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State v. Blackstock8/27/2001
d of the dangerous offender "unless the terms reasonably relate to the severity of the offenses committed and are necessary in order to protect the public (society) from further criminal acts by those persons who resort to aggravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938.
Here, the trial court failed to make all of the findings of fact necessary to support consecutive sentencing on dangerous offender grounds:
I do find Number 4, "The defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high." I do find that.
While our review is, therefore, de novo, the record supports consecutive sentencing on dangerous offender grounds. In our assessment, the circumstances of these offenses demonstrate that the defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high. While he attributes his criminal behavior to his prior sexual abuse and his head injury , there is no indication that the defendant had pursued medical treatment for either condition. This is particularly disturbing in light of his admission that he had sought potential child victims on other occasions. In our view, consecutive sentences are necessary to protect the public from the defendant. The severity of the offenses warrants consecutive sentencing.
Further, the trial court properly relied upon Tennessee Code Annotated ยง 40-35-115(b)(5), that the defendant is convicted of two or more offenses involving sexual abuse of a minor, in ordering consecutive sentences. Although there are no aggravating circumstances arising from the defendant's relationship to the victim and there was no period of undetected sexual activity, the nature and scope of the sexual acts forced upon the nine-year-old victim - fellatio and anal penetration - support consecutive sentencing. In addition, testimony established that the victim sustained substantial psychological damage as a result of the attack. Accordingly, the defendant is not entitled to relief on this issue.
In summary, the two sentences for rape of a child are modified from 25 to 23 years. The 25-year sentence for especially aggravated kidnapping is affirmed. Because the trial court properly imposed consecutive sentencing, the effective term is 71 years.
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