IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMBER SESSION, 1996 September 18, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9601-CC-00048 Appellate Court Clerk ) Appellee, ) ) ) MONTGOMERY COUNTY VS. ) ) HON. JOHN H. GASAWAY, III JAMES W. JACOBS, ) JUDGE ) Appellant. ) (Direct Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP One Public Square, Ste. 321 Attorney General and Reporter Clarksville, TN 37040 CLINTON J. MORGAN Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493
JOHN CARNEY District Attorney General
ARTHUR BIEBER Assistant District Attorney 204 Franklin Street Clarksville, TN 37040
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
A Montgomery County Circuit Court jury found Appellant James W. Jacobs
guilty of four counts of aggravated rape, one count of aggravated sexual battery,
and one count of attempted aggravated rape. He received a twenty-two year
sentence for each of three aggravated rape convictions, a twenty-five year sentence
for the fourth aggravated rape conviction, a fourteen year sentence for the
aggravated sexual battery conviction, and a thirteen year sentence for the attempted
aggravated rape conviction. Except for the aggravated sexual battery sentence, the
trial court ordered each of the sentences served consecutively, for an effective
sentence of one hundred four years in the Tennessee Department of Correction. In
this direct appeal, Appellant presents the following issues for review: (1) whether the
trial court erred in denying his motion for a state-paid deoxyribonucleic acid (DNA)
expert; (2) whether his aggravated sexual battery conviction is void; and (3) whether
his sentence is excessive.
After a review of the record, we affirm the convictions and sentences.
I. FACTUAL BACKGROUND
As accredited by the jury’s verdict, the proof shows that, during August and
September of 1993, Appellant attacked five women. On August 22, 1993, Appellant
asked Bonnie Polster for a ride home from the Pancake House in Clarksville. At
some point thereafter, Appellant grabbed Ms. Polster by the neck, told her to get out
of the car, and threatened to hurt her if she ran. He then took her into the woods
and raped her.
On August 28, 1993, Appellant approached Jennifer Thomason from behind
as she left a party. He placed a knife to her throat, directed her to some bushes,
-2- and raped her for seven to eight minutes. Appellant then left momentarily, but
returned commenting that he “wanted some more,” and raped Ms. Thomason again,
this time for twenty to twenty-five minutes.
On September 4, 1993, Appellant accosted Angela Kim as she walked out of
a bar. Wielding a knife, he forced her to a wooded area, threatened to kill her, and
then raped her.
On September 11, 1993, Appellant approached Sue Trei from behind as she
made her way into a club. He placed a hand over her mouth and a knife to her
throat, and then pulled her up a nearby hill. He raped her for approximately one
hour, forcing her into different sexual positions. Afterwards, he moved her into a
weeded area where he performed cunnilingus on her.
On September 18, 1993, Appellant approached Angela Rood as she left a
teenage club. Despite the knife Appellant placed at her throat, Ms. Rood was able
to signal her friends for help. Appellant fled the area but was soon apprehended by
the police.
On November 1, 1993, the Montgomery County Grand Jury indicted
Appellant on six counts of aggravated kidnapping, five counts of aggravated rape,
and one count of attempted aggravated rape. The kidnapping charges were later
dismissed.
On July 15, 1994, Appellant, through counsel, filed a motion for the
appointment of a state-paid DNA expert. The trial court denied the motion.
-3- From July 18 to 20, 1994, Appellant was tried before a Montgomery County
Circuit Court jury. For the attacks on Ms. Polster, Ms. Thomason, and Ms. Kim, the
jury found Appellant guilty of aggravated rape. For the attack on Ms. Trei, the jury
found Appellant guilty of both aggravated rape and aggravated sexual battery. For
the attack on Ms. Rood, the jury found Appellant guilty of attempted aggravated
rape. As noted previously, following a sentencing hearing on September 9, 1994,
the trial court imposed an effective sentence of one hundred four years. The trial
court also found Appellant to be a multiple rapist pursuant to Tennessee Code
Annotated Section 39-13-523(a)(2), which provides that such a defendant is to serve
his entire sentence undiminished by any sentence reduction credits.
II. DNA EXPERT
Appellant first alleges that the trial court erred in denying his motion for a
state-paid DNA expert. At the time of Appellant’s motion, 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); 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 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, e.g., State v. Morgan, No. 03C01-
9511-CR-00359, 1996 WL 715423 (Tenn. Crim. App. Dec. 12, 1996) (ballistics
expert); State v. Battles, No. 02C01-9212-CR-00294, 1996 WL 551786 (Tenn. Crim.
App. Sept. 30, 1996) (investigator). While there is no Tennessee precedent for
-4- such an application of Barnett, we see no reason why its constitutional protections
should not extend to an indigent defendant’s request for a DNA expert in a non-
capital case.
However, we must first determine whether Barnett constitutes a new
constitutional rule, requiring retroactive application to Appellant’s case. According to
our Supreme Court, a case announces a new rule “when it breaks new ground or
imposes a new obligation on the States or the Federal Government.” Meadows v.
State, 849 S.W.2d 748, 751 (Tenn.1993) (quoting Teague v. Lane, 489 U.S. 288,
301 (1989)). Because Barnett now requires the State to provide expert assistance
in certain non-capital cases, a “new obligation” as anticipated by Meadows, we
believe that it does indeed announce a new rule. In Tennessee, new constitutional
rules apply retroactively to cases pending on direct review when the new rule is
announced. State v. Robbins, 519 S.W.2d 799, 800 (Tenn.1975). We will therefore
consider Appellant’s argument in light of Barnett.
To establish particularized need according to Barnett, the defendant must
show that expert assistance is necessary to protect the right to a fair trial. Barnett,
909 S.W.2d at 431. In his motion, Appellant maintained that, because the State
intended to introduce DNA evidence against him, he required his own DNA expert to
verify the results. We do not believe that the foregoing adequately demonstrates
particularized need, as required by Barnett. See, e.g., Morgan, 1996 WL 715423, at
*1-*2; Battles, 1996 WL 551786, at *6; State v. Cleveland, No. 03C01-9503-CR-
00089, 1996 WL 146695, at *5-*6 (Tenn. Crim. App. Apr. 2, 1996), perm. app.
granted, (Tenn. Dec. 9, 1996). When a motion for expert assistance is
“accompanied by little more than undeveloped assertions that the services [are]
needed to attempt to counter the State's proof," the trial court is within its discretion
in denying the request. Barnett, 909 S.W.2d at 430 (quoting State v. Cazes, 875
-5- S.W.2d 253, 261 (Tenn.1994)). Furthermore, "[m]ere hope or suspicion that
favorable evidence is available is not enough to require that such help be provided."
Barnett, 909 S.W.2d at 430 (quoting State v. Mills, 420 S.E.2d 114, 117 (N.C.
1992)). Thus, even when considered in light of Barnett, we do not believe that the
trial court abused its discretion in denying Appellant’s motion for a state-paid DNA
expert.
III. AGGRAVATED SEXUAL BATTERY
Appellant next alleges that his aggravated sexual battery conviction is void
because the judgment reflects a conviction pursuant to Tennessee Code Annotated
Section 39-2-606, a statute repealed prior to his indictment and trial. First and
foremost, this issue was not set out in Appellant’s motion for new trial and is
therefore waived. Tenn. R. App. P 3(e); State v. Sexton, 917 S.W.2d 263, 266
(Tenn. Crim. App. 1995). Moreover, Appellant cites no authority in support of his
proposition that this conviction is void and fails to acknowledge that he was indicted,
tried, and found guilty by a jury under the proper statute, Tennessee Code
Annotated Section 39-13-504. Because this error appears merely clerical in nature,
we cannot find that the aggravated sexual battery conviction is void. Such clerical
errors may be remedied by motion in the trial court pursuant to Rule 36 of the
Tennessee Rules of Criminal Procedure. See State v. Pendergrass, 937 S.W.2d
834, 837 (Tenn. 1996); State v. Tucker, No. 02C01-9511-CR-00344, 1997 WL
113891, at *1 (Tenn. Crim. App. Mar. 14, 1997).
IV. SENTENCING
Finally, Appellant alleges that his sentence is excessive. Specifically,
Appellant argues that the trial court erroneously sentenced him for aggravated
sexual battery and attempted aggravated rape as a Range II multiple offender.
-6- Appellant also argues that the trial court erred in determining the length of his
sentences and in imposing consecutive sentences.
When an appeal challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d).
However, this presumption of correctness is “conditioned upon the affirmative
showing that the trial court in the record considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In the event that the record fails to demonstrate such consideration, review
of the sentence is purely de novo. Id. If appellate review reflects that the trial court
properly considered all relevant factors and its findings of fact are adequately
supported by the record, this Court must affirm the sentence. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a review, this Court must
consider the evidence, the presentence report, the sentencing principles, the
arguments of counsel, the nature and character of the offense, mitigating and
enhancement factors, any statements made by the defendant, and the potential for
rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.
1993). The defendant bears the burden of showing the impropriety of the sentence
imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).
For the attacks on Bonnie Polster, Jennifer Thomason, and Angela Kim,
Appellant was convicted of one count of aggravated rape each, Class A felonies.
See Tenn. Code Ann. § 39-13-502(b). With respect to these convictions, the trial
court found Appellant to be a Range I standard offender. As a Range I standard
offender convicted of a Class A felony, Appellant’s statutory sentencing range for
each offense was fifteen to twenty-five years. See id. § 40-35-112(a)(1). The trial
court found the following applicable enhancement factors:
-7- (1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
(2) the offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement; and
(3) the crime was committed under circumstances under which the potential for bodily injury was great.
Id. § 40-35-114(1), (7), (16). The trial court found no mitigating factors. For each
offense, the trial court imposed a mid-range sentence of twenty-two years.
For the attack on Susan Trei, Appellant was convicted of aggravated rape, a
Class A felony, and aggravated sexual battery, a Class B felony. See id. §§ 39-13-
502(b), 39-13-504(b). With respect to the aggravated rape conviction, the trial court
found Appellant to be a Range I standard offender. As a Range I standard offender
convicted of a Class A felony, Appellant’s statutory sentencing range was fifteen to
twenty-five years. See id. § 40-35-112(a)(1). The trial court found the following
applicable enhancement factors:
(1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
(2) the defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;
(3) the offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement; and
(4) the crime was committed under circumstances under which the potential for bodily injury was great.
Id. § 40-35-114(1), (5), (7), (16). The trial court found no mitigating factors. Based
on these findings, the trial court imposed a maximum sentence of twenty-five years.
With respect to the aggravated sexual battery conviction, the trial court found
Appellant to be a Range II multiple offender. As a Range II multiple offender
convicted of a Class B felony, Appellant’s statutory sentencing range was twelve to
-8- twenty years. See id. § 40-35-112(b)(2). The trial court found the following
(1) the offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement; and
(2) the crime was committed under circumstances under which the potential for bodily injury was great.
Id. § 40-35-114(7), (16). The trial court found no mitigating factors. Based on these
findings, the trial court imposed a mid-range sentence of fourteen years.
For the attack on Angela Rood, Appellant was convicted of attempted
aggravated rape, a Class B felony. See id. § 39-12-107(a). With respect to this
offense, the trial court found Appellant to be a Range II multiple offender. As a
Range II multiple offender convicted of a Class B felony, Appellant’s statutory
sentencing range was twelve to twenty years. See id. § 40-35-112(b)(2). The trial
court found the following applicable enhancement factor:
(1) the defendant possessed or employed a firearm, explosive device, or other deadly weapon during the commission of the offense.
Id. § 40-35-114(9). The trial court found no mitigating factors. For this offense, the
trial court imposed a sentence of thirteen years.
At the conclusion of the sentencing hearing, the trial court ordered each of
the sentences served consecutively, except for the aggravated sexual battery
sentence.
A. RANGE
Appellant first contends that the trial court erroneously sentenced him for
aggravated sexual battery and attempted aggravated rape as a Range II multiple
offender. According to the Criminal Sentencing Reform Act of 1989, Range II
-9- multiple offender status requires a minimum of two but not more than four prior
felony convictions within the conviction class, a higher class, or within the next two
lower felony classes. Tenn. Code Ann. § 40-35-106(a)(1). “‘Prior conviction’ means
a conviction that has been adjudicated prior to the commission of the more recent
offense for which sentence is to be imposed.” State v. Blouvett, 904 S.W.2d 111,
113 (Tenn. 1995). In sentencing Appellant for aggravated sexual battery and
attempted aggravated rape, Class B felonies, the trial court relied upon his prior
convictions of assault with a deadly weapon, a Class C felony, and breaking and
entering, a Class D felony. We find no error here.
B. LENGTH OF SENTENCE
Appellant next maintains that the trial court erred in determining the length of
his sentences by improperly applying certain enhancement factors.
In the absence of enhancement and mitigating factors, the presumptive
length of sentence for a Class B, C, D, and E felony is the minimum sentence in the
statutory range while the presumptive length of sentence for a Class A felony is the
midpoint in the statutory range. Tenn. Code Ann. § 40-35-210(c). Where one or
more enhancement factors apply but no mitigating factors exist, the trial court may
sentence above the presumptive sentence but still within the range. Id. § 40-35-
210(d). Where both enhancement and mitigating factors apply, the trial court must
start at the minimum sentence, enhance the sentence within the range as
appropriate to the enhancement factors, and then reduce the sentence within the
range as appropriate to the mitigating factors. Id. § 40-35-210(e). The weight
afforded an enhancement or mitigating factor is left to the discretion of the trial court
so long as the trial court complies with the purposes and principles of the
Tennessee Criminal Sentencing Reform Act of 1989 and its findings are supported
by the record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).
-10- 1. EXCEPTIONAL CRUELTY
Appellant argues that the trial court improperly applied enhancement factor
(5) to his sentence for the aggravated rape of Susan Trei. The application of this
enhancement factor requires a finding of cruelty over and above that inherently
attendant to the offense. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App.
1995). Aggravated rape requires sexual penetration accompanied by the use of a
weapon. The record reveals that Appellant held Ms. Trei in fear and raped her for
approximately one hour, during which time he repeatedly humiliated her by forcing
her into different sexual positions, including on her hands and knees. Based on
these facts, we find that the record supports the application of enhancement factor
(5) to Appellant’s sentence for the aggravated rape of Ms. Trei.
2. DESIRE FOR PLEASURE OR EXCITEMENT
Appellant also argues that the trial court improperly applied enhancement
factor (7) to his sentences for each of the aggravated rapes and to his sentence for
aggravated sexual battery. In State v. Kissinger, 922 S.W.2d 482 (Tenn. 1996), the
Tennessee Supreme Court addressed the application of this enhancement factor to
rape and sexual battery:
A necessary element of sexual battery, aggravated or not, is sexual contact. Sexual contact is "intentional touching . . . if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.” Rape, on the other hand, requires sexual penetration, not sexual contact. Unlike sexual contact, sexual penetration, as defined in our Code, has no motive component. Stated otherwise, a rape committed to abuse or harm is no less a rape than a rape which is sexually motivated. It follows that enhancement factor (7), though essential to a finding of sexual battery or aggravated sexual battery, is not an element of rape or aggravated rape and, therefore, may be used as an enhancement factor in appropriate cases.
We have held that a sexually motivated rape is committed to gratify a desire for pleasure or excitement. Conversely, sexual battery requires that the touching be for the purpose of sexual arousal or gratification. Thus, the
-11- offense necessarily includes the intent to gratify a desire for pleasure or excitement. Since the factor is an essential element of the offense, it cannot be used to enhance the sentences of sexual battery and aggravated sexual battery.
Id. at 489-90 (citations omitted).
In light of Kissinger, we find that, as a matter of law, the trial court erred in
applying enhancement factor (7) to Appellant’s sentence for aggravated sexual
battery. However, the seriousness of the attack on Ms. Trei warrants giving great
weight to enhancement factor (2) and we thus affirm the sentence of fourteen years
for aggravated sexual battery.
In applying enhancement factor (7) to each of Appellant’s sentences for
aggravated rape, the trial court relied solely upon Ms. Thomason’s testimony that,
after the initial rape, Appellant stated that he “wanted some more” and proceeded to
rape her again. We believe that such testimony is sufficient to justify application of
enhancement factor (7) to Appellant’s sentence for the aggravated rape of Ms.
Thomason. However, with respect to the aggravated rapes of Ms. Polster, Ms. Kim,
and Ms. Trei, the trial court made no specific findings to support the application of
this enhancement factor. As a result, we must conduct a purely de novo review of
the sentence for these attacks.
Both Ms. Kim and Ms. Trei testified that Appellant ejaculated during their
rapes. While our Supreme Court has indicated that evidence of orgasm alone is
insufficient to justify application of enhancement factor (7), it remains a factor for
consideration. See Kissinger, 922 S.W.2d at 491. Ms. Trei further testified that
Appellant kissed her mouth and breasts, commented that “it would help if [she]
would enjoy it”, and characterized the attack as a “fling” or a “one-night stand.” The
regularity in which the attacks took place, occurring weekly for a period of five
-12- weeks, creates an inference that these aggressive actions were the manner in which
Appellant satisfied his sexual urges. Moreover, the jury’s determination that
Appellant was guilty of the aggravated sexual battery of Ms. Trei lends support for
the proposition that the other attacks were also sexually motivated. Mindful of the
dictates set out in Kissinger, we conclude that the evidence, when considered in the
aggregate, sufficiently establishes that Appellant’s desire for sexual pleasure
motivated his actions. We therefore find that the trial court’s application of
enhancement factor (7) to Appellant’s sentences for the aggravated rapes of Ms.
Polster, Ms. Kim, and Ms. Trei was proper.
C. CONSECUTIVE SENTENCING
Appellant submits that the trial court erred in imposing consecutive
sentences. However, he makes no specific argument to support his position.
When imposing sentences for multiple offenses, the trial court has the
discretion to order the sentences served concurrently or consecutively. Tenn. Code
Ann. § 40-20-111(a); State v. Anderson, 880 S.W.2d 720, 727 (Tenn. Crim. App.
1994). The imposition of consecutive sentences is appropriate if the defendant has
been convicted of more than one offense and the trial court finds, by a
preponderance of the evidence, one or more of the following criteria:
(1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive; (3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
-13- (4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant’s undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
Here, the trial court relied upon Appellant’s extensive criminal record in
ordering consecutive sentences. See id. § 40-35-115(b)(2). Appellant’s
presentence report reflects three convictions for breaking and entering, three
convictions for felony escape, a conviction for assault with a deadly weapon, a
conviction for assault with intent to rape, a conviction for petit larceny, and two
convictions for marijuana possession. In light of the foregoing, we find that the trial
court acted within its discretion in imposing consecutive sentencing based upon
Appellant’s criminal record. We further find that consecutive sentences are
necessary to protect the public from Appellant’s possible future criminal conduct and
that the aggregate sentence is reasonably related to the severity of Appellant’s
present offenses. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); State
v. Woodcock, 922 S.W.2d 904, 915 (Tenn. Crim. App. 1995).
Accordingly, the convictions and sentences are affirmed.
____________________________________ JERRY L. SMITH, JUDGE
-14- CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ DAVID H. WELLES, JUDGE
-15-