         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs June 9, 2004

         STATE OF TENNESSEE v. LAWRENCE WARREN PIERCE

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2002-B-803    Steve R. Dozier, Judge



                   No. M2003-01924-CCA-R3-CD - Filed November 9, 2004

The defendant, Lawrence Warren Pierce, was indicted for aggravated kidnapping and rape,
convicted of the lesser-included offenses of kidnapping and sexual battery, and sentenced as a Range
II, multiple offender to nine years and three years, respectively, to be served consecutively. On
appeal, he argues that the evidence is insufficient to support his convictions; the conviction for
kidnapping violates his due process rights because it was incidental to the sexual battery offense; and
the trial court erred in denying his motion to dismiss due to the State’s destruction of evidence and
in imposing excessive sentences to be served consecutively. Applying the subsequent decision of
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), we reduce the defendant’s sentence for
kidnapping to eight years. In all other respects, the judgments of the trial court are affirmed.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY ,
JJ., joined.

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on
appeal); and J. Michael Engle and Rebecca Warfield, Assistant Public Defenders (at trial), for the
appellant, Lawrence Warren Pierce.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck and Ryan D. Brown,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                                        OPINION

                                                          FACTS

        The victim, P.K.,1 testified that at about 6:30 p.m. on October 24, 2001, she went to Ivory’s
Bar located inside the Holiday Inn on Briley Parkway in Nashville. She saw the defendant, whom
she recognized from a construction site where she had worked and from “another place that [she]
hung out with a lot of [her] friends.” At some point in the evening, an unidentified man sat down
beside the victim and “kept bothering” her until the defendant “came over and . . . rescued” her.
Subsequently, the defendant asked the victim for a ride home and she and the defendant left the bar
between 10:00 and 10:30 p.m. and drove to a sports bar, where they stayed for thirty to forty-five
minutes before leaving to pick up hamburgers at a Krystal’s Restaurant. From Krystal’s, the victim
drove the defendant to his hotel room at the Days Inn, arriving at about 11:00 p.m. She parked her
car, and she and the defendant were “laughing and cutting up” when the defendant playfully took her
car keys and got out of the car. The victim followed him in order to retrieve her keys until they came
to his hotel room, where he grabbed her arm and “threw” her inside his room. He told her that he
wanted her, that “he was gonna [sic] get [her] any way he could, and he wasn’t gonna [sic] let [her]
leave.” The victim testified as to the events that followed:

                           When he shoved me, I think I landed on the bed at that point.
                   I got back up, and I told him I wanted to leave. And he told me I
                   wasn’t gonna leave. I went for the door. That’s when he grabbed my
                   arm again.

                          He grabbed me with one hand – one hand on my arm, pulling
                   up; and then he grabbed me by the hair of my head. I had very long,
                   blond hair at the time. That’s when he started jerking me around and
                   slamming me on the bed.

                   ....

                         I started screaming, and he proceeded to put his hand over my
                   mouth. His hand was so big, and he’s still got this one – he let go of
                   my arm, but he’s still got me by the hair of the head.

                             He put his hand over my mouth, and I was – I couldn’t
                   breathe. I thought I was gonna [sic] die. And at that point I thought
                   he wasn’t gonna [sic] let me go. And he told me, if I screamed when
                   . . . he took his hand off, he would put it back.




       1
           It is the policy of this court to refer to victims of sexual offenses by their initials only.

                                                              -2-
                     So, I nodded my head that I wouldn’t scream. I don’t know
               anybody didn’t hear me. I mean, I screamed loud; and nobody came.

               ....

                      I took my clothes off, what he didn’t jerk off. He threw me on
               the bed and laid down on top of me, and he wouldn’t let me up.

               ....

                     He told me that we were gonna [sic] have oral sex, whether I
               wanted it or not.

               ....

                       I begged him to let me up, that I can’t breathe, ‘cause he’s so
               big. He’s putting pressure on my whole body, and he’s still – he’s
               trying to put his penis in my mouth; and I’m trying to fight with him.

The victim testified that the defendant then forced his penis into her mouth and “ejaculated inside”
her mouth. He told her if she called the police he would kill her and told her to write down her
cellular telephone number, saying, “[I]f you don’t write down the right [number], I’m gonna kill
you.” She then wrote her number on the front of a telephone book, the defendant called the number,
and her phone rang. Assuring the defendant that she would not call the police, the victim hurriedly
dressed and left the room. She drove to a Ramada Inn where she knew some of the security officers,
and an officer called 9-1-1 to report the assault. Metro police officers responded to the call and then
drove the victim back to the Days Inn, where she showed them the defendant’s room, and to a
hospital where she was examined and evidence was collected.

        Ed McQuiston, a security officer at the Ramada Inn, testified that when the victim arrived
there, she was “crying, and she was real shaken, you know, real emotional” and told him she had
been assaulted. He called 9-1-1, and the tape recording of that call was played for the jury.

         Officer Matthew Filter of the Metro Police Department testified that he was dispatched to
the Ramada Inn, arriving at approximately 12:30 a.m., and described the victim’s condition when
he first saw her:

               She was extremely upset. She was . . . crying. She was physically
               shaking. She didn’t wanna [sic] even talk to me at all.

                      Her – her clothes were – she wasn’t even fully clothed. She
               had some of her clothes in the car, next to her. Her clothes were in



                                                 -3-
                  disarray and just, you know, not very neat at all. She was wearing a
                  – some kind of robe at the time.

The victim told Officer Filter that the defendant had forced her inside his hotel room at the Days Inn,
ripped her clothes off, and told her that “she needed to do exactly what he said, or else he would hurt
her.” The victim said she struggled with the defendant but could not fight him off because he was
much larger than her.2 The victim said the defendant grabbed her hair and “forced her head down
towards his genitalia and forced his penis into her mouth, and she was forced to perform oral sex .
. . on him, at which point he ejaculated inside of her mouth and all over her face.”

         Officer Filter and another officer, accompanied by the victim, then went to the Days Inn to
speak to the defendant. While the victim waited in the patrol car, the officers knocked on the
defendant’s hotel room for “a good five-to-seven minutes” before the defendant finally answered.
When asked about the incident involving the victim, the defendant told the officers that “he had met
this girl at a bar and they came back to his room, and that they . . . fooled around a little bit; and that
she all of a sudden got mad at him for an unknown reason and left.” The defendant denied that he
had any type of sexual intercourse with the victim. The officers then advised the defendant that a
report was being filed and that he should stay at the hotel “or some place where he could be easily
located, because a detective would be following up on the case.” Officer Filter said that although
they advised the defendant of his Miranda rights, he was not arrested at that time.

        Sandy Myers, a family nurse practitioner, testified that she performed a rape kit examination
on the victim in the emergency room at General Hospital. She related the events of the assault, as
told to her by the victim:

                  It happened on October twenty-fourth, ‘0-one; and the time was
                  before midnight, and the place, Days Inn on Briley Parkway, with
                  someone she had seen around; needed ride to his motel room; went
                  to eat and then took him home.

                          He took her keys; thought he was kidding; following him to
                  room; grabbed her left arm, pulled behind her back; grabbed her by
                  hair; threw her on the bed; said, if didn’t take clothes off, would kill
                  her.

                         She screamed; he put his hand over her mouth; felt she should
                  cooperate, took clothes off, begged him to let her go.




         2
          The victim testified that she was 5'1" and estimated the defendant’s height at 6'3" or 6'4". In response to a
question during his interview by the police, the defendant said he was 6'4" and weighed 232 pounds.

                                                         -4-
                         He took his pants off, held her down on bed, pushed her head
                  down – pushed her head between his legs, told her to do oral sex;
                  performed oral sex.

Myers said the victim told her that the defendant’s penis penetrated her mouth and that he ejaculated
on her face, near her mouth. She testified that she used a wood light3 on the victim’s clothes, and
it showed several areas of fluorescence on her blouse. She also swabbed the victim’s throat, mouth,
and chest. On cross-examination, Myers acknowledged that, during her examination of the victim,
she did not note any trauma to the victim’s head, neck, face, mouth, chest, or back.

       Willie Cepnio, a registered nurse since 1978, testified that he gave the specimens from the
victim’s rape kit to Detective Kent McAlister on October 25, 2001, at 10:17 a.m. At Detective
McAlister’s request, he also drew two tubes of blood from the defendant for DNA analysis.

         Detective Kent McAlister of the Metro Police Department testified that he interviewed the
defendant on October 25, 2001, and accompanied him to the hospital to give a blood sample for
DNA testing. Nurse Cepnio gave McAlister the defendant’s blood samples which were later sent
to the Tennessee Bureau of Investigation (“TBI”) lab for analysis. During his videotaped interview,
which was played for the jury and made a part of the record on appeal, the defendant showed
McAlister the business card of a woman from Pennsylvania who he had met in the bar at the Holiday
Inn. McAlister wrote down the woman’s name and telephone number on a notepad and called her
the following week. The woman acknowledged that she had been in the bar that night and had given
someone her business card, but she did not remember the defendant or the victim. McAlister
subsequently destroyed the paper containing the woman’s name and telephone number, explaining
that it was his usual practice to destroy his notes after completing his reports. During the interview,
the defendant also gave McAlister “a torn corner of a phone book, that had a first name and a phone
number on it.” McAlister acknowledged that he did not go to the defendant’s room at the Days Inn
to determine if the torn corner matched the telephone book in that room.

       Mary Wilhoite of the Metro Police Department testified that she worked in the property room
and was the custodian over rape kits. She explained the procedure that is followed when an officer
submits evidence and the tracking system used to account for the evidence. She identified a bag
containing the victim’s jacket, skirt, and blouse and said that the bag was taken to the crime lab by
Detective McAlister on January 29, 2002, and was returned to the property room on April 4, 2002.
She also identified the victim’s rape kit which came into the property room on October 31, 2001, and
which she transported to the crime lab on December 11, 2001.

        Agent Hunter Greene, a forensic scientist with the TBI Crime Laboratory Serology DNA
Unit, testified that he tested the victim’s face and chest swabs which revealed the presence of
spermatozoa. Additionally, he tested the victim’s clothing which revealed the presence of


         3
           Myers defined a wood light as “kinda [sic] like an ultraviolet light, that will fluoresce when there’re certain
things, such as semen.”

                                                           -5-
spermatozoa on her shirt. He compared the defendant’s blood sample with the spermatozoa from
the victim’s face and chest swabs and shirt and determined that the DNA profile matched the
defendant. According to Agent Greene, the “probability of another individual having the same
profile exceeds the current world population.”

        The forty-three-year-old defendant testified that on October 24, 2001, at about 5:30 p.m., he
took a taxi to the bar at the Holiday Inn. He had a conversation with a man and two women, one of
whom gave him her business card, and saw the victim come in “around six-something.” The man
with whom the defendant had been speaking went over to the victim and talked to her a few minutes.
The man and the victim then left to go eat dinner; however, the victim returned to the bar fifteen
minutes later, explaining that the man would not keep his hands off her. The man then returned to
the bar and started bothering the victim. The defendant explained, “I don’t know what it was about,
but he came in and I got up and walked over. When I did, [the victim] got up and said, ‘Oh, thank
you,’ and ‘thank you,’ for what I don’t know. I mean, I never seen [sic] him do anything[.]” The
victim sat down beside the defendant, and he bought her a drink. Contrary to the victim’s testimony,
the defendant said he had never seen her at a construction site but had seen her at Dad’s Place.

        Subsequently, the defendant and the victim left the bar at the Holiday Inn to go to Dad’s
Place to dance. When they arrived at Dad’s Place, “there was hardly anybody there,” so they left to
go to Rivalry’s for a beer. They subsequently left Rivalry’s and stopped for hamburgers and
cigarettes before going to his hotel room to eat and watch television. The defendant denied taking
the victim’s car keys or touching her as they walked to his room. He unlocked the door to his room,
and the victim went in first. They sat down on the bed and “started kissing and stuff.” The victim
told him that he did not have her telephone number and then wrote her number down on the
telephone book. When they started kissing again, the defendant raised the victim’s shirt up and
touched her breasts, and the victim put her hand inside his pants “on [his] privates.” The victim then
masturbated the defendant until he ejaculated, after which she “got up, she pulled her top down,
picked up her shoes, and walked out the door and slammed the door.” According to the defendant,
the victim was fully dressed except for her shoes when she left. He later called the victim and left
a voice message on her cellular telephone, asking her if she wanted to see him the next day.

        The defendant said he then went to sleep and was awakened by the police officers’ banging
on his door. The officers advised him of his rights, and he agreed to answer their questions. He told
the officers that he and the victim had “fool[ed] around,” and the officers told him to contact
Detective McAlister the next day, which he did. After speaking to McAlister, the defendant went
to the police department where McAlister informed him that he was not under arrest. The defendant
told McAlister that he had “foreplay” with the victim but not sex. He gave McAlister the business
card of the woman from the bar at the Holiday Inn so that McAlister could contact her because he
“thought she’d have a lot of important things to say. She was – the whole time was at the bar.” He
also gave McAlister the victim’s telephone number that she had written down and consented to give
a blood sample for DNA analysis.




                                                 -6-
        On cross-examination, the defendant acknowledged that when Detective McAlister asked
him during his interview if he had “any kind of sex” with the victim, his answer was always “[n]o.”
The defendant then said that McAlister had only asked him about “[o]ral or vaginal” sex and had
never said “any other kind.”4 The defendant denied raping the victim or holding her against her will.

                                                   ANALYSIS

                                        I. Sufficiency of the Evidence

         The defendant argues that the evidence is insufficient to support either of his convictions.

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

                          This well-settled rule rests on a sound foundation. The trial
                  judge and the jury see the witnesses face to face, hear their testimony
                  and observe their demeanor on the stand. Thus the trial judge and
                  jury are the primary instrumentality of justice to determine the weight
                  and credibility to be given to the testimony of witnesses. In the trial
                  forum alone is there human atmosphere and the totality of the
                  evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). We now will consider the sufficiency of the evidence as to each of
the defendant’s convictions.


         4
          During his interview, the defendant repeatedly denied having sex with the victim and told Detective McAlister
that any DNA found on the victim’s clothing would not match his.

                                                         -7-
                                         A. Sexual Battery

          The offense of sexual battery, the lesser offense of which the defendant was convicted,
requires that the defendant engage in “unlawful sexual contact” where “[f]orce or coercion is used
to accomplish the act.” Tenn. Code Ann. § 39-13-505. The essential difference between sexual
battery and rape, the charged offense, is that rape requires sexual penetration of the victim whereas
sexual battery only requires sexual contact, defined to include “intentional touching of the victim’s
. . . intimate parts . . . if that intentional touching can be reasonably construed as being for the
purpose of sexual gratification.” Compare Tenn. Code Ann. § 39-13-503 with Tenn. Code Ann. §
39-13-505; see Tenn. Code Ann. § 39-13-501(6). The defendant relies on the medical report
showing no signs of redness or bruising on the victim to argue that there is insufficient physical
evidence to show the use of force or coercion and that the available physical evidence is, in fact,
more consistent with there having been no use of force. Furthermore, he asserts that neither he nor
the victim acted as one normally would after a sexual battery had been committed. These points, the
defendant argues, should have occasioned a reasonable doubt in the mind of a rational trier of fact.

        The statutory definition of “coercion” does not require that the defendant use violence but
states, as the trial judge correctly repeated in his jury instructions: “‘Coercion’ means threat of
kidnapping, extortion, force or violence to be performed immediately or in the future[.]” Tenn. Code
Ann. § 39-13-501(1). Bearing in mind that it is the responsibility of the jury to assess the credibility
of witnesses and resolve conflicts in testimony, we repeat the testimony of the victim at trial when
asked if the defendant had threatened her:

               Q. And was he making any more threats to you at this time?

               A. He kill – told me he was gonna [sic] kill me, if I screamed or if I
               kept fighting.

Although the defendant correctly points out that the jury did not credit the entirety of the victim’s
testimony because they chose to convict him of the lesser offense of sexual battery, we note that a
jury is free to reject or accept only parts of a witness’s testimony. See Byrge v. State, 575 S.W.2d
292, 295 (Tenn. Crim. App. 1978). We conclude that a reasonable jury could have found, based
upon the evidence, that the defendant committed a sexual battery on the victim.

                                           B. Kidnapping

        The defendant asserts that the evidence is insufficient to prove that he knowingly confined
the victim so as to interfere with her liberty or that the victim was exposed to risk of serious bodily
injury. He argues that his hands were full when the victim said he grabbed her and forced her into
the hotel room. Furthermore, he notes that the victim’s clothes showed no signs of being ripped,
torn, or forcibly removed.




                                                  -8-
       Both the defendant and the victim testified at trial that they stopped for hamburgers on the
way back to the defendant’s hotel room. While the victim did not testify as to who carried the
hamburgers, the defendant claims that she held the hamburgers and her drink while he held his own
drink and unlocked the door. The victim testified that when they came around the corner near the
defendant’s room, he “grabbed me by the arm” and “opened [the door] and threw me in.”

        The offense of kidnapping requires that the defendant knowingly “remove[] or confine[]
another unlawfully so as to interfere substantially with the other’s liberty . . . [u]nder circumstances
exposing the other person to substantial risk of bodily injury.” Tenn. Code Ann. §§ 39-13-302(a),
-303(a)(1). False imprisonment (which is incorporated into kidnapping) requires unlawful removal
or confinement, and “unlawful” means that the removal or confinement is accomplished by “force,
threat, or fraud.” Tenn. Code Ann. §§ 39-13-302, -301(2). While there was no evidence that the
defendant used threat or fraud to effectuate the “removal” of the victim from the hallway into his
hotel room, the victim testified that he grabbed her arm and forced her into the room. As to the
argument that his hands were full at the time of the kidnapping, we note that the only testimony
supporting this argument is that of the defendant. The victim did not testify in detail about who was
holding the drinks and hamburgers when the pair reached the hotel room, nor was she cross-
examined on this point. We conclude that the evidence was sufficient for a reasonable jury to find
that the defendant kidnapped the victim.

                            II. Kidnapping as an Incidental Offense

        The defendant argues that the kidnapping offense was essentially incidental to the sexual
battery offense and, therefore, violates his right to due process under the United States Constitution,
Fifth and Fourteenth Amendments, and the Tennessee Constitution, Article I, § 8, 9.

        In State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), the defendants detained several restaurant
employees outside and forced two more into the men’s restroom while the defendants robbed the
restaurant. The court explained that only a kidnapping that was not “incidental” to the main offense
could be charged in addition to the accompanying felony:

               whether the confinement, movement, or detention is essentially
               incidental to the accompanying felony and is not, therefore, sufficient
               to support a separate conviction for kidnapping, or whether it is
               significant enough, in and of itself, to warrant independent
               prosecution and is, therefore, sufficient to support such a conviction.
               We further agree with the suggestion in State v. Rollins [605 S.W.2d
               828 (Tenn. Crim. App. 1980)] that one method of resolving this
               question is to ask whether the defendant's conduct "substantially
               increased [the] risk of harm over and above that necessarily present
               in the crime of robbery itself."

Id. at 306 (quoting Rollins, 605 S.W.2d at 830).


                                                  -9-
        The supreme court considered this question in State v. Dixon, 957 S.W.2d 532 (Tenn. 1997).
In that case, the defendant grabbed his victim while she was walking down the sidewalk and
“dragged her approximately thirty to forty feet from the illuminated sidewalk into or behind foliage
growing on the back of an adjacent vacant lot,” where he committed aggravated assault and
attempted sexual battery. Id. at 533. The court crafted a two-part test refined from that in Anthony:
“whether the movement or confinement was beyond that necessary to consummate the act of
attempted sexual battery. If so, the next inquiry is whether the additional movement or confinement:
(1) prevented the victim from summoning help; (2) lessened the defendant's risk of detection; or (3)
created a significant danger or increased the victim's risk of harm.” Id. at 535 (citing Anthony, 817
S.W.2d at 306). The court makes this determination as a matter of law. State v. Cozart, 54 S.W.3d
242, 248 (Tenn. 2001).

        The defendant cites numerous cases establishing that merely binding a victim does not justify
a separate conviction for kidnapping. See, e.g., State v. Blouvet, 965 S.W.2d 489 (Tenn. Crim. App.
1997) (defendant bound the feet of a store employee while he robbed the store); State v. Sanders, 842
S.W.2d 257 (Tenn. Crim. App. 1992) (defendant forced a restaurant manager, at gunpoint, into the
restaurant and bound him while the defendant robbed the restaurant); State v. Raymond Griffin, No.
W2001-01332-CCA-R3-CD, 2002 WL 1482689, at *8 (Tenn. Crim. App. Mar. 15, 2002), perm. to
appeal denied (Tenn. July 15, 2002) (defendants bound the victim and robbed him in his house);
State v. Kevin R. Mosley, No. 01C01-9108-CC-00235, 1992 WL 85799, at *3 (Tenn. Crim. App.
Apr. 29, 1992) (binding of victims was “integral” to the robbery). Relying on these cases, the
defendant argues that, because the degree of confinement in this case was less than if he had bound
the victim, a separate kidnapping conviction cannot stand. However, we note that kidnapping
requires removal or confinement. Tenn. Code Ann. §§ 39-13-302(a), -303(a). As we previously
explained, there was sufficient evidence to support the jury’s finding that the defendant knowingly
forced the victim into his hotel room in a way that substantially interfered with her liberty and
exposed her to substantial risk of bodily injury. Just as the supreme court reasoned in Dixon, 957
S.W.2d at 535-36, that the defendant in that case could have performed the sexual battery in the
street as opposed to dragging his victim into the bushes, we presume that in the present appeal, the
defendant could have committed the sexual battery offense outside of the hotel room or in the
victim’s car. Thus, the removal was not necessary to committing the sexual battery on the victim,
but moving her into the hotel room lessened the risk of detection from passers-by in the hotel.
Therefore, we conclude that the evidence supports a separate conviction for kidnapping.

                                   III. Destruction of Evidence

        The defendant argues that the trial court erred in denying his motion to dismiss, based on the
State’s destruction of evidence, saying that Detective Kent McAlister, who interviewed the defendant
the day after the incident, should not have destroyed his notes from that interview. During the
interview, the defendant told Detective McAlister about a woman he had spoken to at the Holiday
Inn bar who could testify as to the events in the bar that night, and McAlister copied the woman’s
name from a business card that she had given the defendant. McAlister testified that he called this
woman, and she claimed not to remember either the defendant or the victim. As he testified was his


                                                -10-
usual policy, Detective McAlister destroyed his notes after he finished the investigation report.
There is no evidence in the record that the defendant himself attempted to contact this woman.

       In denying the motion, the trial court stated:

              [I]n terms of what – using the Defense word, what “role” she
              might’ve played – and we’ve just discussed it further – I mean, the
              Defendant’s statement is, “go interview her,” that “she knows that I
              was there with [the victim].”

                      Okay. We already know that. I mean, I just don’t think, even
              if you assume . . . the State’s actor, Detective McAl[]ister, should
              have retained this business card, that he gave back to the Defendant
              – assume he should’ve retained it, which I don’t, then you get to the
              factors of does it play a substantial role in the trial preventing the
              Defendant from having a fundamentally fair trial.

                      And that’s what I’m trying to explain. I don’t think there’s
              any way that could be present, when you’re talking about some, at the
              time, casual conversations at a bar that, according to [the victim],
              then two hours or plus later, result in an incident that she’s described
              at the Defendant’s motel room, not the Holiday Inn, where, even
              according to [the victim] and the Defendant, someone may’ve seen
              them there at – between six and seven, and this happened around
              eleven, twelve, or one, depending on the time frames of the various
              witnesses.

                     So, it’s even four-to-five hours, at best, later that – and [the
              victim’s] acknowledged that she’s agreed to go get something to eat,
              agreed to go take him home.

                     And I just don’t see, if that person was here – and I understand
              that you’d like to talk with her and not just accept Detective
              McAl[]ister’s statement that she couldn’t remember anything. Well,
              maybe she couldn’t.

                      But I . . . just don’t think, under State versus Ferguson, that
              this type – if you wanna loosely label it – destroyed evidence – which
              it wasn’t; it was given back to the Defendant and was, according to
              Detective McAl[]ister, followed up on.

                      So, I’ll overrule the motion.



                                                -11-
        The State does not have to preserve every single piece of evidence or information obtained
during the course of a criminal investigation but must preserve evidence “subject to discovery and
inspection under Tenn. R. Crim. P. 16, or other applicable law.” State v. Ferguson, 2 S.W.3d 912,
917 (Tenn. 1999) (footnote omitted). Evidence that is not apparently significant or exculpatory need
not be preserved:

               “Whatever duty the Constitution imposes on the States to preserve
               evidence, that duty must be limited to evidence that might be
               expected to play a significant role in the suspect's defense. To meet
               this standard of constitutional materiality, evidence must both possess
               an exculpatory value that was apparent before the evidence was
               destroyed, and be of such a nature that the defendant would be unable
               to obtain comparable evidence by other reasonably available means.”

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-34, 81 L. Ed. 2d
413 (1984)). Previously, this court has held that "[t]he prosecution is not required to disclose
information that the accused already possesses or is able to obtain." State v. Marshall, 845 S.W.2d
228, 233 (Tenn. Crim. App. 1992). If the State has failed in its duty, then the court must ascertain
the effect of its failure, considering such factors as:

               1. The degree of negligence involved;

               2. The significance of the destroyed evidence, considered in light of
               the probative value and reliability of secondary or substitute evidence
               that remains available; and

               3. The sufficiency of the other evidence used at trial to support the
               conviction.

Ferguson, 2 S.W.3d at 917 (footnote omitted). In this analysis, “the central objective is to protect
the defendant's right to a fundamentally fair trial.” Id.

        Applying the first step of the Ferguson analysis, we conclude that the State had no duty to
preserve the name of the witness because the defendant himself had possession of the evidence,
namely, the woman’s business card. Thus, the State had no duty to disclose the evidence and,
therefore, no duty to preserve it. See id. at 918. The defendant argues that the evidence had
exculpatory value because the witness could have testified about conversations at the Holiday Inn
bar and, presumably, could have impeached the testimony of the victim in some way. However,
when Detective McAlister discarded the contact information for the woman, he did so, by his
testimony, with the belief, based on his own conversations with the witness, that the evidence had
no exculpatory significance.

                                         IV. Sentencing


                                                -12-
       The defendant argues that the trial court erred by imposing excessive sentences as to both
convictions and in ordering that they be served consecutively.

         When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9
(Tenn. 2000).

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous.

                                      A. Length of Sentences

        At sentencing, the parties stipulated that the defendant was a Range II, multiple offender,
making him subject to a sentence between six and ten years for the kidnapping conviction, a Class
C felony, and a sentence between two and four years for the sexual battery conviction, a Class E
felony. See Tenn. Code Ann. § 40-35-112(b)(3), (5). The trial court found no applicable mitigating
factors but applied three enhancement factors:

                       (2) The defendant has a previous history of criminal
               convictions or criminal behavior in addition to those necessary to
               establish the appropriate range;

                       (8) The offense involved a victim and was committed to
               gratify the defendant's desire for pleasure or excitement; [and]



                                                 -13-
                        (9) The defendant has a previous history of unwillingness to
                  comply with the conditions of a sentence involving release in the
                  community[.]

Tenn. Code Ann. § 40-35-114(2), (8), (9) (2003). Based on these factors, the trial court imposed a
sentence of nine years for the kidnapping conviction (applying factors (2), (8), and (9)) and three
years for the sexual battery conviction (applying factors (2) and (9)).

         According to the presentence report, the defendant had the following prior convictions:

         1. 1/11/02         Assault 3rd – Family Violence5                       3 days
         2. 5/27/98         Threat to Injure – Telephone Trans.                  12 months, 36 months probation
         3. 9/29/95         DUI                                                  15 weekends, $450 fine,
                                                                                    12 months probation
         4. 1/28/94         Theft by Deception                                   12 months probation
         5. 4/20/93         Theft by Conversion                                  10 years probation
         6. 11/15/92        Giving False Name                                    12 months probation
         7. 11/15/92        Terroristic Threats                                  12 months probation
         8. 11/15/92        DUI                                                  12 months probation, $400 fine
         9. 9/29/98         Grand Larceny – 2 counts                             Sentence Not Listed
         10. 9/29/98        Fraud – Credit Card                                  Sentence Not Listed

        Given the number of his prior convictions, the defendant concedes, on appeal, that
enhancement factor (2) was properly applied to both of his convictions. We note that applying the
holding of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), which was decided after the
briefs were filed in this matter, would not alter the power of the trial court to utilize the defendant’s
prior convictions in increasing his sentence from the minimum. Id. at __, 124 S. Ct. at 2536 (citing
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)) (prior
conviction may be utilized by trial court for sentence enhancement without submission to a jury).

       However, the defendant argues that the trial court erred in applying factor (8) to the
kidnapping conviction and factor (9) to both convictions and failed to apply one mitigating factor:
the defendant’s employment history. Tenn. Code Ann. § 40-35-113(13) (“Any other factor
consistent with the purposes of this chapter.”).

        As we will explain, the holding in Blakely benefits the defendant, for its application prevents
the use of enhancement factors (8) and (9). First, we note Blakely held that “the State is free to seek
judicial sentence enhancements so long as the defendant . . . stipulates to the relevant facts or
consents to judicial factfinding.” 542 U.S. at ___, 124 S. Ct. at 2541. However, we have carefully
reviewed the transcript of the sentencing hearing and cannot conclude that the State sufficiently


         5
           This information is listed in the “disposition” section of the presentence report while the “conviction offense”
section is listed as “not defined.”

                                                          -14-
proved that the defendant committed either these or other offenses while his earlier suspended
sentence still was in effect. Although he admitted at the sentencing hearing as to those convictions
which we have designated as numbers 2, 3, 4, 5, 7, and 9, and that he earlier had been placed on
supervised probation, he did not admit that the probation had been for ten years, as the State asked
that he do, or admit that the offenses which are the basis for the present appeal were committed while
that probationary period still was in effect. In fact, he said that he “didn’t believe” he was on
probation at the time of the present offenses. Since the sentencing hearing occurred before the
release of the Blakely opinion, the State could not have recognized at the time the need to establish
by other means the period the defendant was on probation; the trial court, likewise, could not have
foreseen that the proof was inadequate for application of factor (9). Similarly, as to enhancement
factor (8), that the offense “involved a victim and was committed to gratify the defendant’s desire
for pleasure or excitement,” we conclude that there is no proof, as required by Blakely, for its
application.

         As to the asserted mitigating factor, the essential facts are not in dispute. The defendant
worked as a self-employed general contractor such that he, at times, had a great deal of work and at
other times very little. While the State characterizes this history as “unpredictable,” the defendant
calls it “favorable.” Although work history can be a relevant mitigating factor, as the disputed
characterization of the defendant’s work history reveals, the record contains little evidence as to the
nature and reliability of the defendant’s work such as “job performance, length of service, or his
reasons for leaving any of these jobs.” State v. Kelley, 34 S.W.3d 471, 483 (Tenn. Crim. App.
2000). Accordingly, we cannot conclude that the trial court erred in determining that the defendant’s
work history should not be applied as a mitigating factor. In fact, even if the trial court did err in this
regard, it appears that his work history would be entitled to little weight and of little benefit, given
his substantial record of convictions.

        After application of Blakely, the only applicable sentencing factor is enhancement factor (2).
While the defendant does have an extensive prior record, we cannot conclude that the trial court
would have sentenced as it did, knowing that only one enhancement factor was applicable. As a
Range II, multiple offender, the defendant’s sentences for the kidnapping and sexual battery
convictions were to be within the ranges of six to ten years and two to four years, respectively. His
sentence for the kidnapping was nine years, one less than the maximum. We reduce this sentence
to eight years. As to the sexual battery, the defendant’s three-year sentence is the midpoint, and we
do not believe that this sentence must be modified.

                                     B. Consecutive Sentencing

        The trial court ordered that the defendant’s sentences be served consecutively, based on “his
extensive record and these offenses being committed while he’s on probation.” The defendant
argues that his sentences should not run consecutively because the resulting twelve-year sentence
is beyond that necessary to achieve the trial court’s purpose and because the two convictions arose
from a single criminal episode.



                                                   -15-
        We first must determine whether the holding in Blakely affects the trial court’s consecutive
sentencing of the defendant. We note first that courts have interpreted the holding in Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), to allow the trial court to
determine whether sentences should be served consecutively. United States v. Samuel, 296 F.3d
1169, 1175 (D.C. Cir. 2002) ("[T]he district court did not commit Apprendi error when it enhanced
[the defendant's] sentence because he committed the second of his narcotics offenses while he was
on release for the first."), cert. denied, 537 U.S. 1078, 123 S. Ct. 680, 154 L. Ed. 2d 578 (2002);
People v. Williamson 747 N.E.2d 26, 34 (Ill. Ct. App. 2001) (trial court may consider "the nature
and circumstances of the offense and the history and character of the defendant" in determining
whether consecutive sentencing "is required to protect the public from further criminal conduct by
the defendant, the basis for which the court shall set forth in the record"). Subsequently, our supreme
court noted in State v. Robinson, __ S.W.3d __, 2004 WL 2158117, at *25 n.14 (Tenn. 2004), that
“several courts” had rejected the claim that Blakely and Apprendi apply to a determination as to
whether sentences should be served consecutively. We conclude that neither Blakely nor Apprendi
affect the trial court’s ordering that the sentences in this matter be served consecutively.

        The trial court may impose consecutive sentences if, inter alia, “(2) [t]he defendant is an
offender whose record of criminal activity is extensive; or (6) [t]he defendant is sentenced for an
offense committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(2), (6). These criteria are
stated in the alternative; thus, only one must exist for consecutive sentences to be proper.

        We agree with the trial court that the -115(b)(2) criteria is satisfied. The defendant clearly
had an extensive record of criminal activity according to the presentence report, including
convictions for DUI, assault, making threats to injure, making terroristic threats, and several
incidents of theft of various kinds (grand larceny, fraud, and others). Based on these prior
convictions and the defendant’s own admissions, we conclude that the trial court was within its
discretion in ordering that the sentences be served consecutively. Because this court has held that
“[e]xtensive criminal history alone will support consecutive sentencing,” State v. Adams, 973
S.W.2d 224, 231 (Tenn. Crim. App. 1997), we do not need to address the trial court’s application
of -115(b)(6). The finding of an extensive criminal history is sufficient.

        The defendant argues that the consecutive sentences were beyond that necessary to achieve
their purpose or, equivalently, that they were not the lease severe measures necessary. In support of
this contention, he cites State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). However, the supreme court
has since acknowledged that the sentencing statutes, in particular Tenn. Code Ann. § 40-35-115,
regarding consecutive sentences have codified the holding in Taylor. See State v. Wilkerson, 905
S.W.2d 933, 936 (Tenn. 1995). Turning to the statute directly, we have already found the presence
of -115(b)(2) which is sufficient in itself to support the court’s decision to impose consecutive
sentences.

        The defendant also argues that the convictions arose from the same criminal episode. Even
granting the defendant’s argument that his convictions arose from the same intent, we decline to hold
that consecutive sentences are inappropriate. In State v. Desirey, 909 S.W.2d 20, 34 (Tenn. Crim.
App. 1995), we held that consecutive sentences were inappropriate because of “[t]he nonviolent

                                                 -16-
nature of the offenses, the circumstances connecting the offenses to each other, and the defendant's
potential for rehabilitation.” The facts of this case do not compel the same leniency. The
defendant’s potential for rehabilitation is doubtful given his criminal history, and the offense of
kidnapping, even though extreme physical violence was not used, still exposed the victim to
substantial risk of injury. Tenn. Code Ann. § 39-13-303(a)(1). Given these facts and the presence
of the statutory criteria, we conclude that the trial court did not err in imposing consecutive
sentences.

                                         CONCLUSION

       Based upon the foregoing authorities and reasoning, we reduce the defendant’s sentence for
kidnapping to eight years but, in all other respects, affirm the judgments of the trial court.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




                                               -17-
