### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A ugus t 10
, 200 4

STA TE OF TEN NES SEE v. RONNEL L J ASON LEB ERRY

Direc t Appeal from the Circ uit Court for Montgom ery C ounty No. 40000370 John H. Gasaw ay, III, Jud ge

No. M2003- 01228-CCA -R3-C D - F iled March 28, 2005

A Mo ntg ome ry Cou nty jury c on vic te d the De fe nd a nt, Ron ne ll Jaso n L e be rry , o f a g g ra va te d a ssa ult
, extorti on, espec ially

ag g ravated kidnapping , and t wo co u nts of fac ilitation t o commit ag g ravated

ra pe . T he tr ia l c ou rt

se nte nc e d th e De fe nd a nt t o a n e ff e c tiv e se nt ence of thirty -t wo y e ars a ndsix months. On appea l, the Def endant c ontends that: (1) the trial court erre d when it failed to inst ruct the jury on acc omplice testimony ; (2) he w as denie d a unanimous jury verdic t; (3) the trial court

err ed by failing to rec use i tself; (4) the evidenc e is insufficient to support his convictions; (5) he was de nie d his rig ht to an imp art ia l jur y be c a us e c e rt a in jur or s c on sid e re d e vid e nc e no t a dmi tte d a t tr ia l; (6) the trial court erre d by failing to rec use t he Assis tant District Attorney Gene ral at trial; (7) he was denied the right to a fair trial beca use he wa s require d to wear leg -shac kles during the trial; (8) he

wa s d en i ed a fair tria l due to the ra cial composition of the jury ; and (9) the trial court e rre d by

e nh a nc ing the De fe nd a nt’ s se nte nc e s a ndor de ri ng c on se c uti ve se nte nc ing . A ft e r tho ro ug hly revie wing the re cord, w e af firm all of the Def

endant’ s convictions. Further, we hold that the trial

c ou rt imp ro pe rl y

e nh a nc e d th e De fe nd a nt’ s se nte nc e s in lig ht o f B lake ly v. Was hin g ton , 5 42 U. S. __, 124 S. Ct . 2531 (2004), a nd we reduc e the Def endant’ s sentenc es in a ccor dance with this opinion to an ef fec tive sentenc e of twe nty -eig ht y ear s.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed in Par t; Reve rsed in Par t and Rem anded

R OB E R T W. W EDEMEYER , J ., deli v ere d the opinion of the court, in which D AVI D H. W EL L ES , and N OR MA M C G EE O G LE , J J ., joined.

Hug h Poland (at trial); a nd Mark Olson (on a ppeal) , Clarksville, Tennesse e, for the appe llant.

Paul G. Summe rs , Attorney Gene ral a nd Reporter ; Richard H. Duna vant, Assistant Attorney Gene ral; John W . Carney , J r., District Attorney Gene ral; Arthur Be iber, Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN IONIt is the p o licy o f t h is C o u rt to re fer to vic tim s o f sex u a l o ff e n se s b y the ir initials o n ly. 1

-2- I. F acts

This c ase arises from sexual off enses that occur

red ag ainst the victim, J.B, on May 15, 2000. 1 Wit h respe ct to these c rimes, the De fenda nt was indicted for seven co u n t s of ag g ravated ra pe, ag g ravated assault, extortion, and two counts of espe cially ag g ravated kidnapping , and he w as convicted of

ag g ravated assault, extortion, especially ag g ravated kidnapping , and t wo counts of fac ilitation of ag g ravated ra pe. The trial court sentenc ed the Def endant to an ef

fec tive sentenc e of thi rt y -t wo y e ars a ndsix mo nth s.
The following evidenc e was prese nted at the De fenda nt’s trial. The victim testified that she worke d at a c omputer parts store around the time of this crime, and she usually car -pooled to work wi th h e r r oo mmate , L y ne qu ia Ha wkins
, or a me mbe r of Ha wkins ’s fa mil y , or he r f ri e nd , D e me tr is (“D ee” ) Gra nt. The victim testified t hat Grant had a boy friend na med “Chug ,” who she identified as the De fenda nt. She expl ained that the D efe ndant is Hawkins’s br other.

The victim said that she usually drove her own car to w ork, which was a 1990 Mustang

. On Saturday , May

13, 2000, she was schedule d to w ork, and she ca r-pooled to wor

k with Hawkins. The vic tim te sti fi e d th a t sh e wa s a lso s up po sed to t a ke Gr a nt t o w or k, bu t sh e didno t do so . Sh e sa id that, o n th e ne xt da y , Su nd a y , M a y 14 , 2 00 0, sh e sp e nt the da y a t her mothe r’ s and the n r e turne d to her a partment a

round 11:00 p.m. She expl ained that, when she re turned home, H awkins’s mother’ s truck wa s o u t s i d e, and she thoug ht it was unoccupie d. A short time later, she saw Gr ant and the De fe nd a nt g e t ou t of

the truc k, a nd Gr a nt sa id that “sh e wa s g oin g to kic k [th e vic tim ’s ] as s” be c a us e the victim did not take her to work. The victim said that Grant told her “ to go inside to talk,” and, when she went int o her apartment with Gra nt, the Defenda nt was there too. She testified that Gra nt

swore at her, hit her in the face with a closed fist, and kicked he r. She said that the De fenda nt talked to Grant, but she did not know what they said. The victim testified that either Gra nt or the De fenda nt then told her to undr ess. She testified that Gra nt said that she would hurt the victim with a knife, that the vic tim de sc ri be d as ha vin g a se rr a te d bla de , if the vic tim did no t do wha t the y sa id. Th e vic tim said that she undre ssed bec ause she was sca red tha t she was “ g oing to die.”

The victim said that the Def endant a nd Gra nt took turns “heat[ing] up a for k over the stove and burn[ing] [her] breasts and [her] vag ina” while she was ly ing on he r bac k on the floor. She testified that one br east “had a fork burn on the ni pple and the ot her one was just below the nipple.” The victim testified that either the Def endant or Gra nt inse rted a mop ha ndle into her va g ina. She said that she did not reme mber a ny specific conver sations betwee n the Def endant a nd Gra nt, but she

reme mbere d them swea

ring . The victim testified that Grant an d the Def endant f orce d her, by threa tening her life, to “ write a note say ing that [she] owed [t hem] two hundred and fifty dollars and until [she] g ot the m tha t mone y , then [her] ca r wa s as collater al.” She sa id that she did not think t hat she owe d either the Def

endant or Gra nt any

money . The victim said that she did n o t k n ow if her clothes we re on at this time, but she remembere d that either the Def endant or Gra nt told her to g et dresse d, and she put a ll her clothes on e x cept f or her bra, w hich she lef

t on the kitchen floor.-3-

The victim testified t hat s he, Gr ant, and the D efe ndant left the a partment. She said that Gr ant drove the Def

endant’ s mother’s truck, and the Def endant followed Gra nt, driving the victim’s car with the victim in the passeng er’ s seat. She explained that she g ot into her ca r with the De fenda nt beca use the a ttacker s ag ain threatened he r l ife. She said that she and the De fenda nt followed Gra nt to a g as station, Scott’s Market, but, because there w as a police office r at the g as station, the Def endant ke pt driving . The victim testified that the De fenda nt circle d back to the g as station, but Gra nt was not there , and the De fenda nt drove to Grant ’s apartment. When they arrived, the Def endant y elled that “if

any body wanted the ir d*** su cked or to have se x , to come ther e.” T he victim said that there we re me n who hea rd the De fenda nt, and these men went with her and the Def endant inside Gr ant’s apa rtment. She said that, once inside the apa rtmen t , the Def

endant a nd Gr an taga i n t h re at en ed h eran d t o l d h ert o u n d re s s , wh i ch s h e d i d

. S h e s ai d t h at , af t eru n d re s s i n g, sh e wa s f or c e d to ha ve or a l se x withmul tip le me n, wh o we re sit tin g on a pie c e of fu rn itu re . Sh e sa id that there was a

light on in the kitchen, w here she could see both the Defenda nt and Gr ant, but there

wer e no lig hts on in the livi ng room, so she could not see how many men s he had oral sex with. The victim said that she only

stopped having oral sex with the men bec ause “ [t he De fenda nt] asked the m all if they w[ere] all satisfied and they said ‘y es.’” The victim sa id tha t she was in the kitchen, and she vomited on Gra nt because she “ was burne d and [ she] was sick and [she] was scar ed.” G rant y e lle d a t th e vic tim

to “ c le a n it

up ,” a ndGr a nt h a d a

“ pa il of wat er and a mop a nd[the vic tim ] clea ned [the vomit] up with that.”

The victim testified that, while in Gra nt’s apartment naked, she was for ced to do jumping jacks, sit-ups, and to st and in the corner with one leg r aised, a ll of which she did bec ause he r life wa s threa tened. She sa id that the Def endant a nd Gra nt told her to g et dre ssed and to lea ve, which she did. The victim said that she did not know any one in the apartment c omplex
, but a man who she did not kn ow too k h e r h ome . Wh e n s he g ot h ome , h e r m oth e r a ndste pf a the r w e re the re , a nd sh e tol d th e m, while cry ing, tha t she had be en ra ped. The victim said that her pa rents told her tha t they

wer e g oing to call the police, a nd she told them not to because she wa s scared t h at t h e De fenda nt and Gra nt

wo u ldc o me a n d g e t h e r

. T h e v ic ti m t e s ti f ie d th a t h e r

mo th e r a n d s te p f

a th e r to o k h e r to the

emer g ency

room at Memoria l Hospital, but she had no memory of this hospit al visit. S he said that she wa s in pa in for months after this incident and explained that “[t] he bre asts, they heale d quick[er] than [ the] vag ina did.” The victim testified that her memory of the e ntire incident is “not very g ood” beca use she ha s “blocke d it out of [ her] mind.” On cross-examination, the vi ctim testified that, at th e t i m e of the incide nt, she had only known the De fenda nt for a c ouple months, and she had previously

had interc ourse with him. She conce ded that she ha d previously testifi ed that Grant burned he r bre asts and picke d up the knife.

J ames B ry ant Hug g ins, the victim’s stepfather , testifi ed that he had know n the victim for almost three y ear s. He said that, on Monday
, May 15, 2000, the victim arrive d at his house in the

ear ly morning and knocke d at the door. Hug g ins said that the victim was shaking , crying, a nd

scar ed, and, w hen he sa w that she wa s crying, he woke up the victim’s mother . He sa id that, after he aw oke the victim’s mother, t he victim told them that she had been r aped, a nd the victim’s mother told her to ca ll the police

. Hug g ins sa id that the victim refuse d beca use she sa id that her a ttacker s-4-

wo uldkil l he r i f s he c a lle d th e po lic e . H e sa id tha t he a ndthe vic tim ’s mothe r c on vin c e d th e vic tim to go to the e merg ency

room.

L y ne qu ia Ha wkins te sti fi e d th a t sh e is the De fe nd a nt’ s siste r. She te sti fi e d tha t, at the tim e of the off enses, she and the victim had been roommates for six months, and they car -pooled to work toge ther. She said that Gr ant was the Def endant’ s g irlfriend in May of 2000. Hawkins testified tha t the victim and the Def

endant had previously had sexual intercour se. She said that, on Saturda y , May 13, 2000, she, her

mother’s boy friend, a nd the vi ctim went to work in the victim’s ca r. She said that they had over slept and we re late to work, so, even though they wer e supposed to drive Gra nt, they

never picked her up beca

use t he victim “didn’t l ike her.” Hawkins testified that she saw G rant the following wee kend, and G rant thre atene d the victim because the victim did not pick her up.

Hawkins testified tha t, on Sunday
, May 14, 2000, she re turned to her apartment around 1:00 a.m., and a ll the lights wer e on, the door was unlocked, and the phone was not on its charg er, a ll of which we re unusua l. She said that there was no one in the apartment, and she did not see a ny car s or trucks in fr ont of the apa rtment. Haw kins testified th at s he smelled a n unusual odor whe n she
enter ed the a

partment that was similar to “something fre shly burned,” and she notice d the victim’s bra on the kitchen floor. H awkins tes t i fi ed t h at s he had r ece ntly purcha sed a long mop that was white and g ree n on the bottom, and she had both knives and forks in her home. Hawkins identified burned pieces of the mop that she found on he r kitchen f loor, which she did not cle an up bec ause she was tired. She sa id that she did not chang e anything in the kitchen and went to sleep, a nd she aw oke round 6:00 a.m. to find the police at her door.

Gary Hodg es, a de tective with the Clarksville Police Depa rtment, testified that he wa s called to the victim’s apartment on May , 15, 2000, and he photog raphe d the crime scene and sea rche d for possible evidence . He sa id that he found a mop in the kitchen, and he found some burned piece s of the mop on the kitchen f

loor.

Ma tth e w Sl ig ht, wh o w a s a n o ff ic e r w ith the Cla

rk sv ill e Pol ic e De pa

rt me nt a t the tim e of

thi s incident, testified that h e assisted in this investi g ation. He sa id that, while he wa s walking on the sid e wa lk n e ar t h e v i c t i m ’ s ap ar t m e n t , h e f o u n d a f o rk w i t h b l a c k

m ark i n g s l a y i n g i n t h e g r a ss approximately

twelve f eet f rom the door of

the victim’s apartment. Rick Stalder, a serg eant with the Clarksville Poli ce D epartment, testified that he sea rche d the victim’s ap a

r tment, and he f

ound a knife on the kitchen c ounter that ha d a wood ha ndle and a serr ated e dg e.

L arry Bor en, a de tective with the Clarksville Police De p artment, testified tha t he sea rche d Gra nt’s apartment, and he f ound the victim’s car

parke d n ea r h er apartment, whic h he found suspicious. Nicholas New man, an investigator with the C larksville Police Depa rtment, testified that he lea rned tha t the victim had told p o l i ce that Grant stopped at a g as station, and he obta ined the surveillance video from the g as station, which showe d a woman who looked like Gra nt in the store. Da n n y Br y an t te stified that he was the manag er of Scott’s Ma rket and he provided police with a surveillance video from the nig ht of May 14, 2000, to the morning of May 15, 2000.-5-

L atasha Dunca n testified that, in May of 2000, she lived next door t o Gra nt. She said that on May 15, 2000, she heard a car

pull up around 1:00 a.m., and she hear d the Def endant y elling that he had a “white g irl” who wa nted t o eng ag e in oral sex

. She said that his voice was loud enoug h that she could he ar it fr om the street to her apartment. Duncan te stified that, out of curiosity , she g ot out of bed a nd looked outside and saw the Def endant in a ma

roon Mustang with a g irl that she di d not know. Dunca n tes t i fi ed t hat she saw other men outside “ hang ing out,” one of w hom was the boy friend of her friend, Nisha Buc k. She said that she went to Buc k’s apa rtment, which is locate d in the lower se t of buildings, and, w hen she a rrived, shetold Buck w hat was ha ppening . She and Buc k went bac k up to Duncan’ s apartment and sat on the porch f or about forty -five minutes to an hour. She ex plained that no one was outside when they returne d to her apartment, and she and B uck

wer e wa iting to see if Buc k’s boy friend was going to come outside. She said that the De fenda nt and Gra nt came outside a nd asked the m why they wer e “w orried a

bout” what wa s g oing on in Gr ant’s

apa rt me nt. B uc k r e pli e d th a t sh e wa s wor ri e d be c a us e he r b oy frie ndwa s in sid e Gr a nt’ s a pa rt me nt. Gra nt confirmed tha t Buc k’s boy friend w as in the apa rtment, and she a sked if Buc k would like her to retrieve her boy friend, a nd Buc k responde d “no.” Dunca n testified that the De fenda nt mentioned that he had a

double-ba

rre led shotg un, and B uck said that she was only worrie d about her boy friend. She said that the De fenda nt and Gra nt went bac k into the apartment, and, shortly there afte r, B uck’s boy friend c ame outside. Dunc an testifi ed t h at s h e never saw the “ white g irl” come out of Gra nt’s
apartment, and she did not know wha t time she went bac k to her apartment. She testified that, the whole time, all she he ard w as music.

Dr. Robert Doty , an eme rg ency medicine phy sician testified, as an e x pert, that he conducte d the vic tim ’s g e ne ra l exam ina tio n whe n she c a me to the e me rg e nc y ro om. Dr . Dot y te sti fi e d th a t hi s

e xami natio n o f the vic tim re ve a le d the fo llo wi ng : a sma ll a br a sio n o n th e fo re he a d; b ur ns on bo th brea sts; bruises to the lower interior knees; a bruise on the lef

t part of the pe lvis; a bruise on the left fore arm; and a bruise on the right shoulder. Dr. Doty testified t hat t he abrasion on the for ehea d and the bruises on the a

rms and knee s “we re pr og ressing ,” which indicated t hat they wer e a f ew hour s old at the time of the e x amination. He testified that he thoug ht that the victim ’s b re as t s had bee n burned be tween twe lve to twenty -four ho u rs prior to his examination, and the burns “we re in the
pe rf e c t sh ape of a din ne r fo rk .” He te sti fi e d that the bu rn s on that are a wo uldbe e xtre me ly

pa inf ul.

Dr

. D o ty te s ti f

ie d th a t h e w a s u n ab le to a d mi n is te r a p e lv ic e xa mi n a ti o n b e c a u s e of the

severity and extent of the vi ctim’s injuries. He was, howeve r, able to look at the labia, which w ere redde ned and sw ollen to the point that the opening was swollen shut. D r. Doty testified that sec onddeg ree b u rn s o n t h e labia w ere “the c ause of the swelling and discolora tion to the area .” He

e sti m a t e d t h a tt h e b u r n s h a d o c c u rr e d w i t h i n t w e n t y

- f o u r h o u r s o f h i s e xa m i n a t i o n

. D r

. Do ty te sti fi e d that the se bu rn s wo ulda lso be e xtre me ly pa inf ul. Dr . D oty

te sti fi e d th a t he a ndhis nu rs e attempted to do a r ape kit on the victim, and the nurse obtained the victim’s medica l history , as part of the ra pe kit . H e de sc ri be d th e vic tim ’s e mot ion a l c on ditio n a s “ e xtre me ly a nxiou s. ” Dr . D oty testified that the victim indica ted on her rape kit que stionnaire that both f ellatio and anal pe netra tion had occ urre d. Dr. Doty testified t hat t he victim ’s m ost pressing medical need was to be ane sthetiz ed
to a llo w the ins e rt ion of

a c a the te r t o a vo id o the r m e dic a l c omp lic a tio ns

.-6-

Dr. Lisa McI ntosh, a phy sician specia liz ing in obste trics and g y necolog y , testified that Dr. Doty contac ted her

in May of 2000 to examine and treat the victim. She said that, when she arrived at the hospital, the victim was in the eme rg enc y ro om. She testified that the victim had “suff ere d second- deg ree burn injuries to he r vulva, which is the ar ea sur rounding the vag ina.” She sa id that the vi ctim’s larg e “labia on either sides of the vag ina wer e proba bly about three times swollen,” and the small labia “w ere completely adher ent tog ether ,” which obs t ru ct ed the urethra a nd prohibited urination. She said that the ure thra a ppear ed to be infec ted and blisters, located on the vulva, had

ru ptu re d e xpos ing the so ft tis su e a ndloo ki ng “li ke th e e nti re g e nit a l are a ha d b e e n p e e le d o f i ts skin.”

Dr . M c I nto sh te sti fi e d th a t th e se inj ur ie s must ha ve be e n “ e xcruc ia tin g ly pa inf ul” be c a us e the victim would not allow her to touch the a rea , and th e v i ct i m ap p ea red to be in shock. She
te sti fi e d th a t sh e ha d to g ive the vic tim g e ne ra l a ne sth e sia

be fo re sh e c ou ld condu ct a pe lvi c

e xami natio n becau se the i nju ri e s w e re so e xten siv e a nd to s uc h a

se ns iti ve are a . D r. Mc I nto sh testified that, af

ter the a nesthesia wa s g iven, she did a g ener al examination to determine if ther e wa s any trauma to the inside of the vag ina. She said that the victim’s va g ina had “ a bloody discharg e” and a “ pooling of

vag inal secr etions.” She test i fied that ther e wa s an abr asion, a scr atch, a nd a bruise, about the siz e of her thumbnail, on the victim’s c ervix that e ncompassed a bout a third of the

cer vix . Dr. McIntosh testified that this bruise was not consistent with traditional intercour se and wa s

mor e lik e ly c a us e d by “ [s]ome thi ng ha rd [en te ri ng the va g ina ] . . . wi th s ome fo rc e .” Dr . M c I nto sh testified that, during the surg ery , she clea ned the wounds with “ excruciating detail” a nd cover ed the

are a with burn ointment. Dr. McI ntosh testified t hat s he removed a ha ir that she found at the top of the patient’s c ervix, a nd the hair indicated that the victim had re cently had interc ourse. She testified that she also found a nd remove d some secr etions inside the victim’s vag ina, and she g ave the

secr etions to the police off icer . She said the victim tested positi v e fo r gonorr hea. She sa id the victim was unable to urinate for a wee k, and the c atheter

was re moved about a w eek la ter.

Dr. McIntosh testified that she per formed a second sur g ery

on the victim, that related to the same injury

to remove the dead tissue around the burn t o g et t he blood supply back to that are a. She testified that the victim’s labia wa s elong ated by two or t hree times, and it had a hole the size of the doctor’s f inge r that penetr ated the labia. The doctor opined that the elong ation and hole wer e ca used by a burn. The doctor conclude d that the burning instrument did not penetrate the victim’s vag ina. Dr . M c I nto sh te sti fi e d th a t sh e ha d to c ut a ndre a tta c h th e ri g ht labia to the vu lva , but s he wa s u na ble
to rec onstruct it to its normal appe ara nce a nd function. S h e said that ther e would proba bly be
perma nent damag e to that ar ea. O n cross-e x amination, Dr. McIntosh testified that she could not determine the color or

the shape of t he hair found in the victim, and she c ould not determine if the hair c ame f

rom the victim or from a nother sourc e.

Demar cus Smith t estified that, in May of 2000, he w as fifteen y ea rs o l d, and he w as nea r Gra nt’s apartment on May 14 and 15. He s ai d t h at h e went into the apartment whe re he saw the De fe nd a nt, Gr a nt, a ndthr e e oth e r m e n, “ Mo nt, ” “ Ra il, ” a nd Wal te r Yo un g , J r. Smith tes tif ie d th a t, when he enter ed Grant’s apartment, he thoug ht that he saw Y oung and “Mont” g etting or al sex, but he wa s unsure who w as i nvolved. Smit h testified t hat he was inside the a partment for

about fiftee n-7-

t o t w e n t y m i n u t e s

. H e s a i d t h a t Y o u n g a n d “ M o n t ” w e r e h a v i n g s e x w i t h t h e v i c t i m a t the sa me time, and t hey wer e “taking turns” having her perf orm oral sex on them. Smit h testified t hat they

we re in the liv ing ro om, a nd the lig hts we re of f, bu t hewa s a

ble to s e e wh a t w a s h app e nin g be c a us e the re wa s a

lig ht o n in the kit c he n. He sa id that he we nt i nto the kit c he n w he re Gr a nt, the De fe nd a nt, and “Ra il” wer e sitti ng , and they talked for a short time be fore he left. He sa id that he thoug ht he saw the vic tim vomi t in the sink, and she proba bly clea ned it up beca

use “she made the me ss.” He testified that, as he was lea ving, the victim came running naked out of the house. He said that the Def endant told the victim to “kiss” Smith’s penis, but t he victi m never touched him. He te stified that the victim ran a fter him, and she wanted him to let her “kiss” his penis. Smit h testified that the victim was “shaking ,” but he did not notice any unusual marks on he r body . On cr oss-examination, Smith te sti fi e d th a t he didno t ha ve a g oo d me mory

abo ut w ha t ha

pp e ne d o n th a t ni g ht.

Demetr is (“D ee” ) Grant testified t hat, i n May of 2000, she was living with the Def endant a nd he r t wo c hil dr e n. She sa id tha t sh e wa s w or ki ng in L aver gn e , T e nn e sse e , a ndsh e us ua lly ro de to work with the De fenda nt’s g randmother

. She said that the victim was supposed to take her to wor k on Sunday , May

14, 2000, but the victim did not pi ck her u p o r ca l l h er

. She said she ca lled the victim and asked he r if she w as coming to ge t her, a nd the victim said that she was on he r wa y , but she never ar

rived. Gr ant testified that the De fenda nt’s g randmother took her to work late, which

cause d her to lose money . She said that the Def endant’ s g randmother

g ave he r a ride home fr om work a nd took her to g et g roce ries, while t h e De fe n d ant washe d their clothes at the victim’s
apartment. Grant testified tha t she went with the De fenda nt and he r chil dren, in the D efe ndant’s
g randmother ’s truck, to the vic tim’s apartment to pick up the clothes on the ni g ht of May 14, 2000. She said that her children were asleep in the truc k, and the victim was pulling up to the apartment and g oing inside w hen she a rrived.

Gra nt testified that, when she saw the vic tim, she asked her why she did not come a nd pick he r u p, a ndthe vic tim

“ laug h[e d] a

bo ut i t” a ndtho ug ht it wa s f un ny . Sh e sa id tha t sh e arg ue d w ith the victim, a nd she “picke d up a knife off the table and [she] called [the victim] a bitch” a nd told the victim that she would “kick [her] ass.” She testified that she t hen put the kni fe dow n and slappe d, kicked, a nd fo u gh t t h e v ictim. Grant testified that she w as not sure how many times she hit the victim, but, when she pushed the vic tim, the victim hi t the ref rig erator and fe ll. She s ai d t h at s he stood there f

or a minute a nd kicked he r and the n said “now, y ou don’t think its funny any more . . . .” She testified that the vic tim st arte d to ge t ba ck up, and the De fenda nt said “no, y ou know, since

s h e th in k s e v e r y th in g is f u n n y , I a m g o in g to s h o w h e r

f u n n y

. ” G r a n t t e s ti f

ie dth a t th e D e f

endant told the victim to get undre ssed, and she did. She said that she lit a cig are tte on the stove, and the Def endant h an d ed h er a fork a nd told her to “wa rm it up,” and then he took the fork a nd touched both of t h e v ic ti m’ s b r e a s ts w ith th e h o t f o rk

. Sh e te s ti f

ie d th a t th e v ic ti m “ s q u irme d
, ” “ k in d of sh oo k, ” a ndsc re a me d w he n the fo rk tou c he d he r ski n. She sa id that she “ c ou ld he ar it kindof sizzle beca use it was a hot f

ork.” Grant said that the vi ctim then s aid t o “plea se st op” because she did not think it was funny

any more, a nd Gra nt did not say any thing beca

use she was “ somewhat in shock.” She testified that she he ated the f ork the fir st tim e, but the De fenda nt hea t ed the fork the second time. She said that the victim’s re ac t i o n t o the sec ond burn wa s simil ar to the f irst burn, and she hear d the “sizz le sound,” a nd the victim screa med.-8-

Gra nt testified that the victim was “standing up shaking ,” and the Def endant told her

to “g et on the floor.” Gra nt testified that the victim got onto t h e fl o o r in a sitting position, and the Def endant told the victim to lay on her ba ck and “ to bend her leg s.” She sai d t h at t h e Defenda nt “stuck the fork back over the fire,” and he took the for k and “stuc k the fork inside of her,” and the victim screa med. She testified that she tugg ed on the Def endant’ s arm and told him t o stop but the Def endant sa id “no, she thinks it is funny and I will show he r fu nny .” Gr ant testified that the Def endant late r threw the fork in the “ backy ard” wher e they wer e par ked. She testi fi ed that the Def endant took a br oom or mop t h at h ad a b l ac khandle, a nd he put it inside the victim’s vag ina slowly , and it reminded he r of sex

. The victim was “squirming at that point.” She testified that the Def endan t t o o k t he broom out and showe d it to her and ther e wa s “a se cre tion on [ the mop] from [t he victim’s] vag ina,” a nd the Def endant sa id “look at the color [of] it. She has a sexual transmitted dis e a se .” Gr a nt te sti fi e d that the De fe nd a nt a g a in ins e rt e d the mop int o the vic tim ’s va g ina , a ndthi s time “he shove d it hard and it made her sc rea m.” She testified that the Def endant then g ave the mop to her, a nd she wa s holding it while the De fenda nt poured bleach over the mop over the sink. She said that she had be en in a lot of fig hts in her life, a nd she starte d this fight, which she would not have done had she know n what would happe n. Gra nt testified that she neve r burne d the victim’s brea st w ith a hot f

ork, she never inserted the mop ha ndle into the victim’s va gi n a, an d s h e n ever burned the victim’s ge nitals with the heated f ork.

Gra nt testified that the Def endant told the victim to g et up and g et dre ssed. She said that the Def endant talke d about the victim pay ing G rant b ac k for missing w ork, and the victim stated she would pay

whateve r they

wanted. She te stified that the Defenda nt told the vi ctim to write on pa per that Gra nt could keep the victim’s c ar until the victim pa id her. She said that the D efe ndant wante d his na me on the pa

pe r al so be c a us e he wo uldbe the on e dr ivi ng thec ar. She te sti fi e d th a t th e vic tim said, both during and af

ter the a rg ument, that she was g oing to pay them. Gra nt said that she did not

re me mbe r the e xac t a mou nt f or the no te s.

Gra nt testified that, afte r the victim wrote the notes, the De fend an t s aid that he wishe d he “knew wher e Rail and [his friends] w[ ere ]” so that the vic tim could perform oral sex on them. She said that “Rai l ’s ” given na me is Robert Wil son, and he is the De fenda nt’s cousin. Gra nt testified that she g ot in the truck, and the De fe n d an t t o l d h er to stop and g et g as. She said that it was the Def endant’ s idea to g o to her a partment be cause the Def endant wa nted the victim to give his friends oral sex. She testified that she did not want any of this to happen, but s h e d i d not say anything beca use she did not want the D efe ndant t o do to her what he was doing to the victim. Grant testified that, when she got into the t ruck, her children wer e st ill aslee p, and she drove to the g as station. She said that the De fenda nt drove the vic tim’s c ar, and the victim was in the pa sseng er’ s side of the c ar. She testified that, as they rea ched the g as station, there wa s a police c ar, a nd the Def endant stopped

ne xt to the sto re a nd tol d he r to g o a nd g e t g a s. She sa id that, wh e n sh e le ft the g a s statio n, sh e did not stop at the police station beca use her children w ere aslee p, she did not know wher e the poli ce station was, and she was trying to do what the Def endant wa nted.

Gra nt testified that, afte r they left the g as station, the y went to he r apa rtment, she par

ked the truck, a nd the Def

endant we nt up the street to w here some men wer e standing . She testified that the-9-

Def endant sa id “[the victim] was g oing to g ive . . . some fr ee [oral sex] .” She said that she took her children inside the house and into their room. Gr ant t es t i fi ed t h at she we nt downstairs, and the Def endant met he r on the s tairs, gave her a kiss, and tol d her to g o to the kitchen. She said that she went to the kitchen w ith the Defe ndant and sa t on his lap, and some o t h er me n walked into the
apartment. She testified that she, the De fenda nt, “Rail,” Chris, and “Litt l e M ont” all smoked marijuana toge ther in the kitche n while the victim was in the living room. Gra nt testified that she could hea r g uy s laug hing and talking , and a ma n named Fred “ came in the kitchen and he said ‘man, I am in there try ing to g et a nut and [Young ] i s in there making love to her.’ ”

Gra nt testified that she went into the l iving room, and she saw Fr ed and some other men on the couc h, Young on the love seat, and “Fred was ha ving se x with [ the victim] from behind.” She said that Young was “waiting to g et s ome more or al sex from [t he victim] and sex .” She testified that she saw, at a differ ent t ime, the vi ctim g iving Young oral sex . Gra nt testified that she saw the victim giv e “Ke rry ” and “ L ittle Monty ,” or Ma rcus, or al sex. S he said that “ L ittle Monty ” wa s g e tt in g r e a d y

to le a v e , a n d th e D e f

e n d a n t a s k e d h im

if h e w a s “ s u r e [h e ] g o t e n o u g h ” a n d to “ [g ]o g et y ou some more he ad.” She te stified that, as “Little Monty ” wa s leaving , the Def endant told the victim to “g o and give the man s ome m ore head.” She said that the victim followed “Little Monty ,” and she a sked him “y ou want me to suck y our d***,” and he responde d “no,” but the victim, who

w a s n ak e d
, f

o l l o w e d h i m o u t s i d e t h e d o o r

. G r a n t t e s t i f i e d t h a t“ L i t t l e M o n t y” w a s a yo u n g e r g u y, around f ifteen or six teen, a nd she did not know his r eal na me. Gra nt testified that the victim vomited in he r kit c he n a nd on Gr a nt. She sa id that the De fe nd a nt tol d the vic tim to c le a n it up , a ndhe tol d Gra nt to go upstairs a nd chang e.

Gr a nt t e sti fi e d th a t sh e a sk e d th e De fe nd a nt t o sto p, and he sa id n o “ be c a us e [the vic tim ] thought it was f

unny .” She said that she did not want these thing s g oing on in he r house, with her children upstair s. She testified that the De fenda nt told the victim t o do some sit-ups, and, af ter the victim stopped doing sit-ups, “she went b ac k t o g iving or al sex.” She said that she aske d the Def endant if the victim could ge t dressed, a nd “he f inally let her g et dre ssed.” She testified that the De f e n d a n t w a s g o in g to ta

k e th e v ic ti m h o me , b u t “ K e rr y ” a s k e d if s h e n e e d e d a

r id e , a n d the Def endant told “Ke rry ” to g ive her a ride home. She said that, a s far as she kne w, the victim left wi th “ Ke rry ,” a ndsh e didno t kn ow wh a t ha pp e ne d to the vic tim

a ft e r tha t.

Gra nt testified that, afte r the victim left her apartment, the other men a lso left. She said that sh e wa s tal kin g wi th the De fe nd a nt, a ndsh e tol d h im tha t “ thi s is n’ t r ig ht, ” a ndhe re sp on de d “ we ll,
y eah, c ome on, y ou’re rig ht.” She testified that she and the Def endant then left in the victim’s ca r, dropped he r k id s o f

f
, a n d th e n ju s t r o d e ar o u n d
, s to p p e d f o r f o o d
, a n d th e n w e n t b a c k to her
apartment. She said that it wa s g etting light outside when they returne d to her a

partment, a nd they
g ot out of the victim’s car and into the Def

endant’ s mot h er ’s t ru ck, and r ode ar ound some more. Gr a nt te sti fi e d that sh e did no t tr y to c on ta c t th e po lic e a ft e r the vic tim le ft be c a us e sh e wa s a fr a id of the De fe nd a nt. Gr a nt t e sti fi e d th a t sh e wa s c ha rg e d w ith the se c ri me s, a nd sh e pl ed gu ilt y to kidnapping . She ag ree d that a condition for her t en-y ear sentenc e was that she tell the truth, which she had done

.-10-

On cr oss-examination, Grant testified that she did not te ll the police what happene d until she
g ave a s t atement the week be fore trial. She said that she ha s been inc arc erated since she was

arres ted
, and th e De fe nd a nt c ou ld n ot g e t to he r i n ja il. She te sti fi e d th a t, a nytim e du ri ng the la st nine months, she could have contac ted the police a nd told them that she was innoce nt, and the Def endant wa s g uilty
, but he r attorney told he r not to speak with a ny one. She admitted that, had her

case g one to t rial, she would have been tried on the s ame charg es as the D efe ndant: four c ounts of

a g g ra va te d r ape ; tw o c ou nts of e sp e c ia lly

a g g ra va te d kidn app ing ; one c ou nt of a g g ra va te d a ssa

ult ; and one c ount of exto rt i o n

. Gr an t t estified that her lawy er told her

that “the wor st case sc enario” would be one hundr ed six ty y ear s in prison, and her de cision to plead g uiltywas ba sed on her attorney ’s advice . She said t h at s h e an d the Def endant ha d been dating a

couple of

months at the tim e of the se e ve nts . Sh e te sti fi e d th a t th e De fe nd a nt t oldhe r tha t he ha d p re vio us ly ha d s e x with the victim. She said that she was a ng ry with the victim f

or ly ing to he r about not picking he r up for work on May

13, 2000.

Christ y Clin ton te sti fi e d th a t, o n M a y 14
, 20 00
, sh e liv e d ne xt d oo r to the vic tim . Sh e sa id that, on that evening , she ca me home, and, a s she was g ot out of her car , she saw the vi ctim pull up in her c ar hur

riedly . She said that she saw th e v ictim “jump out” of her ve hicle and r un into the house, and the Def

endant and his g irlfriend, G rant, a rrived in a truck. She testified tha t Grant e x ited the De fe nd a nt’ s v e hic le , an d she app e are d ups e t “a bo ut a rid e a nd

. . . [the De fe nd a nt an d th e vic tim ] having sex before.” C l i n t o n t es tified that Gra nt beg an to ar g ue with the victim outside of the vic tim ’s apa

rt me nt, a ndthe arg ume nt c on tin ue d a s the y wa lke d int o th e apa rt me nt. She sa id tha t, as t he victim and Grant enter ed the apartment, she hea rd “[s]creaming and beg g ing” from inside the victim’s apartment. She stated that the victim wa s “scr eaming bloody murder,” and she w as positive that this noise came f

rom the victim’s apa

rtment. Clinton t estified that, during this arg ument, the Def endant wa s outside in the truck. She said that the Defenda nt then went into the apa rtment wher e the vic tim a ndGr a nt w e re arg uin g . Sh e te sti fi e d th a t, a ft e r the De fe nd a nt w e nt i nto the apa rt me nt, she did not hear

scre aming but, rather , “[m] ore like moa ning.”

On cr oss- ex amination, Clint on testified that she c alled the police when she hear d the

scre aming , and she c alled the police ag ain when there was no noise. She said that she did not know if there was a ny one in the apa rtment the first time she c alled the police . Conversely
, s h e testi fied that she neve r ca lled the police when she hear d the scre ams from the a partment. She c larified that she made the first ca ll to the police as the pe ople in the victim’s apar tment were leaving . Clint on testified that she re fused to g ive her name to the police, and she told the police that she “did not wa nt to b e inv olv e d. ” She te sti fi e d th a t sh e wa s u ps e t w he n th e po lic e dis c ov e re d he r n a me a ndc a me to interview he r bec ause she did not want any one to think she was a “snitch.”

Ba sed upon this evidence , the jury found the Def endant g uilty of two counts of fa cilitation
t o co m m i taggr av at ed ra p e, aggr av at ed as s au l t , ex t o rt i o n , an d es p ec i al l y aggr avated kidnapping . The
tr ia l c ou rt se nte nc e d th e De fe nd a nt, a s a Ra ng e I sta nd ardof

fe nd e r, a t th ir ty

pe rc e nt, a s f

oll ow s:
Count 1, facilitation to commit agg ravated ra pe, a Class B felony , ten y ear s Count 2, facilitation to commit agg ravated ra pe, a Class B felony , ten y ear s-11-

Count 4, ag g ravated assault, a Class C fe lony , six y ear s Count 5, ex tortion, a Class D felony , four y ear s

A d d it io n a lly , in Count 6, especially ag g ravated kidnapping , a cla ss A felony , the trial court sentence d the Def endant to twenty -two y ear s and six months, as a viol ent offender

. The trial court orde red the sentences for f

acilitation to commit agg ravated ra pe, ag g ravated assault, and e x tortion to run

concur rently with eac h other, but conse cutively to the espec ially

ag g ravated kidnapping conviction, fo r a n e ff e c tiv e se nte nc e of

thi rt y -t wo y e ars a ndsix mo nth s.

II. Ana lys is

On appea l, the Def

endant contends that: (1) the trial court erre d when it fa iled to instruct the jury on acc omplice testimony ; (2) he w as denied a unanimous jury

verdic t; (3) the trial c ourt err ed by failing to rec use itself; (4 ) t h e evidence is insuffic ient to support his convictions; (5) he wa s de nie d h is rig ht t o an impa rt ia l ju ry be c a us e c e rt a in jur or s c on sid e re d e vid e nc e no t a dmi tte d a t tria l; (6) the trial court e rre d by failing to rec use the Assistant District Attorney Gene ral a t trial; (7) he w as denied a fair trial beca

use he was required to wear le g -shac kles during the trial; (8) he was de nied a fa ir trial due to the r acia l compos i t i o n o f t h e jury ; and (9) the trial court e rre d by enhanc ing the De fe n d an t ’s s en t en ce s an d o rd er i n g co n s ec u t i v e s en t en ci n g.

A. Acc om plice Jury Instruction

The De fenda nt asserts that the t rial court committed reve rsible error when it failed to instruct the jury o n t h e l aw reg arding acc omplice testimony . A cr iminal defenda nt cannot be c onvicted solely on the uncorr oborate d testimony of an acc omplice. State v. Big bee, 885 S.W .2d 7 9 7
, 8 03 (Tenn. 1994)

. An acc omplice is a per son who knowing ly , voluntarily and with a c ommon intent unites with the principal off ender in the commission of a crime. State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997) . This Court has stated:

The question of who deter mines whether a person is an accomplice de pends upon the fac ts of eac h case

. When the fac ts of a witness’ participation in a crime a re c lear and

un dis pu te d it

is a qu e sti on of

la w f or the c ou rt to d e c ide . Wh e n s uc h f a c ts a re in dispute or susceptible of an infe renc e that a wi tness may or may not be an

acc omplice, it then become s a question of fa ct for the jury to decide.

State v. L awson, 794 S.W .2d 363, 369 (Tenn. Crim. App. 1990) ; Be thany v. State, 565 S.W .2d 900, 90 3 ( Te nn . Crim. Ap p. 19 78 ). Whe the r the te sti mon y of an acc omp lic e ha s b e e n s uf fi c ie ntl y

corr oborate d is a question for the jury . State v. Hef li n , 15 S.W .3d 519, 524 (Tenn. Crim. App. 19 99 ). Ho we ve r, c or

ro bo ratin g e vid e nc e ne e d n ot b e su ff ic ie nt i n a ndof

its elf to su pport a conviction, but it must fairly connec t th e d ef

en dant with the commission of the crime. State v. Gay lor, 862 S.W .2d 546, 552 (Tenn. Crim. App. 1992) . I n the abse nce of a spec ial reque st, the trial court doe s not err by failing to instruct the jury about ac complice testimony even if the circ umstances of the c ase w arr ant such a n instruction. State v. Anderson, 985 S.W.2d 9, 1 7 (T en n

. Crim. App.-12-

1997); see a lso St ate v. Roy Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL 1217118, at *9- 10 (Tenn. Crim. App., a t Nashville, J une 3, 2004), no perm app. filed

.

At the mot ion fo r n e w t

ri a l he ari ng , the c ou rt fo un d, “ Th e e vid e nc e of [the De fe nd a nt’ s] g uil t as to ea ch count f

o r wh i ch h e wa s convicted, w as compe lling evide nce a nd the omission of the

acc omplice instruction even if err oneous wa s . .

. harmless.” We conclude that the trial court did not

err by failing to instruct the jury on acc omplice testimony . First, we note that the De fenda nt was not convicted s o l el y o n acc omplice testimony , and ther e we re multiple other witnesse s to the Def endant ’s ac t i o ns, including the victim, who also testified. The jury acc redited a nd based the Def endant’ s conviction, at lea st in part, upon, the victim’s testimony . Gra n t, the acc omplice,

c or ro bo rate d mu c h o f the vic tim ’s te sti mon y , a ndsh e pr ov ide d mor e de ta il ab ou t some of the c ri me s. F urthe rm or e , th e De fe nd a nt f a ile d to re qu e st a n a c c omp li ce te sti mon y ins truc tio n. Un de r the se

c ir c ums ta nc e s, a s st a te d a bo ve , a lth ou g h a n in str

ucti on on acc omp lic e te sti mon y wo uldc e rt a inl y have be en warra nted considering the testimony of Grant, we conclude that any err or by the trial court wi th r e g ardto this iss ue is h arm le ss. Th is i ssu e is w ith ou t me ri t.

B. Unan im ous Verdict

Th e De fe nd a nt c on te nd s th a t th e jury didno t un a nim ou sly

c on vic t hi m f

or tw o re a so ns . F ir st, the tr ia l c ou rt

didno t e ns ur e a

un a nim ou s v e rd ic t be c aus e it did no t pr op e rl y po ll the jur or s o n c ou nts one and two. Sec ond, the S tate failed to elec t fac ts upon which it was re ly ing f or the two c ounts of
rape . The State c ontends that the re cord shows tha t the jurors wer e polled for both c ounts. Further
, the State asserts that counts one and two did not re quire e lection.

1. Jur y P oll

Tenne ssee Rule of Criminal P ro ce dure 31( d) provides “ [w] hen a ve rdict is returne d and befor e it is recor ded the jury shall be polled at the r equest of a ny party o r u p o n the court’s own motion. I f upon the poll, there is not unanimous concur renc e the jury

may be dire cted to retire f

or further deliberat i o n s or may

be discha

rg ed.” T ennesse e appe llate courts have c oncluded that “ no particula r form of answe r i s essential on the pol ling of a jury
, it being suf ficient if the a nswer of

the juror . . . indicate s with reasona ble ce rtainty

that the ver dict is his [ or her ] own.” See Dixon S tave & H ea ding Co. v. Ar cher , 40 Tenn. App. 327, 291 S.W.2d 603, 608 (1956); see a lso St ate v. Clay ton, 131 S.W .3d 475, 479 (Tenn. Crim. App. 2003)

.

I nitially
, we note that, in the case under submissi on, the Defenda nt did not reque st that the jury be polled. The trial court did, howe ver, poll the jury in the following exchang e:
THE COURT: All rig ht. L adies a nd Gentlemen, let me g et an indica tion of y our – of y our ag ree ment. I ’ll take these one at a tim e. As to count one , g uiltyof fac ilitation of ag g ravated ra pe. I s this the ver dict of ea ch of y ou; if so raise y our ha nd s. (All jurors ra ise their hands.)-13-

THE COURT: The ve rdict is unanimous. Count two guilty of fa cilitation of

a g g ra va te d r ape . I s th is y ou r v e rd ic t? (Some jurors ra ise their hands a nd other juror s say : Yes.) THE COURT: You either have to – y o u h av e to raise y our hands. I ’m g etting a n indication for the r ecor d. (All jurors ra ise their hands.) TH E CO UR T: L e t th e re c or d r e fl e c t it is u na nim ou s.

The trial c ourt proce eded in the s am e m anner to determine that the jury ’s ver dicts as to all the

a dd iti on a l c ou nts we re a lso un a nim ou s. Cle arl y , b a se d o n th e re c or d, the jurors wer e po lle d to de te rm ine that th e ir

de c isi on wa s una nim ou s for e a c h co un t. Th e re fo re , this iss ue is witho ut m e ri t.

2. Election of O ff

enses

Th e T e n ne sse e Sup re me Cou rt “ ha s c on sis te ntl y

he ld tha t th e pr os e c uti on mus t e le c t th e fa c ts upon which it is rely ing to e stablish the charg ed offense if evidence is introduced at tria l indicating that the def

endant ha s committed multiple offe nses ag ainst the victim.” State v. J ohnson, 53 S.W .3d 628, 630 (Tenn. 2001) (citing State v. Kendrick, 38 S.W .3d 566, 568 (Tenn. 2001); State v. Br own, 99 2 S. W.2 d 3 89 , 391 (T e nn . 1 99 9) ; State v. Wal ton , 9 58 S.W. 2d72 4, 72 7 ( Te nn . 1 99 7) ; T idw e ll v. State, 922 S.W .2d 497, 500 (Tenn. 1996) ; State v. Shelton, 851 S .W.2d 134, 137 (Tenn. 1993)). The e lection re quirement “ safe g uards the defe ndant’s st ate constitut ional rig ht to a unanimous jury verdic t by ensuring that jurors deliberate and rende r a verdict base d on the same e vidence .” I d. at 63 1 ( c iti ng B ro wn , 9 92 S.W. 2d a t 39 1) ; se e Ke nd ri c k, 38 S.W. 3da t 56 8. Th e Te nn e sse e Sup re me Court expl ained that “ ‘[a] defendant’ s rig ht to a unanimous jury befor e convic tion requires the trial court to take prec autions to ensure tha t the jury deliberates over the particula r cha rg ed off ense, instead of c reating a

“patc hwork verdict” based on diffe rent off enses in evide nce.’ ” Ke ndrick, 38 S.W .3d at 568 (quoting Shelton, 851 S.W .2 d at 1 3 7 ). Moreove r, the e lection re quirement ser ves other intere sts as well: “it enable s a defenda nt to prepa re for a specific c harg e; it protects a de fenda nt

a g a ins t do ub le je op ard y ; it e na ble s th e tr ia l c ou rt to re vie w the we ig ht o f the e vid e nc e in i ts c apa c ity as thirteenth juror ; and it enables the appellate court to revie w t he lega l sufficie ncy of the e vidence .” I d.

“ Th e ne c e ssi ty

of re qu ir ing the Sta te to m a ke a n e le c tio n o f the pa rt ic ula r o ff e ns e it w ill re ly on for c o n v ic ti o n

. . . is

. . . f u n d a me n ta l, im me d iate ly to u c h in g th e c o n s ti tu ti o n a l r ig h ts o f an

acc used, and should not depe nd upon his demand therefor .” Bur lison v. State, 501 S.W .2d 801, 804 (Tenn. 1973) . Although the fede ral constitut ion’s require ment of unanimity among jurors has not been imposed on the states throug h the Fourteenth Amendme nt, “there should be no question that the unanimity

of twelve jurors is require d in criminal ca ses under our state constitution.” State v. Br own, 823 S.W.2d 576
, 5 8 3 (T en n

. Crim. App. 1991). The Te nnessee Supreme Court held that “whe re the indictment char g es t hat s ex crimes occurr ed over a span of time, evidence of unlawf ul

se xua l c on ta c t be tw e e n th e de fe nd a nt a ndthe vic tim a lle g e dly oc c ur ri ng du ri ng the tim e c ha

rg e d in the ind ic tme nt i s a dmi ssi ble ,” bu t, at th e c los e of pr oo f, the Sta te mus t e le c t th e fa c ts u po n w hic h it is rely ing f

or convic tion. St ate v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994).-14-

The re quirement of

e le c ti o nan d

a ju r y unanimity

instruction exi sts even thoug h the def endant has not reque sted them. Bur lison, 501 S.W .2d at 804. Fa ilure of the S tate to elec t offense s when the pr oo f r e qu ir e s a n e le c tio n is c on sid e re d a n error of c on sti tut ion a l ma g nitud e a ndwi ll r e su lt i n

reve rsal of the conviction, abse nt the error be ing ha rmless bey ond a re asonable doubt. See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000); Shelton, 851 S.W .2d at 138-39.

I n this c as e, t h e De fendant contends that counts one and two ar e sepa rate alleg ations of

a g g ra va te d r ape a ndthe Sta te fa ile d to e le c t f a c ts u po n w hic h it

wa s r e ly ing to supp ort th e se

c on vic tio ns . T he ind ic tme nt, wh ic h th e Sta te re a d to the jury a t the be g inn ing of the tr ia l, s e t f orth the c ha rg e s a s f oll ow s:

COUNT 1: That on or a

bout the 14 day

of May , 200 0
, and in the State and County afor esaid, th RONNE L L JASON DUP REE LE BERRY

. . . u n l a w f u l l y, f e l o n i o u s l y, intentionally

and knowing ly

did sex ually

penetrat e [ t h e v ictim,] and at the time of sai d sexual penetration, the sa id Defe ndant[] did cause the said victim to suffer bodily injury , by inserting a mop handle in he r vag ina, in violation of TCA 39-13-502 and ag ainst the pea ce a nd dignity of the State of T ennesse e . . . .

COUNT 2:

And the Gr and Jurors afore said, upon their oath afor esaid, do further pre sent and say that on the date a fore said, and in the State a nd Countyafor esaid, the sa id RO NN ELL J A SO N D U P R EE LE BERRY

. . . unlawfully , feloniously , intentionally and knowing l y

did sex ually

penetr ate [the victim,] and at the time of said sexual penetr ation, the said Def

endant[] did cause the said victim to suffe r bodily injury , towit: by inserting a mop handle in he r vag ina, i n v iolation of TCA 39-13-502 a nd
ag ainst the pea ce a nd dignity of the State of T ennesse e . . . .

Th e tr ia l c ou rt

g a ve the fo llo wi ng jury

ins truc tio n r e g ard ing un a nim ity of ve rd ic ts:

M UL TIP LE C OU NT S: F IN DI NG ON EA CH RE QU IR ED The c rime cha

rg ed in ea ch count of the indictment is a separ ate a nd distinct offe nse. You must decide eac h char g e sepa rate ly on the evidenc e a nd the law applicable to it. The defe ndant may be found g uilty or not g uilty of any or all of the offe n s es ch arge d. Your finding as to ea ch crime char g ed must be stated in y our

ve rd ic t.

JU RY : D ELIB ER AT ION The ve rdict must repre sent the consider ed judg ment of ea ch juror. I n order
to return a verdic t, it is nece ssary that eac h juror ag ree there to. Your ver dict must be unanimous . . . .T h e j u r y c on v i ct ed t h e D ef en dan t of

t h e l es s er

- i n cl u ded of

fen s e of f ac i l i t at i on t o c ommi t a g g r av at ed r ape 2

i n e ach of

t he t wo count s al l egi ng ag gr ava t ed r ape.

-15- Th e De fe nd a nt c on te nd s th a t th e Sta te fa ile d to e le c t f a c ts u po n whi c h to e sta

bli sh se pa rate acts of ag g ravated rape by the Def endant. Further, the Def

endant a sserts that the testimony prese nted at trial did not establish separ at e ac t s o f ag g ravated ra pe. The State arg ues that no ele ction issue

aro se a s to the tw o a g g ra va te d r ape c ou nts be c a us e , inboth cou nt s, the ind ic tme nt s pe c if ic a lly char g ed sexual penetr ation by the insertion of a mop ha ndle into the victim’s vag ina. Further, the Sta t e as s er t s t h at t he evide nce at trial clea rly showed two sepa

rate acts of a g g ravated ra pe. Af ter thoroug hly

revie wing the re cord, w e ag ree with the State that no elec tion issue arose as to the two

a g g ra va te d r ape c ou nts

.

A ca ref ul examination of the trial transcript shows that Grant testified about two sepa rate and dis tin c t in c ide nts of

a g g ra va te d r ape . G ra nt t e sti fi e d th a t the De fe nd a nt ins e rt e d a mo p h a nd le int o the victim’s vag ina slowly and then r emoved the mop ha ndle to show to Grant. Gr ant testified that the De fe nd a nt p e ne tr a te d th e vic tim a se c on d tim e wi th the mop hand le a nd thi s tim e “ he sh ov e d it hard a nd it made her scre am.” The ref ore, w e conc lude that no elec tion issue arose r eg arding the two

c ou nts fo r a g g ra va te d r ape be c a us e Gr a nt’ s te sti mon y abo ut the tw o inc ide nts c or re sp on de d e xac tly wi th the c ha

rg e s o f a g g ra va te d ra

pe in the ind ic tme nt, the re by e ns ur ing un a nim ou s v e rd ic ts o n th os e counts. Thus, we c onclude that the State w as not requir ed to elec t offense s for the two a g g ravated

2
rape counts, one a nd two, beca use the c onvictions in these counts were clea rly based on the evidenc e of the two incidents involving sexual pe netra tion of the victim’s va g ina with a mop ha ndle. I n our vie w, the re is n o d a ng e r tha t th e jury c re a te d a “ pa tc hw or

k” ve rd ic t ba se d o n d if

fe re nt o ffen se s in

e vid e nc e . T his iss ue is w ith ou t me ri t.

C. Rec usal of T rial Judge

The De fenda nt ne x t c ontends that the trial court err ed when it r efuse d to r ecuse itself upon the De fe nd a nt’ s mo tio n. Spe c if ic a lly , th e De fe nd a nt a sse rt s th a t th e tr ia l ju dg e wi tne sse d a n a ssa ult committed by

the Def endant ag ainst his pr evious counsel, which raised the question of the c ourt’s impartiality

throug h the trial and at sentencing . The State contends that there is no evidence that the trial judg e witnessed a n assault, and, f urther, the re is no evide nce tha t the trial judg e wa s biased.

At the hea

ring on the motion for new trial, the court stated:

Wit h res p e c t to

. . . th e c la im th a t th e Co u r t w a s b ia s e d a n d s h o u ld n o t ha ve conducte d the trial, there simply j u st isn’t any evidenc e to that. I t is [ the De fe nd a nt]’ s c on te nti on , h e su rm ise s, he sp e c ulate s that if the Cou rt wi tne sse d h im

a s s a u lt in g [t h e A s s is ta n t P u b li c D e f e n d e r ] i n a

c a s e u n r e late d to th e c a s e th a t w e nt to trial, that just because the C o u rt s aw t hat that somehow that just means that the Court is bias[ ed] and should not preside in the trial in w hich he wa s convicted of the-16-

c on vic tio n th a t he is n ow c omp la ini ng abo ut. Th a t is jus t w ha t he thi nk s mu st b e in the Cou rt ’s min d, bu t the re is a bs olu te ly no thi ng that th e Cou rt

sa id o r d id, the re is no evidenc e pre sented he re, the re is no leg al ar g ument that the court has hea rd that convince s the Court that it should not h av e p re s i d ed or in the wa y that it presided somehow that [ the Def

endant] was denie d due proc ess and e qual protec tion, there jus t si mpl y

- - I ha ve n’ t he ardit.

A trial judg e should rec use himself or he rself w heneve r t he judge has any doubt as to his or her a bilityto preside impartially or whe never

his or her impartiality can rea sonably be questioned. State v. Pannell, 71 S.W .3d 720, 725 (Tenn. Crim. App. 2001). This is an objective standard. A lley

v. Sta te , 8 82 S.W. 2d81 0, 82 0 ( Te nn . Crim. Ap p. 19 94 ). “ Th us , wh ile a tr ia l jud g e sh ou ld g ra nt a

re c us a l wh e ne ve r the jud g e ha s a ny do ub ts abo ut his or he r abil ity to pr e sid e imp art ia lly
, re c us a l is

a lso wa rr a nte d w he n a

pe rs on of or din ary pr

ud e nc e in the jud g e ’s po sit ion , k no wi ng a ll o f the fa c ts known to the j udg e, would find a re asonable basis for que stioning the judg e’s impartiality .” I d. The
tr ia l ju dg e re ta ins dis c re tio n ove r his or he r re c us a l. Sta te v. Smith, 90 6 S. W.2 d 6 , 1 1 ( Te nn . Crim. App. 1995). Unless the evidenc e in the re cord indicates that the fa ilure to rec use wa s an abuse of discretion, this court will not interfer e with t h at dec ision. S tate v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)

.

The re cord in this case contains “nothing more than circumstanc es from which it might be inferr ed that the [t ]rial [j] udg e might have some rea son to have . . . [an] unfavora ble opinion” of the Def endant. Wiseman v. Spaulding , 573 S.W .2d 490, 493 (Tenn. Ct. App. 1978). The fac ts alleg ed

are insufficient to war

rant a finding by this Court that the trial judg e committed re versible e rror by ref using to re cuse himself. The re is no evide nce in the record to support this claim. Thus, we c annot conclude that the trial judge abused his discr etion by deny ing the Def endant’ s motion t o rec use the
tr ia l ju dg e . T his iss ue is w ith ou t me ri t.

D. Suf fi ciency of the Evidence

The De fenda nt contends that the e vidence was insuffici en t t o support his convictions for fa ci l i t at i o n o f a ggra v at ed ra p e, aggr av at ed as s au l t , ex t o rt i o n , an d es p ec i al l y aggr av at ed k i d n ap p i n g. When an ac cused c halleng es the suff iciency of the e vidence , an appe llate court’s standard of re view is w hether
, afte r considering the evidenc e in the light most fa vorable to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. Tenn. R. Ap p. P. 1 3( e ); Jac ks on v. Vi rg ini a , 443 U.S. 307, 324 (1979); State v. Carter , 121 S.W .3d 579, 5 8 8 (T en n

. 2 0 0 3 ); S t at e v. S m i t h
, 2 4 S

. W

. 3 d 2 7 4
, 2 7 8 (T en n

. 2 0 0 0 ). T h i s ru l e a p p l i es t o fi n d i n gs of g uilt based u p o n direc t evidence , circ umstantial evidence , or a c ombination of both direct and

c ir c ums ta nti a l e vid e nc e . St a te v. Pe nd e rg ra ss , 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

I n d e te rm ini ng the su ff

ic ie nc y of the e vid e nc e , th is Cou rt sh ou ld n ot r e -w e ig h o r r e -e va luate the evidenc e. State v. Matthew s , 805 S. W.2 d 7 76 , 7 79 (T e nn . Crim. Ap p. 19 90 ). No r m a y thi s C o u rt s u b s t i t u t e i t s i n fe re n ce s fo r t h o s e d ra wn b y t h e t ri ero f f

ac t fr o mt h e e v i d en ce

. S t at e v

. Bu ggs , 99 5 S.W. 2d 10 2, 10 5 (T e nn

. 19 99 ); L iaka s v. Sta te
, 286 S.W .2d 856, 859 (Tenn. 1956) . Questions-17-

c on c e rn ing the c re dib ili ty of the wi tn ess es, the we ig ht a ndva lue of the e vid e nc e , a s w e ll a s a ll fac tual issue s ra ised by

the evidenc e ar e re solved by the trier of

fac t. L iakas

, 286 S.W .2d at 859. This Court must aff

ord the State of T ennesse e the strong est leg itimate view of the e vidence contained in the rec ord, as well as all rea sonable infere nces which may be dra wn from the e vidence

. State v. Evans

, 838 S.W .2d 185, 191 (Tenn. 1992). Be cause a verdict of guilt ag ainst a def endant removes the presumption of innoce nce a nd raises a presumption of g uilt, the convicted criminal de fe nd a nt b e ars the bu rd e n o f s ho wi ng that th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o s us ta in a

g uil ty verdic t. I d.; see State v. Car ruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000)

.

1. F ac ili ta ti on t o C om m it Ag gr av at e d Ra pe

The De fenda nt contends that the e vidence was insuffic ient to support his co n v i ct i on for fac ilitation to commit agg ravated ra pe. The ag g ravated ra

pe statute provide s, in pertinent part, as follows, “Ag g ravated ra

pe is unlawful se x ual pene tration of a vic tim by t h e d ef endant or the defe ndant by

a victim acc ompanied by any of the following circ umstance s : . . . (2) The defe ndant

cause s bodilyinjury

to the v i ctim . . . .” Tenn. Code A nn. § 39-13-502 ( a)( 2) (1997) . Tenne ssee Cod e An no ta te d s e c tio n 3 9- 11 -4 03 (a ) d e fi ne s “ fa c ili ta tio n” a s f oll ow s:

A per son is criminally

responsible for

the fa cilitation of a f

el o n yif, knowing that another in te n d s to c o mm it a s p e c if ic f e lo n y , b u t w ith o u t th e in te n t r e q u ir e d f or crimi n al responsibilityunder § 39- 11-402(2) , the per son knowing ly furnishes substantial assistance in the c ommissi on of the fe lony

.

An instruction on fac ilitation addre sses the Defenda nt’s role in the c rime as a fac ilitator and
not as a party to the offense. See L ocke, 90 S.W .3d at 672-73. I n order for r easona

ble minds to find the Def endant g uiltyof fa cilitation of ag g ravated ra pe, the jury

would have t o co n cl ude that the Def endant, a lthough ne ither ac ting with the intent to promote a g g ravated rape nor be nefitting in the results, provided substantial assistanc e knowing that Demetris Grant intended to c ommit agg ravated
rape . See Te nn. Code Ann. § 39-11- 403(a)

.

After considering the evidenc e i n t h e l i g ht most favorable to the State, we c onclude that suffic i ent evidenc e exists i n the re cord to support the D efe ndant’s convic tions for fac ilitation of
ag g ravated ra

pe. At trial, the vic tim testi fied that e ither the De fenda nt o r Gr an t inserted a mop handle into her

vag ina. Gra nt testified that the De fenda nt inserted the mop handle into the victim’s
vag ina twice. T he re cord c ontains expert medical testimony that overw helmingly

supports the State’s assertion that the victim suffere d bodily injury from the incidents involving the mop handle. Further, the e vidence presented at trial showe d that Gra nt was cha rg ed with these c rimes and

rec eived a

ten-y ear sentenc e in exchang e for her pleading g uiltyto kidnapping a nd testify ing at the De fe nd a nt’ s tria l. F urthe r, Gr a nt a dmi tte d that sh e sta rt e d a fi g ht w ith the vic tim

be c a us e the vic tim failed to g ive Gra nt a ride to wor k, and the f

ight e scala ted i nto the criminal episode tha t beca me the basi s for this trial. A re asonable jury could conc lude that Gra nt was the princ ipal party of the offe nse, and tha t the Def

endant wa s the fac ilitator of the ag g ravated ra pe and pr ovided substantial assistance in the commission of the offe nse. We conc lude, t here fore
, that the evidenc e wa s sufficient-18-

to support the Def

endant’ s convictions for f acilitation of ag g ravated ra pe.

2. Ag gr av at e d As sa ult

The De fenda nt next contends that the ev i d ence is insufficient to sustain his conviction for
ag g ravated assault. A person commits ag g ravated assault who ‘“intentionally

. . . knowing ly . . . or

re c kle ssl y c omm its a n a ssa

ult ” a nd e ith e r “c a us e s seriou s b od ily inj ury ” or “ us e s o r d isp la y s a

de a dly

w e ap o n

. ” T e n n

. C o d e A n n

. § 3 9

- 1 3

- 1 0 2 ( 1 9 9 7 )

. A p e r s o n c o m m i t s a s s a u l tw h o “ [ i ] n t e n t i o n a l l y, knowing ly

or recklessly cause s bodily injury to another

. . . .” Tenn. Code Ann. § 39-13-101( a)( 1) (1997). “ Serious bodily

inju ry ” m ea ns bodilyinjury which involves: a substantial risk of de ath; protrac ted unconsc iousness; ex treme phy sical p ai n; protrac ted or obvious disfig ureme nt; or p r o t r a c t e d l o s s o r s u b s t a n t i a l i m p a i r m e n t o f a f u n c t i o n o f a b o d i l y m e m b e r , o r g a n o r m e n t a l f a c u l t y. Tenn. Code Ann. § 39- 11-106(a )(34) (1997).

Viewing the evidenc e in the light most fa vorable to the State, we conclude that a rational trier of fa ct could have found the e ssential elements of ag g ravated assault bey ond a re asonable doubt. At trial, the vi ctim testified t hat bot h the Defenda nt and Grant took turns heating a fork on the stove and burning her br easts and vag ina while she wa s on the floor. Gr ant testified that the De fenda nt ordere d the victim to ge t undressed a nd the victim did. Grant said that while s he li t a ciga rette on the stove, the Def end an t h an d ed h er a fork and told Gra nt to place it on the stove. Gr ant testified that the Def endant then presse d the hea ted fork to the vic tim’s breast. Gr ant’s testimony was c orrobor ated by the testimony

of the victim and the me dical evidence that was presented. Dr. Dotytestified that the injuries to the victim’s brea sts would be extremely painful. We co n cl u d e, therefor e, that the evidenc e wa s sufficient to support the Def endant’ s conviction for ag g ravated assault and this issue is w ith ou t me ri t.

3. Extortion

The De fenda nt contends that the e vidence i s insufficient to support his conviction for extorti on. A per son commits ex tortion who “uses coer cion upon another person with the intent to: (1) Obta in property

. . . .” Te nn. Code Ann. § 39-14- 112 (1997).

I n the ca se under submissi on, the vi ctim testified t hat t he Defenda nt and Gr ant forc ed her
, by threa tening her life, to w rite a note to the Def endant and Gra nt that she owed them $250.00. She said that she was forc ed to ag ree that, until she could g et them the money , her c ar w ould be used a s collater al. Gra nt testified that the Def endant sa id that the victim should pay Gra nt back be cause the victim was the re ason Gra nt missed work. She said that the Defenda nt told the vi ctim to write down that Gra nt could keep the victim’s car until the victim paid her. She also testified that the De fenda nt wanted his na me on the paper beca use he would be driving the car

. We conclude, the ref ore, tha t the evidenc e wa s sufficient to support the De fenda nt’s conviction for e x tortion.

4. Espe c ial ly A gg r av at e d K idna pping-19-

The De fenda nt contends that the e vidence is insufficient to sustain his conviction for

e sp e c ia lly a g g ra va te d k idn app ing . Esp e c ia lly a g g ra va te d k idn app ing is d e fi ne d a s “ kn ow ing ly

re mov [ing ] or

c on fi n[in g ] an oth e r u nla wf ull y so a s to inte rf

e re su bs ta nti a lly

wi th the oth e r’ s li be rt y . . . wher e the victim suffe rs serious bodily injury .” Te nn. Code Ann. § 39-13- 302, -305 (1997)

.

After considering t h e ev i dence in the light most favor able to the State, we conclude that

su ff ic ie nt e vid e nc e e xists in the re c or d to su pp ort the De fe nd a nt’ s c on vic tio n f or e sp e c ia lly
ag g ravated kidnapping

. Th e vic tim te sti fi e d th a t th e De fe nd a nt a nd Gr a nt fo rc ibl y c on fi ne d h e r t o her home
, an d s h e s u ff

ered serious bodily

injury as a r esult, that being burns to her br easts and

va g ina . D r. Do ty

a ndthe vic tim te sti fi e d th a t th e vic tim ’s bu rn s r e su lte d in e xtre me ph y sic a l pa in for the v i ctim, which is a for m of “serious bodilyinjury .” Te nn. Code Ann. § 39-11- 106(a) (34) (1997). F urther, the victim testified that the Def endant and Gra nt placed he r in fea r for her life and then the De fenda nt drove t he victim, in the victim’s own vehicle, to Gr ant’s apa rtment wher e the vic tim wa s fo rc e d to pe rf

or m va ri ou s se xua l a c ts. We c on c lud e the re is s uf fi c ie nt e vid e nc e to s us ta in the Defenda nt’s conviction for espec ially ag g ravated ki dnapping and, therefor e, thi s issue is without merit.

E. Im partial Jury

The De fenda nt contends that jurors c onsidered e vidence not submi tt e d at trial, and, ther efor e, he wa s denied his rig ht to trial by an impartial jury

. T he State asse rts that the trial court did not abuse its discre tion by

determining that the jury

did not act improperly

. At the hearing on the motion for ne w trial, the Def

endant testified that he was seate d on the other side of the jury room wall and he ardc on ve rs a tio ns fr om the jury ro om. Th e De fe nd a nt t e sti fi e d a s f oll ow s:
They wer e talking . I

don’t know if they

wer e a jur or or not, whoe ver w as in that room rig ht there, w hich is the jury room, y ou could hea

r them bec ause the bench sits right ag ainst the wall rig ht there.

. . . .

When I was sitting right ther e, ther e wa s a male a nd fema le, they g ot to talking a nd they was de liberating , they

g ot loud, she said - - we ll, I know, my

Mama wa s rape d -

- a ndI sa id .

. . wh o w a s tha t? Th e n some bo dy ma de a c omm e nt l ike he sa id w e ll m y ha ndwa s b ur ne d. So I kn ow ho w it fe e ls to be bu rn e d. So I sa id a ll rig ht, a ndI

sa id I know who that is? That’s a . . . juror.

At the hea

ring on the motion f

or new trial, the trial court found there was no e x trane ous prejudicial inf or ma tio n o r o uts ide inf

lue nc e that w a s impr op e rl y br ou g ht be fo re the jury . T he tr ia l c ou rt a lso
state d:

[E] ven if y ou look at what [the Defe ndant] said [ the jurors] said, and eve n if y ou g ive

- - assume that [t he Def

endant] is completely

truthful about what he say s he hea rd,-20-

wh a t he sa y s h e he arddo e sn ’t c a us e any con cern abo ut the va lid ity of the ve rd ic t. The r e ju s t s imp ly is n ’ t a n y e v id e n c e h e r e to d a y th a t w o u ld s u p p o r t s e tt ing aside a conviction on a c laim that the jury did not deliberate proper ly and leg ally

.

Article I , § 9 of t he Tennessee Constit ution provides that an accuse d has t he right to be tried by “an impa rt ial jury .” The burde n is on the defe ndant to establish jury misconduct. State v. Bla ckwe ll, 664 S.W .2d 686 (Tenn. 1984) . Whil e the defenda nt is entitled to a verdict untainted by extraneous, pre

judicial information, there is also the i mportance of “ma intaining inviolate the nature of jury deliberations.” State v. Robert Emmet Dunlap, J r., No. W1999-00027-CCA-R3-CD, 2000 WL 135754, at *2 (Te nn. Crim. App., at J ackson, F eb. 2, 2000), no perm. app. filed ; see a lso Maldonado v. Missouri Pac. Ry ., 798 F.2d 764, 77 0 (5 t h C i r. 1 986). The trial court ha s the discretion to determine whether a jury has acte d impartially

. State v. Sammons, 656 S .W.2d 862, 86 9 ( Te nn . Crim. Ap p. 19 82 ). F ind ing s o f f a c t ma de by

the tr ia l c ou rt

re g ard ing jury

impart ia lit y

ma y on ly be ov e rtur ne d f

or “ ma nif e st e rr or .” Sta te v. Ca zes , 87 5 S.W. 2d 25 3, 26 2 ( 19 94 ); se e a lso Dunlap, 2000 WL

135754, at *2. I n the prese nt c ase, the trial court found that no evidenc e of jury

m i s co n d u ct o r jury

impartiality

exis ted. Ther e is no evidenc e in the re cord to support the Def endant’ s contentions. We ag ree with the trial court’ s decision and c onclude that the trial court did not abuse its discr etion in de termining that the jury did not a ct improperly . This issue is without merit.

F . Rec usal of Assistant District

Attor ney Ge neral

Th e De fe nd a nt n e xt co nte nd s th a t the tr ia l c ou rt e rr e d w he n it

de nie d h is m oti on to r e c us e the Assistant District Attorney (“A DA ”) and the ADA should have r ecuse d himself beca use the A D A w i t n e s s e d t h e D e f

e n d a n ta s s a u l th i s l a w y e r d u r i n g a n e ar l i e r

p ar to f t h e p r o c e e d i n g s

. In d et ermining whether

to disqualify

a prose cutor in a c riminal case , the trial court must determine whether there is an actual conflict of i ntere st, which includes any circ umstances in which an attorne y cannot ex erc ise his or her independe nt professional judg ment fre e of “ compromising inter ests and loy a lti e s. ” Se e Te nn . R. Sup .Ct . 8 , E C 5- 1. I f the re is no ac tua l con fl ic t of inte re st, the c ou rt mus t

no ne the le ss c on sid e r w he the r c on du c t ha s c re a te d a n a pp e ara nc e of

imp ro pr ie ty . Se e Te nn . R. Sup .Ct . 8 , E C 9- 1, 9- 6. I f d isq ua lif ic a tio n is re qu ir e d un de r e ith e r the ory , th e tr ia l c ou rt mus t a lso determine whether

the conf lict of interest or appea

ranc e of impropriety

require s disqualification of the e nti re Di stric t Atto rn e y Ge ne ra l’ s Of fi c e . See Sta te v. Tate , 9 25 S.W. 2d54 8, 55 0 ( Te nn . Crim. App. 1995). The determination of whether to disqualify

the offic e of the District Attorney Gene ral in a c ri min a l c a se re sts wi thi n th e dis c re tio n o f the tr ia l c ou rt

. Ap pe llate re vie w of su c h a ru lin g is limit ed to whethe r the trial c ourt has abuse d i t s discretion. See id. at 50; St ate v. Culbreath, 30 S.W .3d 309, 312 (Tenn. 2000)

.

After thoroug hly

revie wing the re cord, we conclude that this iss ue is waive d. The De fenda nt

c arrie s th e bu rd e n o f e ns ur ing that th e re c or d o n a pp e a l con ve y s a

fa ir , a c c ur a te , a ndc omp le te

a c c ou nt o f w ha t ha s tr a ns pir e d w ith re sp e c t to tho se iss ue s th a t are the bases of app e a l. T e nn . R. App. P. 2 4 ( b ) ; s e e a ls o T h o mp s o n v

. St a te , 9 5 8 S. W. 2 d 1 5 6
, 1 7 2 ( T e n n

. Crim

. A p p

. 1 9 9 7 )

. The-21-

failure to do so results in a waiver of such issues. I d. Furthermore
, the Def endant fails to make any citations in his brief to t h e re co rd t o support his contentions. See Tenn. Ct. Crim. App. R. 10(b) (s ta tin g “ I ssu e s w hic h a re no t su pp orte d b y arg ume nt, c itatio n to a uth or iti e s, or app ro pr ia te ref ere nces to the rec ord wil l be treated as waived in this court.” ). The Defenda nt did not supplement the re cord on a

ppeal with the motion to r ecuse the Assistant District Attorney . The re cord supplied contains only

the motion to recuse f

or the trial judg e. The re fo re, the Defe ndant has wa ived our revie w of this issue.

Further, e ven if the D efe ndant had not waived this issue, we could not g rant him the relief he see ks. At the hearing on the m otion for new t rial, t he trial court stated, “With respect to the other
g rounds, the cla im that there wa s a conf lict of interest with the District Attorne y ’s offic e . . . ther e simply just isn’t any evidenc e to that.” There is no evidenc e prese nted befor e us that shows that the trial court a

bused its discretion with reg ard to this issue.

G. D efendan t in Sh ackles During Trial

The Def endant contends that he was denied his right to a fair trial bec ause he was re quired
to wear shackle s during trial. Specifica lly , he asse rts that beca use he w as re strained he was discourag ed fr om t es t i fy i n g at hi s trial. The re cord c ontains no evidenc e about whe ther the Def endant wa s in shackles a t trial. At the hearing on the motion for new tria l, the trial court state d:

[The Defe ndant] co mplains about wea ring shackle s. Ag ain, whethe r he - - I don’t specific ally

reme mber whe ther he had shac kles on but I will just assume that he did. The fa ct that he ha d on shackle s does not in and of itself, by itself, mean tha t he did n’ t g e t a

fa ir tr ia l. T here has been n oth ing pr e se nte d h e re tod a y that w ou ld indicate that he was de nied equa l protection, due pr ocess, or that h e wa s not give n a fa ir trial bec ause he had shac kles on.

The De fenda nt bear s the responsibility of pre senting to this C ourt an a dequate rec ord fr om the trial court as to issues raised by the Defenda nt on appea l. Tenn. R. App. P

. 24(b); S tate v. B unch, 64 6 S. W.2 d 1 58 , 1 60 (T e nn . 1 98 3) . I n th e abs e nc e of a n a de qu a te re c or d, thi s Co urt mu st p re su me that the trial court’s ruling was supporte d by the evidenc e. State v. Roberts, 755 S.W .2d 833, 836 (Tenn. Crim. App. 1988) . There i s n o ev idence in the rec ord conc erning whether or not the Def endant was in shackles a t his trial. Theref ore, w e must presume the trial court’ s determination

was c orre ct. Further, the Def endant fails to make any citations in his brief to the record to support his contenti o ns. See Tenn. Ct. Crim. App. R. 10(b) (stating “I ssues which a re not supporte d by

arg ume nt, c itatio n to a uth or iti e s, or app ro pr ia te re fe re nc e s to the re c or d w ill be tr e a te d a s w a ive d in this court.”). A ccor dingly , this iss ue is waive d.

Neve rtheless, e ven if we presume that the Def endant was in sha ckles during his trial and he did not waive this issue, there is no evidenc e that the t rial court abused its discretion by restra ining the Def endant with shac kles. The de cision of whethe r a de fenda nt should be shackle d during trial is l e ft to the so un d dis c re tio n of the tr ia l c ou rt a ndwi ll n ot b e dis tur be d o n a pp e a l a bs e nt a n a bu se-22-

of that discre tion. St ate v. Per ry Thompson, N o. 03C01-9606-CC-00228, 1997 WL 135408 (Tenn. Crim. App., at Knoxvi lle, Mar. 25, 1997)
, no perm. app. filed . T his iss ue is w ith ou t me ri t.

H. Racial Com position of the Jury

The De fenda nt contends that he w as not tried by a jury of his peer s because he is Af ri canAmeric an and a ll of the jurors we re Cauc asian. We find nothing in the rec ord that i ndicates the

ra c ia l c omp os iti on of

the jury . A g a in, it is th e De fe nd a nt’ s r e sp on sib ili ty to p re se nt this Cou rt

wi th an ade quate r ecor d from the tria l court as to issues ra ised by the Def endant on a

ppeal. Tenn. R. App. P. 24(b); State v. Bunc h, 646 S.W .2d 158, 160 (Tenn. 1983). “When a pa rty seeks a ppellate r eview there i s a d u t yto prepa

re a rec ord which c onvey s a fa ir, ac cura te and c omplete ac count of what transpire d with respe ct t o the i ssues forming the basis of the appea l.” State v. B allard, 855 S.W.2d 557, 560 (Tenn. 1993) ; see a lso J ames David Alder v. State, N o. M2003-02767-CCA-R3-PC, 2004 WL 2984845, at * 6 (Te nn. Crim. App., at Nashv i l l e, De c. 16, 2004), no perm. app. filed . I n the absenc e of a n adequate re cord, this Court must pre sume that the trial court’s ruling was supporte d bythe evid e n c e

. St a te v

. Ro b e r ts , 7 5 5 S. W. 2 d 8 3 3
, 8 3 6 ( T e n n

. Crim

. A p p

. 1 9 8 8 )

. F u r th e r , the Def endant ha s fa i led to cite authority in support of his arg ument. See Te nn. R. App. P. 27 (a)(7)

. Acc ording ly , this iss ue is waive d.

I. Se nt e nc ing

Finally , the Def

endant c ontends that t h e t ri al court e rre d when it sentenc ed him. When a de fe nd a nt c ha lle ng e s th e le ng th or man ner of se rv ic e of a se nte nc e , it

is the du ty

of thi s Co urt to conduct a de novo re view of the rec ord with a pre sumption t hat “the determinations made by the

c ou rt fr om w hic h th e app e a l is take n a re c or re c t.” Te nn

. Cod e An n. § 4 0- 35 -4 01 (d ) ( 20 03 ). Th is presumption i s “‘conditioned upon the aff irmative showing in the rec ord that the trial c ourt consider ed the sentencing principles and a ll releva nt fac ts and circ umstances.’ ” State v. Ross, 49 S.W. 3d83 3, 84 7 ( Te nn . 2 00 1) (q uo tin g Sta te v. Pe ttu s, 98 6 S.W.2 d 5 40 , 5 43 (T e nn . 1 99 9) ); Sta te v. Ashby , 823 S.W .2d 16 6
, 1 6 9 (T enn. 1991). The pre sumption does not apply to the leg al conclusions re ache d by

the t rial court in sentenc ing a defendant or to the determinations made by the trial court whic h are predic ated upon unco n t ro verte d fac ts. St ate v. De an, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001) ; State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smit h 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994) . I n conducting a de novo r eview of a sente nce,

we m u s t co nsider: (a ) any evidenc e re ceive d at the trial a nd/or sentenc ing he aring ; (b) the
pr e se nte nc e re po rt ; ( c ) the pr inc ipl e s o f sent enci ng; (d) the arg ume nts of c ou ns e l r e la tiv e to senten c in g a lt e r n a ti v e s ; ( e ) th e n a tu r e a n d c h ar a c te r is ti c s o f th e o f f e n s e ; ( f ) a n y mi ti g ating or statutory enhanc ement fa ctors; (g ) any statements made by

the def endant on his or he r own be half; and (h) the def

endant’ s potential or l ack of potential for rehabilitation or t reatment. Tenn. Code Ann. § 4 0- 35 -2 10 (2 00 3) ; State v. Ta y lor , 6 3 S. W.3 d 400 , 4 11 (T e nn . Crim. Ap p. 20 01 ). Th e pa rt y

c ha lle ng ing a

se nte nc e imp os e d b y

the tr ia l c ou rt

ha s thebu rd e n o f e sta

bli sh ing that th e se nte nc e is

err oneous. Tenn. Code Ann. § 40-35-401( d), Sentenc ing Comm’n C m t s

. Due to the tria l court’s
sentenc ing e rror s, as set forth in t h i s opinion, we must apply a de novo r eview w ithout the presumption of cor

rec tness in this case.-23- 1. Blak ely v. Washin gton

The United States Supreme Court’s rec ent opi nion in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), calls into question the continui ng validity of our c urre nt sentencing scheme

. I n that case , the Court, a

pply ing the rule in A pprendi v. New J erse y , 566 U.S. 46 6
, 4 9 0 (2 0 0 0 ),
str uc k down a p ro vis ion of the Was hin g ton se nte nc ing g uid e lin e s th a t pe rm itt e d a tr ia l ju dg e to impose an “e x ceptional se ntence ” upon the finding of certain statutorily enumer ated e nhance ment fac tors. 124 S. Ct . at 2537. T h e C o u rt observe d that “the ‘ statutory maxi mum’ for Appr endi purposes is the maximum sentenc e a judg e may impose so le ly on the ba sis of t he fac ts re fle c te d in the jur y v e rd ic t or

ad mi tte d by the de

fe nd an t. ” 124 S. Ct. at 2537. Finally , the Court conclude d that “eve ry defe ndant has a right

to ins ist that the pr os e c uto r p ro ve to a jury [be y on d a

re a so na ble do ub t] all fac ts leg ally

essential to the punishment.” I d. at 2539.

Th e De fe nd a nt a sse rt s th a t hi s se nte nc e is e xce ssi ve in l ig ht o f the Uni ted Sta te s Su pr e me Court decision in Blake ly v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The State counter s that th e De fe nd a nt h a s wa ive d this arg ume nt by no t ra isi ng it in his or ig ina l bri e f o n a pp e a l to thi s Cou rt

.
First, we n o te that the De fenda nt has not waived this issue. I n State v. Chester Way ne Wal te rs , w e he ld tha t, b e c a us e B lake ly a nn ou nce d a

ne w r ule , a ny de fe nd a nt w ho se c a se wa s st ill on direc t appea l could raise this issue. State v. Chester Way ne Walters, No. M2003-03019- CCAR3-CD, 2004 WL 2726034, at *19 (Tenn. Crim. App., at Nashville, Nov. 30, 2004). We e x plained that, althoug h Blakely

was the Supreme Court’s explanation of its prior decision in Appre ndi v. New J erse y , 566 U.S. 466, 490 (2000), the Te nnessee Supreme Court had pre viouslyannounce d that the

ru le in Ap pr e nd i did not a ff e c t our Sta te ’s se nte nc ing sc he me

. As a re su lt, the ma nd a te of

B lake ly

cre ated a new r ule in Tenne ssee. F urthermor e, i n W al ters, this Court held that Blake ly could be raised in a ll cases on dire ct appe al, bec ause a violation of this mandate was plain err or arising fr om the deprivation of the Constitut ional rig ht t o a j u ry t ri al. See a lso St ate v. Char les Be nson, No. M2003-02127-CCA-R3-CD, 2004 WL 2266801, at *7–10 (Te nn. Crim. App., at Nashville, Oc t. 8, 2004).

Thus, the question bec omes wh ether the sentenc e imposed by the trial court violates the United States Supreme Court manda te in Blakely . At the Def endant’ s sentenc ing hearing, the trial
court a pplied multipl e enhanc ement fac tors to the Def endant’ s sentenc e, including the following : (3) that the def

endant wa s a lea der in the c ommissi on of an of fense inv o l v i ng two or more c riminal
actor s; (6) that the de fenda nt treate d or allowed a victim to be tre ated with exceptional cr uelty during
t h e c o m m i s s i o n o f t h e o ff en s e; (7 ) t h at t h e p er s o n al i n j u ri es i n fl i ct ed u p o n o r t h e a m o u n to f d am age to property

sustained by

or take n from the victim was pa rticularly g reat; and (17) that the crime was committed under circumstance s under whic h the potential for bodily injury to a victim was g reat.B egi nn i ng Ju l y 4, 200 2, “ t he 20 02 amendment [ t o T enn es s ee C od e Annot at ed s ect i on 40- 35

- 11 4] a dd ed 3

pres ent [ enh anc ement f act or] ( 1) a nd r edes i gn at ed f ormer ( 1) t hr ough ( 22 ) as pre s ent ( 2) t hr ough ( 23 )
, r es pect i vel y

. ” T e n n . C o d e A n n . § 4 0 -3 5 -1 1 4 , A m e n d m e n ts (S u p p . 2 0 0 2 ).

-24- See Te nn. Code Ann. § 40-35- 4-114 (3) , (6), ( 7), (17) ( 2003). The trial c ourt then sentenced the 3 De fe nd a nt a s f

oll ow s: C ou nt 1, fa c ili ta tio n to c omm it a g g ra va te d ra pe , a Cla ss B fe lon y , te n y e ars ; Count 2, facilitation to commit agg ravated ra pe, a Class B felony , ten y ear s ; C o u n t 4
, ag g ravated assault, a Class C fe l o n y , s ix y ear s; Count 5, ex tortion, a Class D felony , four y ear s; Count 6,
espec ially ag g ravated kidnapping , a Class A fe lony
, twenty -two y ear s and six months. The trial court order ed that the De fenda nt must serve the sente nce f or the e specia l l yag g ravated kidnapping conviction, as a

violent offende r pursuant to Tenne ssee Code Annotated section 40-35-120 (2003)
, which re quires that the se ntence be ser ved at 100%. The trial court ordere d that Count 1, Count 2, Count 4
, an d Count 5 run concur rently to one another

but consec utively

to Count 6. Thus, t he De fe nd a nt w a s se nte nc e d to a n e ff e c tiv e se nte nc e of

thi rt y -t wo y e ars a ndsix mo nth s.

Th e se nte nc e range for Cla ss A fe lon y , Ra ng e I of fe nd e rs is f

if te e n to tw e nty -f

ive y e ars

. Tenn. Code Ann. § 40- 35-112(a )(1) (2003). In calc ulating the sentenc e for a Class A fe lony , the presumptive sente nce is the midpoint of the ra ng e, in the abse nce of enhance m en t and mitigating fac tors. Tenn. Code Ann. § 40-35-210 (c) (2003). I f there are enhanc ement fac tors but no miti g ating fac tors, the sentenc e must be set at or above the midpoint of the rang e. Te nn. Code Ann. § 40-35- 210(d). I f there are mitigating fac tors but no enhanc ement fac tors, the trial court must set a sente nce at or be low the midpoint of the rang e. Tenn. Code Ann. § 40-35-210( d). I f there are both miti g ating

a nde nh a nc e me nt f

a c tor s, the tr ia l c ou rt

mus t a dju st the se nte nc e ba se d on the we ig ht it ass ig ns to

eac h fac tor. Tenn. Code A nn. § 40-35-210( d).

I n calc ulating the sentenc e for a C lass B, C, or D felony conviction, the pre sumptive sentence is the statut ory min imu m fo r a Ra ng e I of fe nd e r i f the re are no e nh a nc e me nt o r m iti g a tin g fa c tor s. See Te nn. Code Ann. § 40-35- 210 (c) . I f there are enhanc ement but no mitigating fac tors, the trial court may set the sentenc e above the minimum
, but still within the rang e. Te nn. Code Ann. § 40-35- 210(d). A se ntence involving both e nhance ment and mitigating f actor s require s an assig nment of rela tive weig ht for the e nhance ment fact o rs as a means of incre asing the sentenc e. Te nn. Code Ann.§ 40-35-210( e). The sentenc e must then be re duced w ithin the rang e by any weig ht assigne d
t o t h e m i t i gat i n g fa ct o rs p re s en t

. T en n

. C o d e An n

. § 4 0 -3 5 -2 1 0 (e ). T h e s en t en ce ra n ge f o r aR an ge I of fe nd e r f or a c la ss B fe lon y

is n ot l e ss tha n e ig ht y e ars or mor e than tw elv e y e ars , f or a c la ss C felony is not less than three y ear s or more than six y ear s, and for a class D fe lony is not less than two
y ear s or more tha n four y ear s. Tenn. Code Ann. § 40- 35-112 (2003)

.

None of the enhanceme nt fac tors used by the t rial court to enhance the Def endant’ s sentence

wer e submitted to a jury

or ad m i t t ed b y t he De fenda nt. There fore , the rule in B lakely prec ludes application of a ny

of these f actor s, and the De fenda nt’s sentenc e must be modified, unless the er ror was ha rmless bey ond a re asonable doubt. See Walters, 2004 WL 2726034, at *22.

I n Wa lte rs , th is C ou rt

he ld tha t B lake ly

vio la tio ns are su bje c t to a Con sti tut ion a l ha

rm le ss-25-

e rr or a na ly sis

. I d. a t *2 4. “ Whil e it is true that B lake ly c on c e rn s the inv iol a te ri g ht t o a jury tr ia l, the cornerstone upon which our criminal justice sy stem was constructe d, we cannot sa y that a jury ’s fa ilu re to d e te rm ine a n e nh a nc e me nt f a c tor ‘n e c e ssa ri ly re nd e r[s ] a c ri min a l tria l f un da me nt a lly unfair or an unre liable vehicle for de termining g uilt or innocence .’” I d. (quoting Nee der v. U nited States, 527 U.S. 1, 9 ( 1999)). Thus, befor e we modify the Def endant’ s sentence , we will “r eview the Blakely err ors to de termine whether they wer e harmless bey ond a rea sonable d o u b t

. ” Id. ; see Chapman v. California, 386 U .S. 18, 24 (1967).

We conclude tha t none of the e nhance ment fac tors used by the tri al co u rt t o enhanc e the De fe nd a nt’ s se nte nc e we re su bmi tte d to a jury or a dmi tte d b y

the De fe nd a nt. Th e re fo re , th e ru le in Blakely prec ludes applica tion of any of these f actor s, and the a

pplication of eac h of these f actor s was

err or. F urthermor e, none of these e rror s were harmless be y ond a re asonable doubt. The De fenda nt’s
sentenc es must be modified under Blakely as follows: Count 1, facilitation to commit agg ravated

ra pe , a Cla ss B fe lon y , is mod if ie d f ro m te n y e ars to e ig ht y e ars ; Co un t 2, fa c ili ta ti on to c omm it
ag g ravated ra

pe, a Class B felony , is m o d i fi ed fr o m ten y ear s to eig ht y ear s; Count 4, agg ravated

a ssa ult , a C l a s s C f

e l o n y , i s m o d i f

i e d f r o m s i x y e ar s t o t h r e e y e ar s ; C o u n t 5
, e xt o r t i o n , a C l a ss D fe lon y , is modif

ie d f ro m f ou r y e ars to t wo y e ars ; Co un t 6, e sp e c ia lly a g g ra va te d k idn app ing , a c la ss A f e lon y , is mod if

ie d f ro m tw e nty -t wo y e ars a ndsix mo nth s to tw e nty y ears

. Th e re fo re , w e ho ld that the D e f

e n d a n t m u s t s e r v e a n e f

f e c ti v e s e n te n c e o f

tw e n ty

- e ig h t y e ar s , w ith th e tw e n ty y e ar sentenc e for

espec ially

ag g ravated kidnapping to be serve d as a violent off ender at 100%.

2. Co nse c ut ive Se nt e nc ing

T h e D e f e n d a n t ar g u e s t h a t t h e t r i a l c o u r te rr e db y o r d e r i n g h i s s e n t e n c e s t o ru n c o n s e c u t i v e l y. W h en s en t en ci n g t h e D ef en d an t , t h e t ri al co u rt s t at ed t h e f o l l o wi n g:

I n conjunction wit h weig hing the enhanc ement fa ctors the [c]ourt considers 40-35- 115, which has to do with whe ther sente nces should be se rved c oncurr en t l y or

c on se c uti ve ly . U nd e r su bs e c tio n fo ur the [c]o urt is a uth or ize d to or de r s e nte nc e s to be ser ved conse cutive.

. . . .

Over a p e r io d o f h o u r s th e v ic ti m w a s o r d e r e d to r e mo v e h e r c lo th e s , to lie on a kitchen floor. She was va g inally penetr ated on two se parate occ asions with a mop handle. A r ed-hot dinner fork wa s place d to eac h brea st. She was b ra nded in that fashion. It was re heate d. I t was then plac ed i n t h e v aginal area wher e it cause d a bu rn so se ve re that sw e lli ng too k p la c e to the po int that th e vic tim

wa s u na ble to [urinate]. The labia was penetrated, burned, if y ou will, and it required r econstruc tive

s u r g e r y.

She ha d to b e pla c e d u nd e r g e ne ra l a ne sth e tis ts s o th a t sh e c ou ld b e tr e a te d b e c a us e of the e x treme se nsitivi ty when doc tors tried to work on he r.-26-

She was force d in the ca

r. Drive n acr oss town, or driven to a dif fer ent location whe re sh e wa s f or c e d to e ng a g e in n ume ro us se x ac ts.

She was the vic tim of behavior that indicated little or no reg ard f or human life; whe re there was no he sitation about committ ing a crime in which the risk to human life wa s high; a nd the offe nder w as ce rtainly dang erous during the period of time.

The trial c ourt then orde red “ T h e [ c] o urt order s counts one, two, four and five to be serve d

concur rently but consec utive to count six for a n eff ective se ntence of thirty -two and a half y ear s.”

Pursuant to T ennesse e Code Annotated se ction 40-35-115( a), if a defe ndant is convicted of more than one criminal off ense, the court shall orde r the sente nce s t o ru n either c onsecutively or

c o n c u rr e n t l y. T h e t r i a l c o u r tm a y o r d e r s e n t e n c e s t o ru n c o n s e c u t i v e l y i f t h e c o u r t f i n d s b y a preponde ranc e of the evidenc e ce rtain criteria e numera ted in T ennesse e Code Annotated se ction 40- 35-115(b) (1)-(7 ). T en n es s ee C o d e A n n o t at ed s ec t i o n 4 0 -3 5 -1 1 5 (b )( 4 ) p ro v i d es t h at a t ri al co u rt may fi ndthat c on se c uti ve se nte nc ing is p ro pe r w he re : “ Th e de fe nd a nt i s a da ng e ro us of

fe nd e r w ho se be ha vio r i nd ic a te s li ttl e or no re g ard fo r hu ma n li fe , a ndno he sit a tio n a bo ut c omm itt ing a

c ri me in which the risk to human life is high

. ” I n addition to the specific c riteria in Te nnessee Code Annotated se ction 40-35-115( b), conse cutive sente ncing is guide d by the g ener al sentenc ing
pr inc ipl e s p ro vid ing that th e le ng th o f a se nte nc e be “

jus tly de se rv e d in r e la tio n to the se ri ou sn e ss of the off ense” and “no g reater than tha t deserve d for the of fense committed.” Tenn. Code A nn. §§ 40-35-102( 1) and - 103(2); State v. I mfeld, 70 S.W.3d 698, 707 (Tenn. 2002).

I n Kern, this Court held that, for a de fenda nt to qualify as a dang erous offende r, the re cord

mus t e sta bli sh that:

(1) the de fenda nt’s behavior indicates little or no reg ard for hum an life a nd he did not h es i t at e i n comm itting a c rime in which the risk to human life is high; (2) the

c ir c u ms ta n c e s s u rr o u n d in g th e c o mm is s io n o f th e o f f e n s e ar e a g g r a v ated; (3) confine ment for a n extended period of time is nec essary to protect socie ty

from the de fe nd a nt’ s unw ill ing ne ss to lea d a pro du c tiv e lif e a nd his re so rt

to c ri min a l a c tiv ity and furthera nce of

his anti-societal lifesty le; and (4) the aggre g ate leng th of the
sentenc es re asonably

rela tes to the offe nses for w hich the def endant st an d s c onvicted.

Kern, 909 S.W .2d 5, 8 (citing State v. Woods, 814 S .W.2d 378, 380 (Tenn. Crim. App. 1991)); see State v. Wil kerson, 905 S.W.2d 933, 938 ( Tenn. 1995); Gra y v. State, 538 S.W .2d 391, 393 (Tenn. 1976).

After thoroug hly revie wing the evidence presented at the sentenc ing he aring , we c onclude that the trial court properly sentenced the Def

endant to conse cutive sente nces ba sed upon the fa ct that the Def

endant is a da ng erous of

fende r whose be havior indica tes littl e or no reg ard f or human life, and no he sitation about committ ing a crime in whic h the risk to human l ife is high. The c rimes-27-

committed ag ainst the v i ct i m were sever e and show ed a la ck of r eg ard f or human life a nd the

c ir c ums ta nc e s su rr ou nd ing the c ri me s w e re a g g ra va te d. F urthe r, the tr ia l c ou rt state d:

The Court is mindful that sentence s imposed be no g reater than that deser ved for the offe nse committed, and that the se ntence imposed should be the least seve re me asure to ach ie ve the pu rp os e s f or wh ic h th e se nte nc e is i mpo se d. Th e Cou rt ha s a lso

c on sid e re d th e po te nti a l or la c k o f p ote nti a l f

or re ha bil itatio n o f the De fe nd a nt.

The trial court did not err by ordering that the Def

endant’ s conviction for e specia lly ag g ravated kid na pp ing ru n c on se c uti ve ly

to the oth e r c on c ur

re nt s e nte nc e s. Th is i ssu e is w ith ou t me ri t.

III. Conclusi on

I n acc ordanc e with the foreg oing rea soning and authorities, we a ffirm a ll of the Def endant’ s convictions. Further, we modify the Def endant’ s sentence to a n eff ective sentenc e of twenty -eig ht
y ear s, twenty

of which f

or the e specia lly

ag g ravated kidnapping conviction must be serve d at 100%.

___________________________________ ROBERT W. WEDEMEYER, J UDGE