State of Tennessee v. Ernest Lee Jennings

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2011

STATE OF TENNESSEE v. ERNEST LEE JENNINGS

Direct Appeal from the Circuit Court for Fayette County

No. 6337 J. Weber McCraw, Judge

No. W2010-01484-CCA-R3-CD - Filed August 3, 2011

A Fayette County jury convicted the Defendant, Ernest Lee Jennings, of sexual exploitation

of a minor and three counts of rape of a child, and the trial court sentenced him to an

effective sentence of eighty-five years in the Tennessee Department of Correction. On

appeal, the Defendant contends that the evidence is insufficient to support his convictions

and that the trial court erred when it imposed consecutive sentencing. After a thorough

review of the record and the applicable law, we affirm the trial court’s judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which A LAN E. G LENN,

and C AMILLE R. M CM ULLEN, JJ., joined.

Gary F. Antrican and Shana Johnson (at trial and on appeal), Somerville, Tennessee, and

Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, for the Appellant, Ernest Lee

Jennings.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney

General; Mike Dunavant, District Attorney General; and Terry Dycus, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Trial

This case arises from the Defendant’s rape of three minor boys and his possession of

child pornography. Based on this conduct, a Fayette County grand jury indicted the

Defendant for attempted rape of a child, sexual exploitation of a minor, and three counts of

rape of a child.1 The following evidence was presented at the Defendant’s trial: R.M.2

testified that, at the time of these crimes, he was nine years old. R.M. explained that the

Defendant was married to his aunt and that, at the time of these incidents, the couple had

been living in the front room of the home R.M. lived in with his parents and brothers. R.M.

recalled one day in particular when he and his brothers were at home alone with the

Defendant. The Defendant told the other boys to go outside but told R.M. to stay in the

house or “he would shoot [R.M.].” R.M. testified that he was scared of the Defendant and

remained in the house. The Defendant handcuffed R.M. to the headboard and removed

R.M.’s clothes. Describing what the Defendant next did, R.M. said the Defendant “put his

wee-wee on my butt and made me suck his wee-wee and he done that to me, too.” R.M. said

that sperm, which was “white and gooey,” came out of the Defendant’s penis, and the

Defendant wiped it away with a towel. The Defendant told R.M. that if R.M. told his mom

and dad, the Defendant would kill R.M. R.M. testified these events occurred during the

summer, while he was out of school, but he did not remember the specific month.

On cross-examination, R.M. agreed that the Defendant was a security guard and that

the gun, handcuffs, and pepper spray in his bedroom were for the Defendant’s job. R.M.

described the Defendant’s bed as having bars along the headboard and explained the

Defendant handcuffed R.M. to these bars. R.M. testified that the Defendant showed him a

gun during these events and told R.M. not to tell anyone. R.M. said that the first time he

spoke of this incident with the Defendant was after he heard his cousin mention that the

Defendant had engaged in similar behavior toward him. R.M. recalled that the Defendant

overheard R.M. and his cousin talking about what the Defendant had done to them, and the

Defendant said he was going to leave. After the Defendant left, R.M. told his parents what

had occurred.

C.M., R.M.’s younger brother, who was eight at the time of these crimes, identified

the Defendant in court and, when asked how he knew the Defendant, replied, “‘Cause he did

nasty stuff to me.” C.M. said that, in the spare bedroom, the Defendant, “Put sperm in my

mouth and put his wee-wee in my butt.” C.M. described the sperm as tasting like salt. C.M.

said that the Defendant undressed himself and then removed C.M.’s clothes. C.M. said that

this incident occurred during a school break, in the “morning time” while everyone else was

at the store. C.M. said that the Defendant told C.M. not to tell anyone what had happened

1

Before this trial, the attempted rape of a child and solicitation of a minor counts were severed and

ultimately dismissed by the State.

2

It is the policy of this Court to refer to juvenile victims of sexual assault by their initials only.

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but did not threaten him.

T.W., R.M. and C.M.’s cousin who was six at the time of trial, identified the

Defendant and testified that the Defendant “sucked [his] wee-wee” when he was visiting his

cousins. He recalled that, when he and the Defendant were in the Defendant’s room, the

Defendant told T.W. to take his clothes off, and T.W. did so. The Defendant then told T.W.

to suck his penis. T.W. testified that the Defendant “put [his penis] in my butt” and licked

T.W.’s butt. T.W. said that he was scared, so he tried to “get away” and told the Defendant

to stop. The Defendant told T.W. not to tell anyone what had occurred. T.W. said that these

events occurred in the summer while he was out of school. During the summer, he would

spend the night with his cousins and these events occurred during one of those occasions.

N.M., R.M. and C.M.’s older brother who was thirteen at the time of trial, confirmed

that the Defendant lived in his home temporarily. He recalled that, in June of the previous

year, N.M.’s grandmother had a mild heart attack, and the three boys stayed at home with the

Defendant while their parents and aunt, the Defendant’s wife, went to the hospital. While

N.M.’s parents were gone, the Defendant told N.M.’s brothers to go outside. The Defendant

told N.M. to come to the Defendant’s room to watch television but instead showed N.M. a

video on the Defendant’s laptop of a man and a woman having sex. The Defendant then

asked N.M., “Would you like to do that with me?” To which N.M. replied, “No.” N.M.

testified that the Defendant “tried to make me and I kept on telling him no . . . .” The

Defendant threatened N.M. that, if he told anyone about what had occurred, he would shoot

N.M. After being in the Defendant’s room for about an hour, N.M. got up to leave, but the

Defendant began to chase him, so he “started running around the room and unlocked the door

and ran.”

Chad Lawson, a Somerville Police Department Investigator, testified that, on

September 3, 2009, he was dispatched to a residence where a possible child rape occurred.

En route, Officer Lawson was notified that the Defendant was “at the jail trying to get in.”

Officer Lawson said that he continued to the residence to assess the situation before

responding to the jail. After securing services for the children and assigning officers various

duties, Officer Lawson called the jail and instructed that the Defendant be “put [] in a room

till [he] could get there.”

Officer Lawson testified that the children were interviewed by forensic interviewers

who specialize in talking with child victims. Officer Lawson watched the interviews from

an observation room. Officer Lawson said that the children’s in-court testimony was

consistent with what they said in the forensic interviews.

After beginning the process of taking statements from witnesses, Officer Lawson went

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to the jail to meet with the Defendant. Officer Lawson said that he thought it “unusual” that

the Defendant was “trying to get in the jail.” Officer Lawson met with the Defendant in a

room at the jail where he read the Defendant his Miranda rights and then took a statement

from the Defendant. Officer Lawson recalled that he asked the Defendant why he came to

the jail. The Defendant responded that, because he was an armed security guard, he preferred

to turn himself in rather than be arrested at his place of work. Officer Lawson then asked the

Defendant a series of questions, during which Officer Lawson took notes. The Defendant

and Officer Lawson then initialed those notes, indicating they agreed with the content.

Officer Lawson said that the statement did not represent the “entire conversation” but was

a summary of the Defendant’s responses to questions.

Reviewing his notes, Officer Lawson recalled that, when he asked the Defendant,

“How did you get in jail,” the Defendant responded, “When they started saying I had sexual

contact with them, I left the house and turned myself in to the jail.” The Defendant, however,

denied having any sexual contact with the children. The Defendant told Officer Lawson that

the children had “come on” to the Defendant.

Officer Lawson testified that, after he learned that the Defendant’s wife had pawned

the Defendant’s laptop, he retrieved the laptop from the pawn shop. Pawn shop records

indicated that the Defendant’s wife pawned the computer on August 11, 2009. The pawn

shop records further indicated that, on the same date, the Defendant pawned a Taurus .9

millimeter gun. After obtaining the laptop, Officer Lawson had the laptop analyzed.

Officer Lawson testified that he also conducted a search of the residence and

recovered pornographic CDs and photographs from the night stand next to the bed in the

Defendant’s bedroom. Approximately 105 of the photographs and the images recovered

from the CDs were child pornography. In addition to those images, Officer Lawson

recovered cartoons depicting sexual activity with children. Officer Lawson said that an

Emachine, computer tower, and zip drives were also recovered from the residence and sent

for analysis. Officer Lawson recalled that the Defendant’s bedroom door was equipped with

a lock and that he found a security guard uniform patch, condoms, and a dildo in the

Defendant’s room. The Defendant’s wife denied owning the dildo. Officer Lawson also

found firearms and a law enforcement “duty belt” with a baton, handcuffs, and a flashlight

in the Defendant’s vehicle.

On cross-examination, Officer Lawson agreed the Defendant disclosed in his

interview that his wife had pawned his laptop and that pawn shop records confirmed the

Defendant’s laptop was pawned on August 11, and the police recovered it from the pawn

shop on September 4. Officer Lawson testified that he did not search the home in which

these crimes were alleged to have occurred until September 10. Even though the Defendant

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left the residence on September 3, the family remained in the residence from the time the

Defendant turned himself in until the police searched the residence. Reviewing a photograph

he took of the Defendant’s bed, he agreed that there was not a headboard or any bars or

boards at the head of the bed. Officer Lawson testified that the Defendant’s wife and the

victims’ parents claimed no ownership of the pornographic pictures and CDs recovered from

the Defendant’s bedroom. Officer Lawson said that the CDs contained files with the

Defendant’s name on them. Officer Lawson agreed that, although it was possible to have the

dildo tested for bodily fluids, this testing was not done. Likewise, police never attempted to

recover fingerprints from the Defendant’s handcuffs or any of the other items recovered. The

Defendant told Officer Lawson that he and his wife moved into the house where these crimes

occurred in November 2008 and remained there until he turned himself in at the jail on these

charges in September 2009.

Steve Bierbrodt, a Shelby County Sheriff’s Office detective, testified as an expert in

the field of computer forensics. Detective Bierbrodt said that Officer Lawson requested

Detective Bierbrodt run a computer analysis on the Defendant’s computers and review

multiple CDs. The computer analysis of the laptop, zip drives, and the Emachine revealed

nothing of evidentiary value to this case. The CDs, however, contained more than 100

individual, separate images of child pornography both in video format and still-frame

pictures. Detective Bierbrodt also found files with pornographic images on the Defendant’s

Gateway computer tower. One such picture was of a young nude boy with bandages on his

body. Detective Bierbrodt said that he recovered this photograph from the computer’s C-

drive under “Pictures” with information indicating the Defendant’s name and the file name

“boys will be bois.” The detective also found a picture of the Defendant on the C-drive

within the “Pictures” file.

On cross-examination, Detective Bierbrodt agreed that he can tell when an item was

created or modified but not who put the items on the CD.

Amber Jennings, the Defendant’s wife, testified that she had been married to the

Defendant for a year and three months. She met the Defendant through her mother, who

worked for the Defendant. Jennings said that the Defendant first met her nephews when her

sister brought them to see their grandmother at work. Jennings testified that she and the

Defendant moved in with her sister on November 15, 2008, and remained there until

September 2009 when the Defendant turned himself in on these charges. Jennings

acknowledged that she was initially hostile to the officers investigating this case because she

“didn’t want to believe it.”

Jennings described her marital relationship with the Defendant as “a little strange.”

In retrospect, she believed that the Defendant used her to access her nephews. When asked

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if she and the Defendant had “a sex life” during their marriage, she replied, “Not really.” She

explained that the Defendant “always” asked if her nephews could sleep in their room with

them. When her nephews did so, the Defendant would ask Jennings to either sleep on the

floor or “somewhere else.” Jennings also said that when she had found her husband

watching pornographic movies, she would ask the Defendant “why” he viewed these movies,

but she never received an answer from him. She also noticed the Defendant looking in on

the boys while they were bathing.

Jennings testified that she had access to the laptop but that she could not access certain

files. Jennings said that, at the Defendant’s request, she sold his laptop for $100 to a

pawnshop on August 11, 2009. Jennings denied any knowledge of child pornography on the

computers or in the night stand by their bed.

Jennings recalled that, on July 15, 2009, her mother had a heart attack and was taken

to the hospital. Jennings, her sister, and her brother-in-law went to the hospital, leaving the

Defendant to care for the three boys, N.M., C.M., and R.M.

Jennings recalled that the night the Defendant turned himself in, he had walked past

N.M’s bedroom and overheard N.M. and T.W. “saying something” that “set [him] off.”

Jennings said that the Defendant told her he was “just going to turn hi[m]self in.” She said

that she “didn’t know what all was going on” because she did not hear what the boys had

said.

On cross-examination, Jennings testified that she could not create files on the

Defendant’s laptop. She said she and the Defendant were expecting a baby at one point in

their marriage but that she miscarried. She said that she moved out of her sister’s residence

in September 2009 and had not lived there since that time. Jennings agreed that she has

visited with the Defendant during his incarceration for these charges.

Based upon this evidence, the jury convicted the Defendant of sexual exploitation of

a minor and three counts of rape of a child.

B. Sentencing Hearing

At the sentencing hearing on this matter, the following evidence was introduced:

B.M., the mother of R.M., C.M., and N.M., testified that she allowed her sister and her

sister’s husband, the Defendant, to stay in her home. During this time, the Defendant cared

for B.M.’s children as a “babysitter” at times. B.M. said she “trusted [the Defendant] with

the most precious thing that I have in this world.” B.M. made the following statement to the

court:

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Judge, this man took away my children’s innocence and there’s no – nothing

can bring that back. Nothing in the world can bring my kids’ innocence back.

They grew up way too soon and he had a choice. I know he was - - you know,

he was messed with when he was a child but he had a choice to get some help

and make his life better. He made the wrong choice and in my opinion he

doesn’t deserve to ever see the light of day, ever. And I am so proud of my

family because they made it to where he can’t ever hurt anybody else’s

children ever again.

T.W.’s mother read a letter, which was included as an exhibit into the record at the

sentencing hearing. The State submitted the pre-sentence report and letters from two of the

victims and the victims’ family members. The trial court sentenced the Defendant to serve

twenty-five years for each count of rape of a child and ten years for the sexual exploitation

of a minor conviction. The trial court also ordered the Defendant’s sentences be served

consecutively for an effective sentence of eighty-five years in the Tennessee Department of

Correction. It is from these judgments that the Defendant now appeals.

II. Analysis

The Defendant asserts that the evidence is insufficient to sustain his convictions and

that the trial court erred when it ordered consecutive sentencing.

A. Sufficiency of the Evidence

The Defendant asserts that, because in his statement to Detective Lawson he denied

having any sexual contact with the victims, the evidence is insufficient to sustain his

convictions. The State counters that the victims’ testimony regarding the Defendant’s

conduct is sufficient evidence from which a reasonable juror could conclude that the

Defendant committed three counts of rape of a child and one count of sexual exploitation of

a minor.

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.

13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d

247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State

v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be

based entirely on circumstantial evidence where the facts are “so clearly interwoven and

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connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant

alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to

be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence,

and the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006) (citations omitted). In determining the sufficiency of the evidence, this Court should

not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier

of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v.

State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the

witnesses, the weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the

theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace,

493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for

this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury

see the witnesses face to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary instrumentality of

justice to determine the weight and credibility to be given to the testimony of

witnesses. In the trial forum alone is there human atmosphere and the totality

of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

of the evidence contained in the record, as well as all reasonable inferences which may be

drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000)).

In this case, the Defendant was convicted of three counts of rape of a child and one

count of sexual exploitation of a minor. A conviction for rape of a child requires proof

beyond a reasonable doubt that the defendant unlawfully sexually penetrated the victim, and

the victim is “more than three (3) years of age but less than thirteen (13) years of age.”

T.C.A. § 39-13-522(a) (2009). A conviction for sexual exploitation of a minor requires the

State to show that the Defendant “knowingly possess[ed] material that include[d] a minor

engaged in . . . [s]exual activity; or . . . [s]imulated sexual activity that is patently offensive.”

T.C.A. § 39-17-1003(a) (2009).

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The evidence, considered in the light most favorable to the State, proves that while

the Defendant was at home alone with his nephews, he told the other children to go outside

and told R.M., a nine-year old child, to remain inside. The Defendant removed both his

clothing and R.M.’s clothing, placed his penis on R.M.’s buttocks, and forced R.M. to

perform fellatio. The Defendant also performed fellatio on the victim. The Defendant

ejaculated at some point during this incident. This evidence is sufficient to support one count

of rape of a child.

The evidence further shows that the Defendant engaged in sexual conduct with eight-

year-old C.M. C.M.’s testimony described the Defendant as doing “nasty stuff.” The

Defendant “put sperm” in C.M.’s mouth and “put his wee-wee” in C.M.’s “butt.” This is

sufficient to support a second count of rape of a child.

The evidence also showed that, while T.W., who was six year -old at the time of trial,

was visiting his cousins, the Defendant performed fellatio on T.W. and made T.W. perform

fellatio on him. T.W. testified that the Defendant put his penis “in [T.W.’s] butt” and licked

T.W.’s buttocks. This is sufficient to support the Defendant’s third conviction of rape of a

child.

As to the conviction for sexual exploitation of a minor, the evidence shows that the

Defendant showed N.M. pornography on his laptop. Police recovered pornography and child

pornography from the Defendant’s laptop which he had instructed his wife to sell at a pawn

shop in August 2009. The files that contained child pornography on the Defendant’s laptop

were labeled with the Defendant’s name. The Defendant’s wife had access to this computer

but was unable to create new files on the computer. Child pornography was recovered from

the Defendant’s night stand in his bedroom. The Defendant’s wife, who shared this room,

denied any knowledge or ownership of the child pornography but testified that she had

witnessed her husband watching pornographic movies.

The Defendant argues that the evidence was insufficient to support his convictions

because, in the Defendant’s statement to Detective Lawson, he denied all sexual contact with

the victims. Officer Lawson testified that, during the police interview, the Defendant denied

any sexual contact with the victims. The victims testified, however, that the Defendant on

multiple occasions made sexual advances toward them and forced them to engage in sexual

contact. As we earlier stated, all questions of credibility raised are determined by the jury,

which is the “primary instrumentality of justice” in matters of credibility of witness

testimony. Bolin, 405 S.W.2d at 771; see also, Bland, 958 S.W.2d at 659; Liakas, 286

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S.W.2d at 859. The jury heard the evidence and clearly did not credit the Defendant’s denial

during his police interview. It is not within this Court’s discretion to re-weigh and determine

the credibility of witnesses. See Matthews, 805 S.W.2d at 779.

Accordingly, we conclude that the evidence is sufficient to support the convictions

beyond a reasonable doubt. As such, the Defendant is not entitled to relief on this issue.

B. Sentencing

The trial court sentenced the Defendant to twenty-five years for each of his three rape

of a child convictions and ten years for his sexual exploitation of a minor conviction. The

trial court then ordered that all of the sentences run consecutively to each other for an

effective sentence of eighty-five years. The Defendant appeals this decision, arguing that the

trial court erred when it ordered consecutive sentencing in this case. The State responds that

the record supports consecutive sentencing pursuant to Tennessee Code Annotated section

40-35-115(b)(5) (2009).

When a defendant challenges the length, range or manner of service of a sentence, this

Court must conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-

35-401(d) (2009). As the Sentencing Commission Comments to this section note, the burden

is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,

Sentencing Comm’n Cmts (2009). This means that if the trial court followed the statutory

sentencing procedure, made findings of facts which are adequately supported in the record,

and gave due consideration to the factors and principles relevant to sentencing under the

Sentencing Act, Tennessee Code Annotated section 40-35-103 (2009), the appellate court

may not disturb the sentence even if a different result was preferred. State v. Ross, 49

S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal conclusions

reached by the trial court in sentencing a defendant or to the determinations made by the trial

court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377

(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994);

State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994).

In conducting a de novo review of a sentence, we 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

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parties on the mitigating and enhancement factors set out in Tennessee Code Annotated

sections 4-35-113 and -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 made in the defendant’s own behalf about sentencing. See T.C.A.

§ 40-35-210 (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). We must

also consider the potential or lack of potential for rehabilitation or treatment of the defendant

in determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-

103 (2006).

If an offender meets one or more statutory criteria in Tennessee Code Annotated

section 40-35-115, whether or not he should be sentenced consecutively or concurrently is

within the sound discretion of the trial court. State v. James, 688 S.W.2d 463, 465 (Tenn.

Crim. App. 1984). A court may order multiple sentences to run consecutively if it finds, by

a preponderance of the evidence, that at least one of the seven factors exists. The factor

relevant to this case is factor (5), that:

[t]he 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 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 or victims . . . .

T.C.A. § 40-35-115(b)(5).

In addition to these criteria, consecutive sentencing is subject to the general

sentencing principle that the length of a sentence should be “justly deserved in relation to the

seriousness of the offense” and “no greater than that deserved for the offense committed.”

T.C.A. § 40-35-102(1), 103(2); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

When the trial court ordered that the Defendant’s sentences run consecutively, it found

that the Defendant’s case “squarely falls within [the criterion 5] consideration for consecutive

sentencing.”

The Defendant was convicted of three counts of rape of a child. When the Defendant

was left alone with his nephews, he engaged in sexual conduct with these children. The

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Defendant also engaged in this conduct with a child who was visiting his nephews in their

home. This conduct occurred during the summer until the Defendant overheard the boys

discussing amongst themselves the Defendant’s conduct. At this point, the Defendant turned

himself in at the jail. The Defendant’s conduct included performing oral sex on the boys,

having the boys perform oral sex on him, and sexually penetrating the boys. The victim

impact statements included with the pre-sentence report indicate residual emotional and

mental damage to the victims.

Based upon the foregoing, we conclude that the record adequately supports the trial

court’s application of criterion (5) and that, as such, the trial court properly ordered

consecutive sentencing. We, therefore, affirm the judgments of the trial court. The

Defendant is not entitled to relief on this issue.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

judgments of the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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