         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    April 23, 2002 Session

                   STATE OF TENNESSEE v. SCOTT M. CRAIG

                 Direct Appeal from the Criminal Court for Bradley County
                           No. 98-231    R. Steven Bebb, Judge



                                 No. E2001-01528-CCA-R3-CD
                                       August 27, 2002

Defendant, Scott Craig, was convicted by a Bradley County jury of one count of aggravated
kidnapping and two counts of aggravated rape. He was sentenced to eight years for aggravated
kidnapping and fifteen years each for the aggravated rape convictions. The trial court ordered the
two aggravated rape convictions to be served concurrently with each other, but consecutively to the
aggravated kidnapping conviction, for an effective sentence of twenty-three years. Defendant
appeals his conviction and sentence, presenting the following issues for review: (1) whether the trial
court made improper and prejudicial comments during the trial which deprived Defendant of his
right to a fair trial; and (2) whether the trial court erred by imposing consecutive sentences. After
a thorough review of applicable law and all relevant facts and circumstances in the record, we affirm
Defendant’s convictions. We reverse the judgment of the trial court concerning the length of
Defendant’s sentence for aggravated rape and the trial court’s order of consecutive sentencing, and
remand this matter for a new sentencing hearing.

                          Tenn. R. App. P. 3 Appeal as of Right;
          Judgment of the Criminal Court Affirmed in Part and Reversed in Part.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
JERRY L. SMITH, J., joined.

Leonard “Mike” Caputo, Chattanooga, Tennessee (on appeal) and Ashley L. Ownby, Cleveland,
Tennessee (at trial) for the appellant, Scott M. Craig.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Jerry N. Estes, District Attorney General; Stephen D. Crump, Assistant District Attorney General;
Carl F. Petty, Assistant District Attorney General; and Shari Lynn Tayloe, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                             OPINION
                                               FACTS

        On July 8, 1997, nineteen-year-old Angela Taylor arrived at work at Jack’s Kleen-Rite in
Cleveland at approximately 6:50 a.m. The dry cleaner business was scheduled to open at 7:00 a.m.
Ms. Taylor was working alone that morning. Within minutes of opening, a male customer walked
into the establishment carrying a blue-jean jacket. Per company policy, Ms. Taylor wrote the
customer’s name, phone number, and the date he wanted his dry cleaning returned on a laundry
ticket. He then stated that he had to return to the car to empty the jacket’s pockets. As he exited the
store, she entered his name and phone number into the computer. The customer’s car, a 1982
Camaro, was parked directly in front of the business. She watched as he took the jacket to the car
and placed it where she could not see his exact movements. He then returned with the jacket and
said, “Now, do me a favor.” When she inquired as to the favor, he grabbed her by the wrist and
warned, “Now, go to my car and don’t scream, don’t try to get away.” She noted that prior to this,
he never flirted or made any “off-handed” comments.

        Defendant then led her by the wrist out of the store and into his car. She testified that
Defendant had a strong grip on her wrists and she knew that she could not get away. He ordered her
to climb in through the driver’s side door onto the passenger’s seat and she complied. He then
climbed into the driver’s seat, leaned over and locked her door, and drove away. As they drove, she
noticed that Defendant was carrying a knife on his belt. Ms. Taylor begged to be released and
returned to the store. Defendant stated to her that he would take her back “when you give me a blow
job.” When Ms. Taylor refused to unzip his pants, Defendant unzipped them, grabbed the back of
her head, and shoved her head down towards the front of his pants. He held her head down and
forced her to perform fellatio. He then warned her, “If your head comes up you are dead.”
Although she continued to beg him to not make her do this, he warned her not to “piss him off.” She
stated that his tone of voice was very firm and demanding. She testified that she performed the act
because she was fearful that Defendant would make good on his threats.

        Eventually, Defendant stopped the car on a deserted gravel road. He then stated, “[t]hat’s
not working,” referring to the oral sex, and reached for her shorts. She informed him that she was
on her menstrual cycle and was wearing a tampon. Defendant ordered her to remove her shorts, her
underwear, and the tampon. Once removed, he threw the tampon out the window. Although she
begged him not to force her to have sex, he merely replied, “Don’t make me mad.” She stated that
she was afraid to physically resist for fear that he would hurt or even kill her. Defendant then
grabbed one of her arms and pulled her on top of him and penetrated her vaginally. After a short
while, he stated, “Well, that’s not working either,” and forced her to lie down on the driver’s side
seat. He climbed on top of her and penetrated her again, stopping when he ejaculated.

        Defendant then drove to another location, an empty field, and stopped the car. He forced Ms.
Taylor to exit the car and begin walking. Defendant explained to Ms. Taylor that his family had
controlled him his entire life, and that he had raped her because he wanted to be in control for once.
Ms. Taylor testified that she did not attempt to run because she was in an unfamiliar area and she
was afraid that he would find her and kill her. While they were standing in the field, he pulled out


                                                 -2-
his knife, placed it to her throat and stated, “I know you are going to tell, so I’m going to kill you.”
She pleaded for her life and explained that she had a six-month-old daughter at home. After hearing
this, Defendant lowered the knife, grabbed her hand, and led her back to the car and drove off.
While driving, Defendant apologized for his actions and explained that he just wanted to have
control of his life.

        As they were driving, Ms. Taylor began to recognize the surrounding area and realized that
they were returning to Cleveland, Tennessee. Although she pleaded to be released, Defendant
insisted on returning her to her place of employment. However, as they neared the dry cleaners, they
saw her boss’s van and a police car parked outside. Defendant then said, “I’m f---ed” and drove
away. Ms. Taylor promised Defendant that she would not tell anyone what had happened.
Defendant instructed her to tell her boss that she just went for a walk. After traveling a few blocks,
he stopped the car, unlocked her door, and instructed her to slam the door when she exited. She
complied. Ms. Taylor then asked a woman in a nearby car to drive her back to the dry cleaners so
that Defendant could not return and pick her up. When they arrived in front of the dry cleaners, she
ran inside and told her boss, Jackie Scoggins, and Officer Hanshaw what had transpired.

         Ms. Taylor identified Defendant in court as her assailant. She also identified the knife
confiscated from Defendant’s possession by police as the weapon Defendant had brandished. On
cross-examination, Ms. Taylor admitted that at the preliminary hearing, she stated that when
Defendant ordered her to leave with him, his tone of voice was “[n]ot really hateful or anything, just
kind of calm.” She also admitted that in her statement to police on July 8, 1997, she said when they
first entered the vehicle, Defendant told her, “I’m not going to kill you or anything.”

        Jackie Scoggins, a co-owner of Jack’s Kleen-Rite, testified that Ms. Taylor had been a
faithful employee for approximately six years. She testified that on July 8, 1997, she stopped at the
dry cleaners at approximately 7:30 a.m., while running an errand. When she entered the premises,
she found two customers waiting at the cash register. However, after searching the store, she was
unable to locate Ms. Taylor. She recalled speaking to Ms. Taylor when she called the store that
morning at 7:00 a.m. She became alarmed when she found Ms. Taylor’s make-up, glasses, keys,
drink, and breakfast on the counter beside the cash register. Ms. Taylor’s purse was also sitting
behind the partition. Everything else in the store was intact, including the clothes and the money in
the cash register. After assisting the customers, she called the police.

        Ms. Scoggins also noticed that Defendant’s name and a description of an article of clothing
to be cleaned was entered into the computer. However, there was no garment matching that
description in the laundry basket. She testified that per company policy, an employee must first
complete a laundry and cleaners’ tag for each customer, which includes the customer’s name, phone
number, and the item to be cleaned. Then, the employee must enter the customer’s information into
the computer. She further stated that she did not find a laundry ticket for Defendant. Shortly after
police arrived, a lady drove up in a blue car and Ms. Taylor ran into the store. She testified that Ms.
Taylor was crying and upset and visibly shaken. While she hugged Ms. Taylor and attempted to
calm her down, Ms. Taylor kept saying, “he raped me, he raped me . . . [h]im, him. It’s on the


                                                  -3-
computer.” She testified that prior to July 8, 1997, Ms. Taylor was a reliable and dependable
employee, and that she had never left the store unattended.

        Officer David Hanshaw testified that on July 8, 1997, he was dispatched to Jack’s Kleen-Rite
at approximately 8:13 a.m. to investigate a “missing persons” call. When he arrived at 8:19 a.m.,
he met Jackie Scoggins. Ms. Scoggins explained that the front desk clerk, Angela Taylor, was
missing. She further informed him that Ms. Taylor’s personal items remained in the store. Within
five to fifteen minutes of his arrival, a woman ran through the door screaming, crying, and very
hysterical. He later identified this woman as Ms. Taylor. After calming her down, she told him that
she was raped by a male customer and related the events of that morning. Ms. Taylor then informed
him that she had entered her assailant’s name and phone number into the computer. He retrieved this
information from the computer. The time of the entry was 7:01 a.m. Ms. Taylor also gave a
description of Defendant’s automobile. On cross-examination, Officer Hanshaw admitted that after
examining the crime scene, he saw no evidence of a struggle.

        Detective John Dailey, Jr. of the Cleveland Police Department testified that he was the lead
investigator in this case. He arrived at Jack’s Kleen-Rite at approximately 8:25 a.m. to respond to
a possible missing persons report. Upon arrival, he learned that Ms. Taylor, the alleged missing
person, had returned. He recalled that when he first encountered Ms. Taylor, her hair was disheveled
and it appeared that she had been crying. She also appeared very scared and upset. He stated that
Ms. Taylor related the events of that morning as told to Officer Hanshaw. He retrieved Defendant’s
name and phone number from the computer. From this information, officers were able to obtain
Defendant’s home address. Later that day, Defendant was arrested at his place of employment,
Easterly Cabinets. During the arrest, officers confiscated a knife that was strapped to Defendant’s
right hip. Defendant admitted that he had the knife on him when he stopped at the dry cleaners that
morning and that he carried the knife most of the time. Defendant further claimed that he used the
knife at work.

        Detective Dailey interviewed Defendant. He testified that Defendant claimed that he had
taken a jacket to Jack’s Kleen-Rite earlier that day. Defendant stated that he flirted with the front
desk clerk, made some “lines and comments” and convinced her to leave with him. He claimed that
he and Ms. Taylor engaged in consensual sex. Defendant stated that he first met Ms. Taylor on that
morning.

        On cross examination, Detective Dailey admitted that he took a statement from both Ms.
Taylor and Defendant. He further admitted that both statements were fairly consistent with the
exception of whether or not there was consent. He testified that he did not see any physical evidence
of bruising on Ms. Taylor. He also admitted that in Ms. Taylor’s statement, she never mentioned
that Defendant pulled a knife on her and forced her out of the store. Instead, she stated that
Defendant grabbed her by the hand and ordered her to follow him out of the store. However,
Detective Dailey testified that in his opinion, Ms. Taylor had been forcefully removed from the store
because the store was left open, and Ms. Taylor’s personal belongings were in plain view.



                                                -4-
        Doctor John Denman testified that he performed a rape examination on Ms. Taylor on July
8, 1997, at approximately 9:00 a.m. When he first encountered Ms. Taylor, she appeared scared and
distraught and was crying, weeping, and obviously disturbed. At the time of the examination, Ms.
Taylor was on her menstrual cycle and there was a small amount of menstrual bleeding. However,
her cervix was closed. He testified that there were no signs of any external bruising, or any signs of
bruising or lacerations in the perineal area. He also examined her throat and found no evidence of
bruising or redness. He retrieved tissue samples to prepare semen cultures and performed a pelvic
examination to ensure that there were no abnormalities. He further stated that while it is usual in
rape cases to see evidence of trauma in the vaginal area, it is not always present. When asked, he
further testified that in his opinion, approximately forty percent of rape victims that he has examined
have some type of bruising, redness, or markings after the attack. However, he stated that this
depends on the method used to commit the act. He further testified that as an ER physician, he has
witnessed some patients that feign sexual assault, and that they normally appear very detached,
unemotional, and very matter of fact about how things happened. However, these persons were
usually not as emotionally distressed as Ms. Taylor.

        Defendant testified in his own behalf. He denied kidnapping or raping Ms. Taylor. While
Defendant’s testimony somewhat coincided with Ms. Taylor’s account of the morning’s events, he
claimed that he and Ms. Taylor willingly left her employment and that they engaged in consensual
sex. He denied threatening Ms. Taylor with bodily harm. He testified that while he had a knife on
his person that day, it never left its sheath. He further testified that he only uses the knife to perform
his job duties at Easterly Cabinets. Defendant then admitted that before he was arrested, officers
informed him that he was being charged with kidnapping and rape. Then, they asked if he knew
what it was about and he replied, “the only thing that he could think of was the girl that morning.”

        The State called Lieutenant Danny Chastain as a rebuttal witness. He testified that he served
the arrest warrant on Defendant at his place of employment, Easterly Cabinets. He stated that when
he placed Defendant under arrest, Defendant did not respond. When asked if Defendant knew what
the arrest was about, he stated, “The girl from this morning.” He further testified that he never stated
the charges against Defendant at the time of the arrest.

                                              ANALYSIS

I. Trial Court’s Comments

         Defendant argues that the trial court made improper and highly prejudicial comments during
the testimony of various witnesses, in the presence of the jury, which effectively deprived him of his
right to a fair trial. Specifically, he contends that the trial court erred by commenting on the
evidence, by emphasizing and drawing attention to certain witnesses’ testimony, and by making
remarks that were demeaning to defense counsel. He claims that he was unduly prejudiced by the
trial court’s various comments and interjections and that these acts, taken together, constitute “plain
error.” We disagree.



                                                   -5-
       In support of this argument, Defendant claims first that the trial court made improper
comments concerning the evidence during the State’s direct examination of Officer David Hanshaw.
The colloquy between the witness, prosecutor, defense counsel, and the trial court transpired as
follows:

       [Prosecutor]:          Okay. Tell the jury who was there and what happened when
                              Ms. Taylor came back in?

       [Hanshaw]:             Okay. Myself, Jackie, and I believe Sergeant Gates was there
                              when she come running in, just run right through the door
                              screaming and crying and then she went right to the back
                              office.

       [Prosecutor]:          Well, did she say anything?

       [Hanshaw]:             She really didn’t say anything to me right there. She was just
                              crying, very hysterical.

       [Prosecutor]:          Do you remember her saying anything to anybody when she
                              first came in?

       [Hanshaw]:             The way she was acting it was hard to gather. We had to try
                              to calm her down to get some information from her.

       [Prosecutor]:          Officer, in your opinion how would you characterize the
                              victim’s demeanor at this time, or state of mind?

       [Hanshaw]:             Very, very, not normal. She –

       [Prosecutor]:          Was she upset, was she hysterical –

       [Hanshaw]:             Upset, traumatic, –

       [Defense Counsel]:     I believe he’s leading the witness, your Honor.

       Court:                 He is, but he said to begin with she was hysterical when she
                              came in, and crying, and I think that’s a pretty good
                              description.

       Defendant also claims that, during the prosecutor’s direct examination of the victim, Ms.
Taylor, the trial court further erred by interjecting statements that were unnecessary and unduly
emphasized her testimony to the jury, and cites the following excerpt from the record:


                                               -6-
       [Prosecutor]:           All right. So why didn’t you try to run off or get away from
                               him at this point?

       [Taylor]:               I didn’t know where I was, you know, which way to run, and
                               I was afraid he would find me and then he would kill me.

       [Prosecutor]:           Excuse me, I didn’t hear you on the last.

       Court:                  She said that she thought if she ran that he would find her and
                               kill her.

       In addition, Defendant contends that the trial court made an improper objection during
defense counsel’s cross-examination of Officer David Hanshaw:

       [Defense Counsel]:      And I don’t see anything written [i]n your [notes] that show
                               any type of trauma or any type of bruising or anything of that
                               in any nature, and so I’m assuming from what you’ve testified
                               to you saw no evidence of any bruises on her. Is that a fair
                               statement?

       [Hanshaw]:              I didn’t examine her physically.

                                          *       *       *

       [Defense Counsel]:      Officer, she was wearing shorts that morning. Correct?

       [Hanshaw]:              I really can’t remember exactly what she was wearing.

       [Defense Counsel]:      All right. But there was nothing about her face, her arms
                               and/or her legs that would let you know –

       Court:                  Asked and answered. You said, “did you see any bruises?”
                               He said, “no.”

       [Defense Counsel]:      Does the court have any other questions?

       Court:                  Do you have any other questions?

       Defendant contends that the following dialogue, which took place during defense counsel’s
cross-examination of Ms. Taylor, constitutes additional evidence of the trial court’s negative attitude
toward defense counsel:



                                                 -7-
       [Defense Counsel]:    Ms. Taylor, my name is Ashley Ownby. I want to ask you
                             some questions, go over a couple of things. I don’t want to
                             hit you broadside on anything, I don’t want to trick you but I
                             want to go over some of the things you’ve told Officer Dailey
                             over here. Do you remember the statement you gave him, and
                             I’m assuming prior to coming to trial you’ve reviewed this
                             statement, haven’t you?

       [Taylor]:             I can’t hear you.

       Court:                Yes, I can’t hear you either. You are mumbling.

       [Defense Counsel]:    Well, I’m sorry, Judge, I guess I’m the one we need to worry
                             about.

       Court:                I think so.

       Finally, Defendant argues that the trial court interjected the following commentaries and
objections during defense counsel’s cross-examination of Ms. Taylor, which were inappropriate and
where no objection was made by the State:


       [Defense Counsel]:    Now, was there anything that prompted him to take his knife
                             out of his sheath at that time, ma’am?

       Court:                That would be asking her for something in his head, wouldn’t
                             it?

                                           *     *     *

       [Defense Counsel]:    Ms. Taylor, would it be a fair statement that you made no
                             physical effort to get away from--

       Court:                I believe that has been asked and answered twice, once by
                             him and once by you.

       [Defense Counsel]:    I know Detective Dailey said it, but I don’t believe she has
                             said--

       Court:                All right. Ma’am, did you make any physical effort to get
                             away?



                                                 -8-
       [Taylor]:               No. I was afraid he was going to kill me.

       Court:                  Thank you.

        Defendant contends that the above statements, made by the trial court in the presence of the
jury, were antagonistic, disparaging, and improper. Defendant asserts that, while the cited language
does not embody all of the court’s inappropriate comments, they demonstrate the court’s negative
attitude toward defense counsel and the adverse atmosphere in which Defendant’s case was tried.

        First, we note that in each of these instances, defense counsel failed to raise an objection
during trial. Failure to object or take whatever action is reasonably available to prevent or nullify
the harmful effect or error constitutes waiver of the issue on appeal. See Tenn. R. App. P. 36(a).
However, this Court may, in its discretion, consider an issue which has been waived upon a finding
of “plain error.” Under the “plain error” doctrine, “[a]n error which has affected the substantial
rights of an accused may be noticed at any time, even though not raised in the motion for a new trial
or assigned as error on appeal, in the discretion of the appellate court where necessary to do
substantial justice.” Tenn. R. Crim. P. 52(b). To determine whether “plain error” exists, the
following factors should be considered by an appellate court:

       a) the record must clearly establish what occurred in the trial court;
       b) a clear and unequivocal rule of law must have been breached;
       c) a substantial right of the accused must have been adversely affected;
       d) the accused did not waive the issue for tactical reasons; and
       e) consideration of the error is “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

        This test was formally adopted by our supreme court in State v. Smith, 24 S.W.3d 274 (Tenn.
2000). In Smith, the court emphasized that all five factors must be established before plain error
may be recognized, and further stated that complete consideration of all the factors is unnecessary
when it is clear from the record that at least one of the factors cannot be established. Id. at 283.
Additionally, the “‘plain error’ must [have been] of such a great magnitude that it probably changed
the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (citations omitted). Our review of this case
reveals no plain error, that is, no error which has affected the substantial rights of Defendant. See
Tenn. R. Crim. P. 52(b); Adkisson, 899 S.W.2d at 641.

         Turning to the trial judge’s comments, we are mindful that judges in Tennessee are prohibited
by our state constitution from commenting upon the evidence during trial. See Tenn. Const. art. VI,
§ 9. “In all cases the trial judge must be very careful not to give the jury any impression as to his
feelings or to make any statement which might reflect upon the weight or credibility of evidence or
which might sway the jury.” State v. Suttles, 767 S.W.2d 403, 406-07 (Tenn. 1989). In other words,
a trial judge should be very careful not to express any thought that would lead the jury to infer that



                                                 -9-
his or her opinion was in favor of or against the defendant. See State v. Harris, 839 S.W.2d 54, 66
(Tenn. 1992); Suttles, 767 S.W.2d at 406-07.

        In the first three circumstances cited by Defendant above, the trial court’s comments were
essentially only a reiteration of the witness’s testimony. As for the other statements cited by
Defendant in his brief, we agree that the trial court might have used more circumspect language in
addressing defense counsel. However, given the relative strength of the State’s case, we do not find
that the court’s comments affected the verdict or resulted in prejudice to the judicial process. See
Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Our review of the entire record further reveals
no evidence of impropriety in any of the trial court’s other remarks during trial. Accordingly, we
find the trial court’s comments, overall, affected no “substantial rights of the accused.” Tenn. R.
Crim. P. 52(b). Neither did the alleged error rise to a level such that consideration of it is “necessary
to do substantial justice.” Adkisson, 899 S.W.2d at 642. Defendant is not entitled to relief on this
issue.

II. Consecutive Sentencing

        Defendant also challenges the trial court’s imposition of consecutive sentencing. He argues
that the trial court erred by imposing consecutive sentences based upon its finding that he was a
“dangerous offender,” because he does not meet the criteria for such classification. Defendant
further asserts that the trial court’s classification of him as a dangerous offender, where no
enhancement factors were found applicable to his case, is inconsistent, and his sentences should
therefore be served concurrently.

        The imposition of consecutive sentences is controlled, in part, by Tennessee Code Annotated
section 40-35-115. This section provides that the trial court may consider consecutive sentencing if
a defendant is charged with more than one criminal offense. Tenn. Code Ann. § 40-35-115(a)
(1997). In addition, the trial court must find, by a preponderance of the evidence, that a defendant
satisfied one of seven criteria, including “[t]he 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.” Id. § 40-35-114(b)(4); see State v. Black, 924 S.W.2d 912, 917 (Tenn.
Crim. App. 1995).

        “The dangerous offender classification, as has been previously observed, is subjective in
nature.” State v. Howell, 34 S.W.3d 484, 515 (Tenn. Crim. App. 2000). In State v. Lane, 3 S.W.3d
456 (Tenn. 1999), the supreme court stated that before consecutive sentencing is imposed based on
dangerous offender status, the Sentencing Act requires that “there must also exist ‘particular facts’
which show that consecutive sentencing is ‘reasonably related to the severity of the offenses’ and
serves to protect society ‘from further . . . aggravated criminal conduct.’” Id. at 461 (quoting State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). Then, “[i]n order to limit the use of the
‘dangerous offender’ category to cases where such ‘particular facts’ exist, . . . sentencing courts must
make specific findings regarding the severity of the offenses and the necessity to protect society
before ordering consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(4).” Id.


                                                  -10-
       Here, the trial court made the following statements in determining the length of Defendant’s
sentences and whether to impose consecutive or concurrent sentencing:

        I do not find under the statute that I can find any enhancing or any mitigating factors
        to consider. That means in the case of aggravated rape that the sentence must be
        between 15 and 25 years for each count, but you have to find enhancing factors to go
        above 15, and in the aggravating kidnapping the sentence range is from 8 to 12 and
        again there are not aggravating circumstances.

                                             *       *        *

        [A]fter hearing all the proof in the case I think at some point this defendant was
        going to kill this young lady till she talked him out of it. I think it’s one of the most
        aggravated circumstance cases I’ve ever seen . . . I don’t think the defendant had any
        hesitation, and I find that the factors in the other cases which apply to this section
        [40-35-115], the defendant’s behavior indicated little or no regard for human life, he
        did not hesitate to commit a crime in which the risk to human life was high, and I
        find also that the circumstances surrounding the offense was aggravated. I find that
        confinement for an extended period of time is necessary to protect society. I find,
        based on the sentence that I am about to impose, that the aggregate length of the
        sentence reasonably relates to the offenses for which the defendant stands convicted.
        For after all, if all of this had to run concurrently then there would be no punishment
        for kidnapping. So I sentence the defendant to the minimum sentences for
        aggravated rape, 15 years, and order that those sentences run concurrent, that is, at
        the same time, and to 8 years for aggravated kidnapping, which I believe should run
        consecutively, and I so order.

(Emphasis added.)

         First, we find that the trial court erred by ordering consecutive sentencing based on its finding
that Defendant was a “dangerous offender.” Under Lane, prior to ordering consecutive sentencing
under section 40-35-115(b)(4), the trial court must find that “particular facts” exist which show that
consecutive sentencing is reasonably related to the severity of the offenses and that it serves to
protect society from aggravated criminal conduct. Lane, 3 S.W.3d at 461 (emphasis added). The
supreme court was quite clear in its mandate that sentencing courts must make specific findings
regarding these criteria, i.e., the severity of the offenses and the necessity to protect society. In the
case sub judice, the trial court stated what criteria it should find, but failed to state what specific facts
it had found to satisfy them. A mere statement that confinement is necessary to protect society and
that the severity of the sentence is reasonably related to the convicted offenses, without more, is
insufficient to justify consecutive sentences.

       Second, it appears that the trial court erroneously considered a non-applicable factor in
ordering consecutive sentencing, when it specifically stated that “if all of this had to run


                                                    -11-
concurrently, then there would be no punishment for kidnapping.” This factor is not contained in
the statutory criteria for sentencing purposes and is clearly inappropriate as a ground for ordering
consecutive sentencing. Based on these errors, we cannot affirm the trial court’s order regarding
consecutive sentencing.

        Our review reveals that the trial court ordered an appropriate sentence length for Defendant’s
conviction of aggravated kidnapping, but that it erred in determining that the proper length of
Defendant’s sentences for the aggravated rape convictions should be fifteen years. In cases where
there are no enhancement or mitigating factors, the presumptive sentence for a Class B, C, D, or E
felony shall be the minimum sentence in the range, and the presumptive sentence for a Class A
felony is the midpoint of the range. See Tenn. Code Ann. § 40-35-210(c) (1997). Defendant was
sentenced as a Range I standard offender for two convictions of aggravated rape, a Class A felony,
and one conviction of aggravated kidnapping, a Class B felony. See id. §§ 39-13-304, 502. Under
Tennessee law, as a standard Range I offender the applicable range for a Class A felony is fifteen
to twenty-five years; the range for a Class B felony is eight to twelve years. See id. § 40-35-
112(a)(1), (2). Thus, the midpoint of the sentence range, for a Range I standard offender convicted
of aggravated rape, is twenty years. This is also the presumptive sentence. Where no enhancement
or mitigating factors apply, as in the instant case, the result is a sentence of twenty years for each of
the aggravated rape convictions. The sentence should not deviate from the presumptive sentence
(the midpoint of the applicable range in this case), unless enhancement and/or mitigating factors are
found by the trial court. See id. § 40-35-210(c) - (e). Here, no factors were applicable.

        In summation, we conclude that the trial court did not consider the applicable sentencing
considerations in Tennessee Code Annotated subsections 40-35-210(c) through (e) when it set
Defendant’s sentence of fifteen years for the aggravated rape convictions. Therefore, the sentence
is not entitled to the presumption of correctness. It also appears that the trial court failed to make
the necessary findings of fact in determining whether Defendant could be classified a “dangerous
offender” and that it erroneously considered a non-applicable factor in ordering consecutive
sentencing. Taking all of this into consideration, we are compelled to reverse Defendant’s sentences
for aggravated rape, and remand this to the trial court to impose sentences of twenty years for each
aggravated rape. Furthermore, we remand this matter for a new sentencing hearing to determine
whether or not consecutive sentencing is appropriate, in a manner consistent with this opinion.




                                           CONCLUSION

        For the forgoing reasons, we affirm all convictions and the sentence for aggravated
kidnapping. We reverse the sentences imposed for aggravated rape and remand for the trial court
to impose a sentence of twenty years for each aggravated rape. We further remand for a new
sentencing hearing as to whether or not consecutive sentencing is appropriate, in a manner consistent
with this opinion.


                                                  -12-
       ___________________________________
       THOMAS T. WOODALL, JUDGE




-13-
