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State v. Kossow8/23/2001
ourt agrees with the State that Defendant complains of many of the factors used to enhance the sentences were considered to order the sentences to be served consecutively. Thus, Defendant was hit with a "double whammy."
The fact that the trial court used some of the enhancement factors to increase the length of the sentence within the appropriate range does not bar the use of these same facts in determining whether consecutive sentencing is proper. State v. Melvin, 913 S.W.2d 195, 205 (Tenn. Crim. App. 1995); State v. Hoyt, 928 S.W.2d 935, 949 (Tenn. Crim. App. 1995); State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993), perm. app. denied, (Tenn. 1993); State v. Lane, 3 S.W.3d 459, 460 (Tenn. 1999).
Tennessee Code Annotated § 40-35-115(b) provides: The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:
(5) The 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 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.
To support consecutive sentencing pursuant to Tennessee Code Annotated § 40-35-115(b)(5), the State must establish sufficiently the aggravating circumstances accompanying the sexual offenses. State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). First, the relationship between Defendant and the multiple victims in this cause is well established. The parents of the children entrusted their welfare and care to a family friend over a period of two years. During this two-year period, Defendant engaged in a plan to sexually abuse these children by exposing them to explicit sexual material, such as videos, magazines, etc., to prepare them for sexual activity. Although there was a dispute between Defendant and the children as to how many sexual acts occurred, the trial court found Defendant's testimony less credible on this subject matter. The victim, TLP, testified as to the affect these events have had on her since Defendant's arrest. She has been in counseling for seven months to a year, which was corroborated by her mother. She suffers nightmares that she will be raped by others and she has been harassed at school about being raped.
Applying the criteria set forth in Tennessee Code Annotated § 40-35-115(b)(5) to the facts in this record, clearly the trial court was not in error for ordering all sentences to be served consecutively. The decision of whether prison terms are to be consecutive or concurrent is left to the sound discretion of the trial court. State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997), perm. app. denied, (Tenn. 1998). There is no merit to this issue.
In conclusion, however, we hold that the trial court's judgment is affirmed.
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