FILED

January 26, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MAY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605-CC-00179

)

Appellee, )

)

) MONTGOM ERY COUNTY

VS. )

) HON. JAMES E. WALTON

QUINTON CAGE, ) JUDGE

)

Appellant. ) (Direct Appeal - Aggravated Rape-

) Especially Aggravated Kidnapping)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN E. HERBISON JOHN KNOX WALKUP

2016 Eighth Avenue South Attorney General and Reporter

Nashville, TN 37204

(On Appeal) EUGENE J. HONEA

Assistant Attorney General

COLLIER GOODLETT, JR. 450 James Robertson Parkway

Assistant Public Defender Nashville, TN 37243-0493

109 S. Second Street

Clarksville, TN 37040 JOHN CARNEY

(At Trial) District Attorney General

ARTHUR BEIBER

Assistant District Attorney

204 Franklin Street

Clarksville, TN 37040

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On Decem ber 2, 1994, a Montgomery County jury convicted Appellant

Quinton Cage of aggravated rape, especially aggravated kidnapping, aggravated

robbery, attempted aggravated robbery, and reckless endangerment with a

deadly weapon. After a sentencing hearing on January 13, 1995, Appellant

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

especially aggravated kidnapping, eight years for aggravated robbery, three

years for attempted aggravated robbery, and two years for reckless

endangerment. The sentences for especially aggravated kidnapping, aggravated

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

consecutively and the sentence for attempted aggravated robbery was ordered

to run concurrently with the other sentences. Appellant challenges both his

convictions and his sentences, raising the following issues:

1) whether the charges against Appellant should have been dismissed or

remanded to the juvenile court for failure to give timely written notice of the

transfer hearing;

2) whether the territorial jurisdiction of the trial court was established at the

acceptance hearing;

3) whether the indictment was sufficient to charge Appellant with attempted

aggravated robbery;

4) whether the evidence was sufficient to convict Appellant of especially

aggravated kidnapping and aggravated robbery;

5) whether the trial court properly denied Appellant’s pre-trial motion for

expert assistance;

6) whether the trial court properly quashed a defense subpoena for

materials in the possession of the State’s expert;

7) whether the trial court properly admitted DNA evidence;

8) whether Appellant’s sentences are excessive; and

9) whether the trial court properly imposed consecutive sentences.

After a review of the record, we affirm the judgment of the trial court.
-3-

I. FACTS

Rajohnah Stephanie Stuard testified that on April 1, 1994, she went to a

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

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

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

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

repeated his demand.

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

told her to drive to her bank and told her to pull up to the last stall. When Stuard

pulled up to the stall, Appellant told her to write a check for $500. When Stuard

began looking in her purse for her checkbook, Appellant stated, “Don’t fuck with

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

checkbook and wrote out the check. Stuard wrote the word “Help” at the bottom

of the check so that someone in the bank would assist her. 

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

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

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

she came to a barbeque pit in back of a white building. Stuard testified that

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

Appellant told her to “shut up” and stated that he was not going to kill her, but he

was going to shoot her in the leg. 
-4-

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

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

undress. Stuard begged Appellant not to rape her, but Appellant repeated his

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

her vagina with his penis and then ejaculated. After Appellant had finished with

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

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

of the car. Appellant then told her to give him her money and her purse. Stuard

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

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

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

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

took Stuard to the hospital. 

Stuard testified that Appellant held a gun in his hand throughout the entire

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

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

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

“[I]f he had not had the gun, he would have had a fight on his hands. I figure

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

at you.” 

Dwayne Turley testified that at approximately 4:45 p.m. on April 1, 1994,

Appellant came to Turley’s residence in a white Ford Explorer. Turley

subsequently got into the vehicle and he and Appellant eventually ended up on

Interstate 24 in Kentucky. Turley also testified that he owned the gun that
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Appellant had in his possession on April 1, 1994. Turley testified that the gun

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

unable to fix it. 

Sergeant Robert Ott of the Montgomery County Sheriff’s Department

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

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

Ott saw Stuard’s vehicle on Interstate 24 headed west towards St. Louis. Ott

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

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

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

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

that Appellant passed between other vehicles several times. Appellant eventually

ran into a guardrail and “flipped” Stuard’s vehicle, damaging it beyond repair.

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

by Turley. 

Teresa Worley testified that during her shift as a nurse at Clarksville

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

performing a “rape kit” on Stuard. Doctor Kent testified that during the pelvic

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

vaginal vault that was consistent with semen.” Doctor Kent also went to the

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

Appellant. 
-6-

Joe Minor of the Tennessee Bureau of Investigation testified that he

conducted DNA tests on the rape kit taken from Stuard and the rape suspect kit

taken from Appellant. Minor stated that the DNA profile obtained from the sperm

found in Stuard’s vaginal vault matched the DNA profile from Appellant’s blood

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

at random with a DNA profile that matched Appellant’s would be one in 4,400,000

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

population. 

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

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

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

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

seen each other approximately ten times before this occasion. 

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

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

recklessly endangered the general public during the high speed chase on

Interstate 24. 

II. NOTICE OF THE TRANSFER HEARING

Appellant contends that the trial court should have either dismissed this

case or remanded it to the juvenile court because he was not given timely written

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

1-134, which states, in relevant part
-7-

After a petition has been filed alleging delinquency based on

conduct which is designated a crime or public offense under

the laws, including local ordinances, of this state, the court,

before hearing the petition on the merits, may transfer the

child to the sheriff of the county to be held according to law

and to be dealt with as an adult in the criminal court of

competent jurisdiction. The disposition of the child shall be as

if the child were an adult if:

. . . .

Reasonable notice in writing of the time, place and

purpose of the hearing is given to the child and the

child’s parents, guardian or other custodian at least

three (3) days prior to the hearing . . . .

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

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

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

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

counsel then spoke to Appellant and Appellant’s mother, who agreed that April

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

on April 6, 1994, and the transfer hearing was held on April 8, 1994. 

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

before the transfer hearing was caused by Appellant himself when he and his

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

Appellant has clearly waived this issue. See Tenn. R. App. P. 36(a) (“Nothing in

this rule shall be construed as requiring relief be granted to a party responsible

for an error or who failed to take whatever action was reasonably available to
1Appellant concedes that he is either responsible for this error or that he failed to take whatever

action wa s nece ssary to pr event or n ullify the harm ful effect o f the error. Howev er, Appe llant sugge sts

that he is entitled to relief if subsection 37-1-134(a)(3) is mandatory or jurisdictional in nature. Appellant

cites no authority for his proposition, and we are unaware of any. Further, the fact that the Tennessee

Supre me C ourt has held that the entire trans fer hearing is waiva ble, State v. Ha le, 833 S.W.2d 65, 67

(Tenn. 1992), indicates that there is no reason why the written notice of the hearing cannot also be

waived.

2We note that these requirements are substantially the same as those contained in the current

versions of these statutes. See Tenn. Code Ann. §§ 37-1-134, -159 (Supp. 199 8).

-8-

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

merit.

III. DETERMINATION OF VENUE

Appellant contends that his convictions should be reversed because the

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

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

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

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

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

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

could transfer a juvenile to a criminal court of “competent jurisdiction” if it

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

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

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

consider “[t]hose issues considered by the juvenile court pursuant to

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

We agree that section 37-1-134 requires the juvenile court to determine whether

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

court of “competent jurisdiction.” However, we do not agree that subsection 37-1-
-9-

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

That subsection merely requires the criminal court to consider the specific

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

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

required determinations.

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

hearing, any failure to do so was harmless error because the Montgomery County

Circuit Court was clearly the proper venue for Appellant’s trial. The Tennessee

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

of the county in which the crime was committed. Tenn. Const. art I, § 9. See

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

as precluding a court from indicting or prosecuting a defendant for crimes

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

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

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

offense was committed in the county alleged in the indictment. Harvey v. State,

213 Tenn. 608, 612, 376 S.W .2d 497, 498 (1964); State v. Baker, 639 S.W.2d

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

each of the offenses with which Appellant was charged were committed in

Montgom ery County. First, Stuard testified at the transfer hearing that all of the

events in question occurred in Montgomery County. Second, and more

importantly, Stuard also testified at trial that all of these events occurred in
3

It cou ld be a rgue d that Stua rd als o tes tified d uring the acceptan ce he aring that a ll of the even ts in

question occurred in Montgom ery County. The record reveals that when the prose cutor asked Stuard

whe ther th e eve nts occurred in Mo ntgo me ry Cou nty, Stu ard re plied “Uh-huh.” Adm ittedly, h owe ver, th is

response is somewhat ambiguous when viewed in the context of prior and subsequent questions and

answers.

4

The State contends that Appellant waived this issue pursuant to Rule 12(b)(2) of the Tennessee

Rule s of C riminal Proce dure by failing to ra ise it either b efore trial o r in his mo tion fo r a new trial. R ule

12(b)(2), however, provides that either jurisdictional defects or the failure to properly charge an offense

“shall be noticed by the court at any time during the pendency of the proceedings.” Tenn. R. Crim. P.

12(b)(2). Thus, the waiver rule does not apply when the indictment fails to assert an essential element of

the offen se. State v. Perkinson, 867 S.W .2d 1, 5 (Tenn. Crim. App . 1992).

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

improper. This issue is without merit.

IV. SUFFICIENCY OF THE INDICTMENT

Appellant contends that his conviction for attempted aggravated robbery

should be reversed because the indictment was insufficient to charge him with

that offense. Under Tennessee law, aggravated robbery is “[a]ccomplished with

a deadly weapon or by display of any article used or fashioned to lead the victim

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

402(a)(1) (1997). Count two of the indictment in this case alleged that Appellant

had “act[ed] with intent to complete a course of action to cause the Aggravated

Robbery of Stephanie Stuard . . . by use of a weapon fashioned to lead the said

Stephanie Stuard to believe it to be a deadly weapon . . . .” Appellant essentially

claims that because the indictment did not include the word “reasonably,” it only

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

attempted aggravated robbery should be reversed.4 We disagree.

The Tennessee Supreme Court has stated that “an indictment is valid if it

provides sufficient information (1) to enable the accused to know the accusation
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to which answer is required, (2) to furnish the court adequate basis for the entry

of a proper judgment, and (3) to protect the accused from double jeopardy.”

State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citations omitted). Further, “an

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

“Thus, we now approach ‘attacks upon indictments, especially of this kind, from

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

than from the narrow standpoint of petty preciosity, pettifogging, technicality or

hair splitting fault finding.’” Id. (quoting United States v. Purvis, 580 F.2d 853,

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

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

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

being charged with the offense of attempted aggravated robbery and it

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

two of the indictment in the case is invalid merely because it omits the word

“reasonably” would require us to engage in the “petty preciosity, pettifogging,

technicality or hair splitting fault finding” that the supreme court jettisoned in Hill.

Thus, this issue has no merit.

V. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to support his

convictions for especially aggravated kidnapping and aggravated robbery. Under

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

“display of any article used or fashioned to lead the victim to reasonably believe

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

(1997). Appellant claims that the evidence was insufficient to convict him of
-12-

these offenses because no reasonable jury could have found that Appellant’s

display of an inoperable pellet gun would lead Stuard to “reasonably believe” that

the gun was a deadly weapon. We disagree.

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

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

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

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 1994); State v. Harris, 839

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

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

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

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

insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled to

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

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

571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

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

offense beyond a reasonable doubt. Harris, 839 S.W .2d at 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In

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

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

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

drawn by the trier of fact from circumstantial evidence.” Id. at 779. Finally, Rule
5Appellant suggests that this court should hold, under the “physical facts rule,” that Stuard’s belief

that the gun was real could not possibly have been reason able. Under this rule, courts can declare

testimony incredible as a matter of law and decline to consider it where the testimony of a witness “cannot

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13(e) of the Tennessee Rules of Appellate Procedure provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

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

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

by which the pressure to propel a BB or pellet is generated, no rational jury could

have concluded that Stuard reasonably believed that it was a real gun. That may

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

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

case. Stuard testified that when Appellant approached her in the parking lot, “he

looked down at his gun and looked back up at me and he said get in your car.

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

Appellant sat behind her. While Stuard was driving her vehicle, Appellant told her

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

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

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

of a chance to observe the gun to determine that it was inoperable because it

was missing som e parts. Further, a rational jury could have inferred that Stuard

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

pellets was missing and that it was likely that Appellant had his finger positioned

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

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

Stuard reasonably believed that the gun was real.5 This issue has no merit.
possibly be true, is inherently unbelievable, or is opposed to natural laws.” State v. Hornsby, 858 S.W.2d

892, 894 (Tenn. 1993) (citations omitted). “Courts have made it clear that in order for testimony to be

considered incredible as a matter of law, it must be unbelievable on its face, i.e., testimony as to facts or

events that the witness physically could not have possibly observed or events that could not have occurred

under the laws of nature.” Id. (citations om itted). This ru le has ab solutely no a pplication to th is case. 

Stuard’s belief is obviously not a physical fact. Further, as previously explained, Stuard’s belief that the

gun was real was not impossible, inherently unreliable, or contrary to natural laws.

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VI. DENIAL OF EXPERT ASSISTANCE

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

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

cross-examination of the State’s DNA expert.” 

At the time of Appellant’s motion in November 1994, Tennessee law did

not provide for such expert assistance in non-capital cases, and the trial court

properly denied the motion. See Tenn. Code Ann. § 40-14-207(b) (1997)

(allowing for authorization of funds for expert services only in capital cases); see

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

S.W.2d 583, 585 (Tenn. Crim. App. 1992). On appeal, however, Appellant relies

upon State v. Barnett, 909 S.W.2d 423 (Tenn. 1995), a Tennessee Supreme

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

held that, where an indigent defendant’s need for a state-paid psychiatric expert

touches upon a due process concern, a trial court may order such services even

in non-capital cases, provided the defendant can demonstrate a “particularized

need.” Id. at 431. While Barnett dealt with a psychiatric expert, this Court has

previously extended the reasoning of Barnett to other forms of expert assistance.

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

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

Barnett constitutes a new constitutional rule, it must be applied retroactively to
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Appellant’s case which was in the appellate pipeline at the time of the Barnett

decision. See Id. 

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

assistance was proper because Appellant failed to demonstrate a “particularized

need” for such services. Under Barnett, 

To establish particularized need, the defendant must show that a[n] . . .

expert is necessary to protect his right to a fair trial. Unsupported

assertions that a[n] . . . expert is necessary to counter the State’s proof are

not sufficient. The defendant must demonstrate by reference to the facts

and circumstances of his particular case that appointment of a[n] . . .

expert is necessary to insure a fair trial. 

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

in support thereof consist almost entirely of legal arguments as to why a court is

authorized to provide a defendant with expert services. Indeed, Appellant’s

motion and memorandum do not explain why “the facts and circumstances of his

particular case” demonstrate that appointment of an expert is necessary to insure

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

circumstances of his case is contained in the following statement:

As part of its proof in this case the State will offer the testimony of

one Joe Minor of the TBI Crime Lab who performed the analysis of the

vaginal swabs taken from the victim. It is believed that Mr. Minor will testify

that those swabs were found to contain sperm cells and that the DNA

removed from those sperm cells matched with DNA from the Defendant.

This testimony will be so damning that unless the Defendant has an

expert who can either cross-examine the State’s expert or who can assist

in cross-examination of the expert, the Defendant will not be able to

present a “meaningful defense” and as such will be denied effective

assistance of counsel.

We do not believe that this statement adequately demonstrates particularized

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

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

assertions that the services were needed to attempt to counter the State’s proof,”
6Even if the trial court had erred, any such error would have been harmless in light of the fact that

Appellant admitted having sexual intercourse with Stuard. Appellant’s claim that this sex act was

conse nsual co uld not ha ve been aided by a D NA ex pert in any co nceivab le way. See Tenn. R. App. P.

36(b).

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the trial court is within its discretion in denying the request. 909 S.W.2d at 430

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

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

This issue has no merit.

VII. QUASHING OF DEFENSE SUBPOENA

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

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

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

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

On November 7, 1994, Appellant filed a motion for further discovery

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

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

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

to compel pursuant to Rule 16, asking the trial court to require the State to

provide him with the materials used by the State’s DNA expert in reaching his

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

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

discoverable under Rule 16 because the materials used by the expert in arriving
7We note that, subject to exceptions not applicable here, Rule 16 “does not authorize the

discovery or inspection of reports, memoranda, or other internal State documents made by the district

attorney general or other State agents or law enforcement officers in connection with the investigation or

prosecution of the case.” Tenn . R. Crim. P. 16(a)(2).

8

 Rule 17 (c) states that “[a] sub poena may als o com man d a pers on to wh om it is dire cted to

produce the books, papers, documents, or tangible things designated therein. The court, upon motion

made promptly and in any event by the time specified in the subpoena for compliance therewith, may

quash or modify the subpoena if compliance would be unreasonable or oppressive.” Tenn. R. Crim. P.

17(c).

-17-

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

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

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

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

Appellant had sought to obtain through discovery. On November 22, 1994, the

State filed a motion to quash the subpoena. The trial court granted the motion

to quash the subpoena on November 30, 1994. The trial court found that in

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

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

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

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

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

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

the same materials under Rule 17. 

We agree with the trial court that Rule 17(c)cannot be used to obtain

materials which are not discoverable under Rule 16(a)(2). Certainly, the limits of

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

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

Criminal Procedure, “[a] defendant may not obtain through Rule 17(c) documents
9Even if the trial court had erred in granting the motion to quash, any such error would have been

harmless in light of the fact that Appellant admitted having sexual intercourse with Stuard. Discrediting the

State’s D NA ex pert wou ld not have strength ened Appellant’s c laim tha t the sex w as con sensu al. See

Tenn. R. App. P. 36(b).

10Rule 403 s tates that “[a]ltho ugh relevant, e viden ce m ay be e xcluded if its pro bative value is

substan tially outweighed by the dang er of unfa ir prej udice, confus ion of the is sues, or m islead ing the jury,

or by considerations of undue delay, waste of time, or needless pre sentation of cumulative evidence.” 

Tenn. R. Evid. 403.

-18-

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

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

substantially identical to their federal counterparts. Thus, we see no reason why

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

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

 This

issue is without merit.

VIII. ADMISSION OF DNA EVIDENCE

Appellant contends that the trial court committed reversible error when it

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

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

Tennessee Rules of Evidence because its probative value was substantially

outweighed by the danger of unfair prejudice.10

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

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

discretion. State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997). In this

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

this case was clearly probative. Indeed, it is hard to imagine anything with more

probative value in a rape case than evidence that the accused had sexual
-19-

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

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

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

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

Rule 403. The trial court did not abuse its discretion when it admitted this

evidence. This issue is without merit.

IX. LENGTH OF SENTENCES

Appellant contends that his sentences for especially aggravated

kidnapping, aggravated rape, and reckless endangerment are excessive.

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

enhancement factors in determining the lengths of these three sentences.

“When reviewing sentencing issues . . . including the granting or denial of

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

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

presumption that the determinations made by the court from which the appeal is

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

presum ption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circum stances.”

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

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

the enhancing and mitigating factors, arguments of counsel, the appellant’s

statements, the nature and character of the offense, and the appellant’s potential
-20-

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

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

demonstrating that the sentence is improper.” Id. Because the record in this

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

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

a presumption of correctness.

A. Sentence for Especially Aggravated Kidnapping

In sentencing Appellant to twenty years for the especially aggravated

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

applicable. The trial court also found that Appellant’s sentence should be

enhanced because he had treated the victim with exceptional cruelty and

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

Ann. § 40-35-114(5), (6) (1991997). 

We agree that none of the enumerated mitigating factors of Tennessee

Code Annotated section 40-35-113 were applicable. However, the trial court

should have considered the mitigating factor contained in Tennessee Code

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

especially aggravated kidnapping, “[i]f the offender voluntarily releases the victim

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

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

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

is entitled to little weight, especially in light of the fact that Appellant did not in fact
-21-

possess a deadly weapon with which he could have killed Stuard without a

difficult struggle.

We conclude that the trialcourt improperly applied enhancement factor (5),

that the victim was treated with exceptional cruelty. The trial court apparently

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

he was going to shoot her in the leg. W hile this action was undoubtably cruel, it

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

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

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

‘exceptional cruelty’ that ‘demonstrates a culpability distinct from and appreciably

greater than that incident to’” the crime. State v. Poole, 945 S.W.2d 93, 98

(Tenn. 1997) (citation omitted). See also State v. Embry, 915 S.W.2d 451, 456

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

“requires a finding of cruelty over and above that inherently attendant to the

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

immediately after he told her that he was not going to kill her. A threat of the

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

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

enhancement factor (5) was not appropriate.

We also conclude that the trial court improperly applied enhancement

factor (6), that the injuries inflicted upon the victim were particularly great. In

applying this factor, the trial court relied on a finding that Stuard had suffered

“personal injuries by way of em otional distress [and] the now inclusion in her life

of fear.” There is no question that emotional and psychological injuries can be
-22-

the basis for applying this enhancement factor. See State v. Smith, 891 S.W.2d

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

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

psychological scarring are ‘particularly great.’” State v. Hoyt, 928 S.W.2d 935,

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

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

must offer expert testimony to that effect.” Id. (citation omitted). We do not doubt

that Ms. Stuard was traumatized by the especially aggravated kidnapping.

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

emotional injuries were particularly great compared to those suffered by every

victim of an especially aggravated kidnapping, application of enhancement factor

(6) was not appropriate.

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

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

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

appropriate range. See Tenn. Code Ann. § 40-35-114(1) (1997). The record

indicates that Appellant had juvenile adjudications for theft of property ($1,000 to

$10,000), burglary of an automobile, and sexual battery. Juvenile convictions

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

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

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

factor is entitled to significant weight.

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

enhancement factors, a finding that enhancement factors were erroneously
-23-

applied does not equate to a reduction in the sentence. State v. Keel, 882

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

clearly applies to this sentence and that this factor is entitled to significant weight.

We further hold that the mitigating factor applicable to this sentence is entitled to

only minimal weight. Thus, we hold that a sentence of twenty years for especially

aggravated kidnapping is appropriate in this case.

B. Sentence for Aggravated Rape

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

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

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

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

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

Tennessee Code Annotated section 40-35-113 are applicable to the sentence for

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

enhancement factor and should have applied two other enhancement factors to

the sentence for this offense.

We conclude that the trialcourt improperly applied enhancement factor (6),

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

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

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

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

disrupted by the fear that resulted from her being raped. However, the record

does not indicate that any expert evidence was introduced on the extent of
-24-

Stuard’s psychological injuries. While we do not mean to minimize the trauma

and fear that Stuard undoubtedly experienced as a result of this reprehensible

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

this factor was applicable. See Hoyt, 928 S.W.2d at 948.

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

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

reason that it should have applied this factor to the sentence for especially

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

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

sexual battery.

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

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

committed to gratify Appellant’s desire for pleasure or excitement. See Tenn.

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

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

of rape, it may be considered as an appropriate enhancement. Adams, 864

S.W.2d at 35 (citation omitted). The record indicates that Appellant raped Stuard

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

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

with her. Thus, the trial court should have applied factor (7) to enhance this

sentence.
-25-

Because two enhancement factors and no mitigating factors apply to the

sentence for aggravated rape, we hold that a sentence of twenty-five years for

this offense is appropriate in this case.

C. Sentence for Reckless Endangerment

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

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

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

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

when the risk to human life was great. See Tenn. Code Ann. § 40-35-114(3),

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

Tennessee Code Annotated section 40-35-113 are applicable to the sentence for

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

enhancement factor and should have applied one other enhancement factor to

the sentence for this offense.

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

reckless endangerment because Appellant’s conduct placed more than one

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

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

was improper because the existence of multiple victims was pleaded in the

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

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

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

danger of death or serious bodily injury.” Under the express terms of the
-26-

indictment, the State only had to prove that one person was endangered. Thus,

endangering multiple persons was not an element of the offense as charged in

the indictment. Appellant’s conduct in driving a vehicle at one hundred and ten

miles per hour in heavy traffic on Interstate 24 clearly endangered his passenger,

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

was appropriate.

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

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

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

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

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

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

enhancement and no mitigating factors apply to the sentence for reckless

endangerment, a sentence of two years is entirely appropriate.

X. IMPOSITION OF CONSECUTIVE SENTENCES

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

for especially aggravated kidnapping, aggravated rape, aggravated robbery, and

reckless endangerment to run consecutively. Consecutive sentencing is

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

the discretion to order consecutive sentencing if it finds that one or more of the

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

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

consecutive sentences (1) are reasonably related to the severity of the offenses
11However, we do not agree with the trial court that the possible transmission of the HIV virus

during the rape established that Appellant was a dangerous offender whose behavior indicates little or no

rega rd for hum an life and w ho ha s no h esita tion in com mittin g a crime in whic h the risk to hum an life is

high. While this may have been true if Appellant actually had the HIV virus and knew that he had the

virus, there is no evidence in the record that Appellant had any sexually transmitted disease.

-27-

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

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

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

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

a dangerous offender whose behavior indicates little or no regard for human life

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

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

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

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

vehicles. Appellant’s conduct demonstrated indifference to a high probability of

calamitous consequences to himself and motorists whom he was certain to

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

determined that Appellant is a dangerous offender.11

Because the trialcourt sentenced Appellant before Wilkerson was decided,

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

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

to the severity of Appellant’s offenses. Indeed, Appellant was convicted of five

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

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

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

are required in this case in order to protect the public from further criminal
-28-

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

become more and more violent with each new offense. Appellant apparently

began with theft, moved on to vehicle burglary, then to sexual battery, and finally

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

had shown no remorse for his actions and had denied all responsibility for the

aggravated rape of Stuard. The public certainly needs protection from

Appellant’s increasingly violent behavior. Finally, consecutive sentencing in this

case is congruent with general principles of sentencing. This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE