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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
July 2000 Session STATE OF TENNESSEE v. CHARLES B. SULLIVAN
Direct Appeal from the Criminal Court for Davidson County No. 98-A-722, Walter Kurtz, Judge

No. M1999-02547-CCA-R3-CD - Filed October 13, 2000

Charles B. Sullivan entered guilty pleas in the Davidson County Criminal Court to three counts of aggravated rape, one count of especially aggravated burglary, three counts of aggravated burglary, and one count of rape, for which the trial court imposed an effective sentence of fifty-nine years. In this appeal as of right, the appellant contends that the individual sentences are excessive and that partial consecutive sentences are not warranted. After review, we affirm. Tenn. R. App. P. 3; Judgment of the Criminal Court is affirmed. DAVID G. HAYES, J., delivered the opinion of the court, in which NORMA MC GEE OGLE , J., joined.
THOMAS T . WOODALL ,

J. and

Dwight E. Scott, Nashville, Tennessee, for the appellant, Charles B. Sullivan. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Victor S. (Torry) Johnson III, District Attorney General, and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The appellant, Charles B. Sullivan pled guilty to three counts of aggravated rape, one count of especially aggravated burglary, three counts of aggravated burglary, and one count of rape in the Davidson County Criminal Court.1 Following a sentencing hearing, the trial court sentenced the appellant, as a multiple rapist, to twenty-two years for each count of aggravated rape (counts 1-3),

In January 1998, the Davidson County Grand Jury returned an indictment charging the appellant with twentysix counts of aggravated rape, two counts of especially aggravated burglary, two counts of aggravated burglary and one count of rape. On March 5, 1999 , the court d ismissed c ounts eig ht throug h thirty. Th e appellan t's pleas to counts 1, 2, 3, 5,6,7, 31 and 32 , were en tered in Jun e 1999 . Pursuan t to the plea agreement, remaining count 4 of the indictment was dismissed.

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ten years for especially aggravated burglary (count 5), five years for each count of aggravated burglary (counts 6, 7, and 32), and ten years for rape (count 31). The court ordered counts 1and 2 be served concurrently; counts 3 and 5 be served concurrently but consecutive to counts 1 and 2; counts 6 and 7 be served concurrently but consecutive to counts 3 and 5; counts 31 and 32 be served concurrently but consecutive to counts 6 and 7, for an effective sentence of fifty-nine years. The appellant contests the sentencing decision of the trial court, asserting (1) the individual sentences imposed are excessive and (2) partial consecutive sentences are not warranted in this case. After review, we affirm the length of the individual sentences imposed by the trial court and the imposition of partial consecutive sentences.

Background The proof at the sentencing hearing developed the following facts: Janis Walden, an attorney, testified that, on May 15, 1996, she was living alone. That evening, Ms. Walden retired to her bedroom where she fell asleep watching television. At approximately 11:00 p.m., she was awakened by her television being turned off. She turned the light on and saw the appellant standing by her bed. Ms. Walden then "let out this primal scream and he ran out, and I jumped out the window to get out. . . ." Ms. Walden related that this incident was devastating to her and that it has taken a toll on her emotional well-being. Rebecca Bossart testified that, on September 19, 1996, she was living alone. That evening, she went to bed at approximately 11:00 p.m. At 2:13 a.m., she felt her bed move. She rolled over and the appellant was crouched at the side of her bed. Ms. Bossart sat up and started screaming. The appellant then attacked her; "she hit him; he hit her; she hit him again, he hit her again." While he was striking Ms. Bossart in the face with his fist, he ordered her to stop hitting him and that he would kill her if she did not stop. At this point, Ms. Bossart withdrew. The appellant then proceeded to rape his victim and forced her to perform various sex acts upon him." Ms. Bossart explained how her ordeal ended. He demanded oral sex. He was on the bed. He had not removed his pants. They were down around his knees. He was on the bed and I was on the floor on my knees. And I figured this was the only time I was going to have to get out of there alive. So, I grabbed everything I could grab that belonged to that man, and I pulled as hard as I could. And I picked up a pedestal and I threw it at him. Realized my door was shut and my eyes were swollen shut from where he beat me, I got to the door, opened it, he ran past me and down the hall and out the basement door.

During the sexual assault, the appellant warned Ms. Bossart that he "knew where she lived" and he "would be back" if she ever told anybody what he had done. Ms. Bossart estimated that the entire -2-

episode lasted between forty-five minutes to an hour. She related that this incident "has . . . affected my life in ways that I do not know how to express. I've been in counseling. I've had physical, medical problems. I've had to work through issues that I should never had to address." Although the other victims did not personally testify at the sentencing hearing, proof was introduced as to the circumstances of the crimes committed against them.2 Virginia Slayden, an elderly woman, reported that the appellant entered her house. The appellant approached Ms. Slayden, sat on her bed and talked to her. Ms. Slayden was able to leave the house without the appellant touching her. The offenses against Jennifer Stidham involved the appellant entering her residence and raping her. During her attack, the appellant told Ms. Stidham that he knew where she lived and if she called the police he would be back and it would be worse. Ms. Stidham states that this incident has forever changed her life. The presentence report indicates that the thirty-seven-year-old appellant has a prior criminal history consisting of a 1989 conviction for prostitution and 1987 convictions for criminal trespass and conspiracy to commit burglary. At the time of his arrest, the appellant was using drugs on a daily basis. He explained that he started using drugs and alcohol at age 13 or 14. He claimed that he had committed the current offenses to finance his drug habit. Notwithstanding this assertion, none of the burglaries resulted in any stolen property. The appellant, in his own defense, testified that he has been in jail for three years pending trial. He has not had any disciplinary offenses and has been involved in the Starting Point program, a drug program, and has been participating in both NA and AA. He again conceded that he had a previous problem with drugs and alcohol, cocaine being his "drug of choice." The appellant testified that he could not explain his criminal behavior. He states that he is willing to participate in a sexual treatment program. He further states that he is "very apologetic for his actions. I wish there was something I could say or do. . . . I can't turn back time. I'm sorry for what I had done." Dr. Deborah Huntley interviewed the appellant, following his referral for psychosexual evaluation, and determined that the appellant "is in need of long term treatment for drug and alcohol abuse as well as sexual deviancy." She further opined in her report that the appellant has difficulty being accountable for his sexual deviant behavior and, despite his statements, did not appear motivated to participate in sexual deviancy treatment. She concluded that "Mr. Sullivan's history and test results indicate that, without treatment, he is at a high risk to reoffend." The appellant's ex-wife, Candice McBride, testified that she and the appellant have been divorced for fifteen years; their marriage resulted in the birth of two children. Although she stated that "he was a good father," she conceded that "he could have done a better job."

Testimony at the sentencing hearing indicated that the victim, Ms. Slayden has "a difficult time getting around" and her presence in court would have presented an "extreme hardship" for her. Regarding the victim, Ms. Stidham, the prosecutio n advised th e court that she "does not fe el up to testifying."

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I. Sentencing In contesting the excessive length of the sentence imposed by the trial court, the appellant argues (1) the trial court did not properly consider the sentencing principles and relevant circumstances in applying enhancement factors and rejecting mitigating factors and (2) the trial court abused its discretion in imposing consecutive sentences in the present case. Review, by this court, of the length, range, or manner of service of a sentence is de novo with a presumption that the determination made by the trial court is correct. Tenn. Code Ann.

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