         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     July 17, 2002 Session

               STATE OF TENNESSEE v. FREDERICK CORLEW

                  Direct Appeal from the Circuit Court for Dickson County
                            No. CR5148     Allen Wallace, Judge



                   No. M2001-00842-CCA-R3-CD - Filed November 1, 2002


The defendant was convicted of aggravated robbery, attempted aggravated rape, both Class B
felonies, and theft, which the trial court merged with the aggravated robbery conviction. The trial
court sentenced the defendant as a Range II, multiple offender to fifteen years for aggravated robbery
and twenty years for attempted aggravated rape. The sentences were imposed consecutively. The
defendant argues on appeal that the evidence is insufficient to support a conviction of aggravated
robbery because the victim’s belief was unreasonable that the defendant was armed; the evidence
is insufficient to support a conviction of attempted aggravated rape because the victim learned that
the defendant was, in fact, unarmed prior to the rape; and his sentence of thirty-five years is
excessive. We affirm the judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES
CURWOOD WITT, JR., JJ., joined.

Merrilyn Feirman, Nashville, Tennessee; William B. Lockert, III, District Public Defender; and
Christopher L. Young, Assistant Public Defender, for the appellant, Frederick Corlew.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        During the victim’s May 30, 2000, overnight shift at the Par-Mart on Highway 46 in Dickson
County, the defendant, Frederick Corlew, entered the store six times. The first five times involved
the defendant’s browsing, buying a beer, and making small talk with the victim, who was the only
employee working at the time. During these times, both of the defendant’s hands were in plain view.
However, on the sixth time, just before 1 a.m., the defendant hurriedly grabbed some merchandise
and placed it on the counter as if to make a purchase, keeping his right hand in his pocket. There
were no other customers in the store. The defendant then abruptly made his way behind the counter
and forced the victim to open the cash register. He proceeded to stuff bills and coins in his left
pocket with his left hand while continuing to hold his right hand in his right pocket in such a way
as to make it appear that he was armed. According to the victim’s trial testimony concerning the
defendant’s right hand, “I didn’t know whether it was a gun or knife, but it appeared to be some type
of weapon.” The victim further testified that the defendant had something “bulky enough that I
thought it was some type of weapon.”

        Immediately following the robbery, the defendant directed the victim to Par-Mart’s back
room where he ordered her to sit in a sink. He twice told the victim to pull down her pants. She
refused and the defendant proceeded to take his penis out of his pants and ordered the victim to
“suck on it until it came in [the victim’s] mouth.” It was then that the victim first saw the
defendant’s right hand and realized that he did not have a weapon. However, because of fear and
the vulnerable position she was in, the victim unwillingly performed oral sex on the defendant. After
about a minute, the defendant, unable to get an erection or ejaculate, withdrew his penis from the
victim’s mouth and told her “now I’m going to have to kill you.” After threatening the victim, the
defendant told her to stay in the back room for twenty minutes. The victim then got out of the sink
and called the police. The defendant does not dispute that he raped the victim.

         Officer Scott Hull of the Dickson Police Department testified that he was on duty and
responded to the call regarding the robbery at the Par-Mart, which included a description of the
perpetrator and his clothing. Immediately, he began looking for a person matching that description.
As he was driving in the vicinity of the Par-Mart, where the crime had occurred, he spotted a person
later identified as the defendant “in a driveway just off of Highway 47 East walking in the driveway,
in a field towards it, around a trailer.” He and another officer took the defendant into custody,
recovering from him approximately $198.00. After the serial numbers of the bills had been recorded,
he returned the currency to Laura Diaria, the manager of the Par-Mart. She testified that the store
kept a record of the serial number of a two-dollar bill which was maintained in each cash register
at the store. Comparing the serial number of a two-dollar bill recovered from the defendant with the
record of the bill kept permanently in their cash register, she testified that the numbers were
identical. Additionally, she said that, after reviewing their records, she determined that $198.00 had
been taken from the Par-Mart cash register by the robber.

       Detective Eddie Breeden of the Dickson Police Department testified that he responded to the
dispatcher’s call regarding the crime and interviewed the victim. He secured as evidence Par-Mart’s
videotape of the incident, and it was played for the jury during his testimony.

                                            ANALYSIS

       The defendant presents three issues on appeal:



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               I.   The evidence presented is insufficient to support a conviction
                    of aggravated robbery because the victim’s belief that the
                    defendant had a weapon was unreasonable.

                II. The evidence presented is insufficient to support a conviction
                    of attempted aggravated rape because the victim should have
                    known that the defendant did not have a weapon.

                III. The trial court imposed an excessive sentence.

                     I. Sufficiency of Evidence as to Aggravated Robbery

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

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

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). When the credibility of the witnesses was resolved by the jury in
favor of the State, the appellate court “may not reconsider the jury’s credibility assessments.” State



                                                  -3-
v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600, 150
L. Ed. 2d 757 (2001).

        The defendant was charged with aggravated robbery under Tennessee Code Annotated
section 39-13-402, which sets out its elements:

               (a) Aggravated robbery is robbery as defined in § 39-13-401:

               (1) Accomplished with a deadly weapon or by display of any article
               used or fashioned to lead the victim to reasonably believe it to be a
               deadly weapon; or

               (2) Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39-13-402(a) (1997).

        The defendant’s argument is that, based on the evidence presented, the victim’s belief that
he was armed was unreasonable and the State, therefore, could not prove that the robbery was
aggravated. In support of this argument, he relies on State v. Daryl Anthony Jemison, No. 01C01-
9303-CR-00107, 1994 Tenn. Crim. App. LEXIS 199, at *6 (Tenn. Crim. App., Nashville, Mar. 31,
1994) (holding that the jury could conclude “that the defendant possessed a deadly weapon from the
manner in which the defendant had his hand in the jacket and his threat to shoot [the victim]”), perm.
to appeal denied (Tenn. July 11, 1994), and State v. Aaron Cooper, No. 01C01-9708-CR-00368,
1998 Tenn. Crim. App. LEXIS 1015, at *10 (Tenn. Crim. App., Nashville, Sept. 29, 1998) (proof
sufficient as to aggravated robbery when defendant “held his hand in the waistband of his pants ‘as
if he had a weapon,’ and said to [the victim] ‘Don’t make me have to hurt you.’”). He argues that
the manner in which his hand was in his pocket was inconsistent with his having a weapon and,
coupled with his never explicitly threatening the victim, made unreasonable her belief that he was
armed.

         As we have stated, the surveillance videotape shows the defendant coming into the Par-Mart
five times over the half-hour period prior to the robbery. On each of these occasions, neither of the
defendant’s hands was in his pockets. On these first five visits, he alternately came to the counter
or walked in the store, sometimes sliding his right hand into his pants pocket seemingly to remove
change. However, on his sixth entry into the store that evening, in contrast to the other times, his
right hand was in his right pants pocket as he came in and remained there as he walked past the cash
register and even after he came around the counter and was standing with the victim, demanding her
to “open the register.” The defendant continued to keep his right hand in his pocket and, with his
left hand, removed bills from the cash register, apparently dropping some bills on the floor because
he was using only one hand to handle the money. His posture made it appear that he had something
in his right pocket. All this time, the victim, according to her testimony, was in fear of the defendant
and thought he had a weapon in his pocket. Given the fact that during his previous entries into the
store the defendant had exhibited both hands but, as he was robbing the victim, purposely kept his


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right hand in his pocket, even though it caused him to drop bills on the floor, we cannot conclude
that the victim’s belief that he had a deadly weapon was unreasonable. Accordingly, we affirm the
conviction for aggravated robbery.

                II. Sufficiency of Evidence as to Attempted Aggravated Rape

       The defendant argues that the evidence is insufficient to support a conviction of attempted
aggravated rape. The State responds that the evidence is sufficient to support the conviction.

       The defendant’s argument concerning the charge of attempted aggravated rape is essentially
the same as his argument concerning the charge of aggravated robbery: because he took his right
hand out of his pocket before the rape occurred, it was not reasonable for the victim to believe he
had a weapon. Unlike the aggravated robbery conviction, which the jury determined had been
completed, the defendant here was convicted only of attempted aggravated rape. Therefore, we must
consider whether there is sufficient evidence to prove all the elements of attempted aggravated rape.

       The relevant portions of the aggravated rape statute are as follows:

               (a) Aggravated rape is unlawful sexual penetration of a victim by the
               defendant or the defendant by a victim accompanied by any of the
               following circumstances:

               (1) Force or coercion is used to accomplish the act and the defendant
               is armed with a weapon or any article used or fashioned in a manner
               to lead the victim reasonably to believe it to be a weapon;

Tenn. Code Ann. § 39-13-502(a)(1) (1997).

       “Attempt” is defined in Tennessee Code Annotated section 39-12-101:

               (a) A person commits criminal attempt who, acting with the kind of
               culpability otherwise required for the offense:

               (1) Intentionally engages in action or causes a result that would
               constitute an offense if the circumstances surrounding the conduct
               were as the person believes them to be;

               (2) Acts with intent to cause a result that is an element of the
               offense, and believes the conduct will cause the result without further
               conduct on the person's part; or

               (3) Acts with intent to complete a course of action or cause a result
               that would constitute the offense, under the circumstances


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                 surrounding the conduct as the person believes them to be, and the
                 conduct constitutes a substantial step toward the commission of the
                 offense.

                 (b) Conduct does not constitute a substantial step under subdivision
                 (a)(3) unless the person's entire course of action is corroborative of
                 the intent to commit the offense.

                 (c) It is no defense to prosecution for criminal attempt that the
                 offense attempted was actually committed.

Tenn. Code Ann. § 39-12-101 (1997).

        In order to convict the defendant of attempted aggravated rape, the State had to prove that
the defendant intended to engage in unlawful sexual penetration of the victim using force or coercion
with an article used or fashioned to lead the victim to reasonably believe it to be a weapon and that
he took a substantial step to commit the offense.

         Believing the defendant was armed with a weapon, the victim complied with his order and
sat in a small “mop sink or drainage sink,” the basin of which appears to be only a few inches higher
than the floor, with the rim being less than a foot high. She testified that “he already had me at an
angle where I would have had a difficult time getting out of” before she realized that he did not have
a weapon. Only after she refused to pull down her pants did the defendant remove his right hand
from his pocket to take his penis out of his pants. Thus, we conclude that the evidence is sufficient
with respect to the aggravating element of the crime for the same reasons articulated in the
aggravated robbery analysis: pretending to be armed, the defendant took the victim to the back part
of the store and placed her in a low sink, in such a position that it would have been difficult to resist
him. From the time the defendant robbed the store until after he had made the victim sit in the sink,
nothing had happened to make unreasonable her belief that the defendant was armed. By this action,
the defendant had taken the substantial step necessary to constitute criminal attempt. “Because of
the infinite variety of factual situations that can arise, subdivision (a)(3) leaves the issue of what
constitutes a substantial step for determination in each particular case.” Tenn. Code Ann. §
39-12-101(a)(3), Sentencing Commission Cmts. In taking a substantial step, the defendant is not
required to “actually begin some act that would approach sexual penetration.” State v. Fowler, 3
S.W.3d 910, 912 (Tenn. 1999) (stating that a payment to an undercover police officer to procure
underage sex is sufficient to qualify as a “substantial step” for an attempted statutory rape
conviction). By forcing the victim into a vulnerable position1 and twice ordering her to remove her
pants, we conclude that a trier of fact could find that defendant’s conduct constituted a substantial
step towards the commission of aggravated rape. Furthermore, there was nothing about the



        1
          The trial court noted during the sentencing hearing that the position the defendant forced the victim into
rendered her “helpless” due to her weight and “meek” physical condition.

                                                        -6-
defendant’s entire course of action that was not corroborative of his intent to commit the offense.

       We conclude that a rational jury could find that there was sufficient evidence to prove all the
elements of attempted aggravated rape beyond a reasonable doubt. Accordingly, the conviction for
attempted aggravated rape is affirmed.

                                          III. Sentencing

       The final claim the defendant raises on appeal is whether the trial court imposed an excessive
sentence, both as to the length of the sentences and the fact they are to be served consecutively.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to the trial
court’s determination of controverted facts as the trial court's determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App. 1987).

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

       Criminal sentences are imposed pursuant to Tennessee Code Annotated section 40-35-210.
That statute reads, in pertinent part:

               (e) Should there be enhancement and mitigating factors for a Class
               B, C, D or E felony, the court must start at the minimum sentence in
               the range, enhance the sentence within the range as appropriate for


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               the enhancement factors, then reduce the sentence within the range as
               appropriate for the mitigating factors.

Tenn. Code Ann. § 40-35-210(e) (Supp. 1999).

        The sentencing guidelines state that subsection (e) “requires a weighing process based on the
merits of the various enhancement and mitigating factors.” See id. § 40-35-210(e) (1997),
Sentencing Commission Cmts. Further, “the weight to be afforded an existing factor is left to the
trial court’s discretion so long as the court complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record.” State v. Boggs, 932 S.W.2d
467, 475-76 (Tenn. Crim. App. 1996) (citations omitted).

         The defendant was sentenced as a Range II, multiple offender. For the offenses of which he
was convicted, aggravated robbery and attempted aggravated rape, both Class B felonies, the
possible sentence for the defendant as to each offense was not less than twelve nor more than twenty
years. Tenn. Code Ann. § 40-35-112(b)(2) (1997). Thus, as to the aggravated robbery conviction,
the trial court sentenced the defendant to three years more than the minimum sentence in the range,
and, as to the attempted aggravated rape, the defendant was sentenced to twenty years, the maximum
sentence.

        In sentencing the defendant, the trial court considered the sentencing principles and relevant
facts and circumstances. Thus, our review is de novo with a presumption of correctness. Ashby, 823
S.W.2d at 169.

       In assessing this issue as to the length of the defendant’s sentences, we note first that he has
such an extensive criminal record that it is difficult to determine precisely even the number of
convictions which he has amassed. However, it appears that he has, at least, eleven prior felony
convictions: eight convictions for burglary third degree in 1980, 1981, 1983, 1984 (two
convictions), 1985, 1987, and 1990; two convictions for petit larceny, one in 1984 and one in 1989;
and one conviction for theft, $1,000 to $10,000, in 1993. Additionally, he had five misdemeanor
convictions: three convictions for theft, two in 1994 and one in 1995; possession of cocaine in 1995;
and criminal impersonation in 1995.

         In sentencing the defendant to fifteen years as a Range II offender for aggravated robbery,
the trial court recited the defendant’s long list of convictions, beginning when he was twenty, and
occurring on a regular basis since then, “[s]o since twenty years old, he’s been just constant, just
constantly in and out of the court system. So there’s no question that he’s had an extensive criminal
record.” As a result of the defendant’s extensive record of prior convictions, the court applied
enhancement factor (1), as well as enhancement factors (8), the defendant had a history of
unwillingness to comply with terms of release into the community, and (9), the defendant “possessed
or employed a firearm . . . during the commission of the offense.” See Tenn. Code Ann. § 40-35-
114(1), (8), (9) (1997). The trial court determined that one mitigating factor was applicable, that the
defendant functioned in the low range of intelligence, but afforded little weight to this factor.


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        The defendant argues on appeal that only enhancement factor (1) was applicable and that the
trial court should have applied as mitigating factors that the defendant’s conduct neither caused nor
threatened serious bodily injury and that he suffers from a “severe mental disability.”

       We now will consider these arguments.

        We first will review the sentence imposed as the result of the aggravated robbery conviction.
As we have stated, because the defendant has a very extensive record of convictions for both felonies
and misdemeanors, the trial court correctly applied enhancement factor (1), that the “defendant has
a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range.” Tenn. Code Ann. § 40-35-114(1) (1997). While it appears from
the presentence report that the defendant committed burglary third degree in 1985 while on release,
through parole or a suspended sentence, from a 1983 burglary third conviction, the record is not
sufficiently clear as to allow us to do other than surmise this was the case. Accordingly, we conclude
that enhancement factor (8), that the defendant “has a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community,” was not applicable. Tenn.
Code Ann. § 40-35-114(8) (1997). The State concedes that enhancement factor (9), that the
“defendant possessed or employed a firearm . . . during the commission of the offense,” Tenn. Code
Ann. § 40-35-114(9), was inapplicable, and we agree.

        As for mitigating factors for the aggravated robbery conviction, the trial court applied as a
factor that the defendant operated in the low range of intelligence. The defendant argues that the trial
court should also have applied as a mitigating factor that his “conduct neither caused nor threatened
serious bodily injury.” Tenn. Code Ann. § 40-35-113(1) (1997). We note that the victim testified
that she complied with the defendant during most of the episode because she believed that he was
armed, so, to this extent, she felt threatened. Even if this factor was inapplicable, the trial court
clearly was within its discretion in affording great weight to the defendant’s twenty-year record of
convictions. Thus, we cannot conclude that the defendant was sentenced improperly for the
aggravated robbery conviction.

        As to the attempted aggravated rape conviction, the trial court applied those enhancement
factors which had been applied to the aggravated robbery conviction, as well as factors (4), that the
victim “was particularly vulnerable because of age or physical or mental disability”; and, in the
alternative, factor (5), that the “defendant treated or allowed a victim to be treated with exceptional
cruelty during the commission of the offense”; or factor (7), the “offense involved a victim and was
committed to gratify the defendant’s desire for pleasure or excitement.” Tenn. Code Ann. § 40-35-
114(4), (5), (7) (1997). The defendant argues that only enhancement factor (1) was applicable.

        We agree with the defense that, while enhancement factor (1) was applicable, the remainder
of the factors were not. Factor (4), that the victim was particularly vulnerable, is, by its language,
applicable when the victim is vulnerable because of age, physical, or mental disability. The fact that
the victim was put in a position where it was difficult for her to resist or fight back does not make
this factor applicable. See State v. Dean, 76 S.W.3d 352, 378 (Tenn. Crim. App. 2001), perm. to


                                                  -9-
appeal denied (Tenn. 2002). As for the application of enhancement factor (5), that the victim was
treated with exceptional cruelty, we conclude, likewise, that this factor was inapplicable. Although
any rape certainly is cruel and results in injury to the victim, this factor is applicable only when the
treatment is “exceptional.” See State v. Alexander, 957 S.W.2d 1, 6 (Tenn. Crim. App. 1997)
(“exceptional cruelty” factor applicable when defendant “stabbed [the victim] several times in the
face, including cuts through both eyelids, stabbed her twice in her body, and beat her in the head and
arms with [a] claw hammer”). Likewise, as to the application of enhancement factor (7), the offense
was “committed to gratify the defendant’s desire for pleasure or excitement,” we concur with the
defendant’s claim that this factor was inapplicable. The State’s proof did not include statements by
the defendant to the victim or evidence that he had fondled her so as to make this factor applicable.
See State v. Arnett, 49 S.W.3d 250, 262 (Tenn. 2001). The trial court based the application of this
factor upon the defendant, at age 21, having asked a psychiatric hospital nurse, “How do a man
around here get with a woman and get him a little bit?” We cannot conclude that an isolated
comment made by the defendant years earlier at a hospital justifies application of this factor. Thus,
we agree with the defense that enhancement factor (7) was not applicable.

        In sum, as to the conviction for attempted aggravated rape, enhancement factor (1), to which
the court attached great weight, clearly was applicable. The only mitigating factor applied by the
court was the fact of the defendant’s limited intelligence. The defendant argues that the trial court
should have applied as a mitigating factor that the defendant “did not cause nor threaten to hurt the
victim.” This factor, if applicable, would be entitled to little weight. We cannot conclude that the
trial court erred in sentencing the defendant to twenty years, the maximum sentence for this offense,
given his twenty years of steady criminal activity.

        We now will determine whether the trial court erred in imposing consecutive sentences for
these convictions.

        As a general rule, consecutive sentences are imposed at the discretion of the trial court upon
its consideration of one or more of the following statutory criteria:

                (1) The defendant is a professional criminal who has knowingly
                devoted such defendant’s life to criminal acts as a major source of
                livelihood;

                (2) The defendant is an offender whose record of criminal activity
                is extensive;

                (3) The defendant is a dangerous mentally abnormal person as
                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;



                                                 -10-
               (4) The 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) The 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) The defendant is sentenced for an offense committed while on
               probation; or

               (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b) (1997). These criteria are stated in the alternative; therefore, only
one need exist to support the appropriateness of consecutive sentencing. As the trial court observed,
the defendant is “a professional criminal. He’s devoted most of his adult life to acts of crime. He
has an extensive history of criminal activity.” That statement, which is supported by the facts and
record, suffices to satisfy criteria (1) and (2) required to justify consecutive sentences.

                                          CONCLUSION

       We conclude that the defendant has failed to demonstrate that the evidence was insufficient
to support his convictions of aggravated robbery and attempted aggravated rape. Additionally, we
conclude that the trial court’s sentence was not excessive. We affirm the judgments of the trial court.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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