         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 22, 2004

                   STATE OF TENNESSEE v. LUIS CASTANON

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 98-C-2056    Seth Norman, Judge



                     No. M2003-01491-CCA-R3-CD - Filed March 8, 2005


Following a jury trial, Defendant, Luis Castanon, was charged with and convicted of four counts of
aggravated rape and one count of aggravated burglary. He was sentenced to twenty years for each
of the aggravated rape offenses and three years for aggravated burglary. Three of the aggravated rape
sentences were ordered to be served consecutively to each other, with the remaining aggravated rape
sentence and the aggravated burglary sentence to be served concurrently, for an effective sentence
of sixty years. On appeal, Defendant argues that the evidence presented at trial was insufficient to
support the jury's verdict and that the trial court's imposition of consecutive sentences was improper.
We conclude that the evidence was sufficient to support the Defendant's convictions and hold that
the imposition of consecutive sentencing was appropriate. Accordingly, the judgments of the trial
court are affirmed.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Geoffrey Coston, Kingston Springs, Tennessee, (on appeal), and Ross E. Alderman, District Public
Defender; John D. Wiethe, Assistant Public Defender; and Amy Dawn Harwell, Assistant Public
Defender, Nashville, Tennessee, (at trial), for the appellant, Luis Castanon.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; Pamela Sue Anderson, Assistant District
Attorney General; and Lisa Angela Naylor, Assistant District Attorney General, for the appellee, the
State of Tennessee.
                                             OPINION

I. Background

        At Defendant's trial, the victim testified that on May 17, 1998, around two-thirty in the
morning, she came home to her apartment alone after an evening out. She fixed herself breakfast
and watched television for about twenty minutes before going to her bedroom. When she put her
hand on her bedroom door, two men with nylon pantyhose and underwear on their heads opened the
bedroom door from inside and grabbed her, telling her not to scream. The taller of the two men had
a knife. The victim asked what they wanted and one of them replied, "we just want cash." She told
them she had cash in her car and told them where her car keys were located. They answered, "No,
we just want to f... you." After a struggle, the two men wrestled the victim to the floor, ripping her
clothes. While the taller man held her down and held the knife to her throat, the shorter one removed
the victim's shoes and clothes. Over the course of the next two hours the two men repeatedly
penetrated the victim vaginally, anally, and orally. During the episode, the men made the victim
keep her eyes closed, telling her, "Don't see." The victim tried to talk to the men, in an attempt to
"make it more personal so they would not hurt me." At one point, the men allowed the victim to
smoke a cigarette, and the shorter of the two men went to the victim's refrigerator, asking her if she
had any alcohol. He found some grape juice and "put the bottle in [the victim's] face, and asked [her]
if he could have some." The two men continued to orally penetrate the victim and the shorter of the
two men ejaculated in the victim's hair and on her neck. Soon after that, the taller of the two men
stated he was "going to clean up around here" and forced the victim, at knife-point, to get in the
shower and began to wash her with his hands. She testified that she was "very conscious of the
evidence that was on my left side of my face and my neck, and so I . . . kept my head out of the
water." The fire alarm went off and the two men disappeared, leaving the victim standing in the
shower. After approximately one minute, the victim opened her eyes and ran to her phone. When
she was unable to get a dial tone, she ran to her neighbor's apartment. Her neighbor called the police.
That evening, the victim was shown a photo lineup which included a photograph of the Defendant,
but she was unable to positively identify anyone.

       At trial, the State introduced evidence from the police investigation that implicated
Defendant. Fingerprints lifted from the grape juice bottle found in the victim's apartment matched
Defendant's prints. Police determined that the victim's bedroom window, with the screen cut open,
had been the attackers' point of entry. Fingerprints taken from the inside of this windowsill also
matched Defendant's prints. The victim told police her CD player and a George Winston CD were
missing from her bedroom. Police found this CD and CD player at the home of Defendant's friend.
A DNA test revealed that the DNA of semen collected from the victim's neck and hair matched
Defendant's DNA. The Tennessee Bureau of Investigation determined that the semen's DNA profile
would be common in one out of every 99,000 Caucasians, and in one out of every 110,000 African
Americans.

        Defendant testified that he was present in the victim's apartment while she was being raped,
but he did not participate. According to Defendant, he had spent the day drinking at a local sports


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bar. That evening he met up with a friend. The two of them drove around, having several more
beers on the road and about two more beers back at the sports bar. Defendant sniffed some cocaine
to help stay awake, but still fell asleep in his friend's vehicle. When he woke up, he followed his
friend into the front door of an apartment. Believing it was his friend's apartment, Defendant went
into a bedroom and fell asleep. When he woke up, he saw his friend's brother sitting in the other
bedroom. Defendant went to the refrigerator to get something to drink and when he turned around
he noticed his friend engaged in oral sex with a naked woman several feet away. Defendant sat at
the table for a few minutes and watched until he noticed his friend had a knife in his hand. At that
point he became very upset and afraid, and tried to leave. When his friend took the victim at knife-
point into the bathroom, Defendant set off the fire alarm with his lighter and fled through the victim's
bedroom window.

        Based on this proof, the jury found Defendant guilty on all counts: four counts of aggravated
rape and one count of aggravated burglary. At the sentencing hearing, the court determined that
Defendant's sentences should be served consecutively because he committed these offenses while
on probation. Defendant was sentenced to serve twenty years for each aggravated rape count and
three years with regard to the aggravated burglary count. Counts one, two, and three were ordered
to be served consecutively with each other, but concurrently with counts four and five, for an
effective sentence of sixty years.

II. Analysis

       A. Sufficiency of the Evidence

        Defendant claims that the evidence does not support the convictions, and the jury should have
found him not guilty. Specifically, Defendant asserts that because he presented a plausible
alternative version of the facts, no rational juror could have found him guilty beyond a reasonable
doubt.

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the finding
of the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App. 1995).


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        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, "[a] guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State." 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        In this case, there is no dispute that the victim's apartment was burglarized and that the victim
was in fact raped in her apartment by two men. The defendant does not dispute that he was present
in the victim's apartment during the rapes. At trial, Defendant contested his guilt by claiming that
while he witnessed another man raping the victim, he himself was not a participant in the rapes.
Instead, he claimed that he entered through the front door of the apartment and fell asleep in a
bedroom, that there were two other men in the apartment who committed the rapes, and that he was
responsible for setting off the fire alarm that caused the perpetrators to flee.

        The victim testified in detail about the events that took place during the two hours she was
being raped. During her testimony, she described how the shorter of the two attackers put a grape
juice bottle in her face and requested permission to "have some". Defendant's fingerprints were
found on the grape juice bottle, as well as on the window sill of the victim's bedroom window, which
was the apparent point of entry. Also, the victim testified that the shorter of the two men ejaculated
on her neck and in her hair after forcing her to perform oral sex on him. DNA samples taken from
the victim's neck and hair were consistent with DNA samples taken from the Defendant. The State
introduced photographs during the trial, including a photograph of the neatly-made bed which
Defendant claimed he had slept in while the victim was being raped.

        Viewing the evidence in a light most favorable to the state, we conclude a rational trier of
fact could find beyond a reasonable doubt that Defendant was an active participant in the burglary
of the victim's apartment and the rapes that followed. Accordingly, the evidence is sufficient to
support the convictions for aggravated burglary and aggravated rape.

        B. Consecutive Sentencing

        Defendant challenges the trial court's imposition of consecutive sentences. The trial court
imposed three consecutive sentences of twenty years each, and two concurrent sentences of twenty
years and three years, for an effective sentence of sixty years. The trial court premised consecutive
sentencing upon a finding that the Defendant was on probation for DUI at the time the offenses were
committed. See Tenn. Code Ann. § 40-35-115(b)(6). Defendant argues that (1) the record does not
clearly demonstrate that Defendant was actually on probation at the time these offenses were


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committed and (2) imposing an effective sixty-year sentence solely because the offenses were
committed while on probation for a misdemeanor offense is inconsistent with general principals of
sentencing.

        A defendant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a
de novo review of the record with a presumption that the trial court’s determinations are correct
when a defendant appeals the length, range, or manner of service of his or her sentence. Tenn. Code
Ann. § 40-35-401(d). The presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). When the trial court follows
the statutory sentencing procedure and gives due consideration and proper weight to the factors and
principles relevant to sentencing, this court may not disturb the sentence. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        Generally, it is within the discretion of the trial court to impose consecutive sentences if it
finds by a preponderance of the evidence that at least one of following statutory criteria apply:

       (1) [t]he defendant is a professional criminal who has knowingly devoted such
           defendant's life to criminal acts as a major source of livelihood;

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

       (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
           competent psychiatrist who concludes as a result of an investigation prior to
           sentencing that the defendant's criminal conduct has been characterized by a
           pattern of repetitive or compulsive behavior with heedless indifference to
           consequences;

       (4) [t]he defendant is a dangerous offender whose behavior indicates little or no
           regard for human life, and no hesitation about committing a crime in which the
           risk to human life is high;

       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
           sexual abuse of a minor with consideration of the aggravating circumstances
           arising from the relationship between the defendant and victim or victims, the
           time span of defendant's undetected sexual activity, the nature and scope of the
           sexual acts and the extent of the residual, physical and mental damage to the
           victim or victims;

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



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       (7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

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

         Defendant argues that the record is not clear that the defendant was in fact on probation at
the time this offense was committed. From the transcript of the sentencing hearing, it appears that
the trial court considered and relied upon a certified copy of a warrant in making its findings. The
court stated:

       [W]ith regard to consecutive sentencing, the Court, of course, has factors that it must
       look at. There can be no question that under 40-35-115 subsection (b), (6) must
       apply, the defendant is sentenced for an offense committed while on probation.
       There is no question before me in the name of Luis Castanon, the copy of the warrant
       submitted by the State that shows that on January the 9th, 1997, Mr. Castanon was
       placed on probation, and that that probation was revoked on May 28th, 1998. The
       indictment in this case alleges, and a jury has found, that these offenses occurred on
       May 17th, which would be while the defendant was in fact on probation, according
       to the record that I have before me. So, that factor applies.

Neither the copy of the warrant nor the presentence report were made a part of the record on appeal.
It is the appellant's duty to prepare such a record and transcript necessary to convey a fair, accurate
and complete account of what transpired relative to the issues on appeal. Tenn. R. App. P. 24(b).
When the record is incomplete, and this Court is unable to review all of the evidence considered by
the trial court in setting a sentence, this Court is precluded from considering the issue. See State v.
Clifford Rogers, No. W2003-01375-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 302, *14 (Tenn.
Crim. App., at Jackson, April 1, 2004), perm. app. denied (Tenn. Oct. 4, 2004) (presentence report);
State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987) (search warrant and affidavit given
in support of the search warrant). We must presume that the trial court's ruling that Defendant was
on probation is correct. See Clifford Rogers, 2004 Tenn. Crim. App. LEXIS at *15; Cooper, 736
S.W.2d at 131.

        Assuming the trial court was correct in its finding that Defendant was on probation at the
time of the offense, we next address Defendant's contention that a court may not impose consecutive


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sentences based solely on Tennessee Code Annotated section 40-35-115(b)(6). Defendant insists
that the intent of section 40-35-115(b)(6) is to impose a sentence that is consecutive to a probation
violation, "not sentences that are consecutive to one another simply because the Defendant was on
probation." Furthermore, Defendant asks us to interpret Tennessee Code Annotated section 40-35-
115(b) as allowing consecutive sentences when factors (1), (2), (3), (4) or (5) apply, but not when
factors (6) or (7) are the only factors that apply. Defendant asserts that while factors (1), (2), (3), (4)
and (5) relate to the character of the individual that is repetitive, dangerous and not likely receptive
to rehabilitation, factors (6) and (7) are unrelated to the character of the individual or crime.
Defendant argues that to impose consecutive sentencing for multiple convictions solely because a
defendant committed an offense while on probation in accordance with factor (6) is "an illogical
extension of [Tennessee Code Annotated section] 40-35-115 and inconsistent with [general
principals of sentencing]." Defendant provides no case law in support of his argument.

          By its terms, the statute only requires that one of the 7 statutory factors be applicable in order
for the trial court to order consecutive sentencing. Tenn. Code Ann. § 40-35-115(b); see State v.
Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). Therefore, according to the language of the
statute, a court may order sentences to run consecutively even if the court finds by a preponderance
of the evidence that factor six is the only statutory factor applicable, so long as the aggregate
sentence complies with the general principles of sentencing. Furthermore, we hold that when a
defendant commits multiple offenses while on probation, the trial court is not limited to ordering the
defendant to serve a sentence consecutive to prior sentences. There is no requirement that a
defendant have additional sentences not yet fully served as a result of prior convictions for section
40-35-115(b)(6) to apply. It is within the discretion of the trial court to apply consecutive sentencing
if a defendant commits multiple offenses while on probation in accordance with section 40-35-
115(b)(6) in cases where, like this one, a defendant is convicted in one trial of more that one offense,
even if that defendant has fully served a prior sentence at the time of sentencing for the new offenses.
C.f. State v. Samuels, 44 S.W.3d 489, 494 n.3 (Tenn. 2001) (explaining that there is no statutory
provision limiting consecutive sentencing to related offenses or offenses stemming from the same
proceeding); compare also State v. Moore, 942 S.W.2d 570, 572-73 (Tenn. Crim. App. 1996)
(holding that a trial judge may order a new sentence to be served consecutively to the one for which
probation was previously granted, in contradiction to defendant's argument that Tenn. Code Ann.
§ 40-35-115 only applies to multiple convictions arising out of one proceeding and is not a basis for
ordering that new sentences be served consecutively to prior sentences). This is consistent with prior
decisions of this Court. See State v. Andre Anthony, No. W2002-01377-CCA-R3-CD, Tenn. Crim.
App. LEXIS 1108, *44 (Tenn. Crim. App. at Jackson, Dec. 30, 2003), perm. app. denied (Tenn. June
6, 2004) ("Moreover, dangerous offender status notwithstanding, the record supports the imposition
of consecutive sentencing based on Defendant's commission of the offense while on probation. . .
. It is necessary to find the presence of only one of the statutory categories listed in Tennessee Code
Annotated section 40-35-115(b)."); State v. Richard Cole, III, No. W2002-02826-CCA-R3-CD, 2003
Tenn. Crim. App. LEXIS 854, *17 (Tenn. Crim. App. at Jackson, Oct. 8, 2003), perm. app. denied
(Tenn. March 8, 2004) ("the defendant committed the offenses while on probation for two
misdemeanor offenses. This is an alternate basis upon which consecutive sentencing may be
premised."); State v. Hayes, 899 S.W.2d 175, 187 (Tenn. Crim. App. 1995) ("Although not


                                                    -7-
addressed by the state, we note that the fact that the defendant was on probation when these offenses
were committed renders him eligible for consecutive sentences. . . . However, we decline to impose
consecutive sentences."). The trial court did not err in ordering consecutive sentences based solely
on Defendant's committing these offenses while on probation.

        Having concluded the trial court was authorized to impose consecutive sentences, we now
examine the aggregate length of the sentences. As noted, the aggregate length must be "justly
deserved in relation to the seriousness of the offense[s]" and "be no greater than that deserved for
the offense[s] committed." State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing Tenn. Code
Ann. §§ 40-35-102(1) and -103(2)). Defendant was convicted of four counts of aggravated rape and
one count of aggravated burglary. He was ordered to serve three consecutive sentences of twenty
years each and two concurrent sentences of twenty years and three years, for an effective sentence
of 60 years. As a violent offender, Defendant must serve one hundred percent of each of the twenty-
year sentences imposed. Tenn. Code. Ann. § 40-35-501(i).

         The victim in this case was repeatedly raped at knife-point by two attackers over a period of
more that two hours. The two men broke into her home and waited for her, even waiting in her
bedroom for over twenty minutes after she returned home while the victim prepared and ate
breakfast, believing she was safe in the sanctity of her own home. Her attackers raped her over and
over, in tandem, vaginally, orally, and anally. The aggregate sentence was justly deserved in relation
to the seriousness of the offenses and was not greater than that deserved. Accordingly, we conclude
the trial court did not err in ordering the sentences to be served consecutively. This issue is without
merit.

                                          CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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