           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 Assigned on Briefs March 29, 2011

                     STATE OF TENNESSEE v. DAVID A. TAYLOR

                         Appeal from the Circuit Court for Sevier County
                            No. 14334-II    Richard R. Vance, Judge




                       No. E2010-01123-CCA-R3-CD - Filed July 18, 2011


A Sevier County Circuit Court jury convicted the defendant, David A. Taylor, of aggravated
rape of a child, see T.C.A. § 39-13-531(a) (2006), and the trial court imposed a sentence of
60 years’ incarceration to be served at 100 percent by operation of law, see id. § 40-35-
501(i)(2)(L). In this appeal, the defendant challenges the trial court’s denial of the motion
to suppress his pretrial statement to police, the admission of hearsay statements of the victim,
the sufficiency of the convicting evidence, and the sentence imposed by the trial court.
Discerning no error, we affirm.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and J.C. M CL IN, JJ., joined.

Steve McEwen, Knoxville, Tennessee (on appeal); and Michaela Burnham, Assistant District
Public Defender (at trial), for the appellant, David A. Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; James B. Dunn, District Attorney General; and George Ioannides, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                  OPINION

             The conviction in this case relates to the defendant’s digitally penetrating his
two-year-old niece, L.D., in February 2009.1 At trial, Christine Tate, the victim’s paternal
grandmother and legal guardian, testified that at the time of the offense, she had legal custody



       1
           As is the policy of this court, we will refer to the minor victim only by her initials.
of the victim, who was born August 17, 2006, and had been her legal custodian since 2007.
On February 24, 2009, Ms. Tate took L.D. to spend time with the child’s maternal
grandmother, Charlotte Taylor, and picked her up on February 26, 2009. Ms. Tate said that
she and Ms. Taylor had an agreement that L.D. should not be left in the care of any other
individual during Ms. Taylor’s visitation with her. Ms. Tate said that when she went to pick
up the victim, the victim’s mother, Debra Davis, came out of the residence and told her
“nothing happened, ordinary day. [L.D.] stayed with Mom. She didn’t go anywhere with
nobody.” A few moments later, Ms. Taylor came out of the residence and said the same
thing. Ms. Tate said that the women’s behavior was very unusual. Ms. Tate said that the
defendant then came onto the porch and that the defendant’s presence surprised her because
the defendant was not supposed to have contact with the victim.

               Ms. Tate testified that her general practice was to give the victim a bath
immediately after picking her up from Ms. Taylor’s and that the victim generally loved
taking baths. On that day, however, the victim refused to take a bath, and Ms. Tate
acquiesced, choosing instead just to wash the victim off. Later that evening, the victim told
Ms. Tate, “Nana, it just hurts, it hurts when I pee.” Ms. Tate said she gave the victim
cranberry juice and plenty of water thinking that she had developed a urinary tract infection.
Ms. Tate said that the victim’s “private area” appeared “scalded or chapped, like really red
or raw.” She testified that she initially believed the victim may have been given “too much
cola” or that she had been left too long in a wet diaper. Ms. Tate said that she continued to
give the victim cranberry juice and attempted to contact her pediatrician to no avail. Ms.
Tate testified that the victim continued to cry and complain of pain all night long. On the
following afternoon, Ms. Tate insisted that the victim take a bath and told the victim to
urinate before getting into the bathtub. Ms. Tate described what happened next:

              She started screaming. I mean, she was crying. Tears were just
              rolling down her face crying, no Nana, no. Don’t wash my
              goose. Don’t touch my goose, Nana. She said, ow. She said he
              lost his ring in it and he put a hole in my goose. And I went,
              what? She said, he couldn’t find his ring, Nana, so he stuck his
              finger up my butt. I said, what do you mean? She said, Uncle
              Al. She said, he put his ring up in my goose and then he put his
              finger in and couldn’t find it so then he put his finger up my
              butt.

Ms. Tate explained that the victim referred to her vagina as her “goose” and to the defendant
as “Uncle Al.”

              Ms. Tate said that the victim “acted like she was scared to death, afraid to tell”

                                              -2-
Ms. Tate what had happened. She testified that she asked the victim when this had
happened, and the victim replied, “[W]hen I spent the night at Mamaw Charlotte’s.” Ms.
Tate said that she was “in shock” but nevertheless tried to get the victim to let her examine
the area. Ms. Tate said that the victim continued to cry in pain and reiterated, “[H]e had a
ring on his finger. He stuck his finger in my goose. He lost his ring. . . . [H]e told me he
was a doctor, he could get it.” Ms. Tate took the victim into another room and examined her
more closely. She said the victim’s vaginal area “was all blood red from the front halfway
to the back . . . like she was scalded and almost blistered.” Given the victim’s allegation, the
condition of the area, and her continuing pain, Ms. Tate took the victim to the emergency
room. Ms. Tate testified that the victim was discharged from the hospital later that same day.

               Doctor Steve Dronen, the emergency room physician who examined the victim
on February 28, 2009, testified that the “only significant finding was that in examining her
genital area, the inner labia, what we call the labia minor, were red and inflamed.” He said
that the victim had “no evidence of urine infection” or “any kind of foreign body or discharge
coming from the vagina.” He also said that there was no evidence that the victim was
suffering from a yeast infection. He said the victim’s complaints along with his physical
findings were consistent with digital penetration of the vagina.

              Gail Clift, a pediatric nurse practitioner who examined the victim in
conjunction with the allegations on April 20, 2009, testified that she found that the victim
“had a rash on her buttocks” and “some mild redness” but no abnormal findings. Ms. Clift
said that her examination would neither confirm nor rebut the victim’s claim of digital
penetration.

               Sevierville Police Department Detective Kevin Bush testified that he was
working as the weekend “on call” detective when he responded to the victim’s report of
sexual abuse. He went to the Sevierville Medical Center and interviewed Ms. Tate.
Following this interview, he developed the defendant as the primary suspect and eventually
located the defendant approximately one month after the report of abuse and made contact
with the defendant by telephone. The defendant agreed to participate in an interview, but he
told the officer that he did not have transportation to the police department. Detective Bush
and Detective Sam Hinson traveled to the defendant’s residence, and the defendant agreed
to ride with them to the police department for the interview. Detective Bush said that the
defendant did not appear to be under the influence of drugs or alcohol. Once at the police
station, Detectives Bush and Hinson interviewed the defendant inside Detective Hinson’s
office. Prior to the interview, the detectives provided the defendant with Miranda warnings,
and the defendant signed a written waiver form acknowledging that he had been advised of
his rights and had elected to waive them. Detective Bush said that the defendant confessed
digitally penetrating the victim and “wanted to really get it across that it was just his fingers.

                                               -3-
[The defendant] felt it was important for [them] to know that it wasn’t his penis but that it
was just his fingers.” He said the defendant attempted to blame the offenses on his use of
and addiction to [o]xy[c]ontin.” Detective Bush testified that the defendant said it was “a
relief to get it off his chest.” After the defendant made his statement, Detectives Bush and
Hinson allowed him to leave.

             During cross-examination, Detective Bush acknowledged that he discussed
with the defendant the defendant’s “drug dependency problem,” specifically his use of
oxycontin. He said that the defendant told them that “he hadn’t been on them for three or
four days.”

              The defendant’s statement provided:

              About a month ago I was at home with my mom, my sister, and
              [L.D.]. [L.D.] is my three year old niece. My mom and sister
              gave [L.D.] a bath. [L.D.] came running into the living room
              with just a towel on. She was wet and I started drying her off.
              I was messed up on oxycontins that day. I don’t remember how
              many I had done. I usually do a 40 or 80 milligram oxycontin
              a day. While I was drying her off I put my finger in her vagina.
              I did it for about 15 seconds. [L.D.] had the towel wrapped
              around her waist and my hand was under the towel. I don’t
              know why I did it. I feel bad about it and I’m sorry. I stopped
              touching her when my mom came into the living room. I told
              [L.D.] not to tell anybody about it.

              Sevierville Police Department Detective Sam Hinson confirmed that the
defendant voluntarily accompanied the officers to the police station and provided a statement
admitting that he digitally penetrated the victim. Detective Hinson said that the defendant
did not appear to be under the influence of alcohol or drugs when he made his statement.

              At the conclusion of Detective Hinson’s testimony, the State rested, and the
defense called the defendant’s mother, Charlotte Taylor, as a witness. Ms. Taylor testified
that the defendant was never alone with the victim during the victim’s February 2009 visit
in Ms. Taylor’s home.

             Debra Davis, the defendant’s sister and the victim’s mother, testified that the
victim was never alone with the defendant during the February 2009 visitation. Ms. Davis
acknowledged, however, that both she and the defendant consumed drugs during the victim’s
visit.

                                             -4-
               Based upon this proof, the jury convicted the defendant of aggravated rape of
a child and imposed a $25,000 fine. Following a sentencing hearing, the trial court imposed
a sentence of 60 years’ incarceration and approved the fine set by the jury. The defendant
filed a timely but unsuccessful motion for new trial followed by a timely notice of appeal.

               In this appeal, the defendant challenges the trial court’s denial of his motion
to suppress his pretrial statement to police, the trial court’s admission of the victim’s hearsay
statement implicating the defendant, the sufficiency of the convicting evidence, and the
propriety of the sentence. We consider each of the claims in turn.

                                    I. Motion to Suppress

               The defendant contends that the trial court should have suppressed his
statement to Detectives Bush and Hinson because his voluntary intoxication rendered the
statement involuntary. The State asserts that the trial court did not err by refusing to suppress
the statement.

                A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge, and this court must uphold a trial court’s findings of
fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23;
see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is
reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review
the issue in the present appeal with these standards in mind.

                We also review the issue presented with these well-settled general principles
in mind. A confession must be free and voluntary, and it must neither be extracted by any
sort of threats or violence nor obtained by any direct or implied promises, nor by the exertion
of any improper influence or police overreaching. Bram v. United States, 168 U.S. 532, 542-
43 (1897). The issue of voluntariness requires the trial judge to focus on whether the
accused’s will to resist making a confession was overborne. See State v. Kelly, 603 S.W.2d 726,
728 (Tenn. 1980). When considering the voluntariness of a confession, this court must
examine the totality of the circumstances surrounding the confession to determine whether
the circumstances were “‘such as to overbear [the defendant’s] will to resist and bring about
confessions not freely self-determined.’” Kelly, 603 S.W.2d at 728 (quoting and adopting
the standard set forth in Rogers v. Richmond, 365 U.S. 534, 544 (1961)). That being said,
a statement will be excluded “only if an examination of the totality of the circumstances
reveals that the statement was not voluntarily given.” State v. Huddleston, 924 S.W.2d 666,

                                               -5-
670 (Tenn. 1996).

               At the hearing on the defendant’s motion to suppress, Detective Bush testified
essentially as he did at trial. After he located and made contact with the defendant by
telephone, Detective Bush offered to transport the defendant, who had agreed to participate
in an interview but claimed he had no mode of transportation, to the police department. The
defendant agreed, and Detectives Bush and Hinson picked the defendant up from Ms.
Taylor’s residence and drove him to the police department. Detective Bush, who had five
years’ experience as an undercover agent for the Fourth Judicial District Drug Task Force,
confirmed that the defendant did not appear to be under the influence of alcohol or drugs
when the officers picked him up or during any portion of the interview. Prior to the
interview, the detectives provided the defendant with Miranda warnings, and the defendant
signed a written waiver form acknowledging that he had been advised of his rights and had
elected to waive them. According to the detective, “after several questions” the defendant
“basically confirmed that he did abuse” the victim. Detective Bush testified that although
they did not create an audio recording of the initial interview with the defendant, they crafted
a hand written statement that the defendant proofread and signed. After the defendant signed
the written statement, the detectives “recorded that as [they] read it just to double-check.”
Detective Bush said that the defendant did not at any time indicate that the written statement
prepared by Detective Bush was inaccurate or incorrect. After taking the defendant’s
statement, Detectives Bush and Hinson allowed him to leave.

             During cross-examination, Detective Bush acknowledged that he discussed
with the defendant the defendant’s “drug dependency problem,” specifically his use of
oxycontin. He said that the defendant told them that “he hadn’t been on them for three or
four days” and that “he was trying to wing it.”

              The defendant denied making any of the admissions contained in the hand
written statement prepared by Detective Bush. He claimed that he told the officers that he
“might have scraped [the victim] with the tag on the towel” when she came out of the
bathroom wrapped in a towel. He said that “[n]ot a word” in the written statement was his.
The defendant said that he did not recall the detectives’ reading the statement to him and
claimed that on the day he provided the statement he had taken 60 or 70 milligrams of
methadone.

              During cross-examination, the defendant agreed that he went to the police
station voluntarily and that he was eager to provide his account of the allegations against
him. The defendant recalled agreeing to allow Detective Bush to pick him up at his
residence, but he claimed that he could not recall being provided Miranda warnings or
signing a waiver of the same. The defendant said that he took pain killers on a regular basis

                                              -6-
prior to his incarceration but that he did not take methadone on a regular basis and had taken
it only two or three times before taking it on the day of his statement. After listening to the
audio recording of a portion of his interview with Detectives Bush and Hinson, the defendant
claimed that the voice on the recording was not his.

               Ms. Davis testified that she saw the defendant consume half of a 130-milligram
bottle of methadone approximately 20 minutes before Detectives Bush and Hinson arrived
to take him to the police department. During cross-examination, Ms. Davis admitted that she
consumed the remaining half bottle of methadone. She said that she did not read the bottle,
but her mother told her that the bottle contained 130 milligrams of methadone. Ms. Davis
said that she could not see any outward signs that her brother was intoxicated when he left
with the detectives. She claimed, however, that when he returned from the police department
he was “under the influence” and appeared “scatter-brained.” Ms. Davis admitted that she,
too, was under the influence of methadone when the defendant related the circumstances of
the interview.

               On the basis of this proof, the trial court concluded that the defendant had
presented “no evidence” that his statement was coerced or pressured. The court opined that
the defendant “voluntarily came to the police department,” that he “gave a statement after
being fully advised of his Miranda rights, that it was voluntarily made,” and that he was not
intoxicated during the interview. The court specifically accredited the testimony of Detective
Bush and deemed the defendant’s testimony “without merit.” Consequently, the court ruled
“that the statement was freely [and] voluntarily made” and denied the defendant’s motion to
suppress.

               In our view, the record supports the ruling of the trial court. The accredited
testimony of Detective Bush established that the defendant voluntarily accompanied
Detectives Bush and Hinson to the police department, where he gave a voluntary admission
that he had digitally penetrated the victim. Although the defendant argues that his testimony
at the suppression hearing “demonstrated that he is a drug addict and had ingested
methadone” shortly before his interview, the trial court, as the sole arbiter of witness
credibility, concluded that the defendant’s testimony was completely “without merit.”
Consequently, the trial court did not err by denying the defendant’s motion to suppress.

                               II. Victim’s Hearsay Statement

              The defendant asserts that the trial court erred by admitting into evidence the
victim’s statement to Ms. Tate inculpating the defendant because, he claims, the statement
does not qualify for admission under any exception to the rule barring hearsay. The State
contends that the statement was admissible as an excited utterance.

                                              -7-
                Prior to trial, the State filed a motion in limine seeking the trial court’s ruling
that the statement would be admissible at trial. The defendant opposed the motion in general
but did not file a response to the State’s motion. At the pretrial hearing, the trial court, after
hearing the arguments of the parties, made a preliminary ruling that the evidence was
admissible as an excited utterance but indicated a willingness to revisit the issue at the trial
and in light of any case law either side could present. On the first day of trial, the defense
indicated that it did not have any further law or argument to present. At trial, Ms. Tate
testified that the victim, while “screaming” and crying in pain, related that the defendant had
put his finger in her “goose.” It is this testimony that the defendant challenges as
inadmissible hearsay.

                “‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). “Hearsay is not admissible except as provided by these rules or otherwise
by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide exceptions to the
general rule of inadmissibility of hearsay. Because “[n]o factual issue attends” the trial
court’s determination whether a statement is hearsay, “it necessarily is a question of law.”
State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (citing State v. Schiefelbein,
230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721
(Tenn. Ct. App. 2005)). Although the application of the various exceptions to the hearsay
rule “may initially depend upon factual determinations” to which a reviewing court must
defer, the trial court “has no discretion to exclude hearsay exception evidence that is
otherwise admissible under the rules of evidence.” Id. Thus, the appropriate standard of
review to be applied to the trial court’s decision admitting or excluding hearsay evidence is
de novo.2 Gilley, 297 S.W.3d at 760-61.

              In this case, the State sought admission of the victim’s statement via the excited
utterance exception to the hearsay rule, embodied at Tennessee Rule of Evidence 803(2),
which provides that “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition” is “not
excluded by the hearsay rule.” Tenn. R. Evid. 803(2). Three requirements must be met
before a statement qualifies for admission pursuant to this hearsay exception:

                The first requirement is “a startling event or condition” that
                “‘suspend[s] the normal, reflective thought processes of the



        2
         This is much the same standard applied to the review of a trial court’s decision on a motion to
suppress. In those cases, the factual determinations of the trial court are conclusive unless the evidence
preponderates against them while the application of the law to those factual findings is reviewed de novo.
See Odom, 928 S.W.2d at 23.
                                                   -8-
              declarant.’” Second, the statement must “relate to” the startling
              event or condition. This broad requirement offers “considerable
              leeway” such that “the statement may describe all or part of the
              event or condition, or deal with the effect or impact of that event
              or condition.” The third and final requirement dictates that the
              declarant make the statement while “under the stress or
              excitement from the event or condition.” This requirement
              considers a variety of factors, including the interval of time
              between the startling event and the statement.

State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (citations omitted). Our supreme court
has stated that the “‘ultimate test’” of admissibility via the excited utterance exception is
“‘spontaneity and logical relation to the main event and where an act or declaration springs
out of the transaction while the parties are still laboring under the excitement or strain of the
circumstances and at a time so near it as to preclude the idea of deliberation and
fabrication.’” Id. (quoting State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993)).

               In this case, the trial court concluded that the victim’s statement to Ms. Tate
implicating the defendant met the requirements for admission because the victim made it
while still experiencing physical pain caused by the defendant’s digitally penetrating her.

              The record supports the ruling of the trial court. The victim’s statement to her
grandmother came about as a spontaneous reaction to her physical pain and the fear of the
pain she might experience in the bath. The statement clearly relates to a startling event, the
defendant’s placing his finger in the victim’s vagina, because it explains the genesis of the
pain in her genital area. Despite the temporal distance between the event and the statement,
the continued pain caused by the offense clearly placed the victim under stress at the time she
made her revelation. Moreover, the victim’s age militates against any finding of fabrication
and supports a finding of spontaneity. Accordingly, based upon a de novo application of the
law to the factual findings of the trial court, we conclude that the trial court did not err by
admitting the victim’s hearsay statement.

                                        III. Sufficiency

              The defendant also claims that the evidence was insufficient to support his
convictions because the medical proof was inconclusive and the victim did not testify. We
review the defendant’s claim mindful that our standard of review is whether, after
considering 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. Tenn.
R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137

                                               -9-
S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. Winters, 137 S.W.3d at 654.

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must 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. Id.

             “Aggravated rape of a child is the unlawful sexual penetration of a victim by
the defendant or the defendant by a victim, if the victim is three (3) years of age or less.”
T.C.A. § 39-13-531(a) (2006).

               Here, Ms. Tate testified that two-year-old L.D., while screaming in pain, told
her that the defendant had put his finger in her “goose,” the victim’s term for her vagina. Ms.
Tate said that the victim’s genital area appeared “blood red from the front halfway to the
back . . . like she was scalded and almost blistered.” Doctor Dronen confirmed that the
victim’s “genital area, the inner labia, what we call the labia minor, were red and inflamed”
with no evidence of a urinary tract or yeast infection. The defendant confessed to Detectives
Bush and Hinson that he digitally penetrated the victim’s vagina while toweling her off after
a bath. Although Ms. Taylor and Ms. Davis testified that the victim was never left alone with
the defendant, the jury, as was its prerogative, rejected this testimony. In addition, the jury,
properly instructed on voluntary intoxication, rejected any claim that the defendant was too
intoxicated to be held responsible for raping the victim. Under these circumstances, the
evidence adduced at trial amply supports the defendant’s conviction of aggravated rape of
a child.

                                       IV. Sentencing

              The defendant claims that the trial court erred by sentencing him to 60 year’s
incarceration, claiming that the court should not have utilized his prior criminal record to
enhance his sentence to the maximum within the range. The State asserts that the sentence
is appropriate.

              When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial

                                              -10-
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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 appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court was required to consider:

              (1) The evidence, if any, received at the trial and the 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
              involved;
              (5) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;
              (6) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              Code section 39-13-531 provides that “[a]ggravated rape of a child is a Class
A felony and shall be sentenced within Range III, as set forth in title 40, chapter 35.” Id. §
39-13-531(b). A Range III sentence for a Class A felony is “not less than forty (40) nor more
than sixty (60) years.” Id. § 40-35-112(c)(1).

             Here, the trial court, in imposing the maximum Range III sentence of 60 years,
concluded that the defendant’s extensive criminal record warranted a sentence at the top of
the range. See id. § 40-35-114(1) (“The defendant has a previous history of criminal

                                              -11-
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range.”). On appeal, the defendant argues that although his record of criminal activity is
extensive, he does not have more convictions than that necessary to establish the appropriate
range. See id. We disagree. Because the only conviction necessary to warrant a Range III
sentence in this case was the defendant’s conviction of aggravated rape of a child, all of the
defendant’s 19 prior convictions could be used to enhance the defendant’s sentence within
Range III.

              The record establishes that the trial court considered all relevant sentencing
principles and appropriately applied a single enhancement factor related to the defendant’s
extensive criminal history. Although the defendant complains that the use of his convictions
to enhance the sentence within Range III is “patently unjust,” he has cited no authority for
his claim, and we can find no authority barring the use of prior criminal history under these
circumstances. Moreover, we remind the defendant that when the trial court has complied
with the requirements of the Sentencing Act, this court is not at liberty to disturb the
sentencing decision of the trial court. See Fletcher, 805 S.W.2d at 789. The defendant’s
lengthy criminal record supports the upward adjustment of his sentence to the maximum,
Range III sentence of 60 years.

                                         Conclusion

             Because we find no error in the rulings of the trial court and no deficiency in
the proof adduced at trial, we affirm the judgment of the trial court.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -12-
