# FILED July 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9801-CC-00026 Appellee, ) ) MONTGOMERY COUNTY VS. ) ) HON. JOHN H. GASAWAY, TIMOTHY ACKLIN, ) JUDGE ) Appellant. ) (Aggravated Rape; ) Aggravated Robbery)

FOR THE APPELLANT : MICHAEL R. JONES District Public Defender RUSSEL A. CHURCH Assistant District P ublic Defender 109 S. Second St. Clarksville, TN 37040 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter KIM R. HELPER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN WESLEY CARNEY, JR. District Attorney General ARTHUR F. BIEBER Assistant

District Attorney

General 204 Franklin St., Suite 200 Clarksville, TN 37040-3420

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 O P I N I O N

The defendant, Timothy Acklin, was convicted by a Montgomery County jury of aggravated rape and a ggra vated robbery. The trial court sentenced him as a Range I standard offender to twenty- one years for

aggravatedrape and nine years foraggravated robbery
. The sentences were ordered to run consecutively. In this appeal as of right, the defendant raises two issues:

1. whether he is entitle d to a new

trial in order to obtain a DNA expert; and 2. whether the trial c ourt err ed in ordering his sentenc es to run c onsecut ively. Upon our review of the r ecord, we AFFIRM the judgment of the trial cour t.

FACTS

The victim arrived home after dark on J anuary 23, 1995. She entered the backof her apartment and then went out the front door to check he r mai l. She heard footste ps comin g down her wal k and saw a man she did not know coming at her. She screamed and tried to retur n into her home, but the man grabbed her. He then forced her inside and pushed her against a wall. H e slapped her face, knocking off her eyeglasses.

The attacker demanded money and her ATM card. The victim told him she had only $10 and no ATM card. The at tacker said, "I can 't believe I came to Clarksvill e for twenty

f - - - ing dollars ," and slammed her into a wall . He then pushed her onto the floor and straddled her waist with his knees. He pulled out a pistol, pointed it at her head, and told her, "i t was [her] night to di e, bitch." The victim pled for her life, a nd the attacker hit her in the head and face with the gun.

At some point, the attacker said, "you s aw my f - - - ing

face," and put on, in the victim's words , a "black nylon loo ki ng thing" as a mask. He a lso pulled the1 Defendant described himself to policeas six feet, two inches tall; one hundred eighty pounds; and twenty-one years old. 3 victim's overcoat (which s he was wearing) over her head and turned off th e floor lamp. The attacker

then pulled down the vi ctim's pants and underwear and raped her.
Subseque ntly, the attacker pulled the victim up and told her to get the money. He pushed the gun into her back a nd followed her into the kitchen. She reached her purse, to ok out the money and handed it to him. He th en pulled her into the bedroom, put the gun to her head, and told her t o lay on the floor and count to one hundred. As she did so, he left.

After the victim finished counti ng, she called her best friend, w ho called 911. The victim was taken to the local hospital wher e vaginal swabs w

ere collected.

The victim told the pol ice that h er attacker wore a camouflage field jacket, blackjeans and sneakers. She described him as a tall Afri can-American in his midtwenties, with big eyes, no facial hair, and medium build. She also told the police about her attacker's mask and g un.

Four days later, Officer Rodd Watte rs was o n patrol in Clarksv ille and saw defendant, who fit the attacker's physical descrip tion 1 and was wearing a camouflage field jacket and blue jeans. O fficer Watters stopped defendant and asked him for identification. Defendant said he did not have any identification but provided a nearby addre ss. Watte rs frisked defendant and found a pistol an d a nylon mesh rag commonly worn on the head.

At trial, t he victim testified she coul d not identify her attacker because her glasseshad been knocked off during the attack. When shown the pistol and mesh rag taken from defendant, she testified that she could not be certain they were the4

ones her attacker

used. Sh e did tes

tify that defendant’s camouflage field jack et was the type worn by her

attacker.

Dr. William Driver Shippen, Jr. examined the victim after her attack and found tender areas to her scalp and bruising to her nose.The victim also had brui sing on her left hand and lacerations on the insi de of her lip. Dr. Shippen found sperm in the victim's vag inal secretions.
Margaret Bash testified as an expert in the field ofanalysis and comparison of DNA samples. She tested the D NA contained in the sperm sample obtained from the victim's vaginal secretions and the DNA contained in a blood sample taken from defendant. Accordi ng t o her testing procedures,these samples matched. She testified that only one in ninety -eight million African-

Amer i cans would have this particular DNA profile.

I. DNA EXPERT

In his first issue, defendant cont ends that he should have been granted a new trial based on this Cour t's post-trial holding

that a defendantmay be entitled to the appointmentof a DNA expert upon a showing of particul arized need. See State
v. James W. Jacobs , No. 01C01-960 1-CC-00048, Mon tgo mery County (Tenn. Crim

. App. filed September 18, 1997, at Nashville). This Court's decision in Jacobs was an extension of our

Supreme Court's decision in State v. Barnett , 909 S.W.2d 423 (Tenn. 1995). In Barnett , our Supreme Court determined that an indigent defendant relying on a psychiatric defense w as entitled to the assistanc e of a state-funded psychiatric expert upon a threshold sho wing of "parti cularized n eed." Id. at 431. The Court stated,

To establish part icularized need, the defendant must show that a psychiatric expert is necessary to pro te ct his right to a fair trial . Unsuppor ted assertions that a psychiatric expert is necessary to counter the State's proof ar e not sufficient. The defenda nt must dem onstra te by reference to the facts an d5 circumstances

of his particular case that appoi ntment of a psychiatric expert is necessary to insure a fair trial. Whether or not a defen dan t has made the threshold showing is to be determined on a case-by-c ase ba sis, a nd in determining whether a par ticularized need has been established, a trial court should consider all facts and circumstances known to it at the time the motionfor expert assistance is made. Id.

In Jacobs , after de termini ng that the reas oning o f Barnettshould extend to an indigent defendan t 's request for a DNA ex pert, this Court consider ed the defendant's contention t hat, because the St ate intended to introduce DNA evidence, he required his own DNA expert to verify the results. Finding that this assertion did not demonstrate the required particularized need, this Court held that the trial court did not abuse its discretion i n denying the defendant's request. See also State v. Quinton Cage , No. 01C01-9605-CC-00179, Montgomery County ( Tenn. Crim. App. filed January 26,1999, at Nashv ille) (defendant who r equested DNA expert to counter State's expert on gro unds that he would othe rw ise not be able to present a meaningful defense did not satisfy the requireme nt of particularized need).

In the instant case, there was no pre-trial request for a DNA expert. T h e issue of whether defendant should be provided fun ds to hire a DNA expert was not raised until the motion for new trial. A motion for new trial is generally m ade to give the trial court an opportunity to correct errors t hat occurred during the t rial. Ricks
v. State , 882 S.W.2d 387, 393 (Tenn. Cr im. App. 1994). Here defendant w as asking the trial cour

t to correct the failure to fil e a pre-trial motion.

Defendant's effort was akin to urging the tr ial court to grant a new trial on the basis of newly discover ed evidence. New tr

ials may be granted on s uch grounds when a defendant establishes reasonabl e diligence in attempting to discover the evidence; the materiality of the evidence; and that the evidence would likely change the result of the trial. State v. Caldwell , 977 S.W.2d 110, 116 (Tenn. Crim. App. 1997). Here, however, defendant mad e n o showing that he had a "par ticularizedneed" to hire a DNA expert . Absent such a showing , defendant is not entitled to

state funds for such an expert. Accor dingly, the trial cour

t properly denied defendant's motion for new trial
.
This issue is without merit.

II. SENTENCING

Defendant next c h allenges the trial cour t's decision to run his sentences consecu tively. However, the rec ord on appeal does not contain a tr anscript of the sentencing hearing. Because th e record do es not contain a transcript of the proceedings relevant to the issue pr esented for review, this Court is precluded from considering the i ssue . State v. Ballard , 855 S.W.2d 557, 56 1 (Tenn. 1993). Accordingly, this

issue is waived.
The judgment of the trial court is AFFIRMED
.

________________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ JOSEPH M. TIPTON, JUDG E

______________________________ ALAN E. GLENN, JUDGE

6