IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 26, 2005

STATE OF TENNESSEE v. JAMES THOMAS MANNING

Direct Appeal from the Criminal Court for Putnam County

No. 98-0121 Leon C. Burns, Jr., Judge

No. M2004-03035-CCA-R3-CD - Filed January 24, 2006

On April 15, 1998, the Putnam County Grand Jury indicted Defendant, James Thomas

Manning, on one count of aggravated burglary, two counts of aggravated rape, one count of

attempted aggravated sexual battery, and one count of aggravated robbery. Following a jury trial,

Defendant was convicted of two counts of aggravated rape, a Class A felony, and one count of

aggravated burglary, a Class C felony. The jury acquitted Defendant of attempted aggravated sexual

battery and could not reach a verdict on the aggravated robbery charge. Defendant received

concurrent twenty-five year sentences for each of the aggravated rape convictions, and a consecutive

six year sentence for the aggravated burglary conviction, for an effective thirty-one year sentence.

These sentences were ordered to be served consecutively to a prior sentence out of Sumner County

being served by Defendant at the time of trial and sentencing. In his appeal, Defendant argues that

the trial court erred by (1) denying his motion to strike expert testimony for failure to lay a proper

foundation; (2) excluding evidence that the victim had pending charges for aggravated assault; (3)

violating double jeopardy principles in allowing Defendant to be convicted of two counts of

aggravated rape; and (4) imposing consecutive sentences. We affirmthe judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.

and ROBERT W. WEDEMEYER, JJ., joined.

David Neal Brady, District Public Defender; and H. Marshall Judd, Assistant Public Defender,

Cookeville, Tennessee, for the appellant, James Thomas Manning.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;

William Edward Gibson, District Attorney General; David A. Patterson, Assistant District Attorney

General; and Benjamin W. Fann, Assistant District Attorney General, for the appellee, the State of

Tennessee.
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OPINION

I. Background

The facts developed at trial and taken in a light most favorable to the state are as follows:

In the early morning hours of February 10, 1997, the victim, Charlotte Bridgeforth, was at

home asleep, when she awoke to a loud “banging” noise. The victim’s husband at the time, Greg

McMurry, told her that he thought the noise was an intruder. They heard the noise again and the

victim’s husband, believing the noise was the drug task force, went to the master bathroom and hid

in the shower behind the shower curtain. Defendant entered the backdoor, walked through the utility

room and the kitchen and looked down into the bedroom where the victim was standing. Defendant

was wearing a toboggan pulled down over his face, a black leather coat, pants, and solid white tennis

shoes. He pointed a gun at Ms. Bridgeforth and she began screaming. 

Defendant entered the bedroom where the victim was standing and began yelling at her and

telling her to “shut up.” Defendant pointed the gun at the victim’s temple and kept repeating “give

me the money and the stuff." Defendant asked, “[W]here's Greg at?” and the victim responded, “I

don't know.” Defendant asked, “[W]here's his cars at? [W]here's the jewelry at? You better beep

him.” The victim explained to Defendant that Greg had been “busted” by the police for selling drugs

and they took “everything” so she could not beep Greg nor could she give Defendant “the stuff.”

During this time, Greg was hiding in the bathroom shower adjacent to the bedroom where Defendant

and the victim were located. 

Ms. Bridgeforth gave Defendant her mortgage money in the amount of two hundred and fifty

dollars. When she could not meet Defendant's other requests, he first tried to shove her into the

bathroom closet and then the bedroom closet. When those attempts failed, Defendant ordered Ms.

Bridgeforth to take off her clothes. Defendant then ordered the victim sit down on the bed and

perform oral sex on him. After a few minutes, Defendant told the victim that she was not doing it

right and she “better do it right.” He then told her to lie back on the bed and he laid on top of her

and proceeded to have vaginal intercourse with her until he ejaculated. Defendant continued to hold

a gun to the victim’s head throughout the attack. The victim testified that she complied with all of

Defendant’s requests because she did not want to be killed. 

After raping Ms. Bridgeforth, Defendant told her to “get the gold.” She gave him a gold

bracelet valued at approximately two hundred dollars, and a gold necklace valued at approximately

sixteen hundred dollars. After taking the jewelry from the victim, Defendant tied her hands behind

her back using telephone cord from the victim’s home telephones. After tying her wrists, Defendant

put the victim on the rug in the bathroom where her husband was hiding. He told her "I'm not going

to hurt your kids," then ordered her to remain in the bathroom for fifteen minutes. The telephone

cord was introduced at trial along with photographs illustrating bruises on the victim’s wrists caused

by the cord. 
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Shortly after Defendant left the bathroom, the victim heard her fourteen year old daughter

screaming. The victim’s husband untied the cord around her wrists so that she was able to leave the

bathroom and find her daughter. Her daughter testified that Defendant entered her bedroom and

ordered her to take her clothes off. He began fumbling with his zipper as if to take his pants off, but

stopped when she informed him that she had her "period." Defendant ordered her to get out of bed

and get in the hall closet. The child did as she was told and Defendant left the house. 

At approximately 1:05 a.m., Sgt. Jim Eldridge of the Putnam County Sheriff's Department

responded to a call from the victim’s home. Sgt. Eldridge testified that he was the first officer to

respond to the call. Upon arrival, he noticed that the backdoor to the home had been "kicked in"

from the outside. The outside frame of the backdoor was splintered and had a large size footprint

dent just below the doorknob. Sgt. Eldridge proceeded into the home where people were crying and

upset. He secured the scene and tried to calm the victim to find out what had happened. Sgt.

Eldridge described the victim as distraught and in shock. He stated that the house was generally

clean and orderly and the only sign of major destruction was the damage to the backdoor. 

Charlotte Bridgeforth, her daughter, and Greg McMurry, were the only individuals present

when Sgt. Eldridge arrived at the scene. Shortly thereafter, the Putnam County Ambulance Service

transported Ms. Bridgeforth to Cookeville Regional Medical Center for medical treatment. Sara

Robinson, a licensed practical nurse (LPN) from the medical center, testified that the hospital

completed a rape kit on the victim. Specifically, the hospital took vaginal swabs, oral swabs,

combings, and blood from the victim. Photographs were taken of bruises on the victim’s wrists.

This evidence was later sent to the Tennessee Bureau of Investigation (TBI) Crime Lab for analysis.

Detective David Andrews of the Putnam County Sherriff’s office was involved in the

collection of evidence both from the crime scene and from the victim. Detective Andrews testified

that he received the rape kit from the hospital and submitted it to the TBI Crime Lab. According to

the lab’s analysis of the rape kit, both semen and sperm were present on the victim. After receiving

these results, Detective Andrews took blood samples from Defendant and submitted them to the

crime lab for a DNA comparison to the sperm and semen found on the victim. 

Margaret Bash, a forensic serologist at the TBI Crime Lab, provided expert testimony

regarding the procedure for conducting DNA analysis. She also testified regarding the results of the

DNA comparison in the present case. She explained that the main goal in DNA analysis is to

compare two samples, one from a known source and one from an unknown source, to determine if

serological material from the unknown source could have come from a known individual. Ms. Bash

further explained that the DNA analysis in the present case was conducted to determine whether

Defendant contributed the semen and sperm found on the vaginal swabs taken from the victim. 

As part of her testimony at trial, Ms. Bash simulated the DNA comparison between

Defendant’s blood, the victim’s blood, and the vaginal swab taken from the victim on the night she

was raped. In her initial findings and at trial, Ms. Bash found that the DNA in Defendant’s blood

sample contained “a good match” to the DNA found in the semen from the vaginal swab. Ms. Bash
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did not testify as to Defendant’s guilt, but she testified regarding the statistical probabilities that

someone unrelated to Defendant committed the crime. Specifically, Ms. Bash testified that the “the

probability of selecting an unrelated individual at random having the same DNA profile for the

Caucasian population is approximately 1 in 490 billion. And from the black population, it’s

approximately 1 in 212 billion.” At the close of all the proof, defense counsel moved to strike the

testimony regarding statistical probabilities on the grounds that a proper foundation had not been laid

for introduction of such evidence. The judge denied the motion and allowed the testimony to remain

in the record. 

II. Admission of DNA Probability Evidence

Defendant argues that the trial court erred by not granting his “motion to strike” the expert

testimony of TBI forensic serologist, Margaret Bash, for failure to lay a proper foundation.

Defendant does not dispute the serologist’s expert qualifications, but argues that the State failed to

lay a proper foundation for introduction of the DNA testimony and the statistical probabilities related

to the accuracy of the DNA comparison. Defendant offers no basis for why the foundation is lacking

and fails to explain what would constitute an adequate foundation. Defendant did not

contemporaneously object to this evidence, but moved to strike the testimony at the conclusion of

all the proof. As a general rule, the failure of a defendant to interject a contemporaneous objection

waives consideration by this Court of the issue on appeal. See Tenn. R. App. P. 36(a); Teague v.

State, 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988); State v. Killebrew, 760 S.W.2d 228, 235

(Tenn. Crim. App. 1988). Nevertheless, we briefly address Defendant’s contention that the statistics

relating to the accuracy of the DNA comparison were improperly admitted. 

The expert explained that the purpose of the DNA analysis in the present case was to make

a determination of whetherthe sperm and semen from Ms. Bridgeforth’s vaginal swab contained the

same DNA as the blood given by Defendant. She explained that DNA is human genetic material

unique to every individual. She further explained that the testing method used was Restriction

Fragment Length Polymorphism (RFLP) analysis, the state of the art method for testing DNA at the

time of the investigation of this case. Ms. Bash testified about the manner in which she created stain

cards from Defendant’s blood sample and the vaginal swab from the victim. She placed the stain

cards in a chemical solution which caused the DNA to release from the card samples in various sizes.

She then took theDNA samples, an additional universallyknown DNA sample, and a control sample

of her own DNA and placed them in a gel. The additional samples were added to verify the accuracy

of the test results. She then subjected the samples to electrophoresis, an electric current, which

caused the DNA to separate out by different size molecules. Those molecules were then embedded

on a nylon membrane. At this point, Ms. Bash conducted a series of probes, each specific to a

different point on five different chromosomes. She then made a visual comparison and found a

“good match” between the DNA bands from the vaginal swab and the DNA bands from Defendant’s

blood. Ms. Bash testified that the match was accurate and no mistakes were made in the analysis.

The results of the DNA analysis were entered into a computer data base of collected DNA

profiles. A frequency was assigned to each of the bands from Defendant’s DNA sample. The
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program then calculated the rarity with which this particular DNA profile occurs. Based on these

calculations, Ms. Bash testified that the probability of randomly selecting an unrelated individual

with the same DNA profile as Defendant was approximately 1 in 490 billion in the Caucasian

population and 1 in 212 billion in the African-American population. 

In Tennessee, the admissibility of expert testimony as to scientific or technical evidence is

governed by Tennessee Rules of Evidence 702 and 703. See, e.g., State v. Coley, 32 S.W.3d 831,

834 (Tenn.2000); State v. Begley, 956 S.W.2d 471, 475 (Tenn.1997). Generally the admissibility

of expert testimony is a matter entrusted to the sound discretion of the trial court, and there can be

no reversal on appeal absent a clear abuse of that discretion. State v. Ballard, 855 S.W.2d 557, 562

(Tenn. 1993). The Tennessee Supreme Court has set forth specific principles to guide trial courts

in determining whether to admit scientific or technical evidence. Begley, 956 S.W.2d at 475. First,

the evidence must be relevant to a fact at issue in the case. Id. (citing Tenn. R. Evid. 401, 402).

Second, the expert must be qualified by specialized knowledge, skill, experience, training or

education in the field of expertise, and the testimony in question must substantially assist the trier

of fact to understand the evidence or determine a fact in issue. Id. (citing Tenn. R. Evid. 702;

McDaniel v. CSX Transp., Inc., 955 S.W.2d. 257, 264 (Tenn. 1997)). Finally, when the expert

witness offers an opinion or states an inference, the underlying facts or data upon which the expert

relied must be trustworthy. Tenn. R. Evid. 703; McDaniel, 955 S.W.2d at 264. 

Tennessee has statutorily addressed the issue of the admission of scientific or technical

evidence relating to DNA analysis. T.C.A. § 24-7-118 (2000). In 1991, the General Assembly

enacted a statute to admit DNA evidence "without antecedent expert testimony that DNA analysis

provides a trustworthy and reliable method of identifying characteristics in an individual's genetic

material." T.C.A. § 24-7-118(b)(1) (2000). This statute conditions full admission of DNA analysis

into evidence "upon a showing that the offered testimony meets the standards of admissibility set

forth in the Tennessee Rules of Evidence." Id.; State v. Scott 33 S.W.3d 746, 758 (Tenn. 2000).

“Because DNA evidence is statutorily regarded as trustworthy and reliable, it is exempted from the

trial court’s determination under Rule 703 of the Rules of Evidence of whether it provides a

trustworthy and reliable method of identifying characteristics in an individual’s genetic material.”

State v. Spratt, 31 S.W.3d 587, 604 (Tenn. Crim. App. 2000). The statute also provides that

statistical population frequency evidence, based on genetic or blood test results, is admissible in

evidence to demonstrate the fraction of the population that would have the same blood type or DNA.

See T.C.A. § 24-7-118(c). 

Based upon our examination of the record, we conclude that the trial court did not err in

admitting the statistical probability evidence. The evidence of the DNA analysis was clearly relevant

because it tended to make more probable the fact that Defendant raped Ms. Bridgeforth. See Tenn.

R. Evid. 401. In addition, the forensic serologist was qualified and accepted by the court as an expert

with "knowledge, skill, experience, training, or education" in this field, and the expert's specialized

knowledge no doubt substantially assisted the jury in determining the identity of the perpetrator. Id.;

see also State v. Begley, 956 S.W.2d 471, 476-77 (Tenn. 1997). Finally, as stated above, DNA

evidence is statutorily regarded as trustworthy and reliable. As such, the requisite foundation was
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laid for admitting the DNA statistical probabilities into evidence. Accordingly, we find that the

evidence of DNA analysis met the general standards under the Rules of Evidence concerning the

admission of scientific or technical evidence. 

Defendant was not prohibited from challenging the particular tests at issue in this case. As

Tennessee Code Annotated section 24-7-118(c) indicates, the statute was carefully drafted to ensure

that it would not be "construed as prohibiting any party in a civil or criminal trial from offering proof

that DNA analysis does not provide a trustworthy and reliable method of identifying characteristics

in an individual's genetic material.” Indeed, Defendant took advantage of this provision of the

statute when he cross-examined the expert as to the lack of trustworthiness and reliability of such

analysis. For these reasons, we hold that the trial court did not abuse its discretion in allowing the

statistical probability evidence to be admitted. 

III. Prior Bad Acts

Defendant next asserts that the trial court erred in excluding evidence that the victim had

been charged with aggravated assault in an unrelated incident. In a jury out hearing, the victim

admitted that she had been charged with aggravated assault on January 30, 1999, for pulling a knife

on Ms. Devita Jones and cutting Ms. Jones across the face. Defendant sought to admit the evidence

as probative of the victim’s character for truthfulness. 

Tennessee Rule of Evidence 608(b) provides, “specific instances of conduct of a witness for

the purpose of attacking or supporting the witness's credibility, other than convictions of crime as

provided in Rule 609, may not be proved by extrinsic evidence. They may, however, if probative

of truthfulness or untruthfulness . . . , be inquired into on cross-examination.” Tenn. R. Evid. 608(b).

Before allowing such cross-examination to take place, the trial court, upon request, must hold a

hearing outside the presence of the jury to determine whether the probative value of the alleged

conduct outweighs its prejudicial effect and whether there is a factual basis for the inquiry. Id.; State

v. Morgan, 541 S.W.2d 285, 390 (Tenn. 1976). 

In the present case, the trial court, having conducted the requisite hearing out of the presence

of the jury, found the fact that the victim was charged with aggravated assault in January 1999, did

not “touch on the character [of the victim] for truthfulness or untruthfulness.” This Court has

previously held that evidence of a victim’s prior arrest for assault was not admissible under 608(b)

because the victim’s act of assaulting the defendant was not probative of the victim’s character for

truthfulness or untruthfulness. State v. Neblett, No. M2002-01494-CCA-R3-CD, 2003 WL

21145540, at *3 (Tenn. Crim. App. May 19, 2003), perm. to app. denied (Tenn. 2003). In the

present case, we likewise conclude that the act of assaulting an individual other than Defendant in

an unrelated incident is not probative of the victim’s characterfor truthfulness or untruthfulness. Id.;

See Tenn. R. Evid. 608(b). As such, the trial court did not err in excluding evidence of the victim’s

assault charges, and Defendant is not entitled to relief on this issue. 
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IV. Double Jeopardy 

Defendant next argues that the trial court erred in failing to grant his motion to merge, or

strike one of, his two convictions for aggravated rape. Defendant argues that his convictions are

multiplicitous and failure to grant the motion violated the prohibition against double jeopardy. 

The double jeopardy clause in the United States Constitution provides that no person "shall

. . . be subject for the same offense to be twice put in jeopardy of life or limb . . . ." U.S. CONST.

amend. V. Similarly, the Tennessee Constitution states that "no person shall, for the same offense,

be twice put in jeopardy of life or limb." Tenn. Const. art. I, § 10. The constitutional right against

double jeopardy protects against (1) a second prosecution after an acquittal; (2) a second prosecution

after a conviction; and (3) multiple punishments for the same offense. State v. Beauregard, 32

S.W.3d 681, 682 (Tenn. 2000). It is the third category that we are concerned with in the present

case. 

“Multiplicity concerns the division of conduct into discrete offenses, creating several offenses

out of a single offense.” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996). In Phillips, the

Tennessee Supreme Court explained that, in determining whether offenses are "stacked" so as to be

multiplicitous, the following principles should be considered: 

(1) A single offense may not be divided into separate parts; generally, a single

wrongful act may not furnish the basis for more than one criminal

prosecution; 

(2) If each offense charged requires proof of a fact not required in proving the

other, the offenses are not multiplicitous; and 

(3) Where time and location separate and distinguish the commission of the

offenses, the offenses cannot be said to have arisen out of a single wrongful

act. Id. at 665 (citations omitted). The Phillips court noted that the following

factors are also significant in determining whether sexual offenses are

multiplicitous: 

(1) The nature of the act; 

(2) The area of the victim's body invaded by the sexually assaultive

behavior;

(3) The time elapsed between the discrete conduct; 

(4) The accused's intent, in the sense that the lapse of time may indicate

a newly formed intent to again seek sexual gratification or inflict

abuse; and 

(5) The cumulative punishment. 
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Id. The Phillips court noted “that the presence or absence of any one factor or a combination of them

other than the nature of the act is not determinative of the issue.” Id. The court also observed that,

“although separate acts of intercourse may be so related as to constitute one criminal offense,

generally rape is not a continuous offense, but each act of intercourse constitutes a distinct and

separate offense.” Phillips, 924 S.W.2d at 664-65 (citation omitted). 

As relevant here, Tennessee Code Annotated section 39-13-502(a)(1) (2003) defines

aggravated rape as the “unlawful sexual penetration of a victim by the defendant or the defendant

by a victim” where “[f]orce or coercion is used to accomplish the act and the defendant is armed with

a weapon . . . .” This Court has previously held that “an accused may be convicted of more than one

offense when the rape involves separate acts” of sexual penetration. State v. Burgin, 668 S.W.2d

668, 670 (Tenn. Crim. App. 1984). “Sexual penetration” is defined as “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s

body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body, but emission of semen is not required.” T.C.A. § 39-13-501(7) (2003). The Phillips

court noted that each act “is capable of producing its own attendant fear, humiliation, pain, and

damage to the victim,” and “each type of penetration requires a purposeful act on the part of the

perpetrator." Phillips, 924 S.W.2d at 665.

In Phillips, the Tennessee Supreme Court upheld three convictions for aggravated rape where

the defendant inserted a plastic object into the victim's vagina; he performed cunnilingus; and he

forced her to engage in vaginal intercourse. Id. at 663-64. The supreme court found that the

defendant committed three separate offenses because each act involved three instances of sexual

penetration, lasted approximately three hours, and required different body positions and engaged

different body parts. Id. at 665. In State v. Kendrick, 38 S.W.3d 566, 569 (Tenn.2001), the

Tennessee Supreme Court applied the Phillips factors and concluded that the defendant committed

two separate and distinct offenses after the proof showed that the defendant forced the victim to

perform fellatio on him and then forced the victim to have vaginal intercourse. 

In State v. Barney, 986 S.W.2d 545, 549-50 (Tenn. 1999), the Tennessee Supreme Court

applied the Phillips factors in determining whether the acts of aggravated sexual battery and rape of

a child were discrete acts that justified separate convictions. The Barney court upheld the

convictions finding that touching a penis with the hand is distinguishable from touching a penis with

the mouth, and "the acts, although close in time, were not performed simultaneously." Id. at 550.

In State v. Waters, M2001-02682-CCA-R3-CD (Tenn. Crim. App. at Nashville, Jan. 30, 2003),

perm. app. denied (Tenn. 2003), this Court upheld the defendant's two convictions for aggravated

rape after the evidence showed that the defendant forced the victim to perform fellatio on him twice,

five minutes apart. The court concluded that, "[u]nder the circumstances, each act of forced fellatio

was capable of producing its own 'fear, humiliation, pain, and damage to the victim." Id. (citation

omitted). 

However, in State v. Arnett, No. 03C01-98110-CR-00395 (Tenn. Crim. App., at Knoxville,

Feb. 2, 2000), aff'd, 49 S.W.3d 250 (Tenn. 2001), this Court merged the defendant's two convictions
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for aggravated rape, holding that the separate convictions violated double jeopardy principles. The

court explained: 

Clearly, the penetrations invaded the same body area of the victim, with only seconds

elapsing between the two penetrations. Obviously, from the victim's testimony, the

digital penetration was merely the means of completing the penile penetration. We

are unable to conclude that the intervening seconds between the penetrations

provided a sufficient lapse of time so as to permit the development of "a newly

formed intent” as the digital penetration only served to facilitate the penile

penetration.

Id. (citing Phillips, 924 S.W.2d at 665).

In the present case, the record reflects that Defendant ordered the victim to remove her

clothes, sit down on the bed, and perform fellatio on him. When he was dissatisfied with her

performance in this regard, he instructed her to lie back on the bed. Defendant then laid on top of

the victim and proceeded to vaginally penetrate her with his penis until he ejaculated. The victim

testified that she didn’t know how much time elapsed, but it felt like “forever.” 

Applying thePhillipsfactors in the present case, we conclude that Defendant’s acts of sexual

penetration were separate and discrete acts constituting two separate offenses. It is our determination

that each penetration was the product of a discrete and purposeful act on the part of Defendant. Each

act of sexual penetration involved a different body party and each required both Defendant and the

victim to be in a different position. The different nature of each penetration is indicative of

Defendant’s separate intent to conduct each act. Phillips, 924 S.W.2d at 665. Although it is unclear

how long the incident lasted, the record indicates that each act lasted more than a few seconds. We

find that each act “is capable of producing its own attendant fear, humiliation, pain, and damage to

the victim,” and “each type of penetration requires a purposeful act on the part of the perpetrator."

Id. We therefore conclude that Defendant was properly convicted of two counts of aggravated rape,

and these convictions do not violate the prohibition against double jeopardy. Defendant is not

entitled to relief on this issue. 

V. Consecutive Sentencing

Defendant argues that the trial court improperly imposed consecutive sentences because the

sentence he received was not in proportion to the severity of his offense. The trial court sentenced

Defendant to twenty-five (25) years for both aggravated rape convictions, to run concurrently; six

(6) years for the aggravated burglary conviction, to run consecutively; and both sentences to be

served consecutively to the Sumner County sentence Defendant was serving at the time of the

sentencing hearing in this case. 

When an accused challenges the length, range, or manner of service of a sentence, this court

has a duty to conduct a de novo review of the sentence with a presumption that the determinations
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made by the trial court are correct. T.C.A. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166,

169 (Tenn.1991). This presumption is "conditioned upon the affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and circumstances." Ashby,

823 S.W.2d at 169. When conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at trial and the sentencing hearing; (b) the pre-sentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) any statutorymitigating or enhancement factors;

(f) any statement that the Appellant made on his own behalf; and (g) the potential or lack of potential

for rehabilitation or treatment. T.C.A. §§ 40-35- 102, -103, -210 (2003); Ashby, 823 S.W.2d at 168.

Furthermore, facts relevant to sentencing must be established by a preponderance of the evidence

and not beyond a reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn.2000).

If our review reflects that the trial court, following the statutory sentencing procedure,

imposed a lawful sentence after having given due consideration and proper weight to the factors and

principles set out under the sentencing law, and made findings of fact that are adequately supported

by the record, then we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App.1991). However, where the trial

court fails to comply with the statutory provisions of sentencing, appellate review is de novo without

a presumption of correctness. The general principles of sentencing require that the length of

sentence be “justly deserved in relation to the seriousness of the offense” and “be no greater than that

deserved for the offense committed.” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing T.

C. A. §§ 40-35-102(1) and -103(2)).

Defendant challenges his consecutive sentences on the grounds that he was sentenced as a

dangerous offender, and the trial court made no finding that the sentence was reasonably related to

the seriousness of the offense. In support of his argument, Defendant relies on State v. Wilkerson,

905 S.W.2d 933 (Tenn.1995). In Wilkerson, our supreme court held that where a defendant is found

to be a dangerous offender, the imposition of consecutive sentences requires not only the application

of general sentencing principles, but the additional findings that “an extended sentence is necessary

to protect the public against further criminal conduct by the defendant[,] and the consecutive

sentences must reasonably relate to the severity of the offenses committed. Id. at 939. Defendant

does not argue that the general sentencing principles were not properly applied. He argues only that

the trial court failed to meet the additional requirement of finding that the consecutive sentence

reasonably relates to the severity of the crime. 

The trial court found that consecutive sentencing was justified in light of Defendant’s

extensive criminal record, misdemeanor assault convictions, the fact that this crime was committed

while Defendant was on probation, and the need to incarcerate Defendant for a “substantial period

of time to protect society from potential harm.” Even if the trial court failed to explicitly state that

the consecutive sentence was reasonably related to the severity of the crime, the sentence is valid on

other grounds. Pursuant to Tennessee Code Annotated section 40-35-115, “when a defendant is

convicted of more than one offense, “[t]he court may order sentences to run consecutively if the

court finds by a preponderance of the evidence that . . . [t]he defendant is an offender whose record
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of criminal activity is extensive,” or “[t]he defendant is sentenced for an offense committed while

on probation.” See T.C.A. § 40-35-115(b)(2), (6) (2003). Defendant does not dispute that he was

on probation when he committed the offenses in the case sub judice. Nor does he dispute the trial

court’s finding that he had an extensive criminal record. As such, we conclude the trial court did not

err in ordering the sentences to be served consecutively. The aggregate sentence was reasonably

related to the seriousness of the offense and was not greater than that deserved. Defendant is not

entitled to relief on this issue. 

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. 

___________________________________ 

THOMAS T. WOODALL, JUDGE