State of Tennessee v. John ParnellYaugher

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1997 October 7, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9509-CC-00286 ) Appellee, ) ) ANDERSON COUNTY ) V. ) HON . JAME S B. SC OTT , JR., ) JUDGE JOHN PARNELL YAUGHER, ) ) Appe llant. ) (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

OPINION

The Defe ndan t, John Parn ell Yaugher, appeals as of right pursu ant to R ule 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 appe al, the Defendant challenges the sufficiency of the allegations in the indictment to charge an offense. Also, the Defendant challenges the sufficiency of the evid ence to sus tain the convic tion an d spe cifically 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. Furth er, the De fenda nt argu es tha t the trial c ourt er red 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 judgm ent of the tria l court.

I. SUFFICIENCY OF THE INDICTMENT

The Defen dant co ntends that the ind ictmen t fails to state an offense in 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 which this court held that an allegation that the Defendant unlawfully sexually penetrated a victim did not allege the neces sary me ntal state fo r rape, wh ich is, at leas t, recklessness. We note that other panels o f this court ha ve conc luded tha t such allegations are sufficient.

-2-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 sufficient regardless of which view is taken. T he indictm ent charges, in pertinent part, that the Defendant “did . . . unlawfully and felonio usly 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 Te nnessee .” (Emphas is 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. 19 90). As o ur supre me co urt has p reviously n oted, “one meaning attached to the word is: ‘In a legal sense, done with 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 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 favora ble to the prosecu tion, any rational trier of fact could have found the essential elem ents o f the crim e beyo nd a re ason able doubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979). On appeal, the State is entitled to the strongest legitimate view of the evidenc e and a ll inference s therefro m. State v. Cabbage,

-3-571 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 bu rden in this cou rt of illustra ting wh y the ev idence is insu fficient to support the verdict 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 witnesses, the weight and value to be given th e evidence, 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 reevaluate the evidenc e. 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 fa vor of the S tate. 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 Taylo r, and th e victim ’s two (2 ) sibling s had reside d 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, 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 in March 1993, after being asked to spend the night w ith 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 u pset an d obviou sly did not w ant to talk in the presence of

-4-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 daug hter’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 Defen dant ha d touch ed her. M s. Taylor called the Tennessee Department of Human Services two (2) days later and subsequently confronted the Defendant and his w ife with the victim ’s allegation s.

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 De fenda nt’s daughter. The room was dark and T.T. did not know if Defendant wen t to sleep on the floor with them. T.T. was sleeping in her moth er’s t-shirt and pa nties. 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 co uld hear the Defendant breathing heavily. She testified that the Defendant rubbed her “china,” which was her term for the v agina , but tha t 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 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 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

-5-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 th e exam ination that the child’s vaginal mucosa was very red, but there 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, 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 M arch 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 Defe ndant told them he ha d prev iously s uffered a strok e and it affected his memory slightly. When informed of the alle gation s, Defe ndan t told the investigators that T.T.’s face was against his ba ck wh ile 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

-6-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 stateme nt, he rep lied affirma tively. Detec tive Staffne y told Defe ndant 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 inves tigators stated that they never made any threats or promises to Defendant and he never gave any indication that he did not wa nt to talk to the m.

The statement written b y Defe ndan t in his hand writing a nd sig ned b y 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 W right, 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 P rivate A rea - V agina . She m ove he rself away.

The Defendan t testified and offered the testimon y of various witnesse s. 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 h e 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 Defenda nt’s wife. Howeve r, investigators cam e to the house a few days later.

-7-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 no t believe all of this was happening. Frightened 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 testified about Defe ndan t’s beha vior prio r to the in terview at the p olice d epartm ent an d his hospitalization. One month prior to the allegations being made known, Ms. Yaugher noticed h er husb and’s be havior wa s out of the ordinary. H e was forgetful at times. As an example, she stated that Defendant bought he r a card for Valentine’s Day without purchasing the envelope. Michael Walker, the Defe ndan t’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 (1½) 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 cas h register w ith an Ea ster bask et. Walker acknowledged that the Defendant had discussed his concerns regarding his behavior with M r. Walke r. Upon discharge from the hospital, Walker observed that the Defendant was a

-8-com pletely different person who was able to communicate and properly show his feelings.

Dr. Michae l Fisher tes tified regard ing the Defenda nt’s ps ychiatr ic treatme nt. He met Defendant on March 12, 1993 after a referral due to the Defe ndan t’s depression and suicidal tendencies. He determined that Defendant was suffering from major depression and pre-senile dementia, which is the occurrence of dem entia in a person who has not yet reached the age of sixty-five (65) years. Dr. Fisher testified that the se co ndition s wou ld have significa ntly 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 exper t opinion, Defendant had been suffering from dementia for at least three (3) months prior to the exam on March 12. Dependent upon the circumstances, Defen dant’s m ental con dition cou ld affect his capacity to resist the will of ano ther pers on.

Regarding Defendant’s interview with the investigators, Dr. Fisher opined that Defendant could not have thought clearly enough to know or und erstan d his legal rights. During cross-examination, Dr. Fishe r adm itted tha t the D efend ant’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 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 offense, was mentally impaired due to his demen tia and de pression , was un able to conform his conduct to the requirement of law, and had a “substantial impairment of his capa city to appreciate the lawfulness of the alleged offense.” He admitted

-9-that the Defendant understood that the offense alleged in the case was wrongful conduct, but explained th at the De fendan t had a pr oblem with his judg ment, which included “impulse control.” It was Dr. Fisher’s opinion that “if in fact the Defendant comm itted the offe nse, it was an impulsive act.” On redirect 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,” 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 ja il. 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 claime d 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 rebutta l, Dr. Ma rgare t Delm onico , a foren sic psycho logist, testified that she evaluate d the De fendan t 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 wa s both able to understand the wrongfulness of 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.

-10-

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 penetra tion of a victim by the defe ndant . . . 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 c orroborate a c onfession in ord er to sustain the conviction . State v. Ervin, 731 S.W .2d 70, 72 (Tenn . Crim. A pp. 198 6).

In Ervin, the defendant was convicted of aggravated rape 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 vagina on variou s occa sions . A pelvic exam ination of the vic tim 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 defen dant d id not te stify at his trial. Rejecting the defendant’s argument that his confession was not corroborated, and therefo re the e videnc e was sufficie nt to su stain th e con viction, our court held:

The corroborative evidence which tends to prove the truthfulness of the defend ant’s state ments need not be sufficient to establish the corpus delicti of the offen se cha rged.

State v. Ervin at 72.

-11-

In the case sub judice, even tho ugh the victim den ied that D efenda nt’s fingers went inside her, she testified that his fingers went inside her panties and he rubbe d her va ginal area. In addition, Dr. Vargas testified that the vaginal mucosa was re d, witho ut disc harge . Unde r this co urt’s holding in State v. Ervin, we find that there was sufficient evidence to corroborate Defendant’s confession, and this iss ue has no me rit.

B. PROOF OF PENETRATION

Defendant argues that there was insufficient proof of pene tration 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 issu e is withou t merit.

C. DEFENSE OF INSANITY

Defendant asserts that the State did no t prove his sanity at the time 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 this issue according to the law prior to July, 1995.

The law presumes that one who 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, evidence introduced during the course of a trial creates reasonable doubt on the sanity

-12-issue, the burd en of pro of shifts from the defen dant to the State. At th at point, the State must e stablish the defend ant’s san ity beyond a reaso nable d oubt. Overbay, 874 S.W.2d at 650.

As stated in State v. Overbay:

The test of sanity was established in [Graha m 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 defec t, or (2) if he was, that his illness was not such as to prevent him from knowing the wrongfulness o f his conduct and from conforming his conduct to the requirements of law.”

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

In summary, the Defendant offe red proof from Dr. Fisher and also lay testim ony which raised the issue of Defendant’s sanity. The State offered the proof of Dr. Delmonico, who testified that D efend ant wa s able to understand the wrongfulness of his con duct at the time of the offense and that 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 interview, and Dr. Fisher saw the Defe ndant o n severa l occasio ns, we a gree with the State that the basic foundation of Dr. Fisher’s conclusion was based upon the fact that if Defen dant did c omm it 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 th e “irresistible im pulse tes t.” In doing so, the supreme court held:

-13-

Under [the irresistab le impuls e] test, a crim inal defen dant is sa id to be relieved of crimina l respo nsibility w hen h is me ntal co ndition is such as to deprive him of his willpower to resist the impulse to com mit 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, b elieving that it is no t sufficie ntly comprehensive.

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

One expert witness te stified that, in h is opinion , the Defe ndant m et the 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 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 co urt. State v. Pappas, 754 S.W .2d 620 , 623 (T enn. C rim. App . 1987). T his issue is without m erit.

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 psych iatrist, was called to testify by the Defendant. He testified that on the date De fendant’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 mod erate to severe impairment due to the mental illness. Based upon his expertise, Dr. Fisher relayed that he did not think Defendant

-14-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 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 sympto ms in ad dition to sym ptoms of dem entia. In response to a question from the trial court as to whether the Defendant’s voluntarily coming for treatment indicated that he k new and had the cap acity to understan d there was something wrong, Dr. Fisher agreed that Defendant “understood something was wrong.” W hile Dr. Fisher concluded that the Defendant, under the circumstances of interrogation by law enforc eme nt office rs, cou ld not fu lly comprehend what he was doing at the time, he admitted that everyone has the power to decide, “even the most menta lly incomp etent pe rson.” He admitted that it was doubtful that Defendant would “jump off of a bridge” if he had been approa ched b y a total stran ger who reques ted him to so do.

Dr. Fisher d id not go out and investigate the circumstances surrounding the interrogation of Defenda nt, 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 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 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 Defen dant of a referra l of pos sible child abu se and that they w anted to

-15-speak to him the following day at police headq uarters. D efenda nt agree d 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 Detec tive Staffney. After giving a verbal statement, Defendant was read 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 detailed above in this op inion. A ccord ing to D etective Staffn ey, he d id 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 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 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 ne ver gave any indica tion that he wanted to leave or end the interrogation prior to its conclusion by Detective Staffney and Ms. Byrge. 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 uffered a stroke, which affected his memory a little bit. He never indicated at any time during the interview tha t he was having tro uble rem embe ring even ts being d iscusse d.

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 spec ifically found that Dr. Fisher’s expert opinion had not been rebutted, he

-16-did “not find ” that it ne cess arily refle cts tha t [Defe ndan t’s] con dition was as he [Dr. Fishe r] 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 (Ten n. 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 su ppres sion h earing as we ll 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 sha ll be upheld. In other words, a trial co urt’s find ings o f 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 comp etency o f a confes sion. The general rule is that a confession is admissible even though it was made at a time when the accused was under the influen ce of n arcotic drugs or alco hol, 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 (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 that the confession was n ot “volu ntary” w ithin the meaning of the due process clause of the Fourteenth Amendment, the Fifth Amendment of the United

-17-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 defenda nt was a forty-three (4 3) year old man whose mind functioned as a five (5) ye ar old child . The de fendan t’s ability to comm unicate was even p oorer in that h e was unab le to rea d, write, or cou nt, 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 subjecte d to ques tioning in spite of his retardation and his expressed desire for his father to be pres ent with him during inte rrogation .

W e simply do not find a similar set of facts in the 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 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 inves tigators als o rebuts the conc lusions m ade by D r. Fisher. This issu e is withou t merit.

IV. JURY INSTRUCTIONS

Defendant argue s that th e trial co urt erre d by ins tructing the ju ry on the lesser grade offense of aggravated sexual battery over his objection.

W hile this issu e is titled by the D efend ant 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

-18-lesser offense o f aggrava ted sexu al battery. As such, the issue was not contained in either the Defendant’s original motion for new tria l or sub sequ ently filed amended motion for new trial, and is therefore waived. T.R.A.P . 3(e). W e note that eve n 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 les ser offen se of aggrava ted se xual ba ttery, eve n if erron eous ly given, could be prejudicial to the Defendant in such circumstances. This issue 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

-19-