        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2016

                  STATE OF TENNESSEE v. TYRONE BATTS

                Appeal from the Criminal Court for Davidson County
                 No. 2012-B-1185      J. Randall Wyatt, Jr., Judge



                No. M2015-01662-CCA-R3-CD – Filed March 27, 2017


A Davidson County Criminal Court Jury convicted the Appellant, Tyrone Batts, of two
counts of rape, a Class B felony; one count of attempted rape, a Class C felony; and one
count of robbery, a Class C felony. After a sentencing hearing, the Appellant received an
effective thirty-six-year sentence. On appeal, the Appellant contends that the evidence is
insufficient to support his robbery conviction, that the trial court erred by allowing a
nurse practitioner to testify about statements made by the victim, that the trial court erred
by allowing the prosecutor to make improper comments during the State‟s closing
arguments, that his separate convictions for rape and attempted rape violate due process
and double jeopardy, and that the trial court erred by imposing the maximum punishment
in the range for each offense and consecutive sentencing. Based upon the record and the
parties‟ briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Jeffrey A. DeVasher and Emma Rae Tennent (on appeal) and Martesha L. Johnson and
Jonathan Wing (at trial), Nashville, Tennessee, for the appellant, Tyrone Batts.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Amy M. Hunter and Mindy Morris,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background
        In May 2012, the Davidson County Grand Jury indicted the Appellant for two
counts of rape, one count of attempted rape, and one count of robbery. Subsequently, the
trial court ordered that he have a psychiatric evaluation at Middle Tennessee Mental
Health Institute (MTMHI) to determine his mental competency. On March 31, 2015, the
trial court found the Appellant competent to stand trial, and he proceeded to trial on April
6, 2015.

       The victim testified that in February 2012, she was a student at Vanderbilt
University. On the night of Friday, February 10, the victim was planning to meet some
friends for a concert. She said that she walked to the on-campus parking garage where
she always parked her car and that “plenty” of cars were in the garage. When the victim
got to her car, she opened the door and perceived someone immediately behind her. She
said that she knew something was wrong and that she was terrified.

        The victim testified that she turned around and that a man, whom she later
identified as the Appellant, pushed her into her car. He unfastened his pants and “forced
[her] head onto him.” The victim was gagging and “trying to reason” with him, but he
kept forcing her mouth onto his penis. She said that the Appellant told her to “„suck his
[d***]‟” and that his penis went into her mouth. After a couple of minutes, the Appellant
“pushed [her] down,” lifted her dress, and “went down on [her].” She stated that he put
his lips and tongue on and inside her vagina. The State asked if she was afraid, and the
victim responded, “Yes. . . . I didn‟t know what he had, if he had like a gun or knife or
anything and I didn‟t want to find out, so I just again did what I needed, what I felt like I
needed to do just to survive.” She said that she kept “trying to talk him out of it” and that
she was “hoping that he would just stop.” About one minute later, the Appellant stopped
putting his mouth on her and tried to penetrate her vagina with his penis but was unable
to do so. The victim explained that the Appellant was nervous and “kept looking around
because at any moment, really, someone could have driven by or walked up.”

       The victim testified that after the Appellant was unable to penetrate her, he “pulled
[her] back up and told her to “„keep sucking his [d***].‟” She acknowledged that the
Appellant was holding the back of her head and pushing his penis into her mouth. He
continued to do so until he ejaculated onto her chest, face, and eye. The Appellant then
asked the victim if she had any money. The victim was in shock, scared, and “just
wanted him to go.” She said she was still terrified and gave him the money from her
purse. The Appellant left, and the victim shut and locked her car door. She telephoned
the police and drove to a nearby Mexican restaurant.

      The victim testified that the incident occurred about 7:00 p.m. and lasted ten
minutes or less. Her car door was open, and the Appellant had an erection the entire
time. It was dark outside, but the lights in the parking garage were on and the area was
                                            -2-
bright. An ambulance arrived at the Mexican restaurant and transported the victim to the
hospital. She spoke to a police officer, and a nurse practitioner collected evidence for a
rape kit. A couple of days later, a detective showed the victim a photograph array, and
she selected the Appellant‟s photograph. She said she had never seen or spoken to the
Appellant prior to February 10, 2012.

       On cross-examination, the victim acknowledged that she viewed the photograph
array at the police department on February 13. She also acknowledged that prior to
viewing the array, she had been told that the police had a suspect. After she selected the
Appellant‟s photograph, the police confirmed that he was the suspect. On redirect
examination, the victim testified that she was 100% certain the Appellant was her
attacker.

        Officer Dustin Chester of the Metropolitan Nashville Police Department (MNPD)
testified that on February 10, 2012, he was dispatched to the Qdoba Grill for a “rape
call.” Officer Chester was “just around the corner” from the restaurant, which was
directly in front of the Terrace Parking Garage, and arrived almost immediately. Less
than one minute later, the victim‟s car pulled up. Officer Chester said that the victim was
very distraught, that she was crying profusely, and that “you could tell that she had just
been [through] something that . . . obviously scared her.” A white liquid that appeared to
be semen was on the victim‟s face.

       On cross-examination, Officer Chester testified that the victim described her
attacker as an African-American male, twenty to thirty years old, six feet tall, and
weighing 200 pounds. She said he was wearing a black shirt and blue jeans.

       On redirect examination, Officer Chester testified that the victim told him that the
man “made her perform oral sex on him and then pushed her further into the car where he
lifted her dress and performed oral sex on her.” She did not think the Appellant‟s
genitals penetrated her genitals. The victim said that “at the end” of the attack, the man
told her to give him all of her money. She gave him $23.

       Sergeant Ryan Finnegan of the MNPD testified that he heard about the incident
over the police radio and was responsible for securing the parking garage. He used his
police car to block one of the exits, and he and other officers cleared the stairwells and
each level of the garage. He said that the lighting in the garage was good and that he had
to use his flashlight only to look into individual vehicles. The police did not locate a
suspect that day.

      Pamela Crues testified by video deposition that she was a nurse practitioner in the
emergency room at Nashville General Hospital. On the night of February 10, 2012, Ms.
                                           -3-
Crues interviewed the victim at the hospital. The victim told Ms. Crues that her assailant
forced her to “perform oral sex” on him, that he “performed oral sex” on her, that he
attempted to have vaginal sex with her, and that he ejaculated onto her face. Based on
what the victim told her, Ms. Crues collected swabs from the victim‟s oral gum line,
labia, vagina, face, left eye, and neck. She placed the sealed swabs in a rape kit and
sealed the kit.

       Sergeant Michelle Hammond of the MNPD testified that in February 2012, she
was a detective in the Sex Crimes Unit. On February 10, she responded to Nashville
General Hospital and spoke with the victim. She said that the victim was “visibly
shaken” and that the victim‟s hair, makeup, and clothing were disheveled. The victim
also had a crusty substance on her face, and Sergeant Hammond told the victim to keep
her hands away from her face in order to preserve the evidence.

       Sergeant Hammond testified that the victim described her attacker as an African-
American male, “in his 20s,” having a shaven head, and weighing 180 to 200 pounds.
The victim told the officer that the man “immediately grabbed her by the hair and said,
„suck my [d***]‟ and forced her to perform oral sex on him.” The victim said she tried
to reason with him. He told her that he was not going to hurt her, but he “forcefully laid
her back to where she was in, partially in her chair over the console and then performed
oral sex on her.” Afterward, he got on top of her and attempted to vaginally penetrate her
with his penis. He was unable to do so, so he got off of her and told her to give him oral
sex again. He intermittently masturbated and ejaculated partially in her mouth and on her
face.

        Sergeant Hammond testified that the victim said the man asked if she had any
money. Sergeant Hammond stated, “At that point she took it, you know, fearful for her
life she took it out of her wallet and [gave] him $23.” He asked if that was all the money
she had, and the victim told him yes. The man then walked away.

       On cross-examination, Sergeant Hammond acknowledged that three days later,
she showed a six-photograph array to the victim. At that time, Sergeant Hammond knew
the Appellant was a suspect.         On redirect examination, Sergeant Hammond
acknowledged that she did not say anything to the victim to suggest the Appellant was
the suspect.

      Heather Baltz testified that she was a detective in the MNPD‟s Sex Crimes Unit in
February 2012 and the lead detective in this case. On February 12, she asked the
Appellant if he would provide a DNA sample. He agreed, so Ms. Baltz collected a cheek
swab from him. On cross-examination, Ms. Baltz acknowledged that prior to showing

                                           -4-
the victim the photograph array on February 13, she contacted the victim and advised her
that a suspect was in custody.

        Chad Johnson, a special agent forensic scientist with the Tennessee Bureau of
Investigation, testified as an expert in DNA analysis that he analyzed evidence collected
in this case. A labial swab collected from the victim revealed the presence of Amylase, a
chemical found in saliva. However, only the victim‟s DNA profile was obtained from the
sample. An oral gum-line swab collected from the victim was negative for the presence
of semen or sperm. Neck and face swabs collected from the victim showed the presence
of semen. Agent Johnson separated the semen into two components: A sperm
component and a non-sperm component. The sperm DNA matched the Appellant‟s
DNA. The non-sperm component showed that the Appellant was a major contributor to
the mixture and that the victim was a minor contributor.

       At the conclusion of Agent Johnson‟s testimony, the State rested its case and
presented the following election of offenses: Count one, rape, for the Appellant‟s forcing
the victim to perform fellatio on him immediately after he was behind her; count two,
rape, for the Appellant‟s performing cunnilingus on the victim; and count three,
attempted rape, for the Appellant‟s attempting to penetrate the victim‟s vagina with his
penis. The jury convicted him of all three offenses and count four, robbery. After a
sentencing hearing, the trial court sentenced him to an effective thirty-six years in
confinement.

                                       II. Analysis

                             A. Sufficiency of the Evidence

       The Appellant contends that the evidence is insufficient to support his robbery
conviction because it fails to show that he took the victim‟s property by violence or
putting her in fear. In support of his argument, he notes that the State did not present any
evidence that he was armed with a weapon, that he suggested to the victim that he
possessed a weapon, that he threatened to harm her if she did not give him money, or that
he forcibly took her purse. He argues that the evidence shows the victim gave him the
money in order to stop the sexual assault, not because she was in fear of bodily injury.
The State argues that the evidence is sufficient. We agree with the State.

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate 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 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
                                            -5-
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
„[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review „is the
same whether the conviction is based upon direct or circumstantial evidence.‟” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

       Robbery is defined as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-
401(a). A theft of property occurs when someone, with the intent to deprive the owner of
property, knowingly obtains or exercises control over the property without the owner‟s
effective consent. Tenn. Code Ann. § 39-14-103.

       In support of his argument that the evidence is insufficient, the Appellant relies on
State v. Owens, 20 S.W.3d 634, 636 (Tenn. 2000), in which the defendant took an item
from a store without paying for it and fled. He ran for five blocks, stopped, and used a
box cutter to confront an employee who had chased him. Id. In the case, our supreme
court adopted the common law rule of robbery, stating that “the use of violence or fear
must precede or be contemporaneous with the taking of property from the person.” Id. at
641. The court went on to conclude that the evidence was insufficient to support the
defendant‟s robbery conviction because the evidence did not show that the violence or
fear preceded or was contemporaneous with the taking of the property from the store. Id.

     The facts in the instant case are completely distinguishable from the facts in
Owens. Taken in the light most favorable to the State, the evidence shows that the
                                            -6-
Appellant approached the victim as she was getting into her car and forced her into her
car. He made her perform oral sex on him, performed oral sex on her, and tried to
penetrate her vaginally. He forced her to perform oral sex on him a second time and
ejaculated onto her face and neck. At that point, he asked if she had any money, and she
gave him the $23 she had in her purse. The victim repeatedly testified that she was
terrified and in fear for her life during her ordeal and justifiably so: the Appellant had
just raped her at least twice and had tried to rape her a third time. The State asked if the
victim was afraid during the attack, and the victim responded, “Yes. I didn‟t know what
he had, if he had like a gun or knife or anything and I didn‟t want to find out, so I just
again did what I needed, what I felt like I needed to do just to survive.” For this court to
conclude that the victim did not fear the Appellant at the time of the robbery, which
occurred immediately after the sexual offenses, because he did not use a weapon, suggest
to her that he had a weapon, or threaten to harm her would be illogical. As the State
argues in its brief, “[T]he victim‟s fear did not end when the defendant stopped raping
her.” We conclude that the evidence is more than sufficient to support the Appellant‟s
robbery conviction.

                                        B. Hearsay

       The Appellant claims that the trial court erred by allowing Pamela Crues to testify
about statements made by the victim and by allowing the State to introduce Ms. Crues‟s
report, which contained the victim‟s statements, into evidence. He contends that the
evidence was hearsay and was not admissible pursuant to Tennessee Rule of Evidence
803(4), the hearsay exception for statements made for the purpose of medical diagnosis
and treatment, because Ms. Crues obtained the victim‟s statements primarily for use in a
criminal prosecution. The State argues that the evidence was admissible under the
hearsay exception. We agree with the State.

       During direct examination, Ms. Crues began to testify about statements made by
the victim. Defense counsel objected on the grounds that Ms. Crues‟s testimony was
hearsay, and the trial court overruled the objection. At the conclusion of her testimony,
the State moved to introduce her report into evidence. Defense counsel again objected,
and the State responded that the report was admissible pursuant to Tennessee Rule of
Evidence 803(4). The trial court agreed with the State.

        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible during a
trial, unless the statement falls under one of the exceptions to the rule against hearsay.
See Tenn. R. Evid. 802. The victim‟s statements to Ms. Crues and included in Ms.

                                            -7-
Crues‟s report were hearsay.      Therefore, absent a relevant hearsay exception, the
statements were inadmissible.

       Rule 803(4), Tennessee Rules of Evidence, provides an exception to the hearsay
rule for “[statements] made for purposes of medical diagnosis and treatment describing
medical history; past or present symptoms, pain, or sensations; or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.” The Advisory Commission Comments for Rule 803(4) clarify
that such statements “must be for both diagnosis and treatment.” Our supreme court has
explained that “if physicians or other medical personnel rely upon the statement in
diagnosing and treating the patient, then the statement should be sufficiently trustworthy
to be admissible in a court of law.” State v. McLeod, 937 S.W.2d 867, 870 (Tenn. 1996).

       A trial court‟s factual findings and credibility determinations regarding hearsay are
binding upon this court unless the evidence preponderates against them. Kendrick v.
State, 454 S.W.3d 450, 479 (Tenn. 2015). However, the determination of whether the
statement in question is hearsay and whether a hearsay exception applies are questions of
law that we review de novo. Id.

        In arguing that the evidence was inadmissible under the hearsay exception because
Ms. Crues obtained the victim‟s statements primarily for use in a criminal prosecution,
not medical diagnosis and treatment, the Appellant relies on State v. Cannon, 254 S.W.3d
287 (Tenn. 2008). In Cannon, the defendant argued that the admission of the rape
victim‟s statements into evidence through emergency room (ER) medical personnel and a
nurse violated his right of confrontation because the victim, while available, did not
testify at trial. Our supreme court held that “statements in medical records given for the
primary purpose of medical diagnosis and treatment are nontestimonial” and, therefore,
governed by the rules of evidence. 254 S.W.3d at 303. However, statements made
primarily for the purpose of “„establish[ing] or prov[ing] past events potentially relevant
to later criminal prosecution‟” are testimonial and, therefore, generally inadmissible. Id.
at 305 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). The court concluded
that the victim‟s statements to the nurse, made after the victim spoke with and sought
medical diagnosis and treatment from ER personnel, were testimonial and inadmissible
because the defendant had no prior opportunity to cross-examine the victim. Id. at 305-
06. Therefore, the court did not need to address the issue of whether the nurse‟s
testimony was admissible under Tennessee Rule of Evidence 803(4).

        Unlike Cannon, there is no confrontation problem in this case because the victim
testified. Thus, we do not need to consider whether her statements to Ms. Crues were
testimonial or non-testimonial and move directly to the admissibility of the evidence
under Rule 803(4).
                                            -8-
       Ms. Crues testified that she was a board certified nurse practitioner and that she
conducted sexual assault exams in the ER at Nashville General Hospital. She stated that
she had “advanced training in women‟s health” and that she also had received training
from the “Metro Crime Lab.” She explained that during a patient‟s examination, she
collected “legal evidence” and “treat[ed] the patient medically, . . . addressing any kind of
medical concerns that would happen during the assault.” She said she began a patient‟s
examination by obtaining the patient‟s health history and then talking with the patient
about what happened during the assault, which allowed her to decide which areas she
needed to swab in order to collect DNA evidence. She stated that “once we collect the
evidence we also treat the patient prophylactically for STDs, HIV, plan B, those type of
things.”

       Ms. Crues testified that she interviewed the victim and that the victim said she had
been forced to perform oral sex on the Appellant, that he had performed oral sex on her,
and that he had tried to penetrate her vaginally. Based on the victim‟s statements, Ms.
Crues swabbed the victim‟s gum line, labia, vagina, face, and neck. According to Ms.
Crues‟s report, she did not see any signs of physical trauma on the victim, she did not
examine the victim‟s genitalia, and she did not perform a pelvic examination. In the
report, Ms. Crues wrote that the victim did not receive any prophylactic antibiotics,
pregnancy prevention medication, or HIV prophylaxis medication because the victim
“declined all meds.” The report shows that Ms. Crues advised the victim to follow-up
with her general physician or gynecologist in eight weeks and “Meharry GYN Clinic in
2-3 weeks for STD results.” The report states that no general physician was consulted.

        Based upon our de novo review, we agree with the State that the hearsay evidence
was admissible as statements made for the purpose of medical diagnosis and treatment.
Ms. Crues testified, and her report confirms, that she used the victim‟s statements to
diagnose and treat her medically. Accordingly, we conclude that the Appellant is not
entitled to relief.

                           C. Prosecutor‟s Closing Arguments

      The Appellant contends that he is entitled to a new trial based upon prosecutorial
misconduct committed during the State‟s closing arguments. The State argues that the
Appellant is not entitled to relief. We agree with the State.

       The Appellant claims that the prosecutor “improperly vouched for the reliability of
the State‟s witnesses, and for the rightness of the prosecution itself, with comments that
effectively expressed her personal views as to the defendant‟s guilt and the credibility of
witness testimony” by stating as follows during closing argument:
                                            -9-
                    You heard Agent Johnson testify. I am quoting the
             TBI report which is somewhat wordy, but I think it is very
             important. “The probability of an unrelated individual having
             the same DNA profile as the contributor of the sperm fraction
             profile . . . exceeds the current world population.”

(Emphasis added.) During the State‟s rebuttal closing argument, the second
prosecutor stated as follows:

                    This is the State‟s opportunity to respond to . . . some
             of the allegations that have been made by the defense . . . and
             so I was writing down notes, but I apologize, but I am going
             to have to refer to them, but I want to make sure that I
             respond to all of the arguments that were made, because this
             is a very important case to the State of Tennessee and
             certainly to [the victim] and her family.

                    ....

                    There is nothing to suggest that there was anything
             wrong with this photographic line-up. It is something that is
             done at police departments all of the time and it is a standard
             way of identifying somebody who is a suspect in a particular
             case and I ask that you will trust Sergeant Hammond and [the
             victim] to know that they did the very best that they could
             under these circumstances.

                    ....

                     Under the law the Court has to instruct all of the lesser
             included offenses, okay? So they are there because they have
             to be, okay? And under the law they need to be, if they are
             not there, and there is guilty conviction on this case then we
             could have to come back and try it again listing all of the
             lesser included offenses.

(Emphasis added.)

       At the conclusion of the prosecutor‟s rebuttal closing argument, defense counsel
asked if “we may approach for one moment.” The trial court announced that it was going
                                           - 10 -
to take a short break and sent the jury out of the courtroom. During the break, defense
counsel stated that he did not want to interrupt the State during closing arguments but that

              there were a number of times during her closing argument
              where she used personal language, this is important to the
              State, [the victim], I would submit that you should, and so I
              would ask the Court to just caution the jury that it should not
              decide this case to satisfy the victim or Mr. Batts or counsel
              for either side, but that they are required to decide it on the
              law and facts, so I think that for a solution.

The trial court advised defense counsel that, pursuant to the jury charge, it was going to
instruct the jury as follows:

              [E]ach of you must decide the case for yourself, but do so
              only after an impartial consideration of the evidence with
              your fellow jurors. Do not surrender your honest conviction,
              have no prejudice or sympathy or allow anything but the law
              and the evidence to have any influence upon your verdict.

       In order to prevail on a claim of prosecutorial misconduct, the Appellant must
demonstrate that the conduct committed by the prosecution was so inflammatory or
improper that it affected the verdict to his detriment. Harrington v. State, 385 S.W.2d
758, 759 (Tenn. 1965); State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997). In
making this determination, this court is guided by five factors:

              1. The conduct complained of viewed in context and in light
              of the facts and circumstances of the case.

              2. The curative measures undertaken by the court and the
              prosecution.

              3. The intent of the prosecutor in making the improper
              statement.

              4. The cumulative effect of the improper conduct and any
              other errors in the record.

              5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Buck,
                                           - 11 -
670 S.W.2d 600, 609 (Tenn. 1984). We note that “the Judge factors should only be
applied to claims of improper prosecutorial argument,” as in this case, not claims of
unconstitutional prosecutorial comment. State v. Jackson, 444 S.W.3d 554, 591 n.50
(Tenn. 2014). “[T]he State bears the burden of proving unconstitutional prosecutorial
comment or argument harmless beyond a reasonable doubt, whereas a defendant bears
the burden of proving prejudice when prosecutorial argument is merely improper.” Id.

        Regarding prosecutorial misconduct during closing arguments, it is well-
established that closing argument is an important tool for both parties during a trial; thus,
counsel is generally given wide latitude during closing argument, and the trial court is
granted wide discretion in controlling closing arguments. See State v. Carruthers, 35
S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments must
be temperate, based upon the evidence introduced at trial, relevant to the issues being
tried, and not otherwise improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5
(Tenn. Crim. App. 2003).

        In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial
misconduct” that can occur during closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief or opinion as to the truth or
falsity of the evidence or defendant‟s guilt; (3) making statements calculated to inflame
the passions or prejudices of the jury; (4) injecting broader issues than the guilt or
innocence of the accused; and (5) intentionally referring to or arguing facts outside the
record that are not matters of common public knowledge. “In determining whether
statements made in closing argument constitute reversible error, it is necessary to
determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

       Initially, we note that counsel did not make contemporaneous objections to any of
the prosecutors‟ comments. Moreover, when he did object, he proposed that the trial
court remedy the prosecutors‟ errors with a jury instruction. The trial court stated that an
appropriate instruction was already in the jury charge, and defense counsel made no
further argument. A defendant‟s failure “to proffer contemporaneous objections to the
challenged remarks” waives the issue on appeal. State v. Robinson, 146 S.W.3d 469, 518
(Tenn. 2004).

       Nevertheless, we can review the issue for plain error. Tenn. R. App. P. 36(b); see
State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015). We may consider an issue to be
plain error when all five of the following factors are met:

              (a) the record must clearly establish what occurred in the trial
              court; (b) a clear and unequivocal rule of law must have been
                                            - 12 -
              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) (footnotes omitted);
see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “„plain error‟ must be of such a great
magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at
642 (quoting United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).

        Given the strength of the State‟s case, we can conclude that the prosecutors‟ first
three comments do not rise to the level of plain error. As to the fourth comment
regarding the jury‟s consideration of lesser-included offenses, the State acknowledges
that the comment was “clearly improper” but argues that the Appellant is not entitled to
relief because the comment “was not entirely inaccurate and a small part of a lengthy
closing rebuttal argument.”

       We believe this court‟s opinion in State v. Joshua Schaeffer, No. E2005-00085-
CCA-R3-CD, 2005 WL 3533304 (Tenn. Crim. App. at Knoxville, Dec. 27, 2005), perm.
to appeal denied, (Tenn. May 1, 2006), is instructive. In Joshua Schaeffer, the prosecutor
stated as follows:

              [T]he trial is over and the judge is going to be reading your
              instructions on what you are to consider after you‟ve heard
              everything today. And the first thing he‟s going to ask that
              you consider is the charge of aggravated robbery, and I
              submit to you that that‟s the only charge you‟re going to have
              to consider because that‟s exactly what this defendant did.
              He submitted it. You‟ve heard his confession.

No. E2005-00085-CCA-R3-CD, 2005 WL 3533304, at *7. The defendant objected and
claimed on appeal that the argument encouraged the jury “to engage in jury nullification
during her closing argument as it related to the jury‟s consideration of the lesser included
offenses.” Id. at *6. This court cautioned that “[c]ounsel should refrain from attempting
to instruct the jury on the law” but concluded that “the statement did not, in our view,
encourage the jury to disregard the law but was, instead, the prosecutor‟s assessment of
the evidence, suggesting that the jury would not have to consider the lesser included
offenses because of the overwhelming proof of the charged offense.” Id. at 7.



                                            - 13 -
       Likewise, we caution prosecutors from attempting to instruct the jury on the law.
Nevertheless, we agree with this court‟s assessment in Joshua Schaeffer and conclude
that the prosecutor‟s statement in this case was a comment on the strength of the State‟s
case. Furthermore, as this court noted in Joshua Schaeffer, the trial court gave the correct
jury instructions regarding the consideration of lesser-included offenses, and we
generally presume that the jury follows the instructions of the trial court. Id. Thus, the
Appellant is not entitled to plain error relief.

                          D. Due Process and Double Jeopardy

       The Appellant contends that his convictions for rape and attempted rape violate
due process because the two penetrations and one attempted penetration were part of a
single, continuous sexual episode and asks that we utilize State v. Barney, 986 S.W.2d
545 (Tenn. 1999), in our analysis. He also contends that the three convictions violate
double jeopardy. The State argues that the convictions do not violate due process or
double jeopardy. We agree with the State.

       In Barney, our supreme court set out a five-factor test for determining whether two
or more sexual acts may be the subject of separate convictions. 986 S.W.2d at 548-49.
The five factors are as follows:

              1. temporal proximity-the greater the interval between the
              acts, the more likely the acts are separate;

              2. spatial proximity-movement or re-positioning tends to
              suggest separate acts;

              3. occurrence of an intervening event-an interruption tends to
              suggest separate acts;

              4. sequence of the acts-serial penetration of different orifices
              as distinguished from repeated penetrations of the same
              orifice tends to suggest separate offenses; and

              5. the defendant‟s intent as evidenced by conduct and
              statements.

Id. at 548-49. However, as this panel recently noted, “Although Barney has not yet been
expressly overruled, this Court is uncertain as to its continued validity following State v.
White, 362 S.W.3d 559, 578 (Tenn. 2012), and State v. Watkins, 362 S.W.3d. 551, 552
n.34 (Tenn. 2012).” State v. Stevie Michael Irwin, Jr., No. E2015-01448-CCA-R3-CD,
                                           - 14 -
2016 WL 2853875, at *8 fn.3 (Tenn. Crim. App. at Knoxville, May 11, 2016). In any
event, we conclude that the Appellant‟s convictions do not violate due process concerns
under Barney.

       The victim testified that that the Appellant forced her to perform oral sex on him
for a couple of minutes, that he performed oral sex on her for about one minute, and that
he tried to penetrate her vaginally. Although those intervals were not particularly
lengthy, they were significantly more than mere seconds and of enough duration to be
considered separate acts. Moreover, all of the acts involved different body parts,
different orifices, and obviously required repositioning of the Appellant and the victim.
Finally, the Appellant‟s telling the victim to “suck his [d***]” after he pushed her into
her car and after he performed oral sex on her shows that he intended the acts to be
separate. Thus, we conclude the Appellant‟s separate convictions do not violate due
process.

       Next, we will address the Appellant‟s double jeopardy claim. “Multiplicity
concerns the division of conduct into discrete offenses, creating several offenses out of a
single offense.” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996). Multiple
convictions for the same offense violate federal and state constitutional prohibitions
against double jeopardy. See U.S. Const. amend. V; Tenn. Const. art. I, § 10. “Whether
multiple convictions violate double jeopardy is a mixed question of law and fact that we
review de novo with no presumption of correctness.” State v. Smith, 436 S.W.3d 751,
766 (Tenn. 2014).

        The double jeopardy clauses of the United States and Tennessee Constitutions
protect an accused from (1) a second prosecution following an acquittal; (2) a second
prosecution following conviction; and (3) multiple punishments for the same offense.
See State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). The instant case concerns the
third category, protection against multiple punishments for the same offense in a single
prosecution. “Multiple punishment claims fall into one of two categories: (1) unit-of-
prosecution claims; or (2) multiple description claims.” State v. Hogg, 448 S.W.3d 877,
885 (Tenn. 2014) (citing Watkins, 362 S.W.3d at 543). This case involves unit-of-
prosecution claims because the Appellant is asserting that multiple convictions under the
same statute are for the same offense. Id. at 886. “„In determining the unit of
prosecution, we first examine the statute in question to determine if the statutory unit of
prosecution has been expressly identified.‟ If the unit of prosecution is clear from the
statute, there is no need to review the history of the statute and other legislative history.”
Id. (quoting Smith, 436 S.W.3d at 768). However, “any ambiguity in defining the unit of
conduct for prosecution is resolved against the conclusion that the legislature intended to
authorize multiple units of prosecution.” Watkins, 362 S.W.3d at 543 (citing Gore v.
United States, 357 U.S. 386, 391-92 (1958)).
                                            - 15 -
       As charged in this case, rape is the “unlawful sexual penetration of a victim by the
defendant or of the defendant by a victim” and “[f]orce or coercion is used to accomplish
the act[.]” Tenn. Code Ann. § 39-13-503(a)(1). “Sexual penetration” is defined as
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person‟s body or of any object into the genital or anal
openings of the victim‟s, the defendant‟s, or any other person‟s body, but emission of
semen is not required.” Tenn. Code Ann. § 39-13-501(7). In Hogg, our supreme court
stated that “[t]he definition of „sexual penetration‟ is broad and includes different
examples of sexual activity, including „any other intrusion, however slight.‟ The breadth
of this definition convinces us that the „unit of prosecution‟ is each act of „unlawful
sexual penetration.‟” 448 S.W.3d at 886.

       Here, the Appellant was convicted of two counts of rape and one count of
attempted rape. Each count involved a different type of sexual penetration specifically
included in the definition. Thus, we find no merit to the Appellant‟s multiplicity
argument.

                                                E. Sentencing

       Finally, the Appellant contends that the trial court erred by imposing the
maximum punishments in the range and consecutive sentencing. The State argues that
the court properly sentenced the Appellant. We agree with the State.

        At the Appellant‟s sentencing hearing, L.E.B.1 testified that she was a nurse at
Saint Thomas Midtown Hospital in Nashville. In the early morning hours of February
12, 2012, she was at work but took a break and walked to her car in the hospital‟s parking
garage. While she had her car door open, a man approached and asked to borrow a
cigarette lighter. L.A.B. gave him a lighter, and he returned it to her. He then unzipped
his pants, pulled out his penis, and put his hand on her head. The man tried to force
L.A.B.‟s head down to his penis, but she resisted. She grabbed her cellular telephone and
tried to call someone in the hospital, but the man took her telephone from her. He also
took her personal iPhone and put them into his pocket. L.A.B. honked her car horn to
summon help, and the man ran away. Later that day, the police returned her telephones
to her. At some point, they also showed her a photograph array. L.A.B. said that she
selected the Appellant‟s photograph, and she identified him at the victim‟s sentencing
hearing as her attacker. She acknowledged that her case against the Appellant was
pending and said that he deserved the maximum sentence in the instant case. On cross-
examination, L.A.B. testified that the incident lasted less than ten minutes.

      1
          It is the policy of this court to refer to victims of sexual offenses by their initials.
                                                        - 16 -
       J.H. testified that in February 2012, she was working as a nursing assistant at
Vanderbilt Medical Center. About 6:00 a.m. on February 12, J.H. took a break and rode
the hospital elevator downstairs. When the doors opened, the Appellant was standing
inside the hospital and in front of the elevator. J.H. said that she thought he was going to
get on the elevator and that she smiled and nodded at him. She then got off the elevator
and walked “outside into the garage.” Her car was not parked there, so she walked to a
corner of the hospital parking garage “where we take our breaks.” When she turned
around, she saw the Appellant standing in the garage. He was watching her but tried to
hide behind a pole. J.H. said that she walked backed toward the hospital after her break
and that she had no choice but to walk past the Appellant. She noticed that he was
walking behind her and “speeding up.” He grabbed her and put his hand over her mouth.
She tried to scream, but he told her to stop. J.H. continued to walk toward the hospital,
but the Appellant pulled her onto the ground. She said that she was on her back, kicking
and screaming, and that someone walked outside and “spooked” the Appellant. The
Appellant took J.H.‟s cellular telephone and ran. She said that the attack changed her life
and that she was “always looking over [her] shoulder.”

        The victim in this case testified that she was “devastated” and “a basket case” after
the crimes. She said that she experienced numbness, anger, and blamed herself but that
she refused to let the incident “eat [her] alive.” She said that she had done “a ton of
healing” and that therapy helped “a lot.” The victim began volunteering at the Sexual
Assault Center to help other victims, which allowed her to turn her attack into something
positive. She said that she had recovered from the fear and numbness but that she still
experienced “so much residual anger.” The victim stated that L.A.B. and J.H. had “done
a good job of really hitting home the seriousness of this” and that “there needs to be
justice.” She asked that the court “look at the facts and . . . do the right thing.”

       S.Y. testified that one day in August 2012, she returned home from work and saw
a man on a bicycle. It was dark outside. The man came up behind S.Y. and put a gun in
her face. She gave her cellular telephone to him, but he said, “I don‟t want that one.” He
pushed her behind her apartment and onto the ground, put his feet on her stomach, and
took off his pants. She stated that he said something like “I want to . . . [f***] with you.”
S.Y. told him that her brother was in the car and that her brother was coming. The man
saw someone and walked away. S.Y. went inside, told her mother, and telephoned the
police. After the incident, she changed jobs so that she no longer worked at night. She
also had trouble sleeping and pain in her leg caused by the man‟s pushing her onto the
ground. She identified the Appellant in the courtroom as her attacker.

        The State introduced the Appellant‟s presentence report into evidence. In the
report, the then twenty-eight-year-old Appellant said that he had a “great” childhood. He
                                            - 17 -
described his physical health as “good” but his mental health as “poor” because he had
been told that he was schizophrenic and experienced hallucinations. The Appellant said
that he took medication for about two months but that he stopped taking it because he
was worried about receiving the wrong medication. The Appellant also stated that he
began consuming alcohol when he was fourteen years old but that he stopped consuming
it when he was twenty-one and that he smoked marijuana daily from the age of fourteen
“until he came to jail.” According to the report, the Appellant had one daughter but did
not see her and did not pay child support. The report showed that the Appellant worked
for a lawn service from May to December 2008 and UPS from December 2008 to April
2009 but that he had been unemployed since 2009. The Appellant said in the report that
he had been selling drugs to make a living. The report showed that the Appellant had
prior convictions for indecent exposure, driving without a license, and drug possession.
The State also introduced into evidence a certified judgment of conviction showing that
the Appellant pled guilty to selling less than one-half gram of cocaine in 2006 and three
amended judgments showing that he violated probation in 2008, 2009, and 2010.

       Sharon Batts, the Appellant‟s mother, testified for him that he was her first-born
child and that she enjoyed him as a son. He was never a “trouble child,” loved music,
and sang in the church choir. He also played baseball for the YMCA. The Appellant
went to the tenth grade at school. At that time, he was eighteen or nineteen years old. He
took GED classes but never obtained his GED. The Appellant worked at Captain D‟s,
Free-Way Car Lot, Kroger, and Precision Tuning. The Appellant‟s father was not
involved in his life, and the Appellant never had a male role model in the home.

        Ms. Batts testified that at some point, she started to think something was wrong
with the Appellant “because he was doing things that [were] not him.” The Appellant
thought people on television were talking to him and that his mother was a gang member
when she wore red clothing. He was also paranoid. Ms. Batts “called Mobile Crisis out”
but was told nothing could be done “until he [did] something.” She took him to
Cornerstone Church to talk with a minister and to Centerstone, a mental health provider.
She said that the Appellant had been in jail since February 12, 2012, and that he was
segregated from the rest of the population because “he don‟t know how to deal with the
population for some reason.” Ms. Batts said that she had two nephews who had been
patients at MTMHI and that she had been treated for depression. She stated that the
Appellant was sick, that he was in denial, and that he deserved help. She said she did not
raise the kind of person who would commit these offenses.

       Dr. Pamela Auble testified that she was a psychologist and met with the Appellant
in October 2012, June 2014, and March 2015. She diagnosed him with schizophrenia,
and in her opinion, he was “severely mentally ill.”

                                          - 18 -
       Dr. Auble testified that in September 2011, the Appellant was treated at the
Mental Health Coop and found to be delusional and paranoid. He was diagnosed with
bipolar affective disorder with psychotic features and treated with Depakote, a
medication for people with psychosis and bipolar disorder. When Dr. Auble first met
with the Appellant, he did not think anything was wrong with him. Dr. Auble
interviewed his mother and sister. They said the Appellant changed in early 2011 and
began making disturbing posts on Facebook. They also gave Dr. Auble letters the
Appellant had written to them from jail. In the letters, the Appellant said he thought
people in the jail were “trying to make him crazy,” working together to try to destroy
him, and speaking in codes. In April 2013, the Appellant saw another mental health
professional, Dr. Brown, who “said that there was a question of delusional beliefs.” In
April and May 2013, the Appellant was evaluated at MTMHI. He was diagnosed with a
delusional disorder and found to be incompetent due to his severe mental illness. He was
admitted to MTMHI for two months and received injections of Haldol, a “major”
antipsychotic medication. In July 2013, the Appellant was having paranoid delusions.
By August 2013, he had improved with medication but was still having delusions about
money and gangs.

       Dr. Auble testified that Dr. Brown saw the Appellant again in April 2014 and
thought he had irrational beliefs that interfered with his capacity to understand legal
proceedings. In May 2014, MTMHI noted that the Appellant had paranoid beliefs and
thought he was being “framed” by the government. When Dr. Auble interviewed him in
June 2014, she found him to be delusional. The Appellant thought that he talked to
celebrities on radio shows, that the news was often about him, and that President Obama
would “bond him out.” She said that she had met with the Appellant “a number” of times
and that he had shown evidence of paranoia every time she had seen him. She stated that
the Appellant could be manipulative and “use his mental illness from time-to-time.”
However, she thought evidence of his having an underlying mental illness was
“overwhelming.”

       The trial court applied enhancement factors (1), that “[t]he defendant has a
previous history of criminal behavior, in addition to that necessary to establish the
appropriate range”; (7), that “[t]he offense involved a victim and was committed to
gratify the defendant‟s desire for pleasure or excitement”; (8), that “[t]he defendant,
before trial or sentencing, failed to comply with the conditions of a sentence involving
release into the community”; and (13), that at the time the felony was committed, the
defendant was released on bail. Tenn. Code Ann. § 40-35-114(1), (7), (8), (13)(A). In
mitigation, the court acknowledged that the Appellant “has some mental issues. That‟s
pretty obvious.” See Tenn. Code Ann. § 40-35-113(13). The court found that the
enhancement factors “clearly overwhelm[ed]” the mitigating factors and sentenced the
Appellant as a Range I, standard offender to the maximum punishment in the range for
                                         - 19 -
each offense: twelve years for rape, a Class B felony, in counts one and two; six years
for attempted rape, a Class C felony, in count three; and six years for robbery, a Class C
felony, in count four. See Tenn. Code Ann. § 40-35-112(a)(2), (3).

       The trial court stated that it appreciated the Appellant‟s mother‟s testimony but
that the community needed to be protected from him “regardless of all these problems
that he has had.” The court then stated that it was ordering consecutive sentencing based
upon the Appellant‟s extensive record of criminal activity, which included his prior
convictions and his daily use of marijuana since he was fourteen years old. See Tenn.
Code Ann. § 40-35-115(b)(2). The court said there was “no question” that the Appellant
should serve his effective thirty-six-year sentence in confinement because confinement
was necessary to avoid depreciating the seriousness of the offenses.

       Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
also State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to
consecutive sentencing). In sentencing a defendant, the trial court shall consider the
following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the Appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn.Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991). The burden is on the Appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm‟n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because
              the general assembly set the minimum length of sentence for
              each felony class to reflect the relative seriousness of each
              criminal offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of

                                           - 20 -
               mitigating and enhancement factors set out in § 40-35-113
               and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].‟” Id. at 343. Appellate courts are “bound by a trial court‟s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346.

        The Appellant contends that the trial court erred by imposing the maximum
punishment in the range for each offense because a psychologist described him as
extremely mentally ill and because the crimes were committed during a single episode
that lasted less than ten minutes, involved no weapon, and did not result in injury to the
victim. However, the trial court applied four enhancement factors, which the Appellant
does not contest, and found that those factors “overwhelm[ed]” the single mitigating
factor. The Appellant has failed to show that the court abused its discretion.

       The Appellant also contends that the trial court erred by ordering consecutive
sentencing because his effective thirty-six-year sentence “is greater than that deserved for
the offenses committed” and “is not the least severe measure necessary to achieve the
purposes for which the sentence is imposed.” See Tenn. Code Ann. § 40-35-103(2), (4).
We disagree. The trial court ordered consecutive sentencing based upon the Appellant‟s
extensive criminal history, and he makes no argument regarding that finding.
Accordingly, we conclude that the trial court did not abuse its discretion by ordering
consecutive sentencing.

                                      III. Conclusion

         Based upon the record and the parties‟ briefs, we affirm the judgments of the trial
court.
                                                     _________________________________
                                                     NORMA MCGEE OGLE, JUDGE

                                            - 21 -
