### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J uly 9, 2003
STATE OF TENNESSEE v. RASHE MOO RE
Direct Appeal from the Criminal Court for Shelby County Nos. 00-06306, 00-06313-17 Joseph B. Dailey, Judge

No. W2002-01195-CCA-R3-CD - Filed December 3, 2003

The defendant was found guilty of six counts of aggrava ted rape, se

ven coun ts of espe cially aggravated

kidn appin g, five count s of agg ra va te d r ob be ry, an d o ne co un t o f a ggr av at ed bu rg la ry. The defenda

nt conten ds on appe al that (1 ) the tria l court e rred in d eny ing his motion to suppress the photogr aphic identification, (2) the evidence was insufficient to support the convictions, (3) the trial court erred i n excluding evidence of a scar upon the def endant’s abdomen, (4) the trial court erred in not requi

ring the Stateto make an election of offenses as to the aggravated r ape convictions, (5) the trial court did not properly instruc t the jury on lesser included offenses, and (6) the sentenc e was improper . Finding

no rever sible err

or, we a ffirm the judgmen ts of the tr

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

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which R OBER T W. W EDEMEYER , J., joined. G ARY R. W ADE , P.J., concurred in the result. Mark Mesler and Howard B. Manis, Memphis, Tenne ssee, for the appellant, Rashe Moore.

Paul G. Summers , Attorne y General and Repor

ter; John H. Bledsoe , Assis tan t Attorne y General ; Robert Wilson Jones, District Attorney General; and Stephen P. Jones, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The Shelby County

Grand Jury indicted the def endant, Rashe Moore, on two counts of aggravated

rape (No. 00-06306), two cou nts of aggravated r ape (No. 00-06313), two counts of aggravated

rape (No. 00-06314 ), seven counts of especially

aggravated kidnapping

(No. 00-06315), five counts of

aggravated robbe

ry (No. 00-06316) , and one count of aggra vated burglary

(No. 00- 06317). The defendant was tried by a jury in Fe

bruary of 2002 and convicted of aggr avated rape as charged in No. 00-06306 and in No. 00-06313. Under No. 00-06314, the jury found the defendant guilty “as charged in the indictment during the incident involving (1) the first instance wh ic h occurred before she was taken into the bathroom and (2) the second instance whic h occurred after-2-

she was taken from the kitchen to the couch with the pillow over her he ad.” The jury found the defendant guilty as cha

rged of seven counts of especially ag gravated kidnapping, f ive co unts of ag gr av at ed ro bb er y, a nd on e c ou nt of ag gr av at ed bu rg la ry.
Under No. 00-06306, the trial court sentenced the defendant for aggravated ra

pe on count one to twenty-one y

ears confinement at 100% as a violent offender, consecutive

to his othe

r sentences, and a nolle prosequi was entered as to count two. Under No. 00-06313, the trial court merged the two convictions for aggrava ted rape and sentenced the defe ndant to twenty-one y

ears confinement at 100% as a viole nt o ffender, consecutive to his other sentences. U nder No. 00-06314, the trial court merged the defendant’s two convic tions for aggravated ra pe and sentenc ed the de fendant to twenty-one

years c onfinement at 100% as a violent offender, consec utive to his other sentences. For eachof the seven convictions for especially aggravated kidnapping

under No. 00-06315, the trial court sentenced the defendant to twenty -one yea rs confinement at

100% as a viole

nt offen der, with each sentence to run concurre nt to the others under

this indictment number and consecutive to the
o ther sen tences imposed. For each of the five c onvictions for aggravated r obbery under

No. 00- 06316, the trial court sentenced the defendant to eleve n years c onfinement at 30% as a standard offender, with each s entence to run concurrent to the others under this indictment number and consecutive to the other sentences imposed. For the agg ravated burglary

conviction under

No. 00- 06137, the trial

court se ntenced the defe ndant to f

our years co nfineme

nt a t 30% as a standard offender to run consecutive to the other sentences imposed. The defe ndant recei ved an effe ctive sentenc e of nine

ty- nine y ears.
The defenda

nt timely filed a motion for new trial. The motion was denied, and the defendant timely filed his notice of appeal. The defendant contends on appeal that

(1) the tr ial cour t erred in denying his motion to

suppressthe photog

raphic i dentific ation, (2 ) the evi dence w as insuff icient to support the convictions, (3) the trial cou rt erre d in excluding evidence of a scar upon the def endant’s abdomen, (4) the trial court erred i n not requ

iring the State to

make an election of offenses as to the aggravated

rape convictions, (5) the trial court did not properly instruct

the jury on lesser inc luded offenses, and (6) the sentence wa s improper.

Facts

On the even

ing of July

21, 1999, Albert Smith was at his home in Memphis, Tenness ee, with his eight-y ear-old son Kevin Smith and his friend Deana Tay lor. Albert answered a knock on the door, while De ana and

Kevin remained on the couch

in the den. The person at the door was an older
man who began arguing

with Albert. The man had a handgun and eventually forced his way

into the house. The man ordered every one to give him every

thing they ha

d and get down on the floor in the den.

M oments later, a second y ounger man arrived. Deana later described the y ounger man a s being short and having a roun d face a nd a low ha

ircut (a lmost bald) . The y

ounger man was a

lso-3-

armed with a

handgun. The man told them that he “wanted the money ” and began ransacking the house.

A few minutes later, Albert’s roommate, Joshua Jones, arrived at the house. Joshua was accompanied

by Sha untel and Lat oya Knox. As Joshua and the two girls attempted to enter the house, Albert tr

ied to warn them of what was happening. The armed men forced

everyone into the house at gunpoint. The men then robbed Joshua and the two girls. All of the victims were forced to strip down to their underwear and lie on the floor in the den.

The ol de r m an or de re d La to ya into anoth

er room w

hile the y ounger man held the rest of the victims at gunpoint. He forced her to perf orm fe llatio upon him while holding a gun to her head. The older man and Latoy a then returned to theden. Next, the younge r man ordered

Shauntel i nto a differe nt room an d force d her to pe rform fe llatio upon

him. Durin g this tim

e, the older man remained in the den and held the other victims at gunpoint. A pager belonging to one

of the vic tims
so unded, and the older man fired his gun. Hearing the gunshot, the young er man and Shauntel returned to the den.

The men orde

red eve ry one into th

e kitche n. All of th

e victi ms were forced to lie together in a heap on the kitchen f loor. The men tape d the vict

ims’ hand s and fee

t togeth er with duct tape. The victims were then covered with a sheet, bl ocking their view of the events that happened a fter that time. While under the sheet, the victims heard additional intruders enter the house. All of the
men were making threats and going through the house. The victims testified that they were

terrified. At one point, the eight-y ear-old urinated on himself.

While the victim s were st ill piled in

the kitchen, the ol der man o rdered Deana i nto the other
room. He forc ed her to

kiss him on the mouth. The older man attempted to penetr ate her vagina lly from the rear with his penis and then, ultimately , penetrated her vaginally from the front. She was then ordered into the bathroom to clean herself. Around the sa m e time that Dea na was in the bathroom , Marcus Stewart arrived at the house. Marcus knocked on the door but no one answered. While Marcus remained outside, one of the men went out a back door and ran ar ound the house. He
came up behind

Marcus a nd force d him

into the house at gunpoint. The men th en robbe d Marcus

. They pulled his shirt o ver his head and pulled his pants down around his ankles. He was then ordered into the kitchen with the other victims and was also bound with duct tape.

After Marcus arrived, the older man came ba ck and put a pillowcase over Deana’s head. The
men then took h

er intoanother

room. One of the men stated that he was going to shoot her. Instead, he put on a condom andforced his p enis i nto h er mou th. An other assai lant, wearin g a sandw ich ba g, then forced his penis into her mouth. An u

nknown number of a ssailantsvaginally penetrated her. She was then

ordere d back int

o the kitc hen with th

e other victims. The

assail an ts left and the incident was rep orted to th

e police . The ent

ire orde al lasted

approxima

tely two hours

. The younge

r man involved in the attack was later identified as Rashe Moore, the defendant in this case. Deana Tay

lor, Albert Smith, and Shantel Knox each identified the defe ndant in a photo-4-

line-up conducted after

the incid ent. Thos e three witnesses, along with L atoya Knox, also identified the defendant in court. The def endant was tried and convicted by a jury of a

ggravated rape , es pe ci al ly a ggr av at ed ki dn ap pi ng , a ggr av at ed ro bb er y, a nd ag gr av at ed bu rg la ry. He was given an effective sentence of ninety-nine yea rs to be served in the Tennessee Depar tment of Correction. Analysis

The defendant now contends on appeal that (1) the trial c ourt erred i n deny

ing his motion to suppressthe photog

raphic i dentific ation, (2 ) the evi dence w as insuff icient t o support the convictions, (3) the trial court erred in excluding evidence of a scar upon the defendant’s abdomen, (4) the trial court erred i n not requ

iring the State to

make an e

lection o f offen ses as to

the aggrava

ted rape convicti ons, (5) the trial court did not properly instruct the jur y on lesser included of

fenses, and (6) the sentence was improper. I. Motion to Suppress Photo Identifica tion

The defendant argues that the trial cour t erred in not suppressing the photographic line- u p identification of the defendant. Specifically , he contends that the photo identification procedure was unduly sugg estive, because the photos were “g rossly dissimilar.”

In Neil v Biggers , the Unite d States Sup reme Cour

t establis hed a two -part a

naly sis to asse ss the validity

of a pre -trial id

entifi cation. 4 09 U.S. 188 , 198-99 ( 1972). F irst, the c ourt must determine whether the procedure used to obtain the identification was unduly sug gestive. Id. at 198. A violation of due process has occurr ed if the identific ation pro cedure

is so sugg estive a s to give ri se to a very substantial likelihood of irr eparable misidentification. Id. This standard has been adopted by our state’s supre

me court. Bennet

t v. State , 530 S.W.2d 511, 512-15 (Tenn. 1975).

Second , if the identification was unduly sug gestive, the court must determine, und er th e totality of the ci rcumstan ces, whe ther the identific ation is nevertheless reliable. Biggers , 409 U.S. at 199. A finding that the pre-trial identification was unreliable will also require the exclusion of a subsequent

in-court identification by the sa me witness. State v. Phi lpott , 882 S.W.2d 3 94, 400 (Tenn. Crim. App. 1994) . Although an identification process may be suggestive, it may

satisfy due processas relia

ble and a dmissible i f the tota

lity of the ci rcumstan ces so warra nt. State v. Brown , 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990). Factors to be considered in d etermin ing whether a violation of due process has occurred ar e: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of a ttention at the time of the crime; (3) the a ccuracy of

the witne ss’ prior

descrip tion of the

criminal ; (4) the level of certainty

demonstrated at the confrontation; and (5) the time elapsed between the crime and the confrontation. Philpott , 882 S .W.2 d at 40 0 (cit ing Biggers , 409 U.S. at 199-200).-5-

The findings of fact

made by the trial c ourt at the hearing on a motion to suppress are binding upon this Court u

nless the evidenc e contai ned in the record prepond erates a gainst them. State v. Ross , 49 S.W.3d 833, 839 (Tenn. 2001). The prevailing party is entitle d to the str

ongest l egitima

te view of the evidence and all reasonable and le gitimate inferences that may be drawn from tha

t evidence. State v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). However, the application of the law to the fac ts found by

the trial court ar e questio ns of law t

hat this Cou

rt reviews de novo

. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). Absent a showing by the defendan t that the evidence preponderates against the judgment of the trial court, this Court must defer to the ruling of the trial court. State v. Cribbs , 967 S.W.2d 773, 795 (Tenn. 1998).

In this case, the trial court denied the defendant’s motion to suppress, finding that the photo line-up was prop erly

present ed to the w itnesses a

nd that it f

airly presented six individuals of similar appearance. The defendant contends that the individuals do not resemble him. He argues that the individua ls in the phot

os have d

iffere nt complexions, hair , noses, ears, and facial hair. After reviewing the photo l

ine-up its elf

, we a gree with the tri al court that the individuals are simil ar in appearance. Each of

the offic ers testi fy ing at the suppre ssion hea ring ind icated th at they

didnot in any way sugge st who the witnesses s hould pick out. In fact, the offic ers told the witnesses that they should not feel as though they

had to pick out someone. A ddi tionally, each witness wa s read and given the “Advic e to Witness ” form de scribing the proc edure th

e witnessshould follow in identify ing a sus pect.

We hold that th

e proce dure use d to obtain the photo l

ine-up id entifica tion was not unduly suggestive. Therefore, we need not deter mine the secondprong of the analy sis. The defendant has notshown tha

t the evid ence pr eponder ates ag ainst the r

uling of the trial court. This issue is without merit.

II . Insufficient Evidence

The defendant argues on appea l that the evidence was i nsufficient to identify him as the person who commit

ted these offense s. When a defendant challenges the suff iciency of the evidence, the standard of review is whether, after viewing the evide nce in the light most

favorable to the State, any rational trie

r of fact could have found the essential eleme nts of the crime bey ond a reasona ble doubt. Tenn. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 3 07, 319 (1 979); State v. Evans , 838 S.W.2d 185, 190- 91 (Tenn . 1992). O n appea l, the State

is entitled to the strongest legitimate view of the evide nce and all reas onable

or legitimate inferences which may be drawn therefrom. State v. Elkins , 102 S.W.3d 578, 581 (Tenn. 2003). This Court will not re-weigh the evidenc e, reev aluate the evidence, or substitute its evidentiary in fe re nc es fo r t ho se re ac he d b y th e j ur y. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, g reat weight

is given to the result reached by

the jury. State v. Johnson , 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

Once approve d by

the trial court, a jury verdict accre dits the witnesses p

resente d by

the State and resolve s all conf

licts in favor of the State. State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983).-6-

The credibility of witnesses, the we ight to be given their te stimony, and the reconc iliation of conflic ts in the pro of are m atters e ntrusted exclusively to

the jury as trier of fact. State v. She ffield , 676 S.W.2d 542, 5 47 (Tenn . 1984); State v. Brewer , 932 S.W

. 2d 1, 19 (Tenn. Crim. App. 1996). A jury’s guilty verdict removes the presumption of innocence enjoy ed by the def

endant at trial and raises a presumption of guilt. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the burden of overcoming this presumption of guilt on appeal. State v. Black , 815 S.W.2d 166, 175 (Tenn. 1991).

The d efendant does not challenge that any of these crimes occurred as the witnes se s described them. However, he contends that the evidence was insufficient to establish that he was the perpetrator of these c r imes. In court, four of the victims in this case positively identified the defendant as the “young er man” who committed these c rimes. Th

ree of t hese vic tims had al so previou sly

identified the defendant in a photo line-up. The credibility of these witnesses was a matter that was e

ntrusted to the jury. T he defe

ndant tes tified tha

t he was a

t a local c lub with his girlfriend during the time that these crimes occurred. However, he did not produce any witnesses to corroborate his story . We hold that the evidence was suffici e nt to identify the defenda nt as the perpetr ator of th ese cri mes.
The defendant further contends that the limited detention of the victims and the change of
rooms was not le gally

suff icient to constitute especially a ggravated kidnapping . He argues that detention and movement was incidental to the r obberies. The Tennessee Supreme Court has recog nized that a

separate kidnapping conviction may violate due process when the kidnappin g is incidental to an accompany ing felony

and not “significant enough, in and of itself, to warr ant independent

prosecution.” State v. Anthony , 817 S.W.2d 299, 306 (Tenn. 1991). It must first be determinedwhether the movement or confinement used was bey ond that necessary to commit the accompany

ing felony. State v. Dixon , 957 S.W.2d 532, 535 (Tenn. 1997) (citi ng Anthony , 817 S.W.2d at 30 6) . “ If s o, th e n ex t i nq ui ry is whetherthe additional movement or confinement: (1) prevented the victim from summoning help; (2) lessened the defen dant ’s risk of detection; or (3) created a significant dang er or increased the victim’s risk of harm.” Id.

As the Statepoints out in its brief, this issue was previously determined in the direct appeal of the co-defendant. St ate v. Genore Dancy , No. W2001- 02451-CCA -R3-CD, 2 003 Tenn. Crim. App. LEXI S 145, at **10-15 (Tenn. Crim. App., at Jackson, Feb. 18, 2003). In that case this Court held that : [T]he vi ct im s’ co nf in em en t i n t he ki tc he n w as un ne ce ss ar y to th e consummation of the associated crim es. As noted above, the robberies occurred before the victims were moved and confined. Also, it was not necessary to confine the other victims as a means of assaulting Ms. Taylor, espe cially when a s many as fiv e intr uders were in the house. After both of her r ape ordeals, Ms. Tay

lor was returned to the kitchen, where all of the victims were held until the intruders left the house. Furthe rmore, the extent of the confinement seems superfluous to the commission of any of the

offenses. The victi ms, sans clothing, were bound hand and foot and left in a heap, under a sheet, on the kitchen f loor.-7- Thus, we readily

determine that the first prong of the Dixon test i s met. We
now consider whether the movement or confinement pre vented the victims from summoning help, lessened the intruder’s risk of detection, or signific antly

imperiled the victims or increased

their risk of harm. We conclude that the movement of the victims away f

rom the living room where the front door of the house was located at least hampere d the vict

ims in esca

ping or s ummoning

help ; mo re patently, the movement

decreased the

intruder s’ risk of

detection. More pa

tently still, the actions of binding the victims hand and foot with d

uct tape , piling t

hem ontoone anoth

er in the floor, and covering them with a she et rende red the victims utte

rly defense less to any assaults that the intruders might have inflicted upon them. Accordingly , we find that this c onfineme

nt incre ased the

risk of ha

rm to the vi ctims. As we held in the previous appeal under the fac ts of t h is case, the convi ctions fo r espec ially aggr avated k idnapping does not of

fend due process . This issue

is without me

rit.

II I. Display

of Abdomen Scar

The defendant contends that the trial cou

rt erre d in refu sing to a

llow him to r

aise his sh

irt to display a scar for the jury. He

argues that the evidence wa s relevant. Evidence is relevant if it has “any tende

ncy to make the existence of any fa ct that is of consequence to the determination of the action more pro

bable or less prob able

than it would be without the evidence.” Tenn. R. Evid. 401. A trial court’s decision

as to the r

elevanc e of evid

ence un der Rule 4 01 will be r everse d only

upon a showing of

ab use of discretion. State v. Powers , 101 S.W.3d 383, 395 (Tenn. 2003). We agree withthe trial court’s decision and fail to see how

this evide nce woul d have be

en relevant in

this case. The defendant testified that he had a scar on his abdomen a bove the waist, but the trial cou rt would notallow him to raise his shirt and display it to the jury . The victim, Shauntel Knox, testified that when the def

endant forced her to perform fellatio on him, she never saw above his waist. He droppedhis pants but never removed or raised his shirt. Whether or not the defenda nt has a scar on his abdome

n had no r

elevanc e to this ca se. This is sue is with out merit.

IV. Election of Offe

nses
The defendant also contends that the trial court erroneously failed to require the State to elect betwee n the two c ounts of a

ggra vated ra pe aga inst Dean a Tay

lor, cha rged in the same indictmen

t. The evidenc e at tria

l revea led two se

parate incident s of sexual

penetra tion. I n support o f this argume nt, he relies upon State v. Brown , which holds that “when the evidence indi cates tha t the defendant has commit

ted multipl e offenses against a victim, the prosecution must elect the pa rticular offense as charged in the indictment for which the c onv ictio n is sought.” 992 S.W.2d 389, 391 (Tenn. 1999). The primary purpose behind requi ring the State to elect a pa

rticular offense is “to
ensure that the jurors de

liberate over and render a verdict based on

the same offense.” Id. The State contends that the present case presents no dang er of a patchwork verdict because the jury was given a special instruction as to the separate incidents. The courts of this state have repeatedly held that when evidence is presented of multiple-8-

offenses that would

fit the allegati ons of the

charg e, the tr

ial cour t must requ

ire the Sta te to elect the particular offense for

which a conviction is sought and must instruct the jury as to the need f or jury unanimity

regarding the finding

of the particul ar offense elected. See, e .g. , State v. Walton , 958 S.W.2d 724, 727 ( Tenn. 199 7); State v. Shelton , 851 S.W.2d 134, 136 ( Tenn. 1993); Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973). The requirement of election serves seve ral purposes: (1) it enables the defendant to prepare f or the specific charge; (2) it protects a defendant agains tdouble je op ar dy; (3) it ensures the jurors’ deliberation over and their r eturn of a verdict based

upon the same offense; (4) it enabl es the trial judge to review the weight of the evidence in its role as the thir

teenth juror; and (5) it enables an appellate court to review the le gal sufficiency of the evidence. Brown , 992 S.W.2d at 391.

The requir ement of election and a jury unanimity instruction exists even though the defendan t has not requested them. See Burlison , 501 S.W.2d at 804. Moreover, failure to follow the procedures is conside

red to be of constitutiona l magnitude and will result in reversal of the conviction, absent the error being h armless b ey ond a rea sonable doubt. See Adams , 24 S.W.3d 289, 294 (Ten n. 2000); see als o, e.g. , Shelton , 851 S.W.2d at 138.

The special instruction given by the trial court in this case instructed the jury to determine
a conviction based upon each incident. The jury was instructed to “consider each incident raised

by the proof se

parately and make a unanimous decision as to whethe r the ess ential el ements of the crime have been proven bey ond a reasonable doubt for each sepa rate instance.” The two separate instances
were re ferre d to as: 1. The firs t instance , which oc curred before she was ta

ken into th

e bathro om. 2. The second instance, which occurred after she was taken from the kitchen t o the couch with the pillowcase over her head. The jury found the def

endant guilty a s to both instances. The jury instruction given by the court alleviatedthe probl em of a pa tchwork verdict by making it

clear that the jury’s verdic t was based on a unanimous decisi on. This iss ue is without merit. V. Failure to Charge L

esser Included Of

fenses

The defendant contends that thetrial cou rt erre d in failing to instruct the jury on facilitation
as a lesser included offense in the aggr avated r ape of L atoy a Knox , in

which the co-defendant forced her to perform

fellatio upon him. He also c ontends th at facil itation sho

uld have b een cha

rged a s a lesser included offense in the aggr avated rape of Deana Ta

ylor, in which the victim was ra ped by multiple offenders. In c onnection w ith the ra pe counts, the trial court instructed the jury about criminal responsibility through the a ct of another, but the court did not instruct the jur y a s to the lesser included offense of facilitation. The defenda ntalso contends that

false imp risonmen t should have b een in struc ted as a less er incl uded o ffense of esp ecial ly aggravate d kid nappi ng.
The defendant

orally reque sted that the trial court instruct the jury as to facilitation. The trial court found that there was no factual basis to support a charge of facilitation. The lesser included offense of false imprisonment was never discussed at trial. The State conced es in its brief that fals e-9-

imprisonment is a lesser included offen se under part (a) of State v. Burns , 6 S.W.3d 453, 466-67. Howeve r, the Sta te argues that a

ny e rror in f ailing to charg e false

imprisonme

nt was ha rmless.

The defendant argues that a trial court is required to instruct the jury on all lesser included offenses if the evidence is legally sufficient

to support a conviction for the lesser offense. State v. Burn s , 6 S.W.3 d 453, 464 (Tenn. 1999). The trial in this case began on F ebruary 11, 2002. The Tennessee legisla

ture, in 2001, amended Tennessee Code Annotated section 40-18-110 to provide that an instru ction as to

a lesser included offense is waivedunles s the d efenda nt req uests in wri ting, prior to the trial court’s charge to the jury , that such an instruction be pr ovided to the jury. Tenn. Code Ann. § 40-18-110(c). This amend ment to Te nnessee Code Annotated section 40-18-110 governs all trials on or

after January

1, 2002. 2001 Tenn. Pub. Acts 338, § 2. Because the defendant didnot request an instruction on the lesser included offenses of fa cilitation of aggravated ra pe and false imprisonme

nt in writin g prior

to the tria

l court’scharg e to the ju ry, the def endant has not presented a ground upon which relief may be granted. Tenn. Code Ann. § 40-18-110(c ). Therefore, this issue i s without me

rit. VI. Sentencing

The defenda

nt conten ds that the

sentenc e imposed

by t he tria l court i s excessive. A defendant who challenges his or her sentence has the burden of proving the sentence imposed by the trial court is improper. Tenn. Cod e Ann. § 40 -35-401, Sentencing Commiss ion Comment s; State
v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant appeals the length, ra nge, or manner of service of his or her sentenc e, it is this Court’s duty to conduct a de novo review of the record with a presumption the tri al c ourt’s determinations are correct. Tenn. Code A nn. § 40-35- 401(d). The presumption of correctness is conditioned upon the a

ffirmat ive showing in

the record t hat the trial court co nsidere d the sent encing principle s and all r

elevant facts a nd cir cumstances

. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).

T he trial cou

rt applie d three e

nhance ment fac tors and n o mitigat ing factors. The cour t correctly applied factors two (previous criminal history), four (more tha n one victim), and ten (possessedor

employ ed a fir earm). The tria

l court a pplied fa ctor two t o all of the charges but applied factors four and ten only

to the aggravated

burglary charge. The

trial cou rt indica ted that it would notgive great weig

ht to factor two, because the previous history involved only two misdemeanor convictions. The defendant agree s with the State that no mitigating factors apply in this case.

Tennessee Code Annotated section 39-13-305(b)(2), concer ning especially

aggravated kidn appin g, states that “[i]f the offender voluntarily r eleases the victim aliv e . . . suc h actions shall be consider

ed by the cour t as a mitig ating f

actor a t the time o f sentencing.”This code secti o n requires “mandat

ory consider ation of th

is mitigati ng fac tor if

the victim is released alive.” State v. Arnett , 49 S.W.3d 25 0, 264 n.9 (Tenn. 2001). All of the victims in this case were release d alive. This mitigati ng fac tor obviou sly applies. While not expr

essly consider ing this mitigating factor, the trial court di d reco gnize tha t “luckily for the victims . . . [n ]o one was killed.” We hold tha t this mitigati ng fac tor should

be consid

ered asto the esp ecially

aggr avated k idnapping convicti ons.-10-

When there ar e applic able enh anceme nt facto rs, but no m

itigatin g fact

ors for a Class A fe lo ny, “the court shall set the sentence at or above the midpoint of the range.” Tenn. Code Ann. § 40-35-210(d). When there areap pl ic ab le en ha nc em en t a nd mi ti ga ti ng fa ct or s f or a C la ss A fel on y, “the court must start at the midpoint of the range, enhance the sentence within the range a s appropr iatefor the enhancement factors, and then reduc e the sen tence within the r

ange a s appropr

iate for the enhancement factors.” Id. at -210(e). Whenthere are applicable enhanc ement factors, but
no mitigating factors for a Class B, C, D, or E f elony, “the c ourt may

set t he sentence above the minimum in that ra

nge but still within

the range.” Id. at -210(d). The defendant was convicted of aggravated

rapes ( Class A fe

lonies), especia

lly a ggra vated kid napping s (Class A fe lonies), aggr avated r obberie s (Class B felonies), and aggra vated burglary

(Class C felony). The

defendant is a Range I

offender. The appropriate sentenc e ranges are fifteen to twenty -five ye ars for the Class A felonie s, eight

to twelve

ye ars for the Cl ass B felonies, an d three t o six y ears fo

r the Clas s C felony. Tenn. Code A

nn. § 40-35-112(a).

The defenda

nt was sen

tenced t o twenty-one y

ears on e ach of th

e Class A f

elo nies , eleven yearson each of the Class B felonies, and four y ears on the Class C felony. T he weight given

to each enhancement

or mitiga ting fa ctor is in the discretion of the trial court, assuming the trial court has complied with the purposes and principles of the sentencing act and its findings are supported by the record. State v. Madden , 99 S.W.3d 12 7, 138 (Te nn. Crim. App. 2002). The statutes prescribe no particular weight for an enhancement or mitig ating factor. State v. G osnell , 62 S.W .3d 740, 750 (Tenn. Crim. App. 2001). A defendant’s sentence “is not determined by

the mathe

matical p rocess of adding the sum total of enhancing factors present then subtracting from this figure the mitigating factors present for

a net number of ye ars.” State v. Alder , 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (qu oting Stat e v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)). In light of the appropr iateenhancement factor applied by the trial court, we cannot say that a sentence of

one yea r above the presumptive sentenceon the Class A felonies of aggrava ted rape is excessive. In light of the facts of

this case , we giv e little we ight to the mitiga

ting fa ctor app licable t

o the especially aggravated

kidnapping conviction and hold that the sentence was not excessive. As to the other senten ces, we do not find from the record that the sentences imposed by the trial court we r e excessive.

The defendant also argues that the trial cour t erred in imposing consecu tive sente ncing in this
case. Generally , it is within the discretion of the trial court to impo se consecu tive sente nces if it finds by a preponde

rance of the evidence that at

le as t o ne of

th e fol lo wi ng st at ut or y cr it er ia ap pl y: (1) [t]he defendant is a professional criminal who has knowing ly dev oted such defenda nt’s life to crimina

l acts as a major sou

rce of l ivelihood ; (2) [t]he de

fendant is an off ender w hose rec ord of cr

iminal ac tivity

is extensive ; (3) [t]he defendant is a dangerous mentally abnormal person so declared b y a competent

psy chiatris t who conc ludes as a result of an invest

igation prior to sentencing that the defendant’s criminal con duct has be en ch ar ac te ri ze d b y a pattern of repe

titive or c ompulsiv e behav ior with heedless in differe nce to consequ ences;-11-

(4) [t]he defe

ndant is a dange rous offe nder whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to huma

n life is hi gh; (5) [t]he defendant is convicted of two (2) or more s tatutory offense s involving sexual abuse of

a minor with conside

ration of th e aggravating c ircumstances aris ing from the relationship between the defendant and victim or victims, t h e time span of

defendant’s undetected sexual activity , the nature and scope of the sexual acts and the extent of the resid ual, physical and menta l damage to the victim or victims; (6) [t]he defendant is sentenced for an offense c ommitted while on probation; or (7) [t]he defendant is sentenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b).

The trial court

found that the defendant was a dange rous offender whose behavior indicated littleor no regar d for huma n life an d no hesita

tion about

committing

crimes in

which the

risk to human life

was high. In

doing so , the tria

l court sta ted in par t: I don’t know how you could a rgue tha t [the dangerous offender categ ory] doesn’t apply in this cas e - how y

ou could a

rgue th at individu als - that men who bu st into
someone else’s apartment with guns drawn, herd pe ople together in thelivingr oom, threaten to kill them, make them lie down, ransack theplace, rape repeatedly , herd them into another

room, make [them] disrobe - all the things that these people were putthrou gh - how one could, with a straight face, a rgue that this conduct does not indicate l ittle or no regard for human life or does not de monstrate any he sitation about committing a crime in which the risk to human life is high. The record supports the trial court’s finding that the de fendant is a dangerous offende r.
If the court concludes the defendant is a dang erous offender under Tenn essee Cod e Annotated section 4 0-35-115 (b)(4) , it must make two further determinations in addition to applying general sentenc ing principles. State v. I mfeld , 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find
an e xte nded sentence is necessary to protect the public from further criminal conduct by the defenda nt, and, second, it must find consecu tive sente ncing to be reas onably

related to the sev erity of the offenses. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). However, such spe cific factual fi nd in gs ar e u nn ec es sa ry f or the other categori es of Tennessee Code Annotated section 40-35- 115(b). State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999).

In imposing consecutive sentencing, the trial court found that it was necessa ry to protect the community

and that it was r easonably r elated to the severity

of the offenses. After reviewing the record, we find that the trial court did not err in imposing consecutive sentencing.-12- Conclusion

Based on the foregoing reasons a nd the record as a whole, we aff irm the ju dgments of the trial cou rt in all r espects

.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE