         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                         JANUARY 1998 SESSION           FILED
                                                         February 5, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 02C01-9703-CR-00089
      Appellee,                  )
                                 ) Shelby County
V.                               )
                                 ) Honorable James C. Beasley, Jr., Judge
CARLTON SUGGS,                   )
                                 ) (Aggravated Rape; Aggravated Burglary)
      Appellant.                 )




FOR THE APPELLANT:                  FOR THE APPELLEE:

A C Wharton                         John Knox Walkup
Shelby County Public Defender       Attorney General & Reporter

Tony N. Brayton                     Clinton J. Morgan
Assistant Public Defender           Counsel for the State
201 Poplar Avenue, Suite 201        450 James Robertson Parkway
Memphis, TN 38103                   Nashville, TN 37243-0493

William Moore                       William L. Gibbons
Assistant Public Defender           District Attorney General
201 Poplar Avenue, Suite 201
Memphis, TN 38103                   Terrell Harris
(At Trial)                          Assistant District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
       The appellant, Carlton Suggs, was found guilty by a jury of aggravated

rape and aggravated burglary in the Shelby County Criminal Court. The court

sentenced the appellant as a Range II offender to ten years and forty years

imprisonment for the respective offenses, to be served consecutively. The trial

court denied the appellant’s motion for a new trial, and he appealed to this Court.

He presents the following issues for our review.



       I. Whether the evidence is sufficient to support
          the aggravated rape conviction.

       II. Whether the trial court erred in excluding an
           out-of-court statement made by the appellant
           to his employer.

       III. Whether the trial court erred in imposing
            consecutive sentences.



Finding no prejudicial error, we affirm.



                                  BACKGROUND



       The appellant’s ex-wife is the victim in this case. The appellant and the

victim were married sixteen years before divorcing in 1990. Reconciliation

attempts failed. The appellant and victim had one child, a daughter, who was

fourteen years old when her parents divorced. The victim testified that, in May

of 1992, the appellant broke into her house and raped her. The appellant pled

guilty to aggravated burglary and attempted rape and was sentenced to prison.

He was released in January 1994.



       The victim testified that on the morning of May 14,1994, the appellant

knocked on her door. The victim did not let the appellant inside the house. The

victim called 911. The appellant asked to see his daughter and then began

cursing the victim and accusing her of sending him to jail for no reason in 1992.

The appellant broke into the house through a screen window and began raping



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the victim. The police arrived and officers saw through a window that the

appellant was raping the victim. The appellant dragged the victim to the window

and told her to tell the police that she was all right, which she did. The victim

was crying.



       The front door was locked so the police went around to the back door.

The appellant threw the victim on the floor and raped her again. The police

ordered the appellant to come out of the house, but he refused. Eventually, the

victim convinced the appellant to let her leave the house by promising him that

she would tell the police that nothing happened. Soon thereafter, the appellant

came out of the house, and the police arrested him. The vaginal swabs in the

victim’s rape kit tested positive for sperm. There was DNA analysis evidence

from which the jury could have concluded that the appellant raped the victim.



       The appellant testified that the victim let him in her house and then started

an argument with him. The appellant denied the rape. He said that the victim

fell and that he was trying to pick her up by her shoulders when the police

arrived.



                       SUFFICIENCY OF THE EVIDENCE



       As relevant here, the definition of aggravated rape is unlawful sexual

penetration of a victim by the defendant accompanied by the following

circumstance: the defendant causes bodily injury to the victim. Tenn. Code Ann.

§ 39-13-502(a) (Supp. 1992). The appellant argues that the evidence is

insufficient to prove that the rape was “accompanied by” bodily injury. When an

appellant challenges the sufficiency of the evidence, this Court must determine

whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of a crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Tenn. R.



                                         -3-
App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The weight and

credibility of a witness’ testimony are matters entrusted exclusively to the jury as

the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); Byrge v.

State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).       On appeal, the state is

entitled to both the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832

(Tenn. 1978). Moreover, guilty verdicts remove the presumption of innocence,

enjoyed by defendants at trial, and replace it with a presumption of guilt. State v.

Grace, 493 S.W.2d 474 (Tenn. 1973). Appellants carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       The appellant argues that the victim’s injuries did not accompany the

rape because any injury suffered by the victim was inflicted in an assault before

the rape. The state argues that the statutory language “accompanied by” does

not mean that the bodily injury must occur simultaneously with the act of sexual

penetration. The state contends that the violence and the subsequent injuries to

the victim were an integral part of the rape incident. We agree.



        In Locke v. State, 771 S.W.2d 132 (Tenn. Crim. App. 1988), this Court

addressed the meaning of “accompanied by” as used in the aggravated rape

statute. In Locke, the defendant raped the victim and then went outside the

victim’s apartment. Id. at 133-34. The victim screamed at the defendant

through the apartment window. Id. at 134. The defendant then went to the

window and tried to open it. Id. The victim, thinking that the defendant was

going to reenter the apartment, jumped from a ledge outside of her bedroom

window and injured her back. Id. On appeal, the defendant argued that the

victim’s injuries did not accompany the rape. Id. at 136. This Court said that the

phrase “accompanied by one of the following circumstances” as used in the

aggravated rape statute does not mean that the requisite personal injury must be

caused or inflicted for the purpose of making the victim submit to the unlawful



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sexual penetration, or while the accused unlawfully sexually penetrates the

victim. Id. The Court stated that “the phrase was intended to encompass acts

committed in association with the unlawful sexual penetration, whether the acts

occur before, during or after the actual sexual penetration unless otherwise

limited by the Act.” Id.



       The record in the case contains evidence from which the jury could have

found that the rape was “accompanied by” bodily injury. The victim testified that

the appellant was inside her house for approximately thirty-five to forty minutes.

The victim testified that the appellant entered the house, hit her with his fist, and

knocked her to the ground. She testified that the appellant dragged her into the

kitchen to hang up the phone. She testified that he beat her again, dragged her

into the living room by her hair, knocked her to the floor, and raped her. When

the police came, the appellant pulled the victim to the window, pulled her back

into the living area, pushed her on the floor, and raped her again. Memphis

police officer Glenda Holmes testified that she saw the appellant with his hand

around the victim’s neck and his forearm pushed up against it. The victim

testified that the appellant choked her, pulled her hair, and threw her around the

house. She testified as to scrapes on her face and neck, a sore throat, a sore

back, and a swollen and sore jaw. The examining nurse found small abrasions

on the victim’s face and nose. All of her injuries occurred in association with the

two rapes. Several of the victim’s injuries were inflicted for the purpose of

making her submit to unlawful sexual penetration. We note that the injuries

suffered by the victim were bodily injuries as defined by Tennessee Code

Annotated § 39-11-106(a)(2) (1991). See State v. McPherson, 882 S.W.2d 365,

369 (Tenn. Crim. App. 1994).



   ADMISSIBILITY OF THE APPELLANT’S OUT-OF-COURT STATEMENT




                                         -5-
        The appellant next argues that the trial court erred in refusing to permit

the appellant’s employer, Joe Pogue, to testify about a statement made by the

appellant on the morning of the offense. Mr. Pogue would have testified that the

appellant said that his ex-wife called and wanted him to come to her house to

see his daughter. The appellant testified that his ex-wife called him at work on

the morning of the offense and asked him to come to her house to talk about

their daughter. The victim denied that she called the appellant.



        The state objected to Mr. Pogue’s proffered testimony on the basis that

the statement was hearsay. The appellant argued that the statement was

offered to prove that the appellant made the statement to Mr. Pogue and not for

the truth of the matter asserted. The trial court held that the appellant’s

statement to Mr. Pogue was inadmissible hearsay. The court, however, allowed

Mr. Pogue to testify that he received a phone call from a female who asked to

speak to the appellant, and, that shortly after the phone call, the appellant left

work.



        Hearsay is defined as a statement other than one made by the declarant

while testifying at trial offered in evidence for the truth of the matter asserted.

Tenn. R. Evid. 801. Citing State v. Brown, 836 S.W.2d 530 (Tenn. 1992), the

appellant argues that the statement was offered to prove that the statement was

made and not for its truth. In Brown, the defendant, Mack Brown, was charged

with the murder of his young child. The child died from aspiration of his own

vomit caused by cerebral edema. Id. at 534. On appeal, the defendant argued

that the trial court erred in allowing the testimony of witnesses who said that the

defendant and his wife had told them that the child sustained his injuries in a fall

down stairs. Id. at 550-51. The Court said that the statements were relevant,

not because of their specific content, but because their very existence indicated

that an attempt was made to explain away the source of the child’s injuries. Id.

at 551. The Court further said that a statement introduced to prove only that it



                                          -6-
was made, regardless of its truth or falsity, does not violate the rule against

hearsay. Id.



       In the case at bar, the court held that the appellant’s statement was

hearsay. The court found that the fact that the appellant made the statement

was not relevant to any material issue at trial. The appellant did not identify in

the trial court the material issue of fact to which the act of making the statement

is relevant. Accordingly, we affirm the trial court’s exclusion of the statement.



                          CONSECUTIVE SENTENCING



       Finally, the appellant argues that the trial court erred in imposing

consecutive sentencing. The court sentenced the appellant as a Range II

offender to ten years for aggravated burglary and forty years for aggravated rape

to be served consecutively. Tennessee Code Annotated § 40-35-115(b) (1990)

allows a court to impose consecutive sentencing if the evidence supports any

one of several criteria set forth in that statute. The court imposed consecutive

sentencing in this case by finding evidence of two criteria: (1) the appellant is an

offender whose record of criminal activity is extensive, and (2) the appellant is a

dangerous offender whose behavior indicates little or no regard for human life,

and no hesitation about committing a crime in which the risk to human life is

high. Tenn. Code Ann. § 40-35-115(b)(2) & (4).



       When an appellant challenges the manner of service of a sentence, this

Court reviews the evidence de novo with a presumption that the determinations

of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The

presumption of correctness is conditioned upon an affirmative showing 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). We find

that the trial court considered the sentencing principles.



                                         -7-
         Our review consists of an analysis of the evidence at the sentencing

hearing, the presentence report, the principles of sentencing, the arguments of

counsel, the nature and characteristics of the offenses, mitigating and

enhancement factors, the defendant’s statements, and the defendant’s potential

for rehabilitation or treatment. Tenn Code Ann. §§ 40-35-102 (Supp. 1994), -103

(1990), -210 (Supp. 1992).



         The record reveals that the appellant was convicted of involuntary

manslaughter in 1974; robbery in 1986; criminal trespass in 1991; attempted

rape in 1993; and aggravated burglary in 1993. Most, if not all of these

convictions, were based on guilty pleas. The victim in the present case was also

the victim of the criminal trespass, the attempted rape, and the aggravated

burglary.



         Additionally, the appellant was convicted of driving under the influence in

1988 and again in 1989, and disorderly conduct in 1990. The appellant violated

his probation in 1989.



         The statute authorizing consecutive sentencing was taken in large part

from Gray v. State, 538 S.W.2d 391 (Tenn. 1976). Persistent offenders, those

previously convicted of two or more felonies or one felony and two

misdemeanors, qualified for consecutive sentences. So did the multiple

offender, whose record of criminal activity was deemed extensive. Id. at 391.

The evidence supports the trial court’s finding that the appellant’s record of

criminal activity is extensive. See generally State v. Marshall, 888 S.W.2d 786

(Tenn. Crim. App. 1994); State v. Chrisman, 885 S.W.2d 834 (Tenn. Crim. App.

1994).



         The evidence supports the trial court’s finding that consecutive sentences

were necessary to protect the public from further criminal conduct by the



                                          -8-
appellant. The appellant’s record of criminal activity is extensive, he has

repeatedly victimized his ex-wife, and he has no respect for authority. The

appellant knew that the police were present, yet he continued to rape his ex-wife.

Lastly, the trial court found that the extended sentence was reasonably related

to the severity of the offenses committed. The appellant broke into his ex-wife’s

home and raped her twice. W e find no error with the imposition of consecutive

sentences in this case.



       The appellant also argues that the trial court erred in finding that he is a

dangerous offender. Tennessee Code Annotated § 40-35-115(b) (Supp. 1990)

allows a court to impose consecutive sentencing if the evidence supports any

one of several criteria set forth in that statute. The appellant’s record of

extensive criminal activity alone is a sufficient basis upon which to impose

consecutive sentences in this case. Hence, the resolution of the dangerous

offender status is not determinative to this appeal’s outcome.



       We do conclude that the appellant fits the bill of a dangerous offender.

Given all factors of this appellant’s background and these crimes, extended

sentences are necessary to protect the public; and consecutive sentences

reasonably relate to the severity of the offenses committed. See State v.

Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995).



                                               ______________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




_____________________________
DAVID G. HAYES, Judge




_____________________________
JOE G. RILEY, Judge



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