           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                         NOVEMBER SESSION, 1996
                                                      September 18, 1997

                                                    Cecil W. Crowson
STATE OF TENNESSEE,           )   C.C.A. NO. 01C01-9601-CC-00048
                                                  Appellate Court Clerk
                              )
      Appellee,               )
                              )
                              )   MONTGOMERY COUNTY
VS.                           )
                              )   HON. JOHN H. GASAWAY, III
JAMES W. JACOBS,              )   JUDGE
                              )
      Appellant.              )   (Direct Appeal)




FOR THE APPELLANT:                FOR THE APPELLEE:

GREGORY D. SMITH                  JOHN KNOX WALKUP
One Public Square, Ste. 321       Attorney General and Reporter
Clarksville, TN 37040
                                  CLINTON J. MORGAN
                                  Counsel for the State
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  JOHN CARNEY
                                  District Attorney General

                                  ARTHUR BIEBER
                                  Assistant District Attorney
                                  204 Franklin Street
                                  Clarksville, TN 37040



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

      A Montgomery County Circuit Court jury found Appellant James W. Jacobs

guilty of four counts of aggravated rape, one count of aggravated sexual battery,

and one count of attempted aggravated rape. He received a twenty-two year

sentence for each of three aggravated rape convictions, a twenty-five year sentence

for the fourth aggravated rape conviction, a fourteen year sentence for the

aggravated sexual battery conviction, and a thirteen year sentence for the attempted

aggravated rape conviction. Except for the aggravated sexual battery sentence, the

trial court ordered each of the sentences served consecutively, for an effective

sentence of one hundred four years in the Tennessee Department of Correction. In

this direct appeal, Appellant presents the following issues for review: (1) whether the

trial court erred in denying his motion for a state-paid deoxyribonucleic acid (DNA)

expert; (2) whether his aggravated sexual battery conviction is void; and (3) whether

his sentence is excessive.



      After a review of the record, we affirm the convictions and sentences.



                             I. FACTUAL BACKGROUND

       As accredited by the jury’s verdict, the proof shows that, during August and

September of 1993, Appellant attacked five women. On August 22, 1993, Appellant

asked Bonnie Polster for a ride home from the Pancake House in Clarksville. At

some point thereafter, Appellant grabbed Ms. Polster by the neck, told her to get out

of the car, and threatened to hurt her if she ran. He then took her into the woods

and raped her.



       On August 28, 1993, Appellant approached Jennifer Thomason from behind

as she left a party. He placed a knife to her throat, directed her to some bushes,

                                          -2-
and raped her for seven to eight minutes. Appellant then left momentarily, but

returned commenting that he “wanted some more,” and raped Ms. Thomason again,

this time for twenty to twenty-five minutes.



       On September 4, 1993, Appellant accosted Angela Kim as she walked out of

a bar. Wielding a knife, he forced her to a wooded area, threatened to kill her, and

then raped her.



       On September 11, 1993, Appellant approached Sue Trei from behind as she

made her way into a club. He placed a hand over her mouth and a knife to her

throat, and then pulled her up a nearby hill. He raped her for approximately one

hour, forcing her into different sexual positions. Afterwards, he moved her into a

weeded area where he performed cunnilingus on her.



       On September 18, 1993, Appellant approached Angela Rood as she left a

teenage club. Despite the knife Appellant placed at her throat, Ms. Rood was able

to signal her friends for help. Appellant fled the area but was soon apprehended by

the police.



       On November 1, 1993, the Montgomery County Grand Jury indicted

Appellant on six counts of aggravated kidnapping, five counts of aggravated rape,

and one count of attempted aggravated rape. The kidnapping charges were later

dismissed.



       On July 15, 1994, Appellant, through counsel, filed a motion for the

appointment of a state-paid DNA expert. The trial court denied the motion.




                                          -3-
      From July 18 to 20, 1994, Appellant was tried before a Montgomery County

Circuit Court jury. For the attacks on Ms. Polster, Ms. Thomason, and Ms. Kim, the

jury found Appellant guilty of aggravated rape. For the attack on Ms. Trei, the jury

found Appellant guilty of both aggravated rape and aggravated sexual battery. For

the attack on Ms. Rood, the jury found Appellant guilty of attempted aggravated

rape. As noted previously, following a sentencing hearing on September 9, 1994,

the trial court imposed an effective sentence of one hundred four years. The trial

court also found Appellant to be a multiple rapist pursuant to Tennessee Code

Annotated Section 39-13-523(a)(2), which provides that such a defendant is to serve

his entire sentence undiminished by any sentence reduction credits.



                                  II. DNA EXPERT

      Appellant first alleges that the trial court erred in denying his motion for a

state-paid DNA expert. At the time of Appellant’s motion, Tennessee law did not

provide for such expert assistance in non-capital cases, and the trial court properly

denied the motion. See Tenn. Code Ann. § 40-14-207(b); see also State v.

Williams, 657 S.W.2d 405, 411 (Tenn.1983); State v. Harris, 866 S.W.2d 583, 585

(Tenn. Crim. App. 1992). On appeal, however, Appellant relies upon State v.

Barnett, 909 S.W.2d 423 (Tenn. 1995), a Supreme Court case which post-dates the

trial court’s ruling. In Barnett, the Supreme Court held that, where an indigent

defendant’s need for a state-paid psychiatric expert touches upon a due process

concern, a trial court may order such services even in non-capital cases, provided

the defendant can demonstrate a “particularized need.” Id. at 431. While Barnett

dealt with a psychiatric expert, this Court has previously extended the reasoning of

Barnett to other forms of expert assistance. See, e.g., State v. Morgan, No. 03C01-

9511-CR-00359, 1996 WL 715423 (Tenn. Crim. App. Dec. 12, 1996) (ballistics

expert); State v. Battles, No. 02C01-9212-CR-00294, 1996 WL 551786 (Tenn. Crim.

App. Sept. 30, 1996) (investigator). While there is no Tennessee precedent for

                                          -4-
such an application of Barnett, we see no reason why its constitutional protections

should not extend to an indigent defendant’s request for a DNA expert in a non-

capital case.



       However, we must first determine whether Barnett constitutes a new

constitutional rule, requiring retroactive application to Appellant’s case. According to

our Supreme Court, a case announces a new rule “when it breaks new ground or

imposes a new obligation on the States or the Federal Government.” Meadows v.

State, 849 S.W.2d 748, 751 (Tenn.1993) (quoting Teague v. Lane, 489 U.S. 288,

301 (1989)). Because Barnett now requires the State to provide expert assistance

in certain non-capital cases, a “new obligation” as anticipated by Meadows, we

believe that it does indeed announce a new rule. In Tennessee, new constitutional

rules apply retroactively to cases pending on direct review when the new rule is

announced. State v. Robbins, 519 S.W.2d 799, 800 (Tenn.1975). We will therefore

consider Appellant’s argument in light of Barnett.



       To establish particularized need according to Barnett, the defendant must

show that expert assistance is necessary to protect the right to a fair trial. Barnett,

909 S.W.2d at 431. In his motion, Appellant maintained that, because the State

intended to introduce DNA evidence against him, he required his own DNA expert to

verify the results. We do not believe that the foregoing adequately demonstrates

particularized need, as required by Barnett. See, e.g., Morgan, 1996 WL 715423, at

*1-*2; Battles, 1996 WL 551786, at *6; State v. Cleveland, No. 03C01-9503-CR-

00089, 1996 WL 146695, at *5-*6 (Tenn. Crim. App. Apr. 2, 1996), perm. app.

granted, (Tenn. Dec. 9, 1996). When a motion for expert assistance is

“accompanied by little more than undeveloped assertions that the services [are]

needed to attempt to counter the State's proof," the trial court is within its discretion

in denying the request. Barnett, 909 S.W.2d at 430 (quoting State v. Cazes, 875

                                           -5-
S.W.2d 253, 261 (Tenn.1994)). Furthermore, "[m]ere hope or suspicion that

favorable evidence is available is not enough to require that such help be provided."

Barnett, 909 S.W.2d at 430 (quoting State v. Mills, 420 S.E.2d 114, 117 (N.C.

1992)). Thus, even when considered in light of Barnett, we do not believe that the

trial court abused its discretion in denying Appellant’s motion for a state-paid DNA

expert.



                      III. AGGRAVATED SEXUAL BATTERY

       Appellant next alleges that his aggravated sexual battery conviction is void

because the judgment reflects a conviction pursuant to Tennessee Code Annotated

Section 39-2-606, a statute repealed prior to his indictment and trial. First and

foremost, this issue was not set out in Appellant’s motion for new trial and is

therefore waived. Tenn. R. App. P 3(e); State v. Sexton, 917 S.W.2d 263, 266

(Tenn. Crim. App. 1995). Moreover, Appellant cites no authority in support of his

proposition that this conviction is void and fails to acknowledge that he was indicted,

tried, and found guilty by a jury under the proper statute, Tennessee Code

Annotated Section 39-13-504. Because this error appears merely clerical in nature,

we cannot find that the aggravated sexual battery conviction is void. Such clerical

errors may be remedied by motion in the trial court pursuant to Rule 36 of the

Tennessee Rules of Criminal Procedure. See State v. Pendergrass, 937 S.W.2d

834, 837 (Tenn. 1996); State v. Tucker, No. 02C01-9511-CR-00344, 1997 WL

113891, at *1 (Tenn. Crim. App. Mar. 14, 1997).



                                  IV. SENTENCING

       Finally, Appellant alleges that his sentence is excessive. Specifically,

Appellant argues that the trial court erroneously sentenced him for aggravated

sexual battery and attempted aggravated rape as a Range II multiple offender.



                                          -6-
Appellant also argues that the trial court erred in determining the length of his

sentences and in imposing consecutive sentences.



       When an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d).

However, this presumption of correctness is “conditioned upon the affirmative

showing that the trial court in the record considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In the event that the record fails to demonstrate such consideration, review

of the sentence is purely de novo. Id. If appellate review reflects that the trial court

properly considered all relevant factors and its findings of fact are adequately

supported by the record, this Court must affirm the sentence. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a review, this Court must

consider the evidence, the presentence report, the sentencing principles, the

arguments of counsel, the nature and character of the offense, mitigating and

enhancement factors, any statements made by the defendant, and the potential for

rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993). The defendant bears the burden of showing the impropriety of the sentence

imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).



       For the attacks on Bonnie Polster, Jennifer Thomason, and Angela Kim,

Appellant was convicted of one count of aggravated rape each, Class A felonies.

See Tenn. Code Ann. § 39-13-502(b). With respect to these convictions, the trial

court found Appellant to be a Range I standard offender. As a Range I standard

offender convicted of a Class A felony, Appellant’s statutory sentencing range for

each offense was fifteen to twenty-five years. See id. § 40-35-112(a)(1). The trial

court found the following applicable enhancement factors:

                                           -7-
       (1) the defendant has a previous history of criminal
       convictions or criminal behavior in addition to those
       necessary to establish the appropriate range;

       (2) the offense involved a victim and was committed to
       gratify the defendant’s desire for pleasure or excitement;
       and

       (3) the crime was committed under circumstances under
       which the potential for bodily injury was great.

Id. § 40-35-114(1), (7), (16). The trial court found no mitigating factors. For each

offense, the trial court imposed a mid-range sentence of twenty-two years.



       For the attack on Susan Trei, Appellant was convicted of aggravated rape, a

Class A felony, and aggravated sexual battery, a Class B felony. See id. §§ 39-13-

502(b), 39-13-504(b). With respect to the aggravated rape conviction, the trial court

found Appellant to be a Range I standard offender. As a Range I standard offender

convicted of a Class A felony, Appellant’s statutory sentencing range was fifteen to

twenty-five years. See id. § 40-35-112(a)(1). The trial court found the following

applicable enhancement factors:

       (1) the defendant has a previous history of criminal
       convictions or criminal behavior in addition to those
       necessary to establish the appropriate range;

       (2) the defendant treated or allowed a victim to be treated
       with exceptional cruelty during the commission of the
       offense;

       (3) the offense involved a victim and was committed to
       gratify the defendant’s desire for pleasure or excitement;
       and

       (4) the crime was committed under circumstances under
       which the potential for bodily injury was great.

Id. § 40-35-114(1), (5), (7), (16). The trial court found no mitigating factors. Based

on these findings, the trial court imposed a maximum sentence of twenty-five years.

With respect to the aggravated sexual battery conviction, the trial court found

Appellant to be a Range II multiple offender. As a Range II multiple offender

convicted of a Class B felony, Appellant’s statutory sentencing range was twelve to

                                          -8-
twenty years. See id. § 40-35-112(b)(2). The trial court found the following

applicable enhancement factors:

      (1) the offense involved a victim and was committed to
      gratify the defendant’s desire for pleasure or excitement;
      and

      (2) the crime was committed under circumstances under
      which the potential for bodily injury was great.

Id. § 40-35-114(7), (16). The trial court found no mitigating factors. Based on these

findings, the trial court imposed a mid-range sentence of fourteen years.



      For the attack on Angela Rood, Appellant was convicted of attempted

aggravated rape, a Class B felony. See id. § 39-12-107(a). With respect to this

offense, the trial court found Appellant to be a Range II multiple offender. As a

Range II multiple offender convicted of a Class B felony, Appellant’s statutory

sentencing range was twelve to twenty years. See id. § 40-35-112(b)(2). The trial

court found the following applicable enhancement factor:

      (1) the defendant possessed or employed a firearm,
      explosive device, or other deadly weapon during the
      commission of the offense.

Id. § 40-35-114(9). The trial court found no mitigating factors. For this offense, the

trial court imposed a sentence of thirteen years.



      At the conclusion of the sentencing hearing, the trial court ordered each of

the sentences served consecutively, except for the aggravated sexual battery

sentence.



                                     A. RANGE

       Appellant first contends that the trial court erroneously sentenced him for

aggravated sexual battery and attempted aggravated rape as a Range II multiple

offender. According to the Criminal Sentencing Reform Act of 1989, Range II


                                          -9-
multiple offender status requires a minimum of two but not more than four prior

felony convictions within the conviction class, a higher class, or within the next two

lower felony classes. Tenn. Code Ann. § 40-35-106(a)(1). “‘Prior conviction’ means

a conviction that has been adjudicated prior to the commission of the more recent

offense for which sentence is to be imposed.” State v. Blouvett, 904 S.W.2d 111,

113 (Tenn. 1995). In sentencing Appellant for aggravated sexual battery and

attempted aggravated rape, Class B felonies, the trial court relied upon his prior

convictions of assault with a deadly weapon, a Class C felony, and breaking and

entering, a Class D felony. We find no error here.



                             B. LENGTH OF SENTENCE

       Appellant next maintains that the trial court erred in determining the length of

his sentences by improperly applying certain enhancement factors.



       In the absence of enhancement and mitigating factors, the presumptive

length of sentence for a Class B, C, D, and E felony is the minimum sentence in the

statutory range while the presumptive length of sentence for a Class A felony is the

midpoint in the statutory range. Tenn. Code Ann. § 40-35-210(c). Where one or

more enhancement factors apply but no mitigating factors exist, the trial court may

sentence above the presumptive sentence but still within the range. Id. § 40-35-

210(d). Where both enhancement and mitigating factors apply, the trial court must

start at the minimum sentence, enhance the sentence within the range as

appropriate to the enhancement factors, and then reduce the sentence within the

range as appropriate to the mitigating factors. Id. § 40-35-210(e). The weight

afforded an enhancement or mitigating factor is left to the discretion of the trial court

so long as the trial court complies with the purposes and principles of the

Tennessee Criminal Sentencing Reform Act of 1989 and its findings are supported

by the record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

                                          -10-
                           1. EXCEPTIONAL CRUELTY

      Appellant argues that the trial court improperly applied enhancement factor

(5) to his sentence for the aggravated rape of Susan Trei. The application of this

enhancement factor requires a finding of cruelty over and above that inherently

attendant to the offense. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App.

1995). Aggravated rape requires sexual penetration accompanied by the use of a

weapon. The record reveals that Appellant held Ms. Trei in fear and raped her for

approximately one hour, during which time he repeatedly humiliated her by forcing

her into different sexual positions, including on her hands and knees. Based on

these facts, we find that the record supports the application of enhancement factor

(5) to Appellant’s sentence for the aggravated rape of Ms. Trei.



                  2. DESIRE FOR PLEASURE OR EXCITEMENT

      Appellant also argues that the trial court improperly applied enhancement

factor (7) to his sentences for each of the aggravated rapes and to his sentence for

aggravated sexual battery. In State v. Kissinger, 922 S.W.2d 482 (Tenn. 1996), the

Tennessee Supreme Court addressed the application of this enhancement factor to

rape and sexual battery:

              A necessary element of sexual battery, aggravated or
      not, is sexual contact. Sexual contact is "intentional
      touching . . . if that intentional touching can be reasonably
      construed as being for the purpose of sexual arousal or
      gratification.” Rape, on the other hand, requires sexual
      penetration, not sexual contact. Unlike sexual contact,
      sexual penetration, as defined in our Code, has no motive
      component. Stated otherwise, a rape committed to abuse
      or harm is no less a rape than a rape which is sexually
      motivated. It follows that enhancement factor (7), though
      essential to a finding of sexual battery or aggravated sexual
      battery, is not an element of rape or aggravated rape and,
      therefore, may be used as an enhancement factor in
      appropriate cases.

             We have held that a sexually motivated rape is
      committed to gratify a desire for pleasure or excitement.
      Conversely, sexual battery requires that the touching be for
      the purpose of sexual arousal or gratification. Thus, the

                                   -11-
       offense necessarily includes the intent to gratify a desire for
       pleasure or excitement. Since the factor is an
       essential element of the offense, it cannot be used to
       enhance the sentences of sexual battery and aggravated
       sexual battery.

Id. at 489-90 (citations omitted).



       In light of Kissinger, we find that, as a matter of law, the trial court erred in

applying enhancement factor (7) to Appellant’s sentence for aggravated sexual

battery. However, the seriousness of the attack on Ms. Trei warrants giving great

weight to enhancement factor (2) and we thus affirm the sentence of fourteen years

for aggravated sexual battery.



       In applying enhancement factor (7) to each of Appellant’s sentences for

aggravated rape, the trial court relied solely upon Ms. Thomason’s testimony that,

after the initial rape, Appellant stated that he “wanted some more” and proceeded to

rape her again. We believe that such testimony is sufficient to justify application of

enhancement factor (7) to Appellant’s sentence for the aggravated rape of Ms.

Thomason. However, with respect to the aggravated rapes of Ms. Polster, Ms. Kim,

and Ms. Trei, the trial court made no specific findings to support the application of

this enhancement factor. As a result, we must conduct a purely de novo review of

the sentence for these attacks.



       Both Ms. Kim and Ms. Trei testified that Appellant ejaculated during their

rapes. While our Supreme Court has indicated that evidence of orgasm alone is

insufficient to justify application of enhancement factor (7), it remains a factor for

consideration. See Kissinger, 922 S.W.2d at 491. Ms. Trei further testified that

Appellant kissed her mouth and breasts, commented that “it would help if [she]

would enjoy it”, and characterized the attack as a “fling” or a “one-night stand.” The

regularity in which the attacks took place, occurring weekly for a period of five

                                           -12-
weeks, creates an inference that these aggressive actions were the manner in which

Appellant satisfied his sexual urges. Moreover, the jury’s determination that

Appellant was guilty of the aggravated sexual battery of Ms. Trei lends support for

the proposition that the other attacks were also sexually motivated. Mindful of the

dictates set out in Kissinger, we conclude that the evidence, when considered in the

aggregate, sufficiently establishes that Appellant’s desire for sexual pleasure

motivated his actions. We therefore find that the trial court’s application of

enhancement factor (7) to Appellant’s sentences for the aggravated rapes of Ms.

Polster, Ms. Kim, and Ms. Trei was proper.



                         C. CONSECUTIVE SENTENCING

       Appellant submits that the trial court erred in imposing consecutive

sentences. However, he makes no specific argument to support his position.




       When imposing sentences for multiple offenses, the trial court has the

discretion to order the sentences served concurrently or consecutively. Tenn. Code

Ann. § 40-20-111(a); State v. Anderson, 880 S.W.2d 720, 727 (Tenn. Crim. App.

1994). The imposition of consecutive sentences is appropriate if the defendant has

been convicted of more than one offense and the trial court finds, by a

preponderance of the evidence, one or more of the following criteria:

                (1) The defendant is a professional criminal who has
       knowingly devoted himself to criminal acts as a major source
       of livelihood;
                (2) The defendant is an offender whose record of
       criminal activity is extensive;
                (3) The defendant is a dangerous mentally abnormal
       person so declared by a competent psychiatrist who
       concludes as a result of an investigation prior to sentencing
       that the defendant's criminal conduct has been
       characterized by a pattern of repetitive or compulsive
       behavior with heedless indifference to consequences;

                                     -13-
              (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;
              (5) The 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;
              (6) The defendant is sentenced for an offense
       committed while on probation; or
              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



       Here, the trial court relied upon Appellant’s extensive criminal record in

ordering consecutive sentences. See id. § 40-35-115(b)(2). Appellant’s

presentence report reflects three convictions for breaking and entering, three

convictions for felony escape, a conviction for assault with a deadly weapon, a

conviction for assault with intent to rape, a conviction for petit larceny, and two

convictions for marijuana possession. In light of the foregoing, we find that the trial

court acted within its discretion in imposing consecutive sentencing based upon

Appellant’s criminal record. We further find that consecutive sentences are

necessary to protect the public from Appellant’s possible future criminal conduct and

that the aggregate sentence is reasonably related to the severity of Appellant’s

present offenses. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); State

v. Woodcock, 922 S.W.2d 904, 915 (Tenn. Crim. App. 1995).



       Accordingly, the convictions and sentences are affirmed.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE


                                          -14-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




                             -15-
