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State v. Vanlier12/10/1999
The defendant, Tyrone W. Vanlier, Sr., was convicted by a jury of two counts of rape of a child. He was sentenced to twenty-one years on each count, with the sentences to be served consecutively. On appeal, the defendant claims the trial court erred in ordering his sentences to run consecutively. Upon our review of the record, we AFFIRM the sentences imposed by the trial court.
FACTS
The defendant and the victim's mother were involved in an ongoing relationship. In June of 1993, the defendant, while staying in the victim's home, raped the eleven-year-old victim anally and vaginally. He was convicted of two counts of rape of a child.
PROCEDURAL BACKGROUND
On January 17, 1996, the trial court entered its judgment imposing two consecutive sentences of twenty-one years for rape of a child. This Court affirmed the two judgments of conviction but remanded for re- sentencing on the issue of consecutive sentences. See State v. Tyrone W. Vanlier, Sr., C.C.A. No. 01C01-9608-CR-00341, Davidson County (Tenn. Crim. App. filed September 19, 1997, at Nashville).
A new sentencing hearing was held on November 19, 1997, and the trial court again ordered consecutive sentences. However, at the request of the state, this Court remanded the case a second time for detailed findings. Following a second re-hearing, the trial court, for the third time, ordered the defendant's sentences to be served consecutively.
At the second re-hearing, the trial court affirmatively found that the defendant was convicted of two or more statutory offenses involving sexual abuse of a minor. The trial judge stated that he considered the relationship between the victim and the defendant, the age of the victim, the time span of the undetected sexual activity, and the nature and the scope of the sexual activity. See Tenn. Code Ann. § 40-35- 115(b)(5).
In addition, the trial judge read into the record the defendant's past convictions and criminal charges and stated these acts warranted a finding that the defendant was a professional criminal whose record of criminal activity was extensive. See Tenn. Code Ann. § 40-35-115(b)(1) and (2).
STANDARD OF REVIEW
A court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:
(1) he defendant is a professional criminal who has knowingly devoted himself [/herself] to criminal acts as a major source of livelihood;
(2) he defendant is an offender whose record of criminal activity is extensive;
...
(5) 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 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;
...
Tenn. Code Ann. § 40-35-115(b); see also State v. Black, 924 S.W.2d 912 (Tenn. Crim. App. 1995).
This Court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35- 401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
CONSECUTIVE SENTENCES
A. Professional Criminal
Defendant contends the trial court improperly found that the defendant was a professional crimin
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