        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2010

                   STATE OF TENNESSEE v. NEWT CARTER

              Direct Appeal from the Circuit Court for Madison County
                      No. 07-498    Roy B. Morgan, Jr., Judge




                 No. W2009-00600-CCA-R3-CD - Filed June 11, 2010


A Madison County jury convicted the defendant, Newt Carter, of aggravated rape, a Class
A felony, and aggravated burglary, a Class C felony. The trial court sentenced the defendant
as a Range I standard offender to twenty years at 100% for aggravated rape consecutive to
five years at 30% for aggravated burglary, to be served in the Tennessee Department of
Correction. On appeal, the defendant contends that (1) the evidence was insufficient to
support his convictions; and (2) the trial court erred in sentencing the defendant by
misapplying enhancement factors and ordering the defendant to serve the sentences
consecutively. Following our review, we affirm the judgments of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE R.
M CM ULLEN, JJ., joined.

Joseph T. Howell (on appeal), and Angela J. Hopson and Ramsdale O’Deneal (at trial),
Jackson, Tennessee, for the appellant, Newt Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Jody S. Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                        Background

       In September 2007, a Madison County grand jury indicted the defendant, Newt Carter,
for aggravated rape, a Class A felony, and aggravated burglary, a Class C felony. The
Madison County Circuit Court, the Honorable Roy B. Morgan, Jr., presiding, held a jury trial
on May 13, 2008. The parties presented the following evidence at trial.

                                        State’s Proof
        The victim testified that she was fifty years old at the time of trial. On July 1, 2006,
the victim lived in the Lincoln Courts apartment complex in Jackson, Tennessee. During the
preceding evening, she spent time with her daughter, her daughter’s children, and her
daughter’s boyfriend, the defendant, at her daughter’s apartment, which was across the street
from her own. They drank alcohol and talked until 2:00 a.m. During that evening, the
defendant mentioned that rapists entered homes through windows and forced their victims
to wash themselves after the rape. When the victim decided to go home, the defendant
accompanied her across the street. They entered her apartment together, and he waited while
she checked her windows to ensure that they were locked. Then, he left, saying that he
would return to check on her. She locked the door and went to her bedroom to watch a
movie. At approximately 3:30 a.m., the defendant knocked on her bedroom door, which was
partially open. He asked if she was okay, and she replied, “Yes, I’m fine. . . . You don’t have
to come back anymore.” The victim testified that she was concerned at that point because
the defendant was smiling and because she had previously told him that she would be fine.

       At 5:00 a.m., the victim awoke to a man tapping her temple with a gun. The man
wore a stocking cap over his face and was otherwise naked. He whispered to her to “drop
‘em.” When she hesitated to remove her clothes, he told her to “[h]urry up.” She did not
recognize his voice, and she could not tell what race the man was. She removed her clothes,
and the man instructed her to lie down on the bed. He fondled her breast and moved his hand
between her legs. Then, he told her to “suck it.” She performed oral sex on him until he told
her to get on her knees on the bed. The victim testified that he penetrated her vagina with
his penis. She was unable to tell whether he wore a condom. After approximately five
minutes, he stopped and laid down, ordering her to get on top of him. He penetrated her
again. The victim said that after he was finished, he ordered her to clean up. Throughout the
rape, he pointed the gun at her head. She went into her bathroom and washed her vaginal
area. The victim testified that she was able to see at that point that the man was dark-skinned
and five feet, ten inches, tall. He told her to “[g]et on up in there[,]” and she complied by
washing the interior of her vaginal area with a washcloth. While she washed, the man ran
downstairs and out the back door. She waited before she went downstairs and locked the
door.

       After she locked the door, she returned upstairs and began calling her daughter. She
heard a noise at her window and shut off her phone before completing the call. The victim
said that she took a bat out of her bedroom closet and stood in her room until she gathered
the courage to call her daughter. When she called, her daughter answered the phone, but the

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defendant “grabbed the phone.” She told him what happened to her. He arrived at her
apartment, letting himself in with a key. The victim said that she was unsure what time the
police arrived because she was hysterical. The police took her to the emergency room, where
hospital personnel examined her utilizing a rape kit, which involved taking her blood and
examining her genital area. The victim testified that she had known the defendant for six
years. She had never had a sexual relationship with him.

        On cross-examination, the victim testified that her daughter, the defendant, and their
children lived with her for a time prior to 2006. She said that she wears glasses and cannot
see well without them. The victim agreed that she told the investigator that she had her
glasses on during the rape. The victim said that her assailant had on black army shoes and
a beige stocking cap. She said that she could not tell what race the man was because she
averted her eyes from him as much as possible. She did not see any identifying features on
the man and said that she closed her eyes while she was on top of him. The victim testified
that the assailant had the gun wrapped in a towel, but she felt the cold barrel. The victim said
that she might have told a different version of what happened to the police because she was
hysterical. She described the defendant as having a slim build and dark skin. The victim
testified that she brushed her teeth after her assailant left, before anyone else arrived at her
apartment. She said that, as far as she knew, the defendant did not often let himself into her
apartment. The victim agreed that she never told the defendant that he could not come into
her house or ask him to give her the key he used. The victim testified that she drank one beer
at her daughter’s apartment, and the defendant walked her home because of the number of
men standing outside the apartments. She agreed that, on the day of the rape, she did not
identify the defendant as a suspect. When she began to suspect him, she did not tell
investigators but did tell her daughter.

        On redirect examination, the victim testified that she began to suspect the defendant
“because he was acting funny, and he said, ‘They can’t get me. . . . They can’t get me for
that.’”

         Jackson Police Officer Karrie Hart testified that she responded to a burglary and rape
call at the victim’s residence on July 1, 2006. The defendant met her at the front door when
she arrived and told her the victim was upstairs. As Officer Hart walked up the stairs, she
heard the victim “screaming and crying.” When Officer Hart entered the victim’s bedroom,
she saw the victim on her hands and knees, dressed in a bra and sweatpants. She urged the
victim to finish dressing. Officer Hart said the victim was “extremely upset.” The victim
found a shirt and began putting it on when the defendant entered the room. “[H]e started
pulling her arm, and [Officer Hart] told him to wait a minute.” The defendant gave the
officer “an agitated look.” The victim finished dressing and began telling the officer what
happened. The defendant interjected, saying that everything was locked except for a

                                              -3-
window. Officer Hart instructed the victim to continue, and the victim began her story again
but began crying. The officer asked the defendant to leave the room, which he did, “but he
didn’t appear to be happy about it.”

       The victim told Officer Hart that a man came into her room and whispered to her to
take off her clothes. He penetrated her from behind. The victim told Officer Hart that the
man wore a stocking cap and boots. After the rape, he told her to wash. The victim said that
she used tissues to wipe herself, which were in the bathroom trash can. Officer Hart
collected the tissues as evidence. The victim also spit into several tissues, which another
officer collected. Officer Hart took the victim to Jackson-Madison County General
Hospital’s emergency room for an examination with a rape kit. On the way, the victim also
told Officer Hart that she had spent the evening with her daughter and the defendant, and the
defendant had warned her about a rapist that entered through windows and forced women
to wash after the rape. Officer Hart testified that, based on her experience and common
sense, she considered the defendant’s behavior to be suspicious.

        On cross-examination, Officer Hart testified that the victim told Investigator Danielle
Jones the same thing that the victim told her, except that the victim did not tell Officer Hart
that the man penetrated her while she was on top of him. The victim also told her that the
man was putting on clothes while she was washing.

       Jackson Police Officer Marvent Brooks, a crime scene technician, testified that he
photographed and collected evidence from the victim’s apartment. He collected her clothing;
tissues into which she had spat; the face towel with which she had washed herself; the
bedsheets; the victim’s toothbrush; and swabs from the apartment’s back door, bathroom
door, and bathroom floor. Officer Brooks identified pictures showing that the window in the
victim’s bathroom was open, but the screen was intact. He testified that there were no
indications of forced entry into the apartment. Officer Brooks said that the defendant was
“excessively helpful” when he arrived at the scene.

       Dr. Jim Craig, an emergency room physician at Jackson-Madison County General
Hospital, testified that he collected samples from the victim on July 1, 2006, for a sexual
assault kit. The samples included oral, anal, and vaginal swabs, as well as a blood sample.
Dr. Craig testified that the victim was uninjured but said that individuals “can be assaulted
with no injury.”

       Lisa Mitchell, a registered nurse employed at Jackson-Madison County General
Hospital, testified that she was a sexual assault nurse examiner. Ms. Mitchell treated the
victim in the emergency room on July 1, 2006. She observed that the victim was “very calm
and very cooperative.” Ms. Mitchell documented the victim’s version of events as part of

                                              -4-
her medical history. The victim told her that a man, whose head was covered with hosiery,
held a gun to her head and penetrated her vagina with his penis while she was on her back,
on her knees, and on top of him. The victim also told her that she performed oral sex on him,
and he made her wash her genitals.

       On cross-examination, Ms. Mitchell testified that the victim did not know the man’s
race. The victim said that the man was a stranger.

       Jackson Police Investigator Danielle Jones testified that she first met the victim at the
hospital on July 1, 2006. Later on the same day, she spoke with the defendant. She
considered him to be a possible witness because he was the last person to have contact with
the victim, he was the first person on the scene after the rape, and the responding officers
considered his behavior to be suspicious. Investigator Jones obtained a DNA sample from
the defendant by swabbing the inside of his cheeks. She sent the victim’s sexual assault kit
and the defendant’s oral swabs to the Tennessee Bureau of Investigation (“TBI”) laboratory
in Nashville for comparison. She said the victim gave her a “supplemental description” that
her assailant was dark-skinned and five feet, ten inches tall.

       On cross-examination, Investigator Jones testified that the victim told her that the
assailant forced her to perform fellatio on him and penetrated her while she was on her back,
from behind while she was on her knees, and while she was on top of him.

       Agent Michael Turbeville, of the TBI, testified that he received evidence from the
Jackson Police Department in regards to this case, including the victim’s sexual assault kit,
the evidence collected from her apartment, and the defendant’s oral swabs. He sent the items
to Bode Technology in Lorton, Virginia, for testing due to a backlog in cases at the TBI.

       Frank Basile, a forensic scientist at Bode Technology, testified that he analyzed
evidence received from the TBI in relation to this case. He confirmed the presence of semen
on the victim’s vaginal swabs, her panties, the face towel, and the bedsheets.

       Sara Shields, a DNA analyst at Bode Technology, testified that she analyzed the
evidence received from the TBI regarding this case. She used the victim’s blood sample and
the defendant’s oral swabs to create DNA profiles for comparison to the evidence. Ms.
Shields testified that the victim’s vaginal swab, her panties, the towel, and the bedsheets
contained two DNA profiles, that of the victim and that of the defendant. She testified that
the possibility that any person was the source of the male DNA profile, other than the
defendant, exceeded the current world population.




                                              -5-
      Jackson Police Officer Robert Faulkner testified that, on July 8, 2006, he collected
evidence on the ground outside of the victim’s apartment, including a window screen and an
“apparatus associated with a window.” The parties stipulated “that fingerprints were
attempted to be lifted from those items . . . and none were found.”

                                          Defense Proof
        Tiffany Hill, the victim’s daughter, testified that she had four children with the
defendant, and at the time of trial, they were no longer in a relationship. She said that on July
1, 2006, she, the defendant, and the victim were drinking and talking at Ms. Hill’s apartment.
The defendant said that he had heard about a woman being raped and the rapist telling her
to brush her teeth and take a bath afterwards. At midnight, Ms. Hill asked the defendant to
walk the victim home because the victim was “tipsy.” She sent him to check on her at 2:00
a.m. A couple of hours later, her mother called her, and the defendant answered. The victim
was crying and immediately hung up the phone. Ms. Hill asked the defendant to go check
on the victim, and she gave him her keys. Then, she called the victim back. The victim told
her that she had been raped and asked her to call the police. Ms. Hill testified that when the
defendant answered the phone, “[h]e was just getting up to go use the bathroom.” She
assumed that he had been in bed prior to that but was unsure because she was asleep. She
fell asleep lying on his chest, but she said that because she was drunk, she would not have
known if he moved. Ms. Hill testified that she never discussed the details of the rape with
the victim.

      On cross-examination, Ms. Hill testified that the defendant went to Chattanooga,
Tennessee, to avoid arrest after the authorities issued a warrant for him in this case.

       On redirect examination, Ms. Hill agreed that she told the investigators that the
defendant was with her at the time of the rape, but she said that once she fell asleep, she did
not know where he was.

       The defendant testified that he did not rape the victim nor did he enter her home
without permission. He said that between 10:00 a.m. and 11:00 a.m., on June 30, 2006, he
had consensual sex with the victim at her apartment. He did not use a condom, and
afterwards, he washed with a towel in her bathroom. The defendant testified that he and the
victim had been in an ongoing sexual relationship since he graduated from high school. On
June 30, 2006, he told the victim that he wanted to end the relationship because he did not
want Tiffany Hill to find out about their relationship. The victim promised that she would
“never admit that [they] had sex.” He spent the evening of June 30 at his and Ms. Hill’s
apartment, talking with Ms. Hill and the victim. He told them that, while he was
incarcerated, he heard how a man raped one of their neighbors. The defendant walked the
victim home at midnight. Between 2:00 a.m. and 2:30 a.m., Ms. Hill tried to call the victim,

                                               -6-
but she did not answer her phone. Ms. Hill sent the defendant over to the victim’s apartment
to check on her. He entered the back door and went to her bedroom. She said that she was
fine, so he left through the back door and returned home. The defendant testified that he fell
asleep while he watched a movie with Ms. Hill.

        Later, the victim called Ms. Hill’s phone, and the defendant answered it. The victim
was crying and hung up immediately. Ms. Hill gave the defendant her key to the victim’s
house and asked him to check on the victim. He went over to the victim’s apartment while
Ms. Hill called the victim. The defendant entered the victim’s apartment and went upstairs.
He testified that the victim was calmly brushing her teeth when he walked into her bedroom.
The victim told him what happened and that Ms. Hill had called the police. He went
downstairs to wait for the police and let them in as they arrived. The victim began crying and
screaming when the police arrived. The defendant said that he watched as the police talked
to the victim because he was curious. The defendant said that he did not own black army
boots, and he said that the victim gave him permission to enter her apartment with Ms. Hill’s
key. He testified that he has tattoos on his arm and shoulder, and the victim knew that he had
the tattoos. The defendant said that he cooperated with the police in their investigation by
giving his consent for them to take his DNA and answering all of their questions.

        On cross-examination, the defendant testified that he told people about his relationship
with the victim, but he did not tell law enforcement. He told Ms. Hill about the relationship
after he received the DNA report in which the analysts confirmed the presence of his semen
on the evidence. The defendant said that he believed that someone raped the victim, but he
was not responsible. The defendant admitted that he went to Chattanooga, Tennessee, after
the grand jury indicted him. He admitted that he ran from police in Chattanooga and gave
them a false name, resulting in a conviction for criminal impersonation.1

                                    State’s Rebuttal Proof
       Dr. Craig testified that semen could be present in a person’s body eighteen hours after
ejaculation. On cross-examination, he agreed that semen could be present in a person’s body
for up to seventy-two hours after ejaculation.

        Following deliberations, the jury found the defendant guilty as charged of aggravated
rape, a Class A felony, and aggravated burglary, a Class C felony.

                                                Sentencing



        1
           The record reveals that the defendant also received a conviction for resisting arrest in connection
with this incident.

                                                     -7-
        The trial court held a sentencing hearing on July 7, 2008. The parties agreed that the
defendant was a Range I standard offender. The trial court admitted the defendant’s
presentence report as evidence and heard testimony from the defendant, the defendant’s
pastor, and the defendant’s mother. The defendant maintained that he was innocent of the
offenses for which the jury convicted him. The defendant’s pastor testified that he knew the
defendant to be a “quiet person” and asked the court for leniency in sentencing because he
believed the defendant could be rehabilitated. The pastor acknowledged that he was unaware
of the defendant’s prior convictions and drug use. The defendant’s mother asked the court
for leniency so that the defendant could raise his children.

       The trial court found that no mitigating factors applied to the defendant’s case. It
further found that the following enhancement factors applied: (1) the defendant had a history
of criminal convictions in addition to those necessary to establish the sentencing range; (2)
the defendant failed to comply with conditions of a sentence involving release into the
community; (3) the defendant was on probation when he committed the instant felonies. The
court sentenced the defendant to twenty years at 100% for aggravated rape and to five years
at 30% for aggravated burglary. The court ordered that the defendant serve the sentences
consecutively to each other and to his sentence for a prior robbery conviction because he
committed the instant offenses while on probation.

        The defendant did not file a motion for new trial nor a notice of appeal. However, the
trial court granted a delayed appeal on March 17, 2009. The defendant filed a notice of
appeal on March 18, 2009.

                                          Analysis

                                I. Sufficiency of the Evidence
       On appeal, the defendant first challenges the sufficiency of the evidence to support
his convictions for aggravated rape and aggravated burglary. He argues that (1) the state did
not prove beyond a reasonable doubt that the defendant was armed with a gun during the
rape, and (2) he had effective consent to enter the victim’s apartment at any time. The state
responds that (1) the jury accredited the victim’s testimony that she felt a gun barrel pressed
against her temple, and (2) the jury made a reasonable inference that the defendant did not
have effective consent. We agree with the state.

        Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State

                                              -8-
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “rational trier of fact” could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

                                     A. Aggravated Rape
       To sustain the defendant’s conviction for aggravated rape, the state had to prove
beyond a reasonable doubt that the defendant unlawfully, using force or coercion, sexually
penetrated the victim and that “the defendant [was] armed with a weapon or any article used
or fashioned in a manner to lead the victim reasonably to believe it to be a weapon[.]” Tenn.
Code Ann. § 39-13-502(a)(1).

         Viewed in the light most favorable to the state, the evidence showed that the
defendant entered the victim’s house when she was asleep and awakened her by tapping her
head with what the victim testified was a gun. While the object was wrapped in a towel, she
felt a cold barrel against her head. The defendant ordered her to disrobe and to perform
fellatio on him before he penetrated her vagina with his penis. Analysts found the
defendant’s semen in the victim, on her bedsheets, on her underwear, and on a towel in her
bathroom. By finding the defendant guilty of aggravated rape, the jury accredited the
victim’s testimony that her assailant was “armed with a weapon or any article used or
fashioned in a manner to lead the victim reasonably to believe it to be a weapon[.]” See id.
It is irrelevant that the victim was unable to describe the weapon or that the police did not
find a weapon in the course of their investigation. The jury resolved the factual issue in favor
of the state, and this court is not free to re-evaluate the question. See Reid, 91 S.W.3d at 277;
Bland, 958 S.W.2d at 659. We conclude that a rational jury could find that the defendant was
armed during the rape beyond a reasonable doubt; therefore, the defendant’s argument is
without merit.

                                   B. Aggravated Burglary

                                               -9-
       The Tennessee Code Annotated defines aggravated burglary, in relevant part, as
entering a habitation without the effective consent of the owner and with the intent to commit
a felony, theft, or assault. Tenn. Code Ann. §§ 39-14-402(a)(1), -403(a). A habitation is
defined as “any structure . . . which is designed or adapted for the overnight accommodation
of persons[.]” Id. § 39-14-401(1)(A). Effective consent is defined as

       assent in fact, whether express or apparent, including assent by one legally
       authorized to act for another. Consent is not effective when:

              (A) Induced by deception or coercion;

              (B) Given by a person the defendant knows is not authorized to act as
              an agent;

              (C) Given by a person who, by reason of youth, mental disease or
              defect, or intoxication, is known by the defendant to be unable to make
              reasonable decisions regarding the subject matter; or

              (D) Given solely to detect the commission of an offense[.]

Id. § 39-11-106(a)(9).

       Viewed in the light most favorable to the state, the evidence showed that the
defendant did not have his own key to the victim’s house. When the defendant checked on
the victim between 2:00 a.m. and 3:00 a.m., she told him that he did not need to come back.
While the victim did not explicitly deny the defendant permission to enter her house, she did
not give him permission to come and go as he pleased. The jury inferred from the victim’s
testimony that the defendant did not have effective consent. We do not replace the jury’s
inferences drawn from the circumstantial evidence with our own inferences. See Elkins, 102
S.W.3d at 582; Reid, 91 S.W.3d at 277. We conclude that a rational jury could have found,
beyond a reasonable doubt, that the defendant entered the victim’s apartment without her
consent with the intent to rape her. Therefore, the defendant is without relief as to this issue.

                                        II. Sentencing
        For his second issue, the defendant argues that his sentence was excessive because the
trial court erred by applying overlapping enhancement factors and by ordering the sentences
to run consecutively. The state responds that the trial court did not abuse its discretion when
sentencing the defendant.




                                              -10-
       An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d).
The Sentencing Commission Comments to this section of the statute indicate that the
defendant bears the burden of establishing that the sentence is improper. When the trial court
follows the statutory sentencing procedure and gives due consideration to the factors and
principles relevant to sentencing, this court may not disturb the sentence. See State v. Carter,
254 S.W.3d 335, 344-45 (Tenn. 2008).

                                  A. Enhancement Factors
       Prior to the 2005 amendments to the 1989 Sentencing Act, in sentencing a defendant,
a court was to begin at the mid-point of the statutory range and then apply the appropriate
enhancement and mitigating factors. Pursuant to the 2005 amendments, our Sentencing Act
has abandoned the statutory minimum sentence and renders enhancement and mitigating
factors advisory only. See Tenn. Code Ann. §§ 40-35-114, -35-210(c). The 2005
amendments set forth certain “advisory sentencing guidelines” which the trial court is
required to consider but is not bound by. See Tenn. Code Ann. § 40-35-210(c). Although
the application of factors is advisory, a court shall consider “[e]vidence and information
offered by the parties on the mitigating and enhancement factors in §§ 40-35-113 and
40-35-114.” Id. § 40-35-210(b)(5). The trial court is also required to place on the record
“what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, to ensure fair and consistent sentencing.” Id. § 40-35-210(d).

        The weight given to each enhancement or mitigating factor is in the discretion of the
trial court, assuming that the trial court has complied with the purposes and principles of the
sentencing act and its findings are supported by the record. See Carter, 254 S.W.3d at 345.
The statutes prescribe no particular weight for an enhancement or mitigating factor. State
v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001). Under the 2005 amendments, the
trial court’s weighing of enhancement and mitigating factors is not a grounds for appeal.
Carter, 254 S.W.3d at 344.

        Aggravated rape is a Class A felony. Tenn. Code Ann. § 39-13-502(b). As a Range
I offender, the defendant was eligible for a sentence of fifteen to twenty-five years. Id. § 40-
35-112(a)(1). Aggravated burglary is a Class C felony. Id. § 39-14-403(b). As a Range I
offender, the defendant was eligible for a sentence of three to six years. The trial court found
that three enhancement factors applied: (1) the defendant’s history of criminal convictions
in addition to those necessary to establish the sentencing range; (2) the defendant’s failure
to comply with conditions of a sentencing involving release into the community and (3) the
defendant was on probation when he committed the instant felonies. See id. § 40-35-
114(1),(8),(13)(B).



                                              -11-
        The record supports the trial court’s findings. The state listed eight prior convictions
in its Notice to Seek Enhanced Punishment, each of which is documented in the defendant’s
presentence report, supporting the trial court’s finding that the defendant had a history of
criminal convictions in addition to those necessary to establish the sentencing range. The
defendant committed five of his prior convictions while on probation for robbery, excluding
the two convictions in the instant case, supporting the trial court’s finding that the defendant
failed to comply with conditions of a sentence involving release into the community. Finally,
when he committed the instant offenses, the defendant was serving five years of probation
for a robbery to which he pled guilty in 2005. The defendant argues that enhancement
factors eight and thirteen overlap; however, the defendant fails to recognize that the offenses
for which he was sentenced were not the only offenses he committed while on probation.
Additionally, he presents no authority supporting his contention that the trial court was
prohibited from applying both factors. Because the record supports the trial court’s findings,
we conclude that the trial court did not abuse its discretion in applying the enhancement
factors.

                                     B. Consecutive Sentences
         Generally, it is within the discretion of the trial court to impose consecutive sentences
if it finds by a preponderance of the evidence that at least one of the following statutory
criteria apply:
               (1) [t]he defendant is a professional criminal who has knowingly
               devoted such defendant’s life to criminal acts as a major source
               of livelihood;

               (2) [t]he defendant is an offender whose record of criminal
               activity is extensive;

               (3) [t]he 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) [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;

               (5) [t]he defendant is convicted of two (2) or more statutory
               offenses involving sexual abuse of a minor with consideration

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              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) [t]he defendant is sentenced for an offense committed while
              on probation; or

              (7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).


        Specific findings that an extended sentence is necessary to protect society and is
reasonably related to the severity of the offenses are prerequisites to consecutive sentencing
under the “dangerous offender” category in Tennessee Code Annotated section 40-35-
115(b)(4). State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific
factual findings are not required for the other categories of Tennessee Code Annotated
section 40-35-115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Nevertheless, the
general principles of sentencing require that the length of the sentence be “justly deserved
in relation to the seriousness of the offense” and “be no greater than that deserved for the
offense committed.” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing Tenn. Code
Ann. §§ 40-35-102(1) and -103(2)).


        The trial court found that the defendant committed aggravated rape and aggravated
burglary while on probation for robbery, which satisfies the statutory criteria for imposing
consecutive sentences. Tenn. Code Ann. § 40-35-115(b). The defendant admits that the trial
court properly considered this factor, but he contends that the trial court should not have
imposed consecutive sentencing because the court did not find that the defendant was a
professional criminal nor that his criminal activity was extensive. However, a trial court need
only find the existence of one of the statutory criteria by a preponderance of the evidence in
order to impose consecutive sentencing. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim.
App. 1995). We conclude that the trial court did not abuse its discretion by ordering the
defendant to serve his sentences consecutively; therefore, the defendant is without relief as
to this issue.


                                         Conclusion


       Based on the foregoing reasons, we affirm the judgments of the trial court.

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       ___________________________________
       J.C. McLIN, JUDGE




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