        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 20, 2011

            STATE OF TENNESSEE v. CHRISTOPHER M. BLACK

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2004A246      Monte Watkins, Judge


              No. M2010-02176-CCA-R3-CD - Filed December 13, 2011


The defendant, Christopher Black, was convicted by a Davidson County jury of two counts
of aggravated rape, a Class A felony, and two counts of aggravated robbery, a Class B felony,
and sentenced to an effective term of fifty years imprisonment. On direct appeal, this court
affirmed the convictions but remanded for a resentencing hearing “regarding [the
defendant’s] sentencing status with respect to the 2005 sentencing act and regarding the issue
of consecutive sentencing.” State v. Christopher M. Black, No. M2007-00970-CCA-R3-CD
(Tenn. Crim. App., at Nashville, Feb. 26, 2010). Following a hearing on remand, the trial
court, applying the single enhancement factor for prior criminal history, sentenced the
defendant to twenty-five years for each count of aggravated rape and to ten years for each
count of aggravated robbery. The court further found the defendant to be a dangerous
offender and ordered that the two aggravated rapes be served consecutively, but concurrently
to the sentences for robbery, again resulting in an effective sentence of fifty years. On
appeal, the defendant contends that the trial court erred in the imposition of consecutive
sentences. Following review of the record, we find no error and affirm the sentences as
imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Richard L. Tennent, Nashville, Tennessee, for the appellant, Christopher M. Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                     Procedural History


          The facts underlying the defendant’s multiple convictions, as stated by this court
in relevant part on direct appeal, are as follows:

               This case stems from a brutal attack upon [L.P.] and [D.B.] beginning
       in the late hours of February 12, 1999, and ending in the early morning hours
       of February 13, 1999. [L.P. and D.B.] had been friends for several years.
       Around 11:30 p.m. on the night of the offense, [L.P.] drove to [D.B.’s]
       parent’s home where [D.B.] lived to borrow a movie. She pulled her vehicle
       in front of [D.B.’s] home and paged him to come outside. [D.B.] came
       outside, gave [L.P.] the movie, and sat inside her vehicle to talk. About fifteen
       minutes later, [D.B.] was getting out of the vehicle when he and [L.P.] saw
       two men with hoods coming through [D.B.’s] yard.

               [L.P.] stated that the two men came around from behind her vehicle,
       over to the driver’s side, and knocked on the window. Neither [L.P.] nor
       [D.B.] knew the two men. [L.P.] cracked the window, and a revolver was stuck
       in the window to her temple. The men screamed at [L.P.], “Get out of the car,
       bitch. Get out of the car bitch.” The vehicle was still running, and [L.P.]
       unlocked the door and opened it. [L.P.] said that a chrome revolver was put to
       her head. She stated, “[I]t looked like it had a pearl, or like, an engraved
       handle. Looked more like a collector’s gun.”

              When [L.P.] began to get out of the vehicle, the men pushed her back
       inside. At this point, she stated that she was in the front seat of her vehicle.
       [D.B.] had gotten out of the vehicle and was on the ground. The men went
       through the vehicle and told [L.P.] they wanted her wallet and money. She
       told them that she only had ten dollars, and they yelled at her for not having
       more money. The men looked through the truck twice and took [L.P.’s] credit
       cards.

               [L.P.] differentiated between the two men by their skin tone. After the
       men asked for [L.P.’s] money, [she] stated that the man with the dark
       complexion demanded that she perform oral sex on him. She testified that he
       said, “‘[Y]ou’re going to suck my d***.’” She said that she complied because
       she had a gun to her head and was terrified. She stated, “It started in the street.
       He made me get on my knees in the street and perform oral sex. And they both

                                               -2-
switched back and forth between four to six times.” Both men forced her to
perform oral sex against her will and consent by threatening her with a
weapon.

        [L.P.] testified that after the men forced her to perform fellatio on them,
the man with the lighter complexion said, “‘I want to f*** this b****.’ And
they made [her] pull down [her] pants and bend over in the street. And they
took turns raping [her] from behind.” When one man was raping her, the other
was watching for oncoming cars. After being vaginally raped, [L.P.] was
forced back inside the car to perform oral sex. Initially, [L.P.] could not recall
if either man ejaculated. However, she later stated that, at some point, one of
the men ejaculated in her mouth. She could not recall where she was
physically positioned but she gagged, and spit the ejaculate outside the vehicle
on the pavement on the street.


       [L.P.] recalled that [D.B.] begged the men to stop. The men began to
leave, but came back. They ordered [D.B.] to run down the street while they
held [L.P.] by her hair at gunpoint. The men then pushed [L.P.], and told her
to run and not to look back. [L.P.] found [D.B.] and they ran down the street
knocking on doors until someone gave them a phone to call 911. [D.B.’s]
father came to pick them up and later took them to the crime scene to wait on
the police. When [L.P.] returned to the scene, her vehicle was still there with
the four doors open.

        At trial, [L.P.] identified photographs from the crime scene. She
specifically identified a photograph of the ejaculate that she spit out onto the
pavement. . . . She described both men as in their early twenties. She also
estimated that the attack lasted around thirty to forty-five minutes. She stated
that the men were dressed alike. They wore masks, black jeans and
sweatshirts, but one man had on a red shirt and the other a blue shirt. The man
with the blue shirt had a dark complexion and the man with the red shirt had
a light complexion.

       [L.P.] was not missing any of her credit cards, but the men took her ten
dollars. She told the police what happened and was given a gynecological
examination that night. The police obtained internal vaginal swabs and swabs
of her mouth. A black light was placed over [L.P.’s] naked body to determine
the existence of any pubic hairs or semen. The police also took [L.P.’s]
clothes. [L.P.] stated that she did not discuss what she was going to tell the

                                        -3-
police with [D.B.].

       [L.P.] recalled that, at some point, the two men took their masks off.
However, she could only remember seeing the lighter complected man’s face.
She and [D.B.] provided the police with a sketch; however, she had no input
in the sketch developed by [D.B.]. She stated that she did not remember
anything about the man with the dark complexion.

       On cross-examination, [L.P.] acknowledged that she had trouble
remembering the sequence of events; specifically, whether she was forced to
perform oral sex or was vaginally raped first. In regard to the events leading
up to the man’s ejaculating in her mouth, she said she could not remember
whether both men or only one man forced her to perform oral sex. She further
conceded that she was unsure if the man with the lighter complexion
ejaculated in her mouth. She also admitted that she had previously
misidentified a busboy that she saw at a restaurant from a photographic lineup
as the man with the lighter complexion. . . .

       [L.P.] explained that the attack occurred in a residential neighborhood
and that the area was illuminated by the headlights on her vehicle and by
various streetlights. She recalled that the inside of the vehicle was illuminated
from the dash board. She explained that the men wore masks when they
pistol-whipped [D.B.] but took them off during the rape. She had no memory
of either man wearing gloves but stated that both men held her credit cards in
their hands.

       [D.B.] testified and corroborated [L.P.’s] testimony. He explained that
when he went outside to meet [L.P.] that night, everyone else inside his house
was asleep. He stated that the men took his coat, which contained his wallet
and $350. He also had a “stereo face” inside his coat pocket. The men also
took his earrings, skull cap, and tennis shoes. He noted that the men had a
silver weapon, and he saw one of the men forcing [L.P.] to perform oral sex
on him.

        [D.B.] also distinguished the men by skin tone and said that the man
with the dark complexion had the gun. [D.B.] said the darker complected man,
whom he later identified as [the defendant], forcing [L.P.] to perform oral sex
on him. [D.B.] confirmed that the man with the dark complexion also hit him
in the back of the head with the gun. He went to the hospital and received nine
stitches to the head and had a scar as a result. He provided a statement to the

                                       -4-
       police and worked on a sketch that same day. . . . When the sketches in this
       case were developed, [D.B.] and [L.P.] were not in the same room.

               [D.B.] identified [the defendant] as the person he saw forcing [L.P.] to
       perform oral sex on him from a photographic lineup. . . . [D.B.] testified that
       it was “the eyes” that stood out to him. He said that the man was younger than
       he, 5'10" tall and 130 pounds. He admitted that he had previously been
       confused about whether [the defendant] wore a red shirt or a blue shirt but said
       he was certain of his identification.

               On cross-examination, [D.B.] stated that his credit card was used at a
       gas station and two other stores within thirty minutes of the offense. He
       conceded that in two prior photographic lineups, he identified another
       individual as someone who “looked like” the dark complected man. He
       clarified that in each of those lineups, he told Detective Sutherland that he
       “wasn’t one hundred percent sure” or was “not positive” of the identification.
       Four years after the initial photographic lineups, [D.B.] was brought in to view
       another photographic lineup. Detective Sutherland told him he had a possible
       suspect and that there was a DNA match. [D.B.] testified that when he
       identified [the defendant] from the photographic lineup, Detective Sutherland
       told him that he had chosen the person confirmed by DNA analysis.

              Tamara Jackson, [D.B.’s] sister, testified that she was at home on the
       night of the offense. She heard noises outside and heard someone say “Make
       those ‘hos run.” She woke her father, went outside, and noticed [L.P.’s]
       vehicle in front with the doors open and things on top of the roof. There was
       no one around at the time. She called the non-emergency number, and she and
       her father closed the doors to the vehicle. She later received a call from a
       neighbor indicating [L.P.] and her brother were there and had been hurt. She
       went inside to upgrade her previous non-emergency call to a 911 call.

Id. Police investigators also testified at trial regarding their investigation, including the fact
that they had collected evidence of bodily fluid off the roadway on the evening of the crime.
A nurse practitioner at a Nashville hospital gave testimony regarding the examination
conducted on [L.P.] and the results of that testing. She indicted that the report showed areas
of contact as the mouth, the vulva, and the vaginal area. Id. It was not until August 2003,
that a CODIS hit was received by police indicating the defendant as a potential match for
earlier generated serology sample recovered from the crime scene. Id. After receiving
confirmation of a match, the defendant was arrested and subsequently identified in a
photographic lineup by [D.B.] as the perpetrator. Id.

                                               -5-
        Based upon these actions, the defendant was indicted by a Davidson County grand
jury for two counts of aggravated rape and two counts of aggravated robbery. Following a
trial by jury, the defendant was convicted as charged. The trial court subsequently imposed
sentences of twenty years for each aggravated rape and ten years for each aggravated robbery
conviction. The court ordered that the rape convictions run consecutively to each other but
that the robbery sentences would be served concurrently to each other. However, the court
ordered the rape and robbery convictions be served consecutively for an effective sentence
of fifty years in the Department of Correction. The defendant timely appealed. Id.

        On direct appeal, a panel of this court affirmed the convictions; however, the case was
remanded for sentencing consideration. Namely, the court concluded that the defendant had
failed to properly waive the ex post facto considerations created by the 2005 amendments to
the sentencing act and, further, that the trial court had failed to properly annunciate its
findings with regard to consecutive sentencing.

        A resentencing hearing was held before the trial court on October 6, 2010. During the
hearing, no further proof was presented to the court, but arguments were asserted by each
party. The defendant elected to be sentenced under pre-2005 sentencing law, which was
applicable as the date the offenses were committed was prior to the amendments. Applying
the single enhancement factor of prior criminal history, the trial court imposed sentences of
twenty-five years for each count of aggravated rape and for ten years for each aggravated
robbery. The trial court also reaffirmed its finding that the defendant was a dangerous
offender, thereby allowing imposition of consecutive sentencing. The court then ordered that
the two rape convictions be served consecutively but that all other sentences be concurrent,
resulting in an effective sentence of fifty years. The defendant has timely appealed that
decision.

                                          Analysis

         On appeal, the defendant’s sole contention is that the trial court erred in the
imposition of consecutive sentences. On appeal, the party challenging the sentence imposed
by the trial court has the burden of establishing that the sentence imposed is improper.
T.C.A. § 40-35-401, Sentencing Comm’n Cmts; see also State v. Arnett, 49 S.W.3d 250, 257
(Tenn. 2001). When a defendant challenges the length, range, or manner of service of a
sentence, it is the duty of this court to conduct a de novo review on the record with a
presumption that the determinations made by the court from which the appeal is taken are
correct. T.C.A. § 40-35-401(d). This presumption of correctness, however, “‘is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-
45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however,

                                              -6-
the trial court applies inappropriate mitigating and/or enhancement factors or otherwise fails
to follow the Sentencing Act, the presumption of correctness fails,” and our review is de
novo. Carter, 254 S.W.3d at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn.
Crim. App. 1992); State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).

        In conducting a de novo review of a sentence, this court must consider: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors in sections 40-35-113 and 40-35-
114; (6) any statements the defendant wishes to make in the defendant’s own behalf about
sentencing; and (7) the potential for rehabilitation and treatment. T.C.A. § 40-35-210(b)
(2003); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        It is within the sound discretion of the trial court to determine whether an offender
should be sentenced to consecutive or concurrent sentences. State v. James, 688 S.W.2d 463,
465 (Tenn. Crim. App. 1984). Consecutive sentencing guidelines are set forth in Tennessee
Code Annotated section 40-35-115(b), which provides, in relevant part, that a trial court may
order sentences to run consecutively if it finds by a preponderance of the evidence that “the
defendant is a dangerous offender whose behavior indicates little or no regard for human life,
and no hesitation about committing a crime in which the risk to human life is high.” T.C.A.
§ 40-35-115(b)(4) (2006). In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our supreme
court set forth additional requirements for consecutive sentencing when relying upon the fact
that the defendant is a “dangerous offender.” Accordingly, in order to base consecutive
sentencing on the dangerous offender category, the trial court must also find that: (1) the term
imposed is necessary to protect the public from further criminal acts by the offender; and (2)
the term imposed is reasonably related to the severity of the offenses committed. Id. at 938.
The reasoning behind this requirement for additional findings “arises from the fact that of
all the categories for consecutive sentencing, the dangerous offender category is the most
subjective and hardest to apply.” State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

        In ordering the consecutive sentences in this case, the trial court made the following
oral findings on the record:

              All right. Well, I remember this case quite well, because of the facts
       and the circumstances of this case and the fact that we actually tried this case
       more than once.

              This was, in the Court’s opinion, a horrific crime, to say the least. The
       victims were - - were robbed. One victim is raped repeatedly, in the middle of

                                              -7-
       the street. A weapon was used, that places anyone - - any reasonable person
       in fear for their lives.

              And the Court believes that this was the case here. [The defendant] has
       a history of criminal convictions, and the Court believes that that is an
       enhancement factor that can be used.

              ....

              The Court believes that consecutive sentencing is necessary in this
       particular case. As stated in Wilkerson, that - - and - - and in this case . . . “The
       proof must establish that the terms imposed are reasonably related to the
       severity of the offenses committed and are necessary, in order to protect the
       public from further criminal acts by the offender.”

              In this case, the Court has already enumerated the kinds of crimes that
       [the defendant] committed. And, if these are not crimes that are severe, the
       Court doesn’t know of any other crime that’s severe, other than murder itself.

             So, the Court believes that the proof did, in fact, establish that the term
       imposed was reasonable - - is reasonably related to the severity of the offenses.

        On appeal, the defendant first contends that this court must utilize a de novo standard
with no presumption of correctness because he asserts that the trial court failed to follow the
remand instructions and fulfill its obligation to make factual findings with regard to the
defendant’s status as a dangerous offender. Next, he asserts that, pursuant to de novo review,
an aggregate sentence of twenty-five years should be imposed. He bases this assertion on
six factors: (1) the defendant’s sentence was already enhanced to the maximum within the
range based on his prior criminal history; (2) the victim was not struck, beaten, or injured;
(3) even a twenty-five-year aggregate sentence at 100% would put the defendant well into
his fifties before eligible for release; (4) his entire prior felony record was incurred over a
two-day period when the defendant was eighteen years old; (5) the defendant has earned a
GED and education certificates while incarcerated, has no gang affiliation, and was gainfully
employed prior to his incarceration; and (6) an aggregate sentence of twenty-five years would
be consistent with sentences imposed in similar rape cases.

       Following review of the record, it appears that the defendant is incorrect in his
assertion that the trial court failed to follow the dictates of this court to consider and
annunciate the required Wilkerson factors supporting the conclusion that the defendant was
a dangerous offender. Prior to issuing his findings, the court expressly stated on the record

                                                -8-
what those two required considerations were. There can be no question from a reading of
the findings that the trial court found that the term imposed was reasonably related to the
severity of the offenses committed. The court was very clear in its findings that the crimes
committed were “horrific.” While not as abundantly clear from a reading of the findings, we
conclude that the trial court also adequately stated its belief that consecutive sentencing was
necessary to protect the public from further criminal acts by the defendant. The court stated
that the defendant has a history of criminal conviction, which had been previously
enumerated. The inference one must take from this statement is that the trial court believed
that this previous record of convictions was sufficient to support the finding. Thus, no relief
is warranted.


                                      CONCLUSION

       Based upon the foregoing, the sentencing decision of the Davidson County Criminal
Court is affirmed.


                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




                                              -9-
