# FILED
September 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE FEBRUA RY SESSION , 1997

STA TE OF TENN ESSEE, ) ) No. 01C01-9604 -CC-00137 Ap pellee ) ) GRUNDY COUNTY vs. ) ) Hon. THOMAS W. GRA HAM, Judge JOHN ALLEN CHA PMAN, ) ) (First Degree Murder; Aggravated Appellant ) Kidnappin g; A ggravated Sexual ) Ba tt er y)
For the Appell ant : For the Appell ee : PHILLIP A. CONDRA CHA RLES W. BUR SON Distric t Public Defender Attorney Gen eral and Repor ter P. O. Box 220 204 Bets y Pack Drive MICHA EL J. FA HEY, II Jasper, TN 37347 Assistant Att orney Gener al Criminal J ustice Div ision (AT TRIAL AND O N APPEAL) 450 James Roberts on Parkway Nashvil le, TN 37243-0493 ROBERT S. PETERS Attorney at Law J. MICHA EL TA YLOR 3rd National Bank Building Distric t Attorney General 1 0 0 1 s t

. A v e n u e , S

. W. 1st American N ational Bank Bui lding Winchester, TN 37398 Dayton, TN 37321 (AT TRI AL ONLY) THOMAS D. HEMB REE Asst. Dist rict Attor ney General Lawyer 's Building Jasper, TN 37347

OPINION FILE D: AFFIRMED

David G . Hayes Judge2 OPINION
The appellant, John A llen Chapman, appeal s from the April 2, 1994, Grundy Coun ty jury

verdict finding him g uilty of first degree murder , aggrav ated kidnapping, and aggravated sexual battery. The jury fixed the appellan t’s sentence at li fe imprisonment for fir st degree mur

der and the tri al court impos ed maximum sentences

of twelve years eac h for the remainingoffenses and ordered all sentences to be s erved conse cutively . On appeal, the appellant challenges: I. The sufficiency

of the indictment c harging aggravated kidnap ping; II. The suff iciency of the evidence for all three convictions; III. The admissi on of DNA evi dence; IV. Denial of the appellant's mot ion to suppress blood samples obtained duringthe invest igation; V. Failureof the trial court to proper ly instr uct the jury regarding iden tity; VI. The scope of cro ss-examination of State’s w itnesses; and VII. Sent enci ng: le ngth of se nten ces a nd im posi tion of co nsec utive sentences.

After revie w, the judg ment of the trial court is affirmed.

BACKGROUND

Guilt Phase On April 19, 1990, Michell e Blake, the v ictim in thi s case, was employed as a clerk at the Pit Stop S outh, a gas and convenience store in Mc Minnvil le. Mrs. Blake was twenty-six years old, married and the mo ther of a four-year-old daught er. O n thisdate, s he wa s sche duled t o wor k the 3 :00 p.m. to 11:0 0 p.m.3

shift. At 5:15 p.m., Mrs. Blak e's husband, William Blake, arrived at the Pit Stop South to pick up the couple 's vehicle, a Ford Bobcat. He left the business, traveled t o a video st ore, and then went home. As was customary , Blake was to return to the Pit Stop later that evening with his wife’s dinner.
Around 8:30 p.m., Ed Martin stopp ed at the store t o purchase ga soline. Martin pumped thr

ee dollars w

orth of gasoli ne and went i nside the store to pay. As Martin w

as leavingthe store, M rs. Blake remarked, "I w ish he'd go ahead and leave. I' ve already

pumped his gas ," referring to a man sitti ng outside thefront of the store in an older model g ray Chev rolet pick up truck w hich displayed Grundy County license plates.

Fifteen minutes later, around 8:45 p.m., Sylv ia Fults and her husband pulled into the drive-t hrough w indow of the Pi t Stop South to purchase cigar ettes. Although she de pressed the customer assistan ce button, no cl erk appeared. She then noticed M rs. Blake at the full serv ice pump wi th a jug in her hand. Mrs. Blake re-entered the store to wait on Fults. W hile waiting on Fults, Mrs. Blake talked about thi s guy bei ng there before g etting gas and talking about him being so weir d. She said he had been there earl ier and got g as in h is tr uck and he had l eft or started to leave, a nd came back and had her put gas in a can, an d she said, 'Now he's back wanting it in a jug .' Mrs. Blake also told F ults that this man had asked her i f she had wanted any help since shewas at the store by he rself. Duri ng this conv ersation, Ful ts noticed a man in t he store w ho looked like he was tr ying to scare Mrs . Blake. W hen she was leaving the parking lot, she observed a "gray primer color" pick up truck w ith chrome park ed in front of the stor

e.

Mary Jon es lives

across the street from the Pit Stop South. Arou nd 8:554

p.m. on April 1 9, 1990, she heard what she thoug ht to be a scre am coming from the front of her house. After hearing an apparent second scream, she went to her front porch w here she observ ed a truck on t he Pit Stop’s parking l ot. She stated that the truck was a "gray primer color" and had a Chevrolet logo across the back of the tailgate. She noticed a man and a woman in th e truck. Ms. Jones related t hat “at one time i t looked like she pulled away from him.” She assumed that, mo re than likely, it was simply a “domestic problem." The truck then pulled out of the parking l ot and onto Hig hway 55. She commented that, as the truck left the parking lot, it was going very fast and that it made loud sou nds.
At 9:05 p.m., as pl anned, William Blake returne d to the Pit Stop South with his wife's, di nner. When he arrived at t he Pit Stop, he not iced two v ehicles in the parkin g lot. Two customers appr oached him and inq uired as to "w hat was going on" as

there was

no attendant on duty . Immediately , Blake began to search the premises for his wife. During this search, one of the customers discovered Mrs. Blake's eyeglasses in the parking lot. At this point, the police were cal led and the ow ner of the station, Mr. Stanton, arrived. After inspecti ng the premises, Mr. Stanton state d that no money had bee n taken from the cash register , although the key that functi oned as the "on-off" sw itch was missing. A search then beg an in Warren County for Mi chelle Blake.

Joe Ro per in formed l aw en forceme nt offici als th at, w hile t rave ling home on the eveningof April 19, 1990, on route 108, a vehicle came up behi nd him at an excessive rate of speed and passe d him on a double yellow line. He described the v

ehicle as bei ng a gray

Chevrol et pick up tr uck with large ti res and Grundy County license plates. Roper also stated that there were two people in the truck. Dale Winton reported that, at 9:05 p.m., he was travel ing on hig hway 127 w hen a vehicl e came u p behin d him "real fast " and swerve d aroun d him,1 The proof attr ial reveal ed thata motori st t ravel ing be tween t he PitStop Sout h and the Phil adelphi a Cem etery woul d take Hi ghway 55 to 108, 108 to 127, 127 to 56, 56 to t he Grundy County li ne, the n to the cemeter y. The to tal di stan ce of thi s tr ip is appr oxi matel y 1 6.2 mile s. At the po ste d s pe ed rat e, th is d ista nc e ta ke s a n a ve ra ge of t we nty m inu tes to tr av el. 5 almost runninghim off the road. 1 He described the vehicle as being a dark colored 1979 or

1980 Chevr

olet pick up t ruck wi th "cherry bomb mufflers" and chrome on the side of the truck.
Danny Wannamaker, whose residence is di rectly adjacent to the Philadelphia C emetery in G rundy Count y, testified that, at around 9: 20 p.m. on April 19, 1990, he took a shower and prepared for bed. Around 9:50 p.m., he heard a vehi cle that sounded l ike it did n ot have a muffler. He looked out th e window , but did not see anything. Again, he hea rd the vehi cle stop for a few minutes, then "the motor was turned off, cranke d back up and took of f, again approaching the house." Herbert Lewis, who also lives behind the Philadelphia Cemetery, w

as at home alone on t he eveningof April 19, 1990. Shortly after 9:30 p.m., he heard w hat appeared to be a female screaming for help, followed shortly thereafter, by

a loud vehi cle coming around the bend from behi nd the graveyard. He ex plained that he w as not alarmed by

the screams because he was “use (sic) to hearing people screaming, raising cane (sic) at the volleyball court."
The next morningbetween 7:00 an d 7:30 a.m., Sharon S hannon, the daughter of Her bert and Melba Lewis, dr opped her six-month-old son off at her parents' home. As

she was l eaving, she spotted w hat at first appear ed to her to be shoes, however, she s oon realiz ed it was a body. Becaus e her eleve n year old daughter was in thevehicle with her, she did not sto p, but returned to her parents' home instead. After leav ing her daug hter wit h her parents, Shannon returned to the cemetery to verify the presence of the bod y and then cont acted the authorities . The body was identified as that of Michell e Blake.6 An investi gative t eam with the Tennessee Bureau of Investigation arrived at the scene. The victim was found f ully clothed with her blouse partially unbuttoned. Her brassiere w as missing . The victi m's body was examined for the presence of hair, fibers, and fing erprints. Joe Minor, a member of the investig ative team, t estified that a w hitish stai n which appe ared to be semen was discovered on the left breast of the victi m’s body. The w hitish stai n extended from the victi m’s breast to her stomach. Ex amination of the stai n revealed that the substance di d contain spermat ozoa, and further testing i ndicated that the source of the semen w as a Type B sec retor.

Dr. Charl es Harlan, t he chief medical ex aminer for the Stateof Tennessee, performed an aut opsy upon the bo dy of Michel le Blake on Apr il 21, 1990. His report identified a total of seven stab wounds , one to the left si de of the neck, four to t he left breast, and two to the mi d-line of the back . He indicated that the wounds

were caus ed by a sing le sided instrument, three to three and one-half inches i n length. Three of the wounds caused damage to main organs which resulted in the v ictim's death, i.e., damage t o the carotid a rtery, d amage to the heart, and dama ge to the right lung. He opined that death occurred within three to ten minut es of the injuri es. The medical ex aminer further ex plained that a sharp line of demarcat ion existed on the victim's neck, indicative of ligature strangulati on. He noted there were no defensi ve wounds and no evidence of forcible vaginal intercourse. He also determined that the victim's blood was type O.

Despite descriptions of the perpetrator, his truck, and available scientif ic evidence, th e case remained un solved for ov er two years. In Jul y, 1992, Speci al Agent Larry

Davis w ith the Tennessee Bur eau of Investig ation, was called to2 Ev ide nc e o f th e c rim es ag ain st V ick y M etz ge r an d P am ela Su e B ac k, the se co nd vic tim at t he I- 24 eastboun d Rest Area, was devel oped duri ng pre-t ri al supp ressi on heari ngs. 7 assist Grundy County officials in the investigation of the June 7 murder of Vicky Sue Metzg er, whose body was discovered at the I-24 Eastbound Rest Area near Monteagle. On July 13, Davis i nterviewed the appellant w ho was the at tendant on duty at the rest area on t he date of the murder. The attendant at the westbound rest area was also inter viewed . Neither man was placed under arrest, although both men were asked to submit blood samples f or DNA comparison analy

sis on semen found on t he victi m. On November 5, 1992, Davis was requested to assist in the investigation of an assault on anoth er victim at the I-24 East bound Rest Area. On this occasion, the appell ant was id entified as the assail ant and was i n custody at the Monteagl e police stati on when intervi ewed by Agent Dav is. The appellan t "stated that he had assaulted the victim because he had been dri nking and smok ing marij uana." Again, t he appell ant sub mitted to blood testing. 2

From these tests, it wa s determined that the appellant has Type B blood. Review of the case file at t his point led authorities t o the belief that the appellant may have been involved in the 1990 death of Michelle Bl ake. DNA compar ison analysis was then requested on the ap pellant's bl ood sample and the se men sample recovered from Mrs. Blake's body . The results from the tests rev ealed that the DNA bi nding pattern on each sample matc hed. Additional forensic tests established that

fibers found on the v ictim's cl othing were consisten t with the fibers found in the carpet of the appellan t’s Chev rolet pick up truck. The pr oof at trial establ ished that, in April, 1990, t he appellant li ved in Gr undy County and was employed by a nurs ery in Warren County . On occasion , after regul ar workinghours at the nur sery, he w

ould work

for his superv isor, Floy d Hardcastl e, who lived in Warren County. When workingfor Mr. Har dcastle, his

commute to and from home would take him by t he Pit Stop South. The appellant admit ted8

that he had, on occa sion, purchas ed gas at the P it Stop South. H owever , when showed the phot ograph of Mic helle Blake at trial, he stated that he did not recogniz e her. On cr

oss-examin ation, the State i ntroduced a pay roll check from Hardcastle to the appellant, dated March 3, 1990, which was cashed at the Pit Stop South, bearing the initials “M.B.” The initials were identified as being those of Michelle Bl ake. The appellant also admitted that , in April , 1990, he owned a 1977 gray

Chevrol et short-bed pi ckup truck w hich displayed Grundy C ounty license plat es. He stated that he sold the t ruck in the s pring of 1991. Additionally , the proof establi shed that, in Apr il of 1990, the appel lant’s truc k had other matching characteri stics to that of the truck dr iven by

the abductor of Michelle B lake.
Based upon the ev idence introduced, the jury convicted the appellant of firs t degr ee m urde r, aggr avate d kid nap ping, and a ggrava ted s exua l bat tery.

Followi ng the testi mony of vari ous defense wit nesses and the pr oof introduced at the guilt phase, th e jury fixed the appellant’s sentence f or first degree murder

at life impri sonment.

Sentencing Phase: Aggravated Kidnapp ing and A ggravated Sexual Bat tery The hearing to determine the appropriate sentence s for the appellant's remaining convictions was held on May 12, 1994. The prese ntence report revealed that, at the time the rep ort was prepared, the appellant was a twenty-six year old Caucasian male, married, and the father of a th ree year old son. He has a tenth gr

ade education. After

dropping out

of school, he joi ned the Tennessee National Guard. He received an hon orable discha rge in 1992 attaining th e rank of E-4. H e admits to beingan alcoholic and to occasion al marijuana use. Since 1987 , the appellant has worked for various emp loyers in9

the nursery

business and, b riefly, as a rest area attendant. Reg arding the appellant's pr ior recor

d, the report i ndicated that the appellant, on the date of the sentencing hea ring in t his case, had one count of first deg ree murder, one count of aggravated rape and two counts of agg ravated ro bbery pendingin the Grundy County Ci rcuit Cour

t. Additional ly, the appel lant has three prior conv ictions for drivingwhile i ntoxicated, one convict ion for possessi on of marijuana, and one
conv ict ion for d riv ing on a revoked license . Hewas arreste d for

poss essi on of a weapon for purpo ses of going armed, however, this char ge was d ismissed upon paymen t of costs and confis catio n of the fi rearm.
Larry Davis, a special agent with the TBI, testified regarding his investig ation of the murder of Vicky Sue M etzger and the assault of Pamel a Sue Back. He ex plained that, thr ough his inv

estigation of these two cas es, the TBI was able to target the appellant as a suspect in th e present case. He also recounted the appe llant's confession to the assault on Pamela Sue Ba ck.

The trial cour t fo und thre e non -sta tuto ry miti gatin g fac tors and f ive statutory enhancement factors appl icable. In doi ng so, the cou rt imposed the maximum sentence of twelve years for eac h convicti on within the range. Moreover, based upon the allegations of the pending indictments, the court concluded that the ap pellant was a dangerous offe nder and ordered that all sent ence s be s erved cons ecut ively.

I. Sufficiency of the Indictment
The appellant first

contends that the indictment for ag gravated kidnapping is void because it fails

to set forth the es sential elements of the offense. Specifically, he argues that the indictm ent fails to allege the eleme nts of false3 Tenn. Code Ann. § 39-13-304 (a) ( 1989) def ines ag gravat ed kidnappi ng as "f alse imprison ment com mitted

. . . ( 3) wi th t he int ent t o inf li ct ser ious bo dil y i njury

. . . . " Fal se im priso nm ent is th e k now ing re m ova l or co nfine m ent o f ano ther u nlaw fully so as to interfe re w ith the other's li berty. Ten n. Code A nn. § 39-13-30 2 (1989). 10 imprisonment, w hich is an es sential element of aggravated kidnapping . Count two of th e indict ment, which charge d the of fense of aggrava ted kidn apping, alleged in pertinent part as follows: JOHN ALLEN C HAPMAN . . . did unlaw fully, (i ntentionally), . . . remove and confine

one Michell e Darlene Bl ake with t he intent to inflict serious bodily injuryupon the person of the said Michelle Darlene Blake, in viol ation of . . . Tenn. C ode Ann. § 39-13-30 1. . .

. 3 (Emphasis added) The appellant acknow ledges that t he charginginstrument in cludes the statutory language “ did unlawfull y . . . remove and confine”one Michell e Darlene Blake. He argues, however, that the failure of the in dictment to inc lude the remaining statutory language “so as to interfere subst antially with the other’s liberty” renders t he indictment v oid.

An indictment should stat e the facts constituting the offense in ordina ry and concise la nguage in s uch a manner as to enable a person of co mmon understanding to know what is intended, and with that de gree of certainty which will e nable the court, on convic tion, to pronounce the proper j udgment. Tenn. Code Ann. § 40-13- 202 (1990); State v. Marshall , 870 S.W.2d 532, 537 (Tenn. Crim. App. 1993). This court recently held that “[i]f an offe nse is alleged in such a way t hat the defendant cannot fail to be apprised of the elements of the offense, the indictment i s sufficient, notw ithstanding the fact that an element may not be specifically alleged.” See State v. John Haws Burrell , No. 03C01-940 4- CR-00157, (Tenn. Crim. App. at Knoxvi lle, Feb. 11, 1997) (Rule 11 application filed, April 10, 1997).

The indictment in this case al leges that t he appellant remov ed and4 The appell ant does n ot chal lenge the suf fi ciency of t he convi cti ng evi dence as to the of fe ns e o f fir st d eg re e m ur de r ot he r th an to th e is su e o f th e p er pe tra tor 's id en tity. 11 c o n fi n e d M i c h e l l e D a r l e n e B l a k e w i t h t h e i n t e n t t o i n fl i c t s e r i o u s b o d i l yi n j u ry . We find the languag e of the indictment pr ovides constitutionally

sufficient notice of the offen se charged as well as suitable protection against double jeo pardy. This issue is w ithout merit.

II. Suffi ciency of the Ev idence
Next, the appellant challenges the suf ficiency of the convicting evidence as to each count of the indictment. Within this c hallenge, he a lleges ( 1) that the evidence fail s to prove, in regar ds to the agg ravated ki dnapping conv iction, that "any removal or confinement s ubstantially interfered w ith the vi ctim's lib erty;" ( 2) that, concerni ng the agg ravated sex ual battery convicti on, there was no proof of unlawful sex ual contact w ith the vi ctim; and (3) that the State fail ed to establis h, by either lay or ex pert testimony , that the appell ant was, i ndeed, the perpetrator of the offenses committed agai nst Ms. Blak e. 4
When a challenge is made on appeal to the sufficiency of the convic

ting evidence, th is court must adhere to cert ain well -established principles . First, a jury conviction removes the presumption of inno cence with which a defendant is initially cloaked and re places it w ith one of guil t, so that on appeal a convict ed defendant has the burden of demonstrating that the evidence is insufficient

. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Nex t, the State is

entitled to the strongest legiti mate view of the evidence and all reasona ble or leg itimate inferences w hich may be dr awn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). M oreover, t his court may not rewei gh or reev

aluate the evi dence. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Viewing the evidence under these cr iteria, it

is this court's resp onsibility to affirm the conv iction if the5 W it hin t his i ssue, t he appel lant , agai n, cont ends thatthe indi ctment fai ls t o all ege that "any removal orconfi nement substant ial ly int erfer ed wit h the v ict im's l iberty ." This cont enti on has prev ious ly been add res sed in Se ction I, a nd, w as fo und to be withou t m erit. 12 proof was suffici ent for any rational trie r of fact to have found t he essential elements of the offense beyon d a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S .Ct. 2781, 2789 ( 1979); State v. Ca zes , 875 S.W.2d 253, 259 (Tenn. 1994); Te nn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon di rect evi dence, circumstantial ev idence, or a combination of both direct and circumstanti al evidence. Stat e v. Mat thews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

A. A ggravated Kidnapping The jury found the appellant gui lty of agg ravated ki dnapping purs uant to Tenn. Code Ann. § 3 9-13-304(a). In order to obtain a con viction under this statute, the State m ust prove that the defen dant committed th e act of false imprisonment, as

defined in §39-13- 302, supranote 5, with the intent to inflict serious bodil y injur

y. . . ." Tenn. Code Ann. § 39- 13-304. The proof establ ishes that Mrs. Bl ake disappeared fr om the Pit Stop Sout h during her scheduled shi ft, leaving behind her eyeglasses, which were later found i n the parkinglot. Her disappearance coincided w ith the appearance of the appellant at the convenience store. Mr s. Blake did not know the appellant. Var ious wit nesses thought they

heard the vi ctim's screams. The followi ng morning , the vict im was found brutally

murdered. We find nothing from these facts to sugg est that the departure of the v ictim from her pl ace of employment was occasioned by any thing other than removal and confinement by force, ultimately resultingin her death. This iss ue is wi thout merit. 5

B. Aggravated Sexual Bat tery Next, the ap pellant chall enges his conviction for the aggr avated sex ual battery commi tted against Michelle B lake. Althoug h he concedes that the proof13

establishes s erious bodil y injur y, i.e., mul tiple stab wounds, he contends t hat there is "no pr

oof of any sexual contact w ith Mrs. B lake's body either before or after her death. The ent ire proof on thi s issue cons isted of the testi mony that. . . a semen stain was recover ed from the left porti on off her body ex tending from her left breast to her abdominal a rea." He arg ues that the "record disclos es no evidence w hatsoever t hat the vic tim's intimat e parts were touched as par t and parcel of a sex ual act."
In order to sustain a conviction for aggravated sexual battery, this court must find that the pr

oof establishes th at the appellant madeunlawful sex ual contact wi th the vic

tim and caused bodi ly injur y to the v ictim. Tenn. Co de Ann. § 39-13-504 (a) (2) (1989). "'Sexual contact' incl udes the intenti onal touching of the victi m's, the defendant's, or any other person's in timate parts, or the intentional touching of the clothing covering the immediate area of the victim's, defendant's, or any

other person' s intimate par ts, if that intent ional touchingcan be reasonably c

onstrued as being for t he purpose of sex ual arousal or gratificati on." Tenn. Code Ann. § 39-13-501(6) (1989) (emphasi s added). "'Intimate parts ' includes t he . . . breast of a human being." Tenn. Code Ann. § 39-13-501(2). Again, as the appellant concedes, the proof showed semen stains on Mic hell e Bla ke's left brea st an d abd ome n. DNA evide nce, iden tity te stim ony, and other circumstantial ev idence linked the appellant to t he crimes commit ted again st Mrs . Bla ke. Cl earl y, fro m the proo f int rodu ced, the j ury co uld h ave rationally inferred that i t was the ap pellant wh o deposited the se men on the victim's breast. This fact is sufficient t o establish s exual contac t. Our statut e does not requi re that “int entional touchi ng” of the v ictim’s i ntimate part re sult from direct contact with the defend ant’s hand or any other part of th e defendant ’s body. This i ssue is w ithout merit.
C. Identity of the Perpetrator6 T he ap pe llan t co nte sts the ad m iss ibility o f th e D N A o pin ion ev ide nc e. T his alle ga tion is add res sed as a sep arate issu e by the app ellant a nd w ill be so a ddre sse d by this cou rt. See infra Se ction III.

7 Altho ugh less than pos itive identifica tion wa s pro vided by either , Ed M artin tes tified, "I thi nk I can i denti fythe per son in the t ruck," and poi nted t o the app ell ant. Fult s test if ied t hat t he app ellant loo ke d like th e m an s he s aw a t the P it Stop S outh “exc ept fo r the h air an d we ight.”

8 The frequency

of t he bin ding p att ern i n Caucasians i s 1 in 19,000.

14 The appellant's ma in contention regarding his challenge to the suf ficiency of the evidence i s that the proof fail s to establis h that he is the perpetrator of the offenses. Specifically, the appellant questions the reliability of eyewitness testimony i dentifying him "as the indi vidual at the Pit Stop South at or near 8:50 p.m. or thereafte r on April 19," and, he attacks the accuracy of the scientific evidence due to deficient collection of evidence and inap propriate scientific procedures. 6 The State responds that both the dir

ect and circ umstantial proof establish the appellant as the offender in this cas e.
Ed Martin and Sylvia Fults provided identification testimon y at trial. 7 Moreover , the proof at tri al reveal ed numerous matchingcharacteri stics between the appellant’s

truck and the truck driv en by the abduct or of Michell e Blake. Both trucks were describe d as older model trucks, both short-w heeled base, both g ray in color, both displayed Grundy County license plates, both had loud muff lers, both had chrome on theside, and both had the name “Chev rolet” on the tailgate. Fibers later obtained from the appellant's truck were consistent with those obtained from Mic helle Blake' s clothing . Other proof revealed that t esting of the semen found on Michel le Blake's b ody indicated that the perpet rator has Ty pe B blood. The appellant

has Type B bl ood. Moreover, the DNA binding patter ns obtained from the two samples matched. 8
The State must prove beyond a reas onable doubt that the accused is the person who committed the offense. See White v. State , 533 S.W.2d 735, 744 (Tenn. Crim. Ap p. 1975), perm. to appeal deni ed , (Tenn. 1976). I dentity of the15

accused may be accomplished by either direct or circumstantial ev idence, or both. State v. Thompson , 519 S.W.2d 789, 793 (Tenn. 1975). The determination of ide ntity is a question of fact for the jury after a consider

ation of all competent ev idence. See Biggers v. State , 411 S.W .2d 696, 697 (Tenn .), cert. granted , 390 U.S. 404, 88 S.Ct. 979 (1968) (affirmed on other grounds); Marable v . State , 313 S.W.2d 451 (Tenn. 1958); State v. Crawford , 635 S.W.2d 704 (Tenn. Crim. App. 1982); State v. Ho dge , No. 6 (Tenn. C rim. App. at Jackson, June 30, 1987 ). Likewise, the determination of whethe r all reasonable theo ries a re exc lude d by th e circ umst anti al evid ence pres ente d is pr imar ily a question of fact for t he jury. Pruitt v . State , 460 S.W.2d 385 (Tenn. Crim. App. 1970); Hodge , No. 6. This case is based entirely upon circumst antial evi dence. Before an accused may be convic

ted upon circumstantial ev idence alone, the facts must be “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the defen dant and the def endant alone.” State v. Howell , 868 S.W.2d 238, 253-254 (Tenn.), cert. denied , - - U.S. - -, 114 S.Ct. 1339 (1993).

W e conclude that the proof in the record points the finger of guilt unerringl y at the appel lant and the appell ant alone, and that the proof was sufficient for a jur

y to have found the essential elements of the offenses beyond a reasonable doubt.

III. DNA Opinion Ev idence

Prior to tr ial, the appell ant filed a motion in limine seeking to exclude the results of a DN A profiling analysis performed by C ellmark Di agnostics, a privat e Maryland laboratory

contracted by

the Tennessee Bureau of Investig ation in the present case. These results revealed th at the appellant's DNA matche d DNA9 Ethi dium bromide i s a fl orescent dye t hat bi nds to DNA, al lowi ng it to be v isual iz ed. 16 samples (semen) recovered from the vic tim. At the conc lusion of a leng thy hearing on th e appellant's mot ion, the tria l court, after consideringthe testimony of Dr. Lisa Fo rman, a Cellmar k representati ve, ruled that the exper t testimony concerning the DNA analy sis was admissible.

At trial, Dr. Forman and Julie Cooper , a senior mol ecular biol ogist w ith Cellmark, t estified on behalf of the St ate regardi ng Cellmar k's testingprocedures and the results

attained in the present case. To rebut this testimony, the defense presen ted the testimony of Dr. Marvin Shapiro, a prof essor at Emory Univers ity, and D r. Ronald T. Ac ton, a professor at the University of Alabama. Dr. Shapiro

opined that Cel lmark used an i nsufficient database by failing to employ an Appalachian subgroup database, in determinin g their frequency calculation, and, as such, t heir resul ts cannot be deemed accurate or reliable. Dr. Acton co mmented on the ongoingconcerns in the scientific community w ith the use of ethidium br

omide at the begi nning of the analy sis procedure. 9 He further noted that C ellmark's combination of probes fur nished results which were
just an estimat e at best and that C ellmark's met hod of combining pr obes has not been scientifica lly validated.
On appeal, the appe llant contends that the trial cou rt failed to properly apply Tenn.R.E vid. 702, 703, and 403 in reach ing its de cision to al low the State to introduce D NA opinion testimony. Spec ifically , he asserts that the testimony introduced by representatives of Cellma rk Diagnostic, the testing laboratory, is inadmissible because Cellmar k's testingprocedure ind icates a "lac k of trustworthiness." In this regard, the appellant con tests: (1) Cellmark's use of ethidium brom ide in the agarose gel before electrophoresis;10 W e note t hat i denti cal twins hav e all thr ee bil li on pai rs t he same. 17 (2) Cell mark's selec

tion and use of a Caucasian database from Delaware and failure to us e a database exc lusivel y from Appalachia; and (3) Cellmark's statistical analysis of the population f requencies. The appellant chall enges specific techniques employed by Cellmark i n the DNA analysis performed in this case. Due to the co mplex nature of the subje ct matter, an understan ding of the structure of th e DNA molecule and the precise proc edu res u tilize d is he lpf ul to our re view.
A. Scientific Background

I. DNA Structure The DNA molecule is a double hel ix, shaped l ike a twi sted ladder. Phosphate and deox

yribose s ugar form the r ails of the ladder . Four chemical bases -- Adeni ne (A), Cy tosine (C) , Guanine (G) , and Thymine (T) - lie nex t to each othe r on th e suga r link s alo ng the side s of the l add er. Ea ch A a lways bonds with a T on the other si de of the ladder, and e ach C always bonds w ith a G on the other si de of the ladder, so that the possibl e base pairs on the ladder are A -T, T -A, C- G, an d G-C. The b ase p airs, e.g., A-T, C-G, a re co nne cted by a hydrogen bond, such that the bo nds form the rungs of th e ladder. There are approximatel y three bi llion base pai rs in one DN A molecule. The se quence of the base pairs is the same in every cell of a person' s body.
Of the three billion base pa irs, ninety-nine and nine-tenths percen t are identical among all human be ings. It is this identity that makes humans look like humans. Thus, on ly the remaining one-tenth of on e percent of a person's ba se pairs var y from person t o person. 10 These sequences of variati on from person to person are known as polymorphisms. Polymorphisms are th e key to DNA11 The foll owing pr ocedure expl ained herei n summ ari zes t he RFLP procedure ut il iz ed by Cell mark D iagnost ic i n the pr esent case. W e acknowledge, however, thatother vari ati ons of t he RFLP m ethod ofDNA analy sis exi st and ar e employed su ccessful ly by ot her l aborat ori es.
12 Questions have ari sen concerni ng the use of et hidi um brom ide at the begi nning of t he process. Using et hidi um brom ide pr ior to el ectro phoresi s has been shown t o alt er t he mobili ty of frag m ents at high DN A co nce ntration s, thu s de cre asin g the reliability of frag m ent s ize measurem ents. 18 identification b ecause they c reate the indiv idual charact eristics of each human being an d they are detect able in la borato ry testing.

ii. Generati ng DNA

Profiles Testing for DNA identificatio n involves disassembling the ladder (DNA molecule) in one of several ways. Cellmark Diagnostics, the testing laboratory in this case, empl oys the Restriction F ragment Lengt h Polymorphi sm (RFLP) method of analysi s. The RFLP method determines if there is a "match." A "match" does not mean that the suspect i s with certainty the source of the genetic mater ial found at the cr ime scene or on the victi m, but only t hat the suspect cannot be eliminated as a potential source. RFLP anal ysis i nvolves extracti ng and isolating small portions of the D NA molecule to examine sit es on the DNA that exhibit highly variable characteristics. 11

The preliminary

procedure is

to extrac

t a DNA molecu le from a sample of certain tis sue or bodily

fluid by usi ng chemical enzymes and then to purify that sample. The DNA molecule is "c ut" into smaller fragments w ith chemical scissors called restriction enzymes. These enzymes recognize certain base pairs and sever the DNA mol ecule at speci fically ta rgeted base pai r sites to produce RFLPs . The cut fragments of DNA molecules

(RFLPs) are next pl aced in an agarose gel and ethidium bromid e is incorporated into the gel. 12 The gel is then elec trica lly cha rged t o sor t the frag men ts by le ngth . Thi s pro cess is kno wn as elect rophore sis. The electric c urrent ca uses the fragme nts to m igrate th rough the gel. The di stance traveled depends upon the length of the frag ments; the13 Th is pro ces s is k now n as "Sou thern Blotting ."
14 The probes ut il iz ed in thi s case were MS1, MS31, MS43, G3.
15 T his pro ce ss is re fe rre d to as au tor ad iog ra ph y.
16 It is t he len gth ofthe DNA fragments t hat i ndiv idual iz es each l ivi ng thi ng, t hus, t he posit ion ofthe band s on a DNA print can di ffer enti ate i ndiv idual s.

19 shorter fragments, becau se they are lighter, will travel further in the gel. Once migration has ceased, the f ragments of known base pair lengths are place d in separate lanes to allow the measurement of RFLP s in units of bas e pairs. A nylon membrane i s placed over the gel, permanently transferringthe RFLPs to this more function al surface. 13 A denaturiz ation process occurs duri ng this st ep, severing each double-stranded DNA fragme nt into two single strands. This facilitates dete ction of specific RFLPs and Vari able Number Tandem Rep eats (VNTRs), i.e., the number of repeat core sequences of ba se pairs which determine the leng th of each RFLP.

RFLPs that are defined by spec ific sequences are detected by hybridiz ation wit h a genetic pr obe, a singl e stranded seg ment of DNA tagg ed with a radioactive reporter molecule designed to detect a complementary single strand base seq uence. 14 The membrane is placed in a bath that contains the probe, and the pro be hybridi zes to the t arget denatured RFLP.
Next, the nylon membrane is placed in conta ct with a piece of x-ray film where the radioactive probes expose the film at th eir respective locations. 15 Black bands appear where the radioact ive probes have bonded to the RFLPs, producing a DNA "print, " or autorad. The p osition of each band indicates the location of a poly morphic segment on the blot. Location, in tur n, indicates t he length of the DN A fragment that con tains the poly morphic DNA segment. 16 The particular

region on t he DNA wh ere a specific VNTR occurs is called a locus. A locus is considered poly morphic wh en the number of VNTRs varies fro m individual to indivi dual. Each loc us consists of variant forms of genes know n as17 The al l el es wh i ch co mpri se t he l oc i co ns i st of mul t i pl e p ai rs of t he nu cl eo t i de ba se s A, T, G, a nd C , supra , wh ich bo nd ac co rd ing to th e b as e p air rule . In o rd er to g en er ate a p ro file t ha t is uniq ue, C ellm ark stud ies fo ur hig hly variab le sites refe rred to as polym orph ic loci.

18 In t he presentcase, t he six bands that were obt ained from the DNA sam ple ( semen) rec ove red f rom the vic tim m atch the s ix ban ds o btaine d fro m the D NA labele d Jo hn C hap m an. 20 alleles. Two allele forms occupy each l ocus, one on a chr omosome inherited from the mother, and one o n a chromosome inher ited from the father. When the same form of allele occupies both loci on the chrom osomes the individual is homozyg ous for that alle le, and when different alleles occupy the l oci, the individual is heterozygous for both alleles. 17 Typicall y, this pr ocess is repeated with four or

five different pr

obes. Sever

al probes are necessary because, although the deg ree of indivi dualizati on for the two alleles that occur on one locus is not

high, it is extremely rare for two peopl e to have eig ht or ten matchi ng alleles acr

oss four or five different loci.
The last step in the RFLP process is to dete rmine if a match ex ists in the two lanes of the autorad between the DNA sampl e from the suspect and the forensi c sampl e taken from thecrimescene or thevic tim. 18 If it matches, th e analyst must

determine the l ikelihood that someone other than t he suspect mig ht have the same D NA pattern. Thi s calculati on of the probabili ty of a random match generates

a ratio to accompany a match, the purpose of w hich is to express t he statistical likeli hood that an unrelated person chosen at random from a particular

population coul d have the same D NA profile as the suspect.

iii. Frequency Calculations The initial pr

ocess in g enerating thi s ratio inv olves the c reation of an autorad database. In the present case, Cellmar k's database was comprised of DNA autorads from Caucasian individuals who donated blood at a Delaware blood bank, alongwith an Afr ican-American database, and a H ispanic databas e. Racially similar databases are used to create a greater likelihood of a DNA profile match, w hich safeguards against under

stating the probability

of a random19 In t he presentcase, a co mbinati on of t wo bands was necessary in o rder t o calcul ate t he frequency . Cooper used the a nalysis speci fi c to pr obes MS1 and MS31 because theycould be ident if ied i n the ev idence as well as in the bl ood. However , t he remaini ng thr ee bands were ei ther MS43 or G3. So, a combined anal ysi s was completed on t he fi nal t hree bands. Cooper t esti fi ed that the com bination of data in determining a frequenc y stati stic results i n a m ore cons ervative num ber. 21 match.

Once a database is

constructed, autorad band frequen cies are cal culated by comparingthe known ban ds with t he database bands to d etermine how frequently bands match. Sci entists use ei ther fixed or floating bin analysis

to calculate match frequencies. Binning hel ps to account for v ariables in recording autorads, and provides conf idence limits on frequency estimate s. Cellmark employs a floati ng bin analy sis. Float ing bin anal ysis focuses on the autorads obtained from th e evidence sample, around which individual bins are constructed. Typically, floating bins are constructe d with a resolution tolerance of a certain number of standard devi ations centered around the ev idence band. Database bands which fall within the bin create d from the evidence ban d are then assigned to the evidence band's floatingbin to calcul ate band frequenci es. Binning typically results in higher probable match frequencies. Th e higher match frequencies weigh in a suspect's favor because the probability calculations will yield a g reater chance of a random match. 19

After indivi dual band frequenci es are calcul ated, the likel ihood that the complete autorad would be du plicated in a randomly selected individual is calculated usi ng the product rule. The produ ct rule is simply t he mathematical formula used to de termine the probability that two indepen dent events would occur simult aneously, calculated by multiply ing the proba bility of each event. Twopro duct

rul e cal cul atio ns ar

e re qui red to de ter minethe l ike lih ood o f a random profile ma tch. First, the frequency of a match a t each locus is20 Be ca us e th e b an ds ge ne ra ted at e ac h lo cu s d ep en d o n w he the r th e in div idu al is homozygous orheter ozy gous for those parti cular all eles, the f ormula var ies dep ending on the all ele f orm. The frequency for a homozygous al lel e is co mputed using t he formula p( al) 2; t he frequency

for a heter ozy gous al lel e is co mputed using 2( p(al 1)p(al 2)); where p denot es probabi li ty , and al represen ts each al lel e.

21 H ar dy- W ein be rg prin cip les de rive fro m an alg eb ra ic e qu atio n th at d es cr ibe s th e g en etic equil ibr ium wit hin a populat ion. The pri ncipl e stat es thatgene fr equencie s wil l r emain constant from generat ion t o generat ion wi thi n a popul ati on unl ess outsi de forces act t o change i t, provi ded mating remains r andom. 22 calculated. 20 After the frequenc y for each lo cus is cal culated, the freq uency of the complete genotype (g enetic makeup of an organism) is calculated by multiplying together the four loci frequencies.

Product rule probabiliti es are only accurate esti mates if the events underlying the calculations are truly independent an d random. Indepen dence means the probabil ity of findingone allele i s not affected by hav ing found any other allele. For each l ocus, event independence occur s when there is no correlation between the allele inherited f rom an individual's mother and the allele inhe rited from that indivi dua l's f athe r. W hen no co rrela tion betwe en th e two parental alleles exists the population sa mple is considered in Hardy-W einberg equil ibri um. 21 Several critics have noted that there is a pr oblem in that the product rule method is based on i ncorrect ass umptions that (1) members of the racial groups represented by the broad data b ases, Caucasians, Black, Hispanic, etc., mate wi thin their g roups at random, without regard to rel igion, ethni city, and geogr aph y, and (2) th e DNA f ragm ents , ide ntif ied b y DNA pr oces sing b eha ve independently and they are independent in a statistical sense. Contr ary to the assumption of random mati ng, ethnic s ubgroups w ithin each ra ndom data base, tend to mate within a specific subgroup , e.g., the Appalachian subgroup , Jewish subgroup. Suc h endogamous matingtends to maintai n genetic di fferences between subg roups, as a result, the subg roups may have substantial differences in the frequency

of a given DNA fragment, o r VNTR alle le, identified i n the22 Thi s hy pot hes i s i s t he b asi s oft he a ppe l l ant ' s ch al l eng e ofCel l mark' s r esu l ts

. He ar gu es tha t, sin ce an Ap pa lac hia n s ub gr ou p w as no t em plo yed by C ellm ar k, the rat io p ro du ce d in the i nstantcase cannot be accurat e.

23 The appell ant cor rectl y st ates t hat Tenn. Code Ann. § 24- 7-117 (1 991) (ad missibi li ty of the res ults of D N A a na lysis in c ivil or cr im ina l tria ls) is in co ns eq ue ntia l to th e p re se nt c as e a s it only appli es "t o persons comm it ti ng or at tempti ng to comm itone of t he offense s set outin § 40- 35-3 21 o n or a fter J uly 1, 199 1." See Com pil er' s Notes, Tenn. Code Ann. § 24-7-117. The 23 processing step of DNA analysis. 22 A given VNTR allele may be relatively common in some sub groups but not in the broader data base. Thus, some critics argue that the current method, u sing the H ardy-Weinberg equat ion and the product rule, will be reliable only if there is extensive study of VNTR allele frequencies i n a wide v ariety of ethni c subgroups . However, the Natio nal Research Academy remarks that "[t] he goal is not to ensure that the eth nic background of every parti cular defendant is represented, bu t rather to definethe likely range of allel e frequency variati on." N ATIONAL R ESEAR CH C OUNSEL , DNA T ECHNOLOG Y I N F ORENSI C S CIENCE 82-85 (1992). Moreover , to overcome the problem of allele f requency within a genetic subgroup, the National Research Academy recommends em ploying the ceiling principal in determining frequency statistics

. Id

.

W hen requested, as in the present case, Cellmark also employs what is known as the"ceiling principle" to calculate statistical frequencies. The ceiling met hod also uses the p rodu ct rul e. Th is me thod obta ins th e mo st co nser vative bin for every band and then multiplies it togeth er, generally resulting in a more conservative number. Using the aforeme ntioned procedures, Cellma rk determined that the frequency r eported, in the p resent case, as far as the Caucasian race, was one i n nineteen thousand.

B. Standard of Admissibility In State v. Harris , 866 S.W .2d 583, 586 (Tenn . Crim. App. 1992), this court addressed the prope r standard for determinin g the admissibility of scientific evide nce a nd te stim ony. 23 The court acknow ledged the Frye test, see Frye v.offenses i n the pr esent case o ccurred on or aboutApri l 19, 1990. 24 United States , 293 F. 1013 (D.C. Cir. 1923), which requires that the scientific analysis from which the ultimate dedu ction is made must be "suf ficiently established to have gained general accept ance in the particular field in which it belongs." Id . at 1014. Additi onally, th e court recog nized the Tenness ee Rules of Evidence, w hich prov ide: If scientific, technica l, or other specialized knowledge will substantiall y assist

the trier of fact to understand the evidence or to determine a fact in issue, a w itness qual ified as an ex pert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwis e. Tenn.R.Evid. 702. Howev er, the rule adds that the cour t "shall dis allow testimony i n the form of an opinion or inference if the under lying facts or data lack trustworthiness ." Tenn.R.Evid. 703 (emph asis added).

The court in Harris chose not to acc redit one standar d over the ot her, as the evidence at issue sati sfied both requi rements. See Harris , 866 S.W.2d at 587. Subsequentl y, howev er, the Unite d States Supreme C ourt in Daub ert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579, 587, 113 S.Ct. 2786, 2793 (1993), held t hat the Frye test, "absent from and incompatible w ith the Federal Rules of Evi dence, should not be applied in federal trials ." Daubert does not by its terms, how

ever, apply

to state court

proceedings . Although Tenn.R .Evid. 703 and Fed.R.Evid. 703 are identical, Te nn.R.Evid. adds the sentence : "The court shall disal low testi mony in the form of an opinion or an i nference if the underl ying facts or data indi cate a lack of tr ustworthi ness." In this respect, the Tennes see rule expresses a greater concern with the bas es of expert te stimony than its federal counterpar

t. Omni Aviation v. Perry , 807 S.W.2d 276, 281 (Tenn. App. 1990). Moreov

er, our supreme court has hel d that the req uisite foundations which must be established p rior to the admission of sci entific evi dence are that (1) the facts unde rlyingthe testimony must be reasonabl y relie d upon by ex perts24 The procedu res and protoc ols em ployed by Cellmark in the presen t case are substant ial ly

in co mpliance wi th t he recomm ended procedur es of t he Technical W orking Group on DN A Ana lysi s Me thods (TW GD AM ). 25 in the partic ular field and ( 2) the facts must betrustwor thy. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993); see also Advisory Commission Comments, Tenn.R.Evid. 703. We conclude that the "genera l acceptance standard" espoused in Frye is necessar ily impl icit w ithin the req uirements of Tenn.R.Ev id. 703. See Advisor

y Commissi on Comments, Tenn.R.Ev id. 702 (Tennessee law is consist ent with t he Frye test). Accordingly , before expert testimony r

egarding DNA analysis may be admitted in Tennessee, the proposed testimony and evidence must

meet the standards

promulgated by

Tenn.R.Evid. 702 and 703.

C. A pplication of Stand ard The trial court concluded that Cellmark's techniques in generating a DNA profile and form ulating a statistical frequency were based on accepted scientific prac tice and a re tru stwort hy. 24 See, e. g. , Harris , 866 S.W.2d at 586 (approving RFLP analysis); accord State v. Beg ley , No. 01C01-941 1-CR-00381 (Tenn. Crim. App. at Nashvil le, Jan. 11, 1996) , perm. to appeal g ranted , (Tenn. July 1, 1996). Generall y, the qua lifications, admissibili ty, relev ancy, and compet ency of expert test imony are matt ers whi ch largel y rest w ithin the sound discretion of the trial cour t, unless suc h discretio n is arbitr arily i mposed. Ballard , 855 S.W.2d at 562; see also State v. Sch impf , 782 S.W.2d 186, 191 (Tenn. Crim. App . 1989). Without evidence that Cell mark's standar ds were s omehow deficient, we cannot conclude that the trial court abu sed its discretion or that the laboratory's conclusion w

as unreliabl e.

Once evidence is properl y admitted, di sputes over its reli ability go to its weight. Here, much of the appellant 's attack focused on Cellma rk's implementation of DNA frequency analysis and specifics of Cellmark's procedures, inc ludi ng t he si ze of Cel lmar k'sdata base , w heth er t he sa mpli ng o f a26

Delaware blood bank was truly random, and alleg ed problems w ith the electrophores is process. This attack w as presented to t he jury t hrough the testimony of Drs. Shapiro and Acto n. Differences in the op inions of experts are inevitabl e in the application of science t o the law. In our opinion , these issues were questions properly decided by the jury. The jury was free to reject the DNA evidence i f it concluded that the evidence was unrel iable or mis leading.
The appellant also argues that t he evidence s hould have been excluded because its pr

obative value was out

weighed by its prejudicial effect. Tenn.R.Evid. 403. The appellant makes no argume nt in support of this contention. As such, this c laim is waived. Tenn. R . App. P. 27(a) (7).27

Nonetheless, t he testimony, in sum, wa s that the appell ant could not be excluded as a source of the semen found on the vict im, but could not be identified as the source wi th absolute cer tainty. C learly, the probative value of the expert t estimony outweighed any prejudicia l effect.
In summary, we conclude that the trial court prope rly analyzed the DNA typing evidence according to t he Tennessee Rules of Evidence. F urthermore, we find that the existence of scien tific debate does no t, by itself, require exclusion of evidence. The DNA statistical f requency analysis was generally accepted by the scientific comm unity at all times relevant to the trial court's decision. Thus, the evidence exhibited both reliabil ity and tr ustworthi ness. The trial cour t did not abuse i ts discreti on in admittingthe calculati ons as to frequency pr

obability , and it was for the jury to determine w hat weig ht, if any, to give such evidence. Additionally, we note that the State did not rely exclusively on the DNA ev idence to prove its case. Sufficient eviden ce existed apart from the DNA analy

sis from whi ch the jury

could have concluded the appel lant's gui lt. This issue is

without mer it.

IV. Motio n to Supp ress
A hearing w

as held on March 1, 1994, reg arding the ap pellant's moti on to suppress blood samples obtained fro m his person. At the hearing , the State presented the testimony of only one witnes s, Larry

Davis, a special ag ent with the Tennessee Bureau of Inv estigation. Agent Dav is explai ned that on June 7, 1990, the body of Vi cky Sue M etzger was found in a w ooded area adjacent

to the eastbound I-24 rest area near Monteagle. Davis w

as assigned to investi gate the Metzger murder. During the early stages of the murder investigation, Davis talked wi th the appellant, who was the attendant at the eastbound rest ar ea, and25 On July17, 1990 , atleast seven addi ti onal TBI subpoenas were i ssued to ar ea hos pitals re quiring them to pro duc e na m es a nd o ther p ers ona l inform ation o n wh ite m ale pa tients wit h bloo d ty pe B. W e rej ect t he appel lant ’s ar gument that thi s all eged dragnetapproach v iol ated his constituti onal rights under the holding of Davis v . Missi ssippi , 394 U. S. 721, 89 S.Ct. 1394 (1969). 28 Johnny Hood, the attenda nt at the westbound rest area. On this occasio n, Davis informed both men that they would be contacted in the future for additional statements. On J uly 11, Da vis is sued subpoenas for both men setting a July 13 inte rview.
On July 13, 1990, Agent Da vis met the appellant and Hood at the Grundy County Jai l. Both men gav e sworn statements and both men consented to provide a b lood sample for DN A comparison anal ysis w ith the semen found on the victi m's body. The ap pellant and Hood were taken to Dr. Hor bolt's office and the samples were drawn. At no time did the appellant v oice an objecti on to the procedure. After

the sample was drawn, the appellant le ft the doctor’s office.
Subsequently , on November 5, 1992, Agent D avis was again cal led to the eastbound I-24 rest area to inv estigate an as sault on Pamela SueBack. When Davis reached the Monteag le Police St ation, the appell ant was in custody and had been provi ded Miranda warning s. Upon questioning by Agent Dav is, the appellant confessed that he had assaul ted Back because he had been drinki ng and smoking mar ijuana. Dav is asked the app ellant if he would provi de a blood sample for a drugscreen. The appel lant again consented. The appell ant was then transported to the Emerald- Hodgson Hos pital in Sewanee where th e blood sample was taken. 25
Several day

s later, Da

vis rev iewed the I- 24 incidents and the murder of Michelle Blake with Agent Danny W ix and Investigator Bouldin. The off icers recal led that the pe rpetrator o f the Bl ake mur der had typeB bloo d, the s ame type possess ed by the appel lant. Agent Wix inquired about obt aining another26 Tenn. Code Ann. § 3 8-6-102 provides that "criminal investigators shall

have full power to issue s ubpoenas for wi tnesses . . . ."

27 The subpoena recei ved bythe appe ll ant was capt ioned "Tennessee Bureau o f Inve stigatio n Su bpo ena " and prov ided , in pertine nt pa rt: You are her eby commanded to summ on John Chapman to per sonall y appea r before t he undersi gned Speci al Agent of t he Tennessee Bureau of Invest igat ion on July 13 th , 19 92 , at 1:00 p m at Grundy Co. Jail , Al tamont , Tennessee and 29 blood sample from the a ppellant. Ag ent Davis responded that he had a blood sample from the appell ant drawn on November 5 at his office. This s ample was sent to Cell mark Diagn ostics for DN A analysi s in the Blake case. No al cohol or drug screen was per

formed on this sample

.
The appellant contends that the trial court erro neously deni ed his motion to suppress the evidence stemm ing from blood samples take n from him on these two separat e occasions. In denying the motion, the tr ial court concluded that "the blood samples provided by the appellant were done so conse nsually an d voluntari ly."

The initial i nquiry

before us is w hether the TBI subpoena issued to the appellant on Jul y 11, 1990, co nstituted a si gnificant int rusion upon int erests protected by

the Fourth Amendment. 26 Fourth Amendment pro tections against unlawful seizures are designed to "prevent arbitrary and oppressive interf erence by officials w ith the priv acy and pers onal securit y of indiv iduals." INS v. D elgado , 466 U.S. 210, 215, 104 S.Ct. 1758, 1762 (1984) (int ernal quotati ons omitted). Therefore, "not all . . . intercourse betwe en policemen and ci tizens i nvolves seizures of persons. Onl y when a n officer, by means of force or show

of authority, has restrained the liberty of a citizen may we conclude that a seizure has occurred. " Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 187 9, n. 16 (1968). Although the appe llant, in the instant case, received a subpoena to appear for further questi oning, we cannot conclude that this amounted t o more than a request to r

espond to policequestioning . First, no sanctions ex ist for failure to comply w ith the req uest in the subpoe na. 27 Moreover, although most people willfrom day t o day hereaft er unt il dischar ged and bri ng all papers, books, re cords, agreements, docu ments and to be swor n and quest ioned by t he und ers igne d Sp ecia l Age nt for th e pu rpos e of g iving a w ritten sta tem ent, deli veri ng afore mentioned i tems and obtai ning e vid ence by said ag ent i n an inves tigation con duc ted b y the T enn ess ee B urea u of In ves tigation perta ining to TBI Fil e 5A-530

. 30 comply w ith a police request, the fact that people do so , and do so w ithout being told they ar

e free not to respon d, does not elimi nate the consensual nature of the response. INS v. D elgado , 466 U.S. at 216, 104 S.Ct. at 1762. Unless the circumstances

of the encounter at i ssue are so i ntimidating as to demonstrate that a reasonableperson wou ld have beli eved he was not free to refuse the officer's req uest, one cannot s ay that the q uestioning r esulted in a det ention under the Fourt h Amendment. Id . Thus, although we concede the questio n is perilously

close, we conclude that t he issuance of a TBI s ubpoena does not, per se , constitute a seizure within the meaning of the Fourth Amendment . However, this consensual encounter may escalate into

a seizure as a consequ ence of poli ce be hav ior , e.g ., t hreateni ng p res enceof se ver al o ffice rs, the d isp lay

of a weapon by the officer, phys ical touchin g of the person, or the use of lang uage or tone of voice i ndicating t hat compliance w ith the officer's request mig ht be compelled. United States v. Mendenhall , 446 U.S. 544, 554 -55, 100 S.Ct. 1870, 1877 (1 980). In the presen t case , Agen t Dav is testified that t he appel lant came to the police station of his ow n free will . In fact, Dav is had prev iously i nformed the appellant of his intent to contact him fo r a subsequent statement, at which time the appellant

was cooper

ative. And, although the ap pellant bears the initial burden of showi ng that there was a v iolation of some co nstitutionall y protected area to trig ger further i nquiry , there is no evidence i ndicating t hat the appellant would have refused the subseq uent interv iew notw ithstanding serviceof the subpoena. See State v. Bur ton , 751 S.W.2d 440 (Tenn. Crim. App. 198 8). Absent any ev idence indicat ing force or coercion on t he part of law enforcement officials, the inof fensive contact, i.e., the questio ning of the appellant at the jail, cannot amount to an unconstitutional seizure. Id

.31 Although we have determined that the appellant's presence at the jail did not constitute a n illegal seizure, we must nex t determine w hether the subseq uent taking of blood samples consti tuted an illeg al search of the ap pellant's per son. The withdraw

al of blood from a subj ect for purposes of serological typingand DNA analysis consti tutes a search within t he constraints of the Fourth Amendment and, therefore, a search warrant is g enerally required. See Schmerber v. California , 384 U.S. 757, 767-72, 86 S.Ct. 1826, 1833-37 (196 6); see also State v. Jac kson , 889 S.W.2d 219, 221 (Tenn. Crim. App . 1993), perm. to appeal denied , (Tenn. 1994). Unless it falls wit hin a specifical ly establ ished and well-delineated exception, a search cond ucted without a warrant is per se unreasonable. Schneckloth v . Bustamonte , 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043 (1973) (c itations omitt ed). "One of the spec ifically established exceptions to both a war rant and probabl e cause is a s earch that is conducted pursua nt to a voluntari ly gi ven consent." Id . at 219, 93 S.Ct. at 2043, 2044 (citations omitted); see also State v. Bar

tram , 925 S.W.2d 227, 230 (Tenn. 1996). The bur den of proof rests upon t he State to show , by a prepon derance of the ev idence, that the consent to a warrantless search wa s give n freely and v oluntarily

. Schneckloth , 412 U.S. at 248- 49, 93 S.Ct. at 2 059; Bumper v. N orth Caroli na , 391 U.S. 543, 548, 88 S.Ct. 1788, 1792 (1968); Bartram , 925 S.W.2d at 230. The question of whether the appellant voluntarily consented to th e search is a question of fact which focuses

upon the totalit

y of the circumstances. Schneckloth , 412 U.S. at 248-249, 93 S.Ct. at 2059.

In the present case, the trial court accredited Agent D avis' testimony that the appellant v

oluntarily consented to providing both blood samples . There was no indication that the appellant 's acquies cence to the "search" was the result of force or coercion. In fact, the defense prese nted no proof to ref ute Agent Davis' testimony. A trial court's finding that a search is consen sual is presumed correct28 The appell ant' s tr ial began on March 21, 1994, con cludi ng on Apri l 2, 1994, ov er one year pri or t o our supr eme court's o pini on in D yle , 899 S. W .2d at612, whi ch was rel eased on May 15, 1 995 . How eve r, D yle is ap pli cable b oth t o those case s on appeal when the o pini on was relea sed and to thos e ca ses tried af ter tha t date

. Id

. 32 and is conclus ive on appeal unless the ev idence preponderates against the ruling. State v. Woods , 806 S.W.2d 205, 208 (Tenn. Crim. App . 1990), perm. to appeal denied , (Tenn. 1991), cert.denied , 502 U.S. 1079, 112 S.Ct. 9 86 (1992); see also State v. Do ugherty , 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996); State v. Tuttle , 914 S.W.2d 926, 931 (Tenn. Crim. App . 1995). We conclude that the evidence i n the record s upports the tr ial court' s finding. Thi s issue is without merit.

V. Instruction on Identity
The appellant contends that the trial court committed reversi ble error by failing to i nstruct the j ury on the i ssue of identity as provi ded in State v. Dyle , 899 S.W.2d 607 (Tenn. 1995). The appellant concedes that, becaus e his trial occurred pr ior to the Dyle opinion, no spec ial instr uction rega rding ident ity was requested. 28 In Dyle , our supreme court held that t he identity instructi on, promulgated w ithin that deci sion, must be g iven w hen identificati on is a materi al issue. Dyle , 899 S.W.2d at 612. "Identity w ill be a mater ial issue w hen the defendant puts it at i ssue or the eyewitness testimony i s uncorrobor ated by circumstanti al evidence." Id . at note 4. In our opinion, th e trial cour t's failure to instruct on i dentity in the present cas e was harml ess. The proof reg arding identification was more than su fficient. The descriptions of the appe llant and his vehicle by

numerous wi tnesses we re general ly consi stent. Fiber s from the victim's clothing were deter mined to be consi stent wit h fibers from the car peting of the appellant 's truck. Most notably, the results of the DNA prof ile analysis reveal that the appellant's DNA matche d the DNA obtained from the semen stain on the vict im's body. It was w ithin the jur y's prer ogative to assess the c redibilit y29 Cooper test if ied t hat, unli ke routi ne foren sic t esti ng, ser ologi cal t esti ng had not been perfor med on the testsamples. Theref ore, Cell mark was not inf ormed as to whet her t he samples were bl ood, ket chup, et c.

30 Co ope r testified that "the re w as o ne e rron eou s m atch m ade out o f thos e 50 sam ples ." 33 of those who testified. Any error created by the fail ure to prov ide the Dyle instruction was harml ess. State v . Williams , No. 01C01-950 5-CR-00146 (Tenn. Crim. App. at Jackson, Nov. 12, 1996). Th is contention of the a ppellant is without mer it.

VI. Scope of Cross-Examination
Next, the ap pellant makes tw o arguments regarding the examinati on of the DNA ex perts from Cell mark Diagn ostics. Jul ie Cooper, a s enior molecula r biologist with Cellmark, testified for the Stat e. In response to defe nse counsel's questions on cross-examination, Coope r testified that, in 1988, Cellmark responded to an i nvitation extended by the Californi a Association of Crime Lab Directors to bid for serv ices to complet e forensic DN A analysi s for the State of California. Prior to being awarded the contract, Cellma rk was required to submit analysis on unknown controlled random sam ples. 29 During further crossexamination, defe nse counsel questioned Coope r concerning alleged errors made by Cellmark on the sample te sts. 30 On re-dir ect, Cooper testified that forty percent of Cell mark's cases originat e from the State of Cali fornia. She further explained th at, in rega rd to the 1988 test, "California was inter

ested in seeing how wel l Cellmark , as a laborato ry, function[ ed] on their test." The appellant argues this

re-direc t testimony was err

or. He contend s that these statements constitute inadmissible hea rsay, were made outside the scope of crossexamination, and are self-ser ving statements offered in an att empt to bolster the credibility of Cellmark.34 "The right to cross-examination is fun damental, thus, the denial of this right to apprise the accused a fair trial is 'constitution al error of the first magnitude.'" State v. He nning , No. 02C01-950 4-CC-00115 (Tenn. Crim. App. at Jackson , Jan. 9, 1997) (qu oting State v. Hill , 598 S. W.2d 815, 819 (Tenn. C rim. App. 1980)). Yet, the propri ety, scope, manner and control of testimony and other evidence, including the scope of cross and re-direct examination, is within the sound discretion of the trial court, which will not be reversed absent an abuse of that discreti on. See State v. Barnard , 899 S. W.2d 617, 624 (Tenn. C rim. App.), perm. to appeal deni ed , (Tenn . 1994) (citing State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978)) ; State v. El rod , 721 S.W.2d 820, 823 (Tenn. Crim. App

. 1986); Tenn. R. Ev id. 611(a).
The scope of cross- examination ex tends to "any mat

ter relevant to any issue in the case, includi ng credibi lity." Tenn. R.Evid. 6 11(b). The scopeof redirect examination is generally limited to matters brought out during crossexamination, however , new matter s may be intr

oduced. Bouchard v. State , 554 S.W.2d 654, 658-659 (Tenn, Crim. App. 1977); Lundy v. State , 521 S.W.2d 591, 594 (Ten n. Cri m. Ap p. 19 74). It is wit hin t he tr ial co urt' s disc retio n to a llow a party, on r

edirect examination, to suppl y testimony omitted by ov

ersight, or to clarify t estimony g iven on dir ect examinati on, or, whe re the facts thus developed35

are not inconsistent with his previous answers to ask a witness to expand his testimony. Barnard , 899 S.W.2d at 624 (citing 98 C.J.S. Witnesses § 419 (1955)); see also State v. Owen , No. 1209 (Tenn. C rim. App. at Knox ville, May 26, 1989), perm. to appeal deni ed , (Tenn. Oct. 2, 1989) (citing C. T OR CIA , W HARTON ' S C RIMINAL E VIDE NCE § 416 (4th ed.) ). We find no abuse of discretion by the trial court in permitting the introduction of Cooper’s testimony on redirect examination. This issue i s without merit.
Next, the appellant challenges the trial court's ruling which limited his
cross-examination of State's witness, Dr. Lisa F orman, an exper t in the field of DNA analysis. Forman testified that, in the present case, a Southern Appalachian datab ase was not used in determining a frequen cy ratio. Moreover, in response to the challeng e of "genetic inb reeding" in the Appalachian ar ea, she testified that

she doubted the veracity of the stereoty pe associated w ith the region and th at, although "i t would not be inappropriate to screen peop le from this area ", she d oes not believe th at inclu sion of such a da tabase would chan ge the results of Cellmark's calculations . The appellant as serts that anot her Cellmark employee, Dr. Charlotte W ord, testified as an expert witness in an Ohio courtroom that C ellmark did not employ an Ap palachian databaseand, therefore, she would bevery

concerned about t he reliabil ity of any projections

using Cellmark's

existin g databases. He argues t hat the trial court committed reversi ble error by not permit ting him to i mpeach Dr. For man with the testimony of her co-employee, Dr. Word. In support of hi s position, t he appellant conte nds that "[Cellmar k] was thewitness and that the only

authority

Forman or Coo per had was to s peak about what the lab coll ectively

produced."
Impeachment of an exper t witness is governed, general ly, by Tenn.R.Evid. 616 (bias or prejudice), Tenn.R.Evid. 618 (learned t reatise), an d Tenn.R.Evid. 613 (prior inconsistent statement). However, the app ellant31 The Confrontat ion Cl ause onl y guar antees " an opport unity f or eff ecti ve crossexaminati on, notcross-examinat ion t hat i s effect ive in what ever way , and t o whateve r ext ent, the def ens e m ight wis h." Delaware v . Fenst erer , 474 U. S. 18, 20, 106 S.Ct. 292, 294 (1985) (ci tat ion om itt ed).

32 T o b e q ua lified as an ex pe rt, o ne m us t be pa rtic ula rly sk illed , lea rn ed , or ex pe rie nc ed in a sc ienc e, art, tra de, b usin ess , profe ssio n or v oca tion. Otis v . Cambridge Mut. Fir e Ins. Co. , 850 S.W .2d 439 (Te nn. 1992). 36 attempts to creat e a right of impeachment based upon al leged conflic ting positions of experts within the scope of their common employmen t. This argument is misplaced. Again, the trial court has th e discretion to impose reasonable li mits on cross -examinati on and, we w ill only find error w hen that discretion has been abused. See Barnard , 899 S.W.2d at 624. In determining whether limitations on cross-examination of government witnesses are so severe as to amount to a violation of the Confrontation Clau se, the reviewing court must ascertain "w hether the jur y was already i n possession of su fficient information to make a discri minating appr aisal of the part icular w itness' poss ible motives for testifyingfalsely i n favor of the government." 31 United States v . Christi an , 786 F.2d 203, 213 (6th Cir. 1986) (citation omitted); see also United States v. Harris , No. 95-4356 (6th Cir. July 1, 1997). From the fa cts before us, we find no abu se of discretion or

infringement of the appellant's r ight to confron tation. The proffered stat ements of the n on-testifying witness, Dr. Wo rd, were clearly inadmissible hearsay. M oreover, t he expert, i n this case, w as Dr. For man, not Cellmark D iagnostic. A business en tity cannot be qualified as

an expert, rather an indivi dual may be q ualified as an ex pert through his or her employment w ith that enti ty. 32 See Tenn.R.Evi d. 702. This is sue is w ithout merit.

VII. Sentencing

In hi s fin al iss ue, t he ap pell ant a llege s tha t the trial cour t erre d by imposing the maximum sentences for his conv ictions for ag gravated kidnapping and aggrav

ated sexual battery and by orderi ng that all three sentences be37

serve d con secu tivel y.

Rev iew , by

thi s co urt , of t he l eng th, r ang e, or mann er o f ser

vi ce of a sentence is de novo

with a pr

esumption that the de termination made by the trial court is correct. Tenn. Code Ann. § 40 -35-401(d)(1990). This presum ption only applies, however, if the record demonst rates that the trial court properly considered relevant sent encing pri nciples. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In makin g our review, this court must consider the evidence heard at trial and at sentencing , the presentencereport, the ar guments of counsel, the nature and charac

teristics of the offense, any miti gating and enhancement factors, the appell ant's statements, and the appellant' s potential for r ehabilitation. Tenn. Code Ann. §§ 40- 35-102, -103(5) , -210(b) ( 1990); see also State v. Byrd , 861 S.W .2d 377 , 379 (T enn. Crim . App. 1 993) (cit ing Ashby , 923 S.W.2d at 168). The burden i s on the appellant to show that the sentence i mposed was improper. Sente ncing Commis sion Comments, Tenn. Code Ann. § 40-35- 401(d).

A. Enhancement and Mitig ating Fact ors

At th e con clus ion o f th e sen tenc ing he arin g, the trial cour t fo und five enhancement factors and three non-statut ory miti gating factor s applicable and imposed the maxi mum twelve year sent ences for each conv iction. The enhancing factors fo und are as follows:
(a) Tenn. Code Ann . § 40-35-114(5 ) - The appell ant treated the victim with exc epti ona l crue lty; (b) Tenn. Code Ann . § 40-35-114(6 ) - The personal injuries inflicted upon the vic

tim were p articularl y great ; (c) Tenn. Code Ann. § 40-35 -114(7) - the offense involved a victim and was commit

ted to grati fy the appellant ’s desire for pleasure or excitement;38 (d) Tenn. Code Ann . § 40-35-114(9 ) - The appella nt possessed and employed a dead ly weapon during t he commission of the offense; and (e) Tenn Code Ann. § 40-35-114(10) - The appellant h ad no hesi tati on ab out commi tti ng a cri me w hen t he r isk

to hu man l ife was hig h. The trial court applied all five fact ors to both offe nses.
The followingmitigatingfactors wer e found: Tenn. Code Ann. § 4 0-35-113(13): 1. The appellant di d not have a s ignificant hi story of cr iminal convicti ons at the time of the present offenses; 2. The appellant had obligations to his chil d; and 3. The appellant s erved in t he National Guar d.
The appellant contends that any factor

involv ing bodily

injury is not applicable to the aggrav ated kidnapping convicti on since that el ement was necessarily

included w ithin the offense. Addi tionally , he argues t hat factor (7) also is not ap plicable to t he aggrav ated kidnapping convicti on. The State concedes that fa ctor (7), committed to satisfy the ap pellant's desire for pleasure or excit ement, is inappl icable to eit her offense. We agree.
Initially , we note that

enhancement factors cannot be elements of the offense charged. Tenn. C ode Ann. § 40-35-11 4. The trial court applied factor (6), that the victim's

injuries were part icularly great, to t he appellant's convicti on for aggrav

ated kidnapping and aggrav ated sexual battery. The appellant now argues that t he court erred in applyi ng this factor

. See State v. Nix , No. 03C01- 9406-CR-00211(Tenn. Crim. App. at Knoxvi lle, Nov . 21, 1995); State v. Nu nley , No. 01C01-9309- CC-00316 (Tenn. Crim. App. at Nashvil le, Feb. 2, 1995) , perm. to appeal denied concu rring in results only , (Tenn. May 8, 1995). Ag gravated kidnapping, in the present case, requi res that the defendant committed the act of "false imprisonment, as defined in §39- 13-302, wi th the intent to i nflict seriou s33 See Sta te v . Po ole , 945 S.W .2d 93 (Ten n. 1997).
34 Our supreme court hel d, i n Jones , 883 S. W .2d at602-603, thatenhancement fact or (10) is not inh eren t in offe nse s wh ere s eriou s bo dily injury is an e lem ent o f the o ffen se c harg ed. Fa ctor (1 0) is a ppro priate whe re the con duc t of the pers on h as c aus ed o r incre ase d risk either to human lif e in general or t o the v ict im in parti cular and ri sk to human li fe i s not an element of the offe nse . Stat e v. Fox , No. 03C01-9503-CR-00061 ( Tenn. Cri m. App. at Knoxvil le, June 21, 1996) (ci tat ions omit ted) . W e conclu de thatstabbi ng the v ict im m ult ipl e ti mes, result ing i n her deat h, and att empting t o str angle her creat ed a ri sk above and bey ond thatnecessari ly inher ent i n the cr im es of a gg ra va ted kid na pp ing an d a gg ra va ted se xu al b atte ry. 39 bodily injury. . . ." Tenn. Code Ann. § 39-13-304 . "Proof of serious bo dily injury will a lways

constitute pr

oof of particularl y great injury ." State v. Jone s , 883 S.W.2d 597, 602 (Tenn. 1994). Thus, factor (6) may not be used to enhance t he appellant's s entence for agg ravated ki dnapping. H owever , aggrav ated sexual battery requires that the defend ant made unlawful sexual conta ct with the victim and caus ed on ly bodily injury to the vic

tim. Tenn. Code Ann. § 39-13-504 (a )(2). If the proof supports a finding that t he personal inj uries were particul arly g reat, factor (6) is

applicable to

sexual batt ery cases . See State v. Ki ssinger , 922 S.W.2d 482, 488 (Tenn. 1996). The evi dence establis hes that the physical injuries t o the vict im were par ticularly great. The tr ial court pr operly appl ied factor (6) in enhancing the appellant's s entence for agg ravated sex ual battery

.
Accordingl y, upon de novo review, we conclude that the trial court properly applied factors (5), the appel lant treated the victim w ith excepti onal cruelty, Tenn. Code Ann. § 40- 35-114(5) 33 ; (9), the appel lant possessed and employed a deadl y weapon during the commission of the offense, Tenn. C ode Ann. § 40-35-114( 9); and (10), the appellant had no hesitation abou t committing a crime w hen the risk to human life was high, Tenn. Co de Ann. § 40-35- 114(10), 34 to both offenses. However, factor (6) is onl y applicab le to the convicti on for aggra

vated sex ual battery

.

Additionally , upon de novo review , we find factor

(1), that thedefendant has a previ ous history

of criminal convictions or crimina l behavior , Tenn. Code40

Ann. § 40-35-114( 1), and factor ( 8), that the defendant ha s a previ ous history of unwilli ngness to compl y wi th the condition s of a sentence inv olving release in t he community, Tenn. C ode Ann. § 40-35-11 4(8), applicable to both offenses. The appellant was convic

ted of drivi ng under the i nfluence in 1988. H e admitted to the use of marijuana, although he deni ed he had a drug dependency. See State v. Massey , 757 S.W.2d 350, 352 (Tenn. Crim. App . 1988). See, e. g. , Stat e v. Parsons , No. 01C01-960 1-CC-00043 (Tenn. Crim. App. at Nashvi lle, Jan. 30, 1997) (cri minal behavi or based upon use of marijuana). A fter the commissi on of the instant offenses but prior to sen tencing, the appellant committe d and was convicted of drivingunder the influence, drivi ng on a revoked license, and possession of marijuana. The appell ant admitted to cr iminal behav ior in the assault of Pamela Bac k. State v. Marshall , 870 S. W.2d 532, 542 (Tenn. C rim. App. 1993). This court has prev iously hel d that a sentenci ng court "ca n consider criminal convictions or any other criminal behavior which occ urred prior to the sentencing hea ring as constituti ng a prev ious histor y of crimina l convic

tions or criminal behav ior, reg ardless of w hether the conv ictions or behavior occurred before or after the c riminal conduc t under conside ration." State v. Poole , No. 02C01-9506-CC -00178 (Tenn. Cr im. App. at Jack son, Jan. 31, 1996) , affirmed by , 945 S. W .2d at 9 3 (Tenn . May 12, 19 97) (citin g State v. W aters , No. 01C01- 9106-CR-00158 (Tenn. Crim. Ap p. at Nashv ille, Feb. 20, 1992), perm. to appeal denied , (Tenn. June 22, 1992 )). The ev idence supports application of factor (1). Consequently, implicit within our finding that the appe llant has a previous history of criminal conv ictions and beha vior is our rejecti on of the trial court's finding , as a mitigatin g factor, that the appellant does not have a si gnificant history of criminal convictions . Moreover, the recor d indicates th at the appellant r eceived suspended sentences

for drivi ng under the i nfluence and driv ing on rev oked licen se co nvict ions occu rring a fte r the insta nt of fen ses. Appr oxima tely f ive months after being placed on probat ion, the appella nt was char ged wit h criminal attempt to commit ag gravated burglary . Subsequentl y, his pr obation was41

revoked. Accordingl y, factor ( 8) is also applicable. See State v. Ha yes , 899 S.W .2d 175 (Tenn. Crim. App . 1995).

In reference to the trial cour t’s finding of the non enumerated miti gating factor (13), “

the appellant’s

obligatio n to his chil d,” we hol d this factor inapplicable as we are unable to conclude that it is “consistent with the purpose of this chapter.”

Tenn. Code Ann. § 40- 35-113(13). We find no nexus bet ween paternityship and mitigation of p unishment. Moreover, support of a dependent is by law an obligati on and a duty. See Tenn. Code Ann. § 34- 11-102(a) (1 996). We f ind it inappr

opriate to rew

ard someone for that w hich they ar e already u nder a moral and leg al obligat ion to perform. We agree w ith the trial court’s findi ng that the appellant ’s serv ice in the N ational Guard i s a proper mit igating factor. In sum, we find enhanc ing factors ( 1), (5), ( 8), (9), and (10) and one miti gating factor applicable to bo th offense s. Regarding the aggravated sexual battery conviction, we find the additional enh ancing factor that the injuries to th e victim were part icularly

great, 40- 35-114(6), appl icable.

B. Lengt h of Sentence
The appellant was convic ted, as a rang e I offender, of aggr avated kidnapping and aggrav ated sexual battery, bot h class B feloni es. See Tenn. Code Ann. § 39-13- 304(b)(1); Tenn. Code Ann. § 39- 13-504(b). Accordingly , he was subjec

t to a sentence "not

less than eig ht nor more than t welve years." Tenn. Code Ann. § 40- 35-112(a)(2) (1990). The tr ial court i mposed the maximum sentence, twelve years, for each offense. The appellant now contends that, con sidering the trial court's misappl ication of enhancement factors, the cour

t erred in i mposing the max imum sentence w ithin the rang e to his two convictions

.42 Regardingthe length of a s entence, the pres umptive sentence shall be the minimum sentence in the range if there are no enha ncement or mitig ating factors. Tenn. Code A nn. § 40-35-210( c). Thus, the pr esumptive sen tence for the instant offenses i s eight years. However, if ther e are both enhancement factors and mitigating facto rs, the court must start at the minim um sentence in the range, enhance the sentence w ithin the rang e as appropriate for the enhancement factors, and then reduce the s entence wit hin the rangeas appropriate for t he mitigati ng factors. Tenn. Code Ann. §40-35- 210(e).
"The weight to be afforded mitigat ing and enhancement factors deriv

es from balancing r

elative deg rees of culpabil ity w ithin the total ity of the circumstances

of the case involved." State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986). See also State v. Marshall , 870 S. W.2d 532, 541 (Tenn. C rim. App. 1993). There i s no particul ar value "v is-a-v is how many years sh ould be added or subtrac

ted based on the presence of any of thesefactors." Moss , 727 S.W.2d at 238. Thus, with the purposes of the Sentenci ng Act in mi nd, the sentencing court retains the discreti on in determini ng the wei ght afforded to the applicable factor

s. Id . at 273. Upon de novo review , with full considerati on of the applicable enhancers and si ngle mitig ator, the pres umptive sentence at the mini mum of t he ra nge, and t he na ture and c ircum stan ces o f th ese o ff ense s, we conclude that the maximum sentences of twelve years are justified for bot h offenses. This issue is wit hout merit.

C. Consecu tive Sen tences
Finally, the appellant contends tha t the trial court erred in ordering his43

sentences to be s erved conse cutively . At the concl usion of the sentenci ng hearing, the court determine d that, based upon theappellant's pe nding charg es for the murder of Vic ky Sue Metzger and the assault of Pamela Sue Back, the appellant qual ified as a "danger ous offender," Tenn. Code Ann. § 40-35- 115(b)(4) ( 1990), and imposed consecutive sentences. The appel lant contends that the trial court’s co nsideration of the pending cri minal charg es for purposes of imposing consecutive sentences was error.

If a defend ant is convicted of more than o ne criminal offen se, the court may order t he sentences to r un consecutively prov ided that the defendant meets at least one of the c riteria enumer ated in Tenn. Code Ann . § 40-35-115. In the present case, t he trial cour t imposed consecu tive sentences based upon the appellant's c lassificatio n as a dangerou s offender. Thus, we must determine whether the appellant qual ifies as a "dang erous offender." Tenn. CodeAnn. § 40-35-115(b)(4).

In Gray v . State , 538 S.W .2d 391, 393 (Tenn . 1976), our supreme court held that "[a] defendant may be classified as a dangerous offender if the crimes for which he is

convicted

indicate that he has littl e or no rega rd for human life, and no hesitation abo ut committing a crime in which the risk to human life is high." (emphas is added). See also Tenn. Code Ann. § 40- 35-115(b)(4) ; State v. Wilkerson , 905 S.W.2d 933, 937 (Tenn. 1995). Ag ain, the tria l court rel ied exclusiv ely upon the c harges pendin g against the appellant i n classify ing him as a "dangerous offender." The mere fact that a cha rge is pend ing, w ithout more, furnishes neither evidence of criminal conduct nor proof tha t the defenda nt is a dangerous offender. Thus , considerati on of the pending mur der indictment and the related charges for purpose s of consecutive sentencing was improper. Rather, the focus remains upon the i nherently d angerous nature of the instant offenses

. Gray , 538 S.W.2d at 393.44 Notwithstanding the tr ial court' s improper co nsideration of the pending charges, upon de novo review , we concl ude that the appell ant is a "dange rous offender." See Gray , 538 S.W.2d at 393. The appellant forci bly abducted the victim from her employment, transp orting her into the adjoining county. He committed a sex ual battery upon his vi ctim. The medical report indi cates evidence of li gature str angulation i n addition to seven stab wounds to her tor so, resulting in death. Fr

om these facts, it is obvious that the appellan t’s “behav ior indicat es little or no regard for hum an life and no h esitati on abo ut comm itting a crime in which the risk to human life is high.” Tenn. Code Ann. 40-35-115(b)(4).

Howeve r, this cl assification al one will not justify consecutive sentencing. Wilkerson , 905 S. W.2d at 938. "T he proof must al so est ablis h that t he ter ms imposed are reasonably related to the s everity of the offenses committed and
are necessary

in order to protect the publ ic from further cr iminal acts by the offender ." Id . In the present case, we find that th e aggregate sentences are reasonably related to the severity of the of fenses and are nece ssary to protect the public from furth er criminal acts by t he appellant. Accordingly , the appellant's s entences are or dered to run con secutivel y.

VIII. Conclusion
For the foregoi ng reasons, we affirm the judg ment of convicti ons and the sentences imposed for the offenses of first deg ree murder, ag gravated kidn app ing, a nd ag gravat ed se xual b atte ry.45 ____________________________________ DAVID G. HA YES, Judge

CONCUR:

______________________________ GARY R. W ADE, Jud ge

______________________________ CURW OOD W ITT, Judge