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04/29/92 STATE TENNESSEE v. JERRY DWAYNE CAMMUSE

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT NASHVILLE


April 29, 1992

STATE OF TENNESSEE, APPELLEE
v.
JERRY DWAYNE CAMMUSE, APPELLANT

Davidson County. Ann Lacy Johns, Judge. (Aggravated Rape and Aggravated Sexual Battery)

Jones, Birch, Jr., Summers

The opinion of the court was delivered by: Jones

The appellant, Jerry Dwayne Cammuse, was convicted of two counts of sexual battery, four counts of aggravated sexual battery, two counts of rape, and fourteen counts of aggravated rape by a jury of his peers. The trial court found that the appellant was a standard offender and imposed the following Range I sentences:

a.) Count 1, aggravated sexual battery, the victim being N.C., ten (10) years in the Department of Correction;

b.) Count 2, aggravated seal battery, the victim being N.C., ten (10) years in the Department of Correction;

c.) Count 3, aggravated sexual battery, the victim being N.C., ten (10) years in the Department of Correction;

d.) Count 4, aggravated sexual battery, the victim being N.C., ten (10) years in the Department of Correction;

e.) Count 5, sexual battery, the victim being N.C., two (2) years in the Department of Correction;

f.) Count 6, sexual battery, the victim being N.C., two (2) years in the Department of Correction;

g.) Count 7, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

h.) Count 9, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

i.) Count 10, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

j.) Count 11, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

k.) Count 12, aggravated rape, the victim being N.C., twenty (20) years in the Department of Correction;

l.) Count 13, rape, the victim being N.C, ten (10) years in the Department of Correction;

m.) Count 14, rape, the victim being N.C., ten (10) years in the Department of Correction;

n.) Count 15, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

o.) Count 16, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

p.) Count 17, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

q.) Count 18, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

r.) Count 19, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

s.) Count 20, aggravated rape, the victim being T.C., twenty (20) years in the Department of Correction;

t.) Count 21, aggravated rape, the victim being R.C., twenty (20) years in the Department of Correction;

u.) Count 22, aggravated rape, the victim being R.C., twenty (20) years in the Department of Correction; and

v.) Count 23, aggravated rape, the victim being R.C., twenty (20) years in the Department of Correction.

The trial court ordered that counts one and nine are to be served concurrently, counts two and ten are to be served concurrently, counts three and eleven are to be served concurrently, counts four and twelve are to be served concurrently, counts five and thirteen are to be served concurrently, counts six and fourteen are to be served concurrently, and counts fifteen and sixteen are to be served concurrently. However, these combinations of sentences are to be served consecutively to each other as well as consecutively to the remaining counts of the indictment, i.e. counts seven, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two and twenty-three. The effective sentence imposed is 280 years in the Department of Correction.

The appellant presents six (6) issues for review. He contends the evidence contained in the record will not support a finding by a rational trier of fact that he is guilty of the offenses of which he stands convicted beyond a reasonable doubt. He further contends that the trial court committed error of prejudicial dimensions in (a) denying his motion to suppress a tape recorded statement he made to law enforcement officers, (b) denying his motion to dismiss those counts of the indictment that simply alleged the year in which the offenses were supposed to have been committed, (c) denying his motion to dismiss those counts of the indictment alleging offenses occurring prior to 1990 on the ground the records of the Department of Human Services had disappeared, (d) permitting the State to introduce the testimony of a nurse practitioner pursuant to the medical diagnosis and treatment exception to the hearsay rule, and (e) imposing excessive sentences.

I.

The appellant was convicted of sexually abusing his three daughters, N.C., T.C., and R.C. He contends that the evidence introduced during the trial would not support a finding by a rational trier of fact that he was guilty of these offenses beyond a reasonable doubt. The appellant treats each child separately in his brief.

The appellant was convicted of two counts of sexual battery, four counts of aggravated sexual battery, two counts of rape, and five counts of aggravated rape. The victim in each count was his oldest daughter, N.C. The record reflects numerous instances of fondling, fellatio, digital penetration, anal penetration, and vaginal penetration of N.C. between 1983 and 1990. This victim testified that she was sexually abused practically every other day.

The appellant contends that he should not have been convicted of the offenses which occurred between 1982 and 1987, the period the appellant was living with the woman he married after divorcing the children's mother. The record clearly reflects that the appellant was sexually abusing N.C. during this period of time. Therefore, this contention is without merit.

The appellant contends that the State failed to establish that the appellant penetrated N.C. as alleged in count seven. The record reflects that the appellant digitally penetrated the victim on this occasion.

The appellant contends that the State failed to establish that the appellant penetrated N.C. as alleged in count fourteen. The record establishes that the appellant vaginally penetrated the victim with his reproductive organ on this occasion.

The appellant was convicted of six counts of penetrating his second oldest daughter, T.C. The record reflects numerous instances of fellatio, digital penetration, anal penetration, and vaginal penetration between 1986 and 1990. According to T.C., this occurred approximately four times a month during this period of time.

This Court is requested to reevaluate and reweigh T.C.'s testimony. Of course, this Court is not permitted to do this.

The appellant was convicted of penetrating his youngest daughter, R.C., on three separate occasions. Two counts involved anal intercourse. One count involved digital penetration of the child's vagina. In this Court the appellant contends that he could only be convicted of one count of anal intercourse because R.C. testified that this type of penetration occurred on only one occasion. R.C. testified that the appellant penetrated her anally on two separate occasions; and he digitally penetrated her on one occasion. Thus, the record supports all three convictions.

This Court finds that the evidence contained in the record is sufficient to support a finding by a rational trier of fact that the appellant was guilty of the offenses of which he stands convicted beyond a reasonable doubt. Tenn. R. App. P. 13(e).

II.

The appellant contends that the trial court committed error of prejudicial dimensions in denying his motion to suppress an audio-taped statement that he gave to police officers. He argues that the statement was involuntary because of the following question posed to him during the statement: "You don't want to put those kids through a court trial do you?" According to the appellant, this statement could have been interpreted to mean that "no trial would have taken place if the appellant gave the statement." Instead, the appellant and the children would receive psychological assistance from an appropriate health-care provider. This argument is predicated upon the following excerpt from the statement:

Q. Your three young daughters, think they are 10, 12 and 14, is that right?

A. Correct.

Q. They were up here earlier talking to the police department. . .talking to Officer West and they said that you had been sexually abusing them and uh. . .you. . . you. . .basically what they told Officer West was that you had been having sexual intercourse with them. You come up here and you tell us that you know you need psychological help. That what you did is not right that you want to get the girls some help too don't you?

A. Yes, sir.

Q. Speak up, now, I can't hear you.

A. Yes, sir.

Q. You don't want to put those kids through a court trial do you?

A. No, sir.

The officers initially talked to the appellant at his home. They asked the appellant if he would voluntarily accompany them to the police station to "clear the allegations concerning the sexual abuse of his children. The appellant agreed to accompany the officers. The officers did not arrest the appellant, and, after giving the statement, he was permitted to return to his home.

The officers gave the appellant the Miranda warnings before taking the statement. The appellant was also told that sooner or later he would be arrested for sexually abusing his children because there was probable cause for the issuance of an arrest warrant. The officers also explained to the appellant that they could obtain an arrest warrant, the appellant would be provided with a preliminary hearing where the children would be called as witnesses, and, if bound to the State, the matter would then be presented to the grand jury. In the alternative, the officers explained that the matter could be presented to the grand jury initially; and, if this method of prosecution was selected, the children would not have to testify at the preliminary hearing. The appellant told the officers that he did not want the children to testify at the preliminary hearing. The officers testified that the term "court trial" referred to a preliminary hearing, not a prosecution to determine his guilt.

According to the officers, the appellant was not offered leniency in exchange for the statement he gave at the police station. As previously stated, the officers advised the appellant before giving the statement that probable cause existed for the issuance of an arrest warrant; and he would be arrested sooner or later.

The appellant did not testify at the hearing on the motion. Nor did he offer any evidence to establish his claim that he made the statement in exchange for an offer of leniency.

The trial court denied the motion. In ruling, the court found that (a) the statement was voluntary, (b) any promises of leniency did not overcome the will of the appellant and did not compel the appellant to confess his guilt, (c) the appellant was rational and coherent in his responses, and (d) the appellant's emotional state did not render the statement involuntary.

When there has been an evidentiary hearing on the merits of a motion to suppress a statement made to a police officer, the findings of fact made by the trial court have the weight of a jury verdict; and these findings are binding upon this Court unless the evidence contained in the record preponderates against these factual findings. State v. Aucoin, 756 S.W.2d 705, 710 (Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989). In this case, the evidence contained in the record does not preponderate against the trial court's findings.

This issue is without merit.

III.

Four counts of the indictment did not allege a date when the offense occurred. Counts fifteen, twenty-one, twenty-two, and twenty-three simply alleged that the offense occurred "prior to the return of the indictment." The appellant filed a bill of particulars which sought information "so as to adequately identify the offenses charged, the times of the offenses and the place of the offenses." As to the dates when the offenses occurred, the State responded: "Due to the young age of the children the State is unable to state a particular date and time of the offenses." The appellant subsequently moved to dismiss these counts of the indictment on the ground that the State failed to allege sufficient facts to establish that the crimes were not barred by the statute of limitations. The trial court denied the motion.

It has long been established that the date of the offense charged in the indictment need not be alleged unless the date is a material ingredient in the offense. Tenn. Code Ann. § 40-13-207 provides:

The time at which the offense was committed need not be stated in the indictment, but the offense may be alleged to have been committed on any day before the finding thereof, or generally before the finding of the indictment, unless the time is a material ingredient in the offense. (Emphasis added).

Consequently, these four counts of the indictment conformed to this statute. See State v. Byrd, 820 S.W.2d 739 (Tenn. 1991). However, this does not end the inquiry.

The trial court properly ordered the State to file a bill of particulars to supplement the skeleton indictment drafted by the district attorney general's office, specifically, the four counts which are under attack. The appellant was entitled to sufficient facts and information from the State to permit the appellant to prepare his defense to these counts. State v. Hicks, 666 S.W.2d 54, 56 (Tenn. 1984).

The appellate courts have recognized that there will be times when small children will not be able to furnish investigators the specific date an offense has been committed. See State v. Byrd, supra; State v. Anderson, 748 S.W.2d 201 (Tenn. Crim. App. 1985). However, small children "may be able to define the time of the offense by reference to such memorable occasions in a child's life as birthdays, seasonal celebrations and holidays, the beginning or end of the school year, or visitations by relatives." State v. Byrd, 820 S.W.2d at 742. If this is not possible, a child may be able to relate the offense to a particular school year or how old the child was when the offense was committed. In summary, "there is always the possibility that descriptive information can be made available that will tend to narrow the time-frame of the indictment, even if exact dates cannot be provided." State v. Byrd, 820 S.W.2d at 742.

When the State of Tennessee is truly unable to provide the accused with even an approximate time by descriptive reference, "a conviction may nevertheless be affirmed if in the course of the trial it does not appear that the defendant's defense has been hampered by the lack of specificity. Conversely, a conviction must be reversed if trial testimony establishes that the State had in its possession, either actually or constructively, additional information that could have helped pinpoint the nature, time, or place of the offense, and withheld that information from the defendant. In withholding relevant information, the prosecution runs the risk that an otherwise valid conviction will ultimately be set aside." State v. Byrd, 820 S.W.2d at 742.

In the case sub judice, the State was able to establish that certain offenses occurred when the two children in question were a given age and were in a certain grade at school. T.C. was the victim in count fifteen. She testified that when the offense elected by the State of Tennessee occurred, she was in the fourth grade. According to the witness, she would have been between eleven and twelve years of age. This is the only information that was elicited from the witness during the trial. R.C., the youngest of the three children, was the victim in counts twenty-one, twenty-two and twenty-three. She testified that the appellant began sexually abusing her when she was eight years of age. R.C. did not know how old she was when the offenses elected by the State occurred. She was eleven when she testified. The State could have added to the bill of particulars that all of the offenses took place at the family residence on Ensley in Old Hickory; and practically all of the offenses occurred in the appellant's bedroom.

This Court is of the opinion that the failure of the State to provide the appellant with a more complete bill of particulars was harmless given the scant nature of the information available to the State and the defense asserted by the appellant. The appellant made a blanket denial of the offenses charged in the indictment. Moreover, the children were in his exclusive custody during the period the offenses took place; and he made a statement to the police that established he sexually abused the three children. Thus, the probability that the appellant could have asserted an alibi defense was minuscule if not non-existent.

The appellant's argument that these counts should have been dismissed on the ground it could not be determined whether the offenses were barred by the statute of limitations is also without merit. Tenn. Code Ann. § 40-2-101(e) provides: "For offenses committed prior to November 1, 1989, the limitation of prosecution in effect at that time shall govern." when the offenses were committed, the maximum punishment for the offense of aggravated rape of a child under the age of thirteen was life imprisonment. Consequently, there was no statute of limitations governing the offense. Tenn. Code Ann. § 40-2-101(a). In addition, the argument that the applicable statute of limitations should be based upon the punishment for the offenses pursuant to the Tennessee Criminal Sentencing Reform Act of 1989 is equally specious since the statute of limitations in effect when the offense was committed governs.

This issue is without merit.

IV.

The Department of Human Services conducted numerous investigations into allegations that the appellant was sexually abusing his three children. The series of investigations began in 1985. After the return of the indictment, the appellant sought production of the Department of Human Services' records pertaining to these investigations. The appellant alleged that the records contained material exculpatory evidence. The trial court ordered that the records be produced. It was subsequently learned that the records of the investigations conducted prior to 1990 had been lost or misplaced; and, as a result, the records could not be produced. The appellant then filed a motion to dismiss the counts of the indictment alleging offenses occurring prior to 1990 on the ground he had been denied access to exculpatory evidence. The trial court denied the motion.

There is no evidence in the record that the records were deliberately destroyed or deliberately withheld from the appellant. The appellant concedes this in his brief. However, the appellant argues that "the failure to provide exculpatory material is a violation of due process irrespective of the good or bad faith of the State."

In the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1969), the United States Supreme Court ruled that the prosecution has a compelling duty to voluntarily furnish the accused, upon request, with any material exculpatory evidence which pertains to (a) the guilt or innocence of the accused and/or (b) the punishment which may be imposed if the accused is convicted Evidence which is useful for the impeachment of the victim or another prosecution witness is within the scope of the rule announced in Brady. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

In Brady, the Court said "suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-1197, 10 L.Ed.2d at 218-219. While the investigative reports contained exculpatory evidence, i.e. the children's denial that they had been sexually abused by the appellant, neither the district attorney general nor any employee of the Department of Human Services suppressed the evidence. As previously indicated, the investigative reports had been lost or misplaced; and the district attorney general Did not have access to these reports. When, as here, the exculpatory material sought has been lost or mistakenly destroyed, and the material cannot be produced, the accused is not denied due process of the law absent a showing of bad faith. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood the Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." 488 U.S. at 57-58, 109 S.Ct. at 337, 102 L.Ed.2d at 285. Thus, sanctions should only be imposed when "the State has clearly suppressed or destroyed evidence known to be favorable to the accused or has displayed bad faith or deliberate misconduct in not furnishing samples to the defense." State v. House, 743 S.W.2d 141, 146 (Tenn. 1987), cert. denied, U.S. , 111 S.Ct. 284, 112 L.Ed.2d 239 (1990); State v. Hartman, 703 S.W.2d 106, 113 (Tenn. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986).

The trial court properly denied the appellant's motion to dismiss the counts of the indictment charging the appellant with offenses occurring prior to 1990. There is absolutely no evidence that either the State or an employee of the agency in question deliberately suppressed or deliberately destroyed the investigative reports. Moreover, the appellant was not prejudiced by the failure of the State to produce the reports. The State called the former employee of the agency who compiled the investigative reports. The witness testified that the children denied they had been sexually abused each time they were interviewed. State v. Hartman, 703 S.W.2d at 113. In addition, the children admitted that they were being sexually abused; and they explained why they had denied this fact.

This issue is without merit.

V.

After the authorities discovered that the three children had been sexually abused, the children were taken to General Hospital where each child was examined by Lee Ann McGinnis, a nurse practitioner. She concluded that the history she received was consistent with child sexual abuse. During her testimony, she read into the record verbatim interviews with the children. The interview of N. is as follows:

N., do you know why you are here today? Yes, because of what he did to us. Who is he? My dad. What did he do? He sexually abused us. What do you mean by that? He put his private part in my private part. That must have been really scary? Yeah. Can you remember if anything hurt? Yes, sometimes it would hurt if he put it in my back private part, and sometimes my front. Where were you when this happened? In his room in his bed. He made me sleep with him. Can you remember when that happened last? The last time, was, and she appeared to be thinking at the time, in January. And that was the end of the interview.

The examination did not reveal any objective findings. She concluded that "the history was consistent with sexual abuse." Defense counsel did not object to this testimony. Later, the witness stated that her physical examination revealed facts that "could be" consistent with vaginal penetration.

Before the witness was able to relate the history taken from T.C. and R.C., defense counsel, acknowledging that no objection was interposed to the previous testimony, objected to the history taken from T.C. and R.C. Defense counsel stated at a bench conference that the balance of the histories taken should be excluded because the evidence was hearsay, fell outside the hearsay exception embracing fresh complaint, and denied the appellant's right to confront the witnesses. The assistant district attorney general advised the trial court that the evidence was not being introduced as fresh complaint but rather was admissible "as history taken for diagnosis and treatment." The trial court ruled: "Under the evidentiary rules, and with that limited instruction, I think it would be proper."

The witness related the following history taken from R.C.:

I asked R., Do you know why you are here today? Yeah, because we told our babysitter what had been happening. I said I would like for you to tell me, too, if you feel like it. Well, my daddy was making us sleep naked with him. He was making N.C. do nasty things with him. Has anyone touched you in a way you didn't like? Yeah. He put his thing in my butt. Who did? My daddy. Some reassurance was given at that time. Is there anything else you need to tell me? He touched my front private part. With what? His fingers. When this happened, where were you? His room. And that is the end of the interview.

The witness further testified: "The impression was history consistent with sexual abuse. Physical exam was consistent with history." However, her physical examination did not reveal evidence of penal penetration. She again reiterated: "I see evidence consistent with the history she gave me, which was digital penetration, possible."

The witness related the following history taken from T.C.:

T, do you know why you are here? Yeah. Can you tell me about it? Well, I'm here because of what my dad did. Can you tell me about that? Well, he rubbed it between my legs, and in my front and in my back. What did he rub you with? You know, he put his private part in my behind. Some reassurance given. That must have been scary. Do you remember if anything ever hurt? Well, yeah. When he put his private part in my front part. When he would take it out and I had to go to the bathroom, all that stuff would come out. Can you remember where you were when he would do this? In his room. He would make us sleep with him. End of interview.

Later, the witness testified that physical findings were "concerning" for vaginal penetration. She stated on cross-examination: "I think that a male penis could have caused that injury, yes."

The appellant alleged in his motion for a new trial:

2. Compounding the pretrial errors complained of above, the Court erred, at trial, in permitting Leigh Ann McGinnis, a State witness, to testify, over defense objection as to a denial of confrontation, as to statements made to her in February 1990, by the children as to abuse occurring seven (7) years previously. The Court admitted this testimony as a medical history given by a Registered Nurse/Family Nurse practitioner, but the defendant insists that the admission of these stale complaints was error, particularly in this context in which the defense had been denied (or was unable, due to the loss of the records) to explore the history of prior complaints and failure to complain.

However, in this Court the appellant contends that the trial court committed error in allowing certain testimony from a nurse practitioner under the medical diagnosis and treatment exception to the hearsay rule." The appellant cites Tenn. R. Evid. 803(4). This is the first time the appellant has relied upon this rule.

This issue has been waived. As can be seen, the appellant asserted different grounds as to why the testimony in question should have been excluded in the trial court and this Court. In State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988), this Court said: "It is elementary that a party may not take one position regarding an issue in the trial court, change his strategy or position in mid-stream, and advocate a different ground or reason in this Court." See State v. Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989); State v. Leaphart, 673 S.W.2d 870, 873 (Tenn. Crim. App. 1983).

The appellant did not object to the history given by N.C. Consequently, the issue, as it pertains to this victim, has also been waived for this reason as well. State v. Burton, 751 S.W.2d 440, 451 (Tenn. Crim. App. 1988); State v. Lambert, 741 S.W.2d 127, 132 (Tenn. Crim. App. 1987).

This Court parenthetically notes that any error in the admission of this evidence was harmless. First, all three victims testified to the facts set forth in the history given by the witness; and their testimony was more extensive than the history given. Second, the evidence of the appellant's guilt is extensive. See Tenn. R. App. P. 36(b).

This issue is without merit.

VI.

The appellant contends that the trial court erred in imposing excessive sentences and ordering that a portion of his sentences are to be served consecutively.

When the accused challenges the length, range, or the manner of service of the sentences imposed by the trial court, this Court must conduct a de novo review of the sentences. In doing so, this Court must presume "that the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d); State v. Dykes, 803 S.W.2d 250, 258 (Tenn. Crim. App. 1990).

There are several enhancement factors present on the face of the record. First, the victims of the offenses were particularly vulnerable because of their ages. Tenn. Code Ann. § 40-35-114(4). This factor can be considered in those offenses where age is not an element of the offense. Second, the appellant treated the victims with exceptional cruelty during the commission of the offenses. Tenn. Code Ann. § 40-35-114(5). Third, each offense involved a victim; and the offense was committed to gratify the appellant's desire for pleasure. Tenn. Code Ann. § 40-35-114(7). Fourth, the appellant abused a position of private trust, the parent-child relationship. Tenn. Code Ann. § 40-35-114(15).

The trial court did not abuse its discretion. The sentences are necessary to avoid deprecating the seriousness of the offenses and to provide an effective deterrence to others likely to commit similar offenses. Tenn. Code Ann. § 40-35-303(1)(B).

The appellant abused the three victims for approximately eight years. The offenses occurred every other day or every third day during most of this period. Consequently, the trial court did not abuse its discretion in ordering that some of the sentences be served consecutively. Tenn. Code Ann. § 40-35-115(a)(5) provides that consecutive sentences may be imposed when: "The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arise from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims." However, this Court is of the opinion that the trial court abused its discretion in ordering excessive consecutive sentences.

The ultimate purpose of consecutive sentencing is the protection of the public. Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976); State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991). Society is entitled to be protected from a person who is "unwilling to lead a productive life" and will "resort to criminal activity in furtherance of anti-societal lifestyle." Gray, 538 S.W.2d at 393; Woods, 814 S.W.2d at 380. Consequently, the length of consecutive sentences should be limited to a time span that will protect the public from the accused's future criminal activity. As the Supreme Court said in State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987): "Obviously, no rigid formula for application to such cases would be appropriate, but we caution that consecutive sentences should not routinely be imposed in sexual abuse cases, or in other cases, and that the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved. See ABA Standards for Criminal Justice, Second Edition § 18-4.5."

This Court is of the opinion and holds that the imposition of sentences totaling 280 years is excessive. The aggregate length of the sentences far exceeds the time span necessary to protect society from the appellant's propensity to commit crimes involving the sexual abuse of children. An aggravated sentence of 150 years is more than adequate to protect the public given the fact the appellant was forty (40) years of age when he was sentenced, and he has no prior criminal convictions.

The judgment of the trial court is amended to provide that the sentences imposed in counts, 1, 7, 10, 12, 17, 18, 21, and 22 are to be served consecutively. The remaining sentences imposed by the trial court are to be served concurrently to the aforementioned sentences in the enumerated counts.

JOE B. JONES, JUDGE

CONCUR:

ADOLPHO A. BIRCH, JR., JUDGE

PAUL G. SUMMERS, JUDGE

19920429

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