        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 11, 2012

           STATE OF TENNESSEE v. JOSEPH DARRYL TAYLOR

                  Appeal from the Circuit Court for Bedford County
                         No. 17148    Robert Crigler, Judge


               No. M2011-02754-CCA-R3-CD - Filed October 31, 2012


A Bedford County Circuit Court jury convicted the defendant, Joseph Darryl Taylor, of two
counts of rape, see T.C.A. § 39-13-503(a)(1), (2); one count of contributing to the
delinquency of a minor, see id. § 37-1-156; and one count of simple possession of marijuana,
see id. § 39-17-418(a). At sentencing, the trial court merged the rape convictions into a
single judgment of conviction and imposed an effective sentence of 20 years plus 11 months
and 29 days’ incarceration for the offenses. On appeal, the defendant challenges the
sufficiency of the evidence to support his convictions, the trial court’s allowing his
impeachment by prior convictions of aggravated assault and statutory rape, and the trial
court’s sentencing determination. Discerning no reversible error, we affirm the judgments
of the trial court.

            Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and A LAN E. G LENN, JJ., joined.

Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing, Assistant
Public Defender, for the appellant, Joseph Darryl Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Charles Crawford, District Attorney General; and Michael Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                  OPINION

               The 14-year-old victim, T.V.,1 testified that he was 13 years old in September
2010 when he first met the defendant through his neighbors, Correy and Pattie George. Prior
to the offenses, the victim had spent time “hanging out” at the George home on three or four
occasions while the defendant was also there. The victim said that he and his older brother,
S.S., spent time at the George home smoking marijuana. He recalled, however, that he did
not smoke marijuana with the defendant while at the George home. Likewise, he testified
that he had talked to the defendant “very little” and knew him only as “Darryl” at the time
of the offenses.

                 T.V. recalled that his grandparents had gone to church on September 12, 2010,
leaving him at home alone. Some time in the afternoon, Ms. George came over to the house
to tell the victim that the defendant “wanted [him] to come over” to his residence at a nearby
motel. Having visited the defendant once before with his brother, the victim rode his
skateboard to the defendant’s motel room at approximately 4:00 p.m. When the victim
arrived, the defendant let him in and asked the victim to bring his skateboard inside and lock
the door. The defendant procured a marijuana “joint” from a red, heart-shaped box, offered
to share it with the victim, and the two smoked the marijuana cigarette while watching a
football game. At some point, the defendant saw the victim’s brother approaching the motel
room door, told the victim not to say anything, and went outside to speak to the
victim’sbrother. Not knowing that the victim was inside the motel room, the victim’s brother
soon left.

                T.V. testified that the defendant was sitting on the bed and asked the victim to
sit at the foot of the bed. The defendant disclosed to the victim that he was bisexual and
offered the victim a marijuana cigarette in exchange for the victim’s masturbating the
defendant. When the victim refused the defendant’s offer and attempted to stand up to leave,
the defendant threatened to hit the victim. The victim testified that he then sat down on the
bed because he was afraid. The defendant pulled down the victim’s shorts and “raped [the
victim] with his mouth.” T.V. testified that he did not want the defendant to place his mouth
on his penis. He said that he struggled with the defendant, but the defendant pinned the
victim with his arms and legs. T.V. said that he told the defendant to stop. The victim
testified that he did not ejaculate during the assault.

              After placing his mouth on the victim’s penis, the defendant stood and began
taking his own pants off. At that time, the victim pulled up his pants and once again tried to
stand up. He said that the defendant “grabbed [him] by the throat and slammed [him] on the


       1
           As is the policy of this court, we will refer to the child victim in this case by his initials.
                                                       -2-
bed.” T.V. recalled the defendant’s saying, “Cut the bullshit.” Nevertheless, after some
struggling, the victim freed himself, grabbed his skateboard, and ran from the defendant’s
motel room. The victim saw a motel manager outside in the parking lot and told the manager
that the defendant had raped him. The victim testified that the manager told him to leave.

              T.V. testified that he ran home, where his sister noticed scratches and bruises
on his neck. When she asked what had happened, the victim reported the offenses to his
sister and grandparents. His grandfather telephoned the Shelbyville Police Department.
Within hours of the offenses, the victim spoke to investigators and underwent a rape kit
examination at the local hospital.

             On cross-examination, the victim admitted that he was “high” while at the
defendant’s motel room. He explained, however, that he sobered quickly once the assault
began because he was so scared.

              Shashikant Patel, a friend of the motel manager, testified that on September 12,
2010, he saw a “white boy” with a skateboard “running out” of a motel room. He recalled
that the boy “said something, but [he did]n’t understand.” Mr. Patel testified that the boy
seemed scared.

                Cathy Shaver, the victim’s grandmother, testified that her family knew the
defendant as a friend of their neighbor. She said that on September 12, 2010, she and her
husband returned home at approximately 7:00 p.m. after going to church and visiting friends
for the afternoon. When they returned home, neither the victim nor his older brother was at
home. Ms. Shaver said she went to the George home to see if the victim was there, and Ms.
George told her that the victim may be at the defendant’s motel room-apartment. Soon
thereafter, the victim arrived home with “a big old scratch on his neck [that] was bright red.”
Ms. Shaver said that the scratch had not been there earlier and looked fresh. When the victim
told the family what had happened, he began “shaking.” Ms. Shaver’s husband telephoned
the police and took the victim to the emergency room.

             Ms. Shaver testified that since the assault, the victim had suffered from
nightmares and had difficulty sleeping in the room alone. She said that she often slept in the
same room with the victim because the victim “always want[ed] somebody around.”

               Shelbyville Police Department (SPD) Officer Jerry Draine responded to the
report of the victim’s assault. When he arrived at the Shaver home to interview the victim,
he observed bruises and scratches on the victim’s neck and chest that were consistent with
the victim’s account of the assault. Officer Draine recalled that the victim “seemed very
scared” and that his grandparents “were very upset.” The victim identified the defendant by

                                              -3-
the name “Darryl” and told Officer Draine the address of the defendant’s motel room.
Detectives Charles Merlo and Brian Crews took over the investigation of the assault, but
Officer Draine assisted in arresting the defendant at the motel later that night.

              SPD Detective Charles Merlo testified that he observed the victim’s injuries
and opined that they looked recent. He also observed a “fresh” scratch on the defendant’s
right elbow when the defendant was arrested on the evening of September 12. Consistently
with victim’s account, investigators discovered a red heart-shaped box underneath the
defendant’s television stand. They also discovered a marijuana “roach,” or cigarette remnant,
on the night stand of the room. Although the victim submitted to an examination at the
emergency room, no forensic evidence was recovered from the examination. Detective
Merlo explained that a rape kit examination would not likely yield any evidence given the
type of assault reported by the victim.

               With this evidence, the State rested its case. The trial court then ruled that the
defendant could be impeached with prior convictions of aggravated assault and statutory rape
should he choose to testify. Following a full Momon colloquy, see Momon v. State, 18
S.W.3d 159, 161-62 (Tenn. 1999), the defendant elected not to testify and did not present any
proof. The jury convicted the defendant, as charged, with two alternative counts of rape, one
count of contributing to the delinquency of a minor, and one count of simple possession of
marijuana. At sentencing, the trial court merged the alternative rape convictions into a single
judgment and imposed the maximum Range II sentence of 20 years’ incarceration for the
rape conviction. The trial court also imposed sentences of 11 months and 29 days for the
convictions of contributing to the delinquency of a minor and simple possession and ordered
the sentence for simple possession to be served consecutively to the 20-year sentence for
rape, resulting in a total effective sentence of 20 years plus 11 months and 29 days’
incarceration. On appeal, the defendant challenges the sufficiency of the evidence to support
his convictions, the trial court’s allowing impeachment via his convictions of aggravated
assault and statutory rape, and the trial court’s imposition of sentence. We will review each
claim in turn.

                                  Sufficiency of the Evidence

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379

                                               -4-
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

               Rape, as relevant to the counts alleged in this case, is defined by our Code as
the “unlawful sexual penetration of a victim by the defendant or of the defendant by a victim
[when] . . . (1) [f]orce or coercion is used to accomplish the act[, or] (2) [t]he sexual
penetration is accomplished without the consent of the victim and the defendant knows or
has reason to know at the time of the penetration that the victim did not consent.” T.C.A. §
35-13-503(a)(1), (2).

               “Any adult who contributes to or encourages the delinquency or unruly
behavior of a child, whether by aiding or abetting or encouraging the child in the commission
of an act of delinquency or unruly conduct . . . commits a Class A misdemeanor, triable in
circuit or criminal court.” Id. § 37-1-156. “‘Delinquent act’ means an act designated a crime
under the law . . . .” Id. § 37-1-102(b)(9).

              “It is an offense for a person to knowingly possess or casually exchange a
controlled substance . . . .” Id. § 39-17-418(a).

               Initially, we note that the defendant erroneously contends that the evidence
presented in this case “is highly circumstantial” and that “[i]n order to convict on
circumstantial evidence alone, the facts and circumstances must be so closely interwoven and
connected that the finger of guilt is pointed unerringly at the defendant.” In Dorantes, our
supreme court clarified the standard to be utilized when examining circumstantial evidence
and held “that direct and circumstantial evidence should be treated as the same when
weighing sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381 (citations omitted)
(also noting that “[c]ircumstantial evidence . . . is intrinsically no different from testimonial
evidence”). Therefore, even assuming the evidence in this case consisted entirely of
circumstantial evidence, the evidence would not be held to a different level of scrutiny as
espoused by the defendant. At any rate, the victim’s testimony about the offenses was direct
evidence of the same. See, e.g., State v. Michael Aaron Jenkins and Perley Winkler, Jr., No.
E2008-02321-CCA-R3-CD (Tenn. Crim. App., Knoxville, Feb. 17, 2011) (noting that
“eyewitness testimony is direct evidence”), perm. app. denied (Tenn. May 25, 2011); State

                                               -5-
v. Larry Wayne Webb, No. E2010-02204-CCA-R3-CD (Tenn. Crim. App., Knoxville, Sept.
14, 2011) (noting that the victim’s eyewitness testimony was direct evidence of defendant’s
participation in the offenses); State v. Jovan Xavier Moore, No. M2007-02515-CCA-R3-CD
(Tenn. Crim. App., Nashville, Sept. 16, 2008) (noting that eyewitness testimony is direct, not
circumstantial, evidence), perm. app. denied (Tenn. May 4, 2009).

               That being said, the evidence in this case established that the defendant shared
marijuana with the 13-year-old victim. The defendant then propositioned the victim, offering
the victim additional marijuana if the victim would masturbate the defendant. When the
victim refused and attempted to leave the defendant’s motel room, the defendant verbally and
physically threatened the victim. The defendant forced the victim to the bed, pulled down
the victim’s pants, and placed his mouth on the victim’s penis, while restraining the victim
to the bed with his legs and arms. The victim struggled throughout the assault, as evidenced
by the bruises and scratches to the victim’s chest and neck. Mr. Patel saw the victim running
scared from the defendant’s motel room. At the defendant’s arrest later that night, officers
discovered a marijuana remnant on the night stand. In our view, the State presented
sufficient evidence in support of the defendant’s convictions.

                             Impeachment by Prior Convictions

               Next, the defendant argues that the trial court erroneously allowed the State to
use as impeachment his convictions of aggravated assault and statutory rape. He contends
that the court’s ruling prevented him from testifying at trial. The State argues that the trial
court did not abuse its discretion by allowing impeachment by these prior convictions.
Alternatively, the State contends that any error in their admission was harmless.

                 Subject to certain conditions for admissibility, Tennessee Rule of Evidence 609
authorizes the use of proof of a witness’s prior convictions to attack a witness’s credibility.
Tenn. R. Evid. 609(a). The prior conviction must be for a felony or a crime involving
dishonesty or false statement. Tenn. R. Evid. 609(a)(2). To be eligible as an impeaching
conviction, a prior felony conviction need not involve dishonesty. However, when the
witness to be impeached is the criminal defendant, the State must give notice prior to trial
of its intent to utilize the conviction for impeachment purposes, Tenn. R. Evid. 609(a)(3), and
upon request, the court must determine the admissibility of an eligible conviction by deciding
whether “the conviction’s probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues.” Id. In making this determination, “two criteria are
especially relevant.” State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). First, the court
must “analyze the relevance the impeaching conviction has to the issue of credibility” and
“explain [the relevance] on the record,” id., and second, it must, “‘assess the similarity
between the crime on trial and the crime underlying the impeaching conviction.’” Id.

                                              -6-
(quoting Cohen, Sheppeard, Paine, Tennessee Law of Evidence § 609.9 at 376 (3d ed. 1995)).

              If the conviction is remote, that is, if more than 10 years have elapsed from the
date of release from confinement or from the date of conviction if no confinement was
involved, the prior conviction is generally not admissible to impeach the witness. Tenn. R.
Evid. 609(b). However, a remote conviction may be admissible when the adverse party gives
advance notice of intent to use the conviction, and the court determines that in the interests
of justice the conviction’s probative value is substantially outweighed by its prejudicial
effect. Id. “Under the evidentiary rules, the [S]tate bears a higher burden of establishing the
admissibility of convictions over ten years old.” State v. Thompson, 36 S.W.3d 102, 110
(Tenn. Crim. App. 2000) (comparing Tenn. R. Evid. 609(a)(3) (for conviction less than ten
years old, probative value must outweigh unfair prejudicial effect) with Tenn. R. Evid.
609(b) (for conviction more than ten years old, probative value must substantially outweigh
unfair prejudicial effect)).

              On appellate review, the trial court’s rulings on the admissibility of prior
convictions for impeachment purposes are subject to reversal only for abuse of discretion.
See, e.g., Mixon, 983 S.W.2d at 674.

               In the present case, the trial court ruled admissible two of the defendant’s prior
convictions: a 1990 conviction of aggravated assault and a 1990 conviction of statutory rape.
For these convictions to have been admissible, the State bore the burden of demonstrating
that each conviction’s probative value on credibility substantially outweighed its unfair
prejudicial effect on the substantive issues. See Tenn. R. Evid. 609(a)(3).

              With respect to the defendant’s conviction of aggravated assault, we note that
a conviction of aggravated assault implicates a crime of violence. This court has
acknowledged that convictions of violent felonies “reflect on the moral character of a
witness” and, therefore, have some probative value. State v. Blanton, 926 S.W.2d 953, 960
(Tenn. Crim. App. 1996). Moreover, as noted by the trial court, the crimes of rape and
aggravated assault are not similar so as to increase the unfair prejudicial effect of utilizing
the aggravated assault conviction for impeachment. Accordingly, we conclude that the trial
court did not abuse its discretion in ruling admissible the evidence of the defendant’s
conviction of aggravated assault for use as impeachment during the present rape trial.

               Turning to the trial court’s ruling admitting the defendant’s 1990 conviction
of statutory rape, we note, as did the trial court, that the defendant’s history of convictions
includes multiple statutory rape convictions as well as other sexual assaults. In deeming this
single statutory rape conviction admissible, the trial court determined that excluding
numerous other convictions minimized the prejudicial effect of admitting the single

                                               -7-
conviction. The trial court further determined that statutory rape was “not identical” to the
rape allegation presented in this case. We determine, however, that “[t]here is obviously a
behavioral nexus between such an assault and the type of actions generally proscribed by the
[rape statute].” Thompson, 36 S.W.3d at 112. Indeed, the only distinction between statutory
rape and the facts of the present case charging forcible and nonconsensual rape of a minor
hinges upon the element of the victim’s consent. Under these circumstances, we cannot
conclude that the probative value as to credibility of the prior statutory rape conviction
substantially outweighed the prejudicial effect of its admission. Consequently, we conclude
that the trial court abused its discretion by admitting the defendant’s prior conviction of
statutory rape as impeachment evidence.

              That being said, we must now address whether the error in this case was
harmless. In assessing the harmlessness of the error, we do not consider whether the
defendant would have testified but for the erroneous ruling – or whether he would have
declined to testify had the trial court excluded the statutory rape but correctly allowed
impeachment via the aggravated assault conviction. Thompson, 36 S.W.3d at 112 (citing
State v. Galmore, 994 S.W.2d 120, 124-25 (Tenn. 1999)). Rather, our analysis is limited to
whether the erroneous impeachment would have “affected the result of the trial on the
merits.” Id. (citations omitted).

               In making this assessment, we are obliged to consider the “theory of the
defense” in order to determine whether the erroneous impeachment would have had an
impact on the result of the trial. See Galmore, 994 S.W.2d at 125. Although our review is
hampered by the defendant’s failure to include a transcript of the arguments of counsel in the
record on appeal, we discern from the defendant’s cross-examination of the State’s witnesses
that the defense theory rested upon attacking the victim’s credibility so as to create
reasonable doubt regarding any force utilized by the defendant or, alternatively, to show
consent on the part of the victim. On cross-examination, the victim testified that although
he was “high” from smoking marijuana with the defendant, he quickly sobered when the
assault began. The victim also admitted that he initially did not disclose to his grandparents
that he had smoked marijuana with the defendant. He did, however, tell investigators about
the marijuana during his initial interview. On redirect examination, the victim reiterated that
he protested the defendant’s actions and that the defendant knew he did not consent to the
sexual activity. In that vein, this case presents a credibility contest between the victim and
the defendant – a situation that has yielded, in some prior cases before this court, a finding
of harmfulness requiring reversal.

               We further determine, however, that this case did not rest solely upon a
credibility determination of the victim versus the defendant. The victim suffered apparent
injuries to his neck and chest that were documented within hours of the assault, giving

                                              -8-
credence to the victim’s claim of force and lack of consent. Photographs of the victim’s
injuries were admitted into evidence and display substantial bruising and scratches across the
victim’s neck and upper chest. Indeed, family members’ viewing the victim’s injuries and
distressed state within minutes of the assault prompted the victim to disclose the assault.
Detective Merlo testified that he observed “fresh” scratches on the victim’s neck and that the
victim’s injuries were consistent with the victim’s account of the attack. Mr. Patel saw the
victim fleeing the defendant’s apartment “very scared” immediately following the assault.
The victim testified that he did not ejaculate during the assault. All of this evidence negates
the defendant’s theory that the incident was consensual. Moreover, we note that a prior
conviction of statutory rape was not necessarily inimical to the defendant’s theory that the
sexual contact in this case was consensual. In our view, these considerations render the trial
court’s admission of the statutory rape conviction harmless.

                                         Sentencing

              In his last issue, the defendant challenges the trial court’s imposition of
sentence. He contends that the record does not support the trial court’s imposition of the
maximum 20-year sentence for the rape conviction and that the trial court should not have
ordered partial consecutive service of the sentences. The State argues that the record
supports the sentencing decision in this case.

               Since the passage of the 1989 Sentencing Act, our standard of review when
considering challenges to the length and manner of service of a sentence has been de novo
review with a presumption that the determinations of the trial court are correct. T.C.A. §
40-35-401(d) (2006) (“When reviewing sentencing issues raised pursuant to subsection (a),
including the granting or denial of probation and the length of sentence, the appellate court
shall conduct a de novo review on the record of the issues. The review shall be conducted
with a presumption that the determinations made by the court from which the appeal is taken
are correct.”). In 2005, the general assembly amended the Sentencing Act to bring our
sentencing law into compliance with federal constitutional requirements as enunciated in
Blakely v. Washington, 542 U.S. 296 (2004), and its progeny. Notably, the 2005 revisions
rendered advisory the enhancement and mitigating factors and removed the presumptive
sentence to be imposed by the trial court. State v. Carter, 254 S.W.3d 335, 345-46 (Tenn.
2008). In a number of cases following passage of the 2005 amendments, our supreme court
signaled that the statutorily proscribed standard of review, de novo with a presumption of
correctness, might be at odds with what had become a far more discretionary sentencing
scheme. See, e.g., Carter, 254 S.W.3d at 344, 346. In State v. Cross, 362 S.W.3d 512 (Tenn.
2012), the court again wrestled with the “the precise metes and bounds of appellate review
under the current increased trial court discretion structure” but ultimately left the issue
unsettled. State v. Cross, 362 S.W.3d 512, 529 (Tenn. 2012). The court visited the issue

                                              -9-
most recently in State v. Susan Renee Bise, ___ S.W.3d ___, No. E2011-00005-SC-R11-CD
(Tenn. Sept. 26, 2012), and ultimately concluded that “although the statutory language
continues to describe appellate review as de novo with a presumption of correctness,” the
2005 revisions to the Sentencing Act “effectively abrogated the standard of appellate
review.” State v. Susan Renee Bise, ___ S.W.3d ___, No. E2011-00005-SC-R11-CD, slip
op. at 29 (Tenn. Sept. 26, 2012). Observing that a change in our standard of review was
necessary to comport with the holdings of the United States Supreme Court, our supreme
court “adopt[ed] an abuse of discretion standard of review, granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the
purposes and principles of our Sentencing Act.” Id. The court held that “sentences imposed
by the trial court within the appropriate statutory range are to be reviewed under an abuse of
discretion standard with a ‘presumption of reasonableness’” afforded to sentencing decision
of the trial court.

              The supreme court observed, however, that in making its sentencing decision,
a trial court must consider the principles of sentencing enumerated in Code section
40-35-210(b):

              (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
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;

              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and

              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.



                                             -10-
See Susan Renee Bise, ___ S.W.3d ___, slip op. at 19 (citing T.C.A. § 40-35-210(b)), 27 n.
41. By statute, the trial court must also consider “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant . . . in determining the sentence alternative or
length of a term to be imposed.” Id. § 40-35-103(5). The court cautioned that, despite the
wide discretion afforded the trial court under the revised Sentencing Act, trial courts are “still
required under the 2005 amendments to ‘place on the record, either orally or in writing, what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.’” Id. (citing Tenn. Code Ann. §
40-35-210(e)). Thus, under the holding in Susan Renee Bise, “[a] sentence should be upheld
so long as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id., slip op. at
32.

               At the outset, we note that the record reflects the trial court’s consideration of
the sentencing principles and facts and circumstances of this case. In arriving at the
maximum length of sentence, the trial court considered the defendant’s history of criminal
convictions, history of juvenile adjudications, and his supervision status at the time the
offenses were committed. See T.C.A. § 40-35-114(1), (16), (13). The trial court found that
the 52-year-old defendant’s history of criminal convictions, dating back over 30 years, alone
“sufficient[ly justified] a maximum sentence.” In our view, the record supports the trial
court’s findings. The defendant committed the present offenses while under supervision for
an attempted rape conviction. His prolific record of sexual offenses includes four statutory
rape offenses, a third degree sexual conduct offense, and assault with intent to molest a child
less than 12 years of age. His juvenile record also reveals at least one sexual offense
conviction at the age of 15. We conclude that the record supports the length of sentence
imposed in this case.

                As to the defendant’s challenge concerning the imposition of consecutive
sentences, we note that the Sixth Amendment considerations attendant to the trial court’s
imposition of sentence length are not implicated by the trial court’s decision regarding
alignment of sentences. See Oregon v. Ice, 555 U.S. 160, 172 (2009); State v. Allen, 259
S.W.3d 671, 688 (Tenn. 2008) (ruling Sixth Amendment Blakely challenges inapplicable to
consecutive sentencing). Consequently, our standard of review when considering challenges
to the alignment of sentences remains de novo with a presumption that the determinations
of the trial court are correct. T.C.A. § 40-35-401(d) (2006); see also id. § 40-35-401(a)
(“The defendant in a criminal case may appeal from the length, range or manner of service
of the sentence imposed by the sentencing court. The defendant may also appeal the
imposition of consecutive sentences.”). When a defendant is convicted of multiple crimes,
the trial court, in its discretion, may order the sentences to be served consecutively if it finds
by a preponderance of the evidence that a defendant falls into one of seven categories listed

                                              -11-
in Tennessee Code Annotated section 40-35-115. They are:

              (1) The defendant is a professional criminal who has knowingly
              devoted such defendant’s life to criminal acts as a major source
              of livelihood;

              (2) The defendant is an offender whose record of criminal
              activity is extensive;

              (3) The defendant is a dangerous mentally abnormal person so
              declared by a competent psychiatrist who concludes as a result
              of an investigation prior to sentencing that the defendant’s
              criminal conduct has been characterized by a pattern of
              repetitive or compulsive behavior with heedless indifference to
              consequences;

              (4) 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;

              (5) The defendant is convicted of two (2) or more statutory
              offenses involving sexual abuse of a minor with consideration
              of the aggravating circumstances arising from the relationship
              between the defendant and victim or victims, the time span of
              defendant’s undetected sexual activity, the nature and scope of
              the sexual acts and the extent of the residual, physical and
              mental damage to the victim or victims;

              (6) The defendant is sentenced for an offense committed while
              on probation; or

              (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). The existence of a single category is sufficient to warrant the
imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim.
App. 1997).

              The trial court imposed partially consecutive sentences based upon its finding
that “[t]he defendant is an offender whose record of criminal activity is extensive.” See
T.C.A. § 40-35-115(2). The trial court noted that “the defendant is a true sexual predator.

                                            -12-
That is the longest sentence I can give, and I find that he is fully deserving of that
[sentence].” The record supports the trial court’s finding. The exhibits to the sentencing
hearing reflect the defendant’s long history of criminal convictions spanning over 40 years,
beginning when the defendant was only 14 years old, many of which involved sexual
offenses. We conclude that partial consecutive service was appropriate in this case.

                                        Conclusion

              The judgments of the trial court are affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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