            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                               MAY 1998 SESSION
                                                           August 25, 1998

                                                       Cecil W. Crowson
STATE OF TENNESSEE,             *                     Appellate Court Clerk
                                     C.C.A. # 01C01-9707-CR-00239

      Appellee,                 *    DAVIDSON COUNTY

VS.                             *    Hon. Seth Norman, Judge

KARL SHIELDS,                   *    (Two Counts of Rape of a Child)

      Appellant.                *




For Appellant:                       For Appellee:

Marian C. Fordyce, Attorney          John Knox Walkup
Washington Square, Suite 500         Attorney General and Reporter
129 Second Avenue North
Nashville, TN 37201                  Deborah A. Tullis
                                     Assistant Attorney General
                                     Cordell Hull Building, Second Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     William R. Reed
                                     and Diane Lance
                                     Assistant District Attorneys General
                                     Washington Square, Suite 500
                                     222 Second Avenue North
                                     Nashville, TN 37201




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The defendant, Karl Shields, after being indicted on three counts of

rape of a child and two counts of aggravated sexual battery, entered a negotiated

plea of guilt to two counts of rape of a child. The trial court imposed a fifteen-year

sentence on each count and ordered the sentences to be served consecutively.



               In this appeal of right, the defendant complains that the sentences

should not have been ordered to be served consecutively. We affirm the judgment

of the trial court.



               It was stipulated that the proof at trial would have established that in

the spring or early summer of 1995, the defendant undressed his twelve-year-old

daughter, touched her unclothed body, and placed his hands and mouth on her

breast and vagina. Thereafter, he penetrated her vagina with his penis.



               On a second occasion, the defendant punished his daughter by

undressing her and then penetrating her vagina with his penis, causing her pain.

The victim's mother was not at home on either of these occasions.



               The defendant complains that more than a year had elapsed before

the state returned indictments. He asserts that during that period, he had lived in

the family residence without any further unlawful activity. The victim was afflicted

with chlamydia as a result of the defendant's behavior and was on medication for

seven to ten days in order to relieve the infection. While there was testimony that

there could be undetectable secondary effects depending upon the length of the

infection, the genital and rectal areas of the victim were otherwise normal. The

defendant asserts that the victim did not suffer in her performance at school as a


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result of the sexual contact.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court 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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In calculating the sentence for a Class A felony conviction at the time

of these offenses, the presumptive sentence is the minimum within the range if there

are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c)

(amended July 1, 1995, changing the presumptive sentence for a Class A felony to

the midpoint in the range). If there are enhancement factors but no mitigating

factors, the trial court may set the sentence above the minimum. Tenn. Code Ann.

§ 40-35-210(d). A sentence involving both enhancement and mitigating factors


                                           3
requires an assignment of relative weight for the enhancement factors as a means

of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then

be reduced within the range by any weight assigned to the mitigating factors

present. Id.



                  Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

                  [C]onsecutive sentences should not be routinely imposed
                  ... and ... the aggregate maximum of consecutive terms
                  must be reasonably related to the severity of the
                  offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                  (1) The defendant is a professional criminal who has
                  knowingly devoted himself 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


   1
    The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-
115, Se ntencing Co mmission C ommen ts.

                                                        4
              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) 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).



              In Gray, our supreme court had ruled that before consecutive

sentencing could be imposed upon the dangerous offender, as now defined by

subsection (b)(4) in the statute, other conditions must be present: (a) that the

crimes involved aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c) that the term

reasonably relates to the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court

reaffirmed those principles and ruled that consecutive sentences cannot be required

for any of the classifications "unless the terms reasonably relate to the severity of

the offenses committed and are necessary in order to protect the public from further

serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision,


                                           5
which modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.

Crim. App. 1991), governing the sentencing of dangerous offenders, described

sentencing as "a human process that neither can nor should be reduced to a set of

fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).



              The defendant, now thirty-four years of age, was convicted in 1995 for

felony possession of cocaine. He was placed on probation for a period of three

years. The presentence report indicates that probation was revoked on July 19,

1996, due to these offenses. The report indicates that the defendant has two other

daughters and a son who range in age from three to nine. The report described his

family as supportive. The defendant had been employed for almost three years as a

dock worker for a trucking company.



              Although the length of each of the sentences is not at issue, the trial

court found no mitigating factors and two enhancement factors. The trial judge

determined that consecutive sentencing was appropriate under Tenn. Code Ann. §

40-35-115(b)(5), due to the presence of "two or more statutory offenses involving

sexual abuse of a minor."



              While consecutive sentences should not be routinely imposed, the

imposition of consecutive sentencing is within the discretion of the trial court when

one or more statutory criterion is present. In determining whether there has been a

proper exercise of discretion, the overriding concern is the fairness of the result

under all of the circumstances. These crimes are serious and statutorily qualify the

defendant for a consecutive sentence. That the defendant had failed to benefit by

his prior grant of probation is not only a concern but also a second statutory ground.

See Tenn. Code Ann. § 40-35-115(b)(6). While the defendant has shown some


                                           6
rehabilitative qualities, the entirety of the circumstances, including the nature and

seriousness of these crimes, warranted consecutive sentencing.



              Accordingly, the judgment is affirmed.




                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Jerry L. Smith, Judge




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