        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              MAY SESSION, 1997          January 26, 1999

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9605-CC-00179
                                )
      Appellee,                 )
                                )
                                )    MONTGOM ERY COUNTY
VS.                             )
                                )    HON. JAMES E. WALTON
QUINTON CAGE,                   )    JUDGE
                                )
      Appe llant.               )    (Direct Appeal - Aggravated Rape-
                                )    Especially Aggravated Kidnapping)




FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN E. HERBISON                     JOHN KNOX WALKUP
2016 E ighth Ave nue So uth          Attorney General and Reporter
Nashville, TN 37204
(On A ppea l)                        EUGENE J. HONEA
                                     Assistant Attorney General
COLLIER GOODLETT, JR.                450 James Robertson Parkway
Assistant Public Defender            Nashville, TN 37243-0493
109 S. Second Street
Clarksville, TN 37040                JOHN CARNEY
(At Tr ial)                          District Attorney General

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

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On Decem ber 2, 19 94, a Montgomery County jury convicted Appellant

Quinton Cage of aggravated rape, especially aggravated kidnapping, aggravated

robbery, attempted aggravated robbery, and reckless endangerment with a

deadly weapo n. After a se ntencing hearing on Jan uary 13, 1 995, Appellant

received sentences of twenty-five years for aggravated rape, twenty years for

espe cially aggravated kidnapping, eight years for aggravated robbery, three

years for attempted aggravated robbery, and two years for reckless

endan germe nt. The sentences for espe cially aggravated kidnapping, aggravated

rape, aggravated robbery, and reckless endangerment were ordered to run

cons ecutive ly and the sentence for attempted aggravated robbery was ordered

to run co ncurre ntly with th e othe r sente nces . Appe llant ch allenges both his

convictions and his sentences, raising the following issues:

       1) whether the charges against Appellant should have been dismissed or
       remanded to the juvenile court for failure to give timely written notice of the
       transfer hearing;
       2) whether the territorial jurisdiction of the trial court was established at the
       acceptance hearing;
       3) whether the indictment was sufficient to charge Appe llant with attempted
       aggravated robbery;
       4) whether the evidence was sufficient to convic t Appe llant of e spec ially
       aggravated kidnapping a nd aggrava ted robbery;
       5) whether the trial court properly denied Appellant’s pre-trial motion for
       expert assistance;
       6) whether the trial court properly quashed a defense subpoena for
       materia ls in the po ssessio n of the S tate’s expe rt;
       7) whether the trial court properly admitted DNA evidence;
       8) whether Appellant’s sentences are excessive; and
       9) whether the trial court properly imposed consecutive sentences.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.




                                           -2-
                                       I. FACTS




      Rajohnah Stepha nie Stua rd testified tha t on April 1, 1994, she went to a

retail store in Clarksville, Tennessee to do some shopping. When Stuard left the

store and walked over to her 1993 Ford Explorer, Appellant approached her and

ordered her to get into the vehicle. When Stuard asked whether he was serious,

Appellant looked down at the gu n in his hand and then looked back at Stuard and

repeated his demand.



      Stuard testified that after she and Appellant got into her vehicle, Appellant

told her to drive to her ba nk and told her to p ull up to the last stall. When Stuard

pulled up to the s tall, Appella nt told her to write a check for $500. When Stuard

began looking in her purse for her checkb ook, Ap pellant sta ted, “Don ’t fuck with

me” and Stuard replied, “I’m not fucking with you.”         Stuard then found her

checkbook and wrote ou t the check. Stua rd wrote the wo rd “Help” at the bottom

of the che ck so tha t some one in the bank w ould ass ist her.



      Stuard testified that after she put the check in the “tube” and sent it to the

bank, Appellant told her to drive away because she “probably wrote something

on the check.” Stuard then drove away and followed Appellant’s instructions until

she came to a barb eque p it in back of a white build ing. Stua rd testified that

during this drive, she asked Appellant whether he was going to rape or kill her.

Appellant told her to “shut up” and stated that he was n ot going to kill her, but he

was go ing to sho ot her in the leg.




                                          -3-
      Stuard testified that after she drove behind the white building, Appellant

ordered Stuard to get in the back seat of the vehicle and then he ordered her to

undress. Stuar d beg ged A ppella nt not to rape h er, but A ppella nt repe ated h is

demand that she undress. After Stuard took her clothes off, Appellant penetrated

her vagina w ith his penis and the n ejacula ted. After Ap pellant ha d finished with

her, Stuard grabbed her shirt and got in the front seat of the car. When Appellant

asked where she was going, Stuard said that she did not know and she got out

of the ca r. App ellant th en told her to g ive him her mon ey and her p urse. Stuard

then gave App ellant approximately $350 and the keys to her car. Stuard then

grabbed the rest of her clothes and hid behind the barbeque pit until Appellant

drove away in her vehicle. After Appellant left, Stuard ran to a house down the

road where she was able to call “911.” An ambulance responded to the call and

took Stu ard to the hospital.



       Stuard testified that Appellant he ld a gun in his ha nd through out the entire

episode and that as he was raping her, she “could hear the metal hitting the side

of [her] car.”   Stuard described the gun as a black automatic that had some

scrapes on it. Stuard testified that she believed that the pistol was real and that

“[I]f he had not had the gun, he would ha ve had a fight on his h ands. I figure

myse lf to be a pretty good scrapper, but not when something like that is looking

at you.”



       Dwayne Turley testified that at a pprox imate ly 4:45 p.m. on April 1, 1994,

Appellant came to Turley’s residenc e in a white Ford E xplorer.               T urley

subs eque ntly got into the vehicle and he and Appellant eventually ended up on

Interstate 24 in Kentucky. Turley also testified that he owned the gun that

                                         -4-
Appellant had in his po sses sion o n Apr il 1, 1994. Turley testified that the gun

was a pellet pistol that he had thrown away when he and Appellant had been

unable to fix it.



       Sergeant Robert Ott of the Montgomery County Sheriff’s Department

testified that at approximately 4:30 p.m. on April 1, 1994, he received a dispatch

to be on the lookout for a white 1993 Ford Explorer. At approximately 5:00 p.m.,

Ott saw Stuard’s vehicle o n Interstate 24 hea ded we st toward s St. Lou is. Ott

then asked for back-up, turned on his vehicle’s emergency equipment, and began

pursu it of Stuard’s vehicle.   During the subsequent chase, Appellant drove

Stuar d’s vehicle at a high speed that reached one hundred and ten miles per

hour at one point. Ott testified that traffic on the Interstate was fairly heavy and

that Appellant passed b etween othe r vehicles several time s. Appellant eve ntually

ran into a gua rdrail and “flipp ed” Stua rd’s vehicle , damaging it beyond rep air.

When Appellant was taken into custody, he told Ott that he had been kidnapped

by Turle y.



       Teresa Worley testified that during he r shift as a nurs e at Cla rksville

Memorial Hospital on April 1, 1994, she assisted Doctor Stephen Kent i n

performing a “rape kit” on Stua rd. Doctor Kent testifie d that d uring th e pelvic

examination that he performed on Stuard, he found “a cloudy discharge in the

vaginal vault tha t was c onsis tent with semen.” Doctor Kent also went to the

Montgom ery County jail and p erformed a “rape suspect examination” on

Appe llant.




                                        -5-
       Joe Minor of the Tennessee Bureau of Investigation testified that he

conducted DNA tests o n the ra pe kit ta ken fro m Stu ard an d the ra pe su spec t kit

taken from Appellant. Minor stated that the DNA profile obtained from the spe rm

found in Stuard’s vaginal vault matched the DN A pro file from Appellant’s blood

sample. Minor also testified that the possibility of selecting an unrelated person

at random with a DN A pro file that m atche d App ellant’s would be one in 4,400,000

in the Caucasian population and one in 16,800,000 in the African-American

popula tion.



       Appellant testified that on April 1, 1994, his sixteenth birthday, he met

Stuard in the parking lot and she invited him into her vehicle. Appellant testified

that Stuard voluntarily accompanied him to their “little secret place in the country”

and had consensual sex with him. Appellant also testified that he and Stuard had

seen e ach oth er appro ximately te n times b efore this o ccasion .



       Appellant testified that he stole Stuard’s vehicle “in revenge” because she

had slapped him, but he denied taking her money. Appellant admitted that he

reckle ssly endangered the general public during the high speed chase on

Interstate 2 4.



                  II. NOTICE OF THE TRANSFER HEARING




       Appellant conte nds th at the tria l court s hould have e ither dis miss ed this

case or rem ande d it to the juvenile court because he was not given timely written

notice of his transfer hearing pursuant to Tennessee Code Annotated section 37-

1-134, which states, in relevant part

                                          -6-
             After a petition has been filed alleging delinquency based on
             conduct which is designated a crime or public offense under
             the laws, including local ordinan ces, of this s tate, the co urt,
             before hearing the petition on the merits, may transfer the
             child to the she riff of the county to be held according to law
             and to be dealt with as an adult in the criminal court of
             competent jurisdiction. The disposition of the child shall be as
             if the child we re an ad ult if:
                     ....
                     Reasonable notice in writing of the time, place and
                     purpose of the h earing is given to the child and the
                     child’s parents, guardian or other custodian at least
                     three (3) d ays prior to the hea ring . . . .


Tenn. C ode Ann . § 37-1-134(a )(3) (1994).



        The reco rd indicates that on April 5, 1994, the trial court informed

Appe llant’s counsel in open court that there were two available dates for the

transfer hearing, one on April 8, 1994, and one on April 11, 1994. Appellant’s

counsel then s poke to App ellant a nd Ap pellan t’s mother, who agreed that April

8 would be the be st date to have the transfer hearing. Written notice was given

on Apr il 6, 1994, a nd the tra nsfer he aring wa s held on April 8, 199 4.



      It is evident that any error in failing to provide written notice three days

before the transfer hearing wa s cau sed b y App ellant h imse lf when he an d his

counsel chose to have the hearing on April 8 rather than on April 11. Thus,

Appellant has clea rly waived th is issue. See Ten n. R. A pp. P. 3 6(a) (“N othing in

this rule shall be construed as requiring relief be grante d to a p arty res pons ible

for an error or who failed to take whate ver action was rea sonab ly available to




                                          -7-
prevent or nullify the harmful effect of an error.”). 1 Thus, this issue is without

merit.



                               III. DETERMINATION OF VENUE




         Appellant contends that his convictions should be reversed because the

State failed to establish venue at the acceptance hearing. Appellant concedes

that there is no Tennessee authority that expressly requires venue to be proven

at an acceptance hearing. Appellant suggests, however, that this requirement

can be inferred from reading Tennessee Code Annotated sections 37-1-134(a)

and 37-1-159(d )(2) together. W e disagree. At the time of Appellant’s transfer

and acceptance hearings, section 37-1-134(a) provided that a juvenile court

could transfer a ju venile to a c riminal co urt of “comp etent jurisd iction” if it

determined that the requirements of subsections (a)(1)–(4) and (b)(1)–(5) had

been satisfied. Tenn. Code Ann. § 37-1-134 (1994). In addition, section 37-1-

159 provided that, as part of the acceptance hearing, the criminal court must

consider “[t]hose issues considered by the juvenile c ourt purs uant to

[subsections] 37-1-134(a) and (b).” Tenn. Code Ann. § 37-1-159(d )(2) (1994). 2

W e agree that section 37-1-1 34 req uires th e juven ile court to determine whether

venue would be proper in the criminal court, i.e., whether the criminal court is a

court of “competent jurisdiction.” Howeve r, we do not agree that subsection 37-1-



         1
          Appellant concedes that he is either responsible for this error or that he failed to take whatever
action wa s nece ssary to pr event or n ullify the harm ful effect o f the error . Howev er, Appe llant sugge sts
that he is entitled to relief if subsection 37-1-134(a)(3) is mandatory or jurisdictional in nature. Appellant
cites no authority for his proposition, and we are unaware of any. Further, the fact that the Tennessee
Supre me C ourt has held that the entire trans fer hear ing is waiva ble, State v. Ha le, 833 S.W.2d 65, 67
(Tenn. 1992), indicates that there is no reason why the written notice of the hearing cannot also be
waived.

         2
         We note that these requirements are substantially the same as those contained in the current
versions of these statutes. See Tenn. Code A nn. §§ 37-1-134, -159 (Supp. 199 8).

                                                      -8-
159(d)(2) requires the State to re-establish venue during the acceptance hearing.

That subsection merely requires the criminal court to cons ider the spec ific

requirem ents of subsections 37-1-134(a)(1)–(4) and (b)(1)–(5), which do not

include the question of venue . The record indicates that the trial court made the

required determinations.



      Even if the State had been required to establish venue at the acceptance

hearing, any failure to do so was harmless error b ecaus e the Mo ntgom ery Cou nty

Circu it Court was clearly th e prop er ven ue for A ppella nt’s trial. The Tennessee

Constitution provides that a defendant has the right to be tried by an impa rtial jury

of the county in w hich the c rime wa s com mitted. T enn. C onst. art I, § 9 . See

also Tenn. R. Crim. P . 18. This Court has construed this constitutional guarantee

as precluding a c ourt from indicting o r prosecuting a defendan t for crimes

committed outside of the co unty where the court is located. See State v. Hill, 847

S.W.2d 544, 545 (Tenn. Crim. App. 1992). Although venue is not an element of

the crime, the State must prove by a preponderance of the evidence that the

offense was c omm itted in th e cou nty alleg ed in the indictm ent. Harvey v. State,

213 Tenn . 608, 612 , 376 S.W .2d 497 , 498 (19 64); State v. Baker, 639 S.W.2d

670, 672 (Tenn. Crim. App. 1982). In this case, the State clearly established that

each of the offenses with which Appe llant wa s cha rged w ere co mm itted in

Montgom ery County. First, Stuard testified at the tra nsfer h earing that all of the

events in question occurred in Montgomery County.               Second, a nd more

importantly, Stuard a lso testified a t trial that all of these eve nts oc curred in




                                         -9-
Montgom ery County. 3                Indeed, Appellant does not contend that venue was

improp er. This iss ue is witho ut merit.



                           IV. SUFFICIENCY OF THE INDICTMENT




         Appellant conten ds that his conviction for attempted aggra vated robbe ry

should be revers ed bec ause th e indictm ent was insufficient to charge him with

that offense. Under Tennessee law, aggra vated robbe ry is “[a]ccom plished w ith

a dead ly weap on or b y displa y of any article used or fashioned to lead the victim

to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-

402(a)(1) (1997). Coun t two of th e indic tmen t in this case alleged that Appellant

had “act[ed] with intent to c omple te a cour se of actio n to cause the Aggravated

Robbe ry of Stephanie Stuard . . . by use of a weapon fashioned to lead the sa id

Steph anie Stuard to believe it to be a deadly weapon . . . .” Appe llant es sentia lly

claims that because the ind ictme nt did not inc lude th e word “reaso nably,” it only

alleged that he had committed attempted robbery and thus, his conviction for

attempted aggravated robbery should be reversed.4 We disagree.



         The Tennessee Supreme Cour t has s tated th at “an in dictm ent is va lid if it

provides sufficient information (1) to enable the accused to know the accusation



         3
          It cou ld be a rgue d tha t Stua rd als o tes tified d uring the a cce ptan ce he aring that a ll of the even ts in
question occurred in Montgom ery County. The record reveals that when the prose cutor asked Stuard
whe ther th e eve nts o ccu rred in Mo ntgo me ry Cou nty, Stu ard re plied “ Uh- huh .” Adm ittedly, h owe ver, th is
response is somewhat ambiguous when viewed in the context of prior and subsequent questions and
answers.

         4
          The State contends that Appellant waived this issue pursuant to Rule 12(b)(2) of the Tennessee
Rule s of C rim inal P roce dure by failin g to ra ise it eit her b efor e trial o r in his mo tion fo r a ne w trial. R ule
12(b)(2), however, provides that either jurisdictional defects or the failure to properly charge an offense
“shall be noticed by the court at any time during the pendency of the proceedings.” Tenn. R. Crim. P.
12(b)(2). Thus, the waiver rule does not apply when the indictment fails to assert an essential element of
the offen se. State v. Perkinson, 867 S.W .2d 1, 5 (Tenn. Crim. App . 1992).

                                                         -10-
to which answ er is required, (2) to furnish the court adequ ate basis for the en try

of a proper judgment, and (3) to protect the accused from dou ble jeopa rdy.”

State v. Hill, 954 S.W.2d 725, 727 (Tenn . 1997) (c itations om itted). Further, “an

indictment need not conform to traditionally strict pleading requirements.” Id.

“Thus, we now approach ‘attack s upo n indic tmen ts, esp ecially o f this kind, from

the broad and enlightened standpoint of common sense and right reason rather

than from the narro w standpo int of petty preciosity, pettifogging, tech nicality or

hair splitting fault finding.’” Id. (quoting Unite d State s v. Pur vis, 580 F.2d 853,

857 (5th Cir.1978)). A “commo n sense” reading of count two of the indictment

clearly indicates that it was sufficient to comply with the constitutional notice

requirem ents recited in Hill. Count two clearly informed Appellant that he was

being charged with the offense of attem pted a ggrav ated ro bbery and it

substan tially set forth each of the elements of that offense. To hold that count

two of the indictment in the case is invalid merely beca use it omits the w ord

“reasonab ly” would re quire us to engag e in the “pe tty preciosity, pettifogging,

technica lity or hair s plitting fa ult finding” that the supreme court jettisoned in Hill.

Thus , this issue h as no m erit.



                      V. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that the evidence was in sufficie nt to su pport h is

convictions for especially aggravated kidnapping and aggravated robbery. Under

Tennessee law, both of these offenses require use of a deadly weapon or

“display of any article used o r fashione d to lead the victim to reasona bly believe

it to be a dead ly weapon .” See Tenn. Code Ann. §§ 39-13-305(a)(1), -402(a)(1)

(1997). Appella nt claims that the evid ence w as insufficie nt to convict him of

                                           -11-
these offenses because no reasonab le jury co uld ha ve foun d that A ppella nt’s

display of an ino perab le pellet gun would lead Stuard to “reasonably believe” that

the gun was a deadly weapon. We disagree.



       When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles . A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and re solves all conf licts in the testim ony in favor of the

State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the con victing evide nce. Id. On ap peal, “the [S ]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (T enn. 1 978)) . Wh ere the sufficie ncy of th e evide nce is

contested on appea l, the relevant question for the reviewing cou rt is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a rea sonab le doub t. Harris , 839 S.W .2d at 75; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S . Ct. 2781 , 2789, 61 L. Ed. 2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. A pp. 199 6); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally, R ule

                                          -12-
13(e) of the Te nnes see R ules o f Appe llate Pro cedu re prov ides, “fin dings 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 th e trier of fact beyond a

reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.



        Appellant contends that because the gun has no trigger and no mechanism

by which the pre ssure to prop el a BB or pelle t is gen erated , no ratio nal jury c ould

have concluded that Stuard reaso nably b elieved that it was a real gun. That may

have been true if Appellant had handed the gun to Stuard and given her a few

minutes to exam ine it before he committed these offenses, but that was not the

case. Stuard te stified that wh en App ellant app roache d her in the parking lo t, “he

looked down a t his gun a nd looke d back up at m e and h e said ge t in your car.

So I got in my car. I am not bullet proof.” When they got in Stuard’s vehicle,

Appellant sat behin d her. Wh ile Stuard was driving her vehicle, Appellant told her

that he was going to shoot her in the leg. Stuard testified that Appellant held the

gun in his right hand throughout the entire episode, even when he was rapin g

her. A rational jury could infer from this evidence that Stuard never had enough

of a chance to observe the gun to de termine that it wa s inop erable beca use it

was missing som e parts. Further, a ration al jury could have inferred that S tuard

would have had to look inside the gun to see that the mechanism that propels the

pellets was missing and that it was likely that Appellant had h is finger positioned

where the trigger would have been, thus preventing Stuard from seeing whether

or not there was a trigg er. It is clear that a rational jury could conclude that

Stuar d reas onab ly believe d that th e gun was re al. 5 This issu e has n o merit.


        5
          Appellant suggests that this court should hold, under the “physical facts rule,” that Stuard’s belief
that the gun was real could not possibly have been reason able. Under this rule, courts can declare
testimony incredible as a matter of law and decline to consider it where the testimony of a witness “cannot

                                                   -13-
                         VI. DENIAL OF EXPERT ASSISTANCE




        Appellant conten ds that the trial court erred when it denied his pre-trial

motion for state funds “to obtain a DNA expert to cross-examine or assist in

cross-exam ination of the State’s D NA expe rt.”



        At the time of Appellant’s motion in November 1994, Te nnes see la w did

not provide for such expert assis tance in non-c apital cases, and the trial court

prope rly denied the mo tion.            See Tenn. Code Ann. § 40-14-207(b) (1997)

(allowing for authorization of fund s for exp ert serv ices on ly in capital ca ses); see

also State v. Williams, 657 S.W .2d 405 , 411 (T enn. 19 83); 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 Tennessee Supreme

Court case which post-dates the trial court’s ruling. In Barne tt, the supreme court

held that, where an ind igent d efend ant’s need for a state-p aid psychiatric expe rt

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 Barne tt dealt with a psychiatric expe rt, this Court has

previo usly extended the reas oning o f Barne tt to other forms of expert assistance.

See State v. James W. Jacobs, No. 01C01-9601-CC-00048, 1997 WL 576493,

at *2 (Tenn. Crim. App., Nashville, Sept 18, 1997) (citations omitted). Because

Barne tt constitute s a new constitution al rule, it mu st be app lied retroac tively to



possibly be true, is inherently unbelievable, or is opposed to natural laws.” State v. Hornsby, 858 S.W.2d
892, 894 (Tenn. 1993) (citations omitted). “Courts have made it clear that in order for testimony to be
considered incredible as a matter of law, it must be unbelievable on its face, i.e., testimony as to facts or
events that the witness physically could not have possibly observed or events that could not have occurred
under the laws of nature.” Id. (citations om itted). This ru le has ab solutely no a pplication to th is case.
Stuard’s belief is obviously not a physical fact. Further, as previously explained, Stuard’s belief that the
gun was real was not impossible, inherently unreliable, or contrary to natural laws.

                                                  -14-
Appe llant’s case w hich wa s in the ap pellate pip eline at the time of the Barnett

decision . See Id.



      In this case, the trial court’s denial of Appellant’s motion for e xpert

assistance was proper because Appella nt failed to de mons trate a “particularized

need” for suc h services. Und er Barne tt,

      To establish particularize d need , the defen dant m ust show that a[n] . . .
      expert is neces sary to pro tect his right to a fair trial. Unsupported
      assertions that a[n] . . . expert is necessa ry to counter the S tate’s proof are
      not sufficient. The defendant must demonstrate by referenc e to the fac ts
      and circumstances of his particu lar case th at appo intmen t of a[n] . . .
      expert is ne cessar y to insure a fair trial.

909 S.W .2d at 431 . Appellant’s motion for expert services and his memorandum

in support thereof consist almost entirely of lega l argumen ts as to why a court is

authorized to prov ide a d efend ant with exper t service s. Inde ed, Ap pellan t’s

motion and memorandum do not explain why “the facts and circum stanc es of h is

particular case” demonstrate that appointment of an exp ert is necessary to ins ure

a fair trial. In fact, the only reference Appellant made to the specific facts and

circum stance s of his cas e is conta ined in the following s tateme nt:

             As part of its proof in this case the State will offer the testimony of
      one Joe Minor of the TBI Crime Lab who performed the analysis of the
      vaginal swabs taken from the victim. It is believed that Mr. M inor will testify
      that those swabs were found to contain sperm cells and that the DNA
      remov ed from those sp erm ce lls match ed with D NA from the Defe ndant.
             This testimony will be so damning that unless the Defendant has an
      expert who can either cross-examine the State’s expert or who can assist
      in cross-e xamina tion of the e xpert, the D efenda nt will not be a ble to
      present a “mean ingful defense” a nd as such will be denied effective
      assist ance of cou nsel.

W e do not be lieve that this s tateme nt adeq uately de mons trates particularized

need as required by Barne tt. As the supreme court stated in Barne tt, when a

motion for expert assistance is “accompanied by little more than undeveloped

assertions that the services were needed to attem pt to coun ter the Sta te’s proof,”

                                         -15-
the trial court is within its discretion in denying the requ est. 909 S.W.2d at 430

(quoting State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994)). Thus, the trial

court did not abuse its discretion when it denied the motion for expert services.6

This issu e has n o merit.



                      VII. QUASHING OF DEFENSE SUBPOENA




        Appellant contends that the trial court erred when it quashed his subpoena

duces tecum for materials in the possession of the State’s DNA expert.

Specifically, Appellant claims that he was entitled to materials relating to the

factual basis upon which the expert based his conclusions. We disagree.



        On November 7, 1994, Appellant filed a motion for further d iscovery

pursuant to Rule 16 of the Tennessee Rules of Criminal Procedure, asking the

trial court to require the State to provide him with information related to the DNA

testing by the State’s expert. On November 16, 1994, Appellant filed a motion

to compel pursuant to Rule 16, as king the tria l court to req uire the S tate to

provide him with the materials used by the S tate’s DN A exp ert in rea ching his

conclusions. After a hearing on the discovery motions, the trial court denied the

motions. The trial court ruled that the materials requested by Appellant were not

disco verab le under Rule 16 because the materials used by the expert in arriving




        6
        Even if the trial court had erred, any such error would have been harmless in light of the fact that
Appellant admitted having sexual intercourse with Stuard. Appellant’s claim that this sex act was
conse nsual co uld not ha ve been aided by a D NA ex pert in any co nceivab le way. See Tenn. R. App. P.
36(b).

                                                  -16-
at his conclusion were “work product.”Appellant does not challenge the trial

court’s ruling that these materials were not discoverable under Rule 16.7



        On November 21, 1994, Appellant filed a subpoena duces tecum, directing

the State’s DNA expert to appear on November 30, 1994, with the mate rials

Appellant had soug ht to obtain throug h discovery. On November 22, 1994, the

State filed a m otion to quas h the s ubpo ena. T he trial court granted the motion

to quash the subpoena on Nove mbe r 30, 19 94. Th e trial co urt foun d that in

issuing the subpoena pursuant to Rule 17(c) of the Tennessee Rules of Criminal

Procedure,8 Appellant was simply attempting to obtain the same documents and

other work product that were protected from discovery by Rule 16(a)(2). The trial

court stated that alth ough Rule 16 and Rule 17 are separate rules, they must be

read together in context. In short, the trial court found that Appellant could not

circumvent the discovery protections of Rule 16 simply by issuing a subpoena for

the sam e mate rials unde r Rule 17 .



        W e agree with the trial court that Ru le 17(c )cann ot be u sed to obtain

mate rials which are no t discoverable un der Rule 16 (a)(2). Certainly, the limits of

Rule 16(a)(2) would be meaningless if a defendant could simply subpoena the

protected materials under Rule 17(c).                    Indeed, under the Federal Rules of

Criminal Procedure, “[a] defend ant ma y not obta in throug h Rule 1 7(c) doc umen ts



        7
         We note that, subject to exceptions not applicable here, Rule 16 “does not authorize the
discovery or inspection of reports, memoranda, or other internal State documents made by the district
attorney general or other State agents or law enforcement officers in connection with the investigation or
prosecution of the case.” Tenn . R. Crim. P. 16(a)(2).

        8
          Rule 17 (c) states that “[a] sub poena may als o com man d a pers on to wh om it is dire cted to
produce the books, papers, documents, or tangible things designated therein. The court, upon motion
made promptly and in any event by the time specified in the subpoena for compliance therewith, may
quash or modify the subpoena if compliance would be unreasonable or oppressive.” Tenn. R. Crim. P.
17(c).

                                                  -17-
which are protected from disclosure pursuant to Rule 16(a)(2 ).” United States v.

Orena, 883 F. Supp. 849, 867 (E.D.N.Y. 1995). Our Rules 16(a)(2) and 17(c) are

subs tantially identical to th eir federa l counterp arts. Thus, we see no reason why

the result under our state rules should be any different. The trial court did not

abuse its discretion when it granted the motion to quash the subpoena.9 This

issue is w ithout me rit.



                             VIII. ADMISSION OF DNA EVIDENCE




         Appellant conte nds th at the tria l court c omm itted rev ersible error w hen it

allowed the State to introduce evidence of the DNA tes t results. Specifically,

Appellant claims that this evidence was inadmissible under Rule 403 of the

Tennessee Rules of Evid ence beca use its proba tive valu e was subs tantially

outweighed by the danger of unfair prejudice.10



         A trial court’s decision to adm it evidence is largely discretion ary and that

decision will not be reversed on appeal unless there has been an abuse of that

discretion. State v. Gray, 960 S.W .2d 59 8, 606 (Ten n. Crim . App. 1 997). In this

case, we see no reason to disturb the trial court’s ruling. The DNA evidence in

this case w as clearly p robative. Indeed , it is hard to imagine an ything with more

probative value in a rape case than evidence tha t the accused had sexual



         9
         Even if the trial court had erred in granting the motion to quash, any such error would have been
harmless in light of the fact that Appellant admitted having sexual intercourse with Stuard. Discrediting the
State’s D NA ex pert wou ld not have strength ened A ppellant’s c laim tha t the sex w as con sensu al. See
Tenn. R. App. P. 36(b).

         10
            Rule 403 s tates that “[ a]ltho ugh relev ant, e viden ce m ay be e xclu ded if its pro bative value is
sub stan tially out weig hed by the dang er of unfa ir prej udic e, co nfus ion of the is sue s, or m islead ing th e jury,
or by considerations of undue delay, waste of time, or needless pre sentation of cumulative evidence.”
Tenn. R. Evid. 403.



                                                         -18-
intercourse with the victim.     At the time Stuard identified Appellant as her

assailan t, Appellant had not yet admitted to having had sex with her. Thus, the

DNA evidence was clearly probative of whether Stuard was telling the truth. This

probative value was not substantially outweighed by any of the considerations of

Rule 403. Th e trial court d id not abuse its discre tion wh en it ad mitted this

evidenc e. This iss ue is witho ut merit.



                         IX. LENGTH OF SENTENCES




      Appellant contends that his sentences for especially aggravated

kidnapping, aggravated rape, and reckless endangerment are excessive.

Specifically, Appellant claims that the trial court misapplied various mitigating and

enhancement factors in determining the lengths of these three sentences.



      “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correc tness which acco mpa nies th e trial co urt’s ac tion is

conditioned upon the affirmative showing in the record that the trial cou rt

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

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

the enhan cing and mitigating factors, arg umen ts of coun sel, the appellant’s

statements, the nature and character of the offense, and the appellant’s potential

                                            -19-
for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.                  “The defendant has the burden of

demonstrating that the se ntence is improp er.” Id. Because the record in this

case indicates that the trial court failed to properly consider the sentencing

principles and all relevant facts and circumstances, our review is de novo without

a presumption of correctness.



              A. Sentence for Especially Aggravated Kidnapping




       In senten cing Ap pellant to twenty years for the especially aggravated

kidnapping conviction, the trial court found that no mitigating factors were

applicable.    The trial co urt also fou nd that A ppellant’s sentence should be

enhanced because he had treated the victim with exceptional cruelty and

because the injuries that he inflicted were particularly great. See Tenn. Code

Ann. § 4 0-35-11 4(5), (6) (19 91997 ).



       W e agree that none of the enumerated mitigating factors of Tennessee

Code Annota ted sectio n 40-35 -113 we re applica ble. Howeve r, the trial court

shou ld have considered the mitigating factor contained in Tennessee Code

Annotated section 39-13-305, which states that in determining the sentence for

espe cially aggrava ted kidna pping, “[i]f the offender volunta rily relea ses th e victim

alive . . . such action[] shall be considered by the court as a mitigating factor at

the time of se ntencing .” Tenn . Code Ann. § 39-13-305(b)(2) (1997). Although

we hold that this factor should have been considered, we believe that this factor

is entitled to little weight, especially in light of the fact that Appellant did not in fact




                                           -20-
possess a deadly weapon with which he could have killed Stu ard witho ut a

difficult struggle.



       W e conclude that the trial court improperly app lied enhance ment factor (5),

that the victim was treated with exceptio nal cruelty . The tr ial cou rt appa rently

based its decision to apply this factor on the fact that Appellant told Stuard that

he was g oing to shoo t her in th e leg. W hile this action was u ndou btably c ruel, it

does not rise to the level of being “exceptionally cruel”, as that term has been

interpreted by our State Supreme Court. That Court has stated that before this

factor may be applied, the facts in the case must “support a finding of

‘exceptional cruelty’ that ‘demonstrates a culpability distinct from a nd ap precia bly

greater than that in cident to’” the crime. State v. Poo le, 945 S.W.2d 93, 98

(Tenn. 1997) (c itation om itted). See also State v. Emb ry, 915 S.W.2d 451, 456

(Tenn. Crim. App . 1995) (holding that application of enhancement factor (5)

“requires a finding of cruelty over an d above tha t inherently attendant to the

crime”).   In this case, Appellant’s threat to shoot Stuard in the leg came

imm ediate ly after he told her that he was not going to kill her. A threat of the

victim being shot is inherent in the offense of an especially aggravated

kidnapping that is committed by the use of a firearm.            Thus, application of

enhancement factor (5) was not appropriate.



       W e also conclude that the trial court improperly applied enhancement

factor (6), that the injuries inflicted upo n the victim were pa rticularly grea t. In

applying this fac tor, the tr ial court relied on a finding that Stuard had suffered

“personal injuries by way of em otional distre ss [and] th e now in clusion in h er life

of fear.” There is no question that emotional and psychological injuries can be

                                          -21-
the basis fo r apply ing this enhan ceme nt factor. See State v. S mith, 891 S.W.2d

922, 930 (Tenn. Crim. App. 1994). “However, before this factor may be applied,

the State has the burden of establishing that the emotional injuries and

psychological scarrin g are ‘p articula rly great.’” State v. Hoyt, 928 S.W.2d 935,

948 (Tenn. Crim. App. 1995) (citation omitted). “In order to prove that the injuries

are particularly great and/or will endure ‘for the rest of [the victim’s] life,’ the State

must offer expert testimon y to that effect.” Id. (citation om itted). W e do not doubt

that Ms. S tuard w as trau matiz ed by th e esp ecially aggravated kidnapping.

However, because the State failed to introduce any expert testimony that her

emotional injuries we re particula rly great co mpare d to those suffered by every

victim of an especially aggravated kidnapping, application of enhancement factor

(6) was not appropriate.



       In our de n ovo review , we conclude that the trial court erroneously failed

to apply enhancement factor (1), that Appellant had a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

approp riate range. See Tenn. Code Ann. § 40-35-11 4(1) (1997). T he record

indicates that App ellant had juvenile ad judication s for theft of p roperty ($1 ,000 to

$10,000), burgla ry of an autom obile, and sexual battery. Juvenile convictions

may be used to enhance the sentence of an adult offen der. State v. Adams, 864

S.W.2d 31, 34 (Tenn. 1993). Thus, enhancement factor (1) is clearly applicable.

Further, given the serious nature of these prior offenses, we believe that this

factor is en titled to significa nt weigh t.



       Even though we hold that the trial court erred in applying some

enhancement factors, a find ing that en hance ment factors we re erro neou sly

                                               -22-
applied does n ot equa te to a reduc tion in the se ntence . State v. Keel, 882

S.W.2d 410, 423 (Tenn. Crim. App. 1994). We hold that enhancement factor (1)

clearly applies to this sentence and that this factor is e ntitled to sign ificant weig ht.

W e further hold th at the m itigating factor a pplica ble to this sentence is entitled to

only minimal weight. Thus, we hold that a sen tence of twen ty years for esp ecially

aggravated kidnapping is appropriate in this case.



                        B. Sentence for Aggravated Rape




       In sentencing Appellant to twen ty-five years for aggravated rape, the trial

court found that no mitigating factors were applicable. The trial court also found

that Appellant’s sentence should be enhanced because the injuries that he

inflicted on the victim were particularly great. See Tenn. Code Ann. § 40-35-

114(6) (1991997). We agree that none of the enumerated mitigating factors of

Tennessee Code Anno tated s ection 40-35 -113 a re app licable to the sentence for

this offense.    However, we hold that the trial court improperly applied one

enhancement factor and should have applied two other enhan ceme nt factors to

the sentence for this offense.



       W e conclude that the trial court improperly app lied enhance ment factor (6),

that the injuries inflicted upon the victim were particularly great, for the same

reason that we conclude that this factor should not have been applied to the

sentence for especially aggravated kidnapping. The trial court based its decision

to apply this fa ctor on the fact that Stuard’s normal life activities had been

disrupted by the fe ar that r esulte d from her be ing raped. However, the reco rd

does not indicate that any expert evidence was introduced on the extent of

                                           -23-
Stuar d’s psychological injuries. While we do not mean to minimize the trauma

and fear that Stuard undoubtedly experienced a s a res ult of this repreh ensib le

act, the State has sim ply failed to meet its burden, under the law, of showing that

this factor w as app licable. See Hoyt, 928 S.W.2d at 948.



      In our de n ovo review , we con clude th at the trial court erroneously failed

to apply enhancement factor (1) to the sentence for this offense for the same

reason that it should ha ve app lied this factor to the se ntenc e for es pecia lly

aggravated kidnapping. This factor is entitled to especially great weigh t for this

sentence in light of the fact that one of Appellant’s prior adjudications was for

sexual battery.



      In our de novo review, we also conclude that the trial court improperly

failed to apply enhancement factor (7), tha t this offense involved a victim and was

committed to gratify Appellant’s des ire for pleasure or e xcitement. See Tenn.

Code Ann. § 40-35-114(7) (1997). The Tennessee Supreme Court has noted

that because pleasure or excitement is not an essential element of the offense

of rape, it may be con sidered as an ap propriate enhan ceme nt. Adams, 864

S.W.2d at 35 (citation omitted). T he record ind icates that App ellant raped Stu ard

for pleasure.     Appellant testified that he ejaculated during sex with Stuard, that

he felt “pure[] lust” for her, and that he “got that good feeling” when he had sex

with her.   Thus, the trial court should have applied facto r (7) to e nhan ce this

sentence.




                                         -24-
      Because two enhance ment factors and no mitigating factors apply to the

sentence for aggra vated rap e, we hold that a sentence of twenty-five years for

this offense is appropriate in this case.



                  C. Sentence for Reckless Endangerment




      In sentencing Appellant to two years for reckless endangerment, the trial

court found that no m itigating factors were applicab le. The trial court also found

that this sentence should be enhanced because the offense involved more than

one victim and because Appellant had no hesitation in committing an offense

when the risk to hu man life w as grea t. See Tenn . Code A nn. § 40-35-1 14(3),

(10) (1997).    We agree that none of the enumerated mitigating factors of

Tennessee Code A nnotated se ction 40-35-11 3 are applicable to the sentence for

this offense.   However, we hold that the trial court improperly applied one

enhancement factor and should have applied one other enhancement factor to

the sentence for this offense.



      The trial court correctly applied enhancement factor (3) to the sentence for

reckless endan germe nt because Appellant’s conduct placed more than one

person in danger of death or serious bodily injury. See Tenn . Code Ann. § 40-35-

114(3) (1997). Appellant argues that the application of this factor to this sentence

was impro per be caus e the e xistenc e of m ultiple victims was pleaded in the

indictment and therefore, was an element of the offense.             However, the

indictment in this case alleged that Appellant “did recklessly engage in conduct

with a deadly weapon . . . [which] placed another person or persons in imminent

danger of death or serious bodily injury.”      Under the expre ss terms of the

                                        -25-
indictme nt, the State only had to prove that one person was endangered. Thus,

enda ngerin g mu ltiple persons was not an element of the offens e as ch arged in

the indictm ent. Ap pellan t’s conduct in driving a vehicle at one hundred and ten

miles per hour in hea vy traffic on Interstate 24 c learly endange red his passe nger,

other motorists, and the pursuing police officers. Thus, application of this factor

was appropriate.



      The trial court clearly erred by applying enhancement factor (10) to the

reckless endangerment sentence because a high risk to human life is inherent

in the offens e. State v. Robert Chapman, No. 02C01-9510-CR-00304, 1997 WL

11280, at *3 (Tenn . Crim. A pp., Jackson, Jan. 15, 1997). However, for the same

reason that enhancement factor (1) applied to the other sentences, factor (1)

shou ld have been applied to this sentence as well. We hold that because two

enhancement and no mitigating factors apply to the sentence for reckless

endangerment, a sentence of two years is entirely appropriate.



              X. IMPOSITION OF CONSECUTIVE SENTENCES




      Appellant contends that the trial court erred when it ordered the sentences

for espe cially aggravated kidnapping, aggravated rape, aggravated robbery, and

reckless endangerment to run consecutively.            Co nsec utive se ntenc ing is

governed by Tennessee Code Annotated section 40-35-115. The trial court has

the dis cretion to orde r cons ecutive sente ncing if it finds that one or more of the

required statutory crite ria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn.

Crim. App. 1995).     Further, the court is required to determine whether the

consecu tive sentences (1) are reasonably related to the severity of the offenses

                                         -26-
committed; (2) serve to protect the public from further criminal conduct by the

offender; and (3) are congruent with general principles of senten cing. State v.

Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).



         In imposing consecutive sentences, the trial court found that Appellant was

a dangerous offender who se behavior ind icates little or no regard for hum an life

and who has no hesitation in committing a crime in which the risk to human life

is high. See Tenn. Code Ann. § 40-35-115(4) (1997). We agree. Indeed,

Appellant attempted to escape in Stuard’s stolen vehicle by driving at speeds up

to one hundred and ten miles per hour and by driving in between moving

vehicles. Appella nt’s cond uct dem onstrate d indifferen ce to a hig h proba bility of

calamitous cons eque nces to him self and mo torists who m he w as certain to

encounter. See Wilkerson, 905 S.W.2d at 937–38. The trial court properly

determine d that Appe llant is a dangerou s offender. 11



         Because the trial court sentenced Appellant before Wilkerson was decided,

the court made no express finding that the Wilkerson test was satisfied.

Howeve r, we conclude that it is. First, consecutive sentences are clearly related

to the se verity of A ppella nt’s offenses. Indeed, App ellant was con victed of five

serious felony offenses and he put numerous lives at risk during this criminal

episode.        If anything, Appellant is fortunate that he received consecutive

sentences for only four of the five convictions. Second, consecutive sentences

are required in this case in order to protect the public from further criminal


         11
            However, we do not agree with the trial court that the possible transmission of the HIV virus
during the rape established that Appellant was a dangerous offender whose behavior indicates little or no
rega rd fo r hum an life and w ho ha s no h esita tion in com mittin g a cr ime in whic h the risk to hum an life is
high. While this may have been true if Appellant actually had the HIV virus and knew that he had the
virus, there is no evidence in the record that Appellant had any sexually transmitted disease.

                                                      -27-
conduct by Appellant. The record indicates that Appellant’s criminal conduct has

become more and more violent with each new offense . Appe llant ap paren tly

began with the ft, mov ed on to vehic le burglary, then to sexu al battery, and fin ally

to the violent offenses at issue here. Further, the trial court found that Appellant

had shown no rem orse for h is actions a nd had denied all respon sibility for the

aggravated rape of Stuard.           The public certainly needs protection from

Appe llant’s increa singly vio lent be havior . Finally, c onse cutive s enten cing in this

case is congru ent with general principles of sentencing. This issue has no me rit.



       Accordingly, the judgment of the trial court is AFFIRMED.




                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




                                           -28-
