State of Tennessee v. Larry Douglas Clemons ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 09, 2014
STATE OF TENNESSEE v. LARRY DOUGLAS CLEMONS
Appeal from the Circuit Court for Smith County
Nos. 12CR213, 12CR236, 12CR302 John D. Wootten, Jr., Judge
No. M2014-00131-CCA-R3-CD - Filed April 17, 2015
Defendant, Larry Douglas Clemons, pled guilty in Case No. 12-CR-213 to four counts of
trafficking for sexual servitude (Counts 1-4), one count of attempt to commit trafficking for
sexual servitude (Count 5), especially aggravated sexual exploitation of a minor (Count 6),
thirteen counts of aggravated sexual exploitation of a minor (Counts 7-19), and six counts
of sexual exploitation of a minor (Counts 20-25). In Case No. 12-CR-236 Defendant pled
guilty to one count of aggravated sexual exploitation of a minor, and in Case No. 12-CR-302
Defendant pled guilty to two counts of trafficking for sexual servitude (Counts 1-2) and five
counts of statutory rape (Counts 3-7). The trial court ordered a portion of the sentences to
be served consecutively for an effective one-hundred seventy-six-year sentence. In his sole
issue on appeal, Defendant asserts that the trial court erred by ordering partial consecutive
sentencing. After a thorough review of the record and the briefs, we affirm the judgments
of the trial court. However, we remand for a corrected judgment in Count 20 of Case No.
2012-CR-213.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
Remanded for a Corrected Judgment in Count 20 of Case No. 2012-CR-213
T HOMAS T. W OODALL, P. J., delivered the opinion of the Court, in which A LAN E. G LENN and
T IMOTHY L. E ASTER, JJ., joined.
Comer L. Donnel, District Public Defender; William Cather and Michael W. Taylor,
Assistant District Public Defenders, Lebanon, Tennessee, for the appellant, Larry Douglas
Clemons.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Tom P. Thompson, Jr., District Attorney General; Tom Swink and Howard Chambers,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Background
Defendant’s case initially went to trial, and during the testimony of the State’s first
witness, Special Agent Joshua Savley of the Tennessee Bureau of Investigation, Defendant
decided to plead guilty to all charges. Special Agent Savley’s testimony prior to the guilty
plea was in reference to Counts 1 through 5 in Case No. 12-CR-213. Special Agent Savley
testified that he was assigned to investigate the allegations in the present case. He
interviewed Defendant on August 2, 2012, and a search warrant was executed at Defendant’s
residence. Defendant waived his rights and gave a written statement. Special Agent Savley
spoke with Defendant a second time the following day. Defendant again waived his rights
and gave a statement.
In his statements, Defendant admitted to speaking with the fifteen-year-old victim,
who was his step-granddaughter, about sex. He arranged for and transported her to have
several sexual encounters with men in various locations, including Carthage, Tennessee,
Lebanon, Tennessee, Murfreesboro, Tennessee, and Tunica, Mississippi between January of
2010 and August of 2012. Defendant admitted that he received pictures of the victim having
sex with some of the men, and he also received pictures of the victim’s breasts and vagina
from some of the men. Defendant saved the pictures and shared them with others through
emails and texts for the purpose of arranging future sexual encounters with the victim.
Defendant told Special Agent Savley that he had contacted Winnie Hunt about arranging for
the victim to have sex with some Mexican men. He sent pictures of the victim having sex
to Ms. Hunt, and he also sent pictures of the victim’s genitalia to her. Defendant and Ms.
Hunt then discussed an arranged payment of $300 for the sexual encounter. Defendant
explained that Ms. Hunt would receive $100, and he and the victim would split the remaining
$200. Defendant also admitted to attempting to arrange additional sexual encounters
between the victim and other men.
Special Agent Savley testified that Winnie Hunt later worked as a confidential
informant. She placed phone calls to Defendant that were recorded, and she wore a “wire”
during a meeting with Defendant in which they discussed arranging for the victim to have
sex with men. Defendant’s statements during the meeting were recorded. Special Agent
Savley testified that during the search of Defendant’s home, a notebook was found
containing notes that Defendant wrote concerning the victim’s sexual encounters with adult
men. Special Agent Savley also obtained hotels records showing the dates and charges
corresponding to hotel rooms obtained by Defendant. Files and messages were retrieved
from Defendant’s computer as well as his cell phone and email account. Special Agent
-2-
Savley read sexually explicit emails into the record from Defendant to various men
concerning sexual encounters with the victim.
The following is a brief summary of the facts supporting each count of the indictments
which were read into the record by the prosecutor at the guilty plea submission hearing. In
Case No. 2012-CR-213, Counts 1-4 (trafficking a minor for sexual servitude), Defendant
offered the fifteen-year-old victim for various sex acts to men he contacted on the internet.
He made hotel arrangements for these encounters and transported the victim to the hotel
rooms. Defendant also gave the men explicit and graphic instructions for engaging in sex
acts with the victim, and he encouraged the men to supply the victim with alcoholic
beverages. For Count 5 (attempted trafficking a minor for sexual servitude), Defendant
attempted to arrange for a sexual encounter between the victim and another man as described
in the first four counts. Counts 7-14 (aggravated sexual exploitation of a minor), involved
the distribution by Defendant of eight separate sexually explicit photographs of the victim
to various people on the internet. In support of Counts 15-19 of the indictment in Case No.
2012-CR-213 (aggravated sexual exploitation of a minor), Defendant distributed five images
of child pornography involving the victim to Winnie Hunt. A conversation between Ms.
Hunt and Defendant was recorded to corroborate the five counts. In Counts 20-25 (sexual
exploitation of a minor), Defendant possessed six photographs of the victim engaged in sex
acts or of her exposed body.
In Case No. 2012-CR-236 Defendant was charged with one count of aggravated
sexual exploitation of a minor. This involved the distribution by Defendant of a picture of
the victim’s vagina to Winnie Hunt.
Finally, in Case No. 2012-CR-302, Counts 1-2 (trafficking a minor for sexual
servitude), Defendant on one occasion transported the victim and Wesley Jones, an adult
male, to Tunica, Mississippi for the purpose of sex. On a separate occasion, Defendant
transported the victim and Ryan Lewis, another adult male, to a shop in Lewis County for the
purpose of sex. In Counts 3-7 (Statutory Rape), Defendant was criminally responsible for
five separate penetrations of the victim by Jonathan Mungle, and the sexual encounters were
arranged by Defendant.
Defendant listened to all of the facts read into the record by the prosecutor and agreed
that they were accurate and that all of the events took place.
At the sentencing hearing James Leach, an employee of the Tennessee Department
of Correction, Probation and Parole, testified that Defendant did not wish to make a
statement concerning his version of the facts for the presentence report. A victim impact
-3-
statement was included in the report. Mr. Leach noted that Defendant had no prior
convictions; however, he had pending charges in Wilson County related to the present case.
Mr. Leach testified that a psychosexual report was prepared on Defendant, and it
reflected that Defendant was in a medium to high risk to reoffend. On cross-examination,
Mr. Leach agreed that it was recommended that Defendant continue sex offender treatment
that should reduce the likelihood of Defendant reoffending.
The victim impact statement contains the following:
I cannot say I had physical injuries, but I do know that sex with some of these
men was very painful. Luckily I was not infected with any kind of STD.
* * *
I feel like this has done a lot of emotional harm. I went to counseling for a
year. Having him out of my life is a big help. I wonder if I will ever be able
to have a normal relationship and trust again.
At the sentencing hearing Defendant gave the following allocution:
Throughout my life, my family and friends have been my world. I now know
that my actions were stupid and selfish and hurtful to [the victim], my wife,
and my family and friends. The last thing I wanted to do was hurt either one
of them. I still love them as much today as I always have. That’s why I ended
the trial, to save them from anymore [sic] embarrassment if I could.
I do want to make it clear that I never touched [the victim] in a sexual way, but
I now understand the way the law of criminal responsibility works. I should
never have taken [the victim] to have sex with anyone. I am deeply sorry for
the hurt I have caused [the victim] and Nancy and all of my family and friends.
I hope you all can eventually find a way to forgive me and think of the good
that I did rather than the bad.
The trial court considered the principles of sentencing and noted the sentencing range
for each count of the three indictments. The trial court then made the following findings in
part concerning Defendant’s sentences:
This Court heard, prior to the termination of the proceedings in November, in
the form of emails initiated and responded and also returning emails that this
-4-
defendant responded to, some of the most repugnant language that one could
imagine going back and forth relating to a family member of his, a young girl
that at best was 15 years of age and maybe up to about 17 - - or 14 to 15 to 16
or 17, a young girl that I’ve read the impact statement that deprived her of that
which any young teenage girl should hold dear to herself. [Defendant], you
pimped your own step-granddaughter.
[Defendant], as I look at all the enhancement factors here, the only one that
doesn’t apply because it is engrained in the nature of these offenses, the age
of the victim, every enhancement factor applies in this case. You did impose
extreme cruelty, mental and physically, on a young teenage girl.
You did cause by your conduct personal injury to her, emotional and physical
to her. You were the leader in the commission of all of these crimes because
you initiated it all by pimping that granddaughter. You wanted the pleasure
that you could derive by your conduct as you allowed multiple men to violate
her. You violated indeed a position of trust as a grandfather to her by putting
her out basically for sexual servitude to derive your own sense of sexual
pleasure from this and promote sexual pleasure for others. Every enhancement
factor except for the age of the victim applies in this case.
I’ve looked at the mitigating factors that the statutes of this state provide.
None apply. There is but one that might be considered, that is, sir, mercifully,
you stopped this proceeding. You stopped it before the State’s prosecuting
witness, the TBI agent, completed his testimony. That’s the only mitigating
factor that this Court can consider. You told me that you didn’t want your wife
nor your step-granddaughter to go through this, but yet we started a trial.
So what should your sentence be, since I find that every enhancement factor
that the State has cited applies excepting [sic] one? With regard to Count 1,
trafficking for sexual servitude, in case number 12-CR-213, given the number
of enhancing factors that apply in this case and even counterbalancing the fact
that you stopped this trial with your guilty plea, these are advisory only, but
they all seem to apply, I sentence you to 12 years as a Range I offender.
With regard to Count 2, the same crime, trafficking for sexual servitude, I
sentence you to 12 years as a Range I offender. With regard to Count 3,
trafficking for sexual servitude, I sentence you to 12 years as a Range I
offender.
-5-
With regard to trafficking for sexual servitude in Count 4, I sentence you
similarly to 12 years as a Range I offender. With regard to Count 5, attempt
to comm[it] trafficking for sexual servitude, I sentence you to six years as a
Range I offender. With regard to Count 6, especially aggravated sexual
exploitation of a minor, I sentence you to 12 years as a 100 percent offender.
With regard to Counts 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, of the
same indictment wherein you were charged and pled to aggravated sexual
exploitation of a minor, I sentence you to six years as a Range I offender on
each count.
With regard to Counts 20 through 25 wherein the charge was that you pled
guilty to was that [sic] which was indicted, sexual exploitation of a minor, I
sentence you to four years as a Range I standard offender on each count. With
regard to case number 12-CR-236 wherein you entered a guilty plea to
aggravated sexual exploitation of a minor, a Class C felony, I sentence you to
six years as a Range I offender.
With regard to Counts 1 and 2 of case number 12-CR-302, trafficking for
sexual servitude, I sentence you to 12 years on each count as a Range I
standard offender. With regard to the remaining counts wherein you pled
guilty to five separate counts of statutory rape, I sentence you to two years as
a Range I offender on each of those counts.
The question before this Court is how should these sentences be served,
consecutively or concurrently or a combination thereof? I have to look at the
statute. The State has cited it in their brief to me, but as I independently look
at it, the defendant stands convicted of two or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and the
victim, the time span of the 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 in this case.
I find specifically that even though trafficking for sexual servitude is contained
in the section of our code that relates to kidnapping, the nature of the facts of
this case, the fact that this was done with a minor, that this particular
consideration contained in 40-35-115 subparagraph 5 that I just recited applies
to this case, accordingly, this Court sentences you as I have outlined that the
sentences for each and every sexual trafficking for the attempt to commit
-6-
sexual trafficking for the - - and I have a total of four counts of trafficking,
Counts 1 through 4, each of those 12 years shall run consecutively to each
other.
Attempt to commit to trafficking for sexual servitude, the six year sentence
that I imposed earlier shall run consecutive to the previous four. With regard
to trafficking for sexual servitude as contained in Counts 1 and 2 of case
number 12-CR-302, the 12 year sentences that I imposed therein, each of those
shall run consecutive to each other and those contained in case number 12-CR-
213, including the consecutive sentence of six years as embraced in Count 5,
the attempt to commit trafficking for sexual servitude. That’s a total of 90
years on those particular crimes.
I find that with regard to Counts 7 through 19 of case number 12-CR-213
wherein I have imposed a sentence on each count of six years, I find that they
are indeed separate and distinct offenses, and as I look to that which I recited
a few moments ago, given the relationship between the victim and the
defendant, a step-grandfather, given the time span of essentially over two years
that this young girl was subjected to this undetected sexual activity, this
pimping of his own step-granddaughter, and given the residual physical as well
as mental damage to her, I find that each of those offenses, six years on each,
shall run consecutive to one another and consecutive to that which I have
already imposed. That’s an additional 78 years.
I find, however, with regard to sexual exploitation of a minor contained in
Counts 20 through 25 wherein I impose a sentence of four years on each of
those counts that although he possessed these, I find that those four[-]year
sentences shall run concurrent with each other and concurrent with the 168
years.
I find that, indeed, one does have to possess in order to distribute and that
those sufficiently overlap, that those specific six counts would be multiplicious
for sentencing purposes.
With regard to the sole count embraced in 12-CR-236 wherein I imposed a six
[-] year sentence as a Range I standard offender, I find that that sentence, given
my guidance contained in the statute that I read verbatim, given the history or
the relationship between the parties, the victim and this defendant, given the
residual effects to the victim, and considering it all, that that six year sentence
-7-
shall run consecutive to all those others that I have outlined adding an
additional six years to [reach] 174 years.
I find in case number 12-CR-302 that with regard to the statutory rape in
Counts 3, 4, and 5, that there was one perpetrator that this defendant is
criminally responsible for. There were three separate penetrations, however,
although I reluctantly do so, I find that each of those two year sentences shall
run concurrent with each other and concurrent with that which I’ve already
imposed. Two years to run concurrent.
With regard to the remaining two counts where we have a separate indictment,
a separate incident of statutory rape, two penetrations by the same perpetrator
that this defendant was criminally responsible for, wherein I imposed a
sentence of two years on each, although I am reluctant to do so, I find that
there’s sufficient overlap there, that those two sentences should run concurrent
with each other, but that they should run consecutive with the others. Therein,
there’s a total of 176 years, given the concurrency [sic] of some counts and the
consecutive nature of others.
Analysis
Defendant contends that the trial court erred in ordering a portion of his sentences to
be served consecutively for an effective sentence of one-hundred seventy-six years for his
convictions for six counts of trafficking for sexual servitude, one count of attempt to commit
trafficking for sexual servitude, one count of especially aggravated sexual exploitation of a
minor, fourteen counts of aggravated sexual exploitation of a minor, six counts of sexual
exploitation of a minor, and five counts of statutory rape (criminal responsibility). Defendant
argues that his sentence is excessive and “not the least severe measure available to achieve
the purpose for which the sentence is imposed” and that the trial court erred by finding that
an “excessive aggregate sentence was necessary to avoid depreciating the seriousness of the
offenses.” He further argues that he had never been convicted of any prior criminal offense
and that the trial court erred by “failing to consider whether measures less restrictive than
confinement had been frequently or recently applied to the offender.” We disagree.
Whenever a defendant challenges the manner of service of sentences, including
consecutive sentencing, the appellate court reviews the trial court’s decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Pollard, 432 S.W.3d
851, 859 (Tenn. 2013). “So long as a trial court properly articulates reasons for ordering
consecutive sentences, thereby providing a basis for meaningful appellate review, the
sentences will be presumed reasonable and, absent an abuse of discretion, upheld on appeal.”
-8-
Id. at 862. However, the application of an abuse of discretion with a presumption of
reasonableness standard of review when considering consecutive sentencing based upon the
“dangerous offender” category in T.C.A. § 40-35-115(b)(4) does not eliminate the
requirements of State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995) that the “proof must also
establish that the terms [of sentencing] imposed are reasonably related to the severity of the
offenses committed and are necessary in order to protect the public from further criminal acts
by the offender.” Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938).
In sentencing a defendant, the trial court must 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 T.C.A. §§ 40-35-113 and 40-35-114; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; and (7) any statement the defendant wishes to
make on his own behalf about sentencing. State v. Carter, 254 S.W.3d 335, 343 (Tenn.
2008) (quoting T.C.A. § 40-35-210(b) (2006)). It is also “critical” that a trial court place on
the record the enhancement or mitigating factors that the court considered, if any, as well as
the court’s reasoning for the sentence, in order to ensure fair and consistent sentencing. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012).
Initially, we point out that the judgment form in Count 20 of Case No. 2012-CR-213
reflects that Defendant was convicted of aggravated sexual exploitation of a minor.
However, the plea agreement and the sentencing hearing transcript reflects that Defendant
was convicted of sexual exploitation of a minor. Therefore, we remand for entry of a
corrected judgment form in Count 20 to reflect the correct offense of sexual exploitation of
a minor.
First, Defendant argues that his effective one-hundred seventy-six-year sentence
violates the federal and Tennessee constitutional provisions against cruel and unusual
punishment. He does not argue that the sentence is outside the appropriate range. Both the
Eighth Amendment to the United States Constitution and article I, section 16 of the
Tennessee Constitution prohibit the infliction of cruel and unusual punishment . U.S. Const.
amend. VIII ( “Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”); Tenn. Const. art. I, § 16 (“That excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).
Despite the nearly identical wording of the two provisions, our Supreme Court has
consistently afforded a more expansive interpretation to article I, section 16 than that
afforded to the Eighth Amendment. See State v. Harris, 844 S.W.2d 601, 602 (Tenn. 1992).
-9-
Accordingly, although the United States Supreme Court has held that the Eighth
Amendment contains no proportionality guarantee outside of sentencing for a capital offense,
see Rummel v. Estelle, 445 U.S. 263, 274, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)
(recognizing that “for crimes concededly classified and classifiable as felonies, that is, as
punishable by significant terms of imprisonment in a state penitentiary, the length of the
sentence actually imposed is purely a matter of legislative prerogative”); Harmelin v.
Michigan, 501 U.S. 957, 994, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (refusing to extend
proportionality review to non-capital offenses), our Supreme Court has concluded that the
state constitution provides for the proportionality review of non-capital sentences. Harris,
844 S.W.2d at 602. Reviewing courts, however, should grant substantial deference to the
broad authority legislatures possess in determining punishments for particular crimes,
“[o]utside the context of capital punishment, successful challenges to the proportionality of
particular sentences [will be] exceedingly rare.” See Solem v. Helm, 463 U.S. 277, 289-90,
103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) (emphasis in original) ( quoting Estelle, 445 U.S. at
272).
In order to determine if a sentence in a non-capital case is disproportionate and
therefore in violation of Article 1, section 16’s guarantee from cruel and unusual punishment,
the Tennessee Supreme Court in Harris adopted the following analysis:
[T]he sentence imposed is initially compared with the crime committed.
Unless this threshold comparison leads to an inference of gross
disproportionality, the inquiry ends - the sentence is constitutional. In those
rare cases where this inference does arise, the analysis proceeds by comparing
(1) the sentences imposed on other criminals in the same jurisdiction, and (2)
the sentences imposed for commission of the same crime in other jurisdictions.
Harris, 844 S.W.2d at 603.
After examining the one-hundred seventy-six -year sentence imposed by the trial court
in light of the seriousness of Defendant’s offenses, we hold that there is no inference of gross
disproportionality. The fifteen-year-old victim in this case was sent to live with Defendant,
who was her step-grandfather, and her grandmother because of abuse by her step-mother
after her mother died. Defendant then “pimped” the victim out to numerous men over a two-
year period in order to satisfy his sexual fantasies. During one of the sexual encounters,
Defendant arranged for the minor victim to have sex with three men simultaneously, and he
attempted to arrange for other sexual encounters between the victim and multiple men.
Defendant obtained pictures of the victim having sex with some of those men, and he also
obtained pictures of her breasts and vagina that he distributed to others through emails and
texts. A couple of sexual encounters which Defendant arranged and transported the victim
-10-
to did not take place because the victim became upset. Defendant’s deviant behavior did not
cease until a confidential informant working with police recorded Defendant attempting to
set up another sexual encounter between the victim and multiple men.
In the victim impact statement, the victim indicated that many of the sexual encounters
arranged by Defendant were painful. The victim also attended counseling for a year and
believed herself incapable of maintaining a health relationship as a result of Defendant’s
actions. The victim felt that Defendant preyed upon her vulnerability, and she described how
Defendant’s actions robbed her of something “sacred and special” and left her feeling
“scared, dirty, and alone.”
There being no inference of gross disproportionality, we do not need to proceed to
intra- and inter-jurisdictional analyses. Defendant’s effective one-hundred seventy-six-year
sentence is not grossly disproportionate to his crimes of six counts of trafficking for sexual
servitude, one count of attempt to commit trafficking for sexual servitude, one count of
especially aggravated sexual exploitation of a minor, fourteen counts of aggravated sexual
exploitation of a minor, six counts of sexual exploitation of a minor, and five counts of
statutory rape (criminal responsibility). The sentence does not constitute cruel and unusual
punishment under the Eighth amendment of the United States Constitution or article I,
section 16, of the Tennessee Constitution. In State v. Sammie Lee Taylor, No. 02C01-9501-
CR-00029, 1996 WL 580997 (Tenn. Crim. App. Oct. 10, 1996), a panel of this court held:
Furthermore, a punishment imposed within the statutory limits for that offense
and according to this state's sentencing principles does not violate
constitutional proscriptions against cruel and unusual punishment. State v.
Flynn, 675 S.W.2d 494, 499 (Tenn. Crim. App. 1984); State v. French, 489
S.W.2d 57, 60 (Tenn. Crim. App. 1972). Therefore, any sentence within the
statutory guidelines cannot be considered excessive. Additionally, the fact that
the sentence imposed by the trial court exceeds the life expectancy of the
appellant does not, per se, make the sentence oppressive or constitute an abuse
of discretion. See State v. Tyler, 840 P.2d 413, 435 (Kan. 1992) (finding
sentence of 111 to 330 years is not cruel and unusual punishment). Accord.
People v. Walker, 663 N.E.2d 148 (Ill.App.Ct.1996) (sentence of 100 to 300
years for rape, armed robbery, and attempted murder imposed upon sixty-four
year old defendant not excessive); Hurt v. State, 657 N.E.2d 112 (Ind. 1995)
(ninety year sentence for murder and rape not unreasonable); Fields v. State,
501 P.2d 1390 (Okla. Crim. App. 1972) (1,000 year sentence not excessive).
Cf. State v. Wallace, 604 S.W.2d 890, 892 (Tenn.Crim.App.1980) (sentence
of 150 years not cruel and unusual punishment); Moore v. State, 563 S.W.2d
215 (Tenn. Crim. App. 1977) (two consecutive life sentences upheld); Hall v.
-11-
State, No. 01C01-911-CC-00338 (Tenn. Crim. App. at Nashville, Aug. 13,
1992) (110-year effective sentence does not violate eighth amendment).
This issue is without merit.
Defendant has likewise failed to demonstrate that the trial court abused its discretion
by imposing partial consecutive sentences. Tennessee Code Annotated section 40-35-115(b)
provides that a trial court may order sentences to run consecutively if it finds any one of the
following criteria by a preponderance of the evidence:
(1) The defendant is a professional criminal who has knowingly devoted the
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 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.
T.C.A. § 40-35-115(b).
-12-
These criteria are stated in the alternative; therefore, only one need exist to support
the appropriateness of consecutive sentencing. Here, the trial court applied factor (5), that
Defendant was 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, 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. Because the trial court provided reasons on the record
establishing one of the seven statutory grounds for consecutive sentencing, we afford the trial
court’s decision a presumption of reasonableness. Furthermore, the record shows that the
trial court followed the principles and purposes of the Sentencing Act, and the record
supports the trial court’s findings. See State v. Ricky Lamont Brigman, No. M2002-00461-
CCA-R2-CD, 2003 WL 21391762, at (Tenn. Crim. App. June 17, 2003)(upheld consecutive
sentencing based upon thirteen convictions for various sexual offenses involving six minor
victims over a seven-year period resulting in an effective ninety-one year sentence); State v.
William Douglas Zukowski, No. M2001-02184-CCA-R3-CD, 2003 WL 213785, at *21
(Tenn. Crim. App. Jan. 31, 2003)(consecutive sentences proper for five convictions of rape
of a child resulting in an effective one-hundred twenty-five year sentence involving a
handicapped victim, and the abuse occurred for two years); and State v. Frank Crittenden,
No. M1998-00485-CCA-R3-CD, 1999 WL 1209517, at *4 (Tenn. Crim. App. Dec. 17,
1999)(consecutive sentencing upheld resulting in an effective sentence of one-hundred years
where the defendant was indicted on thirty-six counts of sexual abuse and pled guilty to eight
counts of aggravated rape of his minor daughter occurring over a period of eight years). We
conclude that the trial court did not abuse its discretion by ordering a portion of Defendant’s
sentences to run consecutively. Defendant is not entitled to relief on this issue.
We remand for a corrected judgment in Count 20 of Case No. 2012-CR-213.
Otherwise we affirm the judgments of the trial court.
________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
-13-