*1 Tennessee, Appellee, STATE TAYLOR, Appellant. H.
William
at Nashville. 28,
Sеpt. 1987. 9, Rehearing Denied Nov. Heldman, Hollins, Wagster & J. Russell Nashville,
Yarbrough, appellant. Cody, Atty. and Re- W.J. Michael Gen. Gen., Bush, Atty. Asst. porter, Charles Nashville, appellee.
OPINION FONES, Justice.
Defendant, Taylor, H. was con- William on counts of viсted two judge sentenced defendant on count. each serve were ordered to run tively. Appeals af- firmed, granted permission and this Court appeal, to consider whether proper. sеntencing was September the Davidson 14On Jury indictment County returned an Grand charging counts defendant daughter. rape of defendant’s gravated years old at The victim was seven trial, alleged At the vic- incidents. August that tim testified engage fellatio and her to fendant forced According to with him. sexual intercourse testimony, these acts were re- the victim’s September on another occasion peatеd stated that defendant The victim anyone about her if she ever told told Despite incidents, spank her. he would threat, her mother victim informed Metropolitan Nashville girl to who took the Hospital for аn examination. General pedia- residents, specializing Three specializing obstetrics and one trics at victim examined the gynecology, that the victim ex- hospital. testified Each of a symptоms indicative hibited numerous evidence There was sexually child. abused sexually the victim than two for more defendant abused *2 years. upon jury Based this evidence the prison consecutive or concurrent found defendant on both counts of T.C.A. 40-20-111. The decision of § whether the terms are to be consec- utive or concurrent is left to the discretion presentence report
The revealed that de- of the trial court. The trial deci- charged fendant had been with fourteen subject sion is appellate misdemeanor offenses between 1967 and review courts, novo, 1984. In 1984 he 11 was sentenced tо de presumption without a days months and 29 for malicious mischief 40-35-402(d). correctness. T.C.A. § assault, 11 days and months and 29 for but portions The relevant are as apparently granted probation was with follows: unspecified some restitution conditions. Essentially, a consecutive sentence report The also revealed that the sexual imposed only finding should be after a probably abuse had started when the vic- that confinement for such years tim was four old and continued “until necessary protect a term is in order to disclosure” when she was seven old. public from further criminal conduct multiple types activity It involved of sexual by the defendant. and inflicted and emotional dam- Types of offenders for which consecutive age upon the victim. may should be reserved The trial found defendant to be a (3) multiplе classified as follows: ... offender, one, range invoking standard offender, one whose record of criminal statutory range punishment from 20 to activity is extensive.... years. punish- He fixed defendant’s count, ment аt on each sjc $ $ n n n consecutively eligibility multiple record of the offender parole upon thirty percent service of may good, have been but the crimes for the sentence. The consecutive sentences which he had convicted indicate aggravated were ordered because of the activity criminal and con- so extensive nature of the offenses and the evidence tinuing period for such a of time as to peri- that the abuse had continued “over a years”. sentencing. od of several made warrant consecutive See express promul- no refеrence Procedures, to the criteria Sentencing Alternatives and gated 3.4, C; Code, Comment Model Penal § (Tenn.1976). Ap- object is to use consecutive 7.03. peals concluded that defendant was a “mul- protect tiple offender” under and affirmed society unwilling from those are who the trial court. productive and resort to crimi- lead life
It is clear that neither of the courts activity in furtherancе of their anti- nal sentencing upon below based consecutive lifestyle. societal defendant’s record of misdemeanors and at 393. repetition that the decisive factors were the of Criminаl held Court period of of sexual abuse over a more than only although defendant was convicted disclosure, reprehen- abuse, re- acts of sexual the record types sible nature of the numerous of sex activity “criminal vealed that defendant’s upon acts committed a child of tender child has been so ex- directed this resulting physical and the and mental dam- long for such a tensive and has continued age to the victim. ‘multiple offend- period of time that he is a Thus, granted we further review of this er’.” appropri- to determine whether it was case impose ate to insists that the In this Court the State this defendant. correct of Criminal multiple offend- classifying defendant as a Persons convicted in Tennessee of two or may er under more offenses be sentenced to either imposing a сonsecutive sentence that none of the
Defendant contends that
Gray offender under
classifications
factually this
case. He insists that
intermediate court said that
Grady, akin to State v.
closely
case is
Bethany, “this
recognized
(Tenn.Crim.App.1980),1 wherein
may
protection
children
be taken
rejected
the State’s
the intermediate
considering
into account when
judge’s imposition
insistence thаt the trial
Id.
*3
justified un-
of consecutive sentences was
State,
Vermilye
v.
In
dangerous
the
offender classification
der
an
(Tenn.Crim.App.1979)
Episco-
ordained
as defined in
charges
of
pal priest was сonvicted
three
An
of recent sexual abuse
examination
against
charges of
nature and five
crime
by
difficulty
cases reveals the
encountered
against
aiding
abetting
and
crime
nature.
Gray
аpplying
classifica-
the courts
the
judge ordered sentences of
to
five
justify consecutive sentences.
tions to
ten
fifteen
ten
and
to
State,
Bethany
v.
In
565 S.W.2d
tively
produce
to
an
in such manner as
(Tеnn.Crim.App.1978),
defendant was
the
twenty-five
forty
to
effective sentence
committing a
convicted of six counts of
wayward
years. Defendant ran home for
(fellatio). The
de-
crime
nature
encouraged, participated in
boys
he
fendant was a scout master who took seven
photographed various homosexual ac-
and
boys
camp-out.
on the
on a
While
photographs
to
tivitiеs. The
were sold
outing,
engaged in fellatio
the defendant
“sponsors” of the school. Defendant
boys.
six of the
of the victims
Two
operated
the home for four or five
twelve,
were older than
while the remain-
his arrest.
to
ing
Upon
younger.
victims were twelve or
imposition
approving
judge’s
In
the trial
verdict,
the
the trial court sentenced
Court of
the
defendant,
the
and ordered the sentences
Apрeals said:
Criminal
consecutively.
trial
demonstrates,
amply
the
as the
record
though he
ordered consecutive sentences
noted,
year
a four or five
admitted he was unable to fit the defеndant
dealing by
the defendant
course
Gray
categories.
In-
into one of the five
persistent
repeated
of-
makes him
stead,
concluded that
the
(if
fender,
all)
not
who derived most
“closely
identified” with the
exploita-
his livelihood from the sexual
dangerous
offender and the
pervasive-
tion of these children.
mentally
person.
abnormal
illegal
is
in this case
ness of the
behavior
impos-
affirmed the order
Criminal
v.
Bethany
than that
much broader
ing
opin-
its
In
State,
(Tenn.Cr.App.
ion,
stated,
do not think
the
“[w]e
1978),
authority
the
the
and under
precisely
to
define ev-
was intended
case,
no hesi-
opinion in that
we havе
ery possible
situation which would
factual
method of sen-
upholding
the
tation
authorize
tencing employed here.
guidelines of
then noted that
the
sufficiently
encompass
to
broad
were
the defendant.
that while
retrospect
apparent
In
it is
justified in Be-
were
consecutive sentences
(Tenn.
Morgan
In
tory offenses that involve sexual abuse of
minors. weigh ag
Trial courts should
gravating arising from the
relationship between defendant and the vic victims,
tim or of the victim or victims, span of defendant’s unde KIRKSEY, Sr., Robert and Neva activity, tected *4 scope sexual the nature and Husband and Wife and Natural Parents of the sexual aсts and the extent of the and Next of Kin of Robert E. damage residual and mental to the Jr., Deceased, Plaintiffs-Appellants, appro victim or victims and determine the priate use ac cordingly, beаring general in mind the ob PUB, INC., OVERTON East End d/b/a
jectives set forth in Gray. Obviously, no Grill, Flanagan, Dennis James Mark rigid formula for to such cases Hanna, Hooper, Denny W. Defend- would be but we caution that ants-Appellees. routinеly sentences should not eases, imposed in sexual abuse or cases, Section, aggregate other and that the maxi Western mum of consecutive terms must be reason at Jackson. ably severity rеlated to the of the offenses ABA
involved. See Standards for Criminal Justice, Second Edition 18-4.5. Appeal Permission Denied Supreme Court Oct.
In this case defendant committed daughter, consisting sex acts his own sex, vaginal
of oral anal intercourse acts, starting age
and other four and
continuing until disclosure when the victim undisputed seven. There was testimony
medical that the condition of the vagina
victim’s was abnormal for a seven
year old and indicative of sexual abuse.
There was also evidence that the child had damage.
suffered emotional We find these
aggravating
ordering service of the two convictions con
secutively. judgment of the Court of Criminal
Appeals is affirmed for the reasons stated adjudged against
herein. Costs
fendant.
BROCK, COOPER, C.J., and DROWOTA, JJ.,
HARBISON
concur.