1 It is th e policy of t

his court not

to reveal th

e name of a minor who has been the victi m of a sex crime. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON December 7,

1999, Session STATE OF TENNESSEE v. RONALD WEEKS, SR. Direct Appeal from the Criminal Court for Shelby County No. 97-12318 James C. Beasley, Jr., Judge

No. W1998-00022-CCA-R3-CD - Decided October 2, 2000

The defendant, Ronald Weeks, Sr., was convicted of aggravated sexual batter y and sentenced to eight years in the

Shelby County workhouse. I n this appeal of right, the defendant asserts that the trial court erred by allowing the state to introduce two p ost-arrest st

atements alleg

edly taken i

n violation of his constitutiona l right against

self-incriminati

on. The defenda

nt also contends that the trial court erred by deny

ing his motions for judgment of a cquittal; by applying Tenn. Code Ann. § 40-35-114(15) (abuse of a position of public or private

trust) to enhance

his sentence; and by failing to sentence him

as an especially mitigated offender. We hold that the trial court correctly applied Tenn. Code Ann. § 40-35-114(15) to enhance the defendant's sentence and properly found that the defendant was not eligible for sentencing as an especially mitig atedoffender. Because we conclude, however, that

the defendan t's post-arrest statements should have been suppressed as violative of the defendant's right against self-incrimination, we reverse the judgment of the trial court and remand this cause for a n

ew trial. Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Reversed.
G ARY R. W ADE , P.J., delivered the o pinion of the court, in which J OHN E VERETT W ILLI AMS , J., joined. N ORMA M C G EE O GLE , J., filed a dissenting opinion. James V. Ball and Barry W. Kuhn, Memphis, Tennessee, for the appellant, Ronald Weeks, Sr.
Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, and Karen Cook, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
On July 24, 1997, the defendant, who is deaf, invited the victim, 1 who was five y ears old, into his home. According

to pretrial state

ments the defenda

nt made to

the police, the defendant and the victim played with the d

efenda nt's pets and talked about Disney World. At some point, the defendant removed his and the

victim's shorts

and underwear, laid on top of the victim, and rubbed-2-

his body on the victim's body until he ejaculated. The defendant then cleaned the victim and sent her home. Immedia

tely after wards, the defe

ndant felt guilty and wa

lked next door to the victim's home to apologize to the victim's mother.
Wh en the victim's mother answered the doorbell, the defendant was on the front porch wearing only red satin-type boxer shorts. The de

fendant, who appeared to be distraught, apologized andexplained that he did not know wh at he was doi ng. The vict im's mother, who was completel y unawareof the events, assumed that the victim had been bitten by one of the defend ant' s pets and assured the defendant that everything would be fine. Later, when the victim' s mother asked wha t had occurred,

the victi m explained that the defendant had taken off her shorts, laid on top of her, and "peed" on her. A subsequent analy sis of the victim's underwear indicated the presence of semen. Vaginal swabs, per for med in a medical examination of the victim, did not reveal the presence of semen.
The victim's mother reported the incident and David Jones, a detective with th e Bartlett Police Department, made

the arrest. At tr

ial, Detective Jone

s testified that he

went tothe defendan t's homeand advised the defendant that he was being arrested for sexual assault. Through whispering andbody langu

age, the defe

ndant a sk ed for the detective to "hold on." Detective Jones walked inside the residence while the defendant got his shoes. Detective Jones believed that the defendant understoo d what was ha ppening. Although an interpreter

had beenrequested, none was present when the defendant reached the police station. The defendant was placed in a holding cell and near ly four hours later, the interpreter

arrived. At that p

oint, Detective Jone

s read the defen

dant his Miranda rights and proceeded

to take two statements from the defendant: the first in the form of an oral statement that was recorded and transcribed; and the second in the form of handwritten responses by the defendant to a standard questionnaire.
An indictmen t was re turned against the defendant in November of 1997. The defendant entere d a plea of not guilty. In January of 1998, the defendant filed a motion to s uppress the statements he had made to the police. After a hearing on the motion in March, the trial court took the matter under adv

isement. On April 3 0, 1998, the trial c ourt ruled that th

e confessions were admissible. Three months later, the defendant filed notice of an insanity defense. At the outset of the trial, the defendant entered a not guilty plea and re served making an opening statement.
At trial, the victim was called as the state's f

irst witness. While a

ble to respond to

many of the questions sub mit ted by the assistant distr ict attorney

general, the v

ictim could provide

little information about the offense. When as ked, "Can y

ou tell me what [the defen

dant] did," the vic

tim did not respond. Even though the trial court allowed the state to ask leading questions, the victim would not answer several critical questions, such as "did you ever ha ve your shorts off," "[d]id you see Mr. Ronnie naked that day," "[c]an you te ll us what you told

your mama," and "[w]hat did [the defendant] do that made you go see a nurse." There

was no response at all to many questions. The-3-

record establishes that there were several delays in the procee dings designed to allow the victim an opportunity

to gain her comp

osure and descr

ibe the events at i

ssue . The victim could on ly charact erize her experience as "bad." The mother of the v ictim, however, was allowed to testify as to what the victim told her about the incident shortly after its occurrence.
At the conclusion of the state's pro of , the defendant again asked that his statements be suppressed. He also sought a judgment of acquittal. The trial court denied each request. Thereafter, the defense presented was one of insanity due to a diag nosis of severe depression.
The defenda

nt's wife of 25 ye ars, Vick i We eks, tes tified that the defendant had worked as a mail handler for the p ostal service for 24 yea rs. Ms. Weeks testif

ied that the defe

ndant became despondentin July of 1997, only a short time before the assault on the victim, due to financial problems, and that he had curtailed many of his activities, especially tennis. She recalled that he sleptexcessively. After his arrest, the defendant sought counseling and was prescribed medication.
Mae Weeks, the defendant's mother, testified that the defendant was born prematurely, after only a six-and-one-ha

lf-month pregnancy, and

was deaf, able to hear only high-pitched sounds. She recalled that despite his impairment , however, the de fendant became

"the leader in h

is class" in hearing school and late

r excelled as a tennis player. Ms. Weeks testified that just prior to the offense, the defendant had undergone changes in h is p ers ona lit y, becoming "withdrawn," "haggard," and "unkempt."
Ronald Week s, Jr., the twenty -four-ye ar-old only

child of the defe

ndant and his wife

, test ifie d that he noticed a change in his father's personality during the year before the trial. He stated that the defendant had become "very quiet, reserved ," and describe d him as "extremely

, extremely depressed."
John Ciocca, a clinical psychologist, tre ated the defendant. After a series of tests, he diagnosed the defendant

as severely depressed with a co-existing "pa

ranoid delusional

disorder in which he suffered from the inability to tell reality f romfantasy . . . and in which his ability to govern his behavior would be impaired." Dr. Ciocca testified that the defendant, during interview s , providedthe details of the incident involving the victim. Hecharacterized the defendant's statement as "a rather disturbing story . . . [and] an example of a horrible thing that [t he defendant did] to a little girl . . . ." Dr. Ciocca described the de

fendant as "in

a process of psychological decline since early in 1 997 –in crea sin g irr ita bil ity, inc reas ing h ost ili ty, increasing agitation, sleeplessness, [and] difficulty with overreactingto people and things." He asserted that this mental disease or defect was "severe," resulting in a loss of contact with reality. D r. Ciocca administered

psychological testing to the defendant i

n the form of

the Millon Inve

ntory testing

and the Minnesota M

ulti-phasic Personality

Inventory

. It was Dr. Cio

cca's conclus

ion that the defen

dant "was unable

to appreciate the na ture and wr ongfulness of the event at the time it occurred." It was his opinion that the defendant had a psychotic episode which lasted no more than "several hours." D r. Ciocca testified that the defendant's a pology to the victim's mother shortly after the occurrence at issue was not inconsistent with his diagnosis.-4-

The stat e cross-examined Dr. Ciocca extensively, directing particular attention to the defendant's pr

etrial statements : Q. Did

you re ceive . . .

[t ]he def

endant's statem

ents in this case –the c onfession ?
A. Yes. Q. And y

ou re ad the entir e con fess ion. I s that righ t?
A. That's correct.
The state then asked specifically about a separate incident that the trial court had previously redacted from the confession, w

herein the defe

ndant acknowled

ged to police that "an incident[] almost took place with another child " but did not "because he reali zed what he was doing was wro ng."
After the defense res

ted its case, the state called Kenneth Fulmar, a tennis league manager, as a witness. Fulmar stated that the defendant wo

n first place in a t

ennis tournament t

hat began in Aprilof 1997 and extended through mid-June of that year. Bob Jackson, a postal service reco r d keeper, was called by the state to confirm that the defendant receive d an "aboveaverage" evaluation for his job performance between May and July of 1997.
Dr. John Whirley, a cli nical psychologist, performed a court-ordered e valuation of the defendant some two months prior to trial. Dr. Whirley concluded after a relatively short interview that the defendant was competent to stand trial and that a defense of insanity could not be supported. In making his assessment, Dr. Whirley "reviewed the written stat ements g iven [by the de

fendant] to the Bartlett Police [and] the transcript of the interview with the Bartlett Police." Asked whether he could glean a

ny abno rmal behavior from a review of the statements, Dr. Whirley answere d as follows:
No. I think the defendant–I mean, it would appear–and thi s

is opinion, so–it would appear that he was probably nervous. I mea n, in other words, some

times questions had

to be r epeated. I'm sure I would have been nervous in that situationas well. But I did not–I did nothear disorganized thinking. H is explanation for the need to–I mean, he was concerned about having a kidney stone, and he focused on that a great deal. But, again, according to him, he had a history of having had those. But I didn't see the grandiosity or the persecutor kind of thinking that goes with a psychosis–a paranoid psy chosis.
Dr. Whirley stated that brief psychotic episodes, as a pa rt of a "more profound mental illness," were "rare."-5-

The defense presented a two-fold s tr ategy. First, the defense sought to suppress the confession and, throughout the state's proof-in-chief, argued that there was not enough e

vidence to satisfactorily

support a guilty

verdict:
It 's ou r position that the state has failed to prove, under the proof in this case, aggravated sexua l ba tte ry. In other words, they have not proven that [the

victim's] intimate

parts were touched. And that, under the definit

ions in the law, unde

r the charge H

is Honor will give you, it must be

proven by th

e state to c onstitute aggravated sexual battery. I

f they don'

t p rove that , then they have not proven their case. And then you

have to move to any lesser-included offense, or you have to move to not guilty.
In the alternative, the defendant pres ented an insanity defense. At the conclusion of the state's proof, and after the trial court had refused to reconsider the denial of the motion to suppress andoverruled the request for a judgment of acq

uittal, the defense endeavored to meet its "burden of proving the defense of insanity by clea r and convincing evidence." See Tenn. Code Ann. § 39-11- 501(b). During

summation, the def

ense made the fol

lowing argume

nt: [I]f you find that

the state proved t

h eir ca se beyond a

reasonable doubtand to a moral cer

tainty that a crime was committed and that Ronald Weeks committed the crime, we're permitted to go forward andp rov e to you, by

clear and convi

ncing–not bey

ond a reasonable doubtand to a moral certainty–that at the time of the commission of the offense, he was suffering from a severe mental defect and

didn't appreciate

the wrongfulne

ss of his actions; and, therefore, the mental component

of a criminal act–a criminal act has a physical component anda mental componen

t–is not there; and

, therefore, he

is notguilty by reason of insanity because this crime of aggravated

sexual battery requires a specific intent to touch a child on the intimate–or in thi s case a child under thirteen y

ears of age–t

o touch a child

on intimate parts for the purpose o

f sexual arousal. T

hat's what the st

ate has to prove in this case. The jury returned a guilty verdict on the charge of aggravated sexual battery

. I
Init ial ly, the defendant asserts that the trial court erred by admitting into evidence the two statemen ts given by him to Detective Jones. The defendant contends that the statements were obt ainedin violation of his right against self-incrimination because the detective continued the interrogation

even though the defen d ant had responded in the negative when asked whether he wantedto give a sta

tement. The de fendant also asserts that he was not provided with any-6-

Miranda warnings prior to his second statement.
The trial court's determination with regard to the vo luntariness and, consequently, the admissibility o

f the defendant'

s statements

is binding on appeal unless the evidence preponderates against it. State v. Goforth , 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984). The Fifth Amendment to the United States Co

nstitution provides t

hat "[n]o perso

n . . . shal l be compelledin any criminal case to be a witness against h

imself . . . ." U.S. Co

nst. amend. V; see also Mall oyv. Hogan , 378 U.S. 1, 6 (1964) (holding that the

Fifth Amendment'

s protection aga

inst compul soryself-incrimination is applicable to the states through the Fourteenth Amendment). Article I, Section 9 of

the Tennessee Co

nstitution provides t

hat "in all crimin

al prosecuti ons, the accused . . . shall not be compel led to give evidence against h imself." Tenn. Cons t. art . I, § 9. "The significant

difference between these two provisionsis that the test of voluntariness for confessions under Article I, § 9 is broader and more protective of ind

ividual rights tha

n the test of volunta

riness under the Fifth Amendmen t." State v. Crump , 834 S.W.2d 265, 268 (Tenn. 1992).
Gen eral ly, one must affirmatively invoke these constitutional protection s. An exception arises, however, when a government agent makes a custodial interrogation. Statements made during the course of a custodial police interrogation are inadmissible at trial unless the state establishes that the defendant was advised of his right to remain silent and his right to counsel and that the defendant then waived those rights. Miranda v. Arizona , 384 U.S. 436 (1966) ; see also Dickerson v. United States , ___ U.S. ___, ___ S. Ct. ___, No. 99-5525, 2000 WL 807223 (June 26, 2000) (affirming the continuing viability of Miranda ). Miranda requires that, pr

ior to inte r rogation, police inform the defendant as follows: (1) He has the right to remain silent; (2) any statement that he makes may be used against him; (3) he has the right to the pr esence of a n attorney; and (4) if he cannot hire an att orn ey, one will be appointed prior to the interrogation, if he so desires. Miranda , 384 U.S. at 444.
T he record demonstrates that immediately prior to the defendant's recorded state ment, the following exchange, facilitated by the interpreter, took place betwe en Detective Jones and the defendant:
D.J. I

am going to ask you some questions regarding the above complaint; however, before doing so it is my duty as a police o fficer to advise you that you do not have to make a statemen t, that you hav

e a right to rema

in silent and th

a t anything you say can and will be used against you and others in court. Also, that you have a right to have a lawyer,

either of your own

choic e or court appoin

ted, if you a

re unable to afford one and to talk with your lawyer bef ore answeringany questions, and to have him with you during questioning if you wish. With this u nderstanding, do you wish to make a statement ?
R.W. Uh no

.-7- D.J. O kay. Let me tell you what I know? Okay ? Uh m [th e victim] came to your re sidence at which time went to Ms. Vicki's room, this point you p ul led her panties, pants down, shorts down and panties d own, uh at whic

h ti me you pulled your shorts and underwear down. You laid on top of her and uh ejaculated. She is at Rape Crisis at this time.
R.W. Not rape, not rape, rub, just rub.
D.J. Okay

don't make any

statements, alrig

ht? You just told

m e, do you want to make a statement or do you not want to make a statement?
R.W. Uh . . .
D.J. This is . . . you have th e right to speak w

ith an attorney

if that's what you wa

nt to do. Okay

, but if you wa

nt to ta lk t o me, then you know, this is your time to tell us what y our side is? I am j ust bas ica lly t ell ing yo u wh at I k now , ok ay?
R.W. Yes.
D.J. Uhm. Detective Moore took [the victim] to Rape Crisis and they di d locate s emen on [th

e victim].
R.W. Uh uh (yes).
D.J. So do you want

to make a statemen

t or not?
R.W. Well yes. . . . (Emphasis added).
The defendant arg

ues that Detectiv

e Jones' interrog

atio n should have ceased imme diately upon his responding, "Uh no, " when fi rst asked by the detective whether he wished to make a statement. The state, on the other hand, asserts that the defendant's "uh no" response was equivocal and that the detec

tive properly

sought clarific

ation thereof. We

agree with the

defendant.
In our vie w, t his que sti on i s co ntr oll ed b y State v. Crump, 834 S.W .2d 265 (Tenn. 1992). In Crump , the defendant was a rrested after h

e escaped from a

Department of Cor

rection work det

ail. At the time of his arrest, he was al so a suspec t in a homicide committed on the day of his escape. Upon being arrested, the defendant was handcuffed and placed in the fr ont seat of a squad car. A detective read his Miranda rights. When the detective asked the defendant whether, having heard-8-

his rights, he wished to make a statement, the defendant replied either, "I don't have anything to say right now," or, "I don't have any thing to say." The detective then terminated his interroga tion of the defendant. Subsequently, however, another of ficer, hoping to gain information related to the homicide in which the defe ndant was a

suspect, asked th

e defendant whe

ther he would

mind riding withhim to the scene of

his escape. The d

efendant acce

pted the ride and t

wo officers took

him on a 30- to 45-minute d

rive, retracin

g his escape ro

ute. Near a hote

l, the officers stopped

the car and askedthe defendant whether he had stolen anything from a c ar in the parking lot. The defendan t admitted that he had and one of the officers

informe d him that the items had been found at the homicide scene. Thetwo officers then noted an emotional change in the defendant. Upon returning to the station, the defendant was again read his Miranda rights and, after signing a written waiver of his rights, he gave a recorded statement wherein he confessed to the homicide. The trial court found that the defendan t's right to remain silent had not been "scrupulously honored" and suppressed both the statements made by

the defendant in t

h e car andthe recorded confession. On appeal, our supreme court ulti

mately held that t

he trial c ourt had c

orrectly exc lu ded the statements and confession:
To fully honor a n accused's se

lf-incrimination r

ights,

. . . "[o]nce warnings have been given , . . . [i] f the individual indicates in any manner, at

any time prior to or during questioning, that he wishes to remain silent, the interr

ogation must cea

se . At that point, he has shown that he intends to exercise his Fifth Amendment privilege." * * * The facts presente

d in this appeal cle

arly demons

t rate th at [the defendant's] right

to cut off questioning by invocation of his right to remain silent was not " scrupulously honored ." Thirty minutes after responding to Miranda

warnings with

"I don't ha

ve anything

to say," he was taken on a 30 to 45-minute drive an d q uestioned while retracing the route of h i s escape. This clearly constituted an impermissible

resumption of in

-custodial interro gation, which caused the admissions made

by Crump duri

ng the drive to be

inadmissible

. * * * Af t er reviewing the record, we conclude that the police failure to scrupulously

honor [the defendant's] invocation of his right to remain silentamounted to a viola tion of the defendant's state and federal constitutional rights. . . . Once an individ ual invokes his rig ht to remain silent and the police fail to honor that i nvocation by continuing to interrogate him, that violation , bydefinition, is of constitutional magnitude

. * * * Although the off

icers did administer Miranda warnings before ob tainin g the taped confession, there were no intervening circumstances.

In addition, th

e temp oral p roximity of the police misconduct

to the confession was too sho rt to purge the confession of-9- the taint of the prior constitutional violation. Therefore, we find that the taped confession is inadmissible "fruit of the poisonous tree."
Id. at 269-70, 272 (ci

tations omitted) (e

mphasis a

dded). Upo n concludi ng that the d efendant's confession was in

voluntary, o

r supreme court r

eversed the con

viction and gra

nted a new trial. By continuing with hi

s interrogation

in this case

after the defe

ndant indicated th

at he did not wish to mak e a statemen t, Detecti ve Jones fa iled to "scr upulousl y honor" the defe ndant's constitutional right against self-incrimination. The interview should have ceased immediately

when Detective Jones asked if he wished to make a statement and the defendant sai d , "Uh no." In our view, "uh no" is not equivocal . Equivocal, according to Black's Law Dictionary , means: "1. Of doubtful character; questionable. 2. Having more than one meaning or sense; ambi guous." Black's LawDictionary

561 (7 th ed. 1999). The word "no" is not "of doubtful character" or "questionable." Even when prefaced by a delay or the term "uh," "no" does not have more than one meaning and it is not ambiguous. In fact, "no" may be the most unequivocal word in the English language.
At the hearing on the

defendant's motion to suppress the two statements given to Detective Jones, the trial court questioned the interpreter as to whether the "uh" originated with the defenda nt or was inserted by him. The interpreter, who had no specific rec ollec tion of

the defendan t's interrogation, testified that it is his practice to attempt to convey the proper spirit of what is being signed. His use of "uh" w ould have been int

ended to convey

some type of

hesitatio n, per haps a "delayed no." Regardless, hesitation is not the equivalent of equi vocation. See Webster's New International

Dictionary , 1061 (3d ed. 1993) (defining "hesitation" as "the act of hesitat i ng (as by holding back, pausing, or faltering)").
At the suppres sion heari ng, Detective Jones maintained that the defendant had indicated that he would give a statement before he was advised of his Miranda rights. That the defendant may have changed his mind about making a statement afte r hearing his Miranda

rights is not an equivocation. Under the circumstances, Detective Jon es was si mply not entitled to resume his interrogation by setting forth the facts of the alleged offense in a manner d e signed to invoke a response from the defendant. While Detective Jones' intent may have been to allow the defendant

"to make an informeddecision on whether or not to give a statement," his obligationwas to ask neutral questions designed not to elic it a co nfession, but fashioned to clarify the defendant's position. See State v. Caldwell , 671 S.W.2d 459, 464 (T enn. 1984); see also State v. Mosier , 888 S.W.2d 781, 785 (Tenn. Crim. App. 1994) ("I

f a suspect makes

an equivocal or a

mbiguous reques

tfor counsel, police may attempt to clarify the request but can do nothing more." ); State v. Kyger , 787 S.W.2d 13, 22 (Tenn. Crim. App. 1989) ("While police may c

larify a su spect's equivoc

al request,'this is not to say that an interrogatingofficer may utilize the guise of clarification as a subterfug e for coercion or intimidation.'").
Because the defendant

effectively invoked

his right again

st self-incrimina

tion, and because Detective Jones fail ed to "scrup ulously hono r" that right , the defend ant's recorded state ment must be suppressed. Having made that determination, we now consider whether the defendant's written-10-

statement taken shortly after the oral statements should also have been excluded by the trial court.
In determining whether a confession made after

a constitutional violation was knowing and vol unt ary, this court m

ust examine the totality of the circumstances. Crump , 834 S.W.2d at 271. Factors relevant in determining the vo luntariness of a confession inc lude (1) the leng

th of time betweenthe arrest and the confession; (2) the occurrence

of intervening e

vents between the

arrest andthe confession; (3) the giving of Miranda warnings; and (4) the purpose and fl agranc y of the official misconduct. Brown v. Illi nois , 422 U.S. 590, 603-04 (1975); State v. Chandler , 547 S.W.2d 918, 920 (Tenn.1977). The overriding question, however, is whe the r the behavior of law enforcement of

ficials served to overbear the defendant's will to resist. State v. Kelly , 603 S.W.2d 726, 728 (Tenn.1980); see also State v. Howard , 617 S.W.2d 656, 658-59 (Tenn. Crim. App.1981).
Based upon the totality of the circumstances, it is our conclusion that the defendant's written statement was not knowingly and volunt aril y made. Detective Jones recalled that after the defendant's oral statement was taken, only ten to fifteen minutes elapsed before the defendant was instructedto complete

the written questionnaire. In our view, "the temporal proximity of the police misconduct

to the confession w

as too short to purg

e th e conf

ession of the taint of the prior constitutional vi olation." Crump , 834 S.W.2d at 272. Finally, even if a confession is inadmissible as violative of a defendant's right

against selfincrim i nation, its admission may be harmless error in light of other overwhelming evidence. The test is whether the ev

idence complaine

d of is harmless beyond any reasonable doubt. Chapman v. California , 386 U.S. 18 (1967). There must be no "

reasonable poss

ib ili ty t hat the evidence complainedof might have contributed to the con viction." Fahy v. Connecticut , 375 U.S. 85, 86-87 (1963). Applying this standard, we cannot say that admission of

the defendant's statements qualified as harmless error.
In Arizona v. Fulmina

nte , 499 U.S. 279 (1991), the Supreme C ourt estab lished that the admission of an involuntary confession may be subjec ted to a harmless error analys is. In Fulminante , a majority of the Court ruled that the state has the burd en of demonstrating that the admission of the involuntary confession did not contribute to the conviction. While determining that the error was not harmless beyond a reasonable doubt, the Courtmade the following observation:
A confession is like no other evidence. Indeed, "the defendant's own confess ion is probably the most probative and damaging evi dence that can be admitted aga

inst him . . . . [T]he admissions of a defendant come from the actor him

self, the most

kno wledgeable and unimpe achabl e source of inform ation about his past

conduct. Cer tai nly, confessions have profound impact on the jury , so much so that we may justif

iably doubt it

s ability to

put them out of mind even if told to do s o." W hil e so me s tat eme nts by a defendant may concern isolated aspects of t he crime or m ay be incrimina ting only when linked to other evidence, a full confession in which the defendant2 In Noggle v . Marsha ll , 706 F.2d 1408, 1416 (6 th Cir. 1983), the Sixth

Circuit Court

of Appeals held as

follows:
Fifth Amendment rights are relevant even after a defendant calls his own medical experts to the stand, with respec t to the issue of his co mmission o f the acts. Evide nce of a de fendant's inculpa to r y statements during a psychia tric ex aminati on cannot be admitte

d to prove gui lt. To hold otherwise would make the pr

ivile ge agains

t self -incri minati on illu sory. Moreov

er, such evidence s

hould not

be permitted

to affect the jury's determinati

on on that iss

ue to any great

er extent t

han is inher

ent in an insanity plea which u navoidab ly may contain a n admissio n that def endant did the act

but under circumstances

for which he is not responsi ble. -11- discloses the motive for and means of the crim

e m ay tempt the jury to rely upon that evidence alone in reaching its decision

. . . . Id. at 296 (quoti ng Bruton v. United States , 391 U.S. 123, 139-4 0 (1968)) (empha

sis added) (citation omitted).
Init ial ly, the Arizona Suprem e Court had conclu

ded that the ad mission o f Fulminant e's involuntary

confession was cumulative because he h ad l ater confessed his crime to a second individual, a statement that had been p roperly admitted into evidence. The Arizona court determined that the error was harmless on the theory that "the jury would still have had the same basic evidence to convict" because of "the overwh elming evidence adduced from the second confession . . . ." State v. Fulminante , 778 P.2d 602, 611 (Ariz. 1 989). The United St ates Supreme

Court disagreed, holding that the jury might not have accredited the content of

the second confession: "[T]he jury might have believedthat the two confessio ns reinforced and corroborat ed each other." Fulminante , 499 U.S. at 299. Furthermore, the Court con cluded thatthe admission of the first confession led to other incriminating evidence used by the state in the course of the trial. Id. at 300.
Sim ila rly, this court cannot conclude that the erroneous admission of the confessions made by the defendant in this case was harmless beyond a reasonable doubt. The defendant's statements were the only direct evidence of the circumstances of the offe nse. Although the victim testified at trial, she was unable to articulate the circumstances of her encounter with the defendant. Absent the victim's testimony, the strength of the state's case depended primar ily upon the impassioned statement that the victim

made to her mother and that her mother repeated at trial. Because the order denying suppression preceded the notice of an insanity defense and the defense chose not to present an insanity plea until the

state hadconcluded its proof and the trial court had reaffirmed its belief that the confession was admissible, the error appears to have had a procedural effect upon the t

rial as well as a substantive one. 2 In our view, the state has been unable to establish beyond a reasonable doubt that the error did not affect the verdict.-12- II Next, the defendant contends that the trial court erred by deny ing the motions for judgment of acquittal made by him at the close of the state's proof and at the close of all the proof. He asserts that had his two sta

t ements been suppressed, the trial court would have been required to enter an order of acquittal based on the insufficiency of the evidence

. On appeal, the state is entitled to the strongest legitimate view of the evidence a nd all inferences which might be drawn therefrom. State v. Ca bbage , 571 S.W.2d 832, 836 (Tenn.1978). The credibility of the witnesses, the weight to be given their testimony , and t he re conciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). The relevant question is whether, after reviewing the evidence in the light most favorable

to the state, any rational trier of fact could have found the essential elemen ts of the crime

beyond a re

asonable doubt. Te

nn. R. App. P. 13(e) ; State v. Williams , 657 S.W.2d 405, 410 (Tenn.1983). This court may neither reweig

h nor reevaluate

the evidence; nor may this court substitute its infer

ences for those d

rawn by the

trier of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn.1956). The evidence is sufficient when a rational trier of fact could con

clude that th

e defend ant is guilty beyond a reasona ble doubt. Jackson v. Virginia , 443 U.S. 307 (1979). The defendant has the burden of demonstrating that the evidence is notsuff icient when there is a challenge to the sufficiency of the evidence. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn.1982). Aggravated

sexual battery

is
unlawful sexual contact with a victim b y the defendant or the def endant by a victim a

ccompanied by

any of the f

ollowin g circumstances: * * * (4) The victim is less than thirteen (13) years of age. Tenn. Code Ann. § 39

-13-504(a)(4) . Sexual contact is de fined as follows: (6) "Sexual contact" includes the intentional touching of the victim's, the defendant's, or any oth er p erson's intimate parts, or the intentiona l touchi ng of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimat e part s, 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).
Because the defendant ha

d confessed to the

crime and there

was o ther incr iminating tes tim ony, the evidence was sufficient to support the conviction. The trial court did

not, therefore,-13-

err by refusing

to grant a judgment of acquittal. The defendant is, however, entitled to a new trial because the incriminating statements should have been suppressed. Should the issue of sufficiency of the evidence arise in the next trial, the trial court may consider the proof offered by the state and rul e acc ord ingl y.
III
The defendant maintains that the tri al court erred by applying Tenn. Code Ann. § 40-35- 114(15), that the defendant abused a position of public or private trust in committing the crime, as a sentencing enhancement factor. The defendant arguesthat his only relationship to the victim is that of neighbor and asserts that the victim was never placed in his care.
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to con

duct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the t rial court consid

ered the sentenc

ing principles a

nd all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 199 1); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the tria l court applies ina

ppropriate fac

tors or otherwise fails to follow the 1989 Sentencing Act, the presumpti on of correctne

ss falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentenc ing hea ring; (2) the presente

nce report; (3)

the principles of

sentencing and

the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the def endant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -2 10 ; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the sentence for a Class B, C, D, or E felo ny conviction, the presumptive sentence is the min imum in th e range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there are enhanceme

nt but no mitigating

factors, the trial court may set the sentence above the minimum, b ut still within the ra

nge. Tenn. Co

de Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires an as sig nment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code A nn. § 40-35- 210(e). The sentence must then be reduced within the range by any

weight assigned to the mitigating factors present. Id.
If the trial court's findings of fact are adequately supported by

the record, this court may not modify the sentence ev

en if it would

have preferred a different result. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991). The presumption of correctness

is, however, "conditioned upon the affirmative showing in the record that the trial court considered sentencing principles and relevant facts and circumstances." Ashby , 823 S.W.2d at 169. The trial court must place on the record the-14-

reasons for the sentence. Jones , 883 S.W.2d at 599.
The record

in this case demonstrates that the trial court made adequate findings of fact and appropriately

considered the applicable principles of sentencing. The trial court found and applied two enhancement fa

ctors: (1) that the victim

was particularl

y vulnerab

le because

of age or physical or mental disability, Tenn. Code Ann. § 40-35-114(4); and (2) that the defendant abused a position of public or private trust, Tenn. Code Ann. § 40-35-114(15). The trial court placed little weight on the first enhancement factor, but placed a great dea l of weight on t he second. With reg ard to mitigating factors, the trial court fo und three t o be applicable: (1) that there existed substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense, Tenn. Code Ann. § 40-35-113(3); (2) that the defendant was suffering from a mental or physical condition thatsignificantly reduced his culpability for the offense, Tenn. Code Ann. § 40- 35-113(8); and (3) that the defendant had no prior record and had a history of being a prod

uctiv e member of his family and community, Te nn. Code A nn. § 40-35-113(15). The trial court then sentenced the defendant

to eight years, the minimum sentence in the range. See Tenn. Code Ann. § 40-35-111(2). A

ccordingly

, our review of th

e trial court's

sentencing det

erminations is de novo with a presumption o f correctness.
In our view, the evidence supports the trial court's application of Tenn. Code Ann. § 40-35- 114(15). While the defendant argues that he was merely the victim's neighbor and that there is no evidence that the victim was ever placed in his care, the statute does not require a showing that the defendant was a caregiver. See State v. Kissinger , 922 S.W.2d 482, 487 (Tenn. 199 6) ("The determination of the existence of a posi tion of trust does no

t depend on the len

gth or formality of the relationship, butupon the natureof the relationship."). Moreover, this court has previously approved the application of Tenn. Code Ann. § 40-35-114(15) where a child victim wassexually assaulted by an adult neighbor. See Statev. Grover Livesay , No. 03C01-9510-CC-00298 (Tenn. Crim. App., at Knoxville, Oct. 9, 1996), app. denied (Tenn. Oct. 4 , 1999); State v. McKnight , 900 S.W.2d 36 (Tenn. Crim. App. 1994). There is evidence in the record to support the trial court's finding that the defendant occupied a position of private trust with regard to the victim. The defendant was a friend of the victim's fath

er and play

ed tennis with

him frequently. Apparently, the victim had visited the defendant's homeand played with the defendant's pets on more than one occasion. When aske d what kind of pets the defendant ow ned, the victim pro

mptly recite

d that the defenda

nt had two parrots , one cat, and one d

og. According

ly, this issue i

s without merit.
IV
Fin all y, the defendant a

sserts that the tria

l court erred by failing to sentence him as an especially mitigated offender. We disagree

. A court may sentence a defendant as an espec ially mitigated offender if: (1) The defendant has no prior felony convictions; and (2) The court fin

ds mitigating, bu

t no enhancement

factors.-15-

Tenn. Code Ann. § 40-35-109(a). Here, the trial court found two enhancement factors to be applicable. As such, the defendant failedto meet the requirements for sentencing as an especially mitigated offender and

there was no error by the trial court in this regard.
CONCLUSION
In conclusion the two statements given by the defendant should have been suppressed. The conviction is, therefore, reversed and the defendant is granted a new trial. Had the conviction been upheld, the sentence would have been affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE