State v. John Allen Chapman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY SESSION, 1997 FILED
September 30, 1997

Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9604-CC-00137
Appellee )
) GRUNDY COUNTY
vs. )
) Hon. THOMAS W. GRAHAM, Judge
JOHN ALLEN CHAPMAN, )
) (First Degree Murder; Aggravated
Appellant ) Kidnapping; Aggravated Sexual
) Battery)

For the Appellant: For the Appellee:

PHILLIP A. CONDRA CHARLES W. BURSON
District Public Defender Attorney General and Reporter
P. O. Box 220
204 Betsy Pack Drive MICHAEL J. FAHEY, II
Jasper, TN 37347 Assistant Attorney General
Criminal Justice Division
(AT TRIAL AND ON APPEAL) 450 James Robertson Parkway
Nashville, TN 37243-0493

ROBERT S. PETERS
Attorney at Law J. MICHAEL TAYLOR
3rd National Bank Building District Attorney General
100 1st. Avenue, S.W. 1st American National Bank Building
Winchester, TN 37398 Dayton, TN 37321

(AT TRIAL ONLY) THOMAS D. HEMBREE
Asst. District Attorney General
Lawyer's Building
Jasper, TN 37347

OPINION FILED:

AFFIRMED

David G. Hayes
Judge
 OPINION

The appellant, John Allen Chapman, appeals from the April 2, 1994,

Grundy County jury verdict finding him guilty of first degree murder, aggravated

kidnapping, and aggravated sexual battery. The jury fixed the appellant’s

sentence at life imprisonment for first degree murder and the trial court imposed

maximum sentences of twelve years each for the remaining offenses and

ordered all sentences to be served consecutively. On appeal, the appellant

challenges:

I. The sufficiency of the indictment charging aggravated
kidnapping;

II. The sufficiency of the evidence for all three convictions;

III. The admission of DNA evidence;

IV. Denial of the appellant's motion to suppress blood samples
obtained during the investigation;

V. Failure of the trial court to properly instruct the jury regarding
identity;

VI. The scope of cross-examination of State’s witnesses; and

VII. Sentencing: length of sentences and imposition of consecutive
sentences.

After review, the judgment of the trial court is affirmed.

BACKGROUND

Guilt Phase

On April 19, 1990, Michelle Blake, the victim in this case, was employed

as a clerk at the Pit Stop South, a gas and convenience store in McMinnville.

Mrs. Blake was twenty-six years old, married and the mother of a four-year-old

daughter. On this date, she was scheduled to work the 3:00 p.m. to 11:00 p.m.

2
shift. At 5:15 p.m., Mrs. Blake's husband, William Blake, arrived at the Pit Stop

South to pick up the couple's vehicle, a Ford Bobcat. He left the business,

traveled to a video store, and then went home. As was customary, Blake was to

return to the Pit Stop later that evening with his wife’s dinner.

Around 8:30 p.m., Ed Martin stopped at the store to purchase gasoline.

Martin pumped three dollars worth of gasoline and went inside the store to pay.

As Martin was leaving the store, Mrs. Blake remarked, "I wish he'd go ahead and

leave. I've already pumped his gas," referring to a man sitting outside the front

of the store in an older model gray Chevrolet pick up truck which displayed

Grundy County license plates.

Fifteen minutes later, around 8:45 p.m., Sylvia Fults and her husband

pulled into the drive-through window of the Pit Stop South to purchase cigarettes.

Although she depressed the customer assistance button, no clerk appeared.

She then noticed Mrs. Blake at the full service pump with a jug in her hand.

Mrs. Blake re-entered the store to wait on Fults. While waiting on Fults, Mrs.

Blake

talked about this guy being there before getting gas and talking
about him being so weird. She said he had been there earlier and
got gas in his truck and he had left or started to leave, and came
back and had her put gas in a can, and she said, 'Now he's back
wanting it in a jug.'

Mrs. Blake also told Fults that this man had asked her if she had wanted any

help since she was at the store by herself. During this conversation, Fults

noticed a man in the store who looked like he was trying to scare Mrs. Blake.

When she was leaving the parking lot, she observed a "gray primer color" pick

up truck with chrome parked in front of the store.

Mary Jones lives across the street from the Pit Stop South. Around 8:55

3
p.m. on April 19, 1990, she heard what she thought to be a scream coming from

the front of her house. After hearing an apparent second scream, she went to

her front porch where she observed a truck on the Pit Stop’s parking lot. She

stated that the truck was a "gray primer color" and had a Chevrolet logo across

the back of the tailgate. She noticed a man and a woman in the truck. Ms.

Jones related that “at one time it looked like she pulled away from him.” She

assumed that, more than likely, it was simply a “domestic problem." The truck

then pulled out of the parking lot and onto Highway 55. She commented that, as

the truck left the parking lot, it was going very fast and that it made loud sounds.

At 9:05 p.m., as planned, William Blake returned to the Pit Stop South

with his wife's, dinner. When he arrived at the Pit Stop, he noticed two vehicles

in the parking lot. Two customers approached him and inquired as to "what was

going on" as there was no attendant on duty. Immediately, Blake began to

search the premises for his wife. During this search, one of the customers

discovered Mrs. Blake's eyeglasses in the parking lot. At this point, the police

were called and the owner of the station, Mr. Stanton, arrived. After inspecting

the premises, Mr. Stanton stated that no money had been taken from the cash

register, although the key that functioned as the "on-off" switch was missing. A

search then began in Warren County for Michelle Blake.

Joe Roper informed law enforcement officials that, while traveling home

on the evening of April 19, 1990, on route 108, a vehicle came up behind him at

an excessive rate of speed and passed him on a double yellow line. He

described the vehicle as being a gray Chevrolet pick up truck with large tires and

Grundy County license plates. Roper also stated that there were two people in

the truck. Dale Winton reported that, at 9:05 p.m., he was traveling on highway

127 when a vehicle came up behind him "real fast" and swerved around him,

4
almost running him off the road.1 He described the vehicle as being a dark

colored 1979 or 1980 Chevrolet pick up truck with "cherry bomb mufflers" and

chrome on the side of the truck.

Danny Wannamaker, whose residence is directly adjacent to the

Philadelphia Cemetery in Grundy County, testified that, at around 9:20 p.m. on

April 19, 1990, he took a shower and prepared for bed. Around 9:50 p.m., he

heard a vehicle that sounded like it did not have a muffler. He looked out the

window, but did not see anything. Again, he heard the vehicle stop for a few

minutes, then "the motor was turned off, cranked back up and took off, again

approaching the house." Herbert Lewis, who also lives behind the Philadelphia

Cemetery, was at home alone on the evening of April 19, 1990. Shortly after

9:30 p.m., he heard what appeared to be a female screaming for help, followed

shortly thereafter, by a loud vehicle coming around the bend from behind the

graveyard. He explained that he was not alarmed by the screams because he

was “use (sic) to hearing people screaming, raising cane (sic) at the volleyball

court."

The next morning between 7:00 and 7:30 a.m., Sharon Shannon, the

daughter of Herbert and Melba Lewis, dropped her six-month-old son off at her

parents' home. As she was leaving, she spotted what at first appeared to her to

be shoes, however, she soon realized it was a body. Because her eleven year

old daughter was in the vehicle with her, she did not stop, but returned to her

parents' home instead. After leaving her daughter with her parents, Shannon

returned to the cemetery to verify the presence of the body and then contacted

the authorities. The body was identified as that of Michelle Blake.

1
The proof at trial revealed that a motorist traveling between the Pit Stop South and the
Philadelphia Cem etery would take Highway 55 to 108, 108 to 127, 127 to 56, 56 to the Grundy
County line, then to the cemetery. The total distance of this trip is approximately 16.2 miles. At
the poste d speed rate, th is dista nce take s an average of twe nty m inutes to travel.

5
 An investigative team with the Tennessee Bureau of Investigation arrived

at the scene. The victim was found fully clothed with her blouse partially

unbuttoned. Her brassiere was missing. The victim's body was examined for the

presence of hair, fibers, and fingerprints. Joe Minor, a member of the

investigative team, testified that a whitish stain which appeared to be semen was

discovered on the left breast of the victim’s body. The whitish stain extended

from the victim’s breast to her stomach. Examination of the stain revealed that

the substance did contain spermatozoa, and further testing indicated that the

source of the semen was a Type B secretor.

Dr. Charles Harlan, the chief medical examiner for the State of

Tennessee, performed an autopsy upon the body of Michelle Blake on April 21,

1990. His report identified a total of seven stab wounds, one to the left side of

the neck, four to the left breast, and two to the mid-line of the back. He indicated

that the wounds were caused by a single sided instrument, three to three and

one-half inches in length. Three of the wounds caused damage to main organs

which resulted in the victim's death, i.e., damage to the carotid artery, damage to

the heart, and damage to the right lung. He opined that death occurred within

three to ten minutes of the injuries. The medical examiner further explained that

a sharp line of demarcation existed on the victim's neck, indicative of ligature

strangulation. He noted there were no defensive wounds and no evidence of

forcible vaginal intercourse. He also determined that the victim's blood was

type O.

Despite descriptions of the perpetrator, his truck, and available scientific

evidence, the case remained unsolved for over two years. In July, 1992, Special

Agent Larry Davis with the Tennessee Bureau of Investigation, was called to

6
assist Grundy County officials in the investigation of the June 7 murder of Vicky

Sue Metzger, whose body was discovered at the I-24 Eastbound Rest Area near

Monteagle. On July 13, Davis interviewed the appellant who was the attendant

on duty at the rest area on the date of the murder. The attendant at the

westbound rest area was also interviewed. Neither man was placed under

arrest, although both men were asked to submit blood samples for DNA

comparison analysis on semen found on the victim. On November 5, 1992,

Davis was requested to assist in the investigation of an assault on another victim

at the I-24 Eastbound Rest Area. On this occasion, the appellant was identified

as the assailant and was in custody at the Monteagle police station when

interviewed by Agent Davis. The appellant "stated that he had assaulted the

victim because he had been drinking and smoking marijuana." Again, the

appellant submitted to blood testing. 2

From these tests, it was determined that the appellant has Type B blood.

Review of the case file at this point led authorities to the belief that the appellant

may have been involved in the 1990 death of Michelle Blake. DNA comparison

analysis was then requested on the appellant's blood sample and the semen

sample recovered from Mrs. Blake's body. The results from the tests revealed

that the DNA binding pattern on each sample matched. Additional forensic tests

established that fibers found on the victim's clothing were consistent with the

fibers found in the carpet of the appellant’s Chevrolet pick up truck. The proof at

trial established that, in April, 1990, the appellant lived in Grundy County and

was employed by a nursery in Warren County. On occasion, after regular

working hours at the nursery, he would work for his supervisor, Floyd Hardcastle,

who lived in Warren County. When working for Mr. Hardcastle, his commute to

and from home would take him by the Pit Stop South. The appellant admitted

2
Evidence of the crim es against V ick y Metzger an d Pam ela Sue Back, the second victim
at the I-24 eastbound Rest Area, was developed during pre-trial suppression hearings.

7
that he had, on occasion, purchased gas at the Pit Stop South. However, when

showed the photograph of Michelle Blake at trial, he stated that he did not

recognize her. On cross-examination, the State introduced a payroll check from

Hardcastle to the appellant, dated March 3, 1990, which was cashed at the Pit

Stop South, bearing the initials “M.B.” The initials were identified as being those

of Michelle Blake. The appellant also admitted that, in April, 1990, he owned a

1977 gray Chevrolet short-bed pickup truck which displayed Grundy County

license plates. He stated that he sold the truck in the spring of 1991.

Additionally, the proof established that, in April of 1990, the appellant’s truck had

other matching characteristics to that of the truck driven by the abductor of

Michelle Blake.

Based upon the evidence introduced, the jury convicted the appellant of

first degree murder, aggravated kidnapping, and aggravated sexual battery.

Following the testimony of various defense witnesses and the proof

introduced at the guilt phase, the jury fixed the appellant’s sentence for first

degree murder at life imprisonment.

Sentencing Phase: Aggravated Kidnapping and Aggravated Sexual Battery

The hearing to determine the appropriate sentences for the appellant's

remaining convictions was held on May 12, 1994. The presentence report

revealed that, at the time the report was prepared, the appellant was a twenty-six

year old Caucasian male, married, and the father of a three year old son. He

has a tenth grade education. After dropping out of school, he joined the

Tennessee National Guard. He received an honorable discharge in 1992

attaining the rank of E-4. He admits to being an alcoholic and to occasional

marijuana use. Since 1987, the appellant has worked for various employers in

8
the nursery business and, briefly, as a rest area attendant. Regarding the

appellant's prior record, the report indicated that the appellant, on the date of the

sentencing hearing in this case, had one count of first degree murder, one count

of aggravated rape and two counts of aggravated robbery pending in the Grundy

County Circuit Court. Additionally, the appellant has three prior convictions for

driving while intoxicated, one conviction for possession of marijuana, and one

conviction for driving on a revoked license. He was arrested for possession of a

weapon for purposes of going armed, however, this charge was dismissed upon

payment of costs and confiscation of the firearm.

Larry Davis, a special agent with the TBI, testified regarding his

investigation of the murder of Vicky Sue Metzger and the assault of Pamela Sue

Back. He explained that, through his investigation of these two cases, the TBI

was able to target the appellant as a suspect in the present case. He also

recounted the appellant's confession to the assault on Pamela Sue Back.

The trial court found three non-statutory mitigating factors and five

statutory enhancement factors applicable. In doing so, the court imposed the

maximum sentence of twelve years for each conviction within the range.

Moreover, based upon the allegations of the pending indictments, the court

concluded that the appellant was a dangerous offender and ordered that all

sentences be served consecutively.

I. Sufficiency of the Indictment

The appellant first contends that the indictment for aggravated kidnapping

is void because it fails to set forth the essential elements of the offense.

Specifically, he argues that the indictment fails to allege the elements of false

9
imprisonment, which is an essential element of aggravated kidnapping. Count

two of the indictment, which charged the offense of aggravated kidnapping,

alleged in pertinent part as follows:

JOHN ALLEN CHAPMAN . . . did unlawfully, (intentionally), . . .
remove and confine one Michelle Darlene Blake with the intent to
inflict serious bodily injury upon the person of the said Michelle
Darlene Blake, in violation of . . . Tenn. Code Ann. § 39-13-301. . .
.3

(Emphasis added)

The appellant acknowledges that the charging instrument includes the

statutory language “did unlawfully . . . remove and confine” one Michelle Darlene

Blake. He argues, however, that the failure of the indictment to include the

remaining statutory language “so as to interfere substantially with the other’s

liberty” renders the indictment void.

An indictment should state the facts constituting the offense in ordinary

and concise language in such a manner as to enable a person of common

understanding to know what is intended, and with that degree of certainty which

will enable the court, on conviction, to pronounce the proper judgment. Tenn.

Code Ann. § 40-13-202 (1990); State v. Marshall, 870 S.W.2d 532, 537 (Tenn.

Crim. App. 1993). This court recently held that “[i]f an offense is alleged in such

a way that the defendant cannot fail to be apprised of the elements of the

offense, the indictment is sufficient, notwithstanding the fact that an element may

not be specifically alleged.” See State v. John Haws Burrell, No. 03C01-9404-

CR-00157, (Tenn. Crim. App. at Knoxville, Feb. 11, 1997) (Rule 11 application

filed, April 10, 1997).

The indictment in this case alleges that the appellant removed and

3
Tenn. Code Ann. § 39-13-304(a) (1989) defines aggravated kidnapping as "false
imprisonment com mitted . . . (3) with the intent to inflict serious bodily injury. . . ." False
imprisonm ent is the know ing rem oval or confinem ent of ano ther u nlawfully so as to interfe re with
the other's liberty. Ten n. Code A nn. § 39-13-30 2 (1989).

10
confined Michelle Darlene Blake with the intent to inflict serious bodily injury. We

find the language of the indictment provides constitutionally sufficient notice of

the offense charged as well as suitable protection against double jeopardy. This

issue is without merit.

II. Sufficiency of the Evidence

Next, the appellant challenges the sufficiency of the convicting evidence

as to each count of the indictment. Within this challenge, he alleges (1) that the

evidence fails to prove, in regards to the aggravated kidnapping conviction, that

"any removal or confinement substantially interfered with the victim's liberty;" (2)

that, concerning the aggravated sexual battery conviction, there was no proof of

unlawful sexual contact with the victim; and (3) that the State failed to establish,

by either lay or expert testimony, that the appellant was, indeed, the perpetrator

of the offenses committed against Ms. Blake.4

When a challenge is made on appeal to the sufficiency of the convicting

evidence, this court must adhere to certain well-established principles. First, a

jury conviction removes the presumption of innocence with which a defendant is

initially cloaked and replaces it with one of guilt, so that on appeal a convicted

defendant has the burden of demonstrating that the evidence is insufficient.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Next, the State is entitled to

the strongest legitimate view of the evidence and all reasonable or legitimate

inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). Moreover, this court may not reweigh or reevaluate the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Viewing the evidence

under these criteria, it is this court's responsibility to affirm the conviction if the

4
The appellant does not challenge the sufficiency of the convicting evidence as to the
offense of first d egree m urder other than to th e issue of the perpetrator's identity.

11
proof was sufficient for any rational trier of fact to have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994); Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt

predicated upon direct evidence, circumstantial evidence, or a combination of

both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990).

A. Aggravated Kidnapping

The jury found the appellant guilty of aggravated kidnapping pursuant to

Tenn. Code Ann. § 39-13-304(a). In order to obtain a conviction under this

statute, the State must prove that the defendant committed the act of false

imprisonment, as defined in §39-13-302, supra note 5, with the intent to inflict

serious bodily injury. . . ." Tenn. Code Ann. § 39-13-304. The proof establishes

that Mrs. Blake disappeared from the Pit Stop South during her scheduled shift,

leaving behind her eyeglasses, which were later found in the parking lot. Her

disappearance coincided with the appearance of the appellant at the

convenience store. Mrs. Blake did not know the appellant. Various witnesses

thought they heard the victim's screams. The following morning, the victim was

found brutally murdered. We find nothing from these facts to suggest that the

departure of the victim from her place of employment was occasioned by any

thing other than removal and confinement by force, ultimately resulting in her

death. This issue is without merit.5

B. Aggravated Sexual Battery

Next, the appellant challenges his conviction for the aggravated sexual

battery committed against Michelle Blake. Although he concedes that the proof

5
W ithin this issue, the appellant, again, contends that the indictment fails to allege that
"any removal or confinement substantially interfered with the victim's liberty." This contention has
prev iously been add ressed in Section I, and, w as fo und to be withou t m erit.

12
establishes serious bodily injury, i.e., multiple stab wounds, he contends that

there is "no proof of any sexual contact with Mrs. Blake's body either before or

after her death. The entire proof on this issue consisted of the testimony that. . .

a semen stain was recovered from the left portion off her body extending from

her left breast to her abdominal area." He argues that the "record discloses no

evidence whatsoever that the victim's intimate parts were touched as part and

parcel of a sexual act."

In order to sustain a conviction for aggravated sexual battery, this court

must find that the proof establishes that the appellant made unlawful sexual

contact with the victim and caused bodily injury to the victim. Tenn. Code Ann. §

39-13-504 (a)(2) (1989). "'Sexual contact' includes the intentional touching of

the victim's, the defendant's, or any other person's intimate parts, or the

intentional touching of the clothing covering the immediate area of the victim's,

defendant's, or any other person's intimate parts, if that intentional touching can

be reasonably construed as being for the purpose of sexual arousal or

gratification." Tenn. Code Ann. § 39-13-501(6) (1989) (emphasis added).

"'Intimate parts' includes the . . . breast of a human being." Tenn. Code Ann. §

39-13-501(2). Again, as the appellant concedes, the proof showed semen stains

on Michelle Blake's left breast and abdomen. DNA evidence, identity testimony,

and other circumstantial evidence linked the appellant to the crimes committed

against Mrs. Blake. Clearly, from the proof introduced, the jury could have

rationally inferred that it was the appellant who deposited the semen on the

victim's breast. This fact is sufficient to establish sexual contact. Our statute

does not require that “intentional touching” of the victim’s intimate part result from

direct contact with the defendant’s hand or any other part of the defendant’s

body. This issue is without merit.

C. Identity of the Perpetrator

13
 The appellant's main contention regarding his challenge to the sufficiency

of the evidence is that the proof fails to establish that he is the perpetrator of the

offenses. Specifically, the appellant questions the reliability of eyewitness

testimony identifying him "as the individual at the Pit Stop South at or near 8:50

p.m. or thereafter on April 19," and, he attacks the accuracy of the scientific

evidence due to deficient collection of evidence and inappropriate scientific

procedures.6 The State responds that both the direct and circumstantial proof

establish the appellant as the offender in this case.

Ed Martin and Sylvia Fults provided identification testimony at trial.7

Moreover, the proof at trial revealed numerous matching characteristics between

the appellant’s truck and the truck driven by the abductor of Michelle Blake. Both

trucks were described as older model trucks, both short-wheeled base, both gray

in color, both displayed Grundy County license plates, both had loud mufflers,

both had chrome on the side, and both had the name “Chevrolet” on the tailgate.

Fibers later obtained from the appellant's truck were consistent with those

obtained from Michelle Blake's clothing. Other proof revealed that testing of the

semen found on Michelle Blake's body indicated that the perpetrator has Type B

blood. The appellant has Type B blood. Moreover, the DNA binding patterns

obtained from the two samples matched.8

The State must prove beyond a reasonable doubt that the accused is the

person who committed the offense. See White v. State, 533 S.W.2d 735, 744

(Tenn. Crim. App. 1975), perm. to appeal denied, (Tenn. 1976). Identity of the

6
The appellant co nte sts the adm issibility of the D NA opinion evidence. T his allegation is
add ressed as a sep arate issue by the app ellant and w ill be so addre sse d by this cou rt. See infra
Section III.

7
Although less than pos itive identifica tion wa s pro vided by either, Ed M artin tes tified, "I
think I can identify the person in the truck," and pointed to the appellant. Fults testified that the
app ellant looked like th e m an s he s aw a t the Pit Stop S outh “exc ept fo r the hair and we ight.”

8
The frequency of the binding pattern in Caucasians is 1 in 19,000.

14
accused may be accomplished by either direct or circumstantial evidence, or

both. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). The

determination of identity is a question of fact for the jury after a consideration of

all competent evidence. See Biggers v. State, 411 S.W.2d 696, 697 (Tenn.),

cert. granted, 390 U.S. 404, 88 S.Ct. 979 (1968) (affirmed on other grounds);

Marable v. State, 313 S.W.2d 451 (Tenn. 1958); State v. Crawford, 635 S.W.2d

704 (Tenn. Crim. App. 1982); State v. Hodge, No. 6 (Tenn. Crim. App. at

Jackson, June 30, 1987). Likewise, the determination of whether all reasonable

theories are excluded by the circumstantial evidence presented is primarily a

question of fact for the jury. Pruitt v. State, 460 S.W.2d 385 (Tenn. Crim. App.

1970); Hodge, No. 6. This case is based entirely upon circumstantial evidence.

Before an accused may be convicted upon circumstantial evidence alone, the

facts must be “so clearly interwoven and connected that the finger of guilt is

pointed unerringly at the defendant and the defendant alone.” State v. Howell,

868 S.W.2d 238, 253-254 (Tenn.), cert. denied, - - U.S. - -, 114 S.Ct. 1339

(1993).

We conclude that the proof in the record points the finger of guilt

unerringly at the appellant and the appellant alone, and that the proof was

sufficient for a jury to have found the essential elements of the offenses beyond

a reasonable doubt.

III. DNA Opinion Evidence

Prior to trial, the appellant filed a motion in limine seeking to exclude the

results of a DNA profiling analysis performed by Cellmark Diagnostics, a private

Maryland laboratory contracted by the Tennessee Bureau of Investigation in the

present case. These results revealed that the appellant's DNA matched DNA

15
samples (semen) recovered from the victim. At the conclusion of a lengthy

hearing on the appellant's motion, the trial court, after considering the testimony

of Dr. Lisa Forman, a Cellmark representative, ruled that the expert testimony

concerning the DNA analysis was admissible.

At trial, Dr. Forman and Julie Cooper, a senior molecular biologist with

Cellmark, testified on behalf of the State regarding Cellmark's testing procedures

and the results attained in the present case. To rebut this testimony, the

defense presented the testimony of Dr. Marvin Shapiro, a professor at Emory

University, and Dr. Ronald T. Acton, a professor at the University of Alabama.

Dr. Shapiro opined that Cellmark used an insufficient database by failing to

employ an Appalachian subgroup database, in determining their frequency

calculation, and, as such, their results cannot be deemed accurate or reliable.

Dr. Acton commented on the ongoing concerns in the scientific community with

the use of ethidium bromide at the beginning of the analysis procedure.9 He

further noted that Cellmark's combination of probes furnished results which were

just an estimate at best and that Cellmark's method of combining probes has not

been scientifically validated.

On appeal, the appellant contends that the trial court failed to properly

apply Tenn.R.Evid. 702, 703, and 403 in reaching its decision to allow the State

to introduce DNA opinion testimony. Specifically, he asserts that the testimony

introduced by representatives of Cellmark Diagnostic, the testing laboratory, is

inadmissible because Cellmark's testing procedure indicates a "lack of

trustworthiness." In this regard, the appellant contests:

(1) Cellmark's use of ethidium bromide in the agarose gel before
electrophoresis;

9
Ethidium bromide is a florescent dye that binds to DNA, allowing it to be visualized.

16
 (2) Cellmark's selection and use of a Caucasian database from
Delaware and failure to use a database exclusively from
Appalachia; and

(3) Cellmark's statistical analysis of the population frequencies.

The appellant challenges specific techniques employed by Cellmark in the

DNA analysis performed in this case. Due to the complex nature of the subject

matter, an understanding of the structure of the DNA molecule and the precise

procedures utilized is helpful to our review.

A. Scientific Background

I. DNA Structure

The DNA molecule is a double helix, shaped like a twisted ladder.

Phosphate and deoxyribose sugar form the rails of the ladder. Four chemical

bases -- Adenine (A), Cytosine (C), Guanine (G), and Thymine (T) - lie next to

each other on the sugar links along the sides of the ladder. Each A always

bonds with a T on the other side of the ladder, and each C always bonds with a

G on the other side of the ladder, so that the possible base pairs on the ladder

are A-T, T-A, C-G, and G-C. The base pairs, e.g., A-T, C-G, are connected by a

hydrogen bond, such that the bonds form the rungs of the ladder. There are

approximately three billion base pairs in one DNA molecule. The sequence of

the base pairs is the same in every cell of a person's body.

Of the three billion base pairs, ninety-nine and nine-tenths percent are

identical among all human beings. It is this identity that makes humans look like

humans. Thus, only the remaining one-tenth of one percent of a person's base

pairs vary from person to person.10 These sequences of variation from person to

person are known as polymorphisms. Polymorphisms are the key to DNA

10
W e note that identical twins have all three billion pairs the same.

17
identification because they create the individual characteristics of each human

being and they are detectable in laboratory testing.

ii. Generating DNA Profiles

Testing for DNA identification involves disassembling the ladder (DNA

molecule) in one of several ways. Cellmark Diagnostics, the testing laboratory in

this case, employs the Restriction Fragment Length Polymorphism (RFLP)

method of analysis. The RFLP method determines if there is a "match." A

"match" does not mean that the suspect is with certainty the source of the

genetic material found at the crime scene or on the victim, but only that the

suspect cannot be eliminated as a potential source. RFLP analysis involves

extracting and isolating small portions of the DNA molecule to examine sites on

the DNA that exhibit highly variable characteristics.11

The preliminary procedure is to extract a DNA molecule from a sample of

certain tissue or bodily fluid by using chemical enzymes and then to purify that

sample. The DNA molecule is "cut" into smaller fragments with chemical

scissors called restriction enzymes. These enzymes recognize certain base

pairs and sever the DNA molecule at specifically targeted base pair sites to

produce RFLPs. The cut fragments of DNA molecules (RFLPs) are next placed

in an agarose gel and ethidium bromide is incorporated into the gel.12 The gel is

then electrically charged to sort the fragments by length. This process is known

as electrophoresis. The electric current causes the fragments to migrate through

the gel. The distance traveled depends upon the length of the fragments; the

11
The following procedure explained herein summ arizes the RFLP procedure utilized by
Cellmark D iagnostic in the present case. W e acknowledge, however, that other variations of the
RFLP m ethod of DNA analysis exist and are employed successfully by other laboratories.

12
Questions have arisen concerning the use of ethidium brom ide at the beginning of the
process. Using ethidium brom ide prior to electrophoresis has been shown to alter the mobility of
fragm ents at high DN A co nce ntration s, thus de creasing the reliability of fragm ent size
measurem ents.

18
shorter fragments, because they are lighter, will travel further in the gel. Once

migration has ceased, the fragments of known base pair lengths are placed in

separate lanes to allow the measurement of RFLPs in units of base pairs. A

nylon membrane is placed over the gel, permanently transferring the RFLPs to

this more functional surface.13 A denaturization process occurs during this step,

severing each double-stranded DNA fragment into two single strands. This

facilitates detection of specific RFLPs and Variable Number Tandem Repeats

(VNTRs), i.e., the number of repeat core sequences of base pairs which

determine the length of each RFLP.

RFLPs that are defined by specific sequences are detected by

hybridization with a genetic probe, a single stranded segment of DNA tagged

with a radioactive reporter molecule designed to detect a complementary single

strand base sequence.14 The membrane is placed in a bath that contains the

probe, and the probe hybridizes to the target denatured RFLP.

Next, the nylon membrane is placed in contact with a piece of x-ray film

where the radioactive probes expose the film at their respective locations.15

Black bands appear where the radioactive probes have bonded to the RFLPs,

producing a DNA "print," or autorad. The position of each band indicates the

location of a polymorphic segment on the blot. Location, in turn, indicates the

length of the DNA fragment that contains the polymorphic DNA segment.16 The

particular region on the DNA where a specific VNTR occurs is called a locus. A

locus is considered polymorphic when the number of VNTRs varies from

individual to individual. Each locus consists of variant forms of genes known as

13
Th is proces s is k now n as "Sou thern Blotting."

14
The probes utilized in this case were MS1, MS31, MS43, G3.

15
This pro cess is re ferred to as autoradiography.

16
It is the length of the DNA fragments that individualizes each living thing, thus, the
position of the bands on a DNA print can differentiate individuals.

19
alleles. Two allele forms occupy each locus, one on a chromosome inherited

from the mother, and one on a chromosome inherited from the father. When the

same form of allele occupies both loci on the chromosomes the individual is

homozygous for that allele, and when different alleles occupy the loci, the

individual is heterozygous for both alleles.17 Typically, this process is repeated

with four or five different probes. Several probes are necessary because,

although the degree of individualization for the two alleles that occur on one

locus is not high, it is extremely rare for two people to have eight or ten matching

alleles across four or five different loci.

The last step in the RFLP process is to determine if a match exists in the

two lanes of the autorad between the DNA sample from the suspect and the

forensic sample taken from the crime scene or the victim.18 If it matches, the

analyst must determine the likelihood that someone other than the suspect might

have the same DNA pattern. This calculation of the probability of a random

match generates a ratio to accompany a match, the purpose of which is to

express the statistical likelihood that an unrelated person chosen at random from

a particular population could have the same DNA profile as the suspect.

iii. Frequency Calculations

The initial process in generating this ratio involves the creation of an

autorad database. In the present case, Cellmark's database was comprised of

DNA autorads from Caucasian individuals who donated blood at a Delaware

blood bank, along with an African-American database, and a Hispanic database.

Racially similar databases are used to create a greater likelihood of a DNA

profile match, which safeguards against understating the probability of a random

17
The alleles which comprise the loci consist of multiple pairs of the nucleotide bases A, T,
G, a nd C , supra, wh ich bond according to th e base pair rule . In order to generate a profile that is
unique, C ellm ark studies four highly variab le sites referred to as polym orph ic loci.

18
In the present case, the six bands that were obtained from the DNA sam ple (semen)
recovered from the victim m atch the six ban ds o btaine d from the D NA labeled Jo hn C hap m an.

20
match.

Once a database is constructed, autorad band frequencies are calculated

by comparing the known bands with the database bands to determine how

frequently bands match. Scientists use either fixed or floating bin analysis to

calculate match frequencies. Binning helps to account for variables in recording

autorads, and provides confidence limits on frequency estimates. Cellmark

employs a floating bin analysis. Floating bin analysis focuses on the autorads

obtained from the evidence sample, around which individual bins are

constructed. Typically, floating bins are constructed with a resolution tolerance

of a certain number of standard deviations centered around the evidence band.

Database bands which fall within the bin created from the evidence band are

then assigned to the evidence band's floating bin to calculate band frequencies.

Binning typically results in higher probable match frequencies. The higher match

frequencies weigh in a suspect's favor because the probability calculations will

yield a greater chance of a random match.19

After individual band frequencies are calculated, the likelihood that the

complete autorad would be duplicated in a randomly selected individual is

calculated using the product rule. The product rule is simply the mathematical

formula used to determine the probability that two independent events would

occur simultaneously, calculated by multiplying the probability of each event.

Two product rule calculations are required to determine the likelihood of a

random profile match. First, the frequency of a match at each locus is

19
In the present case, a combination of two bands was necessary in order to calculate the
frequency. Cooper used the analysis specific to probes MS1 and MS31 because they could be
identified in the evidence as well as in the blood. However, the remaining three bands were either
MS43 or G3. So, a combined analysis was completed on the final three bands. Cooper testified
that the com bination of data in determining a frequenc y statistic results in a m ore cons ervative
num ber.

21
calculated.20 After the frequency for each locus is calculated, the frequency of

the complete genotype (genetic makeup of an organism) is calculated by

multiplying together the four loci frequencies.

Product rule probabilities are only accurate estimates if the events

underlying the calculations are truly independent and random. Independence

means the probability of finding one allele is not affected by having found any

other allele. For each locus, event independence occurs when there is no

correlation between the allele inherited from an individual's mother and the allele

inherited from that individual's father. When no correlation between the two

parental alleles exists the population sample is considered in Hardy-Weinberg

equilibrium.21 Several critics have noted that there is a problem in that the

product rule method is based on incorrect assumptions that (1) members of the

racial groups represented by the broad data bases, Caucasians, Black, Hispanic,

etc., mate within their groups at random, without regard to religion, ethnicity, and

geography, and (2) the DNA fragments, identified by DNA processing behave

independently and they are independent in a statistical sense. Contrary to the

assumption of random mating, ethnic subgroups within each random data base,

tend to mate within a specific subgroup, e.g., the Appalachian subgroup, Jewish

subgroup. Such endogamous mating tends to maintain genetic differences

between subgroups, as a result, the subgroups may have substantial differences

in the frequency of a given DNA fragment, or VNTR allele, identified in the

20
Be cause the bands generated at each locus depend on whethe r the individual is
homozygous or heterozygous for those particular alleles, the formula varies depending on the
allele form. The frequency for a homozygous allele is computed using the formula p(al)2; the
frequency for a heterozygous allele is computed using 2(p(al1)p(al2)); where p denotes
probability, and al represents each allele.

21
Hardy-W einberg prin ciples derive from an algebraic equatio n that describes th e genetic
equilibrium within a population. The principle states that gene frequencies will remain constant
from generation to generation within a population unless outside forces act to change it, provided
mating remains random.

22
processing step of DNA analysis.22 A given VNTR allele may be relatively

common in some subgroups but not in the broader database. Thus, some critics

argue that the current method, using the Hardy-Weinberg equation and the

product rule, will be reliable only if there is extensive study of VNTR allele

frequencies in a wide variety of ethnic subgroups. However, the National

Research Academy remarks that "[t]he goal is not to ensure that the ethnic

background of every particular defendant is represented, but rather to define the

likely range of allele frequency variation." NATIONAL RESEARCH COUNSEL , DNA

TECHNOLOGY IN FORENSIC SCIENCE 82-85 (1992). Moreover, to overcome the

problem of allele frequency within a genetic subgroup, the National Research

Academy recommends employing the ceiling principal in determining frequency

statistics. Id.

When requested, as in the present case, Cellmark also employs what is

known as the "ceiling principle" to calculate statistical frequencies. The ceiling

method also uses the product rule. This method obtains the most conservative

bin for every band and then multiplies it together, generally resulting in a more

conservative number. Using the aforementioned procedures, Cellmark

determined that the frequency reported, in the present case, as far as the

Caucasian race, was one in nineteen thousand.

B. Standard of Admissibility

In State v. Harris, 866 S.W.2d 583, 586 (Tenn. Crim. App. 1992), this

court addressed the proper standard for determining the admissibility of scientific

evidence and testimony. 23 The court acknowledged the Frye test, see Frye v.

22
This hypothesis is the basis of the appellant's challenge of Cellmark's results. He
argues that, sin ce an Appalachian subgroup was not em ployed by C ellm ark, the ratio produced in
the instant case cannot be accurate.

23
The appellant correctly states that Tenn. Code Ann. § 24-7-117 (1991) (admissibility of
the res ults of D NA analysis in civil or crim inal trials) is inconsequentia l to th e present c ase as it
only applies "to persons comm itting or attempting to comm it one of the offenses set out in § 40-
35-3 21 o n or a fter July 1, 199 1." See Com piler's Notes, Tenn. Code Ann. § 24-7-117. The

23
United States, 293 F. 1013 (D.C. Cir. 1923), which requires that the scientific

analysis from which the ultimate deduction is made must be "sufficiently

established to have gained general acceptance in the particular field in which it

belongs." Id. at 1014. Additionally, the court recognized the Tennessee Rules of

Evidence, which provide:

If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise.

Tenn.R.Evid. 702. However, the rule adds that the court "shall disallow

testimony in the form of an opinion or inference if the underlying facts or data

lack trustworthiness." Tenn.R.Evid. 703 (emphasis added).

The court in Harris chose not to accredit one standard over the other, as

the evidence at issue satisfied both requirements. See Harris, 866 S.W.2d at

587. Subsequently, however, the United States Supreme Court in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 2793

(1993), held that the Frye test, "absent from and incompatible with the Federal

Rules of Evidence, should not be applied in federal trials." Daubert does not by

its terms, however, apply to state court proceedings. Although Tenn.R.Evid. 703

and Fed.R.Evid. 703 are identical, Tenn.R.Evid. adds the sentence: "The court

shall disallow testimony in the form of an opinion or an inference if the underlying

facts or data indicate a lack of trustworthiness." In this respect, the Tennessee

rule expresses a greater concern with the bases of expert testimony than its

federal counterpart. Omni Aviation v. Perry, 807 S.W.2d 276, 281 (Tenn. App.

1990). Moreover, our supreme court has held that the requisite foundations

which must be established prior to the admission of scientific evidence are that

(1) the facts underlying the testimony must be reasonably relied upon by experts

offenses in the present case occurred on or about April 19, 1990.

24
in the particular field and (2) the facts must be trustworthy. State v. Ballard, 855

S.W.2d 557, 562 (Tenn. 1993); see also Advisory Commission Comments,

Tenn.R.Evid. 703. We conclude that the "general acceptance standard"

espoused in Frye is necessarily implicit within the requirements of Tenn.R.Evid.

703. See Advisory Commission Comments, Tenn.R.Evid. 702 (Tennessee law

is consistent with the Frye test). Accordingly, before expert testimony regarding

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

evidence must meet the standards promulgated by Tenn.R.Evid. 702 and 703.

C. Application of Standard

The trial court concluded that Cellmark's techniques in generating a DNA

profile and formulating a statistical frequency were based on accepted scientific

practice and are trustworthy.24 See, e.g., Harris, 866 S.W.2d at 586 (approving

RFLP analysis); accord State v. Begley, No. 01C01-9411-CR-00381 (Tenn.

Crim. App. at Nashville, Jan. 11, 1996), perm. to appeal granted, (Tenn. July 1,

1996). Generally, the qualifications, admissibility, relevancy, and competency of

expert testimony are matters which largely rest within the sound discretion of the

trial court, unless such discretion is arbitrarily imposed. Ballard, 855 S.W.2d at

562; see also State v. Schimpf, 782 S.W.2d 186, 191 (Tenn. Crim. App. 1989).

Without evidence that Cellmark's standards were somehow deficient, we cannot

conclude that the trial court abused its discretion or that the laboratory's

conclusion was unreliable.

Once evidence is properly admitted, disputes over its reliability go to its

weight. Here, much of the appellant's attack focused on Cellmark's

implementation of DNA frequency analysis and specifics of Cellmark's

procedures, including the size of Cellmark's database, whether the sampling of a

24
The procedu res and protoc ols em ployed by Cellmark in the presen t case are
substantially in compliance with the recomm ended procedures of the Technical W orking Group on
DN A Ana lysis Me thods (TW GD AM ).

25
Delaware blood bank was truly random, and alleged problems with the

electrophoresis process. This attack was presented to the jury through the

testimony of Drs. Shapiro and Acton. Differences in the opinions of experts are

inevitable in the application of science to the law. In our opinion, these issues

were questions properly decided by the jury. The jury was free to reject the DNA

evidence if it concluded that the evidence was unreliable or misleading.

The appellant also argues that the evidence should have been excluded

because its probative value was outweighed by its prejudicial effect.

Tenn.R.Evid. 403. The appellant makes no argument in support of this

contention. As such, this claim is waived. Tenn. R. App. P. 27(a)(7).

26
Nonetheless, the testimony, in sum, was that the appellant could not be

excluded as a source of the semen found on the victim, but could not be

identified as the source with absolute certainty. Clearly, the probative value of

the expert testimony outweighed any prejudicial effect.

In summary, we conclude that the trial court properly analyzed the DNA

typing evidence according to the Tennessee Rules of Evidence. Furthermore,

we find that the existence of scientific debate does not, by itself, require

exclusion of evidence. The DNA statistical frequency analysis was generally

accepted by the scientific community at all times relevant to the trial court's

decision. Thus, the evidence exhibited both reliability and trustworthiness. The

trial court did not abuse its discretion in admitting the calculations as to

frequency probability, and it was for the jury to determine what weight, if any, to

give such evidence. Additionally, we note that the State did not rely exclusively

on the DNA evidence to prove its case. Sufficient evidence existed apart from

the DNA analysis from which the jury could have concluded the appellant's guilt.

This issue is without merit.

IV. Motion to Suppress

A hearing was held on March 1, 1994, regarding the appellant's motion to

suppress blood samples obtained from his person. At the hearing, the State

presented the testimony of only one witness, Larry Davis, a special agent with

the Tennessee Bureau of Investigation. Agent Davis explained that on June 7,

1990, the body of Vicky Sue Metzger was found in a wooded area adjacent to

the eastbound I-24 rest area near Monteagle. Davis was assigned to investigate

the Metzger murder. During the early stages of the murder investigation, Davis

talked with the appellant, who was the attendant at the eastbound rest area, and

27
Johnny Hood, the attendant at the westbound rest area. On this occasion, Davis

informed both men that they would be contacted in the future for additional

statements. On July 11, Davis issued subpoenas for both men setting a July 13

interview.

On July 13, 1990, Agent Davis met the appellant and Hood at the Grundy

County Jail. Both men gave sworn statements and both men consented to

provide a blood sample for DNA comparison analysis with the semen found on

the victim's body. The appellant and Hood were taken to Dr. Horbolt's office and

the samples were drawn. At no time did the appellant voice an objection to the

procedure. After the sample was drawn, the appellant left the doctor’s office.

Subsequently, on November 5, 1992, Agent Davis was again called to the

eastbound I-24 rest area to investigate an assault on Pamela Sue Back. When

Davis reached the Monteagle Police Station, the appellant was in custody and

had been provided Miranda warnings. Upon questioning by Agent Davis, the

appellant confessed that he had assaulted Back because he had been drinking

and smoking marijuana. Davis asked the appellant if he would provide a blood

sample for a drug screen. The appellant again consented. The appellant was

then transported to the Emerald-Hodgson Hospital in Sewanee where the blood

sample was taken.25

Several days later, Davis reviewed the I-24 incidents and the murder of

Michelle Blake with Agent Danny Wix and Investigator Bouldin. The officers

recalled that the perpetrator of the Blake murder had type B blood, the same

type possessed by the appellant. Agent Wix inquired about obtaining another

25
On July 17, 1990, at least seven additional TBI subpoenas were issued to area
hos pitals requiring them to produc e na m es a nd o ther p ersona l inform ation o n wh ite m ale pa tients
with blood type B. W e reject the appellant’s argument that this alleged dragnet approach violated
his constitutional rights under the holding of Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394
(1969).

28
blood sample from the appellant. Agent Davis responded that he had a blood

sample from the appellant drawn on November 5 at his office. This sample was

sent to Cellmark Diagnostics for DNA analysis in the Blake case. No alcohol or

drug screen was performed on this sample.

The appellant contends that the trial court erroneously denied his motion

to suppress the evidence stemming from blood samples taken from him on these

two separate occasions. In denying the motion, the trial court concluded that

"the blood samples provided by the appellant were done so consensually and

voluntarily."

The initial inquiry before us is whether the TBI subpoena issued to the

appellant on July 11, 1990, constituted a significant intrusion upon interests

protected by the Fourth Amendment.26 Fourth Amendment protections against

unlawful seizures are designed to "prevent arbitrary and oppressive interference

by officials with the privacy and personal security of individuals." INS v. Delgado,

466 U.S. 210, 215, 104 S.Ct. 1758, 1762 (1984) (internal quotations omitted).

Therefore, "not all . . . intercourse between policemen and citizens involves

seizures of persons. Only when an officer, by means of force or show of

authority, has restrained the liberty of a citizen may we conclude that a seizure

has occurred." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, n. 16 (1968).

Although the appellant, in the instant case, received a subpoena to appear for

further questioning, we cannot conclude that this amounted to more than a

request to respond to police questioning. First, no sanctions exist for failure to

comply with the request in the subpoena.27 Moreover, although most people will

26
Tenn. Code Ann. § 38-6-102 provides that "criminal investigators shall
have full power to issue subpoenas for witnesses . . . ."
27
The subpoena received by the appellant was captioned "Tennessee Bureau of
Investigation Su bpo ena " and provided, in pertine nt part:
You are hereby commanded to summ on John Chapman to personally appear
before the undersigned Special Agent of the Tennessee Bureau of Investigation
on July 13th , 19 92, at 1:00 p m at Grundy Co. Jail, Altamont, Tennessee and

29
comply with a police request, the fact that people do so, and do so without being

told they are free not to respond, does not eliminate the consensual nature of the

response. INS v. Delgado, 466 U.S. at 216, 104 S.Ct. at 1762. Unless the

circumstances of the encounter at issue are so intimidating as to demonstrate

that a reasonable person would have believed he was not free to refuse the

officer's request, one cannot say that the questioning resulted in a detention

under the Fourth Amendment. Id. Thus, although we concede the question is

perilously close, we conclude that the issuance of a TBI subpoena does not, per

se, constitute a seizure within the meaning of the Fourth Amendment. However,

this consensual encounter may escalate into a seizure as a consequence of

police behavior, e.g., threatening presence of several officers, the display of a

weapon by the officer, physical touching of the person, or the use of language or

tone of voice indicating that compliance with the officer's request might be

compelled. United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870,

1877 (1980). In the present case, Agent Davis testified that the appellant came

to the police station of his own free will. In fact, Davis had previously informed

the appellant of his intent to contact him for a subsequent statement, at which

time the appellant was cooperative. And, although the appellant bears the initial

burden of showing that there was a violation of some constitutionally protected

area to trigger further inquiry, there is no evidence indicating that the appellant

would have refused the subsequent interview notwithstanding service of the

subpoena. See State v. Burton, 751 S.W.2d 440 (Tenn. Crim. App. 1988).

Absent any evidence indicating force or coercion on the part of law enforcement

officials, the inoffensive contact, i.e., the questioning of the appellant at the jail,

cannot amount to an unconstitutional seizure. Id.

from day to day hereafter until discharged and bring all papers, books, records,
agreements, documents and to be sworn and questioned by the
und ersigned Sp ecial Agent for th e pu rpos e of g iving a w ritten sta tem ent,
delivering aforementioned items and obtaining evidence by said agent in an
inves tigation con duc ted by the T enn ess ee B urea u of Investigation perta ining to
TBI File 5A-530.

30
 Although we have determined that the appellant's presence at the jail did

not constitute an illegal seizure, we must next determine whether the subsequent

taking of blood samples constituted an illegal search of the appellant's person.

The withdrawal of blood from a subject for purposes of serological typing and

DNA analysis constitutes a search within the constraints of the Fourth

Amendment and, therefore, a search warrant is generally required. See

Schmerber v. California, 384 U.S. 757, 767-72, 86 S.Ct. 1826, 1833-37 (1966);

see also State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993), perm.

to appeal denied, (Tenn. 1994). Unless it falls within a specifically established

and well-delineated exception, a search conducted without a warrant is per se

unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041,

2043 (1973) (citations omitted). "One of the specifically established exceptions

to both a warrant and probable cause is a search that is conducted pursuant to a

voluntarily given consent." Id. at 219, 93 S.Ct. at 2043, 2044 (citations omitted);

see also State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996). The burden of

proof rests upon the State to show, by a preponderance of the evidence, that the

consent to a warrantless search was given freely and voluntarily. Schneckloth,

412 U.S. at 248-49, 93 S.Ct. at 2059; Bumper v. North Carolina, 391 U.S. 543,

548, 88 S.Ct. 1788, 1792 (1968); Bartram, 925 S.W.2d at 230. The question of

whether the appellant voluntarily consented to the search is a question of fact

which focuses upon the totality of the circumstances. Schneckloth, 412 U.S. at

248-249, 93 S.Ct. at 2059.

In the present case, the trial court accredited Agent Davis' testimony that

the appellant voluntarily consented to providing both blood samples. There was

no indication that the appellant's acquiescence to the "search" was the result of

force or coercion. In fact, the defense presented no proof to refute Agent Davis'

testimony. A trial court's finding that a search is consensual is presumed correct

31
and is conclusive on appeal unless the evidence preponderates against the

ruling. State v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), perm. to

appeal denied, (Tenn. 1991), cert.denied, 502 U.S. 1079, 112 S.Ct. 986 (1992);

see also State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996); State

v. Tuttle, 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995). We conclude that the

evidence in the record supports the trial court's finding. This issue is without

merit.

V. Instruction on Identity

The appellant contends that the trial court committed reversible error by

failing to instruct the jury on the issue of identity as provided in State v. Dyle, 899

S.W.2d 607 (Tenn. 1995). The appellant concedes that, because his trial

occurred prior to the Dyle opinion, no special instruction regarding identity was

requested.28 In Dyle, our supreme court held that the identity instruction,

promulgated within that decision, must be given when identification is a material

issue. Dyle, 899 S.W.2d at 612. "Identity will be a material issue when the

defendant puts it at issue or the eyewitness testimony is uncorroborated by

circumstantial evidence." Id. at note 4. In our opinion, the trial court's failure to

instruct on identity in the present case was harmless. The proof regarding

identification was more than sufficient. The descriptions of the appellant and his

vehicle by numerous witnesses were generally consistent. Fibers from the

victim's clothing were determined to be consistent with fibers from the carpeting

of the appellant's truck. Most notably, the results of the DNA profile analysis

reveal that the appellant's DNA matched the DNA obtained from the semen stain

on the victim's body. It was within the jury's prerogative to assess the credibility

28
The appellant's trial began on March 21, 1994, concluding on April 2, 1994, over one
year prior to our supreme court's opinion in Dyle, 899 S.W .2d at 612, which was released on May
15, 1995 . How ever, Dyle is applicable both to those cases on appeal when the opinion was
released and to thos e ca ses tried after that date. Id.

32
of those who testified. Any error created by the failure to provide the Dyle

instruction was harmless. State v. Williams, No. 01C01-9505-CR-00146 (Tenn.

Crim. App. at Jackson, Nov. 12, 1996). This contention of the appellant is

without merit.

VI. Scope of Cross-Examination

Next, the appellant makes two arguments regarding the examination of

the DNA experts from Cellmark Diagnostics. Julie Cooper, a senior molecular

biologist with Cellmark, testified for the State. In response to defense counsel's

questions on cross-examination, Cooper testified that, in 1988, Cellmark

responded to an invitation extended by the California Association of Crime Lab

Directors to bid for services to complete forensic DNA analysis for the State of

California. Prior to being awarded the contract, Cellmark was required to submit

analysis on unknown controlled random samples.29 During further cross-

examination, defense counsel questioned Cooper concerning alleged errors

made by Cellmark on the sample tests.30 On re-direct, Cooper testified that forty

percent of Cellmark's cases originate from the State of California. She further

explained that, in regard to the 1988 test, "California was interested in seeing

how well Cellmark, as a laboratory, function[ed] on their test." The appellant

argues this re-direct testimony was error. He contends that these statements

constitute inadmissible hearsay, were made outside the scope of cross-

examination, and are self-serving statements offered in an attempt to bolster the

credibility of Cellmark.

29
Cooper testified that, unlike routine forensic testing, serological testing had not been
performed on the test samples. Therefore, Cellmark was not informed as to whether the samples
were blood, ketchup, etc.

30
Co ope r testified that "the re was o ne e rroneou s m atch m ade out of thos e 50 sam ples."

33
 "The right to cross-examination is fundamental, thus, the denial of this

right to apprise the accused a fair trial is 'constitutional error of the first

magnitude.'" State v. Henning, No. 02C01-9504-CC-00115 (Tenn. Crim. App. at

Jackson, Jan. 9, 1997) (quoting State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim.

App. 1980)). Yet, the propriety, scope, manner and control of testimony and

other evidence, including the scope of cross and re-direct examination, is within

the sound discretion of the trial court, which will not be reversed absent an abuse

of that discretion. See State v. Barnard, 899 S.W.2d 617, 624 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1994) (citing State v. Banks, 564 S.W.2d

947, 949 (Tenn. 1978)); State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App.

1986); Tenn. R. Evid. 611(a).

The scope of cross-examination extends to "any matter relevant to any

issue in the case, including credibility." Tenn.R.Evid. 611(b). The scope of re-

direct examination is generally limited to matters brought out during cross-

examination, however, new matters may be introduced. Bouchard v. State, 554

S.W.2d 654, 658-659 (Tenn, Crim. App. 1977); Lundy v. State, 521 S.W.2d 591,

594 (Tenn. Crim. App. 1974). It is within the trial court's discretion to allow a

party, on redirect examination, to supply testimony omitted by oversight, or to

clarify testimony given on direct examination, or, where the facts thus developed

34
are not inconsistent with his previous answers to ask a witness to expand his

testimony. Barnard, 899 S.W.2d at 624 (citing 98 C.J.S. Witnesses § 419

(1955)); see also State v. Owen, No. 1209 (Tenn. Crim. App. at Knoxville, May

26, 1989), perm. to appeal denied, (Tenn. Oct. 2, 1989) (citing C. TORCIA ,

W HARTON'S CRIMINAL EVIDENCE § 416 (4th ed.)). We find no abuse of discretion

by the trial court in permitting the introduction of Cooper’s testimony on redirect

examination. This issue is without merit.

Next, the appellant challenges the trial court's ruling which limited his

cross-examination of State's witness, Dr. Lisa Forman, an expert in the field of

DNA analysis. Forman testified that, in the present case, a Southern

Appalachian database was not used in determining a frequency ratio. Moreover,

in response to the challenge of "genetic inbreeding" in the Appalachian area,

she testified that she doubted the veracity of the stereotype associated with the

region and that, although "it would not be inappropriate to screen people from

this area", she does not believe that inclusion of such a database would change

the results of Cellmark's calculations. The appellant asserts that another

Cellmark employee, Dr. Charlotte Word, testified as an expert witness in an Ohio

courtroom that Cellmark did not employ an Appalachian database and, therefore,

she would be very concerned about the reliability of any projections using

Cellmark's existing databases. He argues that the trial court committed

reversible error by not permitting him to impeach Dr. Forman with the testimony

of her co-employee, Dr. Word. In support of his position, the appellant contends

that "[Cellmark] was the witness and that the only authority Forman or Cooper

had was to speak about what the lab collectively produced."

Impeachment of an expert witness is governed, generally, by

Tenn.R.Evid. 616 (bias or prejudice), Tenn.R.Evid. 618 (learned treatise), and

Tenn.R.Evid. 613 (prior inconsistent statement). However, the appellant

35
attempts to create a right of impeachment based upon alleged conflicting

positions of experts within the scope of their common employment. This

argument is misplaced. Again, the trial court has the discretion to impose

reasonable limits on cross-examination and, we will only find error when that

discretion has been abused. See Barnard, 899 S.W.2d at 624. In determining

whether limitations on cross-examination of government witnesses are so severe

as to amount to a violation of the Confrontation Clause, the reviewing court must

ascertain "whether the jury was already in possession of sufficient information to

make a discriminating appraisal of the particular witness' possible motives for

testifying falsely in favor of the government."31 United States v. Christian, 786

F.2d 203, 213 (6th Cir. 1986) (citation omitted); see also United States v. Harris,

No. 95-4356 (6th Cir. July 1, 1997). From the facts before us, we find no abuse

of discretion or infringement of the appellant's right to confrontation. The

proffered statements of the non-testifying witness, Dr. Word, were clearly

inadmissible hearsay. Moreover, the expert, in this case, was Dr. Forman, not

Cellmark Diagnostic. A business entity cannot be qualified as an expert, rather

an individual may be qualified as an expert through his or her employment with

that entity.32 See Tenn.R.Evid. 702. This issue is without merit.

VII. Sentencing

In his final issue, the appellant alleges that the trial court erred by

imposing the maximum sentences for his convictions for aggravated kidnapping

and aggravated sexual battery and by ordering that all three sentences be

31
The Confrontation Clause only guarantees "an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever extent, the
defens e m ight wish." Delaware v. Fensterer, 474 U.S. 18, 20, 106 S.Ct. 292, 294 (1985) (citation
om itted).

32
To be qualified as an expert, one m ust be particularly sk illed, learned, or experienced in
a sc ience, art, trade, business , profe ssion or voca tion. Otis v. Cambridge Mut. Fire Ins. Co., 850
S.W .2d 439 (Te nn. 1992).

36
served consecutively.

Review, by this court, of the length, range, or manner of service of a

sentence is de novo with a presumption that the determination made by the trial

court is correct. Tenn. Code Ann. § 40-35-401(d)(1990). This presumption only

applies, however, if the record demonstrates that the trial court properly

considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). In making our review, this court must consider the evidence heard

at trial and at sentencing, the presentence report, the arguments of counsel, the

nature and characteristics of the offense, any mitigating and enhancement

factors, the appellant's statements, and the appellant's potential for rehabilitation.

Tenn. Code Ann. §§ 40-35-102, -103(5), -210(b) (1990); see also State v. Byrd,

861 S.W.2d 377, 379 (Tenn. Crim. App. 1993) (citing Ashby, 923 S.W.2d at

168). The burden is on the appellant to show that the sentence imposed was

improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-

401(d).

A. Enhancement and Mitigating Factors

At the conclusion of the sentencing hearing, the trial court found five

enhancement factors and three non-statutory mitigating factors applicable and

imposed the maximum twelve year sentences for each conviction. The

enhancing factors found are as follows:

(a) Tenn. Code Ann. § 40-35-114(5) - The appellant treated the
victim with exceptional cruelty;

(b) Tenn. Code Ann. § 40-35-114(6) - The personal injuries inflicted
upon the victim were particularly great;

(c) Tenn. Code Ann. § 40-35-114(7) - the offense involved a victim
and was committed to gratify the appellant’s desire for pleasure or
excitement;

37
 (d) Tenn. Code Ann. § 40-35-114(9) - The appellant possessed
and employed a deadly weapon during the commission of the
offense; and

(e) Tenn Code Ann. § 40-35-114(10) - The appellant had no
hesitation about committing a crime when the risk to human life
was high.

The trial court applied all five factors to both offenses.

The following mitigating factors were found:

Tenn. Code Ann. § 40-35-113(13):

1. The appellant did not have a significant history of criminal
convictions at the time of the present offenses;

2. The appellant had obligations to his child; and

3. The appellant served in the National Guard.

The appellant contends that any factor involving bodily injury is not

applicable to the aggravated kidnapping conviction since that element was

necessarily included within the offense. Additionally, he argues that factor (7)

also is not applicable to the aggravated kidnapping conviction. The State

concedes that factor (7), committed to satisfy the appellant's desire for pleasure

or excitement, is inapplicable to either offense. We agree.

Initially, we note that enhancement factors cannot be elements of the

offense charged. Tenn. Code Ann. § 40-35-114. The trial court applied factor

(6), that the victim's injuries were particularly great, to the appellant's conviction

for aggravated kidnapping and aggravated sexual battery. The appellant now

argues that the court erred in applying this factor. See State v. Nix, No. 03C01-

9406-CR-00211(Tenn. Crim. App. at Knoxville, Nov. 21, 1995); State v. Nunley,

No. 01C01-9309-CC-00316 (Tenn. Crim. App. at Nashville, Feb. 2, 1995), perm.

to appeal denied concurring in results only, (Tenn. May 8, 1995). Aggravated

kidnapping, in the present case, requires that the defendant committed the act of

"false imprisonment, as defined in §39-13-302, with the intent to inflict serious

38
bodily injury. . . ." Tenn. Code Ann. § 39-13-304. "Proof of serious bodily injury

will always constitute proof of particularly great injury." State v. Jones, 883

S.W.2d 597, 602 (Tenn. 1994). Thus, factor (6) may not be used to enhance the

appellant's sentence for aggravated kidnapping. However, aggravated sexual

battery requires that the defendant made unlawful sexual contact with the victim

and caused only bodily injury to the victim. Tenn. Code Ann. § 39-13-504 (a)(2).

If the proof supports a finding that the personal injuries were particularly great,

factor (6) is applicable to sexual battery cases. See State v. Kissinger, 922

S.W.2d 482, 488 (Tenn. 1996). The evidence establishes that the physical

injuries to the victim were particularly great. The trial court properly applied

factor (6) in enhancing the appellant's sentence for aggravated sexual battery.

Accordingly, upon de novo review, we conclude that the trial court

properly applied factors (5), the appellant treated the victim with exceptional

cruelty, Tenn. Code Ann. § 40-35-114(5)33; (9), the appellant possessed and

employed a deadly weapon during the commission of the offense, Tenn. Code

Ann. § 40-35-114(9); and (10), the appellant had no hesitation about committing

a crime when the risk to human life was high, Tenn. Code Ann. § 40-35-

114(10),34 to both offenses. However, factor (6) is only applicable to the

conviction for aggravated sexual battery.

Additionally, upon de novo review, we find factor (1), that the defendant

has a previous history of criminal convictions or criminal behavior, Tenn. Code

33
See Sta te v. Po ole, 945 S.W .2d 93 (Ten n. 1997).

34
Our supreme court held, in Jones, 883 S.W .2d at 602-603, that enhancement factor
(10) is not inh eren t in offense s wh ere s erious bo dily injury is an e lem ent of the offense c harg ed.
Factor (1 0) is appro priate whe re the con duc t of the pers on h as c aus ed o r incre ase d risk either to
human life in general or to the victim in particular and risk to human life is not an element of the
offense . State v. Fox, No. 03C01-9503-CR-00061 (Tenn. Crim. App. at Knoxville, June 21, 1996)
(citations omitted). W e conclude that stabbing the victim m ultiple times, resulting in her death,
and attempting to strangle her created a risk above and beyond that necessarily inherent in the
crim es of a ggravated kid napping and aggravated sexual batte ry.

39
Ann. § 40-35-114(1), and factor (8), that the defendant has a previous history of

unwillingness to comply with the conditions of a sentence involving release in the

community, Tenn. Code Ann. § 40-35-114(8), applicable to both offenses. The

appellant was convicted of driving under the influence in 1988. He admitted to

the use of marijuana, although he denied he had a drug dependency. See State

v. Massey, 757 S.W.2d 350, 352 (Tenn. Crim. App. 1988). See, e.g., State v.

Parsons, No. 01C01-9601-CC-00043 (Tenn. Crim. App. at Nashville, Jan. 30,

1997) (criminal behavior based upon use of marijuana). After the commission of

the instant offenses but prior to sentencing, the appellant committed and was

convicted of driving under the influence, driving on a revoked license, and

possession of marijuana. The appellant admitted to criminal behavior in the

assault of Pamela Back. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim.

App. 1993). This court has previously held that a sentencing court "can consider

criminal convictions or any other criminal behavior which occurred prior to the

sentencing hearing as constituting a previous history of criminal convictions or

criminal behavior, regardless of whether the convictions or behavior occurred

before or after the criminal conduct under consideration." State v. Poole, No.

02C01-9506-CC-00178 (Tenn. Crim. App. at Jackson, Jan. 31, 1996), affirmed

by, 945 S.W.2d at 93 (Tenn. May 12, 1997) (citing State v. Waters, No. 01C01-

9106-CR-00158 (Tenn. Crim. App. at Nashville, Feb. 20, 1992), perm. to appeal

denied, (Tenn. June 22, 1992)). The evidence supports application of factor (1).

Consequently, implicit within our finding that the appellant has a previous history

of criminal convictions and behavior is our rejection of the trial court's finding, as

a mitigating factor, that the appellant does not have a significant history of

criminal convictions. Moreover, the record indicates that the appellant received

suspended sentences for driving under the influence and driving on revoked

license convictions occurring after the instant offenses. Approximately five

months after being placed on probation, the appellant was charged with criminal

attempt to commit aggravated burglary. Subsequently, his probation was

40
revoked. Accordingly, factor (8) is also applicable. See State v. Hayes, 899

S.W.2d 175 (Tenn. Crim. App. 1995).

In reference to the trial court’s finding of the non enumerated mitigating

factor (13), “the appellant’s obligation to his child,” we hold this factor

inapplicable as we are unable to conclude that it is “consistent with the purpose

of this chapter.” Tenn. Code Ann. § 40-35-113(13). We find no nexus between

paternityship and mitigation of punishment. Moreover, support of a dependent is

by law an obligation and a duty. See Tenn. Code Ann. § 34-11-102(a) (1996).

We find it inappropriate to reward someone for that which they are already under

a moral and legal obligation to perform. We agree with the trial court’s finding

that the appellant’s service in the National Guard is a proper mitigating factor. In

sum, we find enhancing factors (1), (5), (8), (9), and (10) and one mitigating

factor applicable to both offenses. Regarding the aggravated sexual battery

conviction, we find the additional enhancing factor that the injuries to the victim

were particularly great, 40-35-114(6), applicable.

B. Length of Sentence

The appellant was convicted, as a range I offender, of aggravated

kidnapping and aggravated sexual battery, both class B felonies. See Tenn.

Code Ann. § 39-13-304(b)(1); Tenn. Code Ann. § 39-13-504(b). Accordingly, he

was subject to a sentence "not less than eight nor more than twelve years."

Tenn. Code Ann. § 40-35-112(a)(2) (1990). The trial court imposed the

maximum sentence, twelve years, for each offense. The appellant now

contends that, considering the trial court's misapplication of enhancement

factors, the court erred in imposing the maximum sentence within the range to

his two convictions.

41
 Regarding the length of a sentence, the presumptive sentence shall be

the minimum sentence in the range if there are no enhancement or mitigating

factors. Tenn. Code Ann. § 40-35-210(c). Thus, the presumptive sentence for

the instant offenses is eight years. However, if there are both enhancement

factors and mitigating factors, the court must start at the minimum sentence in

the range, enhance the sentence within the range as appropriate for the

enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. Code Ann. §40-35-210(e).

"The weight to be afforded mitigating and enhancement factors derives

from balancing relative degrees of culpability within the totality of the

circumstances of the case involved." State v. Moss, 727 S.W.2d 229, 238

(Tenn. 1986). See also State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim.

App. 1993). There is no particular value "vis-a-vis how many years should be

added or subtracted based on the presence of any of these factors." Moss, 727

S.W.2d at 238. Thus, with the purposes of the Sentencing Act in mind, the

sentencing court retains the discretion in determining the weight afforded to the

applicable factors. Id. at 273. Upon de novo review, with full consideration of

the applicable enhancers and single mitigator, the presumptive sentence at the

minimum of the range, and the nature and circumstances of these offenses, we

conclude that the maximum sentences of twelve years are justified for both

offenses. This issue is without merit.

C. Consecutive Sentences

Finally, the appellant contends that the trial court erred in ordering his

42
sentences to be served consecutively. At the conclusion of the sentencing

hearing, the court determined that, based upon the appellant's pending charges

for the murder of Vicky Sue Metzger and the assault of Pamela Sue Back, the

appellant qualified as a "dangerous offender," Tenn. Code Ann. § 40-35-

115(b)(4) (1990), and imposed consecutive sentences. The appellant contends

that the trial court’s consideration of the pending criminal charges for purposes of

imposing consecutive sentences was error.

If a defendant is convicted of more than one criminal offense, the court

may order the sentences to run consecutively provided that the defendant meets

at least one of the criteria enumerated in Tenn. Code Ann. § 40-35-115. In the

present case, the trial court imposed consecutive sentences based upon the

appellant's classification as a dangerous offender. Thus, we must determine

whether the appellant qualifies as a "dangerous offender." Tenn. Code Ann. §

40-35-115(b)(4).

In Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976), our supreme court

held that "[a] defendant may be classified as a dangerous offender if the crimes

for which he is convicted indicate that he has little or no regard for human life,

and no hesitation about committing a crime in which the risk to human life is

high." (emphasis added). See also Tenn. Code Ann. § 40-35-115(b)(4); State

v. Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995). Again, the trial court relied

exclusively upon the charges pending against the appellant in classifying him as

a "dangerous offender." The mere fact that a charge is pending, without more,

furnishes neither evidence of criminal conduct nor proof that the defendant is a

dangerous offender. Thus, consideration of the pending murder indictment and

the related charges for purposes of consecutive sentencing was improper.

Rather, the focus remains upon the inherently dangerous nature of the instant

offenses. Gray, 538 S.W.2d at 393.

43
 Notwithstanding the trial court's improper consideration of the pending

charges, upon de novo review, we conclude that the appellant is a "dangerous

offender." See Gray, 538 S.W.2d at 393. The appellant forcibly abducted the

victim from her employment, transporting her into the adjoining county. He

committed a sexual battery upon his victim. The medical report indicates

evidence of ligature strangulation in addition to seven stab wounds to her torso,

resulting in death. From these facts, it is obvious that the appellant’s “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.” Tenn. Code Ann. 40-35-115(b)(4).

However, this classification alone will not justify consecutive sentencing.

Wilkerson, 905 S.W.2d at 938. "The proof must also establish that the terms

imposed are reasonably related to the severity of the offenses committed and

are necessary in order to protect the public from further criminal acts by the

offender." Id. In the present case, we find that the aggregate sentences are

reasonably related to the severity of the offenses and are necessary to protect

the public from further criminal acts by the appellant. Accordingly, the

appellant's sentences are ordered to run consecutively.

VIII. Conclusion

For the foregoing reasons, we affirm the judgment of convictions and the

sentences imposed for the offenses of first degree murder, aggravated

kidnapping, and aggravated sexual battery.

44
 ____________________________________
DAVID G. HAYES, Judge

CONCUR:

______________________________
GARY R. WADE, Judge

______________________________
CURWOOD WITT, Judge

45