         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 28, 2001 Session

                STATE OF TENNESSEE v. DARRELL M. SCALES

                     Appeal from the Criminal Court for Davidson County
                            No. 99-C-1665   Seth Norman, Judge



                    No. M2000-03150-CCA-R3-CD - Filed Janaury 11, 2002


The Defendant, Darrell M. Scales, was convicted by a jury of three counts of aggravated robbery and
three counts of aggravated sexual battery. The trial court subsequently sentenced the Defendant to
nine years on each of the robberies and to nine years on each of the sexual batteries. The court
ordered the sentences to be run partially consecutive, for an effective sentence of twenty-seven years.
In this appeal as of right, the Defendant raises the following five issues: (1) whether the trial court
erred by refusing to suppress identification testimony; (2) whether the evidence is sufficient to
support his convictions; (3) whether the trial court erred in failing to require the State to elect from
two separate incidents of aggravated sexual battery against one of the victims; (4) whether the trial
court erred in failing to charge the jury on lesser-included offenses of aggravated sexual battery; and
(5) whether the trial court erred in ordering partially consecutive sentences. We hold that the trial
court committed reversible error when it failed to require the State to elect offenses, and that it
committed reversible error when it failed to instruct the jury on all lesser-included offenses of
aggravated sexual battery. Accordingly, we reverse and remand for retrial the Defendant’s
convictions for aggravated sexual battery. In all other respects the judgment of the trial court is
affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part;
                               Reversed in Part; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

        Rossie D. Sherrell testified that, on January 28, 1999, the Defendant, a man he had known
for several years, approached him about getting some money to support Sherrell’s cocaine addiction.
Sherrell agreed to cooperate. The Defendant drove Sherrell to the Steel Mill in Nashville, an adult
entertainment business. The Defendant wanted Sherrell to “case” the business, after which the
Defendant planned to rob it.

        According to Sherrell, he knocked on the Steel Mill’s door and gained entrance. He spoke
with the employees, then returned to the Defendant’s car and told the Defendant what he had learned.
The Defendant told him to go back to the door. Sherrell did so and as he was speaking to one of the
employees in the doorway, the Defendant and another man pushed Sherrell into the business and
came in behind him. The Defendant told Sherrell to lie on the floor and Sherrell complied.
Eventually, Sherrell left with the Defendant and the third man, and was paid $200 for his
participation in the crime. Sherrell testified that he did not know the third man’s identity, and that
this unidentified man had arrived at the scene in a different car.

        Three women were working at the Steel Mill that night, Ms. Ronda Begley, Ms. Jessica
Crowell, and Ms. Leah Blair. Each of the women testified at trial. Their testimony established that,
at about 10:30 on the night of January 28, 1999, the doorbell rang. Rossie Sherrell and another man
were admitted and began asking a lot of questions about the business. Mr. Sherrell asked to use the
restroom; Ms. Blair continued to speak with the other man while Mr. Sherrell went to the bathroom.
The two men then left. A few minutes later, the doorbell rang again. Mr. Sherrell was at the door,
asking questions about the location of another adult business. Mr. Sherrell was then pushed into the
lobby from behind by the Defendant and yet another man, both of whom were carrying handguns.
The Defendant was wearing wire-rimmed glasses, black leather gloves, a leather jacket and a hat.
The other gunman was wearing latex gloves. The Defendant pointed the gun at Ms. Begley and told
her to get down on the floor. He also pointed the gun at Ms. Blair, telling her to get down. He then
told both women to disrobe. Both women removed their outer garments, leaving on their underwear.
Mr. Sherrell was also told to lie on the floor with them. The Defendant closed the blinds in the lobby
and ripped out the phone.

        While the Defendant was dealing with the people in the lobby, the other gunman went to one
of the “session” rooms and retrieved Ms. Crowell and her male customer. They were both brought
to the lobby and ordered to lie on the floor. The Defendant told Ms. Crowell to undress; she took
off her shirt but left her jeans on. The other gunman went through the other rooms in the business,
ransacking the contents and putting items in a duffle bag. The Defendant stayed in the lobby making
sure that everyone stayed on the floor.

         Ms. Begley testified that, while she was on the floor in the lobby wearing nothing but her
underwear, the Defendant “grabbed [her] buttocks as though he was searching [her.]” Ms. Blair
testified that the Defendant also touched her as she lay on the floor. She stated that the Defendant
touched her between her legs, over her panties, “for a brief moment,” and complemented the tattoo
she had on her back. Ms. Crowell testified that, while she was laying on the floor, the Defendant

                                                 -2-
ran his hand up her leg to her crotch area. The Defendant continued to hold his gun while he touched
the victims.

        During the robbery the doorbell rang again. The Defendant ordered Ms. Crowell to answer
the door; the other gunman took everyone else into another room. The Defendant accompanied Ms.
Crowell to the front door, keeping the gun in her side. She told the visitor to leave. The Defendant
then accompanied Ms. Crowell to the room where the others were. Ms. Crowell testified that the
Defendant “had his hands on [her] butt” while they walked from the front door to the room. Once
there, the gunmen asked where the house money was kept. Ms. Blair showed them the appointment
book where the Steel Mill’s cash and receipts were kept. The men took the book, together with other
property that they had gathered from the rooms and from the customer, and left with Sherrell. At
some point, the customer also left. The women called the police a few minutes after the robbery was
over.
        The robbery lasted about twenty minutes. Ms. Begley testified that she had been able to see
the Defendant’s face “[a] good fifteen minutes” of this time, and that the lighting had been good.
Ms. Crowell stated that the Defendant had seemed to be in charge of the robbery, that he had told
the other man what to do. She described him as a black man, but having a lighter complexion than
the other man, and she said he wore wire-rimmed glasses. She explained that the entire episode
lasted twenty to thirty minutes, and that she looked directly at the Defendant for five to six of those
minutes. Each of the women testified that she had been scared. Ms. Begley testified that the
gunmen stole her pager and some jewelry. Ms. Crowell testified that they stole $700 cash that she
had. Ms. Blair testified that the robbers took her purse containing her credit card and between $120
and $150 in cash.

        Each of the women was interviewed separately at the scene by Detective Wilbur Nesbitt.
They each gave the detective a physical description of the men involved. A day or two later, each
of the women went to the police station to review photographs, but none of them was able to make
an identification. Detective Nesbitt testified that, to his knowledge, the photographs reviewed by
the women did not include photographs of either the Defendant or Sherrell. About a month later,
Detective Nesbitt received a report of two men who had been “field interviewed” at another adult
entertainment establishment. The description of one of these men matched the description of the
Steel Mill robber who had been wearing glasses. Detective Nesbitt determined that this man was
the Defendant. Detective Nesbitt prepared a photographic lineup containing the Defendant’s
photograph and showed it to Ms. Begley. He testified, “[a]s soon as [he] gave [Ms. Begley] the
lineup her hand started trembling and she started shaking, and she pointed to [the Defendant] and
said, ‘That’s him right there, the one with glasses.’” Detective Nesbitt stated that Ms. Begley
identified the Defendant in “a matter of seconds.” At trial, Ms. Begley testified that she had no
doubt about her identification, that she had “a good look” at the Defendant, and that she had
“recognized him by his eyes.” Ms. Begley reidentified the Defendant at trial as the man who had
pointed the gun at her and touched her as she lay on the floor.

        Detective Nesbitt next showed the lineup to Ms. Crowell, who was at a different location.
She also identified the Defendant. The next day, Detective Nesbitt visited Ms. Blair. For this
victim, Detective Nesbitt created a new lineup, using a different photograph of the Defendant and

                                                 -3-
placing it in a different position within the lineup. Upon reviewing the lineup, Ms. Blair identified
the Defendant. Both of these women also identified the Defendant at trial as their attacker.

       Detective Nesbitt testified that he also showed each of the women a lineup containing a
photograph of Mr. Sherrell, and that each of the women identified him. Detective Nesbitt stated that
the second gunman in the robberies remained unidentified.

                                IDENTIFICATION TESTIMONY

         In his first issue the Defendant contends that the trial court should have suppressed the
victims’ identification testimony of the Defendant as the perpetrator, arguing that “the pretrial
identification procedures upon which these witnesses’ identifications were based were unduly
suggestive and unreliable” because his “photograph stands out in a suggestive manner” in both
lineups. The Defendant complains that, in the photographic lineup shown to Ms. Crowell and Ms.
Begley, he is “the only person who is not looking at the camera, and is wearing bright gold clothing
that is dissimilar to that worn by the other participants in the lineup.” As to the lineup shown to Ms.
Blair, the Defendant states that his photograph “is the most distinct, and the least blurry.” As to both
lineups, he suggests, his “distinctive eyes -- his right eye appears larger and more round than his left
eye -- are dramatically different in appearance than the eyes of any of the other participants whose
photographs appear in the lineups.” In support of his argument the Defendant relies on the Supreme
Court case of Simmons v. United States, 390 U.S. 377 (1968), which states that a pretrial
photographic identification procedure must not be “so impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable misidentification.” Id. at 384. Where the identification
procedure is unduly suggestive, the totality of the circumstances surrounding the identification must
be examined to determine whether the identification is nevertheless sufficiently reliable to satisfy
due process. See Neil v. Biggers, 409 U.S. 188, 199 (1972).
         The trial court denied the Defendant’s pretrial motion to suppress the eyewitness
identifications. Our standard of review on a motion to suppress where the evidence does not involve
issues of credibility is de novo without a presumption of correctness. See State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000). The evidence involved in this issue is the photographic arrays
themselves, which involve no issues of credibility and which this Court is just as capable of
reviewing as the trial court. See id. Thus, we review the complained-of lineups de novo without a
presumption of correctness in order to determine whether they were “impermissibly suggestive.”

        We find that they were not. As previously noted by this Court, “a lineup would be
considered unduly suggestive . . . when the other participants were grossly dissimilar.” State v.
Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993), citing United States v. Wade, 388 U.S.
218, 233 (1967) (emphasis added). No such gross dissimilarity exists here. In the photo array
shown Ms. Blair, all six men are of similar age and have similar haircuts and facial hair. All have
black hair and brown eyes. All but one of the men -- not the Defendant -- have similar darkness of
complexion. Three of the men, including the Defendant, are wearing black; two of the men are
wearing white, and one is wearing orange. One of the photographs -- not of the Defendant-- is
slightly out of focus. Three of the men -- one of whom is the Defendant -- have eyes of noticeably
different sizes. All of the men are looking directly at the camera, and all of the photographs are

                                                  -4-
mugshots. Similarly, in the array shown to Ms. Begley and Ms. Crowell, all six men are again of
similar age and have similar haircuts and facial hair. All of the men have black hair and brown eyes.
Their complexions vary somewhat. Two of the photographs -- including the Defendant’s -- are
slightly out of focus. The Defendant, unlike the other men, is looking somewhat below the camera
lens. Two men are wearing black, two men are wearing white, the Defendant is wearing yellow and
another man is wearing orange. The eyes of the Defendant and one other man appear slightly
dissimilar.

        In short, the Defendant does not “stand out” in any fashion in either of the arrays. Where the
lineups are not unduly suggestive, it is not necessary to proceed to the next step in the analysis and
determine whether the identification is nevertheless reliable. See State v. Butler, 795 S.W.2d 680,
686 (Tenn. Crim. App. 1990); State v. Mosley, 667 S.W.2d 767, 770 (Tenn. Crim. App. 1983). This
issue is without merit.

                              SUFFICIENCY OF THE EVIDENCE

         The Defendant next challenges the sufficiency of the evidence in support of his convictions.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings 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.” Evidence is sufficient if, after
reviewing 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. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of
guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.
See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,
639 S.W.2d at 914. 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, not the appellate courts.
See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987).

         We first address the Defendant’s three aggravated robbery convictions. The Defendant
contends that the evidence is not sufficient to establish his identity as one of the perpetrators. This
issue is without merit. The Defendant’s three female victims positively identified him in court and
one of his accomplices also identified him in court. As set forth above, the identification testimony

                                                  -5-
was properly admitted at trial. Thus, evidence of the Defendant’s identity was more than sufficient.
The other elements of the crime were also supported by sufficient evidence. Aggravated robbery
is committed when the accused intentionally or knowingly commits a theft of property from the
person of another by violence or putting the person in fear, accomplished with a deadly weapon. See
Tenn. Code Ann. § 39-13-402(a)(1). The evidence in this case established overwhelmingly that the
Defendant participated in the theft of Ms. Blair’s, Ms. Begley’s and Ms. Crowell’s property as he
held them at gunpoint in their place of employment. All three victims testified as to their fear. The
evidence supports the Defendant’s three convictions of aggravated robbery, and this issue is
therefore without merit.

         We also find the evidence sufficient to support the Defendant’s convictions of aggravated
sexual battery against Ms. Begley and Ms. Blair.1 That crime is committed when the accused has
unlawful sexual contact with the victim where force or coercion is used to accomplish the act and
the accused is armed with a weapon. See Tenn. Code Ann. § 39-13-504(a)(1). “Sexual contact” is
defined as “the intentional touching of the victim’s . . . intimate parts, or the intentional touching of
the clothing covering the immediate area of the victim’s . . . intimate parts, if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or gratification.”
Id. § 39-13-501(6). “Intimate parts” is defined as including “the primary genital area, groin, inner
thigh, buttock or breast of a human being.” Id. § 39-13-501(2). Both Ms. Begley and Ms. Blair
testified that the Defendant ordered them to strip, and then touched them either between their legs
or on their buttocks.

        The Defendant contends that he touched the women “to determine whether any of the victims
were concealing a weapon or valuables on their person.” While we acknowledge that Ms. Begley
described the Defendant’s actions as “grabb[ing] [her] buttocks as though he was searching [her],”
her explanation that she was wearing only thong underwear at the time undercuts the Defendant’s
theory. Thong underwear leaves the wearer’s buttocks uncovered and unamenable to concealing a
weapon there. With respect to the Defendant’s touching of Ms. Blair, Ms. Begley testified that when
she saw the Defendant touching Ms. Blair between her legs, she became convinced that they were
going to be raped. Clearly, Ms. Begley discerned something in the Defendant’s manner of touching
Ms. Blair that suggested sexual contact as defined by the statute. Moreover, the Defendant did not
order either Mr. Sherrell or the customer to strip, nor did he “search” either of these men.
Accordingly, we find that the proof was sufficient for the jury to have reasonably construed that the
Defendant’s touching of Ms. Begley and Ms. Blair was done for the purpose of sexual arousal or
gratification. This issue is, therefore, without merit.

                                          ELECTION OF OFFENSES



         1
          As set forth later in this opinion, the State adduced proof at trial of two instances of aggravated sexual battery
against Ms. Crowe ll, but did not elect upon which offense it was seeking a conviction. Because we reverse the
Defend ant’s conviction of aggravated sexual battery against Ms. Crowell due to the State’s failure to elect offenses, and
becau se we cannot determine upon which of the two instances of conduct the jury convicted, we decline to address the
sufficiency of the evidence sup porting the agg ravated sex ual battery conviction as comm itted ag ainst M s. Crowell.

                                                            -6-
        The Defendant next contends that the trial court committed plain error when the court failed
to require the State to elect which offense of aggravated sexual battery it wanted the jury to consider
with respect to Ms. Crowell. The State concedes that the trial court committed plain error in this
regard, and we agree. Accordingly, the Defendant’s conviction of aggravated sexual battery against
Ms. Crowell is reversed and remanded for a new trial.

        The proof at trial established that the Defendant touched Ms. Crowell’s “intimate parts” on
two separate occasions: first, when he ran his hand up between her legs as she lay on the floor, and
second, when he put his hand on her buttocks as she returned from answering the door and
dismissing the visitor. When an accused is indicted for a single offense, but the State proves
multiple commissions of the offense, the State is required to elect upon which offense it is relying
for a conviction. See State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993); Burlison v. State, 501
S.W.2d 801, 804 (Tenn. 1973). This doctrine of “election of offenses” is necessary to protect the
accused’s right under the Tennessee constitution to a unanimous jury verdict. See Shelton, 851
S.W.2d at 137. In this case, the Defendant was charged with one instance of aggravated sexual
battery against Ms. Crowell. The State proved two instances of such conduct against Ms. Crowell,
but did not elect upon which instance it was seeking a conviction. Such failure requires reversal of
the conviction. See id. at 139. Accordingly, the Defendant’s conviction of aggravated sexual battery
against Ms. Crowell is reversed and remanded for a new trial.

                               LESSER-INCLUDED OFFENSES

       In his fourth issue the Defendant contends that misdemeanor assault is a lesser-included
offense of aggravated sexual battery, and that the trial court committed reversible error in not
charging the jury on that offense. We must agree, and therefore reverse the Defendant’s convictions
for aggravated sexual battery and remand those charges for a new trial.

         A trial court is under the mandatory duty to instruct the jury on a lesser-included offense,
even if such an instruction is not requested, when “any evidence exists that reasonable minds could
accept as to the lesser-included offense” and when that evidence is “legally sufficient to support a
conviction for the lesser-included offense.” State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999); see also
Tenn. Code Ann. § 40-18-110(a). In Burns, our supreme court adopted a new three-part test for
determining whether an offense is a lesser-include offense. See Burns, 6 S.W.3d at 466-67. Under
the new test, which was largely derived from the Model Penal Code, an offense is a lesser-included
offense if:
                (a) all of its statutory elements are included within the statutory
                elements of the offense charged; or
                (b) it fails to meet the definition in part (a) only in the respect that it
                contains a statutory element or elements establishing
                         (1) a different mental state indicating a lesser kind of
                         culpability; and/or
                         (2) a less serious harm or risk of harm to the same
                         person, property or public interest; or
                (c) it consists of

                                                 -7-
                       (1) facilitation of the offense charged or of an offense
                       that otherwise meets the definition of lesser-included
                       offense in part (a) or (b); or
                       (2) an attempt to commit the offense charged or an
                       offense that otherwise meets the definition of lesser-
                       included offense in part (a) or (b); or
                       (3) solicitation to commit the offense charged or an
                       offense that otherwise meets the definition of lesser-
                       included offense in part (a) or (b).

Id.

        As set forth above, the elements of aggravated sexual battery are unlawful sexual contact
with the victim, accomplished by force or coercion, where the accused is armed with a weapon. See
Tenn. Code Ann. § 39-13-504(a)(1). Sexual contact occurs when the accused intentionally touches
the victim’s intimate parts (or the clothing covering the victim’s intimate parts) and the touching can
be reasonably construed as being for the purpose of sexual arousal or gratification. See id. § 39-13-
501(6). Class B misdemeanor assault is committed when the accused “[i]ntentionally or knowingly
causes physical contact with another and a reasonable person would regard the contact as extremely
offensive or provocative.” Id. § 39-13-101(a)(3). In addressing the issue of whether Class B
misdemeanor assault is a lesser-included offense of aggravated sexual battery, our supreme court
recently concluded that this form of misdemeanor assault is a lesser-included offense of aggravated
sexual battery under part (b)(2) of the Burns test. See State v. Swindle, 30 S.W.3d 289, 293 (Tenn.
2000). Accordingly, we must now determine whether the evidence justified a jury instruction on
Class B misdemeanor assault.

         In its charge to the jury, the trial court gave instructions on the following lesser-included
offenses of aggravated sexual battery: facilitation to commit aggravated sexual battery; sexual
battery; and facilitation to commit sexual battery. All of these offenses require that the victim be
subjected to unlawful sexual contact, as defined supra. That is, all of these offenses required the jury
to have found that the victims were touched on their intimate parts for the purpose of sexual arousal
or gratification. The proof at trial was uncontroverted that the Defendant touched each of the female
victims on their “intimate parts.” The question for our determination, then, is whether “any evidence
exists that reasonable minds could accept” that the Defendant touched the victims’ intimate parts for
some reason other than sexual arousal or gratification. Burns instructs us that, in answering this
question, we “must view the evidence liberally in the light most favorable to the existence of the
lesser-included offense without making any judgments on the credibility of such evidence.” Id., 6
S.W.3d at 469.

        We hold that, given the proof in this case, the jury could have reasonably concluded that the
Defendant touched the victims in the manner that he did for reasons other than sexual arousal or
gratification. For instance, the Defendant may have been trying to frighten and/or intimidate the
victims; he may have been “counting coup” in some fashion; he may have been harassing the women
simply because he was in a position to do so. The Defendant himself contends on appeal that he was

                                                  -8-
“searching” the women for weapons or valuables. Any of these reasons – or any of a myriad of
other reasons -- would have supported a conviction of Class B misdemeanor assault. Thus, the trial
court erred in failing to instruct the jury on this lesser-included offense of aggravated sexual
battery.2

         Having determined that the trial court erred in its jury charge, we must now decide whether
the trial court’s error is harmless beyond a reasonable doubt. See State v. Ely, 48 S.W.3d 710, 727
(Tenn. 2001) (holding that, “when determining whether an erroneous failure to instruct on a lesser-
included offense requires reversal, . . . the proper inquiry for an appellate court is whether the error
is harmless beyond a reasonable doubt.”) We hold that it was not. As set forth above, all of the
offenses with which the jury was charged relative to the Defendant’s touching the victims required
that the touching satisfy the definition of sexual contact. Although the proof would have supported
a finding that the touching was simply extremely offensive or provocative, the jury was erroneously
precluded from drawing this conclusion. Thus, we cannot find that the trial court’s error in this
regard was harmless beyond a reasonable doubt. Cf. id. (finding that, where the evidence was
sufficient to support a conviction of second degree murder, reckless homicide, or criminally
negligent homicide, but the jury was given no option to convict of a lesser offense than felony
murder, the failure to instruct on the lesser-included offenses was not harmless beyond a reasonable
doubt). See also State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001) (finding that the trial court’s error
in failing to charge theft as a lesser-included offense of robbery was not harmless beyond a
reasonable doubt where the jury had no opportunity to consider an intermediate lesser-included
offense). We reluctantly conclude, therefore, that we must reverse the Defendant’s convictions for
aggravated sexual battery and remand those charges for a new trial.

                                     CONSECUTIVE SENTENCING

        In his final issue the Defendant contends that the trial court erred in ordering that he serve
two of his sentences consecutively to each other and to the remaining four sentences, which were
run concurrently, for an effective sentence of twenty-seven years.3 We note first that the Defendant’s
sentences for the aggravated robberies were all run concurrently. Two of the aggravated sexual
battery sentences were run consecutively to each other and to the remaining sentences. Because we
are reversing the Defendant’s convictions for aggravated sexual battery, the only sentences
remaining in effect are concurrent. However, if he is convicted upon retrial, the Defendant will
again be subject to evaluation for consecutive sentences. Accordingly, we deem it appropriate to
review the trial court’s determination that the Defendant qualifies for consecutive sentencing.




         2
            We also note that where, as here, the accused is armed with a gun while he touches the victims, aggravated
assau lt as defined in Tennessee Code Ann otated section 39-13-10 2(a) is also a lesser-included offense of aggravated
sexual battery.
         3
         The Defendant was sentenced as a Range I standard offender to nine years on eac h of the six c onvictions.
The Defen dant do es not challenge the length of his sentence s.

                                                         -9-
        The Defendant argues that the trial court erred in finding him to be a “professional criminal”;
an “offender whose record of criminal activity is extensive”; and a “dangerous offender,” so as to
justify consecutive sentences. See Tenn. Code Ann. § 40-35-115(b)(1), (2), (4). When an accused
challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a
de novo review of the sentence with a presumption that the determinations made by the trial court
are correct. See 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         In determining the Defendant to be subject to consecutive sentencing, the trial court first
found that the Defendant is “a professional criminal who has knowingly devoted such defendant’s
life to criminal acts as a major source of livelihood.” Tenn. Code Ann. § 40-35-115(b)(1). The trial
court based this finding on the Defendant’s four misdemeanor gambling convictions, stating, “I
certainly think that one could construe convictions for gaming as one attempting to make a
livelihood by wagering.” While we agree with the general tenor of the trial court’s remark, we
respectfully disagree that there was sufficient proof in this case that the Defendant’s criminal acts
served as a major source of his livelihood. The is no proof in the record as to the amounts of money
the Defendant wagered, and no proof that he actually won any money at his gambling attempts. His
other criminal acts, as set forth in the presentence report, include convictions for driving with a
revoked license; larceny, auto; criminal impersonation; theft of property under $10,000; resisting a
stop; criminal trespass; aggravated assault; and driving on a suspended license. There simply is no
proof in the record that the Defendant obtained a major source of his livelihood from this series of
criminal acts. Accordingly, the trial court erred in ordering consecutive sentences on the basis that
the Defendant is a “professional criminal.”

         The trial court also found that the Defendant was subject to consecutive sentences on the
basis that his record of criminal activity is “extensive.” See id. § 40-35-115(b)(2). We agree with
the trial court in this regard. At the time the presentence report was prepared, the Defendant was

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twenty-nine years old. Beginning at age twenty-one, the Defendant had compiled a list of nineteen
convictions by the time of sentencing, not including the present convictions. He also has numerous
arrests, including a murder charge, for which no convictions were obtained. While most of the
Defendant’s prior convictions are for misdemeanors, their number and variety satisfy the meaning
of “extensive.” Cf. State v. Pettus, 986 S.W.2d 540, 545 (Tenn. 1999) (the defendant’s prior record
of two thefts, an unlawful weapons conviction, contributing to the delinquency of a minor, and
driving on a revoked or suspended license was sufficient to support consecutive sentences on the
basis that the defendant’s record of criminal activity was extensive). Imposition of partial
consecutive sentencing is therefore justified on this basis.

        The trial court also found that 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.” Tenn. Code Ann. § 40-35-115(b)(4). In deciding to so classify the
Defendant, the trial court stated, “When you enter into a business and line all of the customers and
employees up, and do what these people did, I don’t see how the Court could say that it wasn’t a risk
to human life in this situation.” We agree that the Defendant’s actions in this case indicated little
or no regard for human life, and no hesitation about committing the crimes when the risk to human
life was high. Indeed, the Defendant sent Mr. Sherrell in to check the business out before the
robbery, so the Defendant knew that there were at least two women inside. Nevertheless, the
Defendant carried out his plan to enter the business armed, with an armed cohort. Once inside, the
Defendant closed the blinds, disabled the phone, and ensured the dismissal of a potential rescuer,
thereby effectively eliminating any help for the victims and increasing their danger.

        However, before a defendant can be subjected to consecutive sentences on a finding that he
or she is a dangerous offender, the proof must also establish that the sentence imposed is reasonably
related to the severity of the offenses committed, and is necessary in order to protect the public from
further criminal acts by the offender. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
The trial court in this case did not address these two prerequisites. Nevertheless, we hold that the
record establishes these requirements. The Defendant deliberately walked into a business in which
he knew at least two women were working. He carried a gun and was accompanied by another
gunman. He took actions to prevent the victims from obtaining help. He held five people at
gunpoint for at least twenty minutes. He physically assaulted the women while holding them at
gunpoint. These offenses are severe. The Defendant’s extensive history with law enforcement has
not deterred him from continuing to commit dangerous and life-threatening crimes. The consecutive
sentences imposed in this case were appropriate, and we find no error in the trial court’s imposition
of an effective twenty-seven year term. This issue is without merit.

                                          CONCLUSION

       The Defendant’s convictions for aggravated sexual battery are reversed and remanded for a
new trial. In all other respects, we affirm the judgment of the trial court.




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       ___________________________________
       DAVID H. WELLES, JUDGE




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