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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs September 28, 2010 STATE OF TENNESSEE v. NICHOLAS RAY TIPTON
Direct Appeal from the Criminal Court for Washington County No. 33927 Robert E. Cupp, Judge

No. E2009-02676-CCA-R3-CD - Filed October 11, 2011

The Defendant-Appellant, Nicholas Ray Tipton, was convicted by a Washington County jury of three counts of aggravated rape, a Class A felony. He was sentenced to a twenty-two year term of imprisonment for each conviction, with two sentences to be served consecutively, for an effective forty-four year term of imprisonment in the Tennessee Department of Correction. On appeal, Tipton raises the following issues for our review: (1) whether the evidence was sufficient to support his conviction; (2) whether the three counts of aggravated rape should be merged into a single conviction; (3) whether the trial court erred by allowing an emergency room physician to testify regarding the effect of intoxication on a man's ability to ejaculate; (4) whether the sentence length for each conviction was excessive; and (5) whether the trial court erred by imposing consecutive sentencing. Upon review, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined. Steve McEwen, Mountain City, Tennessee (on appeal), Jeffery C. Kelly, District Public Defender; and William Donaldson, Assistant Public Defender, Johnson City, Tennessee (at trial), for the Defendant-Appellant, Nicholas Ray Tipton. Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Anthony Wade Clark, District Attorney General; and Dennis Brooks, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION

Trial. In this case, S. D., the victim and a paraplegic,1 was raped by Tipton, her boyfriend at the time of the offenses. While the victim and Tipton have differing accounts of the events leading up to the instant offenses, there is no dispute that Tipton sexually penetrated the victim anally, vaginally, and orally. At the time of the offenses, the victim was in a serious relationship with Tipton and had previously engaged in consensual sexual intercourse. On the night of the offenses, the victim and Tipton had gone to a restaurant and drank a couple of beers before going to a hotel bar. They "ordered another couple of beers" at the hotel bar. The victim claimed she drank a total of three or four beers that night. At around 9:15 or 9:30 p.m., the victim went to the front desk of the hotel and inquired about a room. She decided to stay at the hotel because of its convenience for work the next morning. The victim testified that she went to the hotel room with Tipton and gave him the spare room key. The victim remained in the hotel room, got ready for bed, and Tipton returned to the hotel bar. Around 10:30 p.m. that same night, the victim received several text messages from Tipton wanting to know her room number. The victim told Tipton to "stay away," and she fell asleep. The victim said she woke up sometime later and Tipton was standing over her, removing her clothes. The victim told Tipton to leave her alone; however, he became more aggressive and violent. The victim stated: I told him I was going to call the police. At that point he pulled the phone out of the wall. He took my cell phone and snapped it into [sic], and then he said, bitch, now you try to call the police. And then he just started really taking off my clothes very aggressively. The victim continued and testified that Tipton grabbed her throat and penetrated her vagina with his penis. She stated, "He choked me very hard. I could barely breathe." She was slapped in the face and called many derogatory terms. The victim said Tipton became upset when he was unable to ejaculate. She testified that Tipton penetrated her anally with his penis and eventually put his penis in her mouth. The oral penetration caused the victim to gag and vomit. Tipton was angered when the victim vomited and began to choke her again. The victim stated: He kept saying, I'm going to jail. I'll do whatever I want to do to you, bitch. I'll do whatever I want. And he said that

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