FILED

October 7, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9509-CC-00286

)

Appellee, ) 

) ANDERSON COUNTY

)

V. ) HON. JAMES B. SCOTT, JR.,

) JUDGE

JOHN PARNELL YAUGHER, )

)

Appellant. ) (RAPE OF A CHILD)

FOR THE APPELLANT: FOR THE APPELLEE:

J. THOMAS MARSHALL, JR. JOHN KNOX WALKUP

District 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, Cordull Hull Building

Nashville, TN 37243

JAMES N. RAMSEY 

District Attorney General

JANICE G. HICKS

Assistant District Attorney General

127 Anderson County Courthouse

Clinton, TN 37716

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, John Parnell Yaugher, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted

following a jury trial in Anderson County of the offense of rape of a child. On

appeal, the Defendant challenges the sufficiency of the allegations in the

indictment to charge an offense. Also, the Defendant challenges the sufficiency

of the evidence to sustain the conviction and specifically argues that his

confession was uncorroborated, that there was no proof of penetration, and that

the State failed to prove beyond a reasonable doubt that he was sane at the time

of the offense. Further, the Defendant argues that the trial court erred in denying

a motion to suppress his statement to investigators and by charging in the jury

instructions the lesser grade offense of aggravated sexual battery. Finding no

error, and that the indictment and the evidence are sufficient, we affirm the

judgment of the trial court.

I. SUFFICIENCY OF THE INDICTMENT

The Defendant contends that the indictment fails to state an offense in that

no culpable mental state is alleged. He relies upon State v. Roger Dale Hill, Sr.,

No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. June 20, 1996),

app. granted (Tenn. Jan. 6, 1997), in which this court held that an allegation that

the Defendant unlawfully sexually penetrated a victim did not allege the

necessary mental state for rape, which is, at least, recklessness. We note that

other panels of this court have concluded that such allegations are sufficient.
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See, e.g., State v. James Dison, No. 03C01-9602-CC-00051, Sevier County

(Tenn. Crim. App. Jan. 31, 1997), applic. filed (Tenn. Mar. 14, 1997); State v.

Phillip Ray Griffis and Melissa Faith Rogers, No. 01C01-9506-CC-00201, Maury

County (Tenn. Crim. App. Apr. 30, 1997, applic. filed (Tenn. June 19, 1997).

However, we believe that the indictment in this case is sufficient regardless

of which view is taken. The indictment charges, in pertinent part, that the

Defendant “did . . . unlawfully and feloniously engage in sexual penetration of a

child less than thirteen years of age, in violation of T.C.A. § 39-13-522, against

the peace and dignity of the State of Tennessee.” (Emphasis added).

Historically, the word “feloniously” has meant “[p]roceeding from an evil heart or

purpose; done with a deliberate intention of com mitting a crime.” Black’s Law

Dictionary 6th ed. 1990). As our supreme court has previously noted, “one

meaning attached to the word is: ‘In a legal sense, done with the intent to commit

a crime.’” State v. Smith, 119 Tenn. 521, 105 S.W. 68, 70 (1907). Certainly, the

mental state necessarily inherent in the word “feloniously,” would include the

mental state required by present law. There is no merit to this issue.

II. SUFFICIENCY OF THE EVIDENCE 

 The standard for when an accused challenges the sufficiency of the

convicting evidence is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). On appeal, the State is entitled to the strongest

legitimate view of the evidence and all inferences therefrom. State v. Cabbage,
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571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the

presumption of innocence and replaces it with a presumption of guilt, the accused

has the burden in this court of illustrating why the evidence is insufficient to

support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

Questions concerning the credibility of witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge accredits the State’s witnesses and resolves all

conflicts in favor of the State. Grace, 493 S.W.2d at 476.

The State’s proof was that the victim, T.T. (we will refer to the victim of

child sexual abuse by initials), and her mother and father, David and Darla

Taylor, and the victim’s two (2) siblings had resided in their home in Oak Ridge

since March 1987. The Defendant, his wife and daughter lived across the street

and had resided there since July of 1992. The victim, seven (7) years old at the

time of the offense, and the Defendant’s daughter, nine (9) years old, were close

friends and often spent the night at each other’s homes. 

On an occasion in March 1993, after being asked to spend the night with

the Defendant’s daughter, T.T. refused and almost began crying. Her mother

became suspicious and asked her daughter if she wanted to tell her something.

The victim was visibly upset and obviously did not want to talk in the presence of
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her brother and sister. Ms. Taylor took the victim to the bedroom where she

began to cry and was displaying signs of embarrassment. Concerned by her

daughter’s behavior, Ms. Taylor retrieved a coloring book which concerned good

and bad secrets and included advice to keep “good” secrets to oneself and not

keep “bad” secrets. After reviewing the coloring book, T.T. told her mother that

the Defendant had touched her. Ms. Taylor called the Tennessee Department

of Human Services two (2) days later and subsequently confronted the Defendant

and his wife with the victim’s allegations. 

The State’s proof, through the testimony of the victim, further showed that

T.T. went to sleep on the living room floor on the last occasion that she spent the

night with the Defendant’s daughter. The room was dark and T.T. did not know

if Defendant went to sleep on the floor with them. T.T. was sleeping in her

mother’s t-shirt and panties. During the night she awoke and the Defendant was

touching her with his hands and fingers, first on her stomach and down to her

bladder, then inside her panties and on her back side. At the time, T.T. did not

say anything but could hear the Defendant breathing heavily. She testified that

the Defendant rubbed her “china,” which was her term for the vagina, but that it

did not hurt her. At trial, T.T. stated that the Defendant’s finger did not go inside

her. She was not aware if the Defendant put any cream on her while he was

rubbing her. She testified that she informed her mother of the incident a few days

later and then talked with two (2) police officers about the occurrence. 

Dr. Tanya Vargas, a physician, examined T.T. and testified that the victim

was worried that she might have gotten a disease from the Defendant. T.T.

responded affirmatively to Dr. Vargas’ questions as to whether anyone had
-6-

touched her in an inappropriate place. The victim stated to Dr. Vargas in the

examination that the Defendant stuck his fingers in her “china” when she was

staying at his daughter’s house overnight. Dr. Vargas asked her what “china”

meant and showed her a picture of the female body. The victim pointed to the

vagina. Dr. Vargas testified that she noted from the exam ination that the child’s

vaginal mucosa was very red, but there was no discharge. T.T. was suffering

from scratches which were secondary to scabies. All other physical exams were

normal.

George Staffney, a detective with the Oak Ridge Police Department, and

Gaynor Byrge, an employee of the Tennessee Department of Human Services,

investigated the victim’s allegations against Defendant. On March 11, 1993, they

contacted the Defendant at his home and made an appointment for him to come

to an interview on March 12 at the Oak Ridge Police Department. When the

Defendant arrived on March 12, Detective Staffney told the Defendant that if he

did not want to answer the questions, or if he wanted to leave, that he was free

to go as he was not under arrest. Byrge and Staffney did not perceive Defendant

having any difficulty understanding and comprehending what was going on, even

though the Defendant told them he had previously suffered a stroke and it

affected his memory slightly. When informed of the allegations, Defendant told

the investigators that T.T.’s face was against his back while they were sleeping

and she snuggled up against him. He turned and began to rub her stomach. He

stated that he “had to 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 afraid he would get in trouble and

asked if he could get counseling or some other kind of help. He also made the
-7-

statement that “a good time to teach about sex was [at] eight (8) years old.” After

these verbal statements were made, the investigators read a waiver of rights form

to Defendant. When the investigators asked Defendant if he wanted to make a

written statement, he replied affirmatively. Detective Staffney told Defendant to

be descriptive about what he actually did to the child and to include the portion

regarding what happened with him penetrating the victim with his finger.

Defendant also drew a diagram of the scene in his home at the time of the

incident on the written statem ent. The investigators stated that they never made

any threats or promises to Defendant and he never gave any indication that he

did not want to talk to them. 

The statement written by Defendant in his handwriting and signed by him

states as follows:

I had Sexual Contact Rubbing & with Finger in the Private Area

[T.T.] on March 2nd - 1993 - My Home 112-Wain Wright, Oak

Ridge.

Sarah my Daughter - [T.T.] & I myself was Sleeping on the Living

Room Floor.

[T.T.] move over to my Side & I touch her Tummy & her Leg - I Put

My Finger Inside Her Private Area - Vagina. She m ove herself

away.

The Defendant testified and offered the testimony of various witnesses. 

His wife testified that T.T.’s mother confronted her regarding the allegations of

abuse by stating that “John [Defendant] touched her butt.” She related that the

Defendant appeared to be shocked when first confronted about the allegations

and stated that all he had done was put some cream on her tummy and lower

back for itching. T.T.’s mother admitted she had made a mistake when talking

to Defendant’s wife. However, investigators came to the house a few days later.
-8-

Ms. Yaugher went with her husband to his interview at the police department on

March 12th, and she had never observed him being that upset or emotional

before. He was crying uncontrollably and wringing his hands after the interview,

stating that he could not believe all of this was happening. Frightened about what

she observed, the Defendant’s wife took him to see Dr. Ann Carter, who made

arrangements for him to be admitted to Methodist Hospital in Oak Ridge. 

Regarding the Defendant’s mental state, Ms. Yaugher also testified about

Defendant’s behavior prior to the interview at the police departm ent and his

hospitalization. One month prior to the allegations being made known, Ms.

Yaugher noticed her husband’s behavior was out of the ordinary. He was

forgetful at times. As an example, she stated that Defendant bought her a card

for Valentine’s Day without purchasing the envelope. Michael Walker, the

Defendant’s brother-in-law, also testified as to the Defendant’s mental state at the

time of the offense. In January 1993, he visited with Mr. and Ms. Yaugher. Mr.

Walker observed that while the Defendant was normally very precise in his deeds

and actions, that during this particular visit Defendant was not able to apply the

directions concerning a job he was performing while doing renovation work at his

home. On another occasion, Walker testified that the Defendant called him and

was lost and could not find his way to a neighborhood car dealership located one

and one-half (11⁄2) miles from his home. Additionally, Walker stated that on the

occasion Defendant went to the store to get a Valentine gift for his wife, he

arrived at the cash register with an Easter basket. Walker acknowledged that the

Defendant had discussed his concerns regarding his behavior with Mr. Walker.

Upon discharge from the hospital, Walker observed that the Defendant was a
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completely different person who was able to communicate and properly show his

feelings.

Dr. Michael Fisher testified regarding the Defendant’s psychiatric

treatment. He met Defendant on March 12, 1993 after a referral due to the

Defendant’s depression and suicidal tendencies. He determined that Defendant

was suffering from major depression and pre-senile dementia, which is the

occurrence of dementia in a person who has not yet reached the age of sixty-five

(65) years. Dr. Fisher testified that these conditions would have significantly

impaired the Defendant’s ability to reason and his capacity to conform his

conduct to the requirements of the law on the date of the alleged sexual abuse.

In his expert opinion, Defendant had been suffering from dementia for at least

three (3) months prior to the exam on March 12. Dependent upon the

circumstances, Defendant’s mental condition could affect his capacity to resist

the will of another person. 

Regarding Defendant’s interview with the investigators, Dr. Fisher opined

that Defendant could not have thought clearly enough to know or understand his

legal rights. During cross-examination, Dr. Fisher admitted that the Defendant’s

medical tests, including an EEG and CT scan, appeared normal and did not show

any damage to the brain. He also admitted that the Defendant in a general way

understood that it is wrong to use a seven (7) year old child as a sexual object.

In summary, Dr. Fisher testified that Defendant, on the date of the offense,

was mentally impaired due to his dementia and depression, was unable to

conform his conduct to the requirement of law, and had a “substantial impairment

of his capacity to appreciate the lawfulness of the alleged offense.” He admitted
-10-

that the Defendant understood that the offense alleged in the case was wrongful

conduct, but explained that the Defendant had a problem with his judgment,

which included “impulse control.” It was Dr. Fisher’s opinion that “if in fact the

Defendant comm itted the offense, it was an impulsive act.” On redirect

examination, Dr. Fisher stated that the CT scan and EEG test were done to “rule

out any treatable causes for dementia,” and indicated the results were not

inconsistent with diagnosis of dementia.

The Defendant’s testimony at trial was that the victim woke him up on the

night of the incident, and she was scratching herself. He noticed the scratches

were bleeding and remembered that there was some cream ointment in the

house. He applied it to the victim’s stomach. He testified he believed that if he

attempted to leave the police interview, he would be placed in jail. He claimed

that Detective Staffney got tough with him, yelling that he (Staffney) was tired of

this “B.S.” and that the Defendant was going to prison. He claimed to have

become scared at this point and went into “shock” when Detective Staffney

informed him that they would take Defendant’s daughter away from him. He

claimed that the investigators told him what to draw on the statement and forced

him to write that he had placed his finger inside the victim’s vagina.

In rebuttal, Dr. Margaret Delmonico, a forensic psychologist, testified that

she evaluated the Defendant to determine whether he was competent to stand

trial and to determ ine his mental condition at the time of the offense. She stated

her conclusions were that Defendant was competent to stand trial and was both

able to understand the wrongfulness of his conduct and to conform his conduct

to the requirements of the law at the time of the alleged incident.
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A. CORROBORATION OF CONFESSION 

Defendant argues that the evidence was insufficient to convict him

because his confession was uncorroborated by independent proof. Defendant

was convicted of the offense of rape of a child, which is the unlawful sexual

penetration of a victim by the defendant . . . if such victim is less than thirteen

(13) years of age. Tenn. Code Ann. § 39-13-522. Only slight evidence of the

corpus delicti is necessary to corroborate a confession in order to sustain the

conviction. State v. Ervin, 731 S.W .2d 70, 72 (Tenn. Crim. App. 1986). 

In Ervin, the defendant was convicted of aggravated rape and aggravated

sexual battery. The eleven (11) year old victim in that case told several people

prior to trial that the defendant had fondled her private parts and inserted his

fingers into her vagina on various occasions. A pelvic examination of the victim

indicated an enlarged vaginal opening which could be caused by digital

penetration. The defendant gave a tape recorded confession admitting that he

had placed his fingers inside the victim’s vagina. Prior to trial, the victim recanted

the allegations of sexual abuse by the defendant. At trial, she denied that

appellant had sexually abused her. The defendant did not testify at his trial.

Rejecting the defendant’s argument that his confession was not corroborated,

and therefore the evidence was sufficient to sustain the conviction, our court

held:

The corroborative evidence which tends to prove the truthfulness of

the defendant’s statements need not be sufficient to establish the

corpus delicti of the offense charged. 

State v. Ervin at 72.
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In the case sub judice, even though the victim denied that Defendant’s

fingers went inside her, she testified that his fingers went inside her panties and

he rubbed her vaginal area. In addition, Dr. Vargas testified that the vaginal

mucosa was red, without discharge. Under this court’s holding in State v. Ervin,

we find that there was sufficient evidence to corroborate Defendant’s confession,

and this issue has no merit.

B. PROOF OF PENETRATION

Defendant argues that there was insufficient proof of penetration to support

his conviction. Defendant signed a written statement to investigators in which he

confessed to the digital penetration of the victim. We have heretofore held that

there was sufficient corroboration of this confession to sustain the conviction.

This issue is without merit.

C. DEFENSE OF INSANITY

Defendant asserts that the State did not prove his sanity at the time of the

offense beyond a reasonable doubt. We note that the offense in this case

occurred prior to the effective date of the amendment to the statute setting forth

the insanity defense. Tenn. Code Ann. § 39-11-501 (Supp. 1996). We therefore

address this issue according to the law prior to July, 1995.

The law presumes that one who is accused of any crime is sane. State v.

Overbay, 874 S.W.2d 645, 650 (Tenn. Crim. App. 1993). If, however, evidence

introduced during the course of a trial creates reasonable doubt on the sanity
-13-

issue, the burden of proof shifts from the defendant to the State. At that point,

the State must establish the defendant’s sanity beyond a reasonable doubt.

Overbay, 874 S.W.2d at 650.

As stated in State v. Overbay:

The test of sanity was established in [Graham v. State, 547 S.W.2d

531 (Tenn. 1977)]; the State must show by sufficient proof “(1) that

at the time of the offense the defendant was not suffering from a

mental disease or defect, or (2) if he was, that his illness was not

such as to prevent him from knowing the wrongfulness of his

conduct and from conforming his conduct to the requirements of

law.”

State v. Overbay, 874 S.W.2d at 650 (emphasis in original).

In summary, the Defendant offered proof from Dr. Fisher and also lay

testimony which raised the issue of Defendant’s sanity. The State offered the

proof of Dr. Delmonico, who testified that Defendant was able to understand the

wrongfulness of his conduct at the time of the offense and that he had a

substantial capacity to conform his conduct to the requirements of the law. 

While Dr. Delmonico’s examination was limited to a one (1) hour interview,

and Dr. Fisher saw the Defendant on several occasions, we agree with the State

that the basic foundation of Dr. Fisher’s conclusion was based upon the fact that

if Defendant did commit the act, it was “impulsive behavior.” In Graham v. State,

547 S.W.2d 531 (Tenn. 1977), our supreme court specifically rejected application

in Tennessee of an insanity defense based upon the “irresistible impulse test.”

In doing so, the supreme court held:
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Under [the irresistable impulse] test, a criminal defendant is said to

be relieved of criminal responsibility when his mental condition is

such as to deprive him of his willpower to resist the impulse to

commit the crime, despite his knowledge of whether the act is right

or wrong. This test does not stand alone as a test for insanity in any

jurisdiction, and we reject it, believing that it is not sufficiently

comprehensive.

Graham, 547 S.W.2d at 540.

One expert witness testified that, in his opinion, the Defendant met the

insanity test of Graham v. State. Another expert witness called by the State

contradicted this proof. As stated above, the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence are resolved by the trier of fact, and not this court. State v. Pappas,

754 S.W .2d 620, 623 (Tenn. Crim. App. 1987). This issue is without merit.

III. ADMISSION OF CONFESSION

The Defendant argues that the trial court erred by denying his motion to

suppress his statement of March 12, 1993 to Detective Staffney and Ms. Byrge

of the Tennessee Department of Human Services. The motion to suppress was

taken up by the trial court during two separate hearings. At the first hearing, Dr.

Michael Fisher, the psychiatrist, was called to testify by the Defendant. He

testified that on the date Defendant’s statement was given to the authorities,

March 12, 1993, that Defendant was suffering from two (2) mental illnesses, a

major depressive episode and pre-senile dementia. According to Dr. Fisher,

Defendant had a moderate to severe impairment due to the mental illness.

Based upon his expertise, Dr. Fisher relayed that he did not think Defendant
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could “exert a will of his own,” and that “[Defendant] would have difficulty

understanding most anything that day.” 

The doctor stated that in taking Defendant’s history, he was informed that

the Defendant had a three (3) month history prior to March 12, 1993 of suffering

major depressive symptoms in addition to symptoms of dementia. In response

to a question from the trial court as to whether the Defendant’s voluntarily coming

for treatment indicated that he knew and had the capacity to understand there

was something wrong, Dr. Fisher agreed that Defendant “understood something

was wrong.” While Dr. Fisher concluded that the Defendant, under the

circumstances of interrogation by law enforcement officers, could not fully

comprehend what he was doing at the time, he admitted that everyone has the

power to decide, “even the most mentally incompetent person.” He admitted that

it was doubtful that Defendant would “jump off of a bridge” if he had been

approached by a total stranger who requested him to so do. 

Dr. Fisher did not go out and investigate the circumstances surrounding the

interrogation of Defendant, and did not talk to the police officer or anyone else

who was present at the time of the interrogation. He also admitted that the

Defendant could walk around in society, perform a job, and talk rationally to

people while suffering from the pre-senile dem entia and depression. 

At a subsequent hearing on the motion to suppress, Detective Staffney

testified that he and employees from the Department of Human Services went to

the Defendant’s home the day before Defendant gave the statement. They

advised Defendant of a referral of possible child abuse and that they wanted to
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speak to him the following day at police headquarters. Defendant agreed to

come, and did show up for the meeting on March 12 at police headquarters.

Defendant was free to leave at any time, and was told so by Detective Staffney.

After giving a verbal statement, Defendant was read a waiver of rights form and

signed it. The Defendant subsequently gave the written confession that is

detailed above in this opinion. According to Detective Staffney, he did not tell the

Defendant what to put in the statement other than he asked Defendant to include

details involving sexual contact in the written statement. The Defendant wrote

the entire statement himself. 

Ms. Byrge testified that she did not notice anything unusual about the

Defendant either at his home on March 11 or during the interrogation the

following day at police headquarters. There was nothing to indicate Defendant

was under the influence of alcohol or drugs at the time of the interrogation. The

Defendant was cooperative throughout the interview on March 12, never asked

for an attorney, and never gave any indication that he wanted to leave or end the

interrogation prior to its conclusion by Detective Staffney and Ms. Byrge.

Defendant also asked for some help for his problem. The Defendant told Ms.

Byrge and Detective Staffney that he had previously suffered a stroke, which

affected his memory a little bit. He never indicated at any time during the

interview that he was having trouble remembering events being discussed. 

In his ruling, the trial court specifically found that the law enforcement

officer and the Department of Human Services worker who interviewed

Defendant did nothing to coerce him into giving a confession. While the trial

court specifically found that Dr. Fisher’s expert opinion had not been rebutted, he
-17-

did “not find” that it necessarily reflects that [Defendant’s] condition was as he

[Dr. Fisher] related it.

With regard to the standard of review for a suppression issue, our supreme

court recently stated in State v. Odom, 928 S.W.2d 18 (Tenn. 1996):

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. The party prevailing

in the trial court is entitled to the strongest legitimate view of the

evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that

evidence. So long as the greater weight of the evidence supports

the trial court’s findings, those findings shall be upheld. In other

words, a trial court’s findings of fact in a suppression hearing will be

upheld unless the evidence preponderates otherwise.

Odom, 928 S.W.2d at 23.

In State v. Green, 613 S.W.2d 229 (Tenn. Crim. App. 1980), our court held:

No Tennessee case has discussed the effect that insanity has upon

the competency of a confession. The general rule is that a

confession is admissible even though it was made at a time when

the accused was under the influence of narcotic drugs or alcohol, if

at that time the accused was capable of making a narrative of past

events or of stating his own participation in the crime. [citations

omitted]. We think this rule should apply equally to the issue of

insanity. 

Green,613 S.W.2d at 232-33 (emphasis added).

The Defendant relies upon the case of State v. Benton, 759 S.W.2d

427 (Tenn. Crim. App. 1988) in support of his argument. While our court did hold

in that case that the confession was not “voluntary” within the meaning of the due

process clause of the Fourteenth Amendment, the Fifth Amendment of the United
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States Constitution, and Article I, § 9 of the Constitution of the State of

Tennessee, we can readily distinguish that case from the case sub judice. In

Benton, the defendant was a forty-three (43) year old man whose mind

functioned as a five (5) year old child. The defendant’s ability to communicate

was even poorer in that he was unable to read, write, or count, and could only

understand very simple verbal instructions. In addition, the defendant in Benton

was taken into custody, transported in a police vehicle to headquarters, and

subjected to questioning in spite of his retardation and his expressed desire for

his father to be present with him during interrogation. 

We simply do not find a similar set of facts in the case sub judice. We

agree with the trial court that the testimony of Dr. Fisher does not necessarily

reflect that the Defendant’s condition was such that he could not form his own will

or that Defendant was subjected to coercion by the interrogators. Defendant was

able to relate specific events and wrote out the confession himself. The

testimony of the investigators also rebuts the conclusions made by Dr. Fisher.

This issue is without merit.

IV. JURY INSTRUCTIONS

Defendant argues that the trial court erred by instructing the jury on the

lesser grade offense of aggravated sexual battery over his objection.

While this issue is titled by the Defendant in his brief as a challenge to the

legal sufficiency of the evidence to sustain “a conviction for aggravated sexual

battery,” it clearly relates to the trial court giving the jury the instruction on the
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lesser offense of aggravated sexual battery. As such, the issue was not

contained in either the Defendant’s original motion for new trial or subsequently

filed amended motion for new trial, and is therefore waived. T.R.A.P. 3(e). We

note that even if not waived, the issue would be totally without merit. Defendant

was convicted of the offense of rape of a child. We fail to see how a jury

instruction on the lesser offense of aggravated sexual battery, even if erroneously

given, could be prejudicial to the Defendant in such circumstances. This issue

is without merit.

Finding no reversible error, we affirm the judgment of the trial court. 

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge