# FILED October 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 03C01-9509-CC-00286 ) Appellee, ) ) ANDERSON COUNTY ) V. ) HON . JAME S B. SC OTT , JR., ) JU DGE JOHN PARNELL

YAUGHER, )

) Appe llant. ) ( RAPE OF A CHILD)

FOR THE APPELLANT : FOR THE APPELLEE : J. THOMASMARSHALL,JR. JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter NANCY CAROL MEYER EUGENE J. HONEA Assistant Public Defender Assistant Attorney General 101 South Main Street , Suite 450 425 Fifth Avenue North Clinton, TN 37716 2nd Floor, Cordul l Hull Bui lding Nashvill e, TN 37243 JAMES N. RAMSEY Distri ct Attor ney General JANI CE G. HI CKS Assistant Distri ct Attor ney General 127 Anderson County Courthouse Clinton, TN 37716

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, John Parn ell Yaugher, appeal s as of ri ght pursu ant to R ule 3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted followi ng a jury t rial i n Anderson County of the offense of rape of a child. On appe al, t he Defendant chall enges the suff iciency of the all egations i n the indict ment to charge an offense. Also, the Defendant challenges the suf ficiency of the evid ence to sus tain the convic tion an d spe cif icall y ar gues that his confession was uncorroborated, that there was no proof of penet ration, and that the State f

ail ed t o provebey ond a rea sona bledoubt t hat he wa s sa ne at

theti me of the offense. Furth er, the De fenda nt argu es tha t the trial c ourt er red in denying
a motion to suppr

ess his statement to invest igators and by char g ing in the jury instruct ions the lesser grade offense of aggravated sexual battery. Fi nding no
e rror, and that th e indict ment and the evid ence are suff icient , we af firm th e judgm ent of the tria l court.

I. S UFFICI ENCY OF THE I NDICTMENT

The Defen dant co ntends that the ind ictmen t fails to state an offense i n that
no culpa ble m ental s tate is alleged. He relies upon State v. Roge r Dale Hill, Sr. , No. 01C01-9508-CC-00267, Wayne County (Te nn. Crim. Ap p. June 20, 19 96), app. granted (Tenn. Jan. 6, 1997), in whi ch this cour t held that an all egation that th e Defendant unlawf ully sex ually penet rated a vi ctim did not al lege th e neces sary me ntal state fo r rape, wh ich is, at leas t, recklessness. We note that otherpanels o f this court ha ve conc luded tha t s uch alleg ations are sufficient.-3-

See , e .g. , State v. James Dison , No. 03C 01-960 2-CC -00051 , Sevier C ounty (Tenn. Crim. A pp. Jan . 31, 1997 ), applic. filed (Tenn . Mar. 14, 1 997); State v. Phillip Ray G riffis and Me lissa Faith Rogers , No. 01C 01-9506-C C-00201 , Maury Coun ty (Tenn . Crim. A pp. Apr. 3 0, 1997 , applic. filed (Tenn. Jun e 19, 1997 ).

Howeve r, we be lieve tha t the ind ictme nt in this case is suffic ientregardless of which view is taken. T he indictm ent c harges , in pert inent part , that t he Defendant “did . . . unlawful ly and felonio usly engage in sexualpenetrati on of a child less than t hirteen years of age, in viol ation of T. C.A. § 39-13-522, against the peace and dignity of the State of Te nnessee .” (Emphas is added). Historically, the word “feloniousl y” has meant “[ p]roceeding from an evilheart or purpose; done w ith a de liberate intention of com mitting a crime.” Black’s Law Diction ary 6th ed. 19 90). As o ur supre me co urt has p reviously n oted, “ on e meaning attached to the word is: ‘In a l egal sense, donewith the intent to com mit
a crime.’” State v. Smith , 119 Ten n. 521, 105 S .W. 68 , 70 (1907). Ce rtainly, the mental state necessarily inherent in the word “ feloniously, ” would incl ud e the mental state required by present law. There is no meri t to thi s issue.

II. SUFFICIENCY

OF THE EVIDENCE

The standard for

when an accused challenges the suffi ciency of th e co nvicti ng evidence i s whether, af ter revi ewing the evi dence in the l ight mos t favora ble to the prosecu tion, any rat ional trier of f act could have found the essentialelem ents o f the crim e beyo nd a re ason able doubt. Jack son v. V irginia , 443 U.S. 307, 319 ( 19 79 ). On appeal, the State i s entitled to the strongest legitimate viewof the evidenc e and a ll inference s therefro m. State v. Cabbage ,-4-

571 S.W.2d 832, 835 ( Tenn. 1978). Because a v erdict of guilt removes the presumption of innocence and repl aces it wi th a presumpti on of guil t, the acc used has the bu rden in this cou rt of illustra ting wh y the ev id e nce is insu fficient to support the verdi ct returned by the trier of fact. State v. Tug gle , 639 S.W.2d 913, 914 (T enn. 19 82); State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3).

Questions conce rning the credibility of witnes ses, the wei ght and valueto be given th e evid ence, as well as all factual issues ra ised by the eviden ce, are resolved by the tr ier of fac t, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App .), perm . to appeal denied , id . (Tenn. 198 7). Nor may th is court reweigh or reeval uate the evidenc e. Cabbage , 571 S.W.2d at 835. A jury verdict approved by the tr ial j udge accredits the State’ s witnesses and r esolves a ll conflicts in fa vor of the S tate. Grace , 493 S.W.2d at 476.

The State’s pr

oof was that the vict im, T.T. (we wi ll refer to the v ictim of child sexual abuse by initi als), and h er mother and fat her, David and D arl a Taylo r, and th e victim ’s two (2 ) sibling s had reside d in their home i n Oak Ridge since March 1987. The Defendant, his wife and daughter lived across the street and had resided t here since Jul y of 1992. Thevicti m, seven (7) years old at the ti me of the offense, an d the Defen dant’s daug hter, nine (9) years old, were close friends an d often sp ent the nig ht at each other’s ho mes.

On an occasion i n March 1993, after being asked to spend the night w ith the Defen dant ’s da ught er, T.T. ref used and almost began cr ying. Her mot her beca me suspicious and asked herdaughter if she wanted to tellher something. The victim was visibly u pset an d obviou sly did not w ant to talk i n the presence of-5-

h er brother and si ster. Ms. Taylor took the vict im to the bedr oom where sh e began to cry and was d isplayi ng signs of emb arrassment. Concerned by her daug hter’s behavior, Ms. Taylor r etrieved a colori ng book which concernedgood and bad secrets and i ncluded advi ce to keep “good” secret s to oneself

and not keep “bad” secrets. After reviewing the col oring book, T.T. told her mother that the Defen dant ha d touch ed her. M s. T aylor c alled th e Tennessee Department of Human Services two ( 2) days la ter and subsequent ly confr onted the Defendant and his w ife with the victim ’s allegation s.

The State’s pr

oof, thr ough the testi mony of the vi ctim, fur ther showed that T.T. went to sl eep on the li ving room fl oor on the last occasion that

she spent the nightwith the De fenda nt’s daughter. The r oom was dark and T.T. did not know if Defend ant wen t t o sleep on the f loor wit h them. T.T. was sl eeping in her moth er’s t-shirt and pa nties. During the ni ght she awoke and the Defendant was touching her with hi s hands and finger s, fir st on he r stomach an d down to her bladder, t hen inside her panties and on her

back side. At

the time, T.T. did not say anything but co uld hear the Defendant breathing heav ily. She testif ied that the Defendant rubbed her “china,” which was her term for the v agina , but tha t it did not h urt

her. At t ria l, T .T. stated th at the Defendant’ s finger di d not go insi de her. She was not aware i f the Defen dant put any cr eam on her while he was rubbing her. She test ified t hat she informe d her m other of the incident a few days later and then talke d with two (2) police o fficers abo ut the occ urrence .
Dr. Tanya Vargas, a physi cian, examine d T.T. and testified that the victim was worried t ha t shemight have gotten a di seasefro m the De fend ant. T.T. respon ded affirmatively to Dr. Vargas’questions as t o whether anyone had-6-

touched her in an ina ppropriate place. The vi ctim stated to Dr. Vargas in the examination that the Defendant stuck his fi ngers in her “china” when she was st ayi ng at his daughter’s house overnight. Dr . Vargas asked her what “china” meant and showed he r a picture of the femal e body. The vi ctim pointed to the vagina. Dr. Vargas testifi ed that she noted from th e exam ination that the child’s vaginal mucosa was ve ry red , but ther e was no discharge. T.T. was suffering from scratches wh ich were seco ndary to scab ies. All other physical exa ms were norm al.
George Staffney, a detective with the Oak Ridge Police Department, and Gaynor Byrge, an employee of the Tennessee Department of Human Se rvices, investi gated the vi cti m’s a ll egat ion s aga ins t Defenda nt. On March 11, 1993, t hey contacted the Defendant at his home and made an appointment f or him to come to an interview on M arc h 12 at the Oak Ridge Pol ice Department. When the Defendant arrivedon March 12, Detect ive Staf fney tol d the Defendant that if he did notwant to answer the questions, or if he wanted to leave, that he was f ree to go as he was not under arrest. Byrge and Staff ney did not per ceive Defendant having any diff iculty

understandin g and comprehending what wasgoing on, even though the Defe ndant t old them he ha d prev iously s uffered a strok e and it affected his memory sli ghtly. When informed of the alle gation s, Defe ndan t told the investigator

s that T.T.’s face was against his ba ck wh ile they were sl eeping and she snu ggl ed upagai nst him
. He turned and began to rub her stomach. He stated that he “had t

o put some medicine on her and when he put cream on her vagina his finger slipped in.” Defendant told them “[i] t was for medical purposes, not sexual.”

Defendant stated that he was af raid he would get in tr ouble and asked if he coul d get counseli ng or some other ki nd of help. He also made the-7-

statementthat “ a goo d ti me to teach about sex was [at] ei ght (8) ye ars old.” After these verbal statements weremade, the investigator s read a waiver of rights form to Defendant. When the investigator s asked Defendant if he wanted to make a written stateme nt, he rep lied affirma tively. Detec tive Staffne y told Defe ndant to be descript ive about what he actua l ly did to the chil d and to incl ude the porti on regarding what

happ ened wit h hi m pen etr ati ng t he v ict im w ith his finger. Defendant also drew a diagram of the sc ene in his home at the t ime of the incident on the written statem ent. The inves tigators stated th at they never made any threats or

promises to Defendant and he n ever gave any i ndicati on thathe did not wa nt to talk to the m.

The statementwritten b y Defe ndan t in his hand writing a nd sig ned b y him states as foll ows: I had Sexu al Contact Rubb ing & with Fing er in the Pr ivate Area [T.T.] on March 2nd - 1993 - My Home 112-Wain W r ight, O ak Ridge. Sarah my Da ughter - [T. T.] & I my

se lf was Sleepi ng on the Livi ng Room Floor. [T.T.] move over to my Side& I touch her Tummy & her Leg - I Put My Fing e r Inside Her P rivate A rea - V agina . She m ove he rself away.
T he Def endan t testified and offered the testimon y of various witnesse s. His wife te stifi ed t hat

T.T. ’s mo th er confronted her regardi ng the all egations of abuse by stati ng that “John [Defendant] touched her but t.” Sherelated t hat the Defendant appeared to be shockedwhen first confronted about the al legations and stated that all h e had done w as put some cream on her tummy and l ower back for itching. T.T.’ s mother admitted she had made a mistake whe n ta lking to Defenda nt’s wife. Howeve r, investigators cam e to the house a few days later.-8-

Ms. Yaugher went wit h her husband to his i ntervi ew at the pol ice department on M arc h 12th, and she had nev er observed hi m being that upset or emotional before. He was cryi ng uncontr ollably and wri nging hi s hands af ter t he inte rview, statingthat he could no t believe all of this was happening. Fr ightened about what she obse rved, th e Def enda nt’s wife took h im to see Dr. Ann Carter, who made arrange ments for him to b e adm itted to Me thodist H ospital in O ak Ridg e.
Regarding the De fenda nt’s mental state, Ms. Yaugher also testif ied about Defe ndan t’s beha vior prio r to the in terview at the p olice d epartm ent an d his hospital izatio n. One month prior to the all egations bei ng made kno wn, Ms
. Y augher noticed h er husb and’s be havior wa s out of the ordinary. H e wa s forgetf ul at times. As an example, she stated that Defendant bought he r a card for Valentine’s Day without purchasing the envelope. Michael Walke r, th e Defe ndan t’s brother- in-law, also test ified as to the Defendan t’s mental state at the ti me of the off

ense. In Januar

y 1993, he vi sited with Mr. and Ms . Yaugher. Mr. Walker observed that

while theDefendant was normally v ery preci se in his deeds and actions, that duri ng this part icular v isit Defendant was not able to apply the directi ons concerning a j ob he was performin g while doi ng renovati on work athis home. On another occasi on, Walker testif ied that t he Defendant call ed him and
was lost and coul d not find hi s way to a nei ghborhood car dealershi p located one and one-half ( 11⁄2) miles fro m his home. Additi onally, Walker stated that on the occasion Defendan t we nt to the store to get a Valentine gift f

or his wif

e, he arrived at the cas h register w ith an Ea ster bask et. Walker acknowledged that the Defendant had discussed hi s concerns regar ding his behavior with M r. Walke r. Upon discharg e from the hospital, Walker observed that t he Defendant was a-9-

com pletely differ

ent person who was able to communicate and properl y show his feelings.

Dr. Michae l Fisher tes tified regard ing th e Def enda nt’s ps ychiatr ic treatme nt. He met Defen dant on March 12, 1993 after a r eferral due to the Defe ndan t’s depression and sui cidal tendencies. He determined that Defendant
was sufferi ng from major depress ion and pre-seni le dementia, which is t he
occurrence of dem entia in a person who has not yet reached the age of sixty-five (65) years. Dr. Fisher t estifi ed that the se co ndition s wou ld have significa ntly impaired the Defendant’ s abili ty to reason and his capaci ty to conf o rm his conduct to the requi rements of thelaw on the date of the al leged sexual abuse. In his exper t o p inion, Defendant had been sufferi ng from dementia for at least three (3) months p rior t o the exam on March 12. Dependent upon the circumstances, Defen dant’s m ental con dition cou ld aff ect his capacity to resi st the will of ano ther pers on.
Regarding Defendant’s i ntervi ew with the i nvestigators, Dr. Fi sher opined thatDefendant could n ot have thought clearly enough to knowor und erstan d his legal rights. During cross- examination, Dr. Fishe r adm itted tha t the D efend ant’s medical tests, includi ng an EEG and CT scan, appeared normal anddid not show any damage to the brai n. He also admit ted that t he Defendant in a ge neral way understood that

it is wrong to use a se ven (7) ye ar old child as a sexu al object. In summ ary, Dr. Fishe r testified that D efenda nt, on the date of the offens e, was mentally i mpaired du e to his d emen tia and de pression , was un able to conform his conduct t

o the requirement

of law, andhad a “substant ial i mpairment of his capa city to appreciate the lawful ness of thealleged of fense.” He admit

ted-10-

thatthe Defendant under stood that theoffense al leged in t he case was wrongful conduct , but ex plained th at the De fendan t had a pr oblem with his judg ment, which included “ impulse contr ol.” I t was Dr. Fi sher’s opi nion that “if i n fact the Defendant comm itted the offe nse, i t was an i mpulsive act.” On redir ect examination, Dr. Fishe r stated that the CT s can a nd EE G tes t were d one to “rule out any tre atable caus es for d eme ntia ,” an d indicated the resul ts were not inconsistent with di agnosis of dementi a.

The Defendant’s testimony at t rial was t hat the vi ctim woke him up on t he nightof the i ncident, and she was scratchi ng herself. He noticed thescratches
were ble edi ng an d re membe red that t here was some cre am oi ntme nt i n the house
. He applied it

to the vi ctim’s stomach. He testi fied he believed that if he attempted to leave t he police i ntervi ew, he would be pl ac ed in ja il. He cl aimed thatDetective Staffney got tough with him, yelli ng that he (Staffney) was tired of this “B.S.” and t hat the Defendant was going to prison. He claime d to have beco me s cared at this poi nt and went i nto “shock” when Detective Staffney informed him that t hey would take Defendant’s d aughter away fr om him. He claimed that the i nvestigators told hi m what to drawon the statement and forced him to write that he had pl aced his fi nger insi de the vict im’s vagi na.

In rebutta l, Dr. Ma rgare t Delm onico , a foren sic psycho logist, testif ied that she evaluate d the De fendan t to determine whether he was competent to st and trialand to determ ine his mental condit ion atthe time of the offens e. She stated her conclusions were that Defen dant was competent to stand t rial and wa s both able to understand the wrongfulnessof his conduct and to conform his conduct to the req uireme nts of the la w at the tim e of the alle ged incid ent.-11- A. C ORROBORATION OF CONFE SSI ON

Defendant argues that the evidence was insuf ficient to co nvi ct him because his confessi on was uncorroborated by independent pr oof. Defendant
was convicted of the off ense of rape of a child, which is t he unlawful sexual penetra ti on of a victim by the defe ndant . . . if such victim is less than thirt ee n (13) years of age. Tenn. Code Ann. § 39-13-522. Only sli ght evidence o f the corpus delicti is necessary to c orroborate a c onfession in ord er t o sustain t he conviction
. State v. Ervin , 731 S.W .2d 70, 72 (Tenn . Crim. A pp. 198 6).

In Ervin , the defendant was convicte d of aggravated r ape and aggravated sexual battery. The eleven (11) ye ar old vic tim in th at cas e told s evera l peop le prior to trial that the d efenda nt had fon dled he r private parts and inserte d his fingers into her v

agina on variou s occa sions . A pelvic exam ination of the vic tim ind icated an enlarged vagi nal opening whi ch could be caused by digital penetrati on. The defendant gav e a tape recorded confession admit ting that he had placed his f ingers in side the vi ctim’s va gina. Pri or to tri al, thevicti m recanted the allegat ions of sex ual abuse b y the de fendant. At trial , she denied t hat appellant

had sexuall y abused her. The defen dant d id not te stify at his trial. Re jectin g the defendant ’s argument t hat his confession was not cor roborat ed , and therefo re the e videnc e was sufficie nt to su stain th e con vic ti on, our court held:
The corroborat ive evi dence which tends t o prove the t ruthful ness of the defend ant’s state ments need not be suff icient to establ ish the corpus delicti of the offen se cha rged.
State v. Ervin at 72.-12- In the ca se sub judice , even tho ugh the victim den ied that D efenda nt’ s fingers went insi de her, she t estifi ed thathis fingers went inside her

panties and he rubbe d her va ginal area . In addi tion, Dr. Vargas testi fied that the vaginal
mucosa was re d, witho ut disc harge . Unde r this co urt’s holding i n State v. Ervin , we find that ther

e was suffi cient evi dence to corrobo rate Defendant ’s confessi on, and this iss ue has no me rit.

B. P ROOF OF P ENETRA TION
Defen dant argues t hat there was insufficient proof of pene tration to support his convicti on. Defendantsigned a wri tten statement to invest igators i n which he confessed to the di gital pe netrati on of the vi ctim. We have heretofore held that there was suffi cient cor robor ation of this confession to sustain t he convicti on. This issu e is withou t merit.

C. DEF ENSE OF I NSANI TY
Defendant asserts that the State did no t prove his sanit y at the t ime of the offense beyond a reaso nable d oubt. W e note that t he offense in this case occurred prior to the e ffective date of the am endm ent to the statute setting forth the insanity defense. Tenn. Code Ann. § 39-11-501 (Supp. 1996). W e therefore address thi s issue accordi ng to the l aw prior to July, 1995.

The law presumes that onewho is ac cused of any crim e is sane
. State v. Overbay , 874 S.W.2d 645, 65 0 (Ten n. Crim. A pp. 199 3). If, however, ev idence i ntroduced during the course of a trial creates reasonable doubt on the sanit y-13-

issue, the burd en of pro of shifts from the defen dant to the State. At th at point, the Sta te must e stablish the defend ant’s san ity beyond a reaso nable d oubt. Overbay , 874 S.W.2d at 650.

As stated i n State v. Overbay : The test of sanity was establis hed in [ Graha m v. State , 547 S.W.2d 531 (Tenn. 1977)]; the State must show by suff icient proof “( 1) that at the time of

the offen se the def enda nt was n ot s ufferi ng f rom a mental disease or defec t, or (2) if he was, that his ill ness was not such as to prevent

him from knowing t he wrongful n ess o f his conduct and

from conf orming his conduct t o the requir

ements of law.”
State v. Overbay , 874 S.W .2d at 650 (em phasis in original).

In summary, the Defen dant offe red proof f rom Dr. Fisher an d also lay testim ony which rais ed the issue of Defendant’s san ity. The State offered th e proofof Dr. Delmonico, who testified that D efend ant wa s able to understand the wrongfulness of his con duct at the ti me of the offense and t hat he had a substa ntial capa city to confo rm his co nduct to th e require ments of the law.

W hile Dr. Delmonico’ s examination was limited to a one (1) hour in tervi ew, and Dr. Fisher saw the Defe ndant o n severa l occasio ns, we a gree with the State thatthe basic foundation of Dr. Fisher’ s conclusion was based upon the fact that if Defen dant did c omm it the act, it was “i mpulsive behavi or.” I n Graham v. State , 547 S.W.2d 53 1 (T enn. 1977), our supreme court speci fically rejected applicat ion in Tennessee of an insani ty defense bas ed upon th e “irresistible im pulse tes t.” In doing so, the supreme court held:-14- Under [the irresistab le impuls e] test, a crim inal defen dant is sa id to be relieved of cri mina l respo nsibility w hen h is me ntal co ndition is such as to deprive him of his willpower to r esist the impulse t o com mit the crime, despite hi s knowledge of whet her the act is r ight or wrong. This test does not stand alone as a test forinsanity in any jurisdi ction, an d we reject it, b elieving that it is no t sufficie ntly comprehensive.
Graham , 547 S.W.2d at 540.

One expe rt witness te stified that, in h is opinion , the Defe ndant m et th e insanity test of Graha m v. State . Anothe r expert witn ess calle d by the S tate contradicted this pro of. As s tated a bove, the cre dibility of th e wit nes ses, the weightand value to be given the ev idence, as wel l as allfactual issues rai sed by the evidence are r

esolved by t he trier

of fact, and not this co urt. State v. Pappas , 754 S.W .2d 620 , 623 (T enn. C rim. App . 1987). T his issue is without m erit.

II I. ADMIS SION OFCONFESSI ON

The Defendant argues t hat the trial court erred by denyi ng his motion to suppress his st

atement of March 12, 1993 to Detective Staffney and Ms. Byrge of the Tennessee Department of Human Services. The moti on to suppress was taken up by the trialcourt during two separate heari ngs. At the first hearing, Dr. Michael Fisher, the psych iatri st, w as cal led to testif y by t he Def endant . He testif ied that on the date De fe n dant’s statement was given to t he authorities, March 12, 1993, t hat Defendant was suf fering f rom two (2) mentalillnesse s, a majordepressive epi sode and pre-seni le dementia. Accor ding to D r. Fisher, Defendant had a mod erate to severe im pairmen t due to the mental il lness. Based upon h is expert ise, Dr. F ishe r re lay ed th at hedid n ot t hink De fe ndant-15-

could “exert a will of h is own,” an d that “[De fendan t] would ha ve difficulty understand ing most an ything that day.”

The doctor stated that i n taking Defendant’s history, he was informed t hat the Defendant had a three (3)month histor y prior to March 12, 1993 of suffering majordepressive sympto ms in ad dition to sym ptoms of dem entia. In response to a question f rom the tri al court as to whether t he Defendant’s v oluntari ly coming fortreatm ent indi cated that he k new and had the cap acity to understan d there
was something wrong, Dr. Fi sher agreed that Defendant “under

stood something was wrong.” W hil e Dr . Fisher con cluded that the Defendant, under the circumstancesof inter rogation by law enforc eme nt office rs, cou ld not fu lly comprehend what he was doing at t he time, he admit ted that ev

eryone has the power to decide, “even the mostmenta lly incomp etent pe rson.” He admitted that it was do ubtf ul t hat De fendan t would “j ump off of a bri dge” if he ha d been approa ched b y a total stran ger who reques ted him to so do.

Dr. Fisher d id not go out and inv estigate the circu mstances surroundi ng the interr ogation of D efenda nt, a nd did not talk to t he police offi cer or anyone else who was pr

esent at t he ti me of t he in ter rogat ion. He also admitted that the Defendant could walk ar ound in societ

y, perform a job, and talk rationally to people while suffe ring from the pre-s enile dem entia and depres sion.

At a subs equen t hearing on the m otion to su ppress , Detective Staffn e y testif ied that he and employees from the Department of Human Services went to the Defendant’s home t he day before Defendant gave the stat ement . They advised Defen dant of a referra l of pos sible child abu se and that they w anted to-16-

speak to him the followingd ay at police headq uarters. D efenda nt agree d to come, and did show up for the meeting on Mar ch 12 at police headquarters. Defendant was free to leave at any time, and was told so by Detec tive Staffney. After giving a v

erbal statement, Defendant was r ead a waiver of rights form and signed it. The Defe ndan t subs eque ntly gav e the w ritten co nfess ion tha t is detailedabove in this op inion. A ccord ing to D etective Staffn ey, he d id not tellthe Defendant what to put i n the stat ement other than h e asked Defendant to i nclude details involv ing s exualcont act i n thewri tte n statement . The Defendan t wrote the entire s tateme nt himse lf.

Ms
. Byrge testified that sh e did n ot notic e anyth ing un usua l about th e Defendant either at

his home on M a rch 11 or duri ng the int errogati on the followi ng day at poli ce headquarters. There was nothing to indicate Defendant
was unde r t he i nfl uence of alcoholor d rug s at

theti me of the i nterrogat ion. The Defendant was cooperati ve throughout the inter

viewon March 12, never asked foran attorney, and ne ver gave any indica tion that he wanted to leave or end t he interr ogation prior to i ts concl usion by Detect ive Staf fney and Ms. Byr

ge. Defendant also a sked for som e help for his problem. The Defendant told Ms. Byrge and Dete ctive Staffney that he h ad previously s uff ered a stroke, which affected his memory a li ttle bit. He never i ndicated at any time duri ng t he interview tha t he was having tro uble rem embe ring even ts being d iscusse d.

In his rul ing, the t rial cour t spec ifically found that t he law enforcement officer and the Depar

tment of

Human Services worker who int erviewe d Defendant did nothi ng to coerce hi m into g iving a co nfession. While the tri al court spec ifically found that Dr. Fisher’ s expert opi nion had not been r ebutted, he-17-

did “not find ” that it ne cess arily refle cts tha t [Defe ndan t’s] con dit ion was as he [Dr. Fishe r] related it.

With regard to t he standard of rev iew for a su ppress ion is sue, our sup reme court recent ly stated in State v. Odom , 928 S.W .2d 18 (Ten n. 1996): Questions of credibil ity of the witnes ses, the wei ght and value of the evidence, and resolut ion o f conflicts in the evidence are matters entrusted to the tri al judge asthe trier of fact. The party prev ailing in the tri al court i s entitl ed to the stronge st legi timate vi ew of the evidence ad duced at the su ppres sion h earing as we ll as all reaso nable and legit imate inferences that may be drawn from that evide nce. So long as the greater weight of the evidence su pport s the trialcourt’s findings , those fi nding s sha ll b e upheld. I n other words, a trial co urt’s find ings o f fact in a suppression hearing wil l be upheld unless t he evidence prepond erates other wise.
Odom , 928 S.W.2d at 23.

In State v. Green , 613 S.W.2d 229 (Tenn. Cri m. App. 1980), our court held : No Tennessee case has discussed t he effect that ins anity hasupon the comp etency o f a confes sion. The ge neral rule is that a confession is admissibl e even though it was made at a ti me when the accused was under the influen ce of n arcotic drugs or alco hol, if at thattime the accused was capable of maki ng a narrative of past events or of st ating hi s own partic ipation in the cri me. [citations omitted ]. We think this rul e shoul d app ly equally to the i ssue of insanity
. Green ,613 S.W .2d at 232-33 (empha sis added).

The Defendant relies upo n the cas e of State v. Benton , 759 S.W.2d 427 (Tenn. Crim. App. 1988) in sup port of h is argu men t. W hile ou r court d id hold in that case t hat the confession was n ot “volu ntary” w ithin the meaning of t he due process clause of the Fourteenth Amendment, the Fif th Amendment of the United-18-

States Constitut ion, and A rticl e I, § 9 of the Consti tution of the State of Tennessee, we can readil y disti nguish that case from the case s ub judice . In Benton , the defenda nt was a forty-three (4 3) ye ar old man whose mind functionedas a five (5) ye ar old child . The de fendan t’s ability to co mm unicate
was even p oorer in that h e was unab le to rea d, write, or cou nt, and could o nly understand very si mple verbal i nstructi ons. In addi tion, t he defendantin Benton
was taken into custody, t ransported i n a poli ce vehicl e to headquarter s, and subjecte d to ques tioning in spite of his retardat ion and his ex pressed desir e for his father to be pres ent with him during inte rrogation
.
W e simply do n ot find a similar set of fac ts in t he case sub judice . We agree with the trial co urt that the te stimon y of Dr. Fishe r does not ne cess arily reflect that the Defen dant’s condition w as such tha t he could not form his ow n will
or thatDefendant was subj ected to coerci on by the interrogators . Defendant was able to relate specifi c events and wrote out the c onfession hi mself. The testimony

of the inves tigators als o rebuts the conc lusions m ade by D r. F isher. This issu e is withou t merit.

IV. JURY I NSTRUCTIONS

Defendant argue s that th e trial co urt erre d by ins tructin g the ju ry on the lesser grade offense of aggravated sex ual batter y over hi s objecti on.

W hile this issu e is titled by the D efend ant in his bri ef as a chall enge to the legal suffic iency of t he evidence to sustain “a convicti on for aggravated s exual battery,” it cl early re lates to the tri al court giving the jury t he instruc tion on th e-19-

lesser offense o f aggrava ted sexu al batte ry. As su ch, the i ssue was not contained in eit her the Defendant’ s origina l motion for new tria l or sub sequ ently filed amended motion for new t rial, and is ther efore waived. T.R.A.P . 3(e). W e note that eve n if not waived, the issue woul d be total ly wit hout merit. Defendant
was convicted of the off ense of rape of

a c hild. We fail to see how a jury instruct ion on the les ser offen se of a g grava ted se xual ba ttery, eve n if erron eous ly given, could be prej udicial to the Defendant in such cir

cumstances. This i ssue is without m erit.
Finding no revers ible error, we affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JERRY L. SMITH, Judge