        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               November 13, 2013 Session

                STATE OF TENNESSEE v. TAWANA JONES

                  Appeal from the Criminal Court for Shelby County
                         No. 1104213   Lee V. Coffee, Judge




               No. W2013-00335-CCA-R3-CD - Filed January 29, 2014




Appellant, Tawana Jones, was convicted by a Shelby County jury of rape and abuse of an
adult. See Tenn. Code Ann. §§ 39-13-502(a)(3), 71-6-117. The trial court sentenced
appellant to twelve years and two years, respectively, to be served consecutively. On appeal,
appellant challenges: (1) the sufficiency of the evidence supporting her rape conviction
regarding whether the victim was mentally defective and, if so, whether appellant knew the
victim was mentally defective; (2) the sufficiency of the evidence supporting appellant’s
abuse of an adult conviction; (3) the trial court’s use of specific enhancement factors during
sentencing; and (4) the trial court’s imposition of consecutive sentences. Following our
review of the parties’ arguments, the record, and the applicable law, we affirm appellant’s
rape conviction and, as the State concedes must be done, reverse and remand appellant’s
abuse of an adult conviction for proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                 in Part and Reversed in Part; Remanded in Part

R OGER A. P AGE, J., delivered the opinion of the Court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.

Mitchell W. Wood (on appeal and at trial) and Gerald Waggoner (at trial), Memphis,
Tennessee, for the appellant, Tawana Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy Weirich, District Attorney General; and Terre Fratesi and Greg Gilbert, Assistant
District Attorneys General, for the appellee, State of Tennessee.
                                             OPINION

                                                I. Facts

        This case concerns the rape and abuse of a thirty-three-year-old man who had an
intellectual disability.1 A Shelby County grand jury indicted appellant, the victim’s state-
provided caregiver, for rape according to Tennessee Code Annotated section 39-13-
502(a)(3), alleging that appellant “intentionally [had] [the victim] sexually penetrate” her at
a time that appellant knew or had reason to know that the victim was mentally defective. The
grand jury also indicted appellant for abuse of an adult according to Tennessee Code
Annotated section 71-6-117; however, the indictment does not state a factual basis for the
charge.

                                                A. Trial

       Dr. Tucker Johnson testified on behalf of the State. She stated that she was a full-time
clinical psychologist with the Department of Intellectual and Developmental Disabilities
(“DIDD”) and that she had worked there for approximately five and one-half years. While
Dr. Johnson did not personally evaluate the victim, she testified regarding her department’s
records involving the victim.

    She stated that in March 2010, the victim became a recipient of Medicaid’s Home and
Community-Based Waiver Services, which is a state-funded program that provides


       1
           As the Tennessee Supreme Court stated in Coleman v. State:

       The terms “intellectual disability” and “mental retardation” refer to the same population in
       number, kind, type, and duration of disability. See President’s Committee for People with
       Intellectual Disabilities, A Charge We Have to Keep 3 n.i (2004), http://www.acf.hhs.
       gov/programs/pcpid/docs/mr_2004_final.pdf. Robert L. Schalock et al., The Renaming of
       Mental Retardation: Understanding the Change to the Term Intellectual Disabilities, 45
       Intellectual and Developmental Disabilities 116, 116 (2007). Thus, the terms are
       interchangeable, Tenn. Code Ann. § 33-1-101(16)(C)(Supp. 2010), and “intellectual
       disability” is the preferred term. Am. Ass’n on Intellectual and Developmental Disabilities,
       Intellectual Disability: Definition, Classification, and Systems of Support 3 (11th ed. 2010)
       (“AAIDD Manual”).


341 S.W.3d 221, 226 (Tenn. 2011). Furthermore, the Tennessee State Legislature amended the statutory
scheme in 2010 and replaced the term “mental retardation” with “intellectual disability.” See 2010 Pub.
Acts, ch. 734. Therefore, we will use the term “intellectual disability” throughout this opinion.



                                                   -2-
community-supported living homes for individuals with intellectual disabilities. To qualify
for the program, an individual must complete an application and have one or more home
visits conducted by an assigned case manager. These individuals must prove that their
“intellectual and adaptive deficits” arose during their developmental period and that they are
financially eligible for Medicaid. She testified that before individuals are considered
intellectually disabled, they must satisfy three criteria: have significantly sub-average general
intelligence, measured by IQ points; have deficits in adaptive functioning, which means the
individuals have difficulties caring for themselves or communicating with others; and the
deficits must have appeared before the age of eighteen.

       Dr. Johnson testified regarding the victim’s records concerning his intellectual
disability. First, in reference to his general intelligence, Dr. Johnson stated that there are four
categories of intellectual disability: mild, moderate, severe, and profound. She stated that
when the victim entered the Home and Community-Based Waiver Services, the victim’s IQ
was fifty-five, which is classified as a “very low mild to high moderate” disability.

        Regarding the victim’s adaptive functioning, Dr. Johnson testified that the victim
scored a fifty-five out of one hundred. This adaptive functioning score is determined in
categories: motor skills, personal living skills, community living skills, and social and
communication skills. The victim’s motor skills were determined to be at the age equivalent
of six years, eight months. His age equivalent for personal living skills was ten years. His
age equivalent for community living, which is an individual’s ability to interact and be
independent within a community, was assessed to be five years, ten months. Finally, the
victim’s social and communication skills, which reflect his ability to express himself clearly,
comprehend what other people are saying, and interpret social cues, were determined to be
at the age equivalent of four years, one month. All of these scores were considered, and the
victim was found to have an overall adaptive level of six years, eight months. Dr. Johnson
stated that generally people with the victim’s social and communication scores often have
difficulty interpreting verbal and non-verbal behavior as well as difficulty expressing their
needs and desires. Dr. Johnson stated these individuals frequently do not like conflict and
will “passively go along with suggestions.”

        Lastly, the victim’s records showed that he was intellectually disabled before the age
of eighteen. The victim was delivered prematurely after an abbreviated gestational period
of six months, which may have affected his brain development. Dr. Johnson testified that
the victim’s records showed that he was delayed in meeting developmental milestones like
talking, walking, toilet training, and writing. The victim’s records indicated that when he
was fifteen years of age he had an IQ of forty-one, which is considered to be a moderate
intellectual disability.



                                                -3-
       Dr. Johnson stated that after the victim was accepted into the program, he was put on
an accelerated track for placement in a home because he had a history of being confined in
locked mental health hospitals. The victim had received these services continually since
March 2010.

        Perry Adams was the State’s next witness and testified that he worked in a private
psychology practice. He stated that he had been performing psychological assessments since
1980. Mr. Adams had previously performed work for the Shelby County Schools, the
Department of Veterans Affairs, “Social Security Disability determination,” the Tennessee
Department of Vocational Rehabilitation, and the Tennessee Department of Mental
Retardation.2 He stated that DIDD requires an expert to establish that a person is
intellectually disabled before DIDD can provide services through Medicaid and that he
performs contract work for the non-profit organization that provides the required evaluations.
The trial court accepted Mr. Adams as an expert.

        Mr. Adams performed a psychological assessment on the victim. After the
assessment, Mr. Adams determined that the victim suffered from an intellectual disability.
He determined that the victim had significant developmental delays after a very premature
birth. He also considered the fact that the victim had participated in Special Educational
Services in the Memphis City Schools throughout his education. Mr. Adams testified that
he utilized the Wechsler Adult Intelligence Scale, which is an interactive IQ test, when
evaluating the victim’s IQ. He testified that the victim was “cooperative” and “[i]nterested
in doing well.” The victim scored a full scale assessment of fifty-five on the IQ scale. Mr.
Adams stated that the victim would have “significant limitations” because his “basic
cognitive functions are significantly behind other people his age.” He also stated the victim’s
IQ would affect the victim’s ability to “do things for himself,” “get competitive
employment,” and “interpret everyday social activities and situations.”

        Mr. Adams also performed a Vineland Adaptive Behavior Scale test, which measures
a person’s adaptive behavior, by conducting a survey with the victim’s mother, the person
who best knew his history and development. He testified that this test assessed “things like
making and keeping friendships, getting along with people, dressing, bathing, housekeeping,
travel, [and] all the things that ordinary people do every day.” Based on both the IQ test and
the adaptive behavior test, Mr. Adams concluded that the victim suffered from a mild
intellectual disability.




       2
         The Tennessee Department of Intellectual and Developmental Disabilities was formerly known
as the Tennessee Department of Mental Retardation.

                                                -4-
        On cross-examination, Mr. Adams stated that the victim could understand spoken
language more than he could articulate language and express himself to others. Mr. Adams
also stated that in modern psychology, experts use statistical scores like IQ and adaptive level
scores rather than equate a person to a specific developmental age. He also conceded that
the victim had previously been employed for one year as a dishwasher and that the victim
was “competent in many simple domestic activities and skills but lazy in looking after his
hygiene.”

        The victim testified next after the court determined that he was competent to testify.
The victim stated that he was thirty-three years old and that his birthday was on February 15.
However, he was unable to recall the name of the street on which he lived. He indicated that
he enjoyed going to the park, dancing, and exercising. He stated that he enjoyed eating
chicken, hot dogs, cheeseburgers, meatball spaghetti, corn, and peas. He also indicated that
he enjoyed watching the news and “Law and Order,” as well as listening to the radio. He
stated that someone stayed at his home with him at all times. When asked what city he lived
in, the victim responded, “Tennessee.” He also stated that he could not drive a car. He
indicated that he had attended school until age twenty-two.

        In order to fully convey the victim’s testimony regarding the date in question, part of
his testimony is set out in full below:

       Q.     [T]ell me --

       A.     Uh-huh (affirmative response).

       Q.     -- what room of your house something happened in?

       A.     Okay. Well, we were in -- in the -- in the living room.

       Q.     In the living room?

       A.     You know, watching TV. She had told me something -- I had to turn
              my head around. She had told me something. Uh -- ooh, I hate this. Uh
              -- she was going to let me --

       Q.     What did she say? What words did she say?

       A.     That she want me eat down there (indicating).

       Q.     Eat down there?

                                              -5-
A.     Uh-huh (affirmative response).

Q.     And for the record, you’re pointing. Where -- where are you pointing
       when you say “down there”? Can you show us?

A.     Well, she had pulled down -- her clothes down.

Q.     She pulled her clothes down?

A.     Yeah.

Q.     What else happened?

A.     She had came into my -- she had came into my room -- uh -- to get
       down on my knees. Uh -- she hold her legs wide open and I started
       doing it.

....

Q.     -- did she ask you to put any part of your body to touch any part of her
       body?

A.     She was telling me to touch her body.

....

Q.     What did you touch her with?

A.     With my tongue.

Q.     Did your tongue touch down there?

A.     Uh-huh (affirmative response).

Q.     Were her legs wide open?

A.     Yeah.

Q.     Did she ask you to do that?



                                      -6-
       A.     Yeah.

       Q.     . . . [H]ow did that make you feel?

       A.     Feel sad.

        After the State introduced into evidence pictures of the victim’s bedroom, the victim
testified that when this act occurred, appellant was lying flat on the victim’s bed with her
hands behind her head. The victim testified that appellant removed her underwear and told
him to touch her breasts and vagina with his mouth, which he did.

        Suzanne Avery testified next that she was an Independent Support Coordinator for
Neighborhood Network, an agency that contracts with the State to aid persons with
developmental disabilities. She stated that she develops plans for those individuals so that
they have “full days.” She testified that the victim “can do some things for himself, but he
has to be reminded every day to take a bath, to brush his teeth, [and] to put on clean clothes.”
She also stated that the victim enjoyed dancing, watching movies, and going to parks. She
said that the victim wanted a job and that she was working with the Department of
Rehabilitation Services to find him employment.

       She also stated that the victim had to be supervised twenty-four hours a day by a
caregiver because he had accidentally overdosed himself on medication previously and was
unable to care for himself. She stated that he could not manage his own money, cook meals
without supervision, read, or drive a car. Regarding communication with others, Ms. Avery
explained that it was “hard for [the victim] to get what he’s trying to say out, especially if
he’s nervous. He stutters a great deal. . . . He is hard to understand at times.” She also
stated that he did not have the ability to understand complex situations and complex
relationships. Further, she stated that all DIDD providers must undergo training regarding
abuse, neglect, and financial exploitation of the individuals under the workers’ care.

        Valerie Todd testified that she was the Program Administrator for Brenda Richardson
Memorial Care Homes (“Brenda Richardson”). Ms. Todd aided the victim during his
transition into the Brenda Richardson homes. She stated that the victim was a “level three,”
so he received one-to-one staff care twenty-four hours a day. Staff members aided the victim
with his daily activities, such as cooking, administering his medications, making his doctors’
appointments, and facilitating activities and outings. She also said that the victim could not
“be alone in the community due to exploitation.” She stated that the exploitation spanned
“from financial to sexual to criminal.” She asserted that the victim was “easily manipulated.”




                                              -7-
      Ms. Todd testified that she learned of the incident at issue on March 8, 2011, when
another caregiver for the victim asked her to speak to the victim. She stated:

        [The victim] looked scared, he looked sad. It wasn’t his normal smile that I
        get when I see him and, you know, the normal greeting that I get from him. .
        . . He looked sad, he looked scared, and when I asked him what was wrong, he
        hesitated for a minute, and then he said, “She got me.” And I’m like, “Who
        got you?” And he said, “Tawana.” And then I asked what happened, and he
        proceeded to tell me what happened.

The victim told her that appellant “made him” perform oral sex. Ms. Todd stated that
appellant began working for Brenda Richardson in November 2010. Ms. Todd testified that
appellant successfully completed the DIDD’s training for caregivers, which included training
on the maltreatment of vulnerable adults.

       Sergeant Roosevelt Twilley testified last for the State. Sergeant Twilley stated he had
worked for the Memphis Police Department for twenty-three years and had been assigned
to the Memphis Police Sex Crimes Bureau for approximately two years. On March 9, 2011,
this case was assigned to Sergeant Twilley. He interviewed the victim and described their
conversation as “a challenge.”

        Sergeant Twilley also interviewed appellant after informing her of her constitutional
rights. During the interview, after earlier denying the victim’s allegations, appellant admitted
that she allowed the victim to perform oral sex on her person. Sergeant Twilley typed the
confession, which appellant reviewed and signed. In her confession, appellant admitted that
she was a caregiver working for Brenda Richardson. Appellant admitted to speaking about
sexual activities around the victim. She stated that in January 2011,3 she asked the victim if
he had previously performed oral sex, and he indicated that he had. She inquired whether
he would like to perform oral sex on her. She stated, “So I went in his room and took my
clothes off and let him put his tongue on my [vagina].” Appellant also stated that in February
2011, she had engaged in sexual activity with another man in the victim’s bedroom.

        On cross-examination, Sergeant Twilley testified that when he interviewed the victim,
the victim stated that the incident occurred on March 5, 2011, and that the appellant told him
not to tell anyone that the incident occurred. He stated that he had difficulty understanding
the victim due to his speech impediment but that the victim was able to answer his questions.



        3
          Appellant did not explicitly testify that the events occurred in 2011, but the date is clear from
the context.

                                                     -8-
He also stated that he received information indicating that the victim had been diagnosed
with an intellectual disability.

       On re-direct examination, Sergeant Twilley stated that during his interview, the victim
said that appellant wanted him to be her man. The victim also indicated that appellant
“would walk around with just her underwear on around him.”

      Following the close of proof and deliberations, the jury found appellant guilty of rape
and abuse of an adult.

                                  B. Sentencing Hearing

       At the sentencing hearing, the presentence report was admitted into evidence. The
State again presented the testimony of Suzanne Avery, the victim’s independent support
coordinator. She had been employed by Neighborhood Network, working with people with
mental or intellectual disabilities, for approximately ten years. Ms. Avery stated that there
were clear standards for training caregivers of people with such disabilities. One of those
standards addresses “protection from harm,” which encompasses recognizing abuse and
neglect, as well as abstaining from committing abuse or neglect.

        Ms. Avery noted that it could be difficult to care for an adult with special needs
because they are “childlike;” they “can’t process thoughts” quickly and “can’t understand
things” as someone without such a diagnosis could. She opined that they could be easily
exploited. Specifically, the victim had a behavioral plan in place on which everyone who
worked with him was trained. The plan addressed how to redirect him in varying situations.
In addition, each caregiver had the telephone numbers of several people whom they could
call for assistance if they encountered a situation that they did not know how to address.

        Ms. Avery testified that she had spoken with the victim and his behavioral analyst
after the trial concluded. The victim had become “a little more touchy and want[ed] to hug
a little more than usual.” Caregivers had to “redirect him on appropriate ways to greet
people.” The victim had also attempted to discuss the incident with Andrea Holmes, his
behavioral analyst. Ms. Avery noted that if the victim’s behavior persisted, he would have
to resume counseling sessions. He had previously received counseling immediately
following the incident, but the sessions ceased when he stopped talking about the incident.
The victim remained confused about his relationship with appellant. Ms. Avery stated that
the incident in this case had negatively impacted the professional community involving
independent living assistance to those with mental and intellectual disabilities.




                                             -9-
       The State also presented Valerie Todd, the program administrator for Brenda
Richardson, as a witness. She stated that in conjunction with Ms. Holmes, she had decided
not to have the victim attend the sentencing hearing because following the trial, it took
approximately two weeks for the victim to stop discussing the incident. He had become
preoccupied with the events. Because of this “spike” in the victim’s fixation on the incident,
they made a referral for him to obtain additional counseling.

       Ms. Todd recalled that before the incident, the victim “was just eager, he was excited,
he was just getting into the programs, and he was just finding his way and discovering new
things.” She further described the victim as having been “bubbly and happy.” Following the
incident, the staff had to undergo additional training to deal with his “wanting to hug, . . .
inappropriate touching, [and] inappropriate conversation.” The victim also developed
outbursts of anger when the staff did not give him the desired attention. He slept more than
usual during the day and refused to begin his activities at the appointed times during the days
and weeks following the incident. Between the time of the incident and the time the trial
began, caregivers had worked with the victim to correct these behaviors through four or five
months of one-on-one counseling, retraining of the staff, and increasing the presence of
management in the house. The program had also modified its operating procedure to include
monthly “surprise” overnight visits rather than quarterly planned overnight visits. Many of
the employees were paid hourly, which increased the costs to operate the program.

       Ms. Todd explained that this incident impacted her work in that they depended on the
direct care support professionals as the “backbone” of the system. Professionals in
appellant’s position were entrusted with implementing the plans that the rest of the team
created. Since the incident with the victim in this case, she questioned “everything a little
bit more.” When an individual complained that they did not like a staff member, such a
complaint “[took] [her] to a totally different level than before because [she] [didn’t] want to
overlook anything.”

       The trial court sentenced appellant to twelve years for her rape conviction and two
years for her abuse of an adult conviction, to be served consecutively.

                                         II. Analysis

        Appellant argues that the evidence presented at trial was insufficient to support the
State’s contention that she knew or should have known that the victim was mentally defective
and that the evidence was also insufficient to support her conviction for abuse of an adult.
In addition, appellant challenges the sentences she received, arguing that the trial court
improperly enhanced her sentences to maximum lengths within her range and that the trial
court erroneously imposed consecutive sentences. The State argues that there was sufficient

                                             -10-
evidence to support appellant’s rape conviction, which required the State to prove that the
victim was mentally defective. The State has conceded that appellant’s abuse of an adult
conviction should be remanded for a new trial. Furthermore, the State argues that the trial
court properly sentenced appellant to twelve years for the rape conviction.

                              A. Sufficiency of the Evidence

                                           1. Rape

       Appellant contends that there was no direct evidence that the victim was mentally
defective or that she knew or should have known the victim was mentally defective as is
required for a conviction for rape. The State responds that the evidence was sufficient to
sustain appellant’s conviction. We agree with the State.

       The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

                                             -11-
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       Count one of the indictment, which charged rape based on the mental status of the
victim, alleged that appellant:

       [B]etween January 1, 2011[,] and March 8, 2011[,] in Shelby County,
       Tennessee, and before the finding of this indictment, did unlawfully and
       intentionally have [the victim] sexually penetrate [appellant] knowing or
       having reason to know that the [victim] was mentally defective, mentally
       incapacitated or physically helpless, in violation of T.C.A. 39-13-503, against
       the peace and dignity of the State of Tennessee.

       To sustain a conviction for rape pursuant to the indictment, the State had to prove
beyond a reasonable doubt that appellant intentionally had the victim sexually penetrate her
when appellant knew or should have known that the victim was mentally defective. Tenn.
Code Ann. § 39-13-503(a)(3). “Mentally defective” describes a person who “suffers from
a mental disease or defect which renders that person temporarily or permanently incapable
of appraising the nature of the person’s conduct.” Tenn. Code Ann. § 39-13-501(3).


       In appellant’s brief, appellant argues that proof of an intellectual disability is not
sufficient to prove that the victim was mentally defective. Appellant expounded on this
proposition, arguing that the State needed a witness to testify that the victim was “incapable
of appraising the nature of his or her conduct” or that the victim is “mentally defective.” See
Tenn. Code Ann. § 39-13-501(3). Appellant also asserts that according to State v. Schaller,
this witness should be an expert. State v. Schaller, 975 S.W.2d 313, 313 (Tenn. Crim. App.
1997). Finally, appellant argues that even if the State presented adequate proof that the
victim was mentally defective, the State failed to prove that appellant knew or should have
known that the victim was mentally defective.


        Appellant relies on State v. Schaller to support her contention that the State failed to
prove that the victim was mentally defective and that there was, therefore, insufficient
evidence to support her rape conviction. However, the facts and circumstances in Schaller
are distinguishable from the present case. In Schaller, the appellant was convicted of
aggravated sexual battery against a thirteen-year-old girl, who the state alleged was mentally
defective. Schaller, 975 S.W.2d at 313. The only evidence presented by the State to prove
that the victim was mentally defective was a detective’s testimony that the victim “appeared
to be ‘mentally challenged’” and a therapeutic foster care program counselor for the victim

                                              -12-
who testified that the victim was in therapeutic foster care because the victim was mentally
challenged and sexually abused. Id. at 315-16. The therapeutic foster care program
counselor also stated that the victim was seeing a psychiatrist and was enrolled in a special
education program. Id. at 316.


       In Schaller, this court determined that there was insufficient evidence to prove that
the victim was mentally defective. Id. at 313. The court noted that the victim was found
competent to testify and could describe her attempts to get the appellant to stop. Id. at 318.
The court also stated that it viewed “the testimony that [the victim] was ‘mentally
challenged’ to be an ambiguous, euphemistic reference that is not helpful” in determining
whether the victim was mentally defective. Id. at 317. Finally, the court noted that proof that
someone is mentally defective “should ordinarily come from a psychologist, psychiatrist, or
other expert medical personnel.” Id. at 318.


         Appellant asserts that Schaller requires an expert to state that the victim is “incapable
of appraising the nature of his or her conduct” or that the victim is “mentally defective.” See
Tenn. Code Ann. § 39-13-501(3). We disagree. Schaller states that “proof that meets the
statutory definition of mentally defective should ordinarily come from a psychologist,
psychiatrist, or other expert medical personnel.” Schaller, 975 S.W.2d at 318 (emphasis
added). It does not mandate that an expert specifically testify that the victim is mentally
defective, that the victim is incapable of appraising the nature of his or her conduct, or even
that an expert is unequivocally required to prove that a victim is mentally defective. See
State v. Lamar Ross, No. W2003-02823-CCA-R3CD, 2004 WL 2715348, at *6-8 (Tenn.
Crim. App. Nov. 22, 2004) (Two individuals’ non-expert testimony that the victim had been
diagnosed with an intellectual disability and mood disorder, an investigator’s testimony that
the victim was “a little slow,” and the jury’s observation of the victim while the victim was
testifying were sufficient to prove the victim was mentally defective.); State v. Jeffrey
Edward Pitts, No. 01C01-9701-CC-00003, 1999 WL 144744, at *4 (Tenn. Crim. App. Mar.
18, 1999) (The testimony of the victim’s father regarding the victim’s capabilities, non-expert
testimony that the victim’s IQ was below sixty-nine, and the jury’s observations of the victim
while he was testifying were sufficient to prove the victim was mentally defective.). Rather,
Schaller notes that objective evidence that a victim is mentally defective will ordinarily be
introduced by a “psychologist, psychiatrist, or other expert medical personnel.” Schaller, 975
S.W.2d at 318. It is from these objective facts, in conjunction with the other testimony at
trial, that the jury can determine whether the victim is mentally defective.


       Here, taking the evidence in the light most favorable to the State, the evidence was
sufficient to prove that the victim was mentally defective. Mr. Adams diagnosed the victim

                                              -13-
with a mild intellectual disability. The victim had an IQ of fifty-five. Dr. Johnson testified
that the victim’s motor skills were determined to be at the age equivalent of six years, eight
months. His age equivalent for personal living skills was ten years. His age equivalent for
community living, which is one’s ability to interact and be independent within a community,
was assessed to be five years, ten months. Finally, the victim’s social and communication
skills, which are one’s ability to express themselves clearly, comprehend what other people
are saying, and interpret social cues, were determined to be at the age equivalent of four
years, one month. All of these scores were considered, and the victim was found to have an
overall adaptive level of six years, eight months. Mr. Adams also testified that the victim
would have “significant limitations” because his “basic cognitive functions were significantly
behind other people his age.” Ms. Avery and Ms. Todd testified that the victim required
supervision twenty-four hours per day because in the past, he had accidently overdosed
himself on medication and was unable to care for himself. Ms. Todd also testified that the
victim was “easily manipulated.” Sergeant Twilley described his interview with the victim
as “a challenge.”


        The members of the jury also observed the victim during his testimony and could use
those observations when assessing his mental capacity. Although the Schaller court
considered a victim’s competency to testify when making its determination regarding
whether a person was mentally defective, the fact that the victim was allowed to testify does
not undercut the finding that the victim was mentally defective. While relevant, the trial
court’s determinations that the victim knew the difference between a truth and a lie and that
the victim was competent to testify are not the same as determining whether the victim could
appraise the nature of his conduct. See Tenn. Code Ann. § 39-13-501(3). The Fourth
District Court of Appeals of Florida highlighted this difference by stating:


       We do not see a problem . . . with a victim being found able to understand the
       moral obligation to testify truthfully, and still being mentally defective under
       the statutory definition. It is not unusual for a child who is actually or mentally
       five years old to sufficiently understand the moral obligation to tell the truth
       so as to be competent to testify. Telling the truth is a basic value of our society
       which is drummed into the heads of children as soon as they are able to reason.
       The fact that such a child is competent to testify, however, is not inconsistent
       with being mentally defective . . . .


Boman v. State, 760 So.2d 1053 (Fla. 4th DCA 2000).




                                              -14-
        Although proof that a victim has an intellectual disability does not by itself prove that
the victim is mentally defective, the State presented evidence of the victim’s cognitive and
adaptive abilities and limitations as well as testimony from individuals who have interacted
with the victim. We conclude that there was sufficient evidence for the jury to determine that
the victim was “mentally defective” under the statute. See Tenn. Code Ann. § 39-13-501(3).




        Finally, appellant argues that even if the State presented adequate proof that the victim
was mentally defective, the State failed to prove that appellant knew or should have known
that the victim was mentally defective. However, appellant was the victim’s State-provided
caregiver, who rendered daily care to the victim due to his intellectual disability. She had
also successfully completed the DIDD’s training for caregivers, which included training on
the maltreatment of vulnerable adults. We conclude that there was sufficient evidence for
the jury to infer that appellant knew or should have known that the victim was mentally
defective. Based on the foregoing, appellant is without relief on this issue.


                                    2. Abuse of an Adult


       With respect to this conviction, appellant argues that the State failed to prove that the
victim suffered any physical or mental harm or that appellant deprived him of any services
necessary to maintain his health and welfare. The State concedes error in the trial court with
regard to this count of the indictment.


       The State acknowledged that a verdict of guilty for “abuse or neglect” is subject to
alternate theories based on


       infliction of physical pain, injury, or mental anguish, or the deprivation of
       services by a caretaker that are necessary to maintain the health and welfare of
       an adult or a situation in which an adult is unable to provide or obtain the
       services that are necessary to maintain that person’s health or welfare.


Tenn. Code Ann. § 71-6-102(1)(A), -117 (emphasis added). The trial court read the standard
jury instruction at the close of the proof, which encompassed definitions of both abuse and
neglect. See T.P.I.-Crim. 29.14(b). Following the reading of the jury instructions, the State
asserted during its closing argument that the jury could rely upon harm done to the victim to
establish abuse or deprivation of services from the victim to establish neglect in assessing

                                              -15-
appellant’s guilt on this count. The indictment itself failed to narrow the facts upon which
the State was relying, as well. Moreover, the State concedes that the “neglect” theory was
only supported by appellant’s confession, in violation of prevailing case law.


        The Tennessee Constitution grants criminal defendants the right to a unanimous
verdict before the jury may impose a conviction of a criminal offense. See State v. Lemacks,
996 S.W.2d 166, 169-70 (Tenn. 1999) (citing State v. Shelton, 851 S.W.2d 134 (Tenn. 1993);
State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991)). “When the proof shows
multiple offenses which each could sustain the allegations of the criminal charge, it is ‘the
duty of the trial judge to . . . properly instruct the jury so that the verdict of every juror would
be united on the one offense.’” State v. Kenneth Lee Herring, No. M1999-00776-CCA-R3-
CD, 2000 WL 1208311, at *6 (Tenn. Crim. App. Aug. 24, 2000) (quoting Burlison v. State,
501 S.W.2d 801, 804 (Tenn. 1973)). In the instant case, the jury had the choice of two
theories – one of which, the State concedes, was impermissible – upon which it could base
its guilty verdict for abuse of an adult charge. Because the potential for a non-unanimous and
possibly illegal verdict existed with regard to this count, we reverse appellant’s conviction
and remand for proceedings consistent with this opinion.


                             B. Claims with Regard to Sentencing


      Appellant raises two challenges to the sentences she received: (1) the trial court
improperly enhanced her sentences to maximum lengths in the ranges; and (2) the trial court
erroneously imposed consecutive sentences.


                                     1. Length of Sentence


       Following the testimony and arguments of counsel, the trial court made its sentencing
determinations. The trial court considered the statutory guidelines as well as the other
requisite sentencing factors. Because appellant had no criminal record as either a juvenile
or an adult, the trial court sentenced her as a Range I, standard offender.


       The trial court found and attached great weight to the following enhancement factors:
(1) that the victim was particularly vulnerable because of his age or physical or mental
disability; (2) appellant treated the victim with exceptional cruelty; (3) appellant committed
the offenses for sexual gratification; (4) the personal injuries inflicted upon the victim were
particularly great; (5) appellant abused a position of trust; and (6) appellant intentionally

                                               -16-
selected the victim based on her perception of his disability. See Tenn. Code Ann.§ 40-35-
114(4), (5), (6), (7), (14), (17). The trial court found as a mitigating factor that appellant’s
conduct neither caused nor threatened serious bodily injury but afforded it “some weight but
not very much.” See id. § 40-35-113(1).


       Accordingly, the trial court sentenced appellant to twelve years for the rape
conviction, to be served as a violent offender at one hundred percent release eligibility and
two years for the conviction for abuse of an adult. However, having previously determined
that the latter conviction must be reversed and remanded, we confine our review to the
propriety of appellant’s twelve-year sentence.


        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Id.
§ 40-35-103(4).


        Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See id. §§
40-35-114, -210(c). The 2005 amendments set forth certain “advisory sentencing guidelines”
that are not binding on the trial court; however, the trial court must nonetheless consider
them. See id. § 40-35-210(c). Although the application of the factors is advisory, a court
shall consider “[e]vidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The
trial court must also place on the record “what enhancement or mitigating factors were
considered, if any, as well as the reasons for the sentence, in order to ensure fair and
consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State
v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.
Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at

                                              -17-
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).


        When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said
error will not remove the presumption of reasonableness from its sentencing determination.
Id. at 709. This court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).


        In considering appellant’s sentence in this case, the trial court properly considered the
relevant statutory authority and other sentencing criteria. As the State noted, appellant
concedes the trial court’s application of enhancement factors (7) and (14), that appellant was
committed the offense for sexual gratification and that appellant abused a position of trust.
See Tenn. Code Ann. § 40-35-114(7), (14). She contests the trial court’s findings with regard
to the remaining four enhancement factors and the trial court’s failure to apply additional
mitigating factors. We address each argument in turn.


              a. The Victim Was Particularly Vulnerable Because of Age or
                                Physical or Mental Disability


        Tennessee Code Annotated section 40-35-114, subsection (4), provides that a trial
court may enhance a sentence where “[a] victim of the offense was particularly vulnerable
because of age or physical or mental disability.” Enhancement factors may not be considered
if they constitute elements of the charged offense. State v. Walton, 958 S.W.2d 724, 729
(Tenn. 1997) (citing Tenn. Code Ann. § 40-35-114). The determination of whether an
enhancement factor applies must be made on a case-by-case basis. Id.




                                              -18-
       Appellant argues that this enhancement factor is inapplicable in her case because the
victim’s mental disability was an element of rape as charged in the indictment. See Tenn.
Code Ann. § 39-13-503(a)(3) (defendant knows or has reason to know that the victim is
mentally defective or mentally incapacitated). She posits that because the State had to
establish that the victim was mentally disabled, this fact cannot be relied upon to establish
vulnerability.


      Our supreme court has refined the definition of the “particularly vulnerable”
enhancement factor:


       [T]he factor applies only because a victim is “particularly vulnerable,” not
       because the victim is a certain age: “the relevant inquiry is not simply whether
       the victim is under the age of thirteen, but instead whether the victim was
       particularly vulnerable because of age or physical or mental disability.” State
       v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993) (emphasis in the original).


              In Adams, we stated:


                      We are of the opinion that the vulnerability enhancement
              relates more to the natural physical and mental limitations of the
              victim than merely to the victim’s age . . . . The factor can be
              used in an aggravated rape case if the circumstances show that
              the victim, because of his [or her] age or physical or mental
              condition, was in fact “particularly vulnerable,” i.e., incapable
              of resisting, summoning help, or testifying against the
              perpetrator. This is a factual issue to be resolved by the trier of
              fact on a case by case basis. The State bears the burden of
              proving the victim’s limitations rendering him or her particularly
              vulnerable.


              Id.


              We recently reiterated that the victim’s age does not alone justify
       application of this enhancing factor:




                                             -19-
       Although it is not difficult to imagine cases in which the victim’s age, whether
       very young or very old, may seem to equate with vulnerability, we chose in
       Adams not to presume such a conclusion in any case. Moreover, because
       Tenn. Code Ann. § 40-35-114(4) does not speak to specific ages, but rather to
       vulnerability, we could not create a bright-line rule. State v. Poole, 945
       S.W.2d 93, 96 (Tenn. 1997) (footnote omitted).


              Upon remand, in determining whether the State has established
       applicability of this enhancement factor, the trial court should consider (1)
       whether the victim, because of age or mental or physical attributes, was
       particularly unable to resist the crime, summon help, or testify at a later date;
       (2) whether victim’s age (extremely old or extremely young) is entitled to
       additional weight; and (3) whether the vulnerability of the victim made the
       victim more of a target for the offense or, conversely, whether the offense was
       committed in such a manner as to render the vulnerability of the victim
       irrelevant. Id. at 96-97.


Walton, 958 S.W.2d at 729. Although our supreme court discussed “particular vulnerability”
in the context of age in Walton and Adams, we employ the same analysis in determining the
applicability of this enhancement factor to a case involving a mentally disabled person. Thus,
for this court to reach a conclusion about the pertinency of this enhancement factor, we apply
the standard set forth in Walton.


        We have scrupulously reviewed the record in this matter. The victim testified twice,
once at a competency hearing and once at trial. Our interpretation of his testimony is that it
was all but unintelligible. In addition, expert testimony placed the victim’s communication
skills at the level of a child of four years, one month. These factors weigh heavily in favor
of a finding that the victim’s mental attributes rendered him particularly vulnerable in terms
of his being able to disclose what had occurred and recount the events in court. We do not,
however, find that the degree of his mental disability entitles his lack of communication skills
to additional weight. Finally, with regard to whether the victim’s vulnerability made him
more of a target for appellant, we answer in the affirmative. It was the victim’s very
disability that placed him in a position for appellant to commit the offenses against him. As
the trial court noted, appellant “basically had full care, custody[,] and control . . . of [the
victim].” He depended on appellant to provide for all of his needs. We conclude that under
the facts of this case, apart from the victim’s disability being an element of the indicted
offense, the circumstances establish that he was particularly vulnerable to appellant’s
criminal behavior. The trial court properly applied this factor.

                                              -20-
                                    b. Exceptional Cruelty


       The trial court found that appellant treated the victim with exceptional cruelty. Tenn.
Code Ann. § 450-35-114(5). Appellant argues that this factor was not established by the
facts. The State counters that appellant committed an act of mental cruelty, which is
sufficient under our case law.


       The State relies on State v. Thomas Lebron Mills and Carl Franklin Mills, C.C.A. 936,
1985 WL 4562, at *2 (Tenn. Crim. App. Dec. 19, 1985), in support of its position that acts
of mental cruelty will sustain a trial court’s finding of this enhancement factor. In that case,
the victim was a seventy-year-old female. Appellants in that case:


       (1) told the victim they were going to kill her by either burning her house down
       or by “blowing her brains out;” (2) stated, “Let’s cut her and make a believer
       out of her;” (3) told the victim that they would get her if she contacted the
       police; (4) dragged the victim about the house in search of valuables; and (5)
       held a screwdriver to the victim’s throat. Considering these facts, it would be
       an understatement to relate that the victim feared for her life. The trial judge
       held that the appellants treated the victim in a mentally cruel manner . . . . The
       appellants argue that “exceptional cruelty[]” . . . implies some sort of physical
       torture and that it should not be interpreted to encompass acts of mental
       cruelty. We disagree. Acts of mental cruelty in and of themselves can be just
       as vicious and leave just as many scars as acts of physical cruelty.


Id. (internal citations omitted).


        In contrast with the facts of this case, wherein appellant did not threaten the victim
in any way, we conclude that any acts of mental cruelty committed by appellant did not rise
to the level of “exceptional cruelty.” However, the trial court’s error was harmless in light
of the remaining viable enhancement factors. See Bise, 380 S.W.3d at 709 (misapplication
of an enhancing or mitigating factor in passing sentence will not remove the presumption of
reasonableness from its sentencing determination).




                                              -21-
            c. Appellant intentionally selected the victim in this case based on
                               her perception of his disability


       Appellant contends that the trial court erred in applying this enhancement factor
because there was no proof in the record to support this conclusion. The State posits that the
proof permitted the trial court to infer this factor.


        Neither party offers this court any citation to legal authority to support its position.
Upon our review of the record, we do not conclude that this enhancement factor applies. The
testimony established that appellant was sexually active and had been involved with several
different partners. Moreover, appellant was eager to recount her experiences to anyone
willing to listen and in environments in which others could easily eavesdrop. We cannot
conclude that she selected the victim because he would be unlikely to reveal her crimes to
anyone. Rather, she selected the victim because she was motivated to gratify her desire for
sexual pleasure. Again, although we decline to apply this enhancement factor, said error by
the trial court will not remove the presumption of reasonableness on appeal. See id.


                d. Injuries inflicted upon the victim were particularly great


       Appellant argues that the trial court erred in applying this enhancement factor. The
State argues that the victim’s psychological injuries supported the enhancement factor. We
agree with the State.


       As in initial matter, appellant states that the trial court “sua sponte” found this
enhancement factor. We note that the trial court is not bound by the state’s recommendations
or limited to only those factors presented by the State. See State v. Albert Franklin, No.
02C-01-9404-CR-00081, 1994 WL 697928, at *1 (Tenn. Crim. App. Dec. 14, 1994) (“The
court may apply any enhancement factor that is supported by the evidence at the trial, the
sentencing hearing, or the pre-sentence report.”). The trial court did not improperly consider
an enhancement factor not advanced by the State.


       Addressing for the first time the “quantum of proof required to make [the]
determination” of whether this factor applies, our supreme court obviated the need for expert
testimony and held that “application of this factor is appropriate where there is specific and
objective evidence demonstrating how the victim’s mental injury is more serious or more


                                              -22-
severe than that which normally results from this offense.” State v. Arnett, 49 S.W.3d 250,
260 (Tenn. 2001). The court also recognized


       that [while] all victims of crime, certainly victims of rape, must surely
       experience mental trauma, we are aware that no two crimes are exactly the
       same, and no two victims react to this crime in the same manner. Because
       some victims may suffer even more severe emotional trauma than is normally
       involved with this offense, our legislature has seen fit to enhance the
       punishment for those defendants causing “particularly great” psychological
       injury.


Id. Applying this standard, we review the trial court’s findings in support of this factor.


       In finding that this factor applied in this case, the trial court noted:


              The sentencing testimony from both witnesses . . . that as a result of this
       offense and as a result of this trial, . . . [the victim] has had a regression, . . .
       [and] he is now being referred to additional counseling[.] [H]e is beginning
       to act out inappropriately, his behavior has changed, . . . he is engaging in
       [and] soliciting inappropriate touching, . . . he is becoming more inclined for
       hugging or wanting hugging, and they have to get him refocused[.] [T]hey
       have to get him . . . rechanneled because this offense and this trial have
       changed his behaviors [and] changed his days.


              The testimony at trial was that[] before this happened, [the victim] used
       to be a very outgoing, very easygoing person, very affable personality, was
       always happy to see people, always smiling[,] and that this has changed him.
       He is now exhibiting anger outbursts, and there’s a spike in inappropriate
       touching and other behavior. And what Ms. Todd has told the Court, in the
       twenty years of working in this business, she has ever experienced anything
       like what [appellant] did to [the vicitm].


              And this Court does find that the personal injuries inflicted upon [the
       victim] . . . in fact[] were particularly great. It has totally changed a thirty-
       three-year-old who was living at an age range of something from four to ten
       years . . . of age, and as a result of what [appellant] has done to [him], this

                                               -23-
       Court finds that the emotional damage that she has done to [the victim][,] who
       was already particularly vulnerable, this Court finds that the emotional injuries
       are particularly great and gives great weight to that finding.


       We agree with the trial court that the emotional injuries inflicted upon the victim were
particularly great. We credit the findings made by the trial court and conclude that it properly
applied this enhancement factor.


                             4. Consecutive Sentence Alignment


       We have previously determined that appellant’s conviction for abuse of an adult
cannot stand, and we reverse and remand that conviction. Thus, consecutive sentence
alignment is no longer an issue for our consideration. Although the State conceded that the
conviction for abuse of an adult was improper, it nonetheless addressed the propriety of
consecutive sentencing. We surmise that the State did so in the event of a re-trial on this
count of the indictment. However, consecutive sentencing, in the procedural posture of this
case as it stands now, does not present a “justiciable controversy.” State v. Rogers, 703
S.W.2d 166, 169 (Tenn. Crim. App. 1985) (“An appellate court will not pass on lawsuits
when there is no justiciable controversy presented, or render advisory opinions on questions
which are premature and contingent and may never arise in the future.”); see also State v.
Ward, 138 S.W.3d 245, 272 (Tenn. Crim. App. 2003) (“We are unable to foresee what
evidence will be offered by either party at a retrial, and therefore, we decline to give in effect
an advisory opinion . . . .”). We decline to extend our review to sentence alignment in this
case.


                                       CONCLUSION


       Based on the parties’ arguments, the record, and the applicable law, we affirm
appellant’s conviction for rape and her sentence of twelve years. We reverse appellant’s
conviction for abuse of an adult and remand for proceedings consistent with this opinion.




                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE



                                              -24-
