State of Tennessee v. Deshaun Emmanuel Brown and Jerome Cardell Holt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2012

STATE OF TENNESSEE v. DESHAUN EMMANUEL BROWN AND

JEROME CARDELL HOLT

Direct Appeal from the Criminal Court for Davidson County

No. 2010-A-556 J. Randall Wyatt, Jr., Judge

No. M2011-01383-CCA-R3-CD -Filed December 10, 2012

The appellants, Deshaun Emmanuel Brown and Jerome Cardell Holt, pled guilty in the

Davidson County Criminal Court to ten counts of aggravated rape, two counts of aggravated

robbery, one count of especially aggravated kidnapping, and one count of reckless

endangerment. The trial court sentenced Appellant Brown to a total effective sentence of 60

years and Appellant Holt to a total effective sentence of 72 years in the Tennessee

Department of Correction. On appeal, the appellants challenge the sentences imposed by the

trial court. Upon review, we affirm the judgments of the trial court; however, we must

remand for entry of corrected judgments for the aggravated rape convictions to reflect that

each appellant is a multiple rapist rather than a violent offender as indicated on the

judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed; Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which A LAN E. G LENN and

R OGER A. P AGE, JJ., joined.

David M. Hopkins, Nashville, Tennessee, for the appellant, Deshaun Emmanuel Brown.

David A. Collins, Nashville, Tennessee, for the appellant, Jerome Cardell Holt.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Ben Ford, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On March 16, 2009, the appellants were indicted by the Davidson County Grand Jury

in indictment number 2010-A-556 on twenty counts of the aggravated rape of C.M. 1 ; one

count of the especially aggravated kidnapping of C.M.; one count of employing a firearm

during a dangerous felony; two counts of aggravated robbery, with the victims being C.M.

and Stephen Pinson; and one count of the reckless endangerment of Pinson. Thereafter, the

appellants pled guilty to ten counts of aggravated rape, one count of especially aggravated

kidnapping, two counts of aggravated robbery, and one count of reckless endangerment.

At the guilty plea hearing, the State provided the following factual basis for the

appellants’ guilty pleas:

[I]n case 2010-A-556[,] . . . the State would have shown that on

July 8, 2009[,] just before midnight [C.M.] and Mr. Stephen

Pinson had just returned from work and to their apartment at 629

Heritage Drive here in Davidson County.

They had gone grocery shopping and had just put up their

groceries and were about to sit down to watch a movie when

there was a knock at their door. The person on the other side

asked if they could use the phone. . . . Mr. Pinson attempted to

look through the peephole, but the peephole was broken[,] and

[he was] unable to see through it.

At that point in time[,] he cracked the door to see who

was on the other side when two unknown black males[,] one

armed with a large revolver[,] pushed their way through the

door. One of the suspects had his face covered. The one with

the uncovered face was the man who held the gun.

They forced Mr. Pinson and [C.M.] to [lie] face down on

the floor. One of the suspects disabled the phone and their

computer. They then took approximately $50 from [C.M.’s]

purse and Mr. Pinson’s wallet.

1

It is the policy of this court to refer to the victims of sexual crimes by their initials.

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They were also ransacking the house and looking for

other items to take. They took cell phones and other small items

as well. After several minutes, the suspect with the gun then

forced [C.M.] to go to the back room[,] and they forced Mr.

Pinson to remain [lying] on the floor in the living room where

they covered him with a blanket so that he could not see.

When they took [C.M.] into the back room[,] they then

forced her to perform sexual acts with them. During this period

of time[,] they alternated between the two of them. They had

pen[ile]/vagina[l] intercourse with [C.M.] at least three times.

They forced her to perform oral sex and penetrated her orally

with their penis at least four times.

On one occasion[,] one of the suspects digitally

penetrated her anus. One of the suspects also performed oral

sex on her[,] and finally one of the suspects . . . inserted an

object into [C.M.]. She does not know what object it was, but

feels that it was cold[,] and it is hypothesized that it was the gun.

During this time[,] Mr. Pinson was [lying] in the living

room[,] and one of the individuals[,] they were taking turns with

[C.M.] in the back room, whoever was not with [C.M.] would

come out. Mr. Pinson on several occasions felt the gun pressed

to the back of his head[,] and the subjects kept taunting him in

a manner such as please give me a reason to kill you.

At one point[,] Mr. Pinson[,] who had made his peace

and determined that he was probably going to die that evening[,]

realized that both individuals were back with [C.M.] in the back

bedroom. At that point in time[,] he was overcome with the

urge to try to run for help. Mr. Pinson got up and ran from the

apartment[,] and upon the door slamming[,] the two individuals

stopped raping [C.M.,] and they chased after Mr. Pinson[,] who

ran down the street looking for help.

He said he could hear them yelling after him[,] and he

heard what he thought were gunshots fired. At some point[,] he

ducked behind someone’s house to hide from these individuals

and started banging on their door. The couple that he awoke

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called the police thinking that he was trying to break into their

apartment.

Officers eventually arrived and spoke with Mr. Pinson[,]

who took them back to his apartment where they found [C.M.],

who was alive, but obviously in bad shape. They then called out

detectives and crime scene investigators. They were able to

recover several condoms that had been used.

There was also sperm from the ejacula[te] from [C.M.’s]

stomach which was collected. These items were sent out to the

TBI lab[,] and several months later in October of 2009[,] they

returned their results to the police department.

There were three male DNA profiles developed[,] one of

which belonged to Mr. Pinson, and there were two others which

were [put] into the combined DNA index system or CODIS[,

which] returned and identified a DNA profile as belonging to

[Appellant Holt]. There was a second DNA profile that was not

identified by CODIS.

In February of 2010, [Appellant Holt] was located and

was taken into custody on probation violation warrants. He

agreed to speak to Detective Jason Terry. When presented with

the DNA evidence, [Appellant Holt] then stated that he would

talk to Mr. Terry.

He stated that he[,] and he could not remember

[Appellant Brown’s] name and only knew him at that time as

“D[,]” had gone out with a woman driver and pulled into the

Heritage, the apartments located at 629 Heritage Drive[,] and

they were intending on getting a hit, trying to rob someone who

was there.

The first apartment that they looked into had too many

people in it[,] and they decided that . . . was not an easy target.

They then looked into another apartment[,] which unfortunately

was that of [C.M.] and Mr. Pinson’s apartment.

They came up with a plan in which one of them would

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knock on the door and ask to use the phone and say it was an

emergency in an attempt to gain access to the apartment. He

stated that he covered his face using his undershirt and that

[Appellant Brown] was the one who did not cover his face[,] but

he had a . . . large revolver which was a [.]357 magnum.

He then admitted that they robbed these two individuals

and that they then forced [C.M.] to have sexual intercourse. He

did, while he did not know the name of [Appellant Brown,] he

did admit that they had been involved in another robbery and

was able to identify the scene and location of that robbery.

Detective Terry then went back through police reports

and indeed found a reported robbery from that location.

Detective Rex Davenport was investigating that case and had

already arrested [Appellant Brown] in that case.[2 ] Detective

Terry was then able to . . . create a photographic line-up[,]

which was presented to both [C.M.] and Mr. Pinson right after

the preliminary hearing on [Appellant Holt].

While [C.M.] could not identify anyone[,] Mr. Pinson

positively identified [Appellant Brown] as the second

perpetrator. When [Appellant Holt] was then presented with a

photographic line-up[,] he also identified [Appellant Brown] as

the second perpetrator. . . . [Appellant Brown] was then arrested

and taken into custody on a direct presentment as to this charge.

Detective Terry collected DNA swabs from [Appellant Brown,]

which were positively identified as the second unknown DNA

profile that was recovered from the scene.

....

. . . [I]n addition to [Appellant Holt] confessing[,] the

State was able to obtain a telephone call between [Appellant

Brown] and his mother in which he admitted his participation in

this crime and admitted that he had gone in. He did not admit

necessarily to the rape, but he did put himself at the scene and

2

At the instant plea hearing, the appellants also pled guilty in case number 2010-A-557, the robbery

case that was investigated by Detective Davenport.

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admitted to robbing [C.M.] and . . . Mr. Pinson.

After the foregoing facts were recited, each appellant pled guilty to ten counts of the

aggravated rape of C.M.; one count of the especially aggravated kidnapping of C.M.; two

counts of aggravated robbery, one count relating to C.M. and the other relating to Pinson; and

one count of the reckless endangerment of Pinson. The plea agreement provided that the trial

court would determine the length and manner of service of the sentences.

At the sentencing hearing, C.M. testified that on the night of July 8, 2009, the

appellants pushed their way into the apartment and made her and Pinson lie face-down on

the floor. The appellants later put a gun to C.M.’s head, told her to stand, and led her to the

bedroom. C.M. stated she “kind of knew what was going to happen.” In the bedroom, the

appellants ordered her to remove her clothes. She begged, “[N]o, please, please, no.” The

appellants put a gun to C.M.’s head, told her to shut up, and undressed her. They took turns

raping her, with each man penetrating her vaginally and orally. One of them performed oral

sex on her. Additionally, one of them penetrated her anally “[w]ith a finger, but nothing else,

I told them I couldn’t do that and I was practically hysterical and they didn’t.” She said that

one of the appellants ejaculated on her stomach then forced his penis into her mouth. C.M.

stated that during the rapes, “[T]hey asked me to call them daddy and to tell them that I liked

it.” Near the end of her ordeal, the appellants stuck “something cold” inside her, she did not

know what it was, and she “started freaking out.” At that time, the appellants left.

C.M. stated that she had been affected by the ordeal, explaining, “I can safely say that

I am not the same person and I never will be.” She maintained that she “was a shell for a

long time” and that she still had difficulty trusting people. Specifically, C.M. stated, “I

cannot look at a man the same way.” C.M. said that the crimes contributed to the end of her

relationship with Pinson. C.M. stated that because of the crimes, she left Nashville and went

to the New England area. She said that she wanted the appellants to be “put away. I don’t

want to have to worry or be scared.”

Stephen Pinson testified that on the night of the incident, he and C.M. were not

surprised by the knock on the door because they worked in a restaurant and had “a lot of late-

night visitors.” Pinson opened the door, and Appellant Brown entered the room. Immediately

thereafter, Appellant Holt entered the apartment. Appellant Holt’s face was disguised, he

pointed a gun at Pinson’s chest, and he instructed Pinson and C.M. to lie face-down on the

floor. The appellants asked for the victims’ cellular telephones and money, took Pinson’s

“tip jar,” and went through the apartment “being extremely destructive.”

Pinson testified that when the appellants ordered C.M. to stand, they covered his head

with his daughter’s blanket. He heard C.M. crying as the appellants took her into the back

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bedroom. The appellants took turns holding the gun, and Pinson recalled a couple of

instances when a gun was put to the back of his head. Once, one of the appellants asked,

“Give me one reason why I shouldn’t go ahead and kill you now.” Pinson responded,

“Mercy.” The perpetrator “said that answer will work or good answer or something like

that.”

Ultimately, Pinson ran away and woke an elderly couple who called the police. When

the police arrived, Pinson told them what happened and took them to the apartment. He

feared C.M. would be dead, but she was alive.

Pinson said that before the incident, he believed in God and expected good things

from life. Afterward, he became anxious and lived in fear, “waiting for something bad to

happen.” He said that he relives the incident in his mind daily. He said that immediately

thereafter, he became “what [his] therapist called hypervigilant” and had to stop working

because he could not function.

Detective Rex Davenport testified that on June 30, 2009, approximately one and a half

weeks prior to the instant offenses, the appellants robbed Noah Webster. During the crime,

each appellant wore a bandana covering his face and held a handgun. Appellant Brown’s

fingerprints were found at the crime scene. When Detective Davenport interviewed

Appellant Brown, he admitted his participation in the robbery and said that “his accomplice

was Trey.” Thereafter, Detective Davenport spoke with Detective Terry and learned that

Appellant Holt “went by Trey.” During an interview, Appellant Holt admitted to Detective

Davenport his participation in the robbery.

No witnesses were presented on behalf of Appellant Holt. Doris E. Brown, Appellant

Brown’s paternal grandmother, testified on Appellant Brown’s behalf. She said that when

Appellant Brown was two years old, at the request of his mother, Mrs. Brown took him to

Kansas City, Missouri, to raise.

Mrs. Brown said Appellant Brown was kind and respectful. When he lived with her,

he was active in sports, went to church, sang in the choir, and helped in her nail salon. Mrs.

Brown had Appellant Brown attend counseling to treat the “abandonment issues” he had

because his mother was not involved in his life. Mrs. Brown presented twelve character

reference letters from people who knew Appellant Brown while he lived with her.

Mrs. Brown stated that when Appellant Brown was almost fifteen years old, his father

left Kansas City and moved to Nashville. Mrs. Brown said that Appellant Brown began

misbehaving because he was upset that his father had left. Within three or four months,

Appellant Brown moved to Nashville to live with his father. Shortly afterward, Appellant

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Brown and his father began having problems, leading Appellant Brown to run away from

home. Subsequently, at the order of a juvenile court, Appellant Brown went to live with his

mother, who also lived in Nashville, and the instant offenses occurred around the same time.

Seventeen-year-old Appellant Brown testified that his grandmother had taken good

care of him and that he did not get into any trouble when he lived with her. However, after

he moved to Nashville, he started using drugs and alcohol because he did not feel welcomed

by his father.

Appellant Brown said that he was fifteen years old, in tenth grade, and living with his

mother when he was arrested. He expressed remorse for his crimes.

On cross-examination, Appellant Brown admitted that on June 30, he and Appellant

Holt robbed a man at gunpoint, about a week later committed the instant crimes, and

approximately one month later broke into a house. He acknowledged that his grandmother

supported him financially and that he did not need to commit crimes for money. He said that

he borrowed the gun from someone and that he used the same gun in all the crimes.

After the conclusion of the proof and the arguments of counsel, the trial court took the

case under advisement. In the subsequent sentencing orders, the trial court sentenced

Appellant Holt to twenty-three years for each conviction for aggravated rape (counts 1-10)

and especially aggravated kidnapping (count 21) and ordered that one hundred percent of the

sentences be served in confinement. Appellant Holt was further sentenced to ten years for

each aggravated robbery conviction (counts 24-25) and two years for the reckless

endangerment conviction (count 26), with thirty percent of those sentences served in

confinement before release eligibility. The court ordered that counts 1, 2, 21, and 24 be

served consecutively to each other but concurrently with the remaining sentences for a total

effective sentence of 79 years.

The trial court sentenced Appellant Brown to twenty years for each conviction for

aggravated rape (counts 1-10) and especially aggravated kidnapping (count 21) and ordered

he serve one hundred percent of the sentences in confinement. Appellant Brown was further

sentenced to ten years for each aggravated robbery conviction (counts 24-25) and two years

for the reckless endangerment conviction (count 26), with thirty percent of those sentences

served in confinement before becoming eligible for release. The court ordered that counts

1, 2, 24, and 25 be served consecutively to each other but concurrently with the remaining

sentences for a total effective sentence of 60 years.

On appeal, the appellants contend that the trial court erred in determining the length

of the sentences and in imposing consecutive sentencing.

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II. Analysis

Previously, appellate review of the length, range, or manner of service of a sentence

was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).

However, our supreme court recently announced that “sentences imposed by the trial court

within the appropriate statutory range are to be reviewed under an abuse of discretion

standard with a ‘presumption of reasonableness.’” State v. Susan Renee Bise, __ S.W.3d __,

No. E2011-00005-SC-R11-CD, 2012 WL 4380564, at *19 (Tenn. Crim. App. at Knoxville,

Sept. 26, 2012). In conducting its review, this court considers the following factors: (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 enhancement and mitigating factors; (6) any statistical information provided

by the administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,

2012 WL 4380564, at *11. The burden is on the appellant(s) to demonstrate the impropriety

of his sentence(s). See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

In determining a specific sentence within a range of punishment, the trial court should

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should also consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also

Bise, 2012 WL 4380564, at *11; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). We

note that “a trial court’s weighing of various mitigating and enhancement factors [is] left to

the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court

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is free to select any sentence within the applicable range so long as the length of the sentence

is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 343.

“[A]ppellate courts are therefore left with a narrower set of circumstances in which they

might find that a trial court has abused its discretion in setting the length of a defendant’s

sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the length of the

sentence imposed so long as it is imposed in a manner consistent with the purposes and

principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

A. Length of Sentence

The trial court correctly noted that the appellants, as standard Range I offenders, were

subject to sentences of not less than fifteen nor more than twenty-five years for the Class A

felony convictions of aggravated rape and especially aggravated kidnapping. See Tenn. Code

Ann. §§ 39-13-305; 39-13-502; 40-35-112(a)(1). Additionally, the appellants were subject

to sentences of not less than eight nor more than twelve years for the Class B felony

conviction of aggravated robbery and not less than one nor more than two years for the Class

E felony conviction of reckless endangerment. See Tenn. Code Ann. §§ 39-13-103; 39-13-

402; 40-35-112(a)(2) and (5).

1. Appellant Brown

In sentencing Appellant Brown, the trial court found three enhancement factors: (6),

that “[t]he personal injuries inflicted upon or the amount of damage to property sustained by

or taken from the victim was particularly great”; (7), that the aggravated rapes “involved a

victim and w[ere] committed to gratify the [appellants’] desire for pleasure or excitement”;

and (16), that Appellant Brown was adjudicated to have committed a delinquent act or acts

as a juvenile that would constitute a felony if committed by an adult. Tenn. Code Ann. § 40-

35-114(6), (7), and (16).

Regarding mitigating factors, the trial court applied mitigating factor (6), noting that

Appellant Brown was only fifteen years old at the time he committed the instant offenses.

Tenn. Code Ann. § 45-35-113(6). The court also applied mitigating factor (9), that Appellant

Brown “assisted the authorities in uncovering offenses committed by other persons or in

detecting or apprehending other persons who had committed the offenses” by implicating

Appellant Holt “in case number 2010-A-557.” Tenn. Code Ann. § 45-35-113(9). The court

also found that Appellant Brown pled guilty to the offenses so as to “not force the State and

the victims to undergo a lengthy jury trial.” Tenn. Code Ann. § 40-35-113(13).

On appeal, Appellant Brown first challenges the application of enhancement factor

(6), stating that the “amount of damage to property, presumably the theft in this case, was of

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a minor amount” and that the record does not support the trial court’s finding that the victims

suffered particularly great personal injuries. However, the trial court did not apply

enhancement factor (6) because of the physical injuries sustained by the victim. Instead, the

court found that both victims had suffered great “psychological or emotional injuries” and

had sought psychological treatment.

Our supreme court has stated “that enhancement factor (6) contemplates psychological

or emotional injuries, as well as physical injuries, provided that the evidence establishes that

such injuries are ‘particularly great.’” State v. Arnett, 49 S.W.3d 250, 260 (Tenn. 2001). The

court further explained:

While we recognize that all victims of crime . . . must surely

experience mental trauma, we are aware that no two crimes are

exactly the same, and no two victims react to [a] crime in the

same manner. Because some victims may suffer even more

severe emotional trauma than is normally involved with [an]

offense, our legislature has seen fit to enhance the punishment

for those defendants causing “particularly great” psychological

injury.

Id. Therefore, to support the application of this enhancement factor, there must be “specific

and objective evidence demonstrating how the victim’s mental injury is more serious or more

severe than that which normally results from [an] offense. Such proof may be presented by

the victim’s own testimony, as well as the testimony of witnesses acquainted with the

victim.” Id.

C.M. testified that she will never be the same as before the offenses, that she “was a

shell for a long time,” and that she still had trust issues. She said that she had difficulties

with her relationships with men, stating that her relationship with Pinson ended as a result

of the crimes. She also felt compelled to leave the State and move to the New England area.

Pinson testified that he had lost his optimistic outlook, becoming fearful and anxious. He

said that he constantly relived the incident in his mind, that he saw a therapist, and that he

became “hypervigilant” and could not work. We conclude that there was a sufficient basis

for the trial court to apply this enhancement factor to the convictions. See id. at 260-61; see

also State v. Williams, 920 S.W.2d 247, 259-60 (Tenn. Crim. App. 1995). Moreover, serious

bodily injury is not an element of the offense of reckless endangerment, and the appellants

were charged with especially aggravated kidnapping and aggravated robbery accomplished

with a deadly weapon, not by causing serious bodily injury; therefore, the trial court was not

precluded from applying enhancement factor (6) to those convictions. See Tenn. Code Ann.

§§ 39-13-305(a)(1) and (4), 39-13-402(a); see also Tenn. Code Ann. § 40-35-114 (providing

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that an enhancement factor may be applied “[i]f appropriate for the offense and if not already

an essential element of the offense”).

Appellant Brown next contends that the trial court erred by applying enhancement

factor (7) because there was no proof that “the rape[s were] sexually motivated and done to

gratify [Appellant Brown’s] desire for pleasure or excitement.” Tenn. Code Ann. § 40-35-

114(7). Our supreme court has explained that when deciding whether enhancement factor (7)

applies to sexual crimes, the trial court must look to the“motive for committing the offense.”

Arnett, 49 S.W.3d at 261 (emphasis in original). The court cautioned that “evidence of

ejaculation, by itself, does not prove that the rapist’s motive was to gratify a desire for

pleasure. Accordingly, proper application of factor (7) requires the State to provide

additional objective evidence of the defendant’s motivation to seek pleasure or excitement

through sexual assault.” Id. at 262 (citing State v. Kissinger, 922 S.W.2d 482, 490 (Tenn.

1996)). To this end, the court explained that “factor (7) may be applied with evidence

including, but not limited to, sexually explicit remarks and overt sexual displays made by the

defendant, such as fondling or kissing a victim or otherwise behaving in a sexual manner, or

remarks or behavior demonstrating the defendant’s enjoyment” of the crime. Id. At the

sentencing hearing, C.M. testified that the appellants undressed her, made her get into

different positions, and penetrated her in a multitude of ways, including with a cold, foreign

object. During the rapes, the appellants “asked [C.M.] to call them daddy and to tell them

that [she] liked it.” We conclude that the trial court did not err by applying this enhancement

factor to the aggravated rape convictions.

In sum, we conclude that the trial court did not err in the application of enhancement

and mitigating factors, and we discern no error in the lengths of Appellant Brown’s sentences

as imposed by the trial court.

2. Appellant Holt

In sentencing Appellant Holt, the trial court applied five enhancement factors: (6), that

“[t]he personal injuries inflicted upon or the amount of damage to property sustained by or

taken from the victim was particularly great”; (7), that the aggravated rapes “involved a

victim and w[ere] committed to gratify the [appellants’] desire for pleasure or excitement”;

(8) that Appellant Holt “before trial or sentencing, failed to comply with the conditions of

a sentence involving release into the community”; (13)(c) that Appellant Holt committed the

instant offenses while on probation; and (16), that Appellant Holt was adjudicated to have

committed a delinquent act or acts as a juvenile that would constitute a felony if committed

by an adult. Tenn. Code Ann. § 40-35-114(6), (7), (8), (13)(c) and (16). In mitigation, the

court found that Appellant Holt “assisted the authorities in uncovering offenses committed

by other persons or in detecting or apprehending other persons who had committed the

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offenses,” noting that Appellant Holt implicated Appellant Brown in another offense. See

Tenn. Code Ann. § 45-35-113(9). The court also found that Appellant Holt pled guilty to the

offenses so as to “not force the State and the victims to undergo a lengthy jury trial.” Tenn.

Code Ann. § 40-35-113(13).

On appeal, Appellant Holt contends that the trial court erred in determining the length

of his sentences, specifically arguing that the trial court erred by failing to give proper

consideration and weight to two mitigating factors. However, Appellant Holt does not

dispute any of the enhancement factors applied by the trial court.

As we stated earlier, the trial court’s application of enhancement factors (6), that

“[t]he personal injuries inflicted upon or the amount of damage to property sustained by or

taken from the victim was particularly great,” and (7), that the aggravated rapes “involved

a victim and w[ere] committed to gratify the [appellants’] desire for pleasure or excitement,”

was justified. See Tenn. Code Ann. § 40-35-114(6) and (7). Moreover, because the record

reflects that Appellant Holt had juvenile adjudications for two counts of assault with bodily

injury, one count of aggravated assault, and one count of burglary, the trial court correctly

applied enhancement factor (16). See Tenn. Code Ann. § 40-35-114(16).

Further, as the trial court noted, Appellant Holt’s presentence report reflects that

Appellant Holt “has two (2) probation violations in his juvenile criminal record.” See Tenn.

Code Ann. § 40-35-114(8). The violation of prior juvenile court probationary terms can be

used to enhance a sentence. See State v. Jackson, 60 S.W.3d 738,743 (Tenn. 2001). Further,

the court found that Appellant Holt was on probation for robbery and burglary of a motor

vehicle when he committed the instant offenses. See Tenn. Code Ann. § 40-35-114(13)(c).

Therefore, the trial court was justified in applying these enhancement factors.

Appellant Holt argues that the trial court erred by failing to consider mitigating factor

(6), that because of youth or old age, he lacked substantial judgment in committing the

offense, contending that he was twenty years old at the time of the offense and possessed

only a ninth grade education. Ordinarily, “[i]n determining whether this factor is to be

applied, courts should consider the concept of youth in context, i.e., the defendant’s age,

education, maturity, experience, mental capacity or development, and any other pertinent

circumstance tending to demonstrate the defendant’s ability or inability to appreciate the

nature of his conduct.” State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). The trial court

considered and rejected this mitigating factor, stating that it might have been “more inclined

to consider this factor if these were the only offenses [Appellant Holt] had committed[;]

however, [Appellant Holt’s] juvenile history reveals [Appellant Holt’s] numerous

opportunities at rehabilitation and reflects [Appellant Holt’s] ability to understand the

wrongfulness of his conduct.” We discern no error in the trial court’s ruling.

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Appellant Holt acknowledges that the trial court applied two mitigating factors but

argues that the trial court should have weighed them more heavily. However, the weighing

of mitigating and enhancement factors is in the trial court’s discretion, and this court is bound

by the trial court’s sentencing decisions as long as sentence is imposed in a manner consistent

with the purposes and principles of the Sentencing Act. Carter, 254 S.W.3d at 345-46.

Because the trial court’s imposition of sentence is consistent with the purposes and principles

of the Sentencing Act, the sentence is presumptively correct, and we cannot reweigh the

enhancing and mitigating factors. See Carter, 254 S.W.3d at 344-45.

In sum, we conclude that the trial court did not err in applying enhancement and

mitigating factors, and we discern no error in the lengths of the sentences imposed by the trial

court.

B. Consecutive Sentencing

Generally, “[w]hether sentences are to be served concurrently or consecutively is a

matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,

230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains

the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,

905 S.W.2d 933, 936 (Tenn. 1995). The trial court may impose consecutive sentencing upon

finding the existence of any one of the criteria in Tennessee Code Annotated section 40-35-

115(b).

1. Appellant Brown

In determining whether consecutive sentencing was appropriate for Appellant Brown,

the trial court found that Appellant Brown had an extensive record of criminal activity and

that he was a dangerous offender whose behavior indicated 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)(2) and (6). Based on this finding, the trial court ordered that

Appellant Brown’s sentences for count 1 (twenty years for aggravated rape), count 2 (twenty

years for aggravated rape), count 24 (ten years for aggravated robbery), and count 25 (ten

years for aggravated robbery) be served consecutively to each other but concurrently with the

remaining sentences for a total effective sentence of 60 years. On appeal, Appellant Brown

contends that the trial court erred by finding that he has an extensive criminal record and that

he was a dangerous offender.

The court based its finding that Appellant Brown had an extensive record of criminal

activity upon his previous adjudication for aggravated burglary and the numerous convictions

involved in the instant case. Tenn. Code Ann. § 40-35-115(b)(2). This court has stated that

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the instant offenses may be used to establish that an offender has an extensive criminal

history for the purposes of consecutive sentencing. See State v. Cummings, 868 S.W.2d 661,

667 (Tenn. Crim. App. 1992) (concluding that a defendant with no prior criminal history but

who pled guilty to eight offenses had an extensive criminal history that justified the

imposition of consecutive sentencing); see also State v. Carolyn J. Nobles, No. M2006-

00695-CCA-R3-CD, 2007 WL 677861, at *12 (Tenn. Crim. App. at Nashville, Mar. 7,

2007). Therefore, the trial court did not err in finding that Appellant Brown had an extensive

record of criminal activity.

The court also found that Appellant Brown was a dangerous offender whose behavior

indicated little or no regard for human life and no hesitation about committing a crime in

which the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4). Our case law

clearly reflects that in order to impose consecutive sentencing based upon a finding that a

defendant is a dangerous offender, a court must also find (1) “that an extended sentence is

necessary to protect the public against further criminal conduct by the defendant” and (2)

“that the consecutive sentences . . . reasonably relate to the severity of the offenses

committed.” Wilkerson, 905 S.W.2d at 938; see also State v. Lane, 3 S.W.3d 456, 461

(Tenn. 1999); State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996).

Regarding its finding that Appellant Brown was a dangerous offender, the trial court

explained that the appellants “forcefully enter[ed] the sanctity of [the] victim[s’] homes and

robb[ed] them at gunpoint. . . . [I]n addition to robbing both victims, [the appellants] taunted

Mr. Pinson and repeatedly raped [C.M.] at gunpoint, forcing her to perform multiple

degrading sexual acts and threatened to shoot her if she failed to obey.” The court also

explicitly found the existence of the Wilkerson factors. We conclude that the trial court did

not err in imposing consecutive sentencing on this basis. See Tenn. Code Ann. § 40-35-

115(4).

2. Appellant Holt

When examining whether consecutive sentencing was appropriate for Appellant Holt,

the trial court found that Appellant Holt had an extensive record of criminal activity, that he

was a dangerous offender whose behavior indicated little or no regard for human life and no

hesitation about committing a crime in which the risk to human life is high, and that

Appellant Holt committed the instant offenses while on probation. Tenn. Code Ann. § 40-

35-115(b)(2), (4), and (6). The trial court ordered that Appellant Holt’s sentences for counts

1 (twenty-three years for aggravated rape), 2 (twenty-three years for aggravated rape), 21

(twenty-three years for especially aggravated kidnapping), and 24 (ten years for aggravated

robbery) be served consecutively to each other but concurrently with the remaining sentences

for a total effective sentence of 79 years.

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On appeal, Appellant Holt summarily contends that the trial court erred “by ordering

consecutive sentencing.” However, he does not support this contention with any argument.

Therefore, he has waived this issue. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are

not supported by argument, citation to authorities, or appropriate references to the record will

be treated as waived in this court.”); see also Tenn. R. App. P. 27(a)(7) (“The brief of the

appellant shall contain . . . [a]n argument, which may be preceded by a summary of

argument, setting forth the contentions of the appellant with respect to the issues presented,

and the reasons therefor, including the reasons why the contentions require appellate relief,

with citations to the authorities and appropriate references to the record (which may be

quoted verbatim) relied on.”).

Nevertheless, we conclude that the trial court did not err in imposing consecutive

sentencing. The trial court stated that Appellant Holt had previous adult convictions for

robbery and burglary of a motor vehicle, as well as juvenile adjudications for two counts of

assault with bodily injury, three counts of disorderly conduct, one count of aggravated

assault, two probation violations, and one count of burglary. A defendant’s history of

juvenile adjudications is an appropriate consideration in determining whether a defendant has

an extensive record of criminal activity for consecutive sentencing purposes. See State v.

Gann, 251 S.W.3d 446, 465 (Tenn. Crim. App. 2007); State v. Mickens, 123 S.W.3d 355,

396 (Tenn. Crim. App. 2003). Further, the trial court made sufficient findings to determine

that the appellant was a dangerous offender. Additionally, Appellant Holt was on probation

when he committed the instant offenses. Therefore, we conclude that the trial court did not

err by imposing consecutive sentencing upon Appellant Holt. See Tenn. Code Ann. § 40-35-

115(b)(2) and (6).

C. Judgments of Conviction

Finally, the State asks this court to remand this case to the trial court for entry of

corrected judgments for the aggravated rape convictions to reflect that each appellant is a

multiple rapist, not a violent offender. We note that both a violent offender and a multiple

rapist must serve one hundred percent of a sentence imposed in confinement. However, a

violent offender may earn good time credits and reduce the sentence up to fifteen percent,

but a multiple rapist is not eligible for credits to reduce the sentence. See Tenn. Code Ann.

§§ 40-35-501(i), 39-13-523(a)(3), (b) and (c); see also Davis v. State, 313 S.W.3d 751, 758

(Tenn. 2010). Therefore, the case must be remanded to the trial court for correction of the

judgments for aggravated rape to reflect that the appellants are multiple rapists.

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III. Conclusion

In sum, we conclude that the trial court did not err in sentencing the appellants.

However, we must remand for entry of corrected judgments of conviction for the aggravated

rape convictions. We affirm the judgments of the trial court in all other respects.

_________________________________

NORMA McGEE OGLE, JUDGE

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