        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 21, 2011

             STATE OF TENNESSEE v. QUINCY BRYAN BANKS

                 Appeal from the Criminal Court for Davidson County
                    No. 2005-B-1079     Seth W. Norman, Judge


                No. M2010-02653-CCA-R3-CD - Filed August 17, 2011


The Defendant, Quincy Bryan Banks, was convicted by a Davidson County Criminal Court
jury of two counts of aggravated rape and one count of especially aggravated kidnapping,
class A felonies. He was sentenced as a violent offender to twenty years’ confinement for
each conviction. The kidnapping conviction was ordered to be served consecutively to the
rape convictions, for an effective forty-year sentence. On appeal, the Defendant contends
that the trial court erred by ordering consecutive sentences. We affirm the judgments of the
trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Quincy Bryan Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        This is an appeal of a resentencing. The facts of this case were stated by this court on
direct appeal:
                       In November 2004, [the victim] was employed as a
                “roving manager” with The Mattress Firm, a retail establishment
                with stores in the Nashville area. As roving manager, [the
                victim] would substitute for store employees at different stores
                on different days. On November 29, [the victim] was assigned
to the store in Belle Meade. At approximately 6:00 p.m. that
evening, the Appellant entered the store. [The victim] was alone
in the office area of the store, speaking on the telephone with
Connie Rademacher, an employee at another store location.
[The victim] informed Rademacher that she “didn’t have good
feelings about [the Appellant],” and Rademacher suggested that
she maintain an open connection by laying the phone down
without hanging up, which [the victim] did. [The victim] then
greeted the Appellant, who informed her that he needed to
purchase a mattress for his nephew. The two proceeded to the
“value area” of the store, and [the victim] showed him some
twin-sized mattresses. She returned to the office area to check
the price on a floor model mattress, and the Appellant followed.
At this point, the Appellant grabbed [the victim] from behind
and held a knife to her throat, telling her he would kill her if she
did not comply with his demands.


        The Appellant then proceeded to throw [the victim] to the
floor and ordered her to remove her pants. The victim tried to
stall the Appellant and began speaking loudly, hoping that
Rademacher would hear her through the open phone connection
and summon help. Upon realizing that they were visible from
the street because of the large glass windows, the Appellant
questioned the victim about rooms in the back of the store.
Upon seeing the open door to a small storage area, the Appellant
again held the knife to [the victim’s] back and forced her into
the room at the rear of the store. Once inside the room, the
Appellant pulled down his pants, grabbed the victim, and forced
her to perform oral sex on him. Afterwards, he forced her to lie
down on the floor and removed her pants, again threatening to
kill her if she resisted. The Appellant then proceeded to rape the
victim both vaginally and anally. During this time, the knife
either remained in the Appellant’s hand or was placed on the
floor nearby.


       Rademacher, becoming concerned after hearing [the
victim] say, “Give me back my glasses” and “I will go with
you,” called her district manager, who called 911. Officer

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             Robert Peterson responded to the scene to investigate a possible
             robbery. Upon entering the building, he noticed a pair of red
             shoes and a pair of eyeglasses on the floor in the office area, but
             he did not see anyone in the store. He proceeded to the rear of
             the store, where he heard a “commotion” and some movement.
             Peterson knocked on the door and heard a female ask for help,
             followed by a male voice saying that nothing was going on and
             to go away. Peterson then pushed open the door and observed
             the Appellant with no shirt on and his jeans partially unzipped
             and hanging from his hips. [The victim] was positioned on the
             floor wearing a red jacket and nothing else. Peterson drew his
             weapon and ordered the Appellant to kneel on the floor.
             Peterson observed a knife located directly in front of the
             Appellant when he knelt. The Appellant was then handcuffed
             and taken into custody.

                    Sergeant Twana Chick responded to the scene and spoke
             with [the victim], whom she described as “hysterical, extremely,
             extremely upset, just hardly able to answer questions.” The
             victim was taken to Nashville General Hospital, where a rape kit
             examination was conducted. The examination revealed red
             marks or scratches on the victim’s neck, back, arm, and thigh, as
             well as two small bruises on her abdomen. Moreover, stool was
             found in her vagina, which was consistent with her report of
             anal rape followed by vaginal rape, and blood was found in her
             rectum. Samples were collected and sent for DNA analysis.

                    The Appellant’s fingerprint was found on the knife, and
             DNA testing of an anal swab and [the victim’s] pantyhose
             matched the DNA of the Appellant. Several weeks later, [the
             victim] discovered she was HIV-positive, and testing revealed
             that the Appellant, who had not worn a condom during the
             rapes, was also HIV-positive.

State v. Quincy Bryan Banks, No. M2007-00545-CCA-R3-CD, Davidson County, slip op.
at 2-3 (Tenn. Crim. App. April 11, 2008), app. denied (Tenn. Aug. 25, 2008).

        This court affirmed the Defendant’s convictions but remanded for resentencing,
stating that



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              because Banks was sentenced under provisions of the June 7,
              2005 sentencing amendments for crimes committed in
              November 2004, without a waiver of his ex post facto
              protections as required by statute, remand for a new sentencing
              hearing is required. Furthermore, because the sentencing record
              fails to demonstrate the requisite considerations for the
              imposition of consecutive sentencing, the case is also remanded
              for reconsideration of that issue and for entry of corrected
              judgment forms in accordance with this opinion.

Quincy Bryan Banks, slip op. at 1. On remand, the Defendant did not execute an ex post
facto waiver and was resentenced pursuant to the pre-2005 sentencing law to twenty years’
confinement for each conviction. The kidnapping conviction was again ordered to be served
consecutively to the rape convictions, for an effective forty-year sentence. On appeal, this
court held that the trial court again failed to make the factual findings necessary to impose
consecutive sentences and remanded for resentencing, stating:

              This court previously determined that the trial court did not
              make the findings to support a “dangerous offender” basis for
              consecutive sentencing, and clearly no further findings in that
              regard were made upon remand.

              ...

                      We surmise from this court’s opinion in Quincy Bryan
              Banks that, at the time of the defendant’s original sentencing in
              this case, multiple cases of aggravated robbery were pending
              against him and that the possibility of a series of offenses was of
              concern to the court in imposing consecutive sentencing. As we
              pointed out, however, constitutional restrictions upon the
              pre-2005 sentencing law allowed judge-enhancement of
              sentences only when other criminal conduct had resulted in a
              conviction (unless the factual basis for such were admitted by
              the accused), and apparently at the time of the original
              sentencing the charges of aggravated robbery had not resulted
              in convictions. Although the constitutional restrictions upon the
              trial court’s setting the length of the defendant’s sentence under
              the pre-2005 sentencing law do not apply to the determinations
              of consecutive sentence alignment, see State v. Allen, 259
              S.W.3d 671, 688 (Tenn. 2008), the trial court on remand in this

                                              -4-
              case did not make any findings that the defendant committed the
              aggravated robberies; neither did it find that the charges had
              resulted in convictions.

                      We also infer that the trial court, in characterizing the
              defendant as dangerous, may have originally been concerned
              about the defendant’s knowing infection of the victim with the
              HIV virus. This court, however, pointed out that the trial court
              did not make a finding that the defendant knew about his HIV
              infection at the time the offenses were committed against the
              victim.

                      All in all, with respect to the issue of consecutive
              sentencing, we remain in the same procedural posture we were
              in at the time of remand. . . . Accordingly, we vacate the portion
              of the amended judgments that calls for consecutive sentence
              alignment, and we remand the case for the trial court to conduct
              such further sentencing hearings as either party may request and
              to make its findings in conformity with applicable law.

State v. Quincy Bryan Banks, No. M2009-00421-CCA-R3-CD, Davidson County, slip op.
at 8-9 (Tenn. Crim. App. April 14, 2010).

        The parties did not request a hearing on remand and did not present additional proof.
The Defendant did not execute an ex post facto waiver and was resentenced pursuant to the
pre-2005 sentencing law to twenty years’ confinement for each conviction. The kidnapping
conviction was again ordered to be served consecutively to the rape convictions, for an
effective forty-year sentence. With regard to the consecutive sentence, the trial court found
that the Defendant was a dangerous offender whose behavior indicated little or no regard for
human life and no hesitation about committing a crime in which the risk to human life was
high. The trial court stated:

                      The type of crimes committed in this case are inherently
              brutal in nature, as evinced from the physically and emotionally
              traumatic injuries inflicted upon the Victim. The fact that the
              Defendant utilized a knife and threatened the Victim with her
              life in this case weighs heavily in favor of determining that he
              is in fact a dangerous offender.




                                             -5-
The trial court noted that although no proof was presented to establish that the Defendant
knew he had HIV before committing the crimes in this case, the Defendant’s infecting the
victim with HIV added to its determination that the Defendant was a dangerous offender
because this court “did not explicitly rule out consideration of Defendant’s infection of the
Victim with HIV as an element in determining that he is a dangerous offender by causing
great bodily harm to the victim.” The trial court also noted that the Defendant pled guilty to
two counts of aggravated robbery before being resentenced.

       The trial court found that consecutive sentencing was reasonably related to the
severity of the crimes because the crimes were brutal in nature and caused the victim to
suffer permanent physical, psychological, and emotional damage. The court found that
consecutive sentencing was necessary to protect the public from further criminal acts by the
Defendant because the Defendant was also convicted for threatening victims with a knife
during a robbery and because “the fact that the Defendant is HIV-positive and has been
convicted of violent sexual offenses is of great concern to the public safety.” This appeal
followed.

       The Defendant contends that the trial court erred by ordering consecutive sentences.
He argues that a twenty-year sentence is sufficient to protect the public and that the trial
court’s reliance on his use of a weapon and infecting the victim with HIV during the crimes
was improper because aggravated rape already contemplates that a weapon was used or that
the victim suffered bodily harm. The State contends that the sentences were properly
imposed pursuant to Tennessee Code Annotated section 40-35-115(b)(4) (2003) and that the
Defendant failed to show that the trial court abused its discretion in imposing a partially
consecutive sentence. We agree with the State.

        We note that the Defendant’s offenses occurred in 2004. Because the Defendant did
not sign a waiver to be sentenced under the amended sentencing statute, our review is based
upon the pre-2005 version of the Sentencing Reform Act.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d) and -402(d) (2003). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).



                                             -6-
        However, “the presumption of correctness which accompanies the trial court’s action
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). In this respect, for the purpose of meaningful appellate review, the
trial court must place on the record its reasons for arriving at the final sentencing decision,
identify the mitigating and enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the mitigating and enhancement factors
have been evaluated and balanced in determining the sentence. State v. Jones, 883 S.W.2d
597, 599 (Tenn. 1994).


        Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, and (7) the potential for rehabilitation or treatment.
T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168.


       Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),
which states in pertinent part that the court may order sentences to run consecutively if it
finds by a preponderance of the evidence that a defendant “is a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about committing a
crime in which the risk to human life is high.” T.C.A. § 40-35-115(b)(4). To support the
consecutive sentencing of a dangerous offender, the proof must also establish that “the terms
imposed are reasonably related to the severity of the offenses committed and are necessary
in order to protect the public from further criminal acts by the offender.” State v. Wilkerson,
905 S.W.2d 933, 938 (Tenn. 1995). The decision to impose concurrent or consecutive
sentences is a matter left to the discretion of the trial court. State v. Blouvet, 965 S.W.2d
489, 495 (Tenn. Crim. App.1997) (citing State v. James, 688 S.W.2d 463 (Tenn. Crim. App.
1984)).


       The Defendant has failed to cite any authority to support his contention that his
infecting the victim with HIV and use of a weapon during the crimes did not support the trial
court’s finding that he was a dangerous offender. This court has upheld the imposition of
consecutive sentences when a defendant was found to be a dangerous offender based on the
use of a weapon and the circumstances of an aggravated rape. See State v. Baker, 956
S.W.2d 8, 18 (Tenn. Crim. App. 1997); see also State v. Davis, 825 S.W.2d 109, 113 (Tenn.
Crim. App. Aug. 27, 1991) (holding that a defendant’s use of deadly weapons and death



                                              -7-
threats to accomplish a previous offense, as well as the instant offenses of rape and
aggravated kidnapping, supported consecutive sentencing).


        The Defendant has not shown that the partially consecutive sentences imposed by the
trial court were improper. The record reflects that the Defendant grabbed the victim, placed
a knife to her throat, threw her to the floor, and raped her multiple times at knifepoint. He
repeatedly told the victim that he would kill her if she did not comply with his demands. The
Defendant’s actions caused the victim to suffer permanent physical and psychological harm.
In addition to this violent crime, the Defendant has committed other crimes while
brandishing a knife. The Defendant’s dangerous nature is reflected by his repeated use of
deadly weapons while committing crimes. This evidence supports the trial court’s finding
that the criteria provided in Tennessee Code Annotated section 40-35-115(b)(4) and
Wilkerson were applicable in the Defendant’s case and that consecutive sentencing was
proper. The Defendant is not entitled to relief.


       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
                                               ____________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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