             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                 FILED
                            DECEMBER 1994 SESSION
                                                             December 9, 1997

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )
         Appellee,             )           No. 03C01-9405-CR-00170
                               )
                               )           Hamilton County
v.                             )
                               )           Hon. Stephen M. Bevil, Judge
                               )
SHERMAN WINCHESTER BLACKSTOCK, )           (Aggravated sexual battery)
                               )
         Appellant.            )



For the Appellant:                   For the Appellee:

Ardena J. Garth                      Charles W. Burson
District Public Defender             Attorney General of Tennessee
        and                                 and
Karla G. Gothard                     Bates W. Bryan, Jr. and Rebecca J. Stern
Executive District Public Defender   Assistant Attorney General of Tennessee
701 Cherry Street                    450 James Robertson Parkway
Suite 300                            Nashville, TN 37243-0493
Chattanooga, TN 37402-1910
(AT TRIAL)                           Gary D. Gerbitz
                                     District Attorney General
Donna Robinson Miller                        and
Assistant Public Defender            Bates W. Bryan, Jr.
701 Cherry Street                    Rebecca J. Stern
Suite 300                            Assistant District Attorneys General
Chattanooga, TN 37402-1910           600 Market Street
(ON APPEAL)                          Suite 310
                                     Chattanooga, TN 37402




OPINION FILED:_______________________


AFFIRMED


Joseph M. Tipton
Judge
                                   OPINION



             The defendant, Sherman W inchester Blackstock, was convicted by a jury

in the Hamilton County Criminal Court of aggravated sexual battery, a Class B felony.

See T.C.A. § 39-13-504 (1991). The trial court sentenced the defendant as a Range I,

standard offender to eight years in the custody of the Department of Correction. In this

appeal as of right, the defendant presents the following issues for our review:

             (1) whether there is sufficient evidence to support the jury’s
             determination that the defendant was sane beyond a
             reasonable doubt;

             (2) whether the trial court erred by concluding that the
             defendant was competent to stand trial;

             (3) whether the trial court erred by denying his motion to
             suppress statements made by the defendant to the police;

              (4) whether the trial court erred by denying his post-trial
              petition for involuntary care and treatment as a mentally
              retarded offender; and

              (5) whether the trial court erred by refusing to sentence the
              defendant as an especially mitigated offender.

We affirm the judgment of the trial court.



              The defendant was tried for the aggravated rape of a seven-year-old girl,

L.H., that occurred on August 21, 1992. The victim testified that she walked into the

defendant’s apartment through the open door and asked for a drink of water. According

to the victim, the defendant did not give her a drink of water and instead laid her on the

bed. She said that the defendant took off both of their clothes, laid down on top of her,

and then penetrated her. The victim said that the defendant told her that he would kill

her if she told anyone.



              Deborah Earls, the victim’s mother, testified that she and her three

daughters began living with the defendant after separating from a boyfriend. She said

that she had known the defendant several months before he offered to let her stay at


                                             2
his apartment until she could find someplace else to stay. Ms. Earls testified that she

and the defendant were only friends. She also stated that she did not know that the

defendant was mentally retarded. According to Ms. Earls, the defendant talked slowly,

but she could understand him. She testified that the defendant bathed, washed his

own clothes, shopped for groceries, and cooked for himself and for her family. Ms.

Earls said that she and her three daughters lived with the defendant off and on for

about two months before moving down the street in June 1992 following an argument

over the defendant’s desire to be more than friends. She admitted that the victim did

not tell her anything about the incident when she drove her to a friend’s house after the

offense occurred. She stated that on Sunday Ms. Earls’ friend told her that the victim

had said that the defendant had raped her. Ms. Earls testified that when she talked to

the victim, she told her that she was hurting and that the defendant “got her bootie.”



             Ms. Earls testified that someone brought the defendant to her home and

she asked him whether he fondled the victim. When the defendant appeared not to

understand, she asked him whether he had sex with the victim, and the defendant said,

“Yes, what about it.” Ms. Earls then told the defendant that she was going to call the

police, and the defendant replied that he was going home to sleep.



             Officer Tommy Woods of the Chattanooga Police Department testified

that he received a call on August 23 around 5:00 p.m. regarding a disorder at 818 East

Martin Luther King Boulevard. While he was talking to Ms. Earls and the victim, the

defendant, whom Officer Woods did not know, walked up to them. He said that the

defendant asked him why he was there. Officer Woods said that he then asked the

defendant what he was doing there, and the defendant replied that he knew why Officer

Woods was there and that it involved the victim. Officer Woods testified that when he

told the defendant that he was there because of the victim, the defendant said that he

had done something to the victim once. He said that the defendant made other



                                            3
statements but that Officer Woods could only understand the word “once,” which the

defendant repeated a couple of times. On cross-examination, Officer Woods admitted

that he thought the defendant was “slow.”



              Tara Pedigo, a detective for the child abuse unit of the Chattanooga

Police Department, testified that the victim told her that the defendant played with her

“koochie” when she was in the defendant’s bedroom playing with toys on the floor.

Detective Pedigo testified that before questioning the defendant, she read the

defendant his rights by explaining each point in plain language and that the defendant

seemed to understand. She stated that she asked the defendant about his education

and that he told her that he stopped going to school in the eleventh grade, but he could

read and write. She said that the defendant gave his name, phone number and

address, but he did not know his social security number. Detective Pedigo stated that

the defendant also provided her with inconsistent birthdays: March 31, 1959, and March

21, 1968. She stated that before the defendant signed the waiver of rights form, the

defendant stated, “I only did it one time.” She testified that she had not told the

defendant anything regarding the case before he made the statement. Detective

Pedigo also testified that she noticed that the defendant had a speech impediment, but

she did not know that he was mentally retarded. According to Detective Pedigo, the

defendant did not appear to have difficulty understanding her questions.



              On cross-examination, Detective Pedigo admitted that she did not ask the

defendant where he went to school or question him regarding his family. She also

stated that the defendant spelled his name as “ShermanBlockfshok” when signing the

waiver of rights form. Regarding the inconsistent birthdays given by the defendant,

Detective Pedigo said that she did not think it unusual because suspects often give

different birth dates to avoid identification. She conceded that she did not explain what

a court or an attorney was when reading the defendant his rights. She said that the



                                             4
defendant did not ask to speak to an attorney and did not mention that he had an

attorney. Detective Pedigo also acknowledged that she had never dealt with a mentally

retarded person. She testified that although the defendant was difficult to understand

on the tape, he spoke more clearly before the interview was recorded. She stated that

she had interviewed other people who talked like the defendant who were not limited

mentally. Though in her opinion the defendant understood the questions, Detective

Pedigo conceded that the defendant’s statement that he knew the victim was seven

years old after she told him the victim’s age could possibly indicate that the defendant

was easily led.



             A tape of Detective Pedigo’s interview of the defendant was played for the

jury. Detective Pedigo testified that a power microphone was required to tape the

interview of the defendant. During the interview, the defendant mumbled several times,

making it difficult to understand him. When Detective Pedigo asked the defendant what

happened between him and the victim, the defendant stated, “I did it one time.” When

asked what he did one time, he said that he touched her “in her private” with his

“dingaling,” but he denied putting it inside of her. The defendant stated that he only put

it on top of her “private.” He asserted that the incident took place in the bedroom at his

house and that the victim’s sister and mother were there, but Ms. Earls was asleep. He

stated that he was taking a nap when the victim came into the bedroom on him.

According to the defendant, the victim asked him to get on her, to put his “thing” on her

“private,” and to “go up and down on her.” He claimed that this was the first time she

had ever asked him to do this. The defendant said that the victim took her own clothes

off. When Detective Pedigo asked him whether he took his clothes off, the defendant

responded that “her took it off.” He later stated that his clothes were not removed and

that only his pants were unzipped and that the victim unzipped them. The defendant

told Detective Pedigo that he was not trying to do anything to the victim and that he did




                                            5
not know why he did it other than because the victim requested him to do it. He also

stated that he would not do it again.



              For the defense, Dennis Barwick, an employee at the Orange Grove

Center, testified that the center provides educational and vocational training for

mentally retarded clients. He stated that the defendant attended the center from 1971

until 1982 and that he was the defendant’s program director from approximately 1979 to

1982. Mr. Barwick said that while he was the defendant’s program director, the

defendant participated in a vocational training program as a dishwasher in two

restaurants under constant direct supervision. He explained that the training program

was very structured in that it involved teaching the person how to travel to their job site

and instructing them step-by-step how to do their job until they became independent.



              Mr. Barwick also testified regarding psychological evaluations of the

defendant while a client at the Orange Grove Center that were also introduced as

exhibits at trial. The Orange Grove Center’s records reflect that the defendant suffers

from an organic brain injury and a speech defect and show that he was hit by a car

when he was a child and suffered head injuries. The records state that the defendant

was referred to the center by the public school system where he was attending EMR

classes. The records also show that the defendant had behavioral problems, such as

causing disturbances, antagonizing students, and being overly aggressive with

students, while attending a public school. An evaluation conducted in 1974 when the

defendant was fourteen years old reflects that the defendant functioned on the level of

a five-to-six-year-old child. It also reflects that he had an IQ of 43. Another evaluation

conducted in 1976 shows that the defendant had an IQ of 58, that he had a history of

underachievement, and that he attended a school for mentally retarded children in New

Jersey and EMR classes in the public school system in Chattanooga. Results of the

defendant’s social maturity reveal that he had a social age equivalent to a child who



                                             6
was nine years and three months old. Testing conducted in 1980 shows that the

defendant had an IQ of 57, placing him in the mild range of mental retardation.



              An Orange Grove Center interoffice memo states that a newspaper report

reflects that the defendant’s step-father shot and killed his mother on March 3, 1981,

and that the defendant witnessed the shooting. Another interoffice memo reflects that

the defendant testified against his step-father at the trial. Mr. Barwick testified that the

defendant lived with his mother until her death and then went to live with his brother,

who removed the defendant from the center’s programs.



              On cross-examination, Mr. Barwick explained that clients at the Orange

Grove Center have different levels of mental functioning and admitted that some clients

could not be employed due to their mental impairments. He also acknowledged that

the defendant was among those functioning in the higher levels. Mr. Barwick also

explained that the defendant was involved in choosing his job, and he said that when

he explained the nature of the job, the defendant appeared to understand. Regarding

the different IQ scores, he testified that it could be due to evaluations and scores based

on different tests or because the tests were given by different examiners.



              Walter Grantham, an attorney and the defendant’s conservator, testified

that a court appointed the defendant’s brother as a conservator for the defendant in

1981 upon certification by two doctors. The doctors certified that the defendant

suffered from a permanent condition of mental retardation secondary to injuries from an

automobile accident at age eight and expressed the opinion that the defendant was

incapable of managing his own estate. Mr. Grantham stated that the court removed the

defendant’s brother from the position because he was misusing funds and in June 1991

appointed him to serve as a conservator over the defendant’s person and affairs. He

testified that the defendant’s brother gave the defendant approximately fifteen dollars a



                                              7
week and used the rest of the money, leaving the defendant at home by himself and

without electricity.



               Regarding his duties as a conservator, Mr. Grantham testified that he

signed documents on the defendant’s behalf, paid his bills, and gave him checks and

food stamps. He stated that it was necessary to give the defendant his checks and

food stamps on a weekly basis, because he was afraid that someone would take the

defendant’s money. He said that he treats the defendant, who has a speech

impediment, like a six- or eight-year-old child. Mr. Grantham also expressed the

opinion that the defendant did not understand that he was his attorney but rather

thought of him as someone from whom he could get money. He also said that in his

opinion the defendant would not be able to understand his constitutional rights. Mr.

Grantham stated that the defendant did not call him when he was arrested and that he

learned of the defendant’s arrest approximately two weeks later. He explained that he

became concerned when the defendant missed his weekly visits and when he received

a call that a man who was not the defendant attempted to cash one of the defendant’s

checks. He said that the defendant told him that the defendant did not know why he

was in jail or that he could have called Mr. Grantham. Mr. Grantham estimated that he

had seen the defendant approximately seventy-five times and that the meetings lasted

anywhere from one to twenty minutes.



               On cross-examination, Mr. Grantham admitted that he had not visited the

defendant’s home. He also conceded that the defendant was able to cash the checks

that he gave him. He stated that sometimes the defendant would smell and that he had

to tell the defendant not to come back until he bathed. Mr. Grantham testified that the

defendant rode with someone each time he came to his office. He also acknowledged

that the defendant’s constitutional rights could have been explained to him in the

language of a six- or eight-year-old child.



                                              8
             Lisa Smith, a secretary for Walter Grantham, testified that she saw the

defendant each week when he came to pick up his check and food stamps. She said

that she had to explain to the defendant how to use the food stamps each time he

came in the office. Ms. Smith also stated that she had received a phone call from a

case worker at the food stamp office regarding the defendant’s confusion about the

application for food stamps. She said that the defendant’s speech was difficult to

understand and stated that the defendant told her that he could not read. In her

opinion, the defendant acted like an eight-year-old child and would not know that he

had done anything wrong until the police arrested him. On cross-examination, she

admitted that she did not know whether the defendant knows whether it is right or

wrong to have sex with children. She also testified that the defendant would ask for

extra money for special occasions or when he needed clothes or furnishings for his

home.



             Thomas Ford, a clinical psychologist for Johnson Mental Health Center,

testified that he conducted a psychological evaluation of the defendant to determine the

defendant’s sanity and competency to stand trial. He said that he met with the

defendant on three occasions: January 5, January 8, and March 26, 1993. He stated

that he determined that the defendant had an IQ of 55 which is in the very low end of

the scoring range called the mentally deficient range. Dr. Ford testified that ninety-eight

to ninety-nine percent of the population would score higher than the defendant. In Dr.

Ford’s opinion, the defendant functioned at approximately an eight-to-nine-year-old

level. He also testified that in his opinion the defendant needed a significant amount of

supervision in the community so others would not take advantage of him. He conceded

that he did not know when the defendant obtained an attorney or how many times the

defendant had consulted with an attorney. Dr. Ford’s report was introduced at trial, and

it reflects that he found that the defendant had a speech impediment and that the

defendant’s speech was very difficult to understand. The report also shows that the



                                            9
defendant “exhibited concrete thinking which was consistent with past testing noted in

his file, indicating Moderate Mental Retardation.” The report also notes that the

defendant had a poor memory for dates and events in his life.



             On cross-examination, Dr. Ford testified that he spent approximately one

hour obtaining information from the defendant regarding his past history for purposes of

determining the defendant’s sanity. Dr. Ford said that the defendant told him that he

attended the Orange Grove Center, but the defendant could not provide much

information about his attendance at the Orange Grove Center, other than the fact that

he obtained work skills at two restaurants. Dr. Ford also testified that the defendant

told him about the car accident in which he was involved. Regarding the defendant’s

competence to stand trial, Dr. Ford testified that the defendant told him that he knew he

had been charged with the aggravated rape of the victim. According to Dr. Ford, the

defendant seemed to understand what the charges meant and that the charges were

serious. Dr. Ford said that the defendant asserted several times that he did not do it

because he loved kids. Dr. Ford testified that the defendant also told him that he

thought his attorney would do a good job for him. He conceded that he did not give the

defendant an adaptive functioning test to determine the defendant’s ability to function

socially. Based on his evaluation of the defendant, Dr. Ford expressed the opinion that

the defendant was sane at the time of the offense and competent to stand trial. He said

that although the defendant was in the mild mental impairment range, the mental defect

did not prevent the defendant from understanding right from wrong or impair his ability

to conform his behavior to the law.



             Dr. Ford testified on redirect examination that he had received information

from the defendant’s attorney explaining the charges against the defendant and

informing him that the defendant had met with her on earlier occasions. He stated that

the defendant’s sanity was determined after examining the defendant on the first date



                                           10
for approximately one hour but conceded that more than one meeting was necessary to

determine the defendant’s competency to stand trial because the defendant had a prior

psychiatric history. Dr. Ford admitted that the defendant’s attorney had informed him

that the defendant had a conservator, but he did not talk to him. He also conceded that

he did not talk to the defendant’s family, neighbors or friends.



              Wanda Pasley and Anthony Pasley, friends of the defendant, testified that

the defendant had been living with them for approximately six months. Ms. Pasley

stated that she takes the defendant to get his check and cash it. Mr. Pasley stated that

the defendant has trouble buying things for himself because he leaves his change at

the store. He also stated that Ms. Earls had taken the defendant’s money from the

defendant and purchased cocaine on earlier occasions. He said that the defendant had

earlier asked Ms. Earls to move out of his apartment about two to three times over a

two-to-three-day period and that the defendant had explained to her that his lease did

not permit others to live with him. Mr. and Ms. Pasley said that the defendant is not

capable of cooking, although he does help clean the house and perform yardwork.

They said that they occasionally had to tell the defendant to take a bath. Ms. Pasley

testified that in her opinion, the defendant acts like he is four or five years old, and both

she and Mr. Pasley stated that they treated the defendant like one of their children. In

Ms. Pasley’s opinion, the defendant would not know that it was wrong to have sex with

a child because he has a child-like mind himself.



              Mr. Pasley also testified that he was present when the defendant was

arrested. He said that Ms. Earls and the victim were outside talking to an officer when

the defendant ran towards them, stating, “I did it. I did it.” On cross-examination, Mr.

Pasley conceded that he had seventeen prior convictions, including convictions for

burglary, theft of property, larceny, burglary of a residence by forcible entry, armed

robbery, aggravated assault and theft of an automobile.



                                             11
               The defendant testified that he was twenty-four years old and was born in

1978. He said that he started going to the Orange Grove Center when he was eight

years old and that he attended the school for seven years. He stated that the American

flag was red, white and blue and had three stars on it. When asked to count to twenty,

the defendant could not count past ten. The defendant also testified that he could not

read and write. According to the defendant, he had known the victim for approximately

three days. He said that he knew he had been arrested because he had been accused

of raping a seven-year-old girl, but he denied putting his “ding-a-ling” in the victim’s

“koochie.” The defendant testified that when interviewed by the police, he told them

that he was telling the truth, but he claimed that he gave the statement because he was

nervous and scared. He remembered going to jail after the interview, but he stated that

he thought he stayed in jail for two days and that Mr. Grantham was able to get him

released on bond. The defendant said that he did not call Mr. Grantham and that he

did not know that he could talk to him until after he was released.



               On cross-examination, the defendant testified that he remembered telling

Detective Pedigo that he put his “ding-a-ling” inside the victim’s private parts, that the

victim told him to take their clothes off, and that the victim unzipped his pants. The

defendant said that he made these statements because they were true. He denied

telling the victim not to tell anyone and recognized that it would have been a bad thing

to say to the victim.



               On redirect examination, the defendant stated that he did not put his

“ding-a-ling” in the victim’s “koochie” and denied touching the victim’s “koochie.” The

defendant also denied putting his “ding-a-ling” on the victim’s “koochie” on recross

examination.




                                             12
                             I. SUFFICIENCY OF THE EVIDENCE

                First, the defendant contends that the evidence is insufficient to prove

beyond a reasonable doubt that he was sane at the time of the offense. Our standard

of review when the sufficiency of the evidence is questioned on appeal 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, 99 S. Ct. 2781, 2789 (1979). This

means that we may not reweigh the evidence, but must presume that the jury has

resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



                At the time of the offense in this case, insanity was a defense to

prosecution “if, at the time of such conduct, as a result of mental disease or defect, the

person lacked substantial capacity either to appreciate the wrongfulness of the person’s

conduct or to conform that conduct to the requirements of law.” T.C.A. § 39-11-501(a)

(1991)1; Graham v. State, 547 S.W.2d 531, 543 (Tenn. 1977). For procedural

purposes, the law presumes sanity. Brooks v. State, 489 S.W.2d 70, 72 (Tenn. Crim.

App. 1972). However, if the evidence presented by any party raises a reasonable

doubt as to the defendant’s sanity, the presumption falls and the state must establish

beyond a reasonable doubt that the defendant appreciated the wrongfulness of his

conduct and had the capacity to conform his conduct to the requirements of the law.

State v. Clayton, 656 S.W.2d 344, 345-46 (Tenn. 1983); Graham, 547 S.W.2d at 544.




                1
                   Pursuant to a 1995 amendment, T.C.A. § 39-11-501(a), now defines insanity as “the
defendant, as a result of severe mental disease or defect, was unable to appreciate the nature or
wrongfulness” of his conduct at the time of the offense. T.C.A. § 39-11-501(a). The amendment also
provides that the defendant has the burden of proving the affirmative defense of insanity by clear and
convincing evidence and that an expert witness may not testify as to whether the defendant was or was
not insane at the time of the offense. T.C.A. § 39-1 1-501(a) and (c).

                                                   13
              The state can meet its burden through the introduction of (a) expert

testimony that the defendant was sane, (b) the testimony of lay witnesses that the

defendant was sane, if a proper foundation is laid, or (c) proof of acts or statements of

the accused, occurring at or near the commission of the offense, which are consistent

with sanity and inconsistent with insanity. Edwards v. State, 540 S.W.2d 641, 646

(Tenn. 1976); State v. Green, 643 S.W.2d 902, 913 (Tenn. Crim. App. 1982). In

considering the evidence on the issue of insanity, the trier of fact is not required to

accept an expert’s testimony to the exclusion of sufficient lay testimony or other

evidence of the defendant’s actions which is not inconsistent with insanity. State v.

Patton, 593 S.W.2d 913, 916 (Tenn. 1979); Edwards v. State, 540 S.W.2d at 647.



              The defendant argues that the state “offered absolutely no reliable

evidence to counter the consistent, powerful testimony of lay witnesses” that the

defendant would not have thought it wrong to have sex with the victim. Essentially, the

defendant asserts that Dr. Ford’s determination that an insanity defense could not be

supported is not reliable evidence of the defendant’s sanity because his conclusions

are based on a one-hour session with the defendant approximately six months after the

arrest and incarceration of the defendant and the appointment of counsel. The

defendant also contends that Dr. Ford’s conclusions regarding insanity are not reliable

because Dr. Ford failed to interview the defendant’s conservator or anyone else who

knew the defendant, including family and friends. The defendant further argues that the

defendant’s conduct and statement to Officer Woods that he had done something once

to the victim is not indicative of the defendant’s sanity because the defendant made the

statement immediately after arguing with Ms. Earls. However, questions concerning the

credibility of witnesses, the weight and value to be given to the evidence, as well as

factual issues raised by the evidence are resolved by the trier of fact, not this court.

State v. Cabbage, 571 S.W.2d at 835.




                                             14
              In the light most favorable to the state, the evidence establishes that

although the defendant suffered from a mental defect at the time of the offense, he had

the substantial capacity to appreciate the wrongfulness of his conduct and to conform

his conduct to the requirements of the law. Dr. Ford conducted a psychological

evaluation of the defendant and concluded that the defendant’s mental impairment did

not prevent him from understanding right from wrong and did not impair his ability to

conform his conduct to the law. In addition to the expert testimony provided by Dr.

Ford, lay testimony regarding the defendant’s conduct at the time of the offense shows

that the defendant understood the wrongfulness of his actions and was able to conform

his conduct to the law. The victim stated that the defendant told her not to tell anyone,

including her mother, or he would kill her. Also, when Ms. Earls asked the defendant

whether he had sex with the victim, the defendant replied, “Yes, what about it.” Further,

the defendant told Officer W oods that he knew that he was there because of the victim

and stated a couple of times that he had done something once to the victim. These

facts support the jury’s conclusion that the defendant was sane at the time of the

offense. Under these circumstances, we hold that a rational trier of fact could have

concluded that the defendant was sane beyond a reasonable doubt.



              Although not raised as a separate issue, the defendant contends that the

trial court should have instructed the jury on a “diminished capacity defense as it related

to the intent of the defendant to commit the crime.” The defendant incorrectly refers to

diminished capacity as a “defense.” See State v. Phipps, 883 S.W.2d 138, 143 (Tenn.

Crim. App. 1994). Diminished capacity “is not a defense that absolves the accused

from culpability; rather, it is a rule of evidence which allows the introduction of evidence

to negate the existence of specific intent when a defendant is charged with a specific

intent crime.” Id. In Phipps, this court referred to the defendant’s reliance on

diminished capacity as being his theory of the case and stated that a defendant is




                                             15
“entitled to an instruction upon request which outlines the defense theory of the case.”

883 S.W.2d at 150 (emphasis added).



              However, the record in this case does not reflect that the defendant either

requested that an instruction be included in the charge or objected to the instructions as

given by the trial court. A challenge based on the mere meagerness of a charge is not

reversible error, absent a special request. State v. Haynes, 720 S.W.2d 76, 85 (Tenn.

Crim. App. 1986). There is no merit to this subissue.



                          II. COMPETENCE TO STAND TRIAL

              The defendant also contends that the record is insufficient to support the

trial court’s finding that the defendant was competent to stand trial. He argues that the

report submitted by Dr. Ford of the Johnson Mental Health Center concluding that the

defendant was competent to stand trial is insufficient to establish the defendant’s

competency. He asserts that the facts of the case are virtually indistinguishable from

those in State v. Benton, 759 S.W.2d 427 (Tenn. Crim. App. 1988), in which this court

concluded that the evidence preponderated against the trial court’s finding of

competence. In addition, relying on Berndt v. State, 733 S.W.2d 119 (Tenn. Crim. App.

1987), the defendant contends that the trial court should have conducted an evidentiary

hearing sua sponte for purposes of determining the defendant’s competency to stand

trial before permitting the trial to proceed. We disagree.



              The standard for determining whether a defendant is competent to stand

trial is set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788 (1960):

              [T]he “test must be whether [the defendant] has sufficient
              present ability to consult with his lawyer with a reasonable
              degree of rational understanding -- and whether he has a
              rational as well as a factual understanding of the proceedings
              against him.”




                                            16
Id. at 402, 80 S. Ct. at 789 (adopting the Solicitor General’s suggested standard). The

Dusky standard has been adopted in Tennessee. State v. Black, 815 S.W.2d 166, 174

(Tenn. 1991); State v. Benton, 759 S.W.2d at 429; Mackey v. State, 537 S.W.2d 704,

707 (Tenn. Crim. App. 1975). In Mackey, this court stated that:

             Both Tennessee decisions and the federal constitution prohibit
             the trial of a defendant whose mental condition is such that he
             lacks the capacity to understand the nature and object of the
             proceedings against him, to consult with counsel and to assist
             in preparing his defense.

537 S.W.2d at 707 (citations omitted). The burden is on the defendant to establish his

incompetency to stand trial by a preponderance of the evidence. State v. Oody, 823

S.W.2d 554, 559 (Tenn. Crim. App. 1991). On appeal, the trial court’s findings are

conclusive unless the evidence preponderates otherwise. Id.



             Before trial, a petition for psychiatric evaluation was filed by the

defendant, and the trial court entered an order directing a forensic evaluation by the

Johnson Mental Health Center pursuant to T.C.A. § 33-7-301(a) for purposes of

determining the defendant’s competency to stand trial and whether an insanity defense

could be supported. A letter from the Johnson Mental Health Center dated March 31,

1993, and addressed to the trial court reflects that based on their evaluation of the

defendant, the defendant was capable of defending himself. Specifically, the results of

the evaluation show that the defendant understood the nature of the legal process and

the charges against him, including the consequences that could follow. The results also

show that the defendant was able to advise his counsel and participate in his defense.

No pretrial hearing was held on the issue of competency to stand trial.



              Under facts similar to this case, this court stated, “Counsel’s failure to

insure that the matter of competency was settled before trial amounted to a waiver of

that issue.” State v. Estes, 655 S.W.2d 179, 181-82 (Tenn. Crim. App. 1983). Also, the

defendant did not include the issue of his competency to stand trial in his motion for



                                             17
new trial.2 The failure to raise a ground upon which a new trial is sought in the motion

for new trial results in a waiver of the issue. T.R.A.P. 3(e). Therefore, we hold that the

defendant has waived the issue of competency to stand trial.



                In any event, the evidence does not preponderate against the trial court’s

determination that the defendant was competent to stand trial. The results of the court-

ordered psychiatric evaluation reflect that the defendant was competent to stand trial,

unlike the case of Benton upon which the defendant relies. The trial court was entitled

to rely upon the results of the evaluation for his determination that the defendant had

the capacity to understand the legal proceedings against him, to consult with counsel,

and to assist in preparing his defense. Therefore, we conclude that the trial court did

not err.



                             III. SUPPRESSION OF STATEMENTS

                Next, the defendant asserts that the trial court erred by denying his motion

to suppress statements made by the defendant to the police. He argues that his

statement to Officer Woods that he had done something once to the victim should have

been suppressed because he had not been informed of his Miranda rights at the time

the statement was made. Regarding his statement to Detective Pedigo, the defendant

asserts that it should have been suppressed because the defendant was incapable of

knowingly and voluntarily waiving his rights because he is mentally retarded, has an IQ

of 55, and functions at the level of a four-to-nine-year-old child. In response, the state

argues that the trial court correctly determined that Miranda warnings were not

necessary because the officer’s actions amounted to an on-the-scene investigation and

did not constitute custodial interrogation. The state also contends that the evidence

does not preponderate against the trial court’s finding that the defendant knowingly and



                2
                  The mo tion fo r new trial do es ra ise as an iss ue w heth er the trial co urt “e rred in
determining the Defendant to be competent to testify.” Competency to be a witness is governed by Tenn.
R. Evid. 60 1.

                                                    18
voluntarily waived his rights and cooperated with the police in giving the taped

confession to Detective Pedigo. We hold that the trial court did not err.



             Before trial, the defendant moved to suppress statements made to Officer

Woods and Detective Pedigo on August 23, 1992. The defendant alleged that the

statement made to Officer Woods should be suppressed because the defendant had

not been given Miranda warnings and because the defendant did not make the

statement freely and voluntarily because of his mental state. The defendant also

alleged that a second tape-recorded statement given to Detective Pedigo should be

suppressed because it was not knowingly and voluntarily given in that his mental illness

rendered him incapable of understanding the waiver of rights form or verbal Miranda

warnings.



             An evidentiary hearing was held on the motion to suppress. Tommy

Woods, an officer for the Chattanooga Police Department, testified that he responded

to a call on August 23 regarding charges of rape. He stated that approximately five to

ten minutes after his arrival, the defendant walked up to him while he was outside

talking to Ms. Earls and the victim and the defendant asked him why he was there.

Officer Woods testified that he responded by asking the defendant why he was there.

According to Officer Woods, the defendant replied that he knew Officer Woods was

there because of the victim, and Officer Woods told the defendant that the victim was

the reason for his presence. Officer Woods testified that he then asked the defendant

what he had to do with it and the defendant stated a couple of times that he had done

something with the victim once. He said that he stopped asking the defendant

questions at that point and called a detective. On cross-examination, Officer Woods

testified that the defendant neither gave a reason for walking up to him nor explained

what he meant by the statement that he had done something to the victim once. He




                                           19
conceded that he did not read the defendant his rights before the defendant made the

statement.



             Detective Pedigo testified that she received a call on August 23 regarding

the rape of the victim. She said that before interviewing the victim and the defendant,

she spoke to Officer Woods. She said that Officer Woods told her that the defendant

walked up to him while he was questioning the victim and Ms. Earls and that the

defendant asked him why the police had been called. Detective Pedigo stated that

Officer Woods informed her that the defendant replied, “Yes, once,” when he asked the

defendant if he had done something. Detective Pedigo testified that the defendant was

then brought to her office to be interviewed. She stated that she questioned the

defendant about his education and he told her that he had gone to school until the

eleventh grade. Detective Pedigo said that she read the defendant his Miranda rights

before questioning the defendant and that Officer Woods and Steve Vaughn, an

employee of the Department of Human Services, were present. She said that she

explained the defendant’s rights one at a time in both legal and layman’s terms, and the

defendant stated that he understood. Detective Pedigo stated that immediately after

the defendant told her that he understood everything, he stated, “I only did it once, and I

won’t do it anymore.” She said that although the defendant’s speech was slurred, she

believed the defendant understood what the waiver of rights form meant.



              Detective Pedigo testified that she then began interviewing the defendant,

and she tape recorded the interview of the defendant. She stated that once she turned

on the tape recorder, the defendant’s speech became worse and a power microphone

was necessary. She stated that the defendant did not object to the recording of his

statement although she admitted that the defendant appeared to be intimidated by the

recorder. Detective Pedigo testified that she had to stop the interview several times to

ask the defendant to speak more distinctly. According to Detective Pedigo, the



                                            20
defendant appeared to understand her questions during the interview. She said that

during the interview she was sitting behind her desk with the defendant and Vaughn

sitting across from her and Officer Woods leaning on a credenza near her desk. She

stated that Officer Woods was in uniform and had his gun and handcuffs with him. The

tape recording of the defendant’s interview was then played for the trial court.



              On cross-examination, Detective Pedigo conceded that she wrote in her

report that Officer Woods attempted to clarify the defendant’s “Yes, once” response by

asking the defendant whether he had done something with the victim and that the

defendant replied again, “Yes, once.” Regarding the waiver of rights form, Detective

Pedigo testified that the defendant’s signature is in print and spelled “Blackfshock.”

She also stated that in interviewing the defendant, she noticed that the defendant had a

speech impediment, that his grammar was poor, and that his language was child-like.

She said that the defendant might have been slightly limited, although she asserted that

she had interviewed other people like the defendant and that the conduct was normal

for some people. Detective Pedigo admitted that she was not aware that the defendant

had attended the Orange Grove Center or any other special education classes or that

the defendant suffered head injuries from a car accident when he was a child. She also

said that she did not know that a conservator had been appointed for the defendant.

Detective Pedigo testified that she did not ask the defendant whether he understood

what the terms “lawyer” or “court” meant but rather assumed that the defendant

understood these terms because he had a prior criminal record. She stated that the

defendant did not know his social security number and gave two different birth dates:

March 1959 and March 1968.



              Walter Grantham, the defendant’s conservator, testified that he was

appointed as a conservator over the defendant’s person and affairs in June 1991,

replacing the defendant’s brother. He stated that two doctors certified the defendant as



                                            21
being mentally incapable of managing his own affairs because of his mental retardation

that was secondary to an injury occurring at age eight. He said that the doctor’s

certification reflected that the defendant’s condition was permanent. Mr. Grantham

testified that the defendant lived with his mother until 1981 when she was murdered.



              Mr. Grantham also stated that the defendant is disabled because of his

mental condition and receives social security income, supplemental security income

and food stamps. He said that the defendant is difficult to understand because of a

speech impediment. Mr. Grantham stated that he believed that the defendant is easily

influenced in that the defendant would tell him things that other people told him to say

and that he would allow people to live with him in violation of his lease. He said that the

defendant’s brother also took advantage of the defendant when serving as the

defendant’s conservator in that he only gave the defendant fifteen to twenty dollars a

month and allowed the defendant to live without food and electricity. Mr. Grantham

testified that the defendant is compliant when faced with an authority figure and that he

would do or say almost anything if requested. He expressed the opinion that he could

be convinced to give a confession to the police, although he admitted that he had no

evidence that someone told him to make the statements. He also admitted that he

found the tape to be disturbing as to whether the defendant had been told what to say

because he believed that the defendant was capable of remembering what to say on a

short-term basis.



              Mr. Grantham testified that he did not know the defendant was in jail for

over two weeks but became suspicious when the defendant did not come to his weekly

meetings. He stated that the defendant did not understand that he had money for the

defendant to post his bond and that he did not know why he was in jail. Mr. Grantham

testified that when he asked the defendant why he did not call him, the defendant told

him that he did not know that he could. In Mr. Grantham’s opinion, the defendant does



                                            22
not understand that he is an attorney even though he has weekly contact with the

defendant. He stated that he was not sure whether the defendant could read or write

but that his employees had told him that the defendant was illiterate. Mr. Grantham

testified that it was necessary to explain things to the defendant sentence by sentence

in the most basic manner and that he often had to repeat things. He also expressed

the opinion that the defendant would not be capable of understanding Miranda rights or

the waiver of rights form even in the manner used by Detective Pedigo. According to

Mr. Grantham, the defendant is not able to waive his rights knowingly and voluntarily.



              On cross-examination, Mr. Grantham testified that he had met with the

defendant approximately seventy-five times for five to twenty minutes each visit. He

said that he had to give the defendant his checks and food stamps on a weekly basis.

He admitted that he had not visited the defendant at his home. Mr. Grantham also said

that he was aware that the defendant had worked for his uncle cleaning at a

convenience store. In Mr. Grantham’s opinion, the defendant would know that raping a

seven-year-old girl was wrong. He testified that he represented the defendant for

charges of criminal trespass, that the defendant denied any wrongdoing, and that the

defendant went to court on the charges, but the charges were dismissed.



              Lisa Smith, a secretary for Mr. Grantham, testified that she sees the

defendant on a weekly basis when the defendant picks up his check and food stamps.

She said that she did not think that he could read but she knew that the defendant

bought his own groceries. She stated that she had to explain how to use the food

stamps each time she gave them to him. She also testified that the defendant reminds

her of an eight- or nine-year-old child.



              Dennis Barwick testified that the defendant was employed through the

Orange Grove Center’s training program at two restaurants as a dishwasher. Mr.



                                           23
Barwick testified that the defendant could not read. The defendant’s records from the

Orange Grove Center were then introduced.



              The psychological report prepared by the Johnson Mental Health Center

was also introduced. The recommendation contained in the report is that the defendant

needed a significant amount of supervision in the community so that others would not

take advantage of him.



              The trial court denied the defendant’s motion to suppress the defendant’s

statements to police. Regarding the statement made by the defendant to Officer

Woods, the trial court concluded that the defendant’s rights were not violated because

a custodial interrogation did not take place. It found that Officer Woods did not know

that the defendant was a suspect, that the investigation had not focused on the

defendant, and that Officer Woods stopped questioning the defendant after the

defendant made the statement. Also, the trial court concluded that it believed Officer

Woods’ testimony over the report. In denying the motion to suppress, the trial court

held that Officer Woods’ responsive question to the defendant regarding why the

defendant was there amounted to an on-the-scene investigation rather than a custodial

interrogation. At the motion for new trial, the trial court stated that Officer Woods was

not required to inform the defendant of his Miranda rights because the defendant was

not under suspicion and the focus of the investigation when the defendant made the

statement. The trial court described the statement as a “spontaneous utterance” as

opposed to a response to custodial interrogation by a police officer.



              The trial court also concluded that the defendant’s statements to

Detective Pedigo were not obtained in violation of his constitutional rights. In reaching

this conclusion, the trial court recognized that the defendant had a mental impairment

but noted that the defendant was able to function in society, although at a lower level.



                                            24
The trial court also relied upon the results of the court-ordered psychological evaluation.

In determining the defendant’s level of understanding, the trial court also found relevant

the defendant’s statement to Detective Pedigo in that the responses to the questions

show that the defendant volunteered the information. The trial court concluded that the

defendant voluntarily waived his rights and gave the statement because he cooperated

with the police. The trial court also determined that the waiver and statement were

knowingly made because Detective Pedigo explained the defendant’s rights by

breaking them down in such a way that the defendant could understand them.



                On appeal, the trial court’s findings of fact and conclusions of law at the

conclusion of a suppression hearing will be upheld unless the evidence preponderates

otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the

burden of demonstrating that the evidence preponderated against the trial court’s

findings. Id.



                             A. CUSTODIAL INTERROGATION

                First, the defendant alleges that the trial court erred by denying his motion

to suppress the defendant’s statement made to Officer Woods because he was not

advised of his Miranda warnings. The state asserts that the trial court properly refused

to suppress the defendant’s statement because the defendant was not subjected to

custodial interrogation and therefore Miranda warnings were not required. We agree.



                In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), the United

States Supreme Court concluded that statements made by a defendant during the

course of custodial police interrogation are inadmissible as evidence against the

defendant unless the state demonstrates that the defendant was advised of and waived

the following constitutional rights:

                (1) the right to remain silent;



                                                  25
              (2) any statement made may be used against the defendant;

              (3) the right to the presence of an attorney; and

              (4) if the defendant cannot afford an attorney, one will be
              appointed for him or her before questioning if requested by the
              defendant.

Id. at 444, 86 S. Ct. at 1612; see also State v. Bush, 942 S.W.2d 489, 499 (Tenn.

1997); State v. Anderson, 937 S.W.2d 851, 853 (Tenn. 1996). However, police officers

are required to inform the defendant of these rights before custodial interrogation only.

Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Custodial interrogation entails

“questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.” Id.

The issue of whether a person is in custody is decided under an objective test.

Berkemer v. McCarty, 468 U.S. 420, 422, 104 S. Ct. 3138, 3151 (1984); Anderson, 937

S.W.2d at 854.



              In Anderson, our supreme court set forth several factors, although not an

exclusive list, that are relevant to the objective analysis of “whether, under the totality of

the circumstances, a reasonable person in the suspect’s position would consider

himself or herself deprived of freedom of movement to a degree associated with a

formal arrest” for purposes of Miranda:

              the time and location of the interrogation; the duration and
              character of the questioning; the officer’s tone of voice and
              general demeanor; the suspect’s method of transportation to
              the place of questioning; the number of police officers present;
              any limitation on the movement or other form of restraint
              imposed on the suspect during the interrogation; any
              interactions between the officer and the suspect, including the
              words spoken by the officer to the suspect, and the suspect’s
              verbal or nonverbal responses; the extent to which the suspect
              is confronted with the law enforcement officer’s suspicions of
              guilt or evidence of guilt; and finally, the extent to which the
              suspect is made aware that he or she is free to refrain from
              answering questions or to end the interview.




                                             26
937 S.W.2d at 855. The court stated that the determination of whether a person is in

custody for Miranda purposes is a very fact specific inquiry for which the trial court is

especially suited. Id.



              Considering the totality of the circumstances in the record before us, we

hold that the evidence does not preponderate against the trial court’s decision that the

defendant was not in custody when he made the statement to Officer Woods. The

defendant initiated contact with Officer Woods by walking up to Officer Woods and

asking him why he was there. When Officer Woods asked him why he was there, the

defendant replied that he knew that Officer Woods was there because of the victim,

although the defendant had not been told about the nature of Officer Woods’ presence.

When Officer Woods told the defendant that he was correct and asked the defendant

what he had to do with it, the defendant stated a couple of times that he had done

something to the victim once. Officer Woods then stopped questioning the defendant.



              Also, Officer Woods was the only officer present when the defendant

made the statement, and he did not tell the defendant that he was suspected of the

crime or explain what had happened to the victim. Although Officer W oods did not tell

the defendant that he was free to leave, Officer Woods also did not tell the defendant

that he could not leave, and the defendant did not try to leave at any point. The

defendant was not restrained or his movement limited in any way. Under these

circumstances, a reasonable person in the defendant’s position would not have

considered himself or herself deprived of freedom of movement to a degree associated

with a formal arrest. Therefore, we conclude that the trial court correctly concluded that

the defendant was not subjected to custodial interrogation and thus not entitled to

Miranda warnings. It was not error for the trial court to deny the defendant’s motion to

suppress his statement made to Officer Woods.




                                             27
                                     B. WAIVER OF RIGHTS

               The defendant also contends that the trial court erred by denying his

motion to suppress the statement to Detective Pedigo because he was not competent

to waive his Miranda rights. He argues that because he is mentally retarded, has an IQ

of 55, and functions at the level of a four-to-nine-year-old child, he is unable to waive

his rights knowingly and voluntarily . The state asserts that the evidence does not

preponderate against the trial court’s finding that the defendant knowingly and

voluntarily waived his rights and cooperated with the police in giving the taped

statement. We agree.



               Before a defendant can knowingly and voluntarily waive his Miranda

rights, the defendant must be “adequately and effectively apprised of his rights.” State

v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). The defendant may waive his

constitutional rights as long as the waiver is made “voluntarily, knowingly, and

intelligently.” Id. The state has the burden of proving the waiver by a preponderance of

the evidence. State v. Bush, 942 S.W.2d at 500. In determining whether a defendant

has validly waived his or her Miranda rights, courts must look to the totality of the

circumstances. Id.; State v. Middlebrooks, 840 S.W.2d at 326. Although the

defendant’s age, education and mental retardation are relevant, no single factor is

determinative of the waiver issue. State v. Benton, 759 S.W.2d at 431. When the

voluntariness of a statement given to police is challenged based on the defendant’s

competency to waive the rights provided by Miranda, the determinative issue is

“whether the defendant had the capacity in the first place to form a will of his own and

to reject the will of others.” Id.



               In support of his argument, the defendant relies upon State v. Benton, 759

S.W.2d 427 (Tenn. Crim. App. 1988). The defendant argues that the facts of his case

are virtually indistinguishable from those in Benton. We disagree. Several facts make



                                             28
this case distinguishable from Benton. Unlike the defendant in Benton, whom a

psychiatric social worker and a psychiatrist found to be incompetent to stand trial and to

answer questions by a police officer, the defendant in this case was found to be

competent to stand trial pursuant to a court-ordered psychological evaluation. Also, the

defendant was able to respond to questions during the evaluation. The defendant in

this case has been able to live by himself for several years. Although the defendant is

limited mentally similar to the defendant in Benton, low IQ scores are not determinative

of a defendant’s ability to waive his rights. See State v. Haynes, 720 S.W.2d at 84.



              The record in this case reflects that Detective Pedigo read the defendant

his rights before questioning the defendant by breaking the rights down into basic parts

and by explaining each right individually. Detective Pedigo testified that the defendant

stated that he understood his rights before the defendant stated that he had done

something once but would not do it again. The defendant signed the waiver of rights

form. According to Detective Pedigo, the defendant appeared to understand what the

form meant. As the trial court correctly noted, the defendant was able to comprehend

and answer the questions asked of him during the interview and to elaborate his

answers. The record also does not demonstrate that the defendant was threatened or

coerced into giving a statement. We hold that the evidence does not preponderate

against the trial court’s ruling that the defendant knowingly and voluntarily waived his

constitutional rights. The trial court properly admitted the statement.



             IV. PETITION FOR INVOLUNTARY CARE AND TREATMENT

              The defendant contends that the trial court erred in denying his petition for

involuntary care and treatment as a mentally retarded offender and, instead, sentencing

him to the Department of Correction. The state responds that the trial court did not

have the authority to order a sentence to the Department of Correction to be served in a

mental health or retardation facility.



                                            29
               After trial but before the sentencing hearing, the defendant filed a petition

for involuntary care and treatment in a secure facility for the mentally retarded. He

alleged that he qualified as a “mentally retarded offender” as defined in T.C.A. § 33-5-

303 and attached a copy of the Johnson Mental Health Center’s psychological

evaluation. In the petition, the defendant claimed that he needed care, training or

treatment and that the failure to provide a secure facility would create a likelihood of

causing serious harm, as defined under T.C.A. § 33-6-104, because of his mental

retardation. He also alleged that less drastic alternatives to judicial commitment were

unsuitable. The petition asserted that the defendant was unable to provide a certificate

of two qualified mental retardation professionals, as required by T.C.A. § 33-5-305, due

to his indigency, and it requested that the trial court order an examination.



               At the conclusion of the sentencing hearing, the trial court sentenced the

defendant to eight years as a Range I, standard offender in the custody of the

Department of Correction. The trial court denied the defendant’s petition for involuntary

care and treatment, stating that although it believed that the defendant needed to be

housed in a facility for the mentally retarded, it lacked jurisdiction to order the defendant

to serve his sentence in such a facility. The trial court reasoned that T.C.A. § 33-5-305

provides authority for the commitment of the defendant before trial only. The trial court

noted that the Department of Correction had jurisdiction to transfer the defendant to

such institution under T.C.A. § 33-3-402, and concluded that it could not order the

Department of Correction to transfer the defendant. However, the trial court offered to

submit a letter to the Department of Correction recommending that the defendant be

transferred.



               The defendant states that he is a mentally retarded offender, which is

defined as “a person with significantly sub-average general intellectual functioning

which originates during the developmental period and is associated with an impairment



                                             30
of adaptive behavior, who is a defendant at any stage in the criminal or juvenile justice

system.” T.C.A. § 33-5-303(1). He asserts that because he is a mentally retarded

offender, the trial court should have committed him to a facility operated by the

Department of Mental Health and Mental Retardation pursuant to T.C.A. § 33-5-305,

which provides as follows:

              Procedure for Commitment.

                 (a) IF AND ONLY IF

              (1)(A) a juvenile court determines in a delinquency proceeding,
              on the basis of an evaluation under § 37-1-128(c) or § 37-1-
              135, that a minor is mentally retarded, OR

             (B) a circuit, criminal, or general sessions court determines on
             the basis of an evaluation under § 33-7-301(a) either that a
             criminal defendant is incompetent to stand trial due to mental
             retardation or, with the agreement of defense counsel, that the
             defendant is competent to stand trial but that failure to provide
             a secure facility would create a likelihood to cause the
             defendant serious harm by reason of mental retardation, OR

             (C) a circuit or criminal court enters a verdict of not guilty by
             reason of insanity on a capital offense,
             THEN

             (2) the district attorney general or the defense attorney may file
             a complaint to require involuntary care and treatment of the
             mentally retarded person under this section, AND

             (3) notwithstanding § 33-3-603, only the juvenile court which
             has jurisdiction of the minor or the circuit or criminal court
             before which the person’s criminal case is pending or which
             would hear the case if the defendant were bound over to the
             grand jury has jurisdiction to hear a complaint filed under this
             section.

                 (b) IF AND ONLY IF

             (1) a person is mentally retarded, AND

             (2) the person poses a substantial likelihood of serious harm
             as defined in § 33-6-104(a) because of the mental retardation,
             AND

             (3) the person needs care, training, or treatment because of
             the mental retardation, AND

             (4) all available less drastic alternatives to judicial commitment
             are unsuitable to meet the needs of the person, AND




                                            31
              (5) the district attorney general or the defense attorney files a
              complaint to require involuntary care and treatment under
              subsection (a),
              THEN

              (6) the person may be judicially committed to involuntary care
              and treatment in the custody of the commissioner in
              proceedings conducted in conformity with chapter 3, part 6 of
              this title.

                   (c) No defendant may be judicially committed under this
              section unless the commissioner designates licensed
              physicians or licensed psychologists designated as health
              service providers who file in the commitment proceeding two
              (2) certificates of need for care and treatment certifying that the
              defendant satisfies the requirements of subdivisions (b)(1)-(4)
              and showing the factual foundation for the conclusions on
              each item.

                 (d) If and only if a court determines that a person poses an
              immediate substantial likelihood of serious harm and commits
              the person under this section, the commissioner shall
              designate a licensed state facility to admit the person.
              Otherwise a judicially committed person does not come into
              the custody of the commissioner until the commissioner
              determines that the state has an available suitable
              accommodation.

(Emphasis added).



              The defendant argues that because the definition of a “mentally retarded

offender” as provided in T.C.A. § 33-5-303(1) refers to “a defendant at any stage in the

criminal . . . or juvenile system,” the judicial commitment procedure under T.C.A. § 33-

5-305 also applies to a defendant who has been found guilty. In support of his

argument, the defendant asserts that the language contained in T.C.A. § 33-5-306

contemplates that a trial court may commit a mentally retarded offender to appropriate

treatment facilities at any stage of the criminal proceedings, even after conviction.

Under T.C.A. § 33-5-306, a person shall receive credit towards his or her sentence for

time spent in the custody of the Commissioner of the Department of Mental Health and

Mental Retardation when the person receives evaluation, training or treatment services

“in connection with a criminal charge or conviction, wherever incarcerated . . . .”

(Emphasis added).



                                              32
               In response, the state argues that the trial court properly determined that

T.C.A. § 33-5-305 deals exclusively with pretrial commitment of mentally retarded

offenders. The state notes that T.C.A. § 33-5-303 specifically provides that the

mentally retarded offender definition applies “unless the context requires otherwise.” It

argues that the definition does not apply because T.C.A. § 33-5-305 refers only to

offenders who have not been convicted of the charged offense. In support of its

argument, the state asserts that T.C.A. § 33-5-308 provides for periodic evaluations of

persons committed under T.C.A. § 33-5-305 including “an assessment of the person’s

present condition and prospects for restoration to competence to stand trial . . . .”

(Emphasis added).



               The state also asserts that T.C.A. § 33-5-306 refers instead to the

situation where a defendant is restored to competence and then tried and convicted for

the offense charged. The state argues that the trial court properly concluded that the

proper procedure for placement in a Mental Health and Mental Retardation facility after

conviction is through a transfer by the Department of Correction under T.C.A. § 33-3-

402. Pursuant to T.C.A. § 33-3-402, the director of an institution of the Department of

Correction shall order a transfer based on a written report of a licensed physician or a

licensed clinical psychologist that (1) the defendant is mentally ill or mentally retarded

and (2) the defendant needs residential care and treatment for his or her condition that

cannot be provided by the Department of Correction but can be provided by an

appropriate residential program of the Department of Mental Health and Mental

Retardation.



               We agree with the defendant’s contention that the trial court may order a

defendant who has been convicted of an offense to be committed pursuant to T.C.A. §

33-5-305. At first glance, the provisions under T.C.A. § 33-5-305(a) appear to allow for



                                             33
the involuntary care and treatment of an adult, mentally retarded offender either before

trial or upon a verdict of not guilty by reason of insanity only. However, the reference to

“a defendant at any stage in the criminal . . . justice system” contained in the mentally

retarded offender definition under T.C.A. § 33-5-303 reflects that the legislature

intended that the procedures for commitment set forth in T.C.A. § 33-5-305 be available

for a mentally retarded defendant at any stage of the proceedings, including

sentencing. Moreover, the trial court retains full jurisdiction over a defendant sentenced

to the Department of Correction during the time the defendant is incarcerated and

awaiting transfer to the department. T.C.A. § 40-35-212(d). Pursuant to T.C.A. § 40-

35-212(d), the trial court’s jurisdiction continues until the defendant is actually

transferred to the physical custody of the department. Accordingly, we hold that a trial

court may commit a defendant pursuant to T.C.A. § 33-5-305, even though the petition

for involuntary care and treatment was filed after conviction.



              However, the provisions under T.C.A. § 33-5-305 may not be used by the

trial court to impede the transfer of a defendant to the physical custody of the

Department of Correction. The provisions of T.C.A. § 33-5-305 may not be used to

impede the Department of Correction’s jurisdiction over the defendant. In this regard,

the trial court correctly determined that it lacked the authority to order the Department of

Correction to transfer the defendant to the Department of Mental Health and Mental

Retardation. Upon transferring the defendant to the Department of Correction, the trial

court lost jurisdiction to order the commitment of the defendant. See T.C.A. § 40-35-

112(d). Therefore, the defendant is not entitled to relief.




                                             34
                                        V. SENTENCING

              The defendant asserts that he should have been sentenced as an

especially mitigated offender pursuant to T.C.A. § 40-35-109. He argues that the trial

court erroneously sentenced him as a Range I, standard offender because (1) he had

no prior felony convictions, (2) two mitigating factors applied, and (3) the trial court

improperly applied enhancement factor (4), the victim was particularly vulnerable

because of age or physical or mental disability. We hold that the trial court erroneously

determined that an enhancement factor applied. However, we affirm the sentence

imposed by the trial court based on the use of enhancement factor (15), regarding the

abuse of a position of private trust.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)

and -402(d). As the Sentencing Commission Comments to these sections note, the

burden is now on the appealing party to show that the sentencing is improper. This

means that if the trial court followed the statutory sentencing procedure, made findings

of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, "the presumption of correctness which accompanies the trial

court's action 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). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for
              arriving at the final sentencing decision, identify the
              mitigating and enhancement factors found, state the specific
              facts supporting each enhancement factor found, and


                                             35
              articulate how the mitigating and enhancement factors have
              been evaluated and balanced in determining the sentence.
              T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and 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, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103

and -210 (1990); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236

(Tenn. 1986).



              Pursuant to T.C.A. § 40-35-109, the trial court may designate a defendant

as an especially mitigated offender if the defendant has no prior felony convictions and

the court finds mitigating, but no enhancement factors. The decision to sentence the

defendant as an especially mitigated offender rests in the discretion of the trial court.

See T.C.A. § 40-35-109, Sentencing Commission Comments; State v. Buttrey, 756

S.W.2d 718, 722 (Tenn. Crim. App. 1988).



              No witnesses testified at the sentencing hearing. The presentence report

reflects that the then thirty-four-year-old defendant asserted that he had completed the

eleventh grade, although he did not know where. The defendant was also unable to

provide his age, date of birth, names and addresses of relatives or his social security

number. The report also shows that the defendant could not write. Regarding the

defendant’s employment history, the presentence report states that the defendant had

worked at a restaurant, although he was currently mentally incapable of working. The

report reflects that the defendant does not have a prior criminal history.



                                            36
               In assessing whether the defendant should be sentenced as an especially

mitigated offender, the trial court determined that the following mitigating factors

applied: (1) the defendant suffered from a mental condition that significantly reduced

his culpability for the offense, and (2) the defendant, although guilty of the crime,

committed the offense under such unusual circumstances that it is unlikely that a

sustained intent to violate the law motivated his conduct. See T.C.A. § 40-35-113(8)

and (11). The trial court also concluded that the victim of the offense was particularly

vulnerable because of her age or physical or mental limitations. See T.C.A. § 40-35-

114(4). Because the trial court determined that an enhancement factor applied, it

declined to sentence the defendant as an especially mitigated offender but imposed the

minimum sentence within Range I. Also, the state agreed that the minimum sentence

was appropriate.



               The defendant argues that the trial court improperly applied enhancement

factor (4) because the victim’s age is an essential element of aggravated sexual battery.

Although age is an element of the offense of aggravated sexual battery involving a child

under the age of thirteen, see T.C.A. §§ 39-13-502(a)(4) (1991) and -504(a) (1991), 3

factor (4) may be used to enhance a sentence if the evidence shows that the victim’s

natural physical and mental limitations render the victim particularly vulnerable due to

age. State v. Kissinger, 922 S.W.2d 482, 487 (Tenn. 1996); see also State v. Adams,

864 S.W.2d 31, 35 (Tenn. 1993) (factor (4) may be used to enhance conviction for

aggravated rape involving a victim under the age of thirteen). “[T]he vulnerability

enhancement relates more to the natural physical and mental limitations of the victim

than merely to the victim’s age.” Adams, 864 S.W.2d at 35.




                 3
                   Pursuant to a 1993 amendment, T.C.A. § 39-13-504 now contains the circumstances by
which the offense constitutes aggravated sexual battery, as opposed to referring to the aggravated rape
statute for the applicable circumstances.

                                                  37
              However, in making its determination regarding the application of factor

(4), the trial court should consider whether the proof establishes that because of the

victim’s age or physical or mental attributes, the victim was unable to resist, summon

help or testify at a later date. Kissinger, 864 S.W.2d at 487; Adams, 864 S.W.2d at 35;

State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The state bears the burden of proving

the victim’s limitations that render him or her particularly vulnerable, in addition to the

victim’s age. Adams, 864 S.W.2d at 35. It cannot be presumed that the victim was

particularly vulnerable based solely on the victim’s age. Poole, 945 S.W.2d at 98.



              In this respect, the state concedes that the proof at trial failed to show

how the victim was particularly vulnerable because of her age. We agree that the

evidence does not support the trial court’s application of factor (4).



              The state argues, however, that the record supports the application of

enhancement factor (15), abuse of a position of private trust that significantly facilitated

the commission of the offense. See T.C.A. § 40-35-114(15). In conducting a de novo

review of the record, an appellate court may determine that the record supports the

application of an enhancement factor not applied by the trial court. State v. Pearson,

858 S.W.2d 879, 885 (Tenn. 1993). Application of factor (15) requires a finding that the

defendant occupied a position of trust, either public or private. T.C.A. § 40-35-114(15);

Kissinger, 922 S.W.2d at 488-89. In Kissinger, our supreme court stated:

              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. Thus, the court should
              look to see whether the offender formally or informally stood in
              a relationship to the victim that promoted confidence, reliability,
              or faith. If the evidence supports that finding, then the court
              must determine whether the position occupied was abused by
              the commission of the offense.

Id. at 488.




                                              38
              Applying the principles set forth in Kissinger, we hold that the evidence

establishes that the defendant occupied and abused a position of private trust. Similar

to the defendant in Kissinger, the defendant developed a friendly relationship with the

victim’s mother. Id. at 485, 489. Also, the victim, along with her mother and two sisters,

lived with the defendant about two months before moving out in June, approximately

three months before the offense occurred. Id. The victim testified that she walked into

the defendant’s apartment and asked him for a drink of water. Rather than giving her a

drink, the defendant took the victim into the bedroom, removed their clothes and

inserted his penis into the victim’s vagina. The victim also told Detective Pedigo that

she was in the defendant’s bedroom playing with toys when the offense occurred.

Based upon these facts, we conclude that the defendant occupied a relationship with

the victim that promoted confidence, reliability and faith in him, such as would motivate

her to approach and enter his apartment without fear.



              Thus, although the trial court incorrectly applied enhancement factor (4),

the evidence supports the application of factor (15). The defendant does not meet the

minimum criteria for being sentenced as an especially mitigated offender pursuant to

T.C.A. § 40-35-109. Under these circumstances, we hold that the defendant is not

eligible for sentencing as an especially mitigated offender.



              In consideration of the foregoing and the record as a whole, the judgment

of conviction is affirmed.



                                                 ______________________________
                                                 Joseph M. Tipton, Judge




                                            39
CONCUR:


____________________________
Gary R. Wade, Judge



____________________________
Robert E. Burch, Special Judge




                                 40
