              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 battery and sentenced to
eight years in the Shelby County workhouse. In this appeal of right, the defendant asserts that the
trial court erred by allowing the state to introduce two post-arrest statements allegedly taken in
violation of his constitutional right against self-incrimination. The defendant also contends that the
trial court erred by denying his motions for judgment of acquittal; 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 mitigated offender. Because we conclude,
however, that the defendant'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 new trial.

                      Tenn. R. App. P. 3; Judgment of the Trial Court Reversed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,
joined. NORMA MCGEE OGLE , 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 Tennessee.

                                                      OPINION

       On July 24, 1997, the defendant, who is deaf, invited the victim,1 who was five years old, into
his home. According to pretrial statements the defendant made to the police, the defendant and the
victim played with the defendant'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

       1
           It is the policy of this court not to reveal the name of a minor who has been the victim of a sex crime.
his body on the victim's body until he ejaculated. The defendant then cleaned the victim and sent
her home. Immediately afterwards, the defendant felt guilty and walked next door to the victim's
home to apologize to the victim's mother.

       When the victim's mother answered the doorbell, the defendant was on the front porch
wearing only red satin-type boxer shorts. The defendant, who appeared to be distraught, apologized
and explained that he did not know what he was doing. The victim's mother, who was completely
unaware of the events, assumed that the victim had been bitten by one of the defendant's pets and
assured the defendant that everything would be fine.

        Later, when the victim's mother asked what had occurred, the victim explained that the
defendant had taken off her shorts, laid on top of her, and "peed" on her. A subsequent analysis of
the victim's underwear indicated the presence of semen. Vaginal swabs, performed 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 the Bartlett
Police Department, made the arrest. At trial, Detective Jones testified that he went to the defendant's
home and advised the defendant that he was being arrested for sexual assault. Through whispering
and body language, the defendant asked for the detective to "hold on." Detective Jones walked
inside the residence while the defendant got his shoes. Detective Jones believed that the defendant
understood what was happening.

        Although an interpreter had been requested, none was present when the defendant reached
the police station. The defendant was placed in a holding cell and nearly four hours later, the
interpreter arrived. At that point, Detective Jones read the defendant 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 indictment was returned against the defendant in November of 1997. The defendant
entered a plea of not guilty. In January of 1998, the defendant filed a motion to suppress the
statements he had made to the police. After a hearing on the motion in March, the trial court took
the matter under advisement. On April 30, 1998, the trial court ruled that the 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 reserved making an opening statement.

        At trial, the victim was called as the state's first witness. While able to respond to many of
the questions submitted by the assistant district attorney general, the victim could provide little
information about the offense. When asked, "Can you tell me what [the defendant] did," the victim
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 have your shorts off," "[d]id you
see Mr. Ronnie naked that day," "[c]an you tell 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


                                                 -2-
record establishes that there were several delays in the proceedings designed to allow the victim an
opportunity to gain her composure and describe the events at issue. The victim could only
characterize her experience as "bad." The mother of the victim, 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 proof, 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 diagnosis of severe depression.

        The defendant's wife of 25 years, Vicki Weeks, testified that the defendant had worked as
a mail handler for the postal service for 24 years. Ms. Weeks testified that the defendant became
despondent in 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
slept excessively. 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-half-month pregnancy, and was deaf, able to hear only high-pitched sounds. She
recalled that despite his impairment, however, the defendant became "the leader in his class" in
hearing school and later excelled as a tennis player. Ms. Weeks testified that just prior to the
offense, the defendant had undergone changes in his personality, becoming "withdrawn," "haggard,"
and "unkempt."

        Ronald Weeks, Jr., the twenty-four-year-old only child of the defendant and his wife, testified
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 described him as "extremely, extremely
depressed."

         John Ciocca, a clinical psychologist, treated the defendant. After a series of tests, he
diagnosed the defendant as severely depressed with a co-existing "paranoid delusional disorder in
which he suffered from the inability to tell reality from fantasy . . . and in which his ability to govern
his behavior would be impaired." Dr. Ciocca testified that the defendant, during interviews,
provided the details of the incident involving the victim. He characterized the defendant's statement
as "a rather disturbing story . . . [and] an example of a horrible thing that [the defendant did] to a
little girl . . . ." Dr. Ciocca described the defendant as "in a process of psychological decline since
early in 1997–increasing irritability, increasing hostility, increasing agitation, sleeplessness, [and]
difficulty with overreacting to people and things." He asserted that this mental disease or defect was
"severe," resulting in a loss of contact with reality. Dr. Ciocca administered psychological testing
to the defendant in the form of the Millon Inventory testing and the Minnesota Multi-phasic
Personality Inventory. It was Dr. Ciocca's conclusion that the defendant "was unable to appreciate
the nature and wrongfulness 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." Dr. Ciocca testified
that the defendant's apology to the victim's mother shortly after the occurrence at issue was not
inconsistent with his diagnosis.


                                                   -3-
       The state cross-examined Dr. Ciocca extensively, directing particular attention to the
defendant's pretrial statements:

               Q.      Did you receive . . . [t]he defendant's statements in this
                       case–the confession?

               A.      Yes.

               Q.      And you read the entire confession. Is that right?

               A.      That's correct.

The state then asked specifically about a separate incident that the trial court had previously redacted
from the confession, wherein the defendant acknowledged to police that "an incident[] almost took
place with another child" but did not "because he realized what he was doing was wrong."

         After the defense rested its case, the state called Kenneth Fulmar, a tennis league manager,
as a witness. Fulmar stated that the defendant won first place in a tennis tournament that began in
April of 1997 and extended through mid-June of that year. Bob Jackson, a postal service record
keeper, was called by the state to confirm that the defendant received an "above average" evaluation
for his job performance between May and July of 1997.

         Dr. John Whirley, a clinical psychologist, performed a court-ordered evaluation 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 statements given [by the defendant]
to the Bartlett Police [and] the transcript of the interview with the Bartlett Police." Asked whether
he could glean any abnormal behavior from a review of the statements, Dr. Whirley answered as
follows:

                        No. I think the defendant–I mean, it would appear–and this
                is opinion, so–it would appear that he was probably nervous. I mean,
                in other words, sometimes questions had to be repeated. I'm sure I
                would have been nervous in that situation as well. But I did not–I did
                not hear disorganized thinking. His 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 psychosis.

Dr. Whirley stated that brief psychotic episodes, as a part of a "more profound mental illness," were
"rare."



                                                  -4-
        The defense presented a two-fold strategy. First, the defense sought to suppress the
confession and, throughout the state's proof-in-chief, argued that there was not enough evidence to
satisfactorily support a guilty verdict:

                       It's our position that the state has failed to prove, under the
               proof in this case, aggravated sexual battery. In other words, they
               have not proven that [the victim's] intimate parts were touched. And
               that, under the definitions in the law, under the charge His Honor will
               give you, it must be proven by the state to constitute aggravated
               sexual battery. If they don't prove 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 presented 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
and overruled the request for a judgment of acquittal, the defense endeavored to meet its "burden of
proving the defense of insanity by clear and convincing evidence." See Tenn. Code Ann. § 39-11-
501(b). During summation, the defense made the following argument:

               [I]f you find that the state proved their case beyond a reasonable
               doubt and to a moral certainty that a crime was committed and that
               Ronald Weeks committed the crime, we're permitted to go forward
               and prove to you, by clear and convincing–not beyond a reasonable
               doubt and 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 wrongfulness of his actions; and, therefore, the mental
               component of a criminal act–a criminal act has a physical component
               and a mental component–is not there; and, therefore, he is not guilty
               by reason of insanity because this crime of aggravated sexual battery
               requires a specific intent to touch a child on the intimate–or in this
               case a child under thirteen years of age–to touch a child on intimate
               parts for the purpose of sexual arousal. That's what the state has to
               prove in this case.

       The jury returned a guilty verdict on the charge of aggravated sexual battery.

                                                   I

        Initially, the defendant asserts that the trial court erred by admitting into evidence the two
statements given by him to Detective Jones. The defendant contends that the statements were
obtained in violation of his right against self-incrimination because the detective continued the
interrogation even though the defendant had responded in the negative when asked whether he
wanted to give a statement. The defendant also asserts that he was not provided with any


                                                 -5-
Miranda warnings prior to his second statement.

        The trial court's determination with regard to the voluntariness and, consequently, the
admissibility of 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 Constitution provides that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V; see also
Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth Amendment's protection against
compulsory self-incrimination is applicable to the states through the Fourteenth Amendment).
Article I, Section 9 of the Tennessee Constitution provides that "in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself." Tenn. Const. art. I, § 9. "The
significant difference between these two provisions is that the test of voluntariness for confessions
under Article I, § 9 is broader and more protective of individual rights than the test of voluntariness
under the Fifth Amendment." State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

         Generally, one must affirmatively invoke these constitutional protections. 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, prior to interrogation, 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 presence of an attorney; and (4) if he cannot hire an
attorney, one will be appointed prior to the interrogation, if he so desires. Miranda, 384 U.S. at 444.

       The record demonstrates that immediately prior to the defendant's recorded statement, the
following exchange, facilitated by the interpreter, took place between 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
                        officer to advise you that you do not have to make a
                        statement, that you have a right to remain silent and that
                        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 choice or court appointed, if you are unable to
                        afford one and to talk with your lawyer before answering any
                        questions, and to have him with you during questioning if you
                        wish. With this understanding, do you wish to make a
                        statement?

                R.W. Uh no.


                                                   -6-
               D.J.   Okay. Let me tell you what I know? Okay? Uhm [the
                      victim] came to your residence at which time went to Ms.
                      Vicki's room, this point you pulled her panties, pants down,
                      shorts down and panties down, uh at which time 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, alright? You just told me,
                      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 the right to speak with an attorney if
                      that's what you want to do. Okay, but if you want to talk to
                      me, then you know, this is your time to tell us what your side
                      is? I am just basically telling you what I know, okay?

               R.W. Yes.

               D.J.    Uhm. Detective Moore took [the victim] to Rape Crisis and
                       they did locate semen on [the victim].

               R.W. Uh uh (yes).

               D.J.    So do you want to make a statement or not?

               R.W. Well yes. . . .

(Emphasis added).

       The defendant argues that Detective Jones' interrogation should have ceased immediately
upon his responding, "Uh no," when first 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 detective properly sought clarification thereof. We agree with the defendant.

        In our view, this question is controlled by State v. Crump, 834 S.W.2d 265 (Tenn. 1992).
In Crump, the defendant was arrested after he escaped from a Department of Correction work detail.
At the time of his arrest, he was also a suspect in a homicide committed on the day of his escape.
Upon being arrested, the defendant was handcuffed and placed in the front seat of a squad car. A
detective read his Miranda rights. When the detective asked the defendant whether, having heard


                                                -7-
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 anything to say." The detective then terminated his interrogation of the
defendant. Subsequently, however, another officer, hoping to gain information related to the
homicide in which the defendant was a suspect, asked the defendant whether he would mind riding
with him to the scene of his escape. The defendant accepted the ride and two officers took him on
a 30- to 45-minute drive, retracing his escape route. Near a hotel, the officers stopped the car and
asked the defendant whether he had stolen anything from a car in the parking lot. The defendant
admitted that he had and one of the officers informed him that the items had been found at the
homicide scene. The two 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 defendant's right to remain silent had not been "scrupulously honored" and suppressed both
the statements made by the defendant in the car and the recorded confession. On appeal, our
supreme court ultimately held that the trial court had correctly excluded the statements and
confession:

               To fully honor an accused's self-incrimination rights, . . . "[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 interrogation must cease. At that point, he has
               shown that he intends to exercise his Fifth Amendment privilege."
                                           *      *       *
               The facts presented in this appeal clearly demonstrate that [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 have anything to say,"
               he was taken on a 30 to 45-minute drive and questioned while
               retracing the route of his escape. This clearly constituted an
               impermissible resumption of in-custodial interrogation, which caused
               the admissions made by Crump during the drive to be inadmissible.
                                           *      *       *
               After reviewing the record, we conclude that the police failure to
               scrupulously honor [the defendant's] invocation of his right to remain
               silent amounted to a violation of the defendant's state and federal
               constitutional rights. . . . Once an individual invokes his right to
               remain silent and the police fail to honor that invocation by
               continuing to interrogate him, that violation, by definition, is of
               constitutional magnitude.
                                           *      *       *
               Although the officers did administer Miranda warnings before
               obtaining the taped confession, there were no intervening
               circumstances. In addition, the temporal proximity of the police
               misconduct to the confession was too short to purge the confession of


                                                 -8-
               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 (citations omitted) (emphasis added). Upon concluding that the defendant's
confession was involuntary, or supreme court reversed the conviction and granted a new trial.

        By continuing with his interrogation in this case after the defendant indicated that he did not
wish to make a statement, Detective Jones failed to "scrupulously honor" the defendant'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 said, "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; ambiguous." Black's
Law Dictionary 561 (7th 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 defendant
or was inserted by him. The interpreter, who had no specific recollection of the defendant's
interrogation, testified that it is his practice to attempt to convey the proper spirit of what is being
signed. His use of "uh" would have been intended to convey some type of hesitation, perhaps a
"delayed no." Regardless, hesitation is not the equivalent of equivocation. See Webster's New
International Dictionary, 1061 (3d ed. 1993) (defining "hesitation" as "the act of hesitating (as by
holding back, pausing, or faltering)").

        At the suppression hearing, 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 after hearing his Miranda rights is not an equivocation.
Under the circumstances, Detective Jones was simply not entitled to resume his interrogation by
setting forth the facts of the alleged offense in a manner designed to invoke a response from the
defendant. While Detective Jones' intent may have been to allow the defendant "to make an
informed decision on whether or not to give a statement," his obligation was to ask neutral questions
designed not to elicit a confession, but fashioned to clarify the defendant's position. See State v.
Caldwell, 671 S.W.2d 459, 464 (Tenn. 1984); see also State v. Mosier, 888 S.W.2d 781, 785 (Tenn.
Crim. App. 1994) ("If a suspect makes an equivocal or ambiguous request for 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 clarify a suspect's equivocal request, 'this is not to say that an
interrogating officer may utilize the guise of clarification as a subterfuge for coercion or
intimidation.'").

       Because the defendant effectively invoked his right against self-incrimination, and because
Detective Jones failed to "scrupulously honor" that right, the defendant's recorded statement must
be suppressed. Having made that determination, we now consider whether the defendant's written


                                                  -9-
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
voluntary, this court must examine the totality of the circumstances. Crump, 834 S.W.2d at 271.
Factors relevant in determining the voluntariness of a confession include (1) the length of time
between the arrest and the confession; (2) the occurrence of intervening events between the arrest
and the confession; (3) the giving of Miranda warnings; and (4) the purpose and flagrancy of the
official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975); State v. Chandler, 547 S.W.2d
918, 920 (Tenn.1977). The overriding question, however, is whether the behavior of law
enforcement officials 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 voluntarily made. Detective Jones recalled that after the
defendant's oral statement was taken, only ten to fifteen minutes elapsed before the defendant was
instructed to complete the written questionnaire. In our view, "the temporal proximity of the police
misconduct to the confession was too short to purge the confession of the taint of the prior
constitutional violation." Crump, 834 S.W.2d at 272.

         Finally, even if a confession is inadmissible as violative of a defendant's right against self-
incrimination, its admission may be harmless error in light of other overwhelming evidence. The
test is whether the evidence complained of is harmless beyond any reasonable doubt. Chapman v.
California, 386 U.S. 18 (1967). There must be no "reasonable possibility that the evidence
complained of might have contributed to the conviction." 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. Fulminante, 499 U.S. 279 (1991), the Supreme Court established that the
admission of an involuntary confession may be subjected to a harmless error analysis. In
Fulminante, a majority of the Court ruled that the state has the burden 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 Court made the following observation:

               A confession is like no other evidence. Indeed, "the defendant's own
               confession is probably the most probative and damaging evidence that
               can be admitted against him . . . . [T]he admissions of a defendant
               come from the actor himself, the most knowledgeable and
               unimpeachable source of information about his past conduct.
               Certainly, confessions have profound impact on the jury, so much so
               that we may justifiably doubt its ability to put them out of mind even
               if told to do so." While some statements by a defendant may concern
               isolated aspects of the crime or may be incriminating only when
               linked to other evidence, a full confession in which the defendant


                                                 -10-
                    discloses the motive for and means of the crime may tempt the jury
                    to rely upon that evidence alone in reaching its decision. . . .

Id. at 296 (quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968)) (emphasis added) (citation
omitted).

        Initially, the Arizona Supreme Court had concluded that the admission of Fulminante's
involuntary confession was cumulative because he had later confessed his crime to a second
individual, a statement that had been properly 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 overwhelming evidence adduced from the second confession . . . ." State
v. Fulminante, 778 P.2d 602, 611 (Ariz. 1989). The United States Supreme Court disagreed, holding
that the jury might not have accredited the content of the second confession: "[T]he jury might have
believed that the two confessions reinforced and corroborated each other." Fulminante, 499 U.S. at
299. Furthermore, the Court concluded that the admission of the first confession led to other
incriminating evidence used by the state in the course of the trial. Id. at 300.

         Similarly, 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 offense. 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 primarily 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 had concluded 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 trial 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.




        2
            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 respect to the issue of his co mmission o f the acts. Evide nce of a de fendant's inculpa tory
        statements during a psychiatric examination cannot be admitted to prove guilt. To hold otherwise
        would make the privilege against self-incrimination illusory. Moreover, such evidence should not be
        permitted to affect the jury's determination on that issue to any greater extent than is inherent in an
        insanity plea which u navoidab ly may contain a n admissio n that defendant did the act but under
        circumstances for which he is not responsible.

                                                             -11-
                                                   II

        Next, the defendant contends that the trial court erred by denying 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 statements 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 and all
inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.1978).
The credibility of the witnesses, the weight to be given their testimony, and the reconciliation 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 elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State
v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). This court may neither reweigh nor reevaluate the
evidence; nor may this court substitute its inferences for those drawn 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 conclude that the defendant is guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307 (1979). The defendant has the burden of demonstrating that the evidence is
not sufficient 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 by the defendant or the
               defendant by a victim accompanied by any of the following
               circumstances:
                                         *       *       *
                      (4) The victim is less than thirteen (13) years of age.

Tenn. Code Ann. § 39-13-504(a)(4). Sexual contact is defined as follows:

                        (6) "Sexual contact" includes the intentional touching of the
               victim's, the defendant's, or any other person's intimate parts, or the
               intentional touching of the clothing covering the immediate area of
               the victim's, the defendant's, or any other person's intimate parts, if
               that intentional touching can be reasonably construed as being for the
               purpose of sexual arousal or gratification[.]

Tenn. Code Ann. § 39-13-501(6).

       Because the defendant had confessed to the crime and there was other incriminating
testimony, the evidence was sufficient to support the conviction. The trial court did not, therefore,


                                                 -12-
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
rule accordingly.

                                                   III

        The defendant maintains that the trial 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 argues that 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 conduct 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 trial court considered the sentencing principles and all
relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v.
Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise
fails to follow the 1989 Sentencing Act, the presumption of correctness 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 sentencing
hearing; (2) the presentence 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
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
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 felony conviction, the presumptive
sentence is the minimum in the range if there are no enhancement or mitigating factors. Tenn. Code
Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the
sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A
sentence involving both enhancement and mitigating factors requires an assignment of relative
weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 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 even 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


                                                  -13-
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 factors: (1) that the victim was particularly vulnerable 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 deal of weight on the second. With regard to
mitigating factors, the trial court found three to 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 that significantly 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 productive
member of his family and community, Tenn. Code Ann. § 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). Accordingly, our review of the trial court's sentencing determinations is de
novo with a presumption of 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. 1996) ("The
determination of the existence of a position of trust does not depend on the length or formality of the
relationship, but upon the nature of the relationship."). Moreover, this court has previously approved
the application of Tenn. Code Ann. § 40-35-114(15) where a child victim was sexually assaulted by
an adult neighbor. See State v. 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 father and played tennis with him frequently. Apparently, the victim had visited the
defendant's home and played with the defendant's pets on more than one occasion. When asked what
kind of pets the defendant owned, the victim promptly recited that the defendant had two parrots,
one cat, and one dog. Accordingly, this issue is without merit.

                                                  IV

       Finally, the defendant asserts that the trial court erred by failing to sentence him as an
especially mitigated offender. We disagree.

       A court may sentence a defendant as an especially mitigated offender if:

               (1) The defendant has no prior felony convictions; and
               (2) The court finds mitigating, but no enhancement factors.


                                                 -14-
Tenn. Code Ann. § 40-35-109(a).

        Here, the trial court found two enhancement factors to be applicable. As such, the defendant
failed to 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




                                               -15-
