### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs F

ebruary 14, 200 1
STATE OF TENNESSEE v. ROBERT A. HAYD EN
Direct Appeal from the Circuit Court for Williamson County No. II-699-211 Timothy L. Easter, Judge

No. M2000-00901-CCA-MR3-CD - Filed may 25, 2001

Indicted for aggravated burglary , aggravated robbe

ry, agg ravated sexual battery, two counts of aggravat e d rape, and especially aggra vated kidnapping, the defendant entered negotiated pleas of guilt to aggravated robbery, two counts of aggravated rape, and especial ly aggravated kid napping. The remaining charges were dismissed. After a hearing, the trial court sentenced the defendant as
a Range I offender to 12 years for the robbery , 25 years for each of the rapes, and 25 y ears for the kidnappin g. The rape sentences were ordered to be served consecutively to one another and to the robbery sentence, for an effective sentence of 62 years. I

n this appeal of ri

ght, the defend

ant claims that one of the aggravated rape convictions and the especially aggravated kidnapping

convi ction violate due proce

ss. He asserts that his sentences are excessive and should not have been ordered to be served consecutively. The judgment of the trial court is affirme d. Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.

Gene Honea, Assistant

Public Defender, Franklin, Tennessee, for the appellant, Robert A. Hay den.

Paul G. Summers, Att

orney General & Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Sharon Guffee, Assistant District Attorney, for the appellee , State of Tennessee.
OPINION

On the mor ning of J anuary 17, 1997, the defenda

nt entered the re

sidence of the vic

tim, Beverly Becker, and confronted her with a gun. The defendan t warned the victim, "Be quiet. I don't want to hurt you." After determining that no one else was in the residence, he removed $200 from the victim's purse. The defendant then forced the victim to her bedroom and ordered her to remove her clothing a nd li e face down on the bed. The defendant removed his pants and attempted intercourse. The victim asked the defendant to put his weapon down and when he did so, the two struggled over it and fell to the floor. Although the victim was not sure whether the defendant-2-

sexually penetrated her

, she believed tha

t he had ejaculat

e d. When the defenda

nt recovered his weapon, the victim attempte d to calm him by offering to cooperate.The defendant then forced the victim to perform oral sex. Afterward he directed her to again lie face down on the bed and penetrated her vaginally.

When finished, the defendant ordered the victim to get dressed and said, "I don't know what to do with you. . . ." When he asked her to help find som

ething to bind her, the victim led him to her husband's closet. The defendant obtained three belts and took some change from a valet. He bound the victim's hands and

ankles. A

fter rumm aging th rough the victim's jewelry box, the defendant left the bedroom for a brief

period before returning

to tighten the victim's restraints. The defendant then left, disconnecting the telephones as he did so. Afterward, the victim was able to make her way to
a neighbor's house to ask for help. The victim estimated that the defendant was in her home between 50 minutes and one hour.

I As part of his plea agreement, the defendant attempted to reserve two questions of law for appeal: (1) whether his conviction for the aggravated rape charg ed in Count 4 violates du

e process when the act s constituting the offense were merely incidental to the ag gravated rape charged i n Count5; and (2) whether his especially aggr avated kidnapping conviction violates due process when the acts constituting

the offense wer

e merely incidental to the aggravated robbery a nd the aggravated rape.
Rule 37 of the Tennessee Rules of Criminal Proce dure provides that an a ppeal lies from a plea of guilty

or nolo contender

e if (i) defendant

entered into a plea agreement un derRule 11(e) but explicitly reserved with the consent of the State and of the court the right to appeal a certified question of law that is dispositive of the case; or

* * * (iv) defendant

explicitly re

served wit

h the con sent of the court the right to appeal a certified question of law that is dispositive of the case. Tenn. R. Crim. P. 37(b)(2)(i), (iv).

I n State v. Preston , our supreme court established the procedural conditions nec essary for consideration of the merits of a question of law certified pursuant to Rule 37:

This is an appropriate time for this Court to make explicit to the bench and bar exactly what the appellate courts will herea fter requir

e as prerequisites to the consideration of the merits of a question of law certified pursuant to Tenn. R. Crim.-3-

P. 37(b)(2)(i) or (iv). Regardless of what has appeared in prior petitions, order s , colloquy in open court

or otherwise, the final order o r judgment from w

hich the time begins to run to pursue a T .R. A.P. 3 app eal must contain a statement of the dispositive certified

question of law reserved by defendant for appellate revie w and the question of law must

b e st ated so as to clea

rly identify

the scope and the

limits of the legal issue reserved. For example, wher e questions of law

involve the validity of searches and the admissibility of statements and confessions, etc., the reasons
re lied upon by defendant in the trial court at the suppression hearing must be identified in the statement of the certified questi

on of law and revi

ew by the ap

pellate courts will be l imit ed to those passed upon by the trial judge and stated in the
c ertifiedquestion, absent a constitutional req

uirement otherwi

se. Without a

n explici t statement of the certified question, neither the defendant, the State n or the trial judge
can make a meaningful determination of whether the issue sought

to be reviewed is dispositive of the case. Most of the reported and unreported cases seeking the limited appellate review pursuant

to Tenn. R. Crim. P. 37 have been dismissed because the certified question was not dispositive. Also, the order must state that the certified question was expressly reserved as part of a plea ag reement, that the State and th e trial judge consented

to the reservation and that the State and the trial judge are of the opinion that the question is dispositive of the case. Of course, the burden is on defendant to see that these p

rerequisites ar

e in the fin al or der

and that the record brought to the appellate courts contains all of the proceedings below that bear upon wheth erthe c ertified question of law is dispositive and the merits of the question certified. No issue beyond the scope of the certified question will be considere d. 759 S.W.2d 647 (Tenn. 1988) (emphasis added).

In State v. Pend ergrass , 937 S.W.2d 834 (Tenn. 1996), the defe ndant, who pled g

uilty to charges of

possession of marijuana with intent to sell, possession of cocaine, and possession of drug paraphernalia, attempted to certify for appeal an

evidentiary question arising from the search of her residence. Although the trial court entered a post-judgment order attempting to certify the question,
our supreme court, emphasizing the necessity of strict adherence to the Preston guidelines, held that the failure to inc

lude the certifie

d question in the judg

ments was fatal: Contrary to the explicit

and unambiguous requirements of Preston , the three January 15, 1993 final jud gments in this cas e, from which the

time for a Tenn. R. App. P. 3 appeal began to ru n, make no reference at all to a reservation of a dispositiv e questi on of law for appellate review. Moreover, the judgments do not contain an identification of the scope a nd limits of the legal issue reserved as requi red. Nor do the judgments contain any statement in satisfaction of t h e reservationrequirements, nor do the y cont ain any stat ement that the que

stion is dispositive, all exp lic itl y requ ire d by Preston . Finally, th esejudgments do not

refer to or incorporate any other independent document which wo

uldsatisfy the Preston-4-

requirements.

Acco rdi ngly, as the Court of Criminal Appeals found, the judgments entered on January 15, 1993, completely fa il to comply with Rule 37 and Preston

. Id. at 837. In State v. Irwin , 962 S.W.2d 477 (Tenn. 1998), our high court aga

in required spec

ific compliance with the Preston rule, holding that the merits of the appeal could not be reached where the defendant failed to properly reserve the question of law.

There is a question in this ins tance as to whether the defendant strictly complied with the requirements of Preston and Pendergrass . The judgment fo rms entered on Cou

nts 4 and 6 contain the following sta

tements, respec

tively, reg

arding the def

endant's cert

ified questions: Certified question of law reserved under R. 37, T.R.C.P.: see attachedcopy of plea agreement;

Acts constituting

offense were i

ncidental to Ct. 5 – conviction for both violates due proc

ess.
* * *

Certifiedquestion of law reserved under R. 37: (See attached copy of plea agreeme

nt) whether conviction for esp. agg. kidnapping violates due process because acts were incidental to and merely facilitated acts that constitute offenses in Ct. 2, 4, + 5.

Such notations are inadequate, in and of themselves,to properly certify the def endant's questions of law. The sufficiency of the content depends upon plea agreements incorporated by reference. Here, howe ver, the plea agreements are not attached to the judgments. Moreover, even if the plea agreements

had been attached to the judgment forms, they do not indicate that the state and the trial judge agree that the questions are dispositive. In any event, had the defendant pr

operly cer tified his questions of law, he would not be entitled to relief thereon.

In State v. Anthony , our supreme court acknowledged that a period of confi nement of the victim frequently

accomp anies such crimes as robbery and rape and established that whether a separate kidnapping c onviction can be s upported depends

upon "whether th

e confinement, movement, or detention [was] essentially incidental to the accompanying felony . . . ." 817 S.W.2d 299, 305 (Tenn. 1991). Subsequently, in State v . Dixon , our high court further clarified the Anthony test: Anthony and its progeny, however, ar e not meant to provide the rapist a free kidnapping mere

ly because he also committed rape. The Anthony decision should only prevent the injust

ice which would oc

cur if a defendant could be convicted of kidnapping where the only restraint utilized was that necessary to complete the act of rape or robbery. A

ccordingly

, any restr aint in addition to that which is necessary to consumm ate rape or ro bbery may support a separate con viction fo r kidnappi ng.-5-

957 S. W.2 d 532, 534-35 (Tenn. 1997). Where the confinement is beyond that necessary for the accompanying

felony, the

next inquiry is w

hether it (1) pre

vented the victim

from summoning help; (2) lessened the def

endant's r isk of dete ction; or (3) created a significant danger or increased the victim's risk of harm. Id. at 535.

In this instance, the

period of confine

ment extended bey

ond that necessa

ry to accomplish

the robbery and rape. Indeed, when the defendant bound the victim, the other felonies were complete. The confine ment was intended to prevent the victim from summoning help and, thus, lessen the defendant's risk o f detection. The defendant also d

isconnected the t

elephones so that t

he victim could not call for either medical assistance or the police. Further, the confi ne ment increased the victim's risk of harm. While t he victim was able

to free her hand

s, she was unable to rem

ove the belt securing her ankle s . As a result, she was forced to hop down the stairs and to a neighbor's house, falling repeatedly. The record establishes that the victim suffered cuts and bruises on her hands and feet and a sprai

ned wrist.

In State v. Barney

, our high court held that the Anthony "essentially

incidental" test

i s no t useful in the context of sexual off enses because

"each separate sexual act 'is capable of producing its own attendant fear, humiliation, pain, and damage to the victim.'" 986 S.W.2d 545, 548 (Tenn. 1999) (quoting State v. Phillips , 924 S.W.2d 662, 665 (Ten n. 1996)). In lieu thereof, the court adoptedthe following test from P eople v. Madera , 231 Cal. App. 3d 845 (1991): "[I]f

the act in question directly facilitates or is merely incidental to the accompanying sexual conduct (such as, for example, applying lubricant to the area of intended copulation), convictions for both acts would be barre d. . . . If, howev

er, the act in que

stion is 'prepar

atory' on ly in the sens

e that it is intended

to sexually arouse either th

e victim or the per

petrator, separ

ate convictio

ns are not barred." Id. (citations omitted). Additionally, the court suggested relevant

factors to be considered in applying the test:

1. temporal proximity – the g reater the inter

val between the a

cts, the more likel

y the acts are separate;

2. spatial proximi ty – movement or re-positioning tends to suggest separate ac t s ;
3. occurrence

of an intervening

event – an interr

uption tends to

suggest separate events;
4. sequence of

the acts – serial penetration of different orifices as distinguished from repeated pene

trations of the sam

e orifice tends to

suggest separ

ateoffenses; and

5. the defendant's intent as evidenc ed by conduc

t and statements.

Id. at 548-49.-6-

At the plea accep

tance hearing, the defense an d the state stip

ulated that Co

unt 4 of the in dictment involv ed the forced oral sex and that Count 5 involved the vaginal rape. After the struggle for the gun, the defendant forced the victim to perform oral sex on him. Several minutes later, the defendant moved the victim to a diff

erent place and

position on the bed b

efore vagina

lly raping her. By application of the Barney factors, it is our conclusion that the dual convictions do not violate due proce

ss.
II

The defendant

next contends that his sentences are excessive. He also argues that the trial court erred by ordering the two agg ravated rape sentences to be served consecutively and by ordering all of the sentences to be served consecutively to terms imposed in Kentucky for unrelated c

rimes.

When there is

a challenge to

the length, ran

ge, or manner o

f service of a se

ntence, it is the duty of this court to conduct

a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record tha t the trial court c

onsidered the sen

tencing princip

les and all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991); see Statev. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the

trial and sentencing hearing; ( 2) the prese

ntence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potent ial f

or rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In determining the defendant's sentences for the aggr avated robbery and

the two aggravated rapes, the trial court ap

plied enhanceme

nt factors ( 1 ) ("[t]he defendant has a previous history of criminal convictions or

criminal behavio

r in addition to those

necessary

to establish the ap

propriate range"), (5) ("[t]he defendant treated or allowed a victim to be treated with exceptional cr u elty during the commission of the offense"), and (20) ("[t]he defendant was adjudicated to ha v e committed a delinquent

act or acts as a juvenile that would constitute a felony if committed by an adult"). See Tenn. Code Ann. § 40-35-114. The trial court applied e nhanc ement factors (1) and (20) to the defendant's sentence fo r especiall y aggravated kidn apping. The trial court di d not find or apply

any mitigating fac

tors.
Init ial ly, the defend ant concedes the appropriateness of the application of enhancement fact o r (1) to each sentence. He argues, however, that the trial court misapplied enhancement factor (5) to his robbe ry and ra pe sen tence s. We a gree. In State v. Poole , our high court held that before-7-

enhancement

factor (5) may be

applied, the facts of the case must "support a finding of 'exceptional
crue lty' that 'demonstrates a culpability distinct from and appreciably

greater than that incident to' the crime." 945 S.W.2d 93 , 98 (Tenn. 1 997) (quot ing State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994)); see also State v. Em bry , 9 15 S.W.2d 451, 456 (Tenn. Crim. App. 1995) (holding that enhancement

factor (5) "requires a finding of cruelty over and above that

inherently

attendant to the crime"). The trial court "'should state what actions of the defendant, apart from the elements of

the offense, constituted "exceptional cruelty.'" Poole , 945 S.W. 2d at 98 (qu oting State v. Goodwin, 909 S.W.2d 3 5, 45 (Tenn. Crim. App. 1995)). This rule is intended to "avoid enhancing the length of [a] sentence[] basedon factors the Legislature took into consideration when establish ing the range of punishment for the off ense." Id. Exceptional cruelty is "u sually found in cases of abuse or torture." Statev. Williams , 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995). In Manning v. State, the defendant pled guilty to four counts of aggr avated rape, armed robbe ry, an d aggravated kidnappin g. 883 S.W.2d 635, 639 (Tenn. Crim. App. 1994). While noting that other enhancement factors had been correctly applied, this cou rt ru led that applicati

on of the exceptiona

l cruelty enhancement

factor was erroneous where the defendant had "abducted the victim in broad daylight and forced her

to participate in f

our separate se

xual acts while holdi

ng a knife to her

side:"

While there is no doubt that the actions of the [defendant] were c ruel, most of the facts relied upon in applying this enhancement factor to the appel lant are th

e very facts which made these crimes aggravated under the law.

Id.
Here, the trial j udge applied factor (5) due to evidence that the victim had repeatedly begged for her life and that the defendant had forced her to lie face down during one of the rapes. In our view, however, such c

ircumstances do n

ot demonstrate " 'a culpability distinct from and a

ppreciably greater than that incident to ' the crime." Poole , 945 S.W.2d at 98; cf. State v. Spratt , 31 S.W.3d 587 (Tenn. Crim. App. 2000) (holding that exceptional cruelty enha ncem ent factor was a

pplicable to aggravated

rape sentence where the defendant struck the victim over the head with a beer bottle and then dragged her by

the hair); State v. Alvarado , 961 S.W.2d 136 (Tenn. Crim. App. 1997) (holding that exceptional cruelty enhancement fac tor was applicable where, while raping the victim, the defendant held a knife to her

throat, bit her breasts, stabbed her 67 times, and attempted to smother her as he repeatedly stated that he wanted to kill her). Here, the defendant did not

torture the victim

. There was no physical injury incident to either

the robbery

or the rapes. While

he utilized a weapon, th e defendant did not threaten to kill the victim, saying, in fact, "I don't want to hurt you . . . ." Although the circumstances of these crimes were serious indeed, th

e state has a

particularly onerous bur den in order to establish the applicability of the exceptional cruelty e nhancement factor. Th a t burden has not been met in this case.
Next, the defendant argues that the trial court imp

roperly applied enhancement factor (20), that the defendant was adjudicated to have committed a delinqu ent act or acts as a juvenile that would constitute a felony if committed by an adult. The prese ntence report listed t

he fo llowing
reco rd o f ju ven ile con vic tio ns i n Ke ntu cky:-8-

Date of Conviction Offense

11/25/85 Theft by Unlawful Taking 06/11/86 Runaway 03/23/87 Assault Fourth Degree 03/23/87 Escape Third Degree 08/14/87 Disorderly Conduct Out of Control 11/24/87 Burglary Second Degree Arson Second Degree

The trial court was e

ntitled to rely

upon this evidence. See State v. Michael Ch ristopher Adams , No. E1999-00446-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., at Knoxville, July 11, 2000). While the circumstances o

f these offense

s are not containe

d in t he record, Tenn

essee classific

ations will apply to those that are named of fens es under Tennessee law. State v. Chris Wilson , No. M1998- 00395-CCA-R3-CD, s

lip op. at 5 (Tenn. Crim. App., at Nashville, Sept.

28, 2000). In Tennessee, arson, regardless of the degree, is a felony

. See Ten n. Code A nn. §§ 39-14-301 – 39-14-303. Likewise, burglary

is a felony in this state, regardless of degree

. See Tenn. Code Ann. §§ 39-14-402 – 39-14-404. Thus, the trial court properly applied enhancement factor (20).

The state urges in this appeal that enhancement factors (6), that the personal injuries inflicted upon the victim were particularly great, and (7), that the of fense involved a victim and was committed to gratify the defendant's desire for ple asure or excitement, should have beenapplied to the aggravated rape convictions. SeeTenn. Code Ann. § 40-35-114. We agree.

This court has held that the term "personal injury" contained in enh ancement factor (6) embraces the "emotional injuries and psychological scarring sustained by the victim of a sexual offense." State v. Melvin , 913 S.W.2d 195, 203 (Tenn. Crim. App. 1995). Before this factor may be applied, however, it must be demonstrated that the emotional injuries and psychological scarring
were "particularly great." Id. Here, the record demonstr ates that the victi

m was unable to re

turn to her home for two days following the attack. She could not enter her bedroom for ov er a mo nth. It took her eig ht to twelve months to overcome flashbacks. Dur

ing this time, the vi

ctim left home because she was ashamed of having been raped. S he di d not want her children to see her. The victim was prescribed anti-depressant medication and participated

in counseling fo

r over two y

ears. In our view, the emotional and psych ological injurie s sustained by

the victim were "

particularly great" and e

nhancement fac

tor (6) is applica

ble to the defenda

nt's aggrav

ated rape sente

nces.

Because rape is frequently committed for reasons other than sexual pl

easure or excite

ment, our su preme court

has held that enhancement factor (7) may be applied to ra pe convictions. See Statev. Kissinger , 922 S.W.2d 482, 490 (T enn. 1996); State v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993). Further, "[t]he motive [for commission of the offense] need not be singular for thefactor to app ly, so long as [the] defend ant is motivated by [a] des ire for pleasure or excit ement." Kissinger ,-9-

922 S.W.2d at 490. Here, there is evidence from which it can be determined that the defendant raped the victim in order to gratify a desire for pleasure or e xcitement. The victim testified that when the defendant saw her bedroom, his face "lit up." She test

ified that he immed

iately orde

red her to undress. As he assaulted th e victim, the defendant a

ttempted to

kiss her and fondle her breasts. He penetrated

the victi m bot h orally and vaginally

and ejaculated a

t least twice. I

n our view, this enhancement fa

ctor can be prop

erly applie

d to the aggra

vated rape sente

nces.
In summary, enhancem

ent facto rs (1) and (20) a

re applicable to

all of the sentenc

es. Enhancement

factors (6) and (7) are also applicable to the sentences for the aggravate

d rapes. Enhancement fa

ctor (5) does not a

pply in this ca

se. There are n

o applicable mitig

ating factors.

In calculating thesentence for a Class A felony conviction, the presumptive sentence is the midpoint within the range if there are no enhancement or mitigating factors. Te nn. Code Ann. § 40- 35-210(c)

. If there are enhancement factors but no mitigating f actors, the trial court shall set the sentence at or above the mid point. Tenn. Code Ann. § 40-35-210(d). If there are mitigating fa ctors butno enhancement factors, the trial court shall set the senten ce at or below th

e midpoint. Id. A sentence involvin g b oth enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code A nn. § 40-35- 210(e). The sentence must then be reduced within the range by any

weight assigned to the mitigating factors present. Id.

A Range I sentence fo r the offens es of aggravate d rape and esp ecially aggravate d kidnappi ng, Class A felonies,is 15 to 25 yea rs. See Tenn. Code Ann. §§ 39-13-305(b)(1), 39-13-502(b), 40-35- 112(a)(1). Thus, the presumptive sentence for each of the defendant's aggr avated rape and espec

ially aggravated

kidnapping convictions is 20 years. See Tenn. Code Ann. § 40-35-210(c). The trial court set the defendant's sentence for each conviction at 25 y ears, the maximum in the range. The record supports the trial court' s determinations. There are four enhancement factors and no mitigating factors applicable to the defendant's aggravated rape sentences. Enhancement factors (1) and (6) are entitled t o great weight. Although there are only two enhancement factors applicable to t h e defendant's especially aggravated kidnapping sentence, enhancement factor (1) is entitled to great weight given the defendant's extensive criminal history. As such, we cannot discern any error in the lengths of the de

fendant's ag

gravated rap

e and especially

aggravated

kidnapping sente

nces.
In calculating the

sentence for a C

lass B, C, D, or E fe

lony convic

tion, the presump

tiv e sentence is the minimum in the range if there are no enhancement or mitigating fac tors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-2 10( d). A sentence involving both enhancement and mitigating factors requires an assignmen t o f relative weight for the enhancement factors as a means of increasing the sentence

. Tenn. Code Ann. § 40-35- 210(e). The sentence must thenbe reduced within the range by any weight assigned

to the mitigating factors present. Id.1 The first four crit eria are found in Gray . A fift

h category i

n Gray , based on a s

pecific number of prior

felony convictions, may en hance th e sentenc e range b ut is no lon ger a listed cr iterion. See Tenn. Code Ann. § 40-35-11 5, Sentencing C omm ission Comm ents. -10- A Ran ge I s ent ence for aggr avat ed ro bbe ry, a Class B felony is eight to 12 yea rs. See Tenn. Code Ann. §§ 39-13-402(b), 40-35-112(a)(2). The trial court

set the defendant's aggravated robbery sentence at 12 years. In our view, this was an appro priate sent ence. As wit h the defend ant's especially aggravated kidnapping sentence, there a r e two enhancement factors and no mitigating factors applicable. Thus, the t rial court's increase of the presumptive minimum sentence by four years was proper.
The defendant also

complains that the trial court erred by ordering cons ecutive sen tencing. Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for th e i mposition of consecutive sentences were set out in Gray v. Stat e , 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that aggravating circumstances must be present before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1 987), the court established an additional category for those defe ndants convicted of two o r mor e statutor y offens es involving sexual abuse of minors. There were, however, additional words of caution:
[C]onsecutive sente

nces should

not routinely be imposed . . . and . . . the ag gregate maximum of c on secutive terms must be reasonably related to the severity of the offenses involved.

Id. at 230. The Sentencing Commission Comments adopted this cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in

the discretion of the trial court only upon a determination that one or more of

the following cr

iteria 1 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 defe nda nt i s a d ange rou s me nta lly a bno rma l pe rso n so decl ared by a competent

psychi at rist who conclude s as a result of an

investigation pr

ior to sentencing that the defe nda nt's cri min al c ond uct has been char act eri zed by a pattern of repetitive or c

ompulsive behavior

with heedless indif

ference to con

sequences; (4) The defendant is a dangerous offender whose behavior indica tes little or no regard for human life, and

no hesitation about committing a crime in which the

risk to human life is hig

h;-11-

(5) The defendant is

convicted of

two (2) or more statutory offenses involving sexual abuse of a mi nor with consideration of the aggravating circumstances arising f rom the relationship between the defenda nt and vic tim or victims, the time span of defendant's undetected sexual activity, the nature and scope

of the sexual acts

and the extent of the residu

al, physica

l and mental damag

e to the victim or vic

tims; (6) The defendant is sentenced for an offense committed while on probation; (7) The defenda

nt is sentenced fo

r criminal contem

pt. Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be "justly deserved in relation to the seriousness of the offense," Te n n. Code Ann. § 40-35-102(1), and "no greater than that deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

The trial court found that the defendant was an offender who se recordof criminal activ ity is extensive and concluded that the defendant was a dangerous mentally abnormal person. See Tenn. Code Ann. §§ 40-35-115(b)(2), (3). The state concedes, and we agree, that the trial court's reliance upon Tenn. Code Ann. § 40-35-115(b)(3) ("d angerous mentally abnormal person ") was erroneous. The basis for the finding was a report submitted by psy chologist Deborah P. Huntley. Tennessee Code Annotated § 40-35-115(b)(3), however, provides that a def endan t must be declared a "dangerous mentally abnormal person" by a "competent psychiatri

st ." Tenn. Code Ann. § 40-35-115(b)(3) (emphasis added) ; s ee also State v. Hallock , 875 S.W.2d 285 (Tenn. Crim. App. 1993).
Nevertheless,

the trial court's consecutive sentencing order is supported by the finding that the defendant is an offender whose record of criminal activity is extensive. The presentence report indicates that

at the time of sentencing, the defendant had approximately 25 prior convictions, not including his juvenile record, for offenses includ ing rape, b urglary, possession of a forged instrument, bail jump ing, receiving stolen property, possession of marijuana, and possession of drug paraphernalia. In our view, the length of the defendant's effec tive s enten ce is "justly

deserved in relation to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2). Accordingly, the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE