           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     Assigned on Briefs July 24, 2002

                 STATE OF TENNESSEE v. ALLEN PRENTICE BLYE

                          Appeal from the Criminal Court for Sullivan County
                                Nos. S42, 293   R. Jerry Beck, Judge



                                         No. E2001-01227-CCA-R3-CD
                                              September 19, 2002

The Defendant, Allen Prentice Blye, was convicted by a jury of aggravated burglary and aggravated
rape. The trial court sentenced the Defendant as a Range III, persistent offender to fifteen years for
the aggravated burglary, and as a Range II, violent offender to forty years for the aggravated rape.
The sentences were ordered to be served consecutively in the Department of Correction, for an
effective sentence of fifty-five years. The Defendant now appeals as of right, alleging that the trial
court erred in refusing to suppress evidence; erred in admitting certain testimony at trial concerning
DNA evidence; that the evidence is not sufficient to support his convictions; that the trial court erred
in refusing to grant him the services of a psychological expert for sentencing purposes; and that the
trial court erred in its application of enhancement and mitigating factors in setting the length of his
sentences. We affirm the judgment of the trial court.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH, J., joined. JOE
G. RILEY, J., filed a concurring opinion.

Julie A. Rice, Knoxville, Tennessee and Terry Jordan, Assistant Public Defender, Blountville,
Tennessee, for the appellant, Allen Prentice Blye.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General;Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION

        The victim in this case, R.C.,1 testified that she was awakened from her sleep on the night
of June 19, 1998, when she felt someone in bed with her. The person put his hands around her neck,



       1
           W e will identify the victim of the aggravated rap e by her initials.
and R.C. noticed that he was wearing loose-fitting gloves. She asked the intruder, “[w]ho are you
and what are you doing in my house?” The intruder’s only response was to start choking R.C.

         R.C. began fighting, and the choking increased. The two fell off of the bed and onto the
floor, with R.C. on her stomach and the man on her back. The choking stopped and the victim
pleaded with her attacker to leave. She reached back for his head, but it was covered with some kind
of soft material. The man reached down and removed her panties, pulled his pants down, and raped
her. Afterwards, he wrapped her in a comforter, put a pillowcase over her head, and dragged her into
the bathroom. There, he ran hot water into the sink and tried to force R.C. to sit in the sink. When
she struggled, he put her on the floor and rinsed her genital area with water from the sink. He then
left the bathroom and R.C. escaped through the bathroom window.

         R.C. ran to a neighbor’s house, wearing only the tee-shirt she had been sleeping in, and called
the police. After the police arrived, Officer David Samples accompanied R.C. back to her house.
They entered through the side door, which was open. Inside, they found a pair of nylon jogging
pants in the kitchen sink with water running over them. These pants were subsequently determined
to have gasoline and kerosene on them. Officer Samples also noticed a bedroom lamp and table
knocked over, bedding on the floor, and water running in the bathroom sink. R.C. also found many
of her photographs in disarray, and later discovered that a sweater vest and a dress were missing; she
testified that the covering over her attacker’s head felt like her sweater vest.

        R.C. went to the hospital, where a rape kit was performed, including vaginal swabs. Dr.
Keith Byrd, the treating physician, testified that the victim had bruises on her neck, a large hematoma
on her left buttock, and abrasions on her left flank. The police collected the tee-shirt and panties
R.C. had been wearing during the attack. R.C. was unable to identify her attacker or describe him,
but she estimated that he was five feet, ten inches to six feet tall. She also smelled the odor of
gasoline or kerosene about him.

         Detective David Joe Cole of the Kingsport Police Department testified that he spoke with
the Defendant on July 12, 1998. The Defendant informed Det. Cole that he was in the lawn care
business. Det. Cole testified that the Defendant is five feet, ten inches tall. Det. Cole also testified
that, in February 2000, he met with Deborah McDowell at the Tennessee Women’s Prison, where
she turned over to him a letter and envelope. The envelope had the Defendant’s address on it, with
which Det. Cole was familiar. Det. Cole also recognized the Defendant’s signature on the bottom
of the letter contained in the envelope. Det. Cole turned the envelope over to the TBI laboratory.
Det. Cole testified that he was present when blood was subsequently drawn from the Defendant,
which was also turned over to the TBI lab.

       Officer Timothy Horne testified that he came into contact with the Defendant on August 9,
1998, and noticed the smell of gasoline about the Defendant.

        Dr. Michael Alexander Turbeville testified as an expert witness in serology and DNA. As
a forensic scientist with the TBI lab, Dr. Turbeville examined and analyzed the rape kit and tee-shirt


                                                  -2-
recovered from the victim, as well as the envelope recovered from Ms. McDowell and the blood
drawn from the Defendant. Dr. Turbeville testified that he found sperm present in the vaginal swabs
taken from R.C. and on the tee-shirt she had been wearing during the attack, and was able to obtain
a DNA profile from these deposits. He was also able to obtain a DNA profile from saliva recovered
from the envelope. All of these DNA profiles were consistent with one another, and all of them
matched the DNA profile obtained from the Defendant’s blood. Dr. Turbeville testified that the
chance of the Defendant’s blood being a random match to the other samples was one in a number
greater than the population of the earth.

                                SUPPRESSION OF EVIDENCE
        We first address the Defendant’s contentions regarding the search warrant which resulted in
his blood being drawn.

       In July 1999, after commencement of the instant prosecution, the State filed a motion
requesting the trial court to enter an order directing the Defendant to submit to the drawing of a
sample of his blood for purposes of DNA comparison. After an evidentiary hearing, the trial court
denied the State’s motion on the basis that the State had failed to establish probable cause for the
issuance of the warrant. In June 2000, Det. Cole filed an affidavit in support of a search warrant with
Judge Lynn Brown of the First Judicial District, which District included Johnson County where the
Defendant was incarcerated, but not the county in which this case was prosecuted. The affidavit
provides, in pertinent part, that
                [a]s part of this investigation, it was learned that the defendant had
                contacted a friend, Deborah McDowell, and had corresponded with
                her, by letters, with the purpose of having her contact the victim for
                him. On February 28, 2000, I [Det. David Joe Cole] went to the
                Tennessee Prison [f]or Women, in Nashville and interviewed Ms.
                McDowell. During this interview, she advised that she still had a
                letter and envelope sent to her by the defendant. She voluntarily
                released these items to me, and I took them to the TBI Lab. I
                submitted the envelope for analysis, and saliva was found. DNA,
                isolated and analyzed from the saliva, was compared to the DNA
                profile of the seminal fluid [recovered from the victim]. The results
                of this test revealed that the saliva, from the envelope, had the same
                profile as the seminal fluid, recovered from the scene of the rape.
                The odds of it being someone unrelated would be beyond the known
                population of the world.

                       This letter was sent to Ms. McDowell, and contained the
               return address belonging to [the Defendant], and the handwriting was
               confirmed by Ms. McDowell as belonging to [the Defendant]. Your
               affiant is presently aware of [the Defendant’s] address and of his
               handwriting, both matching what is displayed on the envelope. Your
               affiant has probable cause to believe that [the Defendant] sent this


                                                 -3-
               letter to Ms. McDowell, and that the saliva recovered from the
               envelope is his. Your affiant also has probable cause to believe that
               the blood of [the Defendant] will be matched by DNA, to the seminal
               fluid left by the rapist.

Based on the affidavit, Judge Brown issued the search warrant, which provided for the drawing of
three tubes of blood from the Defendant. Following issuance of the warrant, Det. Cole, an officer
of Sullivan County, went to the Northeast State Correctional Facility in Johnson County and,
accompanied by one or more of the correctional officers, met with the Defendant in the prison
infirmary. Although Det. Cole showed the search warrant to the Defendant, the Defendant refused
to allow his blood to be drawn. Det. Cole returned to Judge Brown, explaining that the Defendant
refused to submit to the search warrant. Judge Brown then issued an order providing that “[t]he
Warden shall have [the Defendant] transported to the Johnson Co[unty] Health Center with sufficient
personnel to take blood samples from [the Defendant] by whatever means may be necessary or by
any necessary restraint.” Det. Cole returned to the Northeast State Correctional Facility and showed
this order to the Defendant, who was in the infirmary with correctional officers and the facility
warden, Howard Carlton. The Defendant then requested and obtained a statement signed by Warden
Carlton, which provides that “Inmate Allan P. Blye #131085 is giving blood per court order due to
the fact that the Warden told him he must or it would be taken by force if he did not comply. He is
giving the blood under duress.” The Defendant then submitted to his blood being drawn in the
prison infirmary.

       In September 2000, the Defendant filed a motion to suppress the blood drawn from him
pursuant to the search warrant issued by Judge Brown. After a hearing, the Defendant’s motion was
denied. The Defendant now contends that the denial of his motion to suppress was error.

       In support of his contention, the Defendant alleges that the affidavit in support of the search
warrant is constitutionally infirm because it fails to establish the veracity of Ms. McDowell. We
begin our analysis of this argument with the familiar “black-letter law” regarding search warrants:
                       As a general rule, a search warrant shall be issued only on the
               basis of an affidavit, sworn before a “neutral and detached”
               magistrate, which establishes probable cause for its issuance. A
               showing of probable cause requires, generally, reasonable grounds for
               suspicion, supported by circumstances indicative of an illegal act.
               Thus, the need for the magistrate to make a neutral and detached
               decision regarding the existence of probable cause requires that the
               affidavit contain more than mere conclusory allegations by the affiant.

                       In determining the reliability of information contained in an
               affidavit in support of a search warrant, there is a significant
               distinction between a “citizen informant,” or bystander witnesses, and
               “criminal informants,” or those from a ‘criminal milieu.’ Information
               provided by a citizen or bystander witness that is known to the affiant


                                                 -4-
               is presumed to be reliable; and the state is not required to establish
               either the credibility of the informant or the reliability of the
               information. Although the name of the citizen informant does not
               have to be disclosed, “the reliability of the source and the information
               must be judged from all of the circumstances and from the entirety of
               the affidavit.”

                       Conversely, if the source is a criminal informant, the
               determination of reliability must be based on the two-pronged
               Aguilar-Spinelli test . . . . The magistrate issuing the search warrant
               must be “informed of both (1) the basis for the informant’s
               knowledge, and either (2)(a) a basis establishing the informant’s
               credibility or (2)(b) a basis establishing that the informant’s
               information is reliable.” Probable cause may not be found until both
               prongs are independently considered and satisfied.

State v. Stevens, 989 S.W.2d 290, 293-94 (Tenn. 1999) (citations and footnote omitted). The reason
for requiring additional indicia of reliability for criminal informants is because
               [i]nformation supplied to officers by the traditional police informer
               is not given in the spirit of a concerned citizen, but often is given in
               exchange for some concession, payment, or simply out of revenge
               against the subject. The nature of these persons and the information
               which they supply convey a certain impression of unreliability, and
                it is proper to demand that some evidence of their credibility and
                reliability be shown . . . .

Id. at 294 (quoting State v. Smith, 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993)).

         The Defendant argues that Ms. McDowell is part of the “criminal milieu” and that the
reliability of the information she provided to Det. Cole must therefore satisfy the Aguilar-Spinelli
test. The State disagrees, arguing that Ms. McDowell should be categorized as a citizen informant.
We find, however, that the type of information provided by Ms. McDowell makes it unnecessary to
classify her as either type of informant, and further makes it unnecessary to apply the Aguilar-
Spinelli test.

        In State v. Cauley, 863 S.W.2d 411, 417-18 (Tenn. 1993), our supreme court recognized that
non-accusatory information that does not describe criminal activity is not in the nature of a criminal
informant’s tip. In this case, Ms. McDowell informed Det. Cole of two things, according to the
affidavit: that she had a letter and envelope sent to her by the Defendant; and that the
correspondence contained the Defendant’s handwriting. This information is not accusatory, nor does
it describe criminal activity. Ms. McDowell was acting not as a criminal informant, but as a curator
of personal property believed to have previously been in the Defendant’s possession.



                                                 -5-
        However, even if we were to find that Ms. McDowell was from the “criminal milieu,” we
find that the affidavit passes the two-prong Aguilar-Spinelli test. With respect to the first prong, that
the affidavit informs the reviewing magistrate of the basis for the informant’s knowledge, the
affidavit asserts that Det. Cole learned during the course of the investigation that Ms. McDowell had
received correspondence from the Defendant. Ms. McDowell confirmed this by turning over to Det.
Cole a letter and envelope she had received purporting to be from the Defendant. Thus, the basis
for Ms. McDowell’s knowledge of receiving correspondence from the Defendant was confirmed by
an actual piece of such correspondence. With respect to the second prong, that the affidavit sets
forth a basis establishing the informant’s credibility or a basis establishing that the informant’s
information is reliable, the affidavit provides that Det. Cole is himself familiar with the Defendant’s
handwriting and that the handwriting on the envelope given to him by Ms. McDowell matches it.
Det. Cole’s recognition of the Defendant’s handwriting on the envelope establishes that Ms.
McDowell’s report of receiving correspondence from the Defendant is reliable. Accordingly, the
affidavit satisfies the Aguilar-Spinelli test, and this issue is therefore without merit.

        The Defendant also contends that the blood samples drawn as a result of the search warrant
constitute “fruit of the poisonous tree,” and the test results should therefore have been suppressed.
See generally Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416 (1963). The
Defendant points to the fact that the State had filed a second motion with the trial court for the
issuance of a search warrant for the Defendant’s blood, but before the motion was docketed, Det.
Cole went to a different judge in a different county and obtained the warrant without notice to the
Defendant or his lawyer. Accordingly, the Defendant argues, the search is tainted by improper police
conduct. The Defendant urges that “once a defendant is represented by counsel and certain
procedures have been put in motion in the trial court, the only appropriate and constitutionally firm
course of action [is] to require notice and a hearing before non-testimonial evidence may be seized
from a defendant under the auspices of a search warrant.” The Defendant acknowledges that he has
no case law upon which to rely in making this argument.

        We are unpersuaded that the State’s action in obtaining the search warrant from a judge in
the county in which the Defendant was imprisoned, rather than the trial judge before whom the
prosecution was proceeding, tainted the search so as to render the blood tests inadmissible.
Tennessee Rule of Criminal Procedure 41(a) provides that “[a] search warrant authorized by this rule
may be issued by a magistrate with jurisdiction within the county wherein the property sought is
located . . . .” Here, the property sought was the Defendant’s blood: the Defendant was located in
Johnson County. Det. Cole sought and obtained the search warrant from one of the judges with
jurisdiction in that county; the trial judge in this proceeding did not have jurisdiction in that county. 2

        Alternatively, a search warrant may be issued “upon request of the district attorney general
or assistant or criminal investigator . . . .” Id. That is, “the officers could have enlisted the assistance
of the District Attorney General’s Office, filed a motion in the trial court seeking the entry of an
order permitting the officers to obtain the samples, and both parties could have litigated the issues


        2
            W e note, howe ver, that the trial court had p erson al jurisdiction over the Defendant himself.

                                                             -6-
at an adversarial evidentiary hearing.” State v. Baker, 956 S.W.2d 8, 13 (Tenn. Crim. App. 1997).
Indeed, that was the procedure followed earlier in this case. However, the State’s previous decision
to seek a search warrant by one method does not preclude it from seeking the same warrant by the
other method.

        The State’s initial motion in the trial court to obtain blood samples from the Defendant was
denied because the information on which the blood samples were sought was insufficient to establish
probable cause. However, at that time the State did not possess the test results which were obtained
from the saliva on the envelope bearing the Defendant’s handwriting and address. Once that
information was obtained, a new attempt to obtain a search warrant was appropriate. That the State
sought the warrant in a different county is immaterial: the standards for the issuance of search
warrants do not differ among Tennessee’s various counties. Moreover, the Defendant obviously had
an opportunity to attempt to suppress the results of the search, and he did so. We see no likelihood
that the result of a challenge to the warrant would have been different had suppression been sought
prior to the blood being drawn rather than after. That is, we are not convinced that the Defendant
was in any way prejudiced by the process followed by the State in seeking and obtaining the search
warrant.

       Moreover, we disagree that the Defendant was entitled to notice and a hearing before the
search warrant was issued. This Court has previously held that a criminal defendant is “not entitled
to an adversarial determination of probable cause for the issuance of [a] search warrant.” Id.
Accordingly, we find this issue to be without merit.

        Finally, the Defendant contends that the search warrant should be found invalid, and the
evidence accruing therefrom deemed inadmissible, because the issuing magistrate did not transmit
the original executed warrant to the Sullivan County clerk, the county in which the prosecution was
pending. The Defendant’s argument stems from Tennessee’s Rule of Criminal Procedure 41(d)
which provides that the executed original warrant shall be transmitted by the issuing magistrate “to
the clerk of the court having jurisdiction of the alleged offense in respect to which the search warrant
was issued.” The Defendant cites no case law in support of his argument, and acknowledges that
our supreme court has held that returns of warrants are ministerial in nature, and that an irregularity
in making the return does not invalidate the search. See State v. Calvert, 410 S.W.2d 907, 913
(Tenn. 1966). While Calvert and its progeny deal with the returns of warrants rather than their
transmission to the clerk of the court having jurisdiction over the alleged offense, we find that the
magistrate’s duty of transmission is similarly ministerial in nature, and that the irregularity
complained of here should not require suppression of the evidence obtained pursuant to the search
warrant. This issue is, accordingly, without merit.

                          ADMISSION OF EXPERT TESTIMONY
         We next address the Defendant’s arguments concerning the admission of Dr. Turbeville’s
testimony as an expert witness. Prior to trial, defense counsel objected to Dr. Turbeville’s
anticipated testimony about the probability of a random match to the DNA sample obtained from the
sperm recovered from the victim’s tee-shirt and vaginal area. The ground for the objection was that


                                                  -7-
Dr. Turbeville had insufficient expertise in population genetics and/or population statistics. During
the hearing on the Defendant’s motion in limine, Dr. Turbeville testified that he has an
undergraduate degree in biology and a doctorate in pathobiology. He testified that, in conjunction
with obtaining these degrees, he took coursework in population genetics and population statistics.
He admitted, however, that he was not an expert in those areas. Rather, he is a forensic serologist
DNA analyst.

        Dr. Turbeville testified that, after obtaining a DNA profile, he develops a “statistical analysis
to say how rare or how common that profile is in the general population.” Dr. Turbeville testified
that the statistical analysis is formulated from a database compiled by Perkin-Elmer, with the
assistance of a computer software program developed by the FBI. Using the database, the software
program “shows . . . how probable this particular DNA profile is at random in the general
population.” Dr. Turbeville also testified that this system was relied upon throughout the country.

        The trial court denied the Defendant’s motion, finding that the Perkin-Elmer database, as
interpreted by the FBI software program, was appropriate data upon which Dr. Turbeville could rely
in forming his opinion. In making its ruling, the trial court relied on Tennessee Rule of Evidence
703, which provides that
                [t]he facts or data in the particular case upon which an expert bases
                an opinion or inference may be those perceived by or made known to
                the expert at or before the hearing. If of a type reasonably relied upon
                by experts in the particular field in forming opinions or inferences
                upon the subject, the facts or data need not be admissible in evidence.
                The court shall disallow testimony in the form of an opinion or
                inference if the underlying facts or data indicate lack of
                trustworthiness.

We will not overturn a trial court’s decision regarding the admissibility, qualifications, relevancy and
competency of expert testimony absent an abuse of discretion. See State v. Begley, 956 S.W.2d 471,
475 (Tenn. 1997).

        While we agree with the trial court that Dr. Turbeville’s testimony was admissible, reliance
upon Rule of Evidence 703 was unnecessary because our legislature has determined that, “[i]n any
civil or criminal trial, hearing or proceeding, statistical population frequency evidence, based on
genetic or blood test results, is admissible in evidence to demonstrate the fraction of the population
that would have the same combination of genetic markers as was found in a specific biological
specimen. . . .” Tenn. Code Ann. § 24-7-118(c). Moreover, this Court has previously considered
the Defendant’s argument and rejected it. See State v. Spratt, 31 S.W.3d 587, 601-604 (Tenn. Crim.
App. 2000) (affirming trial court’s admission of TBI forensic scientist’s testimony about performing
a DNA analysis and the statistical probabilities associated with a particular sample over the




                                                  -8-
defendant’s objection that the witness was not qualified to testify about the statistical probabilities).
Accordingly, we find this issue to be without merit.3

                                           SUFFICIENCY
         We next address the Defendant’s contention that the evidence is not sufficient to support his
convictions. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient
if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition,
because conviction by a trier of fact destroys the presumption of innocence and imposes a
presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs,
995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        The Defendant was convicted of aggravated burglary and aggravated rape. Aggravated
burglary is committed when a person enters a habitation without the owner’s consent and commits
or attempts to commit a felony, theft or assault. See Tenn. Code Ann. §§ 39-14-403(a), 39-14-
402(a)(3). Aggravated rape is the unlawful sexual penetration of a victim by the defendant and the
defendant causes bodily injury to the victim. See id. § 39-13-502(a)(2). The Defendant does not
challenge the proof in support of any of these specific elements; rather, he contends that the evidence
is not sufficient to prove that he was the person who committed these offenses against the victim.



         3
           The Defendant has cited us to no case law in support of the proposition that the forensic scientist who performs
the DNA analysis must also be an expert in population genetics and/or population statistics in order to testify about the
probab ility of a random match to the DN A profile which is the sub ject of the exp ert’s testimo ny. We note, however, that
if a defendant wishes to challenge the validity of the underlying database upon which the statistical probability is based,
he or she may, of course, put on expert testimony of his or her own. See Tenn. Co de A nn. § 2 4-7-1 18(b)(2 ); Spratt, 31
S.W .3d at 604 . Indee d, in this case, the Defendant requested and was granted fund s with which to ob tain an expert in
the field of DNA testing.

                                                            -9-
        We respectfully disagree. The evidence included sperm recovered from the victim’s vagina
and from the tee-shirt she was wearing during the attack. The DNA profile from the sperm matched
the DNA profile obtained from a sample of the Defendant’s blood. Dr. Turbeville testified that the
chances of the match being random was one in 600,010 trillion. This was sufficient evidence from
which the jury could legitimately conclude that the Defendant was the victim’s assailant. This issue
is, accordingly, without merit.

                                           SENTENCING
        We turn now to the Defendant’s claim that the trial court erred “in refusing to grant [him]
the services of a psychological expert for sentencing purposes.” A review of the chronology of the
Defendant’s alleged attempts to obtain such an expert will be helpful. The jury returned its verdict
finding the Defendant guilty on January 19, 2001. On that same date, the trial court set the
sentencing hearing for February 12, 2001. At the beginning of that hearing on February 12, 2001,
defense counsel requested a continuance for “time to have [the Defendant] examined by the prison
psychologist.” The examination, according to defense counsel, “would only go to -- to possible
mitigating factors.” Defense counsel referred to a 1993 document entitled “Mental Health
Evaluation” as indicating that the Defendant “may have been acting under some sort of physical or
mental debility that -- that would somehow mitigate [the Defendant’s sentences] because of his
psychological problems.” The trial court denied the Defendant’s request for a continuance; however,
prior to the State calling any witnesses, the sentencing hearing was continued until March 16, 2001,
on other grounds.

        On March 16, 2001, the Defendant’s sentencing hearing recommenced. The record before
us contains no motions filed prior to this time requesting a psychological evaluation. At the close
of the State’s proof, however, defense counsel stated, “we would like to file a formal written motion
for an expert in the field of brain injuries,” and again requested a continuance. The record does not
contain a copy of the “formal written motion,” but does contain copies of the documents defense
counsel submitted in support thereof: the 1993 “Mental Health Evaluation” performed by a clinical
psychologist, and a 1989 letter to the Defendant from a psychological examiner. The 1993
evaluation references a possible organic component to the Defendant’s behavioral problems, and the
1989 letter references a “diagnostic impression” of “mixed substance abuse and a mixed personality
disorder, both severe.” Defense counsel argued that the Defendant should be reevaluated for
mitigation purposes. The trial judge denied the Defendant’s requests for an expert and for a
continuance due to considerations of timing and “the nature of the motion,” but stated that he would
consider the proffered reports “in relation to the general sentencing.”

       We recognize that
                     [i]n the trial and direct appeals of all criminal cases in which
             the defendant is entitled to appointed counsel . . . the court in an ex
             parte hearing may in its discretion determine that investigative or
             expert services or other similar services are necessary to ensure that
             the constitutional rights of the defendant are properly protected.



                                                -10-
Tenn. Sup. Ct. R. 13 § 5(a). See also State v. Barnett, 909 S.W.2d 423, 431 (Tenn. 1995). Indeed,
this Court has previously reviewed a trial court’s denial of expert assistance in conjunction with a
defendant’s efforts to develop mitigation evidence in a non-capital case. See State v. Donavan
Edward Daniel, No. W2000-00981-CCA-R3-CD, 2001 Tenn.Crim. App. LEXIS 967, at *26-34
(Jackson, Dec. 28, 2001). In this case, however, the Defendant did not make his request for the
provision of an expert until mid-way through his sentencing hearing, although he relied on
information available to him in 1989 and 1993 in making his request. The verdict against the
Defendant was returned on January 19, 2001. The Defendant did not request the provision of expert
services until March 16, 2001, after the State had already rested its case in the sentencing hearing. 4
Accordingly, the Defendant coupled his request with a motion for a continuance, which the trial
court denied.

       “A trial court’s denial of a request for a continuance will only be reversed upon a showing
of abuse of discretion.” Coe v. State, 17 S.W.3d 193, 218 (Tenn. 2000). No such showing has been
made here. The Defendant has put forth no excuse as to why he did not move the court for the
provision of expert services prior to the commencement of his sentencing hearing. Accordingly, he
has not demonstrated that the trial court abused its discretion in denying his motion for a
continuance.

         Moreover, before an indigent criminal defendant is entitled to expert services at the State’s
expense, “the defendant must make a threshold showing of particularized need.” Barnett, 909
S.W.2d at 431. In order to make such a showing, “[t]he defendant must demonstrate by reference
to the facts and circumstances of his particular case that appointment of a[n] . . . expert is necessary
to insure a fair trial.” Id. Furthermore, “[w]hether or not a defendant has made the threshold
showing is to be determined on a case-by-case basis, and in determining whether a particularized
need has been established, a trial court should consider all facts and circumstances known to it at the
time the motion for expert assistance is made.” Id. The trial court’s decision of whether to authorize
such services will not be reversed on appeal absent a showing of an abuse of discretion. See id.

         The Defendant has failed to demonstrate that the trial court abused its discretion in denying
his motion for expert services. His general assertion at the sentencing hearing that he “may have
been acting under some sort of physical or mental debility” was simply not sufficient to demonstrate
how a further psychological evaluation may have served to mitigate his sentences. The trial court
had at its disposal the information contained in the two documents submitted by the Defendant, and
determined that neither of these indicated the need for further evaluation in the context of sentencing.
The Defendant having failed to demonstrate that the trial court’s ruling was an abuse of discretion,
we find this issue to be without merit.

        The Defendant also contends that the trial court erred when it applied certain enhancement
factors to his sentences, refused to apply any mitigating factors, and thereby sentenced him to the


         4
          The Defendant’s previous “request” was not for the provision of expert services, but simply that the Defendant
be ex amine d by the prison psychologist.

                                                         -11-
maximum terms for each crime. When an accused challenges the length, range, or manner of service
of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption
that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        The Defendant was convicted of aggravated rape, a Class A felony, and aggravated burglary,
a Class C felony. See Tenn. Code Ann. §§ 39-13-502(b), 39-14-403(b). The presumptive sentence
for a Class A felony is midpoint in the applicable range, increased as appropriate by applicable
enhancement factors, and decreased as appropriate for applicable mitigating factors. See id. § 40-35-
210(c), (e). The presumptive sentence for a Class C felony is the minimum in the applicable range,
increased as appropriate by applicable enhancement factors, and decreased as appropriate for
applicable mitigating factors. Id. The trial court sentenced the Defendant on the aggravated rape
as a Range II, multiple offender, which designation the Defendant does not contest. The Range II
sentence for a Class A felony is twenty-five to forty years, with a midpoint sentence of thirty-two
and one-half years. See id. § 40-35-112(b)(1). The trial court sentenced the Defendant on the
aggravated burglary as a Range III, persistent offender, also uncontested by the Defendant. The
Range III sentence for a Class C felony is ten to fifteen years. See id. § 40-35-112(c)(3).

       The trial court applied four enhancement factors to the Defendant’s sentence for aggravated
rape: that the Defendant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range; that he treated the victim with
exceptional cruelty during the commission of the offense; that the rape was committed to gratify the
Defendant’s desire for pleasure or excitement; and the Defendant has a previous history of
unwillingness to comply with the conditions of a sentence involving release in the community. See
id. § 40-34-114(1), (5), (7), & (8). The trial court also applied factors (1), (7) and (8) to the


                                                  -12-
Defendant’s sentence for aggravated burglary.5 The Defendant challenges the trial court’s use of
factors (5) and (7); the State concedes that the trial court erred in applying factor (7), that the
Defendant committed the crimes to gratify his desire for pleasure or excitement. We agree with the
State that the record simply does not contain sufficient proof to support this factor, and the trial court
therefore erred in applying it.6

        In finding that the Defendant treated the victim with exceptional cruelty during the rape, the
trial court relied on the Defendant’s treatment of the victim after he ejaculated: he wrapped her up
in a comforter, thereby immobilizing her, covered her head in a pillowcase, dragged her into the
bathroom, and there attempted to dunk her vaginal area in a sink full of hot water. Failing in that
endeavor, he repeatedly splashed the victim’s vaginal area with water from his hands. The trial court
described these activities as causing further “terror” to the victim after the actual rape.

         We agree with the trial court that these facts support application of the “exceptional cruelty”
enhancement factor. Our supreme court has recently reiterated that this enhancement factor is
properly applied where there is “a finding of cruelty . . . ‘over and above’ what is required to sustain
a conviction for [the] offense.” State v. Arnett, 49 S.W.3d at 258. That is, the facts must
demonstrate “‘a culpability distinct from and appreciably greater than that incident to’ the crime.”
Id. (quoting State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997)). Psychological abuse may constitute
exceptional cruelty as contemplated by the enhancement factor. Id.
         The victim in this case testified that, after the Defendant ejaculated, he wrapped her in her
comforter and put a pillowcase over her head. The Defendant then began dragging the victim. She
testified that the Defendant never turned any lights on, and she was not able to see. Certainly, the
Defendant’s actions in immobilizing the victim, eliminating her ability to see, and dragging her out
of her bedroom, would have caused further terror and fear that she was going to be abducted. After
the Defendant dragged the victim into her bathroom, he turned on the water in her sink and tried to
make her sit in the sink. When the victim struggled, the Defendant put her on the floor on her knees,

         5
           During the sentencing hearing, the trial court referred only to the rape when discussing application of factor
(5). However, the Written Memorandum of Law in Regards to Sentencing filed by the trial court indicates application
of factor (5) to the burglary conviction, as well. The written Memorand um also applies enhancement factor (13)(B), that
the offenses were com mitted while the Defendant was o n parole, to both convictions. W e find it unnecessary to address
the discrepancy because (a) the Defend ant does no t raise it as an issue and (b) we find that the terms imposed are
appropriate even without the application of the additional factors referenced in the Written Memorandum.

         6
           In applying this facto r, the trial court simply found that the “desire for gratification, for pleasure and
excitem ent” is not an essential element of either aggravated rape or aggravated burglary. However, our supreme court
has recently reiterated that, “[e]ssential to proper application of this factor is the determination of the de fendant’s motive
for committing the offense” and “evidence of ejaculation, by itself, does not prove that the rapist’s motive was to gratify
a desire for pleasure.” State v. Arnett, 49 S.W.3d 250, 261-62 (Tenn. 2001) (emphasis in original). Thus, “proper
application of factor (7) [to a sentence for rape] requires the State to provide additional objective evidence of the
defendant’s motivation to seek pleasure or excitement through sexual assault.” Id., 49 S.W.3d at 262. Such evidence
could include “sexually explicit remarks and overt sexual displays made by the defendant, such as fondling or kissing
a victim or otherwise behaving in a sexual manner, or remarks or behavior demonstrating the defendant’s enjoyment of
the sheer violence of the rape.” Id. As recognized by the State in its brief, the record in this case simply d oes not contain
the requisite proo f for the application of this enhancement factor to either of the Defendant’s sentences.

                                                            -13-
took “very hot water from the sink,” and “washed off [her] vaginal area several times.” This tactic,
we believe, was exceptionally cruel in adding to the victim’s sense of violation and humiliation and,
combined with immobilizing and blindfolding the victim, demonstrate the requisite culpability
“distinct from and appreciably greater than that incident to” the aggravated rape. Accordingly, we
find that the trial court properly applied this enhancement factor and this issue is therefore without
merit.

        Finally, the Defendant contends that the trial court erred in refusing to apply any mitigating
factors. He claims that an “in-depth mental exam” might have confirmed earlier reports of a possible
organic brain dysfunction; that he submitted proof of “his lack of violent nature” and “helpful and
polite nature”; and that his “good reports . . . while incarcerated” all should have served to save him
from maximum sentences.

        In considering mitigation, the trial court acknowledged that “some witness[es] indicate that
when the defendant wasn’t in prison, he seemed like a nice guy. Sometime back in 1996, some
people wrote a letter for him, which is good. But nothing that really mitigates the crime.” The trial
court then concluded that “[u]pon a review of all the proof, the Court can find no substantial
mitigating factor in this case.” The court then ruled that “the enhancing factors are so overwhelming
in this case that the Court would not be warranted in sentencing any . . . except the maximum
provided by law.”

       It is the Defendant’s burden to demonstrate to this Court that the trial court erred in its
findings with respect to mitigation. The Defendant has simply failed to carry this burden. The
record supports the application of three enhancement factors to the Defendant’s sentence for
aggravated rape, and the application of two enhancement factors to his sentence for aggravated
burglary. These factors, combined with the lack of mitigating factors, support the trial court’s
imposition of maximum terms for the Defendant’s convictions. This issue is, therefore, without
merit.

       The judgment of the trial court is affirmed.
                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                 -14-
