# FILED January 26, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9605- CC-00179 ) Appellee, ) ) ) MONTGOM ERY COUNTY VS. ) ) HON. J AMES E. WALTON QUINTON CAGE, ) JUDGE ) Appe llant. ) (Direct Appeal- Aggravated Rape- ) Especiall y Aggravated Ki dnapping)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN E. HERBI SON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney Generaland Reporter Nashvill e, TN 37204 (On A ppea l) EUGENE J. HONEA Assistant Attorney General COLLIER GOODL ETT, JR. 450 James Robertson Parkway Assistant Public Defender Nashvill e, TN 37243-0493 109 S. Second Street Clarksvi lle, TN 37040 JOHN CARNEY (At Tr ial) Distri ct Attor ney General ARTHUR BEIBER Assistant Distri ct Attor ney 204 Franklin Street Clarksvi lle, TN 37040 OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On Decem ber 2, 19 94, a Montgomery County j ury convi cted Appellan t Quint on Cage of aggravat ed rape, especi ally aggr avated kidnappi ng, aggrav ate d robbery, attempted aggravated robbery, and reckl ess en dangerment with a de adly weapo n. After a se ntencing hearing on Jan uary 13, 1 995, Appellan t received sentences of t wenty-five years for agg ravat ed rape, twent y years for espe cially aggra vated k idnapping, eight year s for aggrav

ated robbery , three years for attem pted aggravated robbery, and two years f or reckless endan germe nt. The se ntences for espe cially aggravat ed kidnapping, aggravated rape, aggr

avated rob ber

y, and rec kle ss e ndan ger me nt wer e ordered to run cons ecutive ly and the sentence f or attempted aggrav

ated robbery was or

dered to run co ncurre ntly with th e othe r sente nces . Appe llant ch alle nges both his convictions and his sentences, raising the fol lowing issues: 1) whether the char

ges against Appel lantshould have been dismissed or remanded to the j uvenile cour t for failure to give ti mely writ ten notice of the transfer hearing; 2) whether the territorial jurisdi ction of the tri al court was established at the acceptance heari ng; 3) whether the i ndictment was suf ficien t to cha rge Appe ll ant with at tempted aggravated robbery; 4) whether the ev idence w as su fficient to convic t Appe llant of e spec ially aggravated kidnapping a nd aggrava ted robbery; 5) whether the t rial cour t properl y denied Appell ant’s pre-trialmotion for expert assi stance; 6) whether the t rial cour t properl y quashed a defense subpoena for materia ls in the po ssessio n of the S tate’s expe rt; 7) whether t he trialcourt properly admitted DNA evidence; 8) whether Appel lant’s sentences are excessive; and 9) whether the tri al court properly imposed consecutive sentences. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.-3- I. FA CTS
Rajohnah Stepha nie Stua rd testified tha t o n April 1, 1994, she went to a retail store in Clarksvi lle, Tennesseeto do some shopping. When Stuard left t he store and walked over t o her 1993 Ford Explorer , Appellant approached her and ordered her to get i nto the vehicle. When Stuard asked whether he was serious, Appellant

looked down at

the gu n in his hand and then looked back at Stuard and repeated his demand.

Stuard testif ied that after she and Appellant got into her vehicl e, Appellant told her to drive to her ba nk and told her to p ull up to the laststall. When Stuard pulled up to the s tall, Appella nt told her to write a check for $500. When Stuard began looking in her purse for her checkb ook, Ap pellant sta ted, “Don ’t fuck with me” and Stuard repl ied, “I ’m no t fuck ing with y ou.” Stuar

d then found her checkbookand wrote ou t the check. Stua rd wrote the wo rd “Help” at the bott om of the che ck so tha t some one in the bank w ould ass ist her.

Stuard testif ied that after she put the check in t he “tube” and sent it to the bank, Appellant t

old her to drive away because s he “probably wrote something
on the check.”

Stuard then dr

ove away and fol lowed Appellant’ s instruc tions until
s he came to a barb eque p it in back of a white build ing. Stua rd testifi ed tha t during this drive, she asked Appel lant whether he was goi n g to rape or kill her. Appellant

told her t

o “shut up” and stated that he was n ot going to kill her, but he was go ing to sho ot her in the leg.-4- Stuard testif ied that after she dr ove behind the white buil ding, Appell ant ordered Stuard to get i n the back seat of the vehicl e and then he ordere d her to
un dress. Stuar d beg ged A ppella nt not to rape h er, but A ppella nt repe ated h is demand that she undress. After Stuard took her

clothes of

f, Appell ant penetrated her vagina w ith his penis and the n ejacula ted. After Ap pellant ha d finished with her, Stuard grabbed her shirt and got in t he front seat of the car. When Appellant asked where she was going, Stuard said t hat she did not know and she got out of the ca r. App ellant th en told her to g ive him her mon ey and her p urse. Stuard then gave App ellant approxi mately $ 350 and the keys to her car. St uard then grabbed t he r est of her c lothes and hi d behind the barbeque pit unt il Appell ant drove awayin her vehicl e. After Appellant l eft, St uard ran to a hous e down the road where s he was abl e to ca ll “911.” An ambulance responded to t he call and took Stu ard to the hospital.

Stuard testified that Appellant he ld a gun in his ha nd through out the entire episode and that as hewas raping her, she “could hear the metal hit

ting the s ide of [her] car. ” Stuar d des cri bed t he gu n asa bl ack aut omat ic that ha d so me scrapes on it. Stuard test ified t hat she believed that the pistol was real and t hat “[I]f he had not had the gun, he would ha ve had a fight on his h ands. I figure myse lf to be a prett

y good scrapper, but not when somethi ng like that is looking at you.”
Dwayne Turleytestified that at a pprox imate ly 4:45 p.m. on Apri l 1, 1994, Appellant

came to Turley’s residenc e in a white Ford E xplorer. T urle y subs eque ntly got into the vehicle andhe and Appellant eventuall y ended up on Interstate 24 in Kentucky. Turley al so t es tifi ed that he owned t he gun that-5-

Appellant

had in his po sses sion o n Apr il 1, 1 994. Turley testifi ed that the gun was a p ellet

pistol that he had t hrown away when he and Appell ant had been unable to fix it.
Sergeant Ro bert Ott of the Montgomery County Sheriff ’s Department testif ied thatat approxi mately 4:30 p. m. on April 1, 1994, he received a dispatch to be on the lookout

for a white 1993 Ford Explorer. At appr oximately

5:00 p.m., Ott saw St uard ’s vehicle o n Interstate 24 hea ded we st toward s St. Lou is. Ott then asked for b ack -up , t urn ed on his veh icl e’s

eme rgency equi pment, and began pursu it of Stuard’ s vehicl e. During t he subsequent chase, Appellan t drove Stuar d’s vehicle at a high spee d that reached one hundred and ten miles per hour at one point. Ott test ified t hat traf fic on t he Interstate was fairl y heavy and that Appellant

passed b etween othe r vehicles several time s. Appellant eve ntuall y ran into a gua rdrail and “flipp ed” Stua rd’s vehicle , dama ging it beyond rep air. When Appellant

was taken into custody, he told Ott that he had been ki dnapped by Turle y.

Teresa Worley testi fied that dur ing he r shift as a nurs e at Cla rksville M emorial Hospital on April 1, 1994, she assisted Doctor Stephe n Kent i n performing a “rape kit” on Stua rd . Doct or Ke nt testifie d that d uring th e pelvic examination that he performed on Stuar d, he found “a cloudy dis charge in t he vaginal vault tha t was c onsis tent wit h se me n.” Doctor Kent also went t o the Montgom ery County jail and p erformed a “r a pe suspect examinat ion” on Appe llant.-6- Joe Minor of the Tennesse e Burea u of Invest igation testif ied that h e conducted DNA tests o n the ra pe kit ta ken fro m Stu ard an d the ra pe su spec t kit taken from Appellant . Minor stated that the DNA profil e obtained from the spe rm found in Stuard’ s vaginal vault matched the DN A pro file from Appellant’s blood sample. Minor also testifi ed thatthe possibi lity of select ing an unrel ated person at random with a DN A pro file that m atche d App ellant’s would be one in 4,400, 000 in the Caucasian popul ation and one i n 16 ,800,000 in the Afri can-American popula tion.
Appellant

testif ied that o n April 1, 1994, his si xtee nth birt hday, he met Stuard in the park ing lot and she invited him into her vehicl e. Appellant testif ied thatStuard voluntarily accompanied him to their “li ttle secret pl ace in the country” and had consensual sex with him. Appellant also test ified t hat he and Stuard had
seen e ach oth er appro ximately te n times b efore this o ccasion
. Appellant

testif ied that he stole Stuard’ s vehicle “in r evenge” because she had slapped h im, but he denied taking her money. Appellant admi tted that he reckle ssly endangered the g ene ral publi c during th e high speed chase on Interstate 2 4.

II.NOTICE OF T HE TRANSFE R HEARI NG
Appellantconte nds th at the tria l court s hould have e ither dis miss ed this
case or rem ande d it to the juvenil e court because he was not given timely written notice of his t ransfer hear ing pursuant to Tennessee Code Annotated secti on 37- 1-134, which states, in relevant part-7- After a petiti on has been fil ed alleging deli nquency based on conduct which is designated a crime or publi c offense under the laws, i ncluding l ocal ordinan ces, of this s tate, the co urt, before hearing the petiti on on the merits, may tra nsfer the child to th e she rif f of the county to be hel d according to law a nd to b e dealt wi th as an adult in the cr iminal cour t of competent jurisdi ction. The dispositi on of the chil d shall be as if the child we re an ad ult if:

. . . . Re aso nable notice i n writi ng of the ti me, place and purpose of the h earing is gi ven to the chi ld and the child’s paren ts, guardian or other custodian at least three (3) d ays prior to the hea ring . . . .
Tenn. C ode Ann . § 37-1-134(a )(3) (1994).

Th e reco rd in dicates t hat on April5, 1994, th e trialcourt inf ormed Appe llant’s counsel in open cou rt that ther e were two avai lable dates for the transfer h earing, one on April 8, 1994, and one on Apri l 11, 1994. Appellan t’ s counsel then s poke to App ellant a nd Ap pellan t’s mother, who agreed t hat April 8 would be the be st date to have the t ransfer hear ing. Written noti ce was given on Apr il 6, 1994, a nd the tra nsfer he aring wa s held on April 8, 199 4.

It is eviden t that any

error i n faili ng to provi de written no tic e three days before the transfer heari ng wa s cau sed b y App ellant h imse lf when he an d his counsel chose to have t he hearing on April 8 rather t han on April 11. Thus, Appellant

has clea rly waived th is issue. See Ten n. R. A pp. P. 3 6(a) (“N othing in this rul e shall be construed as requiri ng relief be grante d to a p arty res pons ible foran error or who failed to take whate ver a ction was rea sonab ly available to1 Appellant concedes that he is either r esponsible f

or this error or that

he fail ed to take whate ver 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 i s entit led to re lief i f subsection 37-1-134(a)(3) is mandatory or juri sdicti onal in nature. Appellant cites no authority

for his pr

opositi on, and we are unawar e of any. Further, the fact that the Tennessee Supre me C ourt has held that the entire trans fer hear ing is waiva ble, State v. Ha le , 833 S.W.2d 65, 67 (Tenn. 1992), i ndicates t hat there is no reason why t he writt en notice of

the heari ng cannot also b e waived.
2 We note that these requi rements are substant ially the same as those cont ained in the current versions of these statutes. See Tenn. Code A nn. §§ 37-1-134, -159 (Supp. 199 8). -8- preventor nullify the har mful effec t of an error.”). 1 Thus, this i ssue is wit hout merit.

III . DETERMI NATION OF VENUE
Appellant

contends that his convicti ons should be reversed because the State fai led to establ ish venue at the acceptance hearing. Appellant concedes thatthere is no Tennessee authorit y that ex pressly r

equires venueto be proven at an acceptance heari ng. Appellan t sugg ests, however , that t his requi rement can be infer red from readi ng Tennessee Code Annotated secti ons 37-1-134(a) and 37-1-159(d )(2) together. W e disagree. At the ti me of Appellant’ s transfer and acceptance heari ngs, secti on 37-1-134(a) provided t hat a j uveni le court could transfer a ju venile to a c riminal co urt of “ comp ete nt jurisd iction” if it determined that the requirements of subsect ion s (a)(1)–(4) and (b)(1 )–(5) had been satisf ied. Tenn. Code Ann. § 37-1-134 (1994) . In addi tion, section 37- 1- 1 59 provided that, as par t of the acceptance hearing, the criminal court must consider

“[t] hose issues consi dered by th e juvenile c ourt purs uant to [subsections] 37-1-134(a) and (b).” Tenn. Code Ann. § 37-1-159(d )(2) (1994). 2 We agree that s ection 37-1-1 34 req uires th e juven ile court to determine whether venue would be proper in the criminal court, i.e., whether the criminal court

is a court of “competent

jurisdiction.” Howeve r, we do not agree t hat subsecti on 37-1--9-

159(d)(2) requiresthe State to re-establ ish venue duri ng the acceptance hearing. That subsection merel y requires the cri minal cour t to cons ider the spec ific requirem ents of subsecti ons 37-1-134(a) (1)–(4) and (b)(1)–(5), which do n ot include the question of venue
. The record indi cates that the tri al court made t he required determinations.

Even if the State had been required to establi sh venue at the acceptance hearing, any fail ure to do so was harm less error b ecaus e the Mo ntgom ery Cou nty Circu it Court was clearly th e prop er ven ue for A ppella nt’s trial. The Tennessee Constitut ion provides t hat a defendant has the ri ght to be tried by an impa rtial jury
o f the county in w hich the c rime wa s com mitted. T enn. C onst. art I, § 9
. See also Tenn. R. Crim. P . 18. This Court has const rued this constitut ional guarantee as precluding a c ourt from indicting o r prosecuting a defendan t for cri me s committed outside of the co unty where the court is located. See State v. Hill , 847 S.W.2d 544, 545 (Tenn. Cri m. App. 1992). Al though venue is not an element of the crime, the State must prove by a preponderance of

the evidence thatth e offense was c omm itted in th e cou nty alleg ed in the indictm ent. Harveyv. State , 213 Tenn . 608, 612 , 376 S.W .2d 497 , 498 (19 64); State v. Baker , 639 S.W.2d 670, 672 (Ten n. C ri m. App. 1982). I n this case, the State cl early established t hat each of the off

enses with which Appe llant wa s cha rged w ere co mm itted in Montgom ery County. Fir st, Stuar d testif ied at the tra nsfer h earing that all of the events in questi on occur red in Montgome ry Cou nty. Second, a nd more importantly, Stuard a lso testified a t trial that all of t he se eve nts oc curred in3 It cou ld be a rgue d tha t Stua rd als o tes tified d uring the a cce ptan ce he aring that a ll of the even ts in question occurred in Montgom ery County. The record reveals that when the prose cutor asked Stuard whe ther th e eve nts o ccu rred in Mo ntgo me ry Cou nty, Stu ard re plied “ Uh- huh .” Adm ittedly, h owe ver, th is response is somewhat ambiguous when vi ewed in the cont ext of pri or and subsequent questions and answers.

4 The State contends that Appell ant waived this issue pur suant to Rule

12(b)(2) of

the Tennessee Rule s of C rim inal P roce dure by failin g to ra ise it eit her b efor e trial o r in his mo tion fo r a ne w trial. R ule 12(b)(2), however, provides that either j urisdictional def ects or the f

ailure to properly charge an off ense “shall be noti ced by t he court at any time duri ng the pen dency of the proceedings. ” Tenn. R. Crim. P. 12(b)(2). Thus, the waiv er rule does not apply when the indictment fail s to assert an essentialelement of the offen se. State v. Perkinson , 867 S.W .2d 1, 5 (Tenn. Crim. App . 1992). -10- Montgom ery County. 3 Indeed , Ap pel lant does not contend that

venue was improp er. This iss ue is witho ut merit.

IV. SUFFICI ENCY OF THE I NDICTMENT
Appellant

conten ds that his conviction fo r attem pted aggra vated robbe ry s hould be revers ed bec ause th e indictm ent was insufficient to charge him with thatoffens e. Under Tenn essee law, aggra vated robbe ry is “[a]ccom plished w ith
a dead ly weap on or b y displa y of any article used or fashi oned to lead t he victim t o rea sonably beli eve it to be a deadly weapon. ” Tenn. Code Ann. § 39-13- 402(a)(1) (1997). Coun t two of th e indic tmen t in this case alleged t hat Appellant had “act[ed]with intent to c omple te a cour se of actio n to cause the Aggravated Robbe ry of Stephanie Stuar d . . . by use of a weapon fashi oned to lead the sa id Steph anie Stuard to believe it to be a deadly weapon . . . .” Appe llant es sentia lly cla imsthat because the ind ictme nt did not inc lude th e word “reaso nably,” it only
a lleg ed that he had committed attempted robber y and thus, hi s convict ion for attempted aggrav

ated robbery

should be rever

sed. 4 We disagree.

The Tennessee Supr eme Cour t has s tated th at “an in dictm ent is va lid if it providessuffic ient inf

ormation (1) to enabl e the accused to k now the accusation-11-

to which answ er is required, (2) to furnish the court adequ ate basis for the en try of a proper judgment, and (3) to protect the accu sed fro m dou ble jeopa rdy.” State v. Hill , 954 S.W.2d 725, 727 (Tenn . 1997) (c itations om itted). Further, “an indict ment need not confor m to tradit ionall y stri ct pleadi ng requ i rements.” Id. “Thus, we now approach ‘attack s upo n indic tmen ts, esp ecially o f this kind, f rom the broad and enlightened standpoint of common sense and right reason rather t han from the narro w standpo int of petty preciosity, pettifogging, tech nicality o r hair splitting fault finding.’” Id. (quoting Unite d State s v. Pur vis , 58 0 F. 2d 853, 857 (5th Cir.1978)). A “co mmo n sense” reading of count two of t he indict ment clearly indicates that i t was suff icient to comply wi th the constit ut ional notice requirem ents recited in Hill
. Count two clearly informed Appellant t hat he was being charged with the offenseof attem pted a ggrav ated ro bbery and it
su bstan tially set fort h each of the el ements of that offense. To hold tha t coun t two of the i ndictment i n the case i s inva lid merely beca use it omits the w ord “reasonab ly” would re quire us to engag e in the “pe tty preciosity , pe ttifogging, technica lity or hair s plitting fa ult finding ” that the s upreme court jet tisoned i n Hill
. Thus , this issue h as no m erit.

V. SUFFI CIENCY OF T HE EVIDENCE
Appellant

contends that

the e vidence was in sufficie nt to su pport h is convict ions for especi ally aggr avated kidnappi ng and aggravated r obber y. Unde r Tennessee law, both of these of fenses requi re use of a deadl y weapon o r “display of any article used o r fashione d to lead the victim to reasona bly believe it to be a dead ly weapon .” See Tenn. Code Ann. §§ 39-13-305(a) (1), -402 (a)(1) (1997). Appella nt claims that the evid ence w as insufficie nt to convict him of-12-

these offenses because no reas onab le jury co uld ha ve foun d that A ppella nt’s display of an ino perab le pellet gun would lead St uard to “r easonably bel ieve” t hat the gun was a deadly weapon. We disagree.
When an appellant chall enges the suffi ciency of the evidence, this Court is obliged to review t hat chall enge according to certai n well-set tled principles . A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State’ s witnessesand re solves all conf licts in the testim ony in favor of the State. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an acc u sed is ori ginall y cloaked wi th a presumption of innocence, a j ury verdi ct removes thi s presumption and r eplaces it with one of gu ilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) . Hence,
on appeal, t he burden of proof rests wit h Appellant t o demonstrate th e insuffici ency of the con victing evide nce. Id. On ap peal, “the [S ]tate is entitled to the strongest legiti mate view of t he evidence aswell as a ll reason able and legitimate inferences

thatmay be drawn therefrom.” Id. (citi ng State v. Cabbage , 571 S.W.2d 83 2, 835 (T enn. 1 978)) . Wh ere the sufficie ncy of th e evide nce is contested on appea l, the relevant question for the reviewing cou rt is whether any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the
o ffense beyo nd a rea sonab le doub t. Harris , 839 S.W .2d at 75; Jackson v. Virgin ia , 443 U .S. 307, 3 19, 99 S . Ct. 2781 , 2789, 61 L. Ed. 2d 560 (19 79). In conducting our evaluat ion ofthe convic ting evi dence, this Court is precl uded from reweighing or recons idering the evidenc e. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. A pp. 199 6); State v. Matthews , 805 S.W.2d 776, 779 (Ten n. C ri m. App. 1990). Moreover, this Court may not substitute its own inf erences “for those drawn by the tri er of fact from circum stantial evidence.” Id. at 779 . Finally, R ule5 Appellant suggests that

this court

should hold , under the “physical facts rul e,” that

Stuard’s bel ief that the gun was real could not possibly have been reason able. Under this rule, courts can declare testimony i ncredibl e as a matter of l aw and decline to consider it where the testi mony of a witness “ cannot -13- 13(e) of the Te nnes see R ules o f Appe llate Pro cedu re prov ides, “fin dings of guilt in criminal actions whet her by the t rial cour t or jur y shall beset aside i f the evidence is insuf

ficien t to support

the findi ngs by th e trier of fact beyond a reasonab le doubt.” See also Matthews , 805 S.W.2d at 780.
Appellant

contends that

because t he gun h as no trigger and no mechanism by which the pre ssure to prop el a BB or pelle t is gen erated , no ratio nal jury c ould have concluded that Stuard reaso nably b elieved that it was a real gun. That may have been true if Appell ant had handed the gun to Stuard and given her a few minutes to exam ine it before he committed these offenses, but t hat was not t he
case. Stuard te stified that wh en App ellant app roache d her in the parking lo t, “he looked down a t his gun a nd looke d back up at m e and h e said ge t i n your car . So I got i n my car. I am not bullet proof.”

When they got in Stuar d’s vehic le, Appellant

sat behin d her. Wh ile Stuard was dri ving her vehicle, Appellant t old her thathe was going to shoot her in the l eg. Stuard test ified t hat Appellant held the gun i n his ri ght hand throughout the entir

e episode, eve n when he was rapin g her. A rational jur

y could infer f rom this evidence that Stuar d neverhad enough of a chance to observe the gun to de te rmine that it wa s inop erable beca use it
was missing som e parts. Further, a ration al jury could have inferred that S tuard would have had to look i nside the gun to see that t he mechanism thatpropels th e pellets was missing and t hat it was likel y that Appel lanthad h is finger pos itioned where the tri gger would have been, thus prevent ing Stuard f rom seeing whether
or not there was a trigg er. It is clear th at a r ational jury coul d conclude that Stuar d reas onab ly believe d that th e gun was re al. 5 This issu e has n o 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 hav e made it clear

that i n order for t

estimony to b e considered i ncredibl e as a matter of l aw, it must be unbelievable on its f ace, i. e., testimony as to fact s or events that

the wit ness physical ly coul d not have possi bly obser ved 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 bel ief is obviously not a physi cal fact.Further, as previously explai ned, Stuard’s belief that th e gun was real was not impossible, inherentl y unrel iable, or contrary to natural

laws. -14- VI. DENIA L OF EXPERT ASSISTA NCE
Appellant

conten ds that the trial court e rred when it deni ed his pre-t rial motion for state funds “to o btain a DNA expert to cross-ex

amine o r assist in
cross-exam ination of the State’s D NA expe rt.”

At the time of

Appellant’ s motion in November 199 4, Te nnes see la w did not provide for such expe rt assis tance in non-c apital cases, and the trial court prope rly denied the mo tion. See Tenn. Code Ann. § 40-14-207( b) (199 7) (allowi ng for authorizatio n of fund s for exp ert serv ices on ly in capital ca ses); see also State v . Wil li ams , 657 S.W .2d 405 , 411 (T enn. 19 83); State v. Harris , 866 S.W.2d 583, 585 (Tenn. Cri m. App. 1992). On appeal, however, Appellant r elies up on State v . Barnett , 90 9 S. W.2d 4 23 (Tenn . 19 95) , a T enne sse e Sup reme Court case which post- dates the t rial cour t’s rul ing. In Barne tt , t he s upreme court held that, where an ind igent d efend ant’s need for a state-p aid psychiatric expe rt touches upon a due process concern, a trial court may order such services even in non-capi tal cases, provided the defendant can demonstr ate a “part iculari zed need.” Id. at 431. While Barne tt dealt with a psychiatric expe rt, this Court has previo usly extended the reas oning o f Barne tt to other forms of exper

t assistance. See State v. James W. Jacobs , No. 01C01-9601-CC-00048, 1997 WL 576493, at *2 (Tenn. Crim. App., Nashvill e, Sept 18, 1997) (citat ions omitted). Because Barne tt constitute s a new constitution al rule, it mu st be app lied retroac tively to-15-

Appe llant’s case w hich wa s in the ap pellate pip eline at the time of the Barnet t decision
. See Id.

In this case, the tri al court’ s de nial of Ap pellant’s motion for e xpert assistance was proper because Appella nt failed to de mons trate a “parti culariz ed need” for suc h services. Und er Barne tt , To establish particularize d need , the defen dant m ust show that a[n] . . . expert is neces sary to pro tect his right to a fair tr ial . Un supported assertions

that a[n] . . . expert is necessa ry to counter the S tate’s proof are not sufficient . The defendant must demonstrate by referenc e to the fac ts and circumst ances of his particu lar case th at appo intmen t of a[n] . . . expert is ne cessar y to insure a fair trial. 909 S.W .2d at 431
. Appellant’ s motion for expert ser

vices and his memorandum in support thereof consist almost entirely of lega l argumen ts as to why a court is authorized to prov ide a d efend ant with exper t service s. Inde ed, Ap pellan t’s motion and memorandum do not explain why “the fact

s and circum stanc es of h is particul ar case” demonstrate that appoi ntment ofan exp ert is necessary to ins ure a fair tr ial. In f

act, the only r

eference Appellant made to the speci f ic facts and circum stance s of his cas e is conta ined in the following s tateme nt:

As part of i ts proof i n this case t he State w ill offer th e testimony of one Joe Minor of t he TBI Crime Lab who performed the a nalysis of the vaginal swabs taken from the victim. It is beli eved that Mr. M inor will testify thatthose swabs were found to contai n sperm cells and that the DN A remov ed from those sp erm ce lls match ed with D NA from the Defe ndant. This testimony wi ll be so damning that unles s the Defendant has an expert who can either cross-examine t he State’s expert or who can assist in cross-e xamina tion of the e xpert, the D efenda nt will not be a ble to presenta “mean ingful defense” a nd as such will be denied effective assist ance of cou nsel. We do not be lieve that this s tateme nt adeq uately de mons tr ates particul arized
n eed as req uired by Barne tt . As the supreme cour t stated i n Barne tt , when a motion for expert ass istance is “accompanied by litt le more than undevel oped assertions

thatthe servi ces were needed to attem pt to coun ter the Sta te’s proof,”6 Even if t he trial court had err

ed, any such error would hav e been harmless in l ight of the fact that Appellant

admitted havi ng sexual int ercourse wit h Stuard. Appel lant’ s claim that this sex act was conse nsual co uld not ha ve been aided by a D NA ex pert in any co nceivab le way. See Tenn. R. App.P. 36(b). -16- the trialcourt is within its discretion in denying the requ est. 909 S.W.2d at 430 (quoting State v. Caze s , 875 S.W.2d 253, 261 (Tenn. 19 94)). Thus, the tri al court did not abuse i ts discr etion when it denied the motion for expert servi ces. 6 This issu e has n o merit.

VII.QUASHI NG OF DEFENSE SUBPOE NA
Appellant

contends that

the tri al court er red when it quashed his subpoena duce s tecum for mate rial s in t he posse ssion of th e Stat e’s DNA expert
. Specifically, Appella nt cla ims that he wa s entitl ed to material s relati ng to the factual basis upon which t he expert based hi s conclusions . We disagree.

On November 7, 1994, Appel lant filed a motion for further d iscovery pursuantto Rule 16 of t he Tennessee Rules ofCriminal Procedure, aski ng the trialcourt to r

equire the State to prov ide him with i nformation r elated to t he DNA t e sting by the State’s expert . On November 16, 1994, Appel lant fi led a motion to compel pursuan t to R ule 16, as king the tria l court to req uire the S tate to providehim with the materials use d by the S ta te’s DN A exp ert in rea ching his conclusions. After a hear ing on the di scovery moti ons, the t rial cour t denied t he motions. The trialcourt rul ed that the mat erials r equested byAppellant wer e not disco verab le under Rule 16 because t he materials used by the exper

t in arriving7 We note that, subject to excepti ons not appli cable here, Rule 16 “does not authoriz

e the discovery

or inspect ion of repor ts, memoranda, or other internal State documents made by the distri ct attorney general or other Stat e agents or l aw enforcement offi cers in connect ion wit h the investigati on 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, p apers, documents, or tangibl e things desi gnated therei n. The court, upon motion made promptly and in any event by the ti me specified i n the subpoena for compliance therewith, may quash or modif

y the subpoena i f complia nce would be unreason able or oppressive.” Tenn . R. Cri m. P. 17(c). -17- at his conclus ion were “wor k product.” Appellant does

not chall enge the tri al court’s ruling th at these materi als were not discoverabl e under Rule 16. 7

On November 21, 1994, Appel lant fi led a subpoena duces tecum, dire cting the State’s DNA expert to appear on November 30, 1994, with themate rials Appellant

had soug ht to obtain throug h discovery. On November 22, 1994, t he State filed a m otion to quas h the s ubpo ena. T he trial cou rt granted the motion to quash the su bpoena on Nove mbe r 30, 19 94. Th e trial co urt foun d that in issuing the subpoena pursuant to Rule 17(c)of the Tennessee Rules of Criminal Procedure, 8 Appellant was simply attempting to obtain the same documents and otherwork product that were protected from discover y by Rule 16(a) (2). The trial court stated that alth ough Rule 16 and Rule 17 are separ ate rules, they must be read together i n context. In s hort, t he t rial cour t found that

Appellant could not circumvent

the discovery protecti ons of Rule 16 si mply by issui ng a subpoena for the sam e mate rials unde r Rule 17
.
We agree with t he trialcour t th at Ru le 17(c )cann ot be u sed to obtain mate rials which are no t discoverable un der Rule 16 (a)(2). Certainly, the li mits of Rule 16(a)(2) would be meaningless if a defendant could simply su bpoe na the protected materials

under Rule 17(c) . Indeed, u nde r the Fed eral Rules of Criminal Procedure, “[a] defend ant ma y not obta in throug h Rule 1 7(c) doc umen ts9 Even if t he trial court had err

ed in grant ing the moti on to quash, any such error woul d have been harmless in l ight of the fact that Appellant

admitted havi ng sexual int ercourse wit h Stuard. Di screditi ng the State’s D NA ex pert wou ld not have strength ened A ppellant’s c laim tha t the sex w as con sensu al. See Tenn. R. App. P. 36(b).

10 Rule 403 s tates that “[ a]ltho ugh relev ant, e viden ce m ay be e xclu ded if its pro bative value is sub stan tially out weig hed by the dang er of unfa ir prej udic e, co nfus ion of the is sue s, or m islead ing th e jury, or by considerations of undue delay, waste of time, or needless pre sentation of cumulative evidence.” Tenn. R. Evid. 403. -18- which are protected from discl osure pursuant to Rule 16(a)(2 ).” United States v. Orena , 883 F. Supp. 849, 867 (E.D.N.Y. 1995). Our Rules 16(a)(2) and 17(c)are subs tantially identical to th eir federa l counterp arts. Thus, we see no reason why the result und er our state rules shoul d be any diff erent. The t rial cour

t did not abuse its di scretion when it granted the motion to quash the subpoena. 9 This issue is w ithout me rit.

VIII . ADMI SSION OF DNA EVIDENCE

A ppel lantconte nds th at the tria l court c omm itted rev ersible error w hen it allowed the State to introdu ce evidence of the DNA tes t results. Specifically, Appellant

claims that

this evi dence was inadmissi ble under Rule 403 of the Te n nessee Rules of Evid ence beca use its proba tive valu e was subs tantially outweighed by t he danger of unfa ir prej udice. 10

A trial court’s decision to adm it evidence is largely discretion ary and that decision wi ll not be reversed on appeal unless there has been an abuse of that discreti on. State v. Gray , 960 S.W .2d 59 8, 606 (Ten n. Crim . App. 1 997). In this case, we seeno re ason to distur b thetri al co urt ’s r uli ng. Th e DNA evidence in this case w as clearly p robative. Indeed , it is hard to imagine an ything with more probative value in a rape case than ev ide nce tha t t he accused had sexual-19-

interc ourse with the vict im. At the time Stuard ident ified Appellant as he r assailan t, Appellant had not yet admitted to having had sex with her. Thus, the DNA evidence was cl early pr obative of

whetherStuard was tel ling thetruth. This probative value was not substanti ally out weighed by any of

the consider

ations of Rule 403. Th e trial court d id not a buse its discre tion wh en it ad mitted this evidenc e. This iss ue is witho ut merit.

IX. LENGTH OF SE NTENCES
Appellant

contends that

his sen tence s for especi ally aggr avated kidnapping, aggravated r ape, and reckl ess endangerment are excessive. Specifi call y, Appellant c laims that the tri al court mi sapplied various miti gating and enhancement factors in determining the l engths of these three sentences.

“When reviewing senten cing issu es . . . incl uding the grant ing or deni al of probation and the length of sentence, t he appellate court shallconduct a de novo review on the record of suc h i ssues. Such revi ew shall be conduc ted with a presumption that the determinati ons made by the co urt from which the ap peal is taken are cor rect.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, t he presum pti on o f correc tness which acco mpa nies th e trial co urt’s ac tion is conditi oned upon the aff irmative showing in the r ecord that the trial cou rt considered the sentencing pr incipl es and all rele vant facts a nd circum stance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduct ing our review, we must consider all t he evidence, the prese ntenc e report, the sentenci ng principles, the enhan cing and mitigating factors, arg umen ts of coun sel, t he app ellant’s statements, the nature and character of the offens e, and the appell ant’s potential-20-

forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); Ashby , 82 3 S.W.2d at 169. “The defendan t has the bur den of demonstratingthat the se ntence is improp er.” Id. Becau se the record in this
case indicates that th e trialcourt fai led to properly cons ider th e sentencing principl es and all rel evant facts and circumstance s, our rev iew is de novo wi thout a presumption of correctness.

A. Sente nce for Especi ally Aggravated Kidnappi ng

In senten cing Ap pellant t o twe nty years for the espec ially aggravated kidnapping convicti on, the trial court found that no mitiga ting factors were applicabl e. The trial co urt also fou nd that A ppellant’s sente nce shoul d be
en hanc ed because he had treated the vict im with except ional cru elty and because the inj uries that he infl icted were par ticula rly great. See Tenn. Code Ann. § 4 0-35-11 4(5), (6) (19 91997 ).

We agree that none of the enumerated mitigati ng factors o f Tennessee Code Annota ted sectio n 40-35 -113 we re applica ble. Howeve r, the trial court shou ld have considere d the miti gating fac tor cont ain ed in Tennessee Code Annotated section 39-13-305, which states that i n determining the sentence for espe cially aggrava ted kidna pping, “[i]f the offender volunta rily relea ses th e victim alive . . . s uch action[] shall be considered by the court as

a mitigat ing factor at the time of se ntencing .” Tenn . Code Ann. § 39- 13-305(b)(2)(1997). Al though
we hold that t his fa ctor sh ould have been consi dered, webelieve t hat this factor is entitl ed to little weight, especiall y in light of the fact t hat Appellant did not i n fact-21-

possess a deadly weapon wi th which he cou ld hav e killed Stu ard witho ut a diffi cult st ruggle.

We conclude that

the trial cou rt improperly app lied enhance ment factor (5), thatthe vict im was treated with e xceptio nal cruelty . The tr ial cou rt appa rently based its deci sion to appl y this f actor on the fact that

Appellant

told Stuard that he was g oing to shoo t her in th e leg. W hile this action was u ndou btably c ruel, it does not rise to the l evel of bei ng “excepti onally cruel”, as t hat term has been interpr eted by our Stat e Supreme Court. That Court has stated t hat before this factor may be applied, the fact s in the case must “support a findi ng of ‘excepti onal cruelty’ that ‘demonstrates a culpabi lity di stinctfrom a nd ap precia bly g re aterthan that in cident to’” the crime. State v. Poo le , 945 S.W.2d 93, 98 (Tenn. 1997) (c itation om itted). See also State v. Emb ry , 915 S.W.2d 451, 456 (Tenn. Crim. App . 1995) ( holdi ng that appl icatio n of enhancement factor (5) “requires a finding of cruelty over an d above tha t inhere ntly attendant t o the
c rime”). In t his

cas e, A ppel lan t’ s th reat t o sh oot Stu ard in thelegcame imm ediate ly a ft er he told he r that he was n ot going to kill her. A thr eat of the victim be ing shot is i nherent in t he offense of an especially aggravated kidnapping that is

committed by t he use of a fi rearm. Thus, appl icati on of enhancement factor

(5) was not appr

opriate.

We also conclude that the t rial cour t improperl y applied enha ncem e nt factor (6), t h at the injuries inflicted upo n the victim were pa rticularly grea t. In applying this fac tor, the tr ial c ourt r elied on a f inding t hat Stuard had suf fered “personal injuri es by way of em otional distre ss [and] th e now in clusion in h er life
o f fea r.” There i s no question t hat emotional and psychologi cal inj uries can be-22-

the basis fo r apply ing this enhan ceme nt factor. See State v. S mith , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). “However, before this f actor may be appli ed, the State has the burden of estab lish ing that t he emotional i njuries a nd psychologi cal scarrin g are ‘p articula rly great.’” State v. Hoyt , 928 S.W.2d 935, 948 (Tenn. Crim. App. 1995) (citation omit ted). “ In order to prove that the inj uries
are particul arly gre at and/or wi ll endure ‘for the r est of [t he victim’s]life,’ the State must offer expert testimon y to that effect.” Id. (citation om itted). W e do not doubt thatMs. S tuard w as trau matiz ed by th e esp ecially a ggravated ki dnapping. Howev er, bec ause the State f ailed to introduce any expert testimony that her emotional injuries we re particula rly great co mpare d to those suff e red by every victim of an especial ly aggravated kidnapping, applicat ion of enhancement f actor (6) was not appr

opriate.

In our de n ovo review , we co nclude that the tri al court er roneously failed to apply enhancement factor (1) , that Appel lant had a previous history of crimi nal convicti ons or criminalbehavior i n additi on to those necess ary to establish t he approp riate range. See Ten n. Code An n. § 40-35-11 4(1) (1997). T he record indicates that App ellant had juvenile ad judication s for theft of p roperty ($1 ,000 to $10,000), burgla ry of an autom obile , and sex ual batter y. Juveni le convic

tions may be used to enhance th e sentence of an adult offen der. State v. Adams , 864 S.W.2d 31, 34 (Tenn. 1993). Thus, enhancement factor (1) is clear ly appli cable. Further, given the s erious natur e of these pr ior offenses, we believe t hat this factor is en titled to significa nt weigh t.

Even though we hold that t he trialcou rterr ed i n app ly ing some enhancement factors, a find ing that en hance ment f ac tors we re erro neou sly-23-

applied does n ot equa te to a reduc tion in the se ntence
. State v. Keel , 882 S.W.2d 410, 423 (Tenn. Cri m. App. 1994). We hold that enhancement factor

(1) clearly applies to this sentence and thatthis factor is e ntitled to sign ificant weig ht. We further hold th at the m itigating factor a pplica ble to this sentence is entitled to only minimal weight. Thus, we hold that a sen tence of twen ty years for esp ecially aggravated ki dnapping is appr opriate i n this case.

B. Sentence for Aggrav ated Rape

In sentencing Appellant to twen ty-five years for aggravated r

ape, the trial court found that no mitigat ing factors were appli cable. The trial court also found thatAppellant’ s sentence shoul d be enhanced b ec ause the inj uries that he infli cted on the vict im were parti cul arly great. See Tenn. Code Ann. § 40-35- 114(6) (1991997) . We agree that none of t he enumerated mitigati ng factors of Tennessee Code Anno tated s ection 40-35 -113 a re app licable to the sentence for this off ense. However, we hold that the tri al court i mproperly appl ied one enhancement factor

and should have appl ied two other enhan ceme nt factors to the sentence for this of fense.

We conclude that

the trial cou rt improperly app lied enhance ment factor (6), thatthe injuri es inflicted upon the vict im were p art icu larly gre at, for

thesame reason that we concl ude that thi s factor s hou ld n ot have been appl ied to the sentence for especi ally aggr avated kidnappi ng. The trialcourt based its deci sion to apply this fa ctor on the fact th at Stua rd’s normal l ife activiti es had been disrupted by the fe ar that r esulte d from her be in g rap ed. Ho wever, the reco rd does not indicate that any expert evidence was introduced on the extent of-24-

Stuar d’s psychologi cal inj uries. While we do not mean t o mi nimi ze t he t rau ma and fear that

Stuard undoubtedl y experien ced a s a res ult of this repreh ensib le act, the State has sim ply failed to meet its burden, under th e law, of showing t hat this factor w as app licable. See Hoyt , 928 S.W.2d at 948.

In our de n ovo review , we con clude th at th e trialcourt err oneously fai led to apply en hancement fac tor (1) to t he s ent encefor thi s of fen se for t he s ame reason tha t it s ho uld ha ve app lied this factor to the se ntenc e for es pecia lly aggravated kidnapping. This factor is enti tled to es peciall y greatweigh t for this sentence in li ght of the f act that o ne of Appellant’s prior adjudi cations was for sexual battery.

In our de novo rev iew, we als o conclude that the tri al court i mpr operl y failed to apply enhancement factor (7), tha t this offense i nvolved a vi ctim and was committed to gratify Appellant’s des ire for pleasure or e xcitem ent. See Tenn. Code Ann. § 40-35-114( 7) (19 97 ). The Tennessee Supreme Court has noted thatbe cause p leasure or excitement i s not an essential element of t he offense of rape, it may be con sidered as an ap propriate enhan ceme nt. Adams , 864 S.W.2d at 35 (citation omitted). T he record ind icates that App ellant raped Stu ard forpleasure. Appellant testif ied that h e ejaculated during sex with Stuar

d, that he felt “pure[] lust” forher, and that he “got that

good feeli ng” when he had sex with her. Thus, t he trialcourt shoul d have app lied facto r (7) to e nhan ce this sentence.-25- Because twoenhance ment factors and no mitigat ing factors apply to the sentence for aggra vated rap e, w e hold that a sentence of twenty-fiveyears for this off ense is appropr iate in this case.

C. Sentence for Reckless Enda ngerment

In sentencing Appellant to two years f or reckless endangerment, the trial court found that no m itigating factors were applicab le. The trial court als o found thatthis sentence should be enhanced because t he offense i nvolved more than
one victi m and b ecause A ppellant had no hesitati on in committing an offense when the risk to hu man life w as grea t. See Tenn
. Code A nn. § 40-35-1 14(3), (10) (1997). We agree that none of the e num erated miti gating fac tors of Tennessee Code A nnotated se ction 40-35-11 3 are applicabl e to the sentence for this offense. However, we hold t hat the tri al court i mproperly appl ied one enhancement factor

and should have appl ied one other enhancement factor to the sentence for this of fense.

The trialcourt corr

ectly appl ied enhancement factor (3) to the sentence for reckless endan germe nt b ecause Appellant’ s conduct placedmore than one person in danger of

death or seri ous bodily injury. See Tenn . Code Ann. § 40-35- 114(3) (1997). Appel lant argues that theapplicat ion of this factor to this sentence
was impro per be caus e the e xistenc e of m ultip le victi ms was pleaded in the indict ment and therefor e, was an element of the offens e. However, t he indict ment in thi s case allegedthat Appell ant “did r ecklessly

engage in conduct with a deadly weapon . . . [whi ch] placed anot her person or per sons in imminent danger of death or s erious bodi ly inj ury.” Und er the expre ss terms of t he-26-

indictme nt, the State only had to prove t hat one person wasendangered. Thus, enda ngerin g mu ltiple persons was not an el ement of the offens e as ch arged in the indictm ent. Ap pellan t’s conduct in driving a vehicleat one hundred and ten miles per hour

in hea vy traffic on Interstate 24 c learly endange red his passe nger, othermotorists, and the pursuing police off icers. Thus, applicat ion of thi s factor was appropriate.

The trial court

clearly err

ed by applying enhance ment fact or (10) to the reckl es s endangerment sentence becau se a high ri sk to human lif e is inher

ent in the offens e. State v. Robert Chapman , No. 02C01-9510-CR-00304, 1997 WL 11280, at *3 (Tenn . Crim. A pp., Jac kso n, J an. 15, 1997 ). Howe ver , f or t he s ame r eason th at enhancement factor (1) appl ied to theother sentences, factor (1) shou ld have been app lied t o thissentence as well . We hold that because two enhancement and no mitigatin g factors apply to the sentence for reckless endangerment, a sentence of two year s is enti rely appr

opriate.

X. IMPOSIT ION OF CONSECUTIVE SENTENCES
Appellant

contends that

the tri al court er red when it ordered the sentences forespe cially aggravated ki dnapping, aggrav ated rape, aggr

avated robber

y, and reckless endangerment to run consecu tively. Co nsec utive se ntenc ing is governed by Tennessee Code Annotated sect ion 40-35-115. The trialcourt has the dis cretion to orde r cons ecutive sente ncing if it finds t hat one or more of the required statutory crite ria exist. Stat e v. Black , 924 S.W.2d 912, 917 (Tenn. Cri m. App. 1995) . Fu rther, the court i s required t o determine whether the
consecu tive sentences (1) are reasonably related to the severi ty of t he offenses11 However, we do not ag ree with the trial court that

the possibl e transmission of the HIV vi rus during the

rape establ ished that Appellant

was a dangerous offender whose behavior i ndicates l ittle or no rega rd fo r hum an life and w ho ha s no h esita tion in com mittin g a cr ime in whic h the risk to hum an life is high. While t his may have been t rue if Appel lant act ually had the HIV vi rus and knew that he had the virus, there is n o evidence i n the record that Appell ant had any sexua lly transmitted disease. -27- committed; (2) serve to protect the publ ic fr om further criminal conduct by the offender; and (3) are congruent with generalprinciples of senten cing. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5).

In imposing consecutive sentences, the tri al court f ound that Appell ant was a dangerous offender who se behavior ind icates little or no regard for hum an life and who has no hesitat ion in committ ing a cri me in which the risk to human life is high. See Tenn. Code Ann. § 40-35-115(4) (199 7) . We agree. Indeed, Appellant

attempted to escape in Stuard ’s stol en vehicle by drivi ng at speeds up to one hundred and ten miles per hour and by dr iving i n between moving vehicles. Appella nt’s cond uct dem onstrate d indifferen ce to a hig h proba bility of calamitouscons eque nces to him self a nd mo torists who m he w as certain to enco unter. See Wilkerson , 905 S.W.2d at 937–38. The t rial cour t prope rl y determine d that Appe llant is a dangerou s offender. 11

Because the trial court sentenced Appe llant before Wilkerson was decided, the court made no expres s findi ng that the Wilker son te st was sati sfied. Howeve r, we conclude that it is . First , consecuti ve sentencesare clearly related to the se verity of A ppella nt’s offenses. Indeed, App ellant was con victed of five serious felony of

fenses and he put numerous livesat risk

during thi s criminal episode. If anyt hing, Appell ant is fortunate t hat he rec eived consecutive sentences for only

fourof the five convicti ons. Second, consecut ive sentence s are required in thi s case in order to protect

the publi c from furt her criminal-28-

conduct by Appellant. The record indi cates that Appellant’ s criminalconduct has beco me more and more violent with each n ew off ense . Appe llant ap paren tly began with the ft, mov ed on to vehic le burglary, then to sexu al battery, and fin ally to the viol ent offenses at issuehere. Further, the tri al court f ound that Appell ant had shown no rem orse for h is actions a nd had denied all respon sibility fo r th e aggravated rap e of Stuard. The public cer tainly needs protect ion from Appe llant’s increa singly vio lent be havior . Finally, c onse cutive s enten cing in this
case is congru ent with general pri nciples of sentencing. This issue hasno me rit.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE