29 days at 75 percent serv ice prior to being eligible for work release, furloug h, trusty status and other rehabilitative programs is appropriate. SeeTenn. Code Ann. § 40-35-302(d) (1997).21 Consecutive Sentencing The final component of our sentencing r eview involv es whether
consecu tive sente ncing is ap propriat e for thi s defen dant. In general, consecut ive sentencing may be imposed in the discretion of the tri al court upon a determination that one or more of the following criteria exist: (1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive; (3) The defendant is a dangerous m entall y abnormal person so declared by a competent psych iat rist who concludes as a result of an investigation prior t o sentencing that the def e ndant's criminal c onduct h as been c haracte rized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences; (4) The def enda nt is a dangerous offender whos e behavior indi cat es little or no regard for human life, and no hesitation about c o mmitting a crime in which the risk to human life is high; (5) The defen dant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating ci rcumstances arising from the relationship between the defendant and victim or victims, the time span

of defendant's undetected sexual activ ity, the nature andscope of the sexual acts and the ex tent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defendant is sentenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b) (1990). In State v. Wilkerson , 905 S.W.2d 933, 937-38 (Tenn. 1995), the supreme court i mposed two additionalrequirements for
consecu tive sentencing -- t he cour t must find consecutive sentences are reasonably related to the severity of the offenses committed and are necessary to protect the public from further criminal conduct. At this time, it is unsettled whether Wilkerson applies to all seven of the statutor y categor ies for consecutive sentencing or only the "dangerous offender" category. See State v. David Keith Lane , No. 03C01-22

9607-CC-00259, slip op. at 11 (Tenn. Crim. App., Knoxvil le, June 18, 1997), perm. app. granted (Tenn. 1998).

Because we have stripped the t r i al court of the presumption of correctness in its sent encing de termina tion, we re view the issu e of cons ecutive sentencing de novo

.

The trial court found that the defendant is a professional criminal w ho knowingly

devoted his life to criminal acts as a majo r source of his livel ihood. See Tenn. Code Ann. § 40-35-115( b)(1) ( 1997). Upon de novo review, we ag ree that the existence of this factor has been established by a preponder ance of the evidence. See Tenn. Co de Ann. § 40-35-115(b) (1997).Although young at the time of his crimes, the defendant had a lread y amassed convictio ns for rob bery, burglary and stolen property related offenses. In stark comparison , his work history when not incarcerated is almost non-existent. He had a history of abusing alcohol, marijuana, cocaine and Valium on a regular bas is. He reportedto the presentence officer, "I was a drugaddict in [sic] needed money to support my habits [si c] so thats [sic] what cause [sic] me to robb [sic]." These facts support the application of
consecu tive sen te ncing under Code section 40-35-115(b)(1). Cf

. State v. Jason Morin , No. 02C01-9512-CR-00370, s lip op. at 11 (Tenn. Crim. App., Jackson, June 2, 19 97) (defendant's extensiv e criminal record incl uding several theft offenses, lac k of employment

at the time of the crime and sketchy work history s upport finding that he is a professional criminal under Code section 40-35-115(b)(1)).

The trial court also found that the defendant was an offenderwith an extensive re cord o f criminal activity

. See Tenn. Code Ann. § 40-35-115(b)(2) (1997). On de novo review, we find this conclusion supported by a preponderance of the evidence. See Tenn. Code Ann. § 40-35-115(b) ( 1997). The defendant has23

a lengthy record o

f c riminal convictions for someone of his young age. The presentence report indicates that he has used illicit drugs since age 13. Further, he has engaged in criminal activity whi le incarcerated.

The third basis upon which t he trial co urt premi sed conse cutive sentencing was that thedefendant was a dangerous offender as described in Code section 40-35-115(b)(4). The record supports our de novo concl usion th at this factor applies to the defendant. He employed a lead pipe to ensure the successful commission of his crimes. He also assaulted S.W. by repeatedly punching her in the face with his fist, and he hit both S.W. and M.T. with the pipe. In addition, there
was evidence he assaulted Ms . Henderson with a lead pipe during another crime. S. W. testified that she co m plied with the defendant's demands because she was concerned for her

life. M.T. testified that she was concerned for S.W .'s life, as well. The preponderance of

the evidence supports a co nclusion that the defendant would have employ e d as much violence as was necessary to the perpetration of his crimes. Thus, his behavior "indicates little or no re gard for human life, and no hesitation about committing a crime in which the risk to human lifeis high[.]" See Tenn. Code Ann. § 40-35-115(b)(4).

With respect tothe Wilkerson factors, the defendant clears this final hurdle for consecutive sentencing

. Consecutive sentences are reasonably related to the severity of these offenses a nd the public deserves p rotection from further criminal conduct by this defendant. See Wilkerson , 905 S.W.2d a t 937 -38. Only eightdays out of prison on parole,the defendant committed four Class A felonies. He began his criminal car eer at an early age and h as distinguis hed himself as a hardened criminal by graduating from property and drug crimes to violent felonies against other persons.24 Although our review is de novo , we have come to the same conclusion
as that reached by

the trial court -- th e defendant's felony sentences should all be served consecutively to each other, and the misdemeanor theft sentence should be served concurrently to the especially aggr avated robbery conv

iction. Furthermore, the defend ant's sen tences sh ould be se rved conse cutively to the sent ence fo r wh ic h he was on parole at the time h e committed these offenses. See Tenn. R. Cri m. P. 32(c)(3)(A).
Finally, with r espect to the defendant's argument that his sentence violatesthe Eighth Amendment prohibiti on against cruel and unusual punishment,
our consideration of

this issue has been wai ved. In his brief, the defendant devoted
a c ursory, on e-sentence argument to this p roposition. He has failed to cite any authority beyond the Eighth Amendment itself. When a party fails to prov ide a sufficientargument and citation to rel evant authorities, this court treats the affected issue as waived. Tenn. R. Ct. Crim. App. 10(b); see Tenn. R. App. P. 27(a). Moreover, despite the de fendant's deficient argument, no Eig hth Amendment violation is readil

y apparent.

In sum, the defendant's appellate issues are without merit. T he judgment of the trial court i s affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE CONCUR:

_______________________________ DAVID H. WELLES, JUDGE

_______________________________ L.T. LAFFERTY, SPECIAL JUD GE25