State of Tennessee v. Anthony Lebron Vance ( 2021 )

07/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 18, 2021
STATE OF TENNESSEE v. ANTHONY LEBRON VANCE
Appeal from the Criminal Court for Hamilton County
No. 304410 Don Poole, Judge
No. E2020-00467-CCA-R3-CD
The Defendant, Anthony Lebron Vance, was convicted by a Hamilton County Criminal
Court jury of rape, a Class B felony. See T.C.A. § 39-13-503 (2018). The trial court
sentenced him to twenty-five years at 100% and imposed the sentence consecutively to the
Defendant’s ten-year sentence in another case. On appeal, the Defendant contends that (1)
the evidence is insufficient to support his conviction and (2) the trial court erred in
imposing consecutive sentencing. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
Michael L. Acuff (at trial and on appeal) and William Christopher Dixon (at trial),
Chattanooga, Tennessee, for the Appellant, Anthony Lebron Vance.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Neal Pinkston, District Attorney General; Andrew Coyle and Miram
Johnson, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The Defendant’s conviction relates to a January 3, 2018 sexual assault, which
occurred as the victim walked home from a bus stop. In addition to the victim’s testimony,
GPS information and DNA analysis results connected the Defendant to the crime.
At the trial, the victim testified that the Defendant approached her after she
disembarked from a bus around 6:53 to 6:57 a.m. She said the Defendant asked her name,
asked if she wanted money, and asked if she wanted drugs. She said she understood the
Defendant was offering money and drugs in exchange for something. She said that she
declined money and drugs and that she was not a prostitute. She said she was wary of the
Defendant, whom she did not know. As the victim continued walking, the Defendant
walked with her and asked questions about the bus routes and bus station. She said she
walked past her house because she did not want the Defendant to know where she lived.
She said she walked with the Defendant to show him how to find the bus station. She said
that after she directed the Defendant to the bus station, he attacked her from behind, put a
jacket over her head, hit her, and knocked her to the ground after she screamed. She said
she removed the jacket and left it “so someone can see it.” She said that the Defendant had
a shiny object “on him,” that she did not know what it was, and that he stated he had a
weapon. She said she tried to pick up a stick, which the Defendant knocked from her hand.
She said the Defendant told her that he would kill her if she screamed. She said she pleaded
for her life, that she told the Defendant she “would do anything,” and that the Defendant
said he wanted anal sex, which she said she refused. The victim stated that she continued
to plead for her life and that the Defendant said he wanted oral sex. She said she did not
run because she feared for her life.
The victim testified that the attack occurred in a field behind a duplex. She said the
Defendant forced her to lie down and removed her clothes. She said he told her that if she
screamed, he would kill her and her family. She said he forced his penis into her mouth.
She said the assault continued for about twenty minutes, until two cars drove by, and that
the Defendant went into some bushes and acted as if he were talking on a cell phone as the
car passed. She said that after the cars passed, the Defendant returned, digitally penetrated
her vagina, penetrated her vagina with his penis, and sucked her breasts. She said the
digital penetration was painful because the Defendant scratched her vaginal tissue and
forced himself inside her. She said the Defendant kissed her and forced his tongue down
her throat.
The victim testified the Defendant ended the attack when cars drove past and a
neighbor came outside. She thought the neighbor saw the Defendant. She said the
Defendant got dressed and helped her get dressed. She said the Defendant asked her for
forgiveness and asked her to pray with him but that she declined. She said she was having
asthma and panic attacks at this point, that she coughed up blood, that the Defendant told
her to “shut up,” and that the Defendant got her inhaler and gave it to her. She said the
Defendant took her work identification badge.
The victim testified that the Defendant prayed. She said she and the Defendant
walked to the neighbor. She said the Defendant stated that he did not mind if the neighbor
or the victim called the police or an ambulance but to give the Defendant ten minutes to
get away. She said the Defendant identified himself as “Tony.” The victim said she was
taken to a hospital by ambulance, where she was admitted for a seven-day stay.
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The victim testified that the Defendant wore beige pants, a white shirt with brown
stripes, a black or blue jacket, and a black or blue toboggan. She said he had a facial scar
and smelled like he had been drinking alcohol.
The victim testified that she identified the Defendant in a photograph lineup and
said she would never forget his face, scar, and clothing. She identified the photograph of
the Defendant that she had identified in the photograph lineup, and the photograph was
received as an exhibit.
The victim agreed that she screamed twice during the assault. She agreed the assault
lasted longer than one to two minutes, that it might have been as long as twenty minutes,
and that passersby would have been able to see the Defendant standing as he pretended to
talk on a cell phone. She said, however, that they would have been unable to see her
because she was on the ground. When asked if her memory about the relevant events was
poor, she responded, “This been a while.” When asked if she had mentioned in her
previous testimony that a second car passed by during the attack, she said she did not recall
how many cars had passed but that she remembered hearing cars. She agreed that she had
given two accounts regarding her work identification card by stating on one occasion that
the Defendant saw the card when it “fell out” and on another occasion that the Defendant
grabbed the card. She agreed that upon the Defendant’s seeing the card, he stated, “I’m
sorry, you not the person that I supposed to kill, the gang members sent me after the person
that stole the dope money, or whatever.” She agreed that the Defendant found her inhaler,
gave it to her, and walked her to the neighbor after apologizing to her. Regarding her prior
statements and testimony, the victim acknowledged that she sometimes had difficulty
understanding what the attorneys asked her. She said she did not enjoy reliving the assault.
Jerry Davis, who lived near the location where the assault occurred, testified that he
was outside early on the morning of January 3, 2018, when he saw a man and a woman
dusting themselves off about twenty feet away. He said that they approached him, that the
woman had a bloody nose and stated she was having an asthma attack, that Mr. Davis said
he was going to call an ambulance, and that the man said not to call the police because he
was a “gang banger.” Mr. Davis said the victim, with whom he had spoken before the day
of the incident, seemed scared. He said the man ran away when Mr. Davis’s daughter
called the police. Mr. Davis identified the man he saw that morning as the Defendant.
Chattanooga Police Investigator Damarise Goehring testified that she interviewed
the victim at the hospital. She said the victim described her assailant as an older, black
man with a scar on his face who wore a white shirt with brown stripes and khaki pants.
She said the victim appeared shaken. Investigator Goehring said the victim later identified
the Defendant in a photograph lineup. Investigator Goehring said she and Investigator
Williams searched the scene and did not locate any evidence.
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Investigator Goehring testified that she and Investigator Williams interviewed the
Defendant. A recording of the interview was played for the jury, and in it, the Defendant
stated the following: On the night of January 2, 2018, he stayed overnight at “the kitchen.”
On January 3, 2018, he woke at 5:00 a.m. and cleaned inside and outside the kitchen, ate
breakfast at 7:00 a.m., and went to the Homeless Health Clinic across the street from the
kitchen around 9:00 a.m. When asked if he had visited his mother on January 3, he said he
had not been to his mother’s house in about two weeks. He did not recall riding a bus or
getting a ride to the area near a recreation center on January 3. He said he had an
appointment at the health center in the same area on January 3 but that he did not go to it
because he was on another side of town. When asked what he would say if he were told
someone saw him walking on the morning of January 3 in the area which other evidence
showed was where the attack occurred, he said he had not been there and had been “in this
side of town.” He said he did not remember talking to a young woman on the sidewalk in
the area which other evidence showed was where the attack occurred. When shown a
photograph of himself wearing a jacket and when told someone saw him in the area where
the attack occurred on the morning of January 3, he said he had not been there. He did not
remember talking to a young woman who got off a bus and said he was being mistaken for
someone else. He said he did not follow a young woman, drag her behind a house, and
rape her. He said cameras at the kitchen would show his presence at the kitchen around
6:30 a.m. on January 3. When told that the young woman had reported the Defendant’s
having threatened to return and hurt her, he said, “I’m not no gang affiliated. I don’t make
threats.” The recording reflects that the officers had not mentioned gang affiliation before
the Defendant mentioned it. When shown a photograph and asked if he knew the woman
depicted in it, the Defendant said he did not know her and denied he had talked to her on
January 3. He said there would be no reason for his DNA to be on the woman’s body.
When asked repeatedly about the woman’s knowing he was known as “Tony,” the
Defendant stated that many people called him Tony. He said he did not ride the bus because
his “girl” had a car. He said he did not have a bus schedule in his pocket on January 3.
When told a bus schedule with a notation of his January 3 appointment at the health center
had been found on the ground where the woman had been attacked, he said, “No,” and
encouraged the officers to check the video recordings from the kitchen.
State of Tennessee employee Evo Efiom testified that, as part of his job duties, he
had given the Defendant a GPS monitor. Regarding the Defendant’s whereabouts from
7:02 until 8:17 a.m. on January 3, 2018, Mr. Efiom stated that the Defendant had been in
the vicinity of the 1300 block of Sheridan Avenue, with tracking points on the corner of
Sheridan and Wilson. Other evidence showed that this was the area in which the victim
was assaulted.
Rape Crisis Center employee Lee Preston testified as an expert sexual assault nurse
examiner. She stated that she met with the victim at the hospital, where Ms. Preston
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performed a forensic examination and created a report and “traumagram” with the victim’s
assistance. Ms. Preston described the victim as appearing to be in pain and traumatized.
Ms. Preston testified that the victim reported she last had consensual sex three to
five days before the rape. The victim rated her pain from an asthma attack as an eight out
of ten. She reported that the perpetrator’s penis and fingers penetrated her vagina, that the
perpetrator’s penis penetrated her mouth, and that the Defendant kissed her and sucked her
left nipple. The victim reported that she had been strangled and had “suffered a cardiac
event” during the attack. The victim stated the strangulation precipitated an asthma attack.
The victim was unsure if the perpetrator ejaculated.
Ms. Preston testified that upon physical examination, the victim was tender upon
touch to her face, neck, mouth, cheekbone, and temple. The victim’s right upper back was
red, and she had an abrasion on her right upper buttock. She had pain in her hips and upper
legs from the perpetrator’s having sat on her by pressing his legs into her upper legs. Ms.
Preston said the speculum exam caused the victim to cry out in pain. Ms. Preston said that
she did not photograph the victim internally due to the victim’s pain and that the victim
had active vaginal bleeding that was not attributable to menstruation. Ms. Preston said
bleeding was unusual from a sexual assault. Ms. Preston said she also combed the victim’s
pubic hair and swabbed various parts of the victim’s body for evidence. Ms. Preston stated
that the victim’s injuries were recent and were consistent with the victim’s account of the
rape.
Tennessee Bureau of Investigation (TBI) special agent forensic scientist, Dr. Laura
Boos, testified as an expert in forensic biology that she examined evidence collected in this
case. She said the vaginal, oral, and external genital swabs tested negative for the presence
of sperm. She said the left nipple swab tested positive for the presence of saliva. Upon
further testing, she determined that the swab contained the DNA of at least three
individuals, at least one of whom was male. She conducted further testing of the swab and
determined that the Defendant’s DNA was consistent with that of the major contributor.
The defense elected not to present evidence. The jury found the Defendant guilty
of the charged offense of rape.
At the sentencing hearing,1 the trial court received as exhibits certified copies of the
judgment forms for the Defendant’s prior convictions for attempted aggravated burglary,
1
The trial court also considered the pending probation violation warrant related to the Defendant’s prior
rape conviction during the first of two hearings related to sentencing. The court revoked probation and
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burglary of a business, robbery, burglary, aggravated assault, and rape. The rape judgment
reflected that the Defendant was serving a ten-year enhanced probation sentence at the time
of the present offense.
The presentence report, which was received as an exhibit, reflected that the
Defendant was fifty-six years old at the time of sentencing. The Defendant told the
presentence report preparer that he had been wrong to try to trick the victim into having
sex with him for $100, despite the fact he did not have $100. The victim provided a written
statement to the report preparer, in which the victim stated that she was still fearful, that
she was receiving counseling as a result of the rape, and that she was financially burdened
by the resulting costs of medical treatment, counseling, and associated transportation. The
Defendant had an extensive history of criminal convictions beginning at age eighteen and
spanning his adult life. He had multiple past probation violations. The Defendant claimed
to be a member of the Crips criminal street gang, but law enforcement records did not
support his claim. The Defendant reported that he had completed the required high school
graduation credits but that he never obtained his diploma. He reported fair physical and
mental health, having been diagnosed with bipolar disorder and schizoaffective disorder,
and a history of psychiatric hospitalizations. He received Social Security disability benefits
related to his mental health diagnosis. The Defendant reported frequent use of alcohol and
marijuana, both of which began in his teenage years, until his incarceration. He reported
that he had been under the influence of alcohol at the time he committed the offense in the
present case.
The Strong-R risk assessment report, which was incorporated by reference into the
presentence report, stated that the Defendant was a “predatory adult sexual offender,
opportunistic type,” who had a high risk of reoffending. The Defendant reported having
tricked the victim into having sex in exchange for $100 but failing to pay her. He reported
that he had employed this ruse “100’s of times,” but he also reported a sexual history of
twenty-five partners, of whom he had “tricked” approximately twenty into having sex.
A document authored by the victim was received as an exhibit. In it, she stated that,
in her opinion, the Defendant was a danger to society and should be incarcerated for the
rest of his life.
Julia Vance, the Defendant’s mother, testified that the Defendant had lived with her
for most of his life and that he could return to live with her once he was no longer
incarcerated. She said he had been a good child and had attended church throughout his
life, including when he was incarcerated. She said that he had worked for periods of one
ordered the Defendant to serve the balance of his ten-year sentence.
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year or less until he obtained Social Security benefits and that he had been ordained as a
minister about ten years ago. She said he had done volunteer work at Community Kitchen.
After receiving the proof relative to sentencing, the trial court found that the
Defendant was entitled to mitigation based upon the evidence of his mental health issues.
See T.C.A. § 40-35-113(8) (2019) (“The defendant was suffering from a mental or physical
condition that significantly reduced the defendant’s culpability for the offense; however,
the voluntary use of intoxicants does not fall within the purview of this factor[.]”). The
court found relative to enhancement that the Defendant had a lengthy criminal history and
that he failed to comply with the terms of the sentence of probation he was serving at the
time of the offense. See id. § 40-35-114(1) (2019) (“The defendant has a previous history
of criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range[.]”), -114(8) (“The defendant, before trial or sentencing, failed to comply
with the conditions of a sentence involving release into the community[.]”), -114(13)(C)
(the defendant was released on probation at the time he committed the offense). The court
relied upon the Defendant’s having been on probation at the time of the offense as its basis
for imposing consecutive sentencing. See id.§ 40-35-115(b)(6) (2019) (“The court may
order sentences to run consecutively if the court finds by a preponderance of the evidence
that . . . [t]he defendant is sentenced for an offense committed while on probation[.]”). The
court found that the Defendant’s prognosis for rehabilitation was poor and that his risk of
reoffending was high.
As a Range III offender, the Defendant faced a sentence of twenty to thirty years for
his Class B felony conviction. See id. § 40-35-112(c)(2) (2019). The court imposed a mid-
range-sentence of twenty-five years and ordered that the Defendant serve his sentence
consecutively to the sentence for his previous rape conviction, yielding an effective thirty-
five-year sentence for the combined sentences. This appeal followed.
I
Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his convictions.
He argues that the rule of cancellation applies to the victim’s testimony, which he
characterizes as contradictory. The State counters that the evidence is sufficient because
the victim’s account of a sexual assault is not contradictory and that it is corroborated by
other evidence. We agree with the State.
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
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Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’“ State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009).
As relevant to this case, rape is unlawful sexual penetration of a victim by a
defendant accompanied by force or coercion to accomplish the act or without the victim’s
consent where the defendant knows or has reason to know the victim did not consent at the
time of penetration. T.C.A. § 39-13-503(a). “‘Sexual penetration’ means sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,
of any part of a person’s body or of any object into the genital or anal openings of the
victim’s, the defendant’s, or any other person’s body, but emission of semen is not
required[.]” Id. § 39-13-501(7) (2018).
The Defendant’s argument regarding the victim’s credibility focuses on purported
inconsistencies in her testimony regarding where she walked while talking with the
Defendant before the rape, whether she could see the Defendant at one point, and when the
Defendant first exposed his penis. The Defendant also argues that the victim’s testimony
is “difficult to parse out and understand” regarding how the rape began. He argues, as well,
that the victim’s testimony was uncorroborated as to her having left a coat at the scene and
as to having screamed twice. He also posits that the victim’s claim she walked past her
house before the attack is implausible, given that she could have escaped to safety if she
had been wary of the Defendant, as she claimed. The Defendant further argues that the
victim’s testimony is implausible regarding her account that (1) he stopped the attack after
seeing her identification card and claiming she was not the person gang bangers had sent
him to kill, (2) the Defendant twice interrupted the rape to dress, stand, and pretend to talk
on a cell phone, and (3) the rape took place over an extended period of time, yet it was not
observed by any witnesses.
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“[C]ontradictory statements by a witness in connection with the same fact cancel
each other.” State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993); see Taylor
v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn. Ct. App. 1978). The rule of
cancellation comes into play “only when the inconsistency in a witness’ testimony is
unexplained and when neither version of [the] testimony is corroborated by other
evidence.” Matthews, 888 S.W.2d at 450 (citing Taylor, 573 S.W.2d at 483).
As we have stated, it is not the function of this court to invade the province of the
trier of fact by reassessing witness credibility. See Bland, 958 S.W.2d at 659 (Tenn. 1997);
see Sheffield, 676 S.W.2d at 547. The victim testified that, at times, she was confused by
the attorneys’ language and had difficulty understanding their questions. The Defendant’s
focus on parts of her testimony must not be considered in isolation. Rather, we view her
testimony in its overall context. In that regard, she provided an account of a sexual assault
occurring after the Defendant approached her with questions about buses and the bus
station and then attacked her and took her behind a residence to perpetrate his attack. Her
account of a non-consensual sexual encounter was corroborated by the forensic
examination, which included findings of tenderness on palpation of several parts of her
body, blood from her vagina, and significant pain upon vaginal examination. The
Defendant’s DNA was found on her breast. We note, as well, that the defense’s cross-
examination of the victim regarding the location in which various relevant events occurred
was less than straightforward, which supports the victim’s testimony that she had difficulty
understanding what the attorneys asked of her at times. When questioned by the police,
the Defendant denied that he had been in the area where the victim was attacked, but GPS
data showed that he had been in the area of the attack. Mr. Davis testified that the
Defendant told him not to call the police and that the Defendant claimed to be a gang
member, the latter of which is consistent with the victim’s account of the Defendant’s
having claimed to have been sent to kill someone on behalf of gang members.
Viewed in the light most favorable to the State, the record reflects that the Defendant
approached the victim on the street and began a conversation with her. The victim
attempted to help the Defendant with his questions. The Defendant offered drugs and
money, which the victim declined. The Defendant attacked the victim, moved her to a
location behind a residence, and sexually penetrated her. The victim did not consent to
sexual penetration. In addition, the Defendant used force to accomplish the attack. After
the attack, the Defendant apologized and claimed he had been sent to kill someone but that
he had targeted the wrong person. The Defendant fled the scene when Mr. Davis’s
daughter called 9-1-1. The evidence is sufficient to support the Defendant’s rape
conviction. He is not entitled to relief on this basis.
II
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Consecutive Sentencing
The Defendant contends that the trial court erred in imposing his twenty-five-year
sentence consecutively to the ten-year sentence he was serving following the court’s
revocation of his probation for the previous conviction. The State counters that the court
did not abuse its discretion. We agree with the State.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));
see T.C.A. § 40-35-102 (2019).
Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
The abuse of discretion with a presumption of reasonableness standard also applies
to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 (Tenn.
2013). A trial court has broad discretion in determining whether to impose consecutive
service. Id. A trial court may impose consecutive sentencing if it finds by a preponderance
of the evidence that one criterion is satisfied in Tennessee Code Annotated section 40-35-
115(b)(1)-(7) (2019). In determining whether to impose consecutive sentences, though, a
trial court must ensure the sentence is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4) (2019); see State v. Desirey, 909
S.W.2d 20, 33 (Tenn. Crim. App. 1995).
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The Defendant argues that a thirty-five-year effective sentence, based upon his
twenty-five-year sentence in the present case imposed consecutively to his prior ten-year
sentence, is too harsh because it is an effective life sentence for him, given his age and the
fact that he can earn no more than 15% behavioral credits toward early release. He does
not challenge any enhancement factors relied upon by the trial court as being unsupported
by the evidence in arriving at the twenty-five-year sentence for the present conviction.
Likewise, he does not challenge the court’s finding that he was on probation at the time he
committed the present offense, which formed the basis for consecutive sentencing.
As the appealing party, the Defendant bears the burden of demonstrating that the
sentence imposed was improper. See T.C.A. § 40-35-401 (2019) (Sent’g Comm’n Cmts.).
The record reflects that the trial court relied upon the Defendant’s commission of the
present rape while on probation for rape as the basis for consecutive sentencing. See id. §
40-35-115(b)(6). The Defendant has an abysmal criminal history, which spans his entire
adult life, and past periods of incarceration and supervision have failed to correct his
continued disregard for the law. By his own admission, he is a sexual predator. Upon
review, we conclude that the trial court did not abuse its discretion in imposing consecutive
sentencing. The record supports the court’s conclusion that an effective thirty-five-year
sentence is no greater than that deserved for the Defendant’s offenses and is the least severe
measure necessary to achieve the purposes underlying the sentence. See id. § 40-35-
103(2), (4); Desirey, 909 S.W.2d at 33. The Defendant is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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