                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                                 April 9, 2002 Session

            STATE OF TENNESSEE v. ANN MARIE THORNTON KELLY

                             Direct Appeal from the Circuit Court for Giles County
                                     No. 8644-7    Robert L. Jones, Judge
                                                   Jim T. Hamilton, Judge



                            No. M2001-01054-CCA-R3-CD - Filed December 5, 2002


The appellant, Ann Marie Thornton Kelly, was indicted by the Giles County Grand Jury on twenty
counts relating to incidents involving the sexual abuse of her children. She was ultimately convicted
of two counts of rape of a child, three counts of criminal responsibility for rape of a child, one count
of aggravated sexual battery, one count of criminal responsibility for aggravated sexual battery, and
one count of incest. The trial court imposed a total effective sentence of sixty-two years
incarceration in the Tennessee Department of Correction. On appeal, the State concedes that the
appellant was not competent to stand trial. Upon review of the record and the parties’ briefs, we
reverse the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Reversed and
                                       Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN, JJ., joined.

Hershell Koger, Pulaski, Tennessee, for the appellant, Ann Marie Thornton Kelly.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Richard Dunavant, Patrick Butler, and Cindi Johnson,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION
                                     I. Factual Background
               The following facts underlie the charges against the appellant. The appellant married
Otis Thornton in the early 1980's, and together they had four children,1 a daughter, PMT, and three



            1
                The app ellant has two older children who are adults and did no t live with the appellant at the time of these
offenses.
sons, BJT, RGT, and RT.2 Thornton was the primary caregiver of the children; however, he died on
September 6, 1997. Subsequently, the appellant and her four children moved to a mobile home in
the Town and Country Trailer Park in Pulaski. The environment in the home deteriorated rapidly
after Thornton died. Although the Department of Children’s Services (DCS) had regularly received
referrals regarding the family beginning in approximately 1984, the reports increased after
Thornton’s death.3 However, no attempt was made to remove the children from the home.

                 Soon after moving into the Town and Country Trailer Park, the appellant began a
relationship with Cayle Wayne Harris. Harris visited the home daily and often stayed overnight. As
a result of allegations of sexual abuse involving the appellant’s children, Michael Chapman, chief
investigator for the Giles County Sheriff’s Department, interviewed the appellant’s twelve-year-old
daughter, PMT, on December 2, 1997. Investigator Chapman again interviewed PMT on June 23,
1998. BJT, the appellant’s ten-year-old son, and RGT, the appellant’s eight-year-old son, were
interviewed in May and July 1998. The appellant’s youngest child, RT, who was three years old,
was too young to provide any information to Investigator Chapman.

                During his investigation, Investigator Chapman also interviewed the appellant on June
19, 1998. Investigator Chapman testified that the appellant “had been contacted and agreed to meet
us at the Lawrence County Courthouse . . . at, I think, nine o’clock.” The appellant was not at the
courthouse at the appointed time. Investigator Chapman went to the appellant’s house and
discovered that “she had been there earlier than nine o’clock, thought that we were not going to show
up and gone back home. So then she agreed from her home, when we spoke to her at home to come
back to the courthouse and talk to us.” Accordingly, the appellant’s husband, Calvin Kelly, drove
the appellant to the courthouse where she was interviewed by Investigator Chapman; Tommy
Workman, an investigator with the District Attorney’s office; and Candice Deason, an investigator
with DCS. The interview was held in the judge’s chambers, a small room located just off the
courtroom, and was audio tape-recorded. Investigator Chapman began the interview by telling the
appellant that “Wayne Harris did some things with your boys.” Investigator Chapman informed the
appellant that he had spoken with her sons and had reason to believe that the appellant had witnessed
Harris having sex with her children. Initially, the appellant denied any knowledge of the incidents,
stating that she believed the interviewers were referring to “Chi[gg]er Harris.” However, after
Investigator Chapman again explained that they were asking about incidents involving Cayle Wayne
Harris, the appellant immediately admitted that she witnessed Harris having sex with her sons,
stating that “he was low down and stupid doing that away. . . . And that really hurt me.” When
asked if she feared Harris, the appellant responded, “Yea. He’s even offered to threaten me here I
don’t know how many times since I lived that trailer park at Pulaski. He’s even offered to threaten
me, said he was going to kill me; he’s going to shoot me; he’s going to cut me.” The appellant stated
that because she was afraid of Harris, she did not attempt to stop his abuse of her children.


        2
            It is the policy of this co urt to refer to minor victim s of sexual crime s by their initials.

        3
          Prior to 1997, the Department of Human Services (DHS ) investigated cases involving child abuse. However,
in 1997, DC S was created as a separate department to focus solely on cases regarding the welfare of children.

                                                               -2-
                The appellant proceeded to describe an incident wherein she and her three-year-old
son, RT, were lying in her bed. Harris, who was intoxicated, came into the room and anally raped
the child. The appellant explained, “I wasn’t on the bed but one time and that was that night when
I was trying to go to sleep and couldn’t go to sleep cause he was having sex you know . . . with the
baby, cause the bed just shake and shake and I am trying to go to sleep and couldn’t go to sleep for
that.” When asked how many times Harris had “do[ne] it with the baby,” the appellant responded
“Oh, about one or two times.” Each time, the child screamed and cried.4

                The appellant admitted that she was aware Harris had sex with all four children.
Specifically, the appellant related that BJT, who was ten years old at the time of the offenses, was
repeatedly anally raped by Harris. However, the appellant was unable to conclusively recall the
exact number of times this occurred. Initially, the appellant stated that Harris had raped BJT three
times, but after prompting from Investigator Chapman, the appellant stated that BJT had been raped
by Harris on six occasions. The appellant concluded by saying that Harris raped BJT four times.
When asked where these offenses occurred, the appellant responded, “In there in my bedroom every
time, in there in my bedroom.” The appellant admitted that she was also in the bed, noting, “But I
wasn’t awake all that length of time. He’d shake the bed you know and I would wake up you know.
You know he’d wake me up for doing it to them on the behind. . . . I just couldn’t sleep through it.”
The appellant denied that Harris forced BJT to have sex with her. She specifically responded,
“[BJT] ain’t never had sex with me. Never a time, I am his mother.”

               As to Harris’ anal rapes of eight-year-old RGT, the appellant’s recollection of the
number of offenses ranged from three to four, again following prompting by Investigator Chapman.
The appellant recalled that on one occasion RGT was raped while lying on her bed. She admitted
that she was present during this offense, but explained that on the other occasions she was not
present. The appellant vehemently denied that she had been involved in any type of sexual
relationship with RGT or that she had asked him to touch her inappropriately. In response to
questioning by Deason, the appellant stated, “I’m their mother. I don’t let them, I didn’t let them do
nothing like that to me. . . . They know I’d whoop them.”

               Additionally, the appellant recollected that her daughter, PMT, was also raped by
Harris. She noted that, following an occasion when Harris had digitally penetrated PMT, the
appellant went to Deason’s office and advised Deason of Harris’ actions. She related that Harris also
had sexual intercourse with PMT.

               The appellant admitted that, although she was aware of the offenses, she never
attempted to stop Harris. The appellant acknowledged, “I know it wasn’t right. I know it wasn’t
right I know that yea. I know it wasn’t right.” She could provide no reason for her failure to report
the abuse following her initial complaint to Deason. The appellant concluded, “Well I didn’t know


         4
           The appellant was originally indicted as a result of this incident. Ho wever, prior to the jury charge, the S tate
dismissed the charges involving RT.

                                                            -3-
he was going to do it till he don’t say man I got in on the bed and doing them, doing it to them. And
it was to[o] late then to. . .” When asked her opinion as to what should be done to Harris, the
appellant stated, “[Ought to] put him away for this. I think that’s low down and dirty. Don’t you
think so?”

                Through conversations with witnesses, Investigator Chapman concluded that the
offenses involving the appellant and Harris had occurred between November 1997 and February
1998. The appellant was originally indicted by the Giles County Grand Jury on five counts of
misdemeanor child neglect, seven counts of criminal responsibility for rape of a child, two counts
of felony child neglect, three counts of rape of a child, two counts of aggravated sexual battery, and
one count of incest. Several counts of the indictment were later amended or nolle prossed.

               On May 5, 1999, the trial court ordered the appellant transported to the Middle
Tennessee Mental Health Institute (MTMHI) for a forensic evaluation to determine the appellant’s
mental competency to stand trial and to determine if an insanity defense could be supported. The
appellant was admitted to MTMHI on May 26, 1999, and remained there until June 22, 1999. On
October 26, 1999, and November 1, 1999, the trial court held a hearing to determine whether the
appellant was competent to stand trial and whether the appellant’s statement to Investigator
Chapman should be suppressed.

                                     A. Competency Hearing
                The following facts were adduced at the competency hearing.5 Dr. Glenn Sneed, a
psychologist and director of psychology at Clover Bottom Developmental Center, testified at the
hearing. Clover Bottom is a state-owned mental retardation facility which serves the Middle
Tennessee region. Dr. Sneed stated that his area of expertise within the field of forensic psychology
is mental retardation. Accordingly, in the instant case he was asked to assess the appellant “from
the perspective of mental retardation.”

               Dr. Sneed evaluated the appellant in June 1999 when she was sent to MTMHI. He
served on a team with Dr. William N. Regan, a psychiatrist; Dr. Joe Mount, a psychologist; and
several other clinicians. During the appellant’s nearly thirty-day stay at MTMHI, Dr. Sneed met
with her for seven sessions, estimating that they had approximately two meetings per week.

                 As part of his assessment, Dr. Sneed concluded that the appellant did not understand
the charges against her or the possible consequences associated with the charges. Dr. Sneed related
that the appellant was “very confused about the basic judicial process” and, in his opinion, “did not
have the capacity to cooperate with an attorney in her own defense.” Specifically, Dr. Sneed noted
that, “[a]s a part of every 30-day assessment period, we try to prepare a defendant to return to court
as competent. In [the appellant’s] case, however, she just did not show the ability to retain the



        5
         Judge Rob ert L. Jones presided over the competency hearing which occurred on October 26, 1999, and on
November 1, 1999. Thereafter, Judge Jim T. Hamilton presided over the proceedings in the appellant’s case.

                                                     -4-
concepts and to demonstrate them meaningfully.” In sum, Dr. Sneed stated that, in his opinion, the
appellant did not have the mental capacity to become competent.

                Dr. Sneed explained that the appellant’s limitations resulted from her moderate
mental retardation, which retardation was evidenced by the appellant’s IQ of 48. Dr. Sneed
concluded that the appellant’s mental retardation was caused by “a combination of birth, the organic
impairment at birth, as well as extreme cultural, educational deprivation.” Additionally, although
the appellant’s primary diagnosis was mental retardation, she also suffered from depression. Dr.
Sneed noted that, while the appellant’s depression is a treatable mental illness, the appellant’s mental
retardation is a permanent condition and is not treatable.

                 Further, Dr. Sneed related that the evaluation team concluded that the appellant did
not appreciate the nature or wrongfulness of her offenses. He noted that, although the appellant made
general statements concerning the wrongfulness of abusing children, “it was more cliche, very little
insight, very little depth of understanding. It was easy to confuse her and trip her up.” Moreover, he
opined that it was likely that the appellant’s perceptions were impacted by the incestuous environment
in which she was raised.6 On cross-examination, Dr. Sneed conceded that he had not reviewed the
tape of the appellant’s interview with Investigator Chapman.

                Dr. Sneed noted that, although the appellant is moderately mentally retarded, she has
acquired some “basic survival skills.” The appellant reported that she essentially always looked for
a boyfriend or tried to get married to someone who could take care of her. However, Dr. Sneed
emphasized that, in determining competency, the primary emphasis in the evaluation was to determine
whether she understood “what a judge does, what a prosecutor does, what a defense attorney does,
and the interplay of those participants.” Dr. Sneed related that when the appellant was asked if she
understood the purpose of her admission to MTMHI, the appellant responded, “This is a minstitution,
and they sent me here cause I child abused my kids.” When the appellant was asked about the
participants in the trial, she stated that her lawyer was there to help her and that the prosecutor was
also there to help her. When asked about the role of the judge, she explained that the judge “sits up
there on the desk and talks to you.” She also concluded that the judge was always in a foul mood and
ready to impose harsh sentences. Dr. Sneed determined that the appellant had no understanding of
the jury’s function. However, the appellant did have some perception that probation was preferable
to a jail sentence.

               Dr. Sneed explained that the appellant’s concept of time was also impaired. Although
the appellant understood that she was in trouble and could go to jail for a long time, the term “long
time” was meaningless to her. The appellant was unable to name the current month, day, or year.
Dr. Sneed concluded that “in her concept, one year is the same as ten years, or that type of thing.”
Furthermore, Dr. Sneed indicated that the appellant was not malingering or disguising her abilities.



         6
         Dr. Sneed explained that, “according to the social worker inform ation, [the appe llant] was a victim of sexual
abuse. But, also, her oldest child’s father is [the appe llant’s] father. And her oldest daughter has a child by the father.”

                                                             -5-
                In response to the State’s request for additional time to locate witnesses to testify
regarding the appellant’s competence, the trial court continued the competency hearing until
November 1, 1999. At that time, the appellant called Dr. William N. Regan. Dr. Regan was a
psychiatrist at MTMHI, and was part of the team which evaluated the appellant. Dr. Regan agreed
with Dr. Sneed’s conclusions regarding the appellant and also opined that the appellant was not
competent to stand trial. Dr. Regan concluded that the appellant functioned on the level of a four-
or five-year-old child. He noted that her understanding is very limited, explaining:
                She’s very easy to lead. And I–I think you can almost talk her into
                anything. If you sit and say to her something like the prosecutor is
                going to let you go home, and you nod your head as you’re saying it,
                she will nod her head, and she’ll say, “Yes, that’s true.” It’s like
                it–things really don’t get across to her. And that can be right after
                you’ve told her that, you know, the prosecutor’s job is to try and get a
                conviction.
Dr. Regan also stated that he saw no evidence that the appellant was malingering.

                Regarding the appellant’s competency to stand trial, Dr. Regan opined that “[i]t’s the
severe nature of her cognitive impairment, the mental retardation, that makes her unable to effectively
assist her attorney in her own defense.” Specifically, Dr. Regan related that the appellant
                has a very hard time learning even rudimentary basics, even to the
                point that you can tell her something, have her parrot it back to you,
                and you think she’s got it, and then you come in the next day, and
                you’re starting from scratch again. This–we went through this over
                and over with her.
In sum, Dr. Regan maintained that the appellant was clearly not competent to stand trial.

                 Dr. Joe Mount, a licensed psychologist and another member of the evaluation team
at MTMHI, also testified on behalf of the appellant. Dr. Mount agreed with Dr. Sneed and Dr. Regan
regarding the appellant’s incompetency to stand trial. Dr. Mount noted that, immediately preceding
the hearing on November 1, 1999, he met with the appellant and asked her about the role of the
prosecutor and other primary court participants. The appellant was unable to correctly answer his
questions. Dr. Mount concurred in the assessment that the appellant functions on the level of a four-
or five-year-old. Specifically, he noted, “you can talk to her about something, and come back and ask
her about it the next day, and it’s like you’ve never talked to her about it.” Dr. Mount likewise found
no evidence that the appellant was malingering.

                The State presented the testimony of three DCS employees. Mickey Pierce, Sherry
Holly, and Candice Deason testified that they had been involved with the appellant and her family
for several years. Additional witnesses, including two inmates who were incarcerated with the
appellant, testified regarding the appellant’s ability to care for herself. In general, the witnesses
recounted that the appellant was able to wash clothes, clean house, and cook dinner. All of the
witnesses acknowledged that the appellant needed to be addressed in simple terms in order to
comprehend what she was being told.


                                                 -6-
                At the conclusion of the proof, the trial court found the appellant competent to stand
trial,7 concluding:
                First, it appears undisputed that the [appellant], Ann Kelly, is
                moderately retarded and has an IQ of approximately 48; that she has,
                essentially, no formal education, but that she has, from living her 30
                something–or 40 something years, and having several children, and
                several other relationships, developed some skills for getting by, or as
                one of the doctors said, some survival skills.

                 The testimony of the witnesses that the State presented today
                 suggested that she can identify colors; identify and write certain letters;
                 is able, in recent weeks or months, to write her name; and that if she
                 knows the day of the week, she can tell you what’s on the jail’s menu
                 for that day since the menu apparently recycles each week.

                 The Court finds that evidence is not inconsistent with, but instead is,
                 consistent with the testimony of Drs. Sneed, Regan and Mount; and,
                 that is, that this woman, while functionally an adult; physically, may
                 be a four-, five- or six-year-old mentally. And I think this Court can
                 take judicial notice, within some limits, of what a normal four-, five-
                 or six-year-old could do with regard to identifying colors, writing and
                 identifying letters, writing one’s name, and remembering certain days
                 of the week are indicators of what kind of food might be served on a
                 given date.

                 So the Court does find that she suffers from a significant mental defect
                 that may go to her ability to understand the nature of the offenses
                 charge[d] or the wrongfulness of the acts or be able to conform her
                 conduct to that required by law. But those matters going to an insanity
                 defense are for the ultimate triers of fact, and not for this Court to
                 determine on a motion by the [appellant].

                 With regard to her competency to stand trial and to advise her lawyer
                 and cooperate with him in preparing for and trying the case, the Court
                 finds that she obviously has far less ability to do that than a normal
                 defendant. And as the [appellant’s] education, mental capacity and
                 general understanding of law and procedure decreases, then,
                 conversely, the [appellant’s] attorney has a far more difficult task in
                 preparing for trial and providing a meaningful defense.


        7
            As we explain, infra, the trial court incorrectly applied the standard for determining insanity to its
consideration of the appellant’s co mpe tence to stand trial.

                                                       -7-
               And the Court was sort of inclined at the end of the proof on the
               competency issue, but without having read [the appellant’s statement
               to Investigator Chapman], to think that the [appellant] might not have
               the capacity to advise counsel and stand trial. But [that exhibit] is very
               persuasive in favor of the State on these issues.

               It still shows a person with limited communication skills, and of
               limited intelligence. But it shows, also, that what she finally
               acknowledges Wayne Harris has done to her children is, quote, dirty,
               closed quote, and that because he’s dirty, she would not marry him. .
               . . [She] had apparently little interest in protecting Wayne Harris. But
               she’s quick to deny any wrongdoing on her part that she might have
               understood wrongdoing.

                                         B. Motion to Suppress
                At the same hearing on November 1, 1999, the appellant moved to suppress her
statement to Investigator Chapman, arguing that “[the appellant] doesn’t really have the free will to
exercise in that sort of situation.” The trial court concluded that the appellant’s statement should not
be suppressed. Specifically, the trial court stated that “she [wa]s there voluntarily, maybe not
originally understanding the context within which this interview is taking place.” Although the court
found that the appellant was moderately mentally retarded, he concluded that her statement showed
the appellant’s “exercise of free will, the exercise of basic understanding, and a voluntarily–a
voluntariness in the responses given to the questions by the three interviewers.”

                                                 C. Trial
                 On March 19, 2001, the day prior to trial, the appellant asked for a rehearing of her
competency motion. The trial court ruled that, “based on what I read [about the earlier competency
hearing] . . . I’d have to concur with Judge Jones’ ruling [and] find that she is competent.”
Regardless, on March 20, 2001, following jury selection, the appellant again moved for a rehearing
on the competency issue based upon “[the mental health experts’] most recent assessment of her and
the history that she’s had and the fact that she has been through this jury selection process and they
were able to talk to her in the middle of that process.” The testimony of the doctors mirrored their
previous assessment regarding the appellant’s lack of competency. Specifically, Dr. Regan
emphasized that the appellant was “befuddled” by the jury selection process and noted that when he
asked the appellant who the jury was and what the jury did, the appellant responded that the jury was
present “to testify against me.” When asked how complete strangers would know enough about her
to testify against her, the appellant responded that they would “lie” about her. Despite this testimony,
the court again found that the appellant was competent to stand trial.

                 The State began presenting its proof on March 22, 2001. At trial, BJT testified that
after his father died, he lived in a mobile home in Pulaski with his mother, the appellant; his sister,
PMT; and his two brothers, RGT and RT. Additionally, BJT noted that Wayne Harris, his mother’s
boyfriend, was there “mostly every day” and was often intoxicated. In describing the home, BJT


                                                  -8-
explained that the mobile home had three bedrooms, with two of the bedrooms located at one end and
a third located on the opposite end. BJT and RGT shared a bedroom just down the hall from the
bedroom where the appellant and RT slept. PMT had her own room located at the opposite end of
the mobile home.

                BJT recalled that one night he was lying in his bed when Harris came into the room
“crawled over the bed and pulled down my clothes and told me to stick my front part in his butt.”
BJT complied. On this occasion, RGT was also in bed with BJT. On another occasion, Harris came
into the bedroom and stuck his finger in BJT’s rectum. Another time, Harris anally penetrated BJT.
On each occasion, BJT screamed because he was hurt and told Harris to get off of him. When these
incidents occurred, the appellant was in her bedroom. However, she did not come into the room or
make any attempt to stop Harris. Furthermore, BJT testified that on one occasion the appellant came
into his bedroom, woke him, “[a]nd she like put her hand on mine and told me to put [my front part]
in her front part.” BJT contended that the appellant then had sexual intercourse with him. BJT was
born on November 6, 1987, and was ten years old at the time of these offenses.

               Regarding the appellant, BJT related that his mother was unable to read or tell time.
When his father was alive, Otis Thornton did the grocery shopping and each day told the appellant
which chores, such as laundry or cleaning house, needed to be done. BJT testified that his mother
was unable to use a telephone without assistance.

               RGT also testified to abuse by the appellant and Harris. On one occasion, he was
anally raped by Harris. RGT screamed because of the pain but his mother did nothing to help him.
On another occasion, the appellant came into his room and told him to have vaginal intercourse with
her. RGT complied. Another time, the appellant came into RGT’s room and told him to “suck her”
breasts.

                PMT testified that, in 1997 and early 1998, she was twelve years old. She lived with
her mother and three brothers in a mobile home in Pulaski. Harris regularly came to the mobile home
and often stayed overnight. He was frequently intoxicated. One night when Harris was at the mobile
home, PMT was sitting on a couch in the living room with the appellant and Harris.8 Harris was
sitting between the appellant and PMT. Harris reached over and placed his hand between PMT’s
shorts and underwear, touching her vagina through her underwear. The next day, PMT told the
appellant but the appellant did not believe her. On another occasion, Harris came into PMT’s
bedroom while the appellant was in the living room. Harris placed his hand inside PMT’s shirt and
touched her breast. He also put his hand inside her shorts and touched her vagina. Again, when PMT
told the appellant, the appellant did not believe her. PMT denied seeing her mother or Harris abuse
her brothers. PMT testified that she later moved out of the mobile home and went to live with her
aunt and uncle; however, her brothers remained in the home.



        8
           On cross-examination, PMT responded in the affirmative when asked if she was sitting between the appellant
and Harris.

                                                         -9-
                 PMT confirmed that her mother was unable to tell time and related that on one
occasion the appellant woke the children at 3:00 or 4:00 a.m., “while it was still dark outside,” and
told them to get ready for school. PMT explained that the appellant was afraid the children would
be late getting to school. PMT read the children’s school papers to the appellant because the appellant
could not read or write.

                 Sue Ross, a pediatric nurse practitioner with the Our Kids Center in Nashville, also
testified. Ross explained that “Our Kids Center is an outpatient facility at General Hospital and it
predominantly provides medical evaluations to children that are alleged to have been sexually
abused.” On January 28, 1998, she examined PMT because of allegations of sexual abuse.
Additionally, the parties read into the record the sworn testimony of Julie Elizabeth Rosof Williams.
Williams, also a nurse practitioner at the Our Kids Center, conducted the examination of BJT and
RGT. Williams related that both boys had a “normal examination.” However, Williams explained
that the results were not inconsistent with anal penetration by an adult’s penis because any injuries
would have had time to heal.

                 Sharon Kilpatrick Norwood related that she became acquainted with the appellant
when both women were incarcerated in the Giles County Jail. The appellant explained to Norwood
that she was in jail because she had “messed with her kids.” Norwood testified that the appellant also
told her that Harris had raped the appellant’s three-year-old son, RT. The appellant told Norwood
that the child screamed while being raped by Harris and that she went outside because she did not
want to hear the child’s screams. The appellant also told Norwood that she allowed the boys to “play
with her.” The appellant informed Norwood that Harris had told her to “play dumb” if questioned
about the incidents. The appellant also told Norwood that she “wasn’t capable of standing trial.”
Norwood confirmed that the appellant could not read; however, she testified that the appellant could
count to twelve and could recall the jail’s menu for each day of the week. Norwood admitted that,
at the time of trial, she had a hearing pending on an alleged violation of probation.

                 Ross Glenn Rosson, the appellant’s first cousin, testified on her behalf. Rosson
testified that he had known the appellant all her life. Prior to her incarceration, he saw her regularly
and helped manage her finances. Rosson explained that the appellant was removed from school after
attending approximately one and one-half months of first grade. The appellant was unable to remain
in school because “[t]hey could not keep her clothes on this girl. Not even in the first grade.”
Additionally, Rosson noted that from an early age the appellant had no comprehension regarding the
value of money. Specifically, Rosson noted, “From the time I can remember [the appellant] didn’t
know a dollar bill from a five dollar bill or a nickel from a half dollar or a quarter or nothing else.
That’s the way it’s been with [her] all her life.” Moreover, he related that the appellant needs
assistance grocery shopping and using a telephone.

                Mickey Pierce, an employee of DCS, was the team coordinator responsible for child
protective service investigations in Giles, Lawrence, Maury, and Marshall counties. At the time of
trial, Pierce had been with DCS for approximately 25 years. She related that she first became
involved with the appellant in 1984 following allegations of sexual abuse involving the appellant’s


                                                 -10-
older children, Randy and Hazel. Shortly thereafter, Randy and Hazel were removed from the
appellant’s custody and placed in the custody of the appellant’s father. Pierce conceded that in the
summer prior to the children’s removal and placement with the appellant’s father, the appellant
revealed to Pierce that she had been raped multiple times by her father and her brother.

                Following the appellant’s marriage to Otis Thornton in 1984, DCS regularly received
referrals regarding the appellant and the children. Thornton frequently consumed alcohol, causing
the appellant to become upset. During these incidents, the appellant often left home for several days
or weeks. Another source of conflict between Thornton and the appellant was “concern . . . that [the
appellant] was spending the night with men, going off with the men; she was never at home.” Pierce
explained that the appellant would simply walk out the door and leave with any man who “would pick
her up and take her wherever.”

                For the next twelve to thirteen years, DCS’s involvement with the family continued,
with referrals coming in every two to four months. Most of the referrals related to the instability in
the home resulting from Thornton’s alcohol abuse. Pierce noted that during this time Thornton was
the primary caretaker for the children. Although he frequently consumed alcohol, Pierce contended
that he always seemed to be able to care for the children.

               Pierce testified that when Thornton was drinking or when there was conflict in the
home, the appellant would frequently call Pierce or the sheriff’s department. Occasionally, the
appellant became upset if Thornton left home early in the morning and did not return within two or
three hours. Pierce always reassured the appellant and explained that Thornton had gone to work and
“everything was okay.”

               After Thornton died in 1997, Homemaker Services came into the appellant’s home in
an effort to motivate the appellant and teach her to maintain her home and care for her children.
Homemaker Services did an assessment of the family and prepared a plan to meet the family’s needs.
The plan proposed to teach the appellant to perform routine household chores. Specifically,
Homemaker Services noted that the appellant should be taught to do laundry, care for clothing, wash
dishes, change bed linens, clean the bathroom, and learn sanitation safety and trash and insect control.
The plan also proposed that the appellant be taught to cook, care for the children, do her grocery
shopping, pay bills, and perform other essential errands. Notably, the plan included teaching the
appellant child care skills, enabling her to meet the physical and emotional needs of her children.

                Pierce also testified regarding the social history of the family compiled by DCS, as
well as the plan of care for each child. She explained that when DCS works with a family, a plan is
devised which provides certain responsibilities the parent must meet in order for the children to
remain in the home. Pierce reviewed the plan of care for each of the appellant’s children and noted
that the appellant had signed the documents by printing “Annn” or “Annnn” with no last name
affixed. The plan of care for the appellant’s children noted that the appellant needed to learn to write
her name, properly supervise and discipline the children, prepare ten different meals, read basic



                                                 -11-
words, count money, and keep the children clean. Additionally, the appellant needed to find a house,
obtain enough beds for herself and the children, and have someone manage her finances.

                 Pierce stated that the appellant could not be given directions in a general manner. An
instruction to clean the house was much too general. Rather, the directions had to be simplified, such
as telling her to wash the dishes, wash the clothes, or mop the floor. Pierce confirmed that, during
the many years DCS worked with the appellant to improve the family’s living conditions, little
progress was made. Despite years of documentation regarding the appellant’s limitations, the goal
of the plan, quite incredulously, was to teach the appellant the required skills within a two month
period. Pierce acknowledged that during the twelve to fourteen years of DCS’s involvement with
the appellant, there was little improvement. Pierce noted that DCS received referrals after Thornton’s
death because “there were people that were concerned of how she was going to maintain.”
Regardless, Pierce alleged that “in [the appellant’s] case, she knew a lot. It was just she didn’t want
to do it.” She also acknowledged that, despite little or no improvement in the appellant’s parenting
skills and the increasingly frequent referrals to DCS, the children were not removed from the home
until several months after Thornton’s death. However, Pierce opined that the appellant was “just lazy
at times.”

                Dr. Regan, a forensic psychiatrist at MTMHI, testified that he routinely performed
independent forensic evaluations for the State. Dr. Regan related that he was not hired by either party
but operated as a “friend of The Court.” Dr. Regan explained that patients are sent to MTMHI for
a period of up to thirty days. While at MTMHI, he, along with a psychologist, social workers, and
nursing staff, observes and monitors the patients “pretty much twenty-four hours a day for the entire
thirty days” of the evaluation.

               Dr. Regan noted that the appellant was at MTMHI from May 26, 1999, until June 22,
1999. Dr. Regan explained that in performing an evaluation the team typically reviews previous
mental health examinations as well as social and medical history. Specifically, in the appellant’s case,
the team was able to review records from the appellant’s childhood.

               Dr. Regan further explained that the appellant was tested using the Wexler Adult
Intelligence Scale, which he described as the “gold standard of testing IQ.” The test was composed
of eleven subtests which measured a variety of different types of intelligence and “from that you get
a verbal performance and a full scale IQ.” Dr. Regan explained that an average individual has an IQ
of 100. Individuals with scores below 70 are classified as mentally retarded. Individuals with scores
ranging from 70 to 55 are classified as mildly mentally retarded, and individuals with scores ranging
from 55 to 35 or 40 are deemed to be moderately mentally retarded.

                Dr. Regan concluded that the appellant’s IQ score was in the mid-forties, congruous
with a moderate level of mental retardation. This score was consistent with the results of IQ tests
given to the appellant when she was sixteen to eighteen years old. Dr. Regan related that the
appellant’s performance skills, which relate to her ability to manipulate objects, was 37 and her verbal
skills were 47. He concluded that the appellant’s full scale IQ was 43.


                                                 -12-
                 Dr. Regan further explained that individuals who are classified as moderately mentally
retarded are much less able to care for themselves than are those individuals with mild retardation.
Moderately retarded individuals are “often labile, they’re impulsive, they’ll act out.” A large number
of moderately retarded individuals are institutionalized or live in group homes. Dr. Regan stated that
the assessment of the appellant, including her social and mental history, confirmed that she functions
at the level of a moderately retarded individual. Additionally, Dr. Regan noted that the appellant’s
social history reflected that, from an early age, she was subjected to profound sexual abuse by her
father and an older brother.

                Dr. Regan opined that similar to a five- to seven-year-old child, the appellant’s ability
for abstract thinking is extremely limited. She is able to comprehend concrete objectives such as
cooking, washing dishes, and mopping a floor, but must be told repeatedly to do such chores. Dr.
Regan stated that the appellant is easily led, noting that she watches facial cues and responds
accordingly, regardless of the correct response. Dr. Regan postulated that the appellant’s social
upbringing affected her way of perceiving the world, concluding that “[t]he experiences that she’s had
make her what she is.”

                 Based upon the foregoing proof, the appellant was convicted of two counts of rape
of a child; three counts of criminal responsibility for rape of a child; one count of aggravated sexual
battery; one count of criminal responsibility for aggravated sexual battery; and one count of incest.
The trial court imposed a total effective sentence of sixty-two years incarceration. On appeal, the
appellant contends that she was not competent to stand trial; that she should have been found not
guilty by reason of insanity; that her statement to Investigator Chapman should have been suppressed;
that the trial court erred by allowing Investigator Chapman to testify regarding the time and place of
the offenses; that the trial court should have allowed her to impeach the testimony of RGT; that the
evidence is not sufficient to support the convictions and the trial court erred in sentencing the
appellant.

                                           II. Analysis9
                                          A. Competency
               The appellant first contends that the trial court erred in finding her competent to stand
trial. On appeal, the State concedes that the trial court erred, agreeing with the appellant that the
evidence preponderates against the finding of competency.

                Both the federal and state constitutions prohibit subjecting a mentally incompetent
accused to trial. See U.S. Const. amend XIV; Tenn. Const. art. I, § 8; Pate v. Robinson, 383 U.S. 375,
378, 86 S. Ct. 836, 838 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000). “The standard
for determining competency to stand trial is whether the accused has ‘the capacity to understand the
nature and object of the proceedings against him, to consult with counsel and to assist in preparing


        9
            W e commend both parties for supplying this court with excellent briefs which were of great assistance in
add ressing the issues ra ised on app eal.

                                                        -13-
his defense.’” Blackstock, 19 S.W.3d at 205 (quoting State v. Black, 815 S.W.2d 166, 174 (Tenn.
1991)); see also Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960). The appellant
bears the burden of establishing by a preponderance of the evidence her lack of competence to stand
trial. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). On appeal, this court will
consider the trial court’s findings conclusive unless the evidence preponderates against such findings.
Id.

                 In Blackstock, our supreme court concluded that the evidence did not preponderate
against the trial court’s determinations that a defendant with an IQ of 55 was competent to stand trial.
19 S.W.3d at 206. Concluding that the issue was close, the court noted that no evidentiary hearing
on the question of competency was held prior to trial. Id. Moreover, the only proof regarding
competency consisted of one report from a mental health expert who found the defendant competent
to stand trial. No additional expert or lay testimony was presented to establish that Blackstock did
not have the capacity to understand the proceeding against him and to assist his attorney in his
defense. Id.

                   Contrastingly, in the instant case all three mental health experts consistently testified
that because of her moderate mental retardation, the appellant possessed no appreciable understanding
of the judicial proceedings. In Van Tran v. State, 66 S.W.3d 790, 795 (Tenn. 2001), our supreme
court observed that about one percent of the general population suffers from mental retardation; of
this one percent, ten percent are moderately retarded. “A person with moderate mental retardation
may learn to attend to self-care and perform basic work skills under supervision, yet can attain
academic skills up to only the second grade level.” Id. at 796. Describing the appellant, Dr. Sneed
testified at the competency hearing that the appellant “did not understand her charges and the possible
consequences. She was very confused about the basic judicial process. And she, in my opinion, did
not have the capacity to cooperate with an attorney in her own defense.” Furthermore, Dr. Sneed
asserted that, “[b]ecause of the severity of [the appellant’s] level of mental retardation,” she was not
competent to stand trial and it would not be possible for the appellant to become competent. Dr.
Regan agreed with Dr. Sneed’s assessment of the appellant’s incompetency. When asked if the
appellant’s ability to learn concrete functions, such as cooking or writing her name, indicated her
competence, Dr. Regan responded,
                  The problem is, at this level of intellectual functioning, that they really
                  cannot learn enough–it’s a huge leap to go from saying that you can
                  learn to write your name to–that you would be able to learn enough to
                  be able to effectively assist your attorney and understand what’s going
                  on at trial.

                 Dr. Mount also testified that the appellant was not competent to stand trial, noting that
the appellant could not correctly answer questions relating to the role of primary court participants.
Dr. Mount revealed that due to the appellant’s problems with the retention of information, it would
be difficult for her to remember complex communications regarding court procedure or even correctly
remember the events underlying her charges. For example, Dr. Mount stated that the appellant could
not tell him the correct day, month, or year. Additionally, while the appellant could recite the correct


                                                   -14-
ages of her children when asked about each child by name, she could not consistently relate the
correct number of children that she had. In sum, the three mental health experts agreed that the
appellant was not malingering and they were unanimous in their assessment that the appellant was
not competent to stand trial. Moreover, the defense provided the testimony of lay witnesses
regarding the appellant’s history and limitations.

                To challenge the expert proof regarding the appellant’s incompetence, the State
presented testimony from lay witnesses, including DCS employees, who attested that the appellant
could cook, do laundry, clean house, and write her name. In particular, the State submitted an audio
tape and transcript of Investigator Chapman’s interview with the appellant. The trial court ruled,
based largely upon the interview, that the appellant was competent because she had the capability to
recognize that the charged behavior was wrong. Specifically, the court found that the appellant
“might not have the capacity to advise counsel and stand trial.” However, the trial court determined
that she was competent to stand trial because she “might have understood wrongdoing.” As we
earlier noted, the appellant’s ability to recognize the wrongfulness of the conduct is not a
consideration in determining the appellant’s competency. Instead, the relevant question in
determining competency is whether the appellant understands the proceedings against her and can
assist in defending herself against the pending charges. See State v. Benton, 759 S.W.2d 427, 429
(Tenn. Crim. App. 1988). All of the evidence relevant to the appellant’s competency uniformly
supports the position that she is not competent to stand trial. Accordingly, we agree with the
appellant and the State that the evidence preponderates against the trial court’s finding that the
appellant was competent. Therefore, the appellant’s convictions must be reversed.10 Nevertheless,
in anticipation of further proceedings, we will briefly address the remainder of the issues raised by
the appellant.

                                              B. Insanity
                The appellant also complains that “[t]he jury erred in not finding [the appellant] not
guilty by reason of insanity, there being clear and convincing evidence of her insanity introduced at
trial, and the Court erred in not finding [the appellant] guilty by reason of insanity.” The insanity
defense became an affirmative defense on July 1, 1995. Currently,
                [i]t is an affirmative defense to prosecution that, at the time of the
                commission of the acts constituting the offense, the defendant, as a
                result of a severe mental disease or defect, was unable to appreciate the
                nature or wrongfulness of such defendant’s acts. Mental disease or
                defect does not otherwise constitute a defense. The defendant has the
                burden of proving the defense of insanity by clear and convincing
                evidence.




         10
             We note that beca use this court has concluded that the appellant is not compe tent to stand trial pursuan t to
Tennessee Code A nnotated section 33-7-301(b)(1)(A) (2001), upon remand, the State may seek involuntary commitment
for the appellant under Tennessee Code A nnotated sec tion 33 -5-40 3 (2001 ). See Tenn. Co de A nn. § 33-5-402 (200 1).

                                                           -15-
Tenn. Code Ann. § 39-11-501(a) (1997). Evidence is deemed clear and convincing when “there is
no serious or substantial doubt about the correctness of the conclusions to be drawn from the
evidence.” State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999). Furthermore,
                [i]n determining the issue of insanity, the trier of fact may consider
                both lay and expert testimony and may discount expert testimony
                which it finds to be in conflict with the facts of the case. . . .
                [Moreover,] [i]n determining the defendant’s mental status at the time
                of the alleged crime, the trier of fact may look to the evidence of his
                actions and words before, at, and immediately after the commission of
                the offense.
Id. (citations omitted).

                 Our supreme court recently “unanimously conclude[d] that appellate courts in
Tennessee should apply [a] reasonableness standard when reviewing a jury’s rejection of the insanity
defense.” State v. Christopher M. Flake, No. W2000-01131-SC-R11-CD, 2002 Tenn. LEXIS 375,
at **38-39 (Jackson, Aug. 29, 2002) (publication pending). In other words, an appellate court should
reverse a jury’s rejection of the insanity defense “only if, considering the evidence in the light most
favorable to the prosecution, no reasonable trier of fact could have failed to find that the defendant’s
insanity at the time of the offense was established by clear and convincing evidence.” Id. at *39.

                 In the instant case, there was substantial proof that at the time of the offenses the
appellant was suffering from the mental defect of moderate mental retardation. However, in
Tennessee, the insanity statute also requires that such defect must render the appellant unable to
appreciate the nature or wrongfulness of her acts. The proof presented at trial clearly demonstrated
that the appellant was aware that the offenses perpetrated upon her children were wrong. The
appellant went to Deason’s office to complain about Harris’ abuse of PMT. Moreover, in an
evaluation submitted by Dr. Sneed, the doctor observed that the appellant maintained that “I’m a good
mother that don’t rape her kids!” At trial, Dr. Regan observed that a person suffering from moderate
mental retardation would “understand right from wrong from the sense that you have told them that
it’s right or wrong, not that there’s an internal sense of what’s right and wrong.” Furthermore,
Norwood testified that the appellant told her that she was in jail because she “messed with her kids.”
The appellant also told Norwood that, when Harris raped RT “she got up and went outside because
she didn’t want to hear the baby scream.” The proof demonstrates that the appellant appreciated the
wrongfulness of raping children or touching children inappropriately. See id. at *46. As our supreme
court noted, “[t]he [insanity] statute places the burden of establishing this affirmative defense squarely
on the defendant.” Id. at *40. We conclude that the appellant failed to meet her burden of establishing
this defense by clear and convincing evidence. Accordingly, this issue is without merit.

                                        C. Admissibility of Statement11
                   As to the issue of the admissibility of the appellant’s statement, the appellant contends:



        11
             W e will address the issues in a different order than they were raised in app ellant’s brief.

                                                            -16-
               The Court erred in not suppressing [the appellant’s] statement. [The
               appellant’s] statement to Investigator Chapman was involuntary.
               Appellant concedes that [the appellant] was not under arrest at the time
               the statement was given. However, in view of [the appellant’s] limited
               mental ability, and the circumstances surrounding her “interview[,”]
               appellant takes the position that the authorities overreached in
               obtaining [the appellant’s] statement.
In short, the appellant essentially argues that her statement, which functioned as a confession to
wrongdoing, was involuntary.

                Because the determination of whether the appellant voluntarily made a confession
primarily requires a trial court to make findings of fact, we will defer to such findings on appeal
unless the evidence preponderates otherwise. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001), cert.
denied, 534 U.S. 948, 122 S. Ct. 341 (2001). However, any conclusions of law made by the trial
court are reviewed de novo. Id. As the trier of fact at a suppression hearing, the trial court must
determine the credibility of the witnesses, the weight and value of the evidence, and the resolution
of conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Additionally, the
prevailing party is entitled to the strongest legitimate view of the evidence presented at the
suppression hearing, as well as all reasonable and legitimate inferences that may be drawn from such
evidence. Id.

                 In the instant case, the State concedes that a non-custodial interrogation must be
voluntary in order to be admissible. However, the State contends that coercive police activity is a
necessary prerequisite to finding a confession involuntary. The State, citing State v. Kelly, 603
S.W.2d 726, 728 (Tenn. 1980) (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741
(1961)), argues that the behavior of state officials must be “‘such as to overbear [the appellant’s] will
to resist and bring about confessions not freely self-determined.’” Accordingly, the State concludes
that the appellant’s will was not overborne by coercive questioning and the statement was voluntary.

                  Both the Fifth Amendment to the United States Constitution and Article I, section 9
of the Tennessee Constitution provide protection against compulsory self-incrimination. “The
significant difference between these two provisions is that the test of voluntariness for confessions
under Article I, § 9 is broader and more protective of individual rights than the test of voluntariness
under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992). One of the main
protections against self-incrimination is the requirement that a confession be voluntary before it may
be used against an accused at trial. See State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999). Notably,
“[e]ven if Miranda warnings are not required, a confession cannot be used if it is involuntary.”
United States v. Macklin, 900 F.2d 948, 951 (6th Cir. 1990). “A confession is involuntary only if
there is (1) police coercion or overreaching which (2) overbore the accused’s will and (3) caused the
confession.” Hill v. Anderson, 300 F.3d 679, 682 (6th Cir. 2002); see also Colorado v. Connelly, 479
U.S. 157, 165-66, 107 S. Ct. 515, 520 (1986) and United States v. Brown, 66 F.3d 124, 126-27 (6th
Cir. 1995). Nevertheless, “[w]hen a suspect suffers from some mental incapacity, such as
intoxication or retardation, and the incapacity is known to interrogating officers, a ‘lesser quantum


                                                  -17-
of coercion’ is necessary to call a confession into question.” Id. (quoting United States v. Sablotny,
21 F.3d 747, 751 (7th Cir. 1994)).

                However, “[it is not] the case that a person who is mildly retarded is incapable of
confessing a crime.” State v. Greer, 749 S.W.2d 484, 485 (Tenn. Crim. App. 1988). As our supreme
court recently remarked:
                “Mental retardation may have a significant impact on an individual
                who finds himself involved with the criminal justice system,
                particularly in the context of confessions and interrogations. It is well-
                recognized that mental retardation is not a per se bar to voluntary
                interrogations and confessions, although it may be a fact to be weighed
                in evaluating the voluntariness of a confession. Many mentally
                retarded people may be less likely to withstand police coercion or
                pressure due to their limited communication skills, their predisposition
                to answer questions so as to please the questioner rather than to answer
                the question accurately, and their tendency to be submissive.”
Van Tran, 66 S.W.3d at 806 (quoting Lyn Entzeroth, Putting the Mentally Retarded Criminal
Defendant to Death: Charting the Development of a National Consesus to Exempt the Mentally
Retarded from the Death Penalty, 52 Ala. L. Rev. 911, 917 (2001)).

               In Blackstock, our supreme court considered whether a mentally retarded defendant
had voluntarily waived his Miranda rights. 19 S.W.3d 206-09. In determining that the waiver was
not “voluntarily, knowingly and intelligently” made, the court cited State v. Stephenson, 878 S.W.2d
530, 544-45 (Tenn. 1994), explaining that
               [t]he relinquishment of the right must be voluntary in the sense that it
               is the product of a free and deliberate choice rather than the product of
               intimidation, coercion or deception. Moreover, the waiver must be
               made with full awareness of both the nature of the right being
               abandoned and the consequences of the decision to abandon it.
Id. at 208.

                Additionally, the United States Supreme Court has observed that, although subtle
forms of persuasion make an inquiry into the mental condition of a defendant significant, it is
doubtful “that a defendant’s mental condition, by itself and apart from its relation to official coercion,
should ever dispose of the inquiry into constitutional ‘voluntariness.’” Connelly, 479 U.S. at 164, 107
S. Ct. at 520. As this court noted in Benton, 759 S.W.2d at 431:
                [T]he confession issue in the case at bar requires us to determine
                whether the defendant had the capacity in the first place to form a will
                of [her] own and to reject the will of others. Stated differently, we
                need not determine whether the defendant was overreached, but only
                whether [she] was ever reached.




                                                  -18-
                Distinguishing Connelly, this court concluded that while Connelly’s mental problem
was schizophrenia, a “condition which. . .ebbed and flowed at intervals,” Benton, like the appellant,
suffered from mental retardation, a condition which is “static and never improves.” Benton, 759
S.W.2d at 432. Moreover, Connelly approached officers on a public street and volunteered
information regarding a murder he had committed. In Benton, supra, the defendant had an IQ of 47,
functioned as a five- to seven-year-old child, and was found by mental health experts to be
incompetent. Id. at 430. The defendant “was taken into custody, transported in a law enforcement
vehicle to the Sheriff’s Department, and subjected to questioning in spite of his retardation and the
expressed desire of his father to be with him during the interrogation.” Id. at 432. In the instant case,
Investigator Chapman, Deason, and Workman went to the appellant’s house to locate her after a
miscommunication regarding a previously scheduled interview. At their request, the appellant’s
husband, Calvin Kelly, and the appellant followed the three interviewers to the courthouse. The
interview was conducted in the judge’s chambers while Calvin Kelly waited outside. Deason knew
the appellant as a result of the appellant’s involvement with DCS. The appellant trusted Deason to
the point that she had reported Harris’ abuse of PMT to Deason. Clearly, Deason should have been
aware of the appellant’s limitations. The questions posed by the interviewers were suggestive and
the appellant’s answers varied depending upon prompting by the interviewers. Notably, during the
interview Investigator Chapman offered the appellant a cookie.

              In view of the appellant’s mental limitations and the circumstances surrounding her
statement, we conclude that the appellant’s statement was not voluntary and should have been
suppressed.

                                        D. Chapman’s Testimony
                 The appellant contends that the trial court erred in allowing Investigator Chapman to
testify as to the time and place of the alleged offenses, contending that such information was hearsay.
The State responds that Investigator Chapman testified that the information was the product of his
own personal knowledge; therefore, the testimony was not hearsay.

                At trial, the State asked Investigator Chapman if, during the course of his investigation
of the alleged abuse, he “bec[a]me familiar with a situation where the [appellant] and the children
were living during this time and sort of what time period involved and that sort of thing.”
Subsequently, the following colloquy occurred:
                Appellant: Judge, I am going to object to any of that information[; it]
                would [be] hearsay.

                Court: What was the question? I’m sorry.

                State: Your honor, what I had asked the witness and we are going to
                have some le[e]way in this questioning of our witnesses. They are
                very small children, very young children who have little or no
                con[cept] of time or date[s] []and I was asking Investigator Chapman
                about some time reference.


                                                  -19-
               In other words, if he was familiar with where the [appellant] and the
               children liv[ed] and in what time period we’re talking about.

               Appellant: Judge, my objection is hearsay because the only way he
               would know that information unless he observed during whatever
               specific time, unless he was there and sees where they lived.

               Court: How do you know that’s where they lived? What time period
               are we talking about?

               Investigator Chapman: Yes, I knew where they lived from November
               of 1997 until February of 1998.

                Court: Your own personal knowledge?

                Investigator Chapman: Yes.

                Court: I am going to overrule your objection.

                State: Let me ask you this: This may help a little bit. Did you get some
                of this information from talking to [the appellant]?

                Investigator Chapman: I did and from other sources.

                State: And what place during that time period at what place or what
                general local[e] are we talking about where they lived?

                Investigator Chapman: 1301 Mill Street here in Pulaski. Trailer
                number 4, which was at that time referred to as Town and Country
                Trailer Park.

                State: That is located in Giles County?

                Investigator Chapman: That’s correct. It is, sir.
Later in Investigator Chapman’s testimony, he stated that “[t]he investigation revealed that the time
frame of these alleged occurrences would have been between November and prior to February or the
middle of February of ‘98; November of ‘97 to February of ‘98.”

                Initially, we note that a trial court’s admission of evidence is generally reviewed under
an abuse of discretion standard. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). As
reflected in the record, defense counsel objected to Investigator Chapman’s testimony on the basis
it was hearsay. In addressing the appellant’s objection to Investigator Chapman’s testimony, we must


                                                  -20-
address two separate issues. First, Investigator Chapman testified that he knew from his own personal
knowledge that the appellant and the children lived in the trailer park in Pulaski from November 1997
until February 1998. Specifically, he explained that he interviewed PMT on December 2, 1997, and
later spoke with the appellant. Although Investigator Chapman testified that some of his information
was gained from speaking with the appellant and from other sources, neither the State nor defense
counsel attempted to distinguish which information was based upon his personal knowledge and
which information was gleaned from other sources. While Investigator Chapman could not testify
to facts outside his personal knowledge, we cannot conclude based on the record before us that the
trial court erred in admitting his testimony regarding where the appellant and her children lived during
the time in question.

                Conversely, we conclude that Investigator Chapman’s testimony that the offenses
occurred during the time frame from November 1997 to February 1998 was hearsay. Hearsay is
defined as “a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). Clearly,
Investigator Chapman was not present when the offenses occurred. Moreover, his testimony reflected
that knowledge of the time frame of the offenses was derived through his investigation. Therefore,
this testimony constituted hearsay. See State v. Catherine Ward, No. 01C01-9307-CC-00224, 1996
Tenn. Crim. App. LEXIS 71, at *27 (Nashville, Feb. 2, 1996). As a general rule, hearsay is not
admissible during a trial, unless the statement falls under one of the exceptions to the rule against
hearsay. See Tenn. R. Evid. 802. In the instant case, we can discern no applicable hearsay exception.
Moreover, Tennessee Rule of Evidence 602 provides that “[a] witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” In other words, “a witness is not competent to testify about facts unless the witness
personally perceived those facts by use of one of the witness’s five senses.” NEIL P. COHEN , ET AL.,
TENNESSEE LAW OF EVIDENCE , § 6.02[2], at 6-26 (LEXIS Publishing, 4th ed. 2000). Investigator
Chapman acquired the information from others and there is no applicable exception to the personal
knowledge rule that bars such testimony. Id. at § 6.02[5][c], at 6-31.

                                      E. Impeachment of RGT
                Next, the appellant argues that “[t]he court erred in not granting [the appellant’s]
motion to limit the testimony and cross-examination of witness Chapman regarding the proposed
impeachment testimony [concerning] the prior inconsistent statement of the victim [RGT], as
indicated through [the appellant’s] offer of proof on that matter.” Essentially, the appellant contends
that the trial court erred by not allowing her to introduce only certain portions of RGT’s prior
statements for the purpose of impeachment. However, because the record is incomplete, we are
unable to address this issue.

               At trial, RGT testified that the appellant told him to place his “front part” in her “front
part.” During cross-examination, RGT was asked if he recalled a prior conversation with Chapman
and Deason in which he denied that he “ever had to put anything in [his] mother.” RGT responded
that he did not remember making the statement. Subsequently, at the end of the defense’s proof,
defense counsel asked the trial court to be allowed to recall Investigator Chapman for the purpose of


                                                  -21-
making an offer of proof as to RGT’s prior statements. Chapman then identified two statements taken
during interviews Chapman had with RGT on May 6, 1998 and July 9, 1998.

                  From comments reflected in the record, we surmise that defense counsel made some
type of motion regarding the prior statements.12 However, there is no specific reference in the record
to a request made by the appellant regarding the prior inconsistent statements, nor is there a record
of the trial court’s ruling on any such motion. It is the appellant’s duty to prepare a record which
reflects a fair, accurate, and complete account of what transpired with respect to the issues which form
the basis of the appeal. Tenn. R. App. P. 24(b). In the instant case, because the transcript of the
proceedings relevant to the issue presented for review is not included in the record, this court is
precluded from considering the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.
1988). Accordingly, in the absence of an adequate record on appeal, we must presume that the trial
court correctly ruled upon this issue. Id.

                                             F. Sufficiency
               The appellant next challenges the sufficiency of the evidence supporting her
convictions. On appeal, the appellant, having been convicted by a jury, is presumed guilty. State v.
Suttles, 30 S.W.3d 252, 260 (Tenn. 2000). Thus, the burden falls upon the appellant to demonstrate
why the evidence is insufficient to support the jury’s findings. Id. Evidence is considered insufficient
when no reasonable trier of fact could have found the essential elements of the offense in question
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Tenn. R. App. P. 13(e).

                 Moreover, as a result of the appellant’s convictions, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Cottrell, 868 S.W.2d 673, 675 (Tenn. Crim. App. 1992). Additionally, we note
that “[t]he weight and credibility of the witnesses' testimony are matters entrusted exclusively to the
jury as the triers of fact.” State v. Manning, 909 S.W.2d 11, 13 (Tenn. Crim. App. 1995).

                The appellant was convicted of the offenses of aggravated sexual battery, criminal
responsibility for aggravated sexual battery, rape of a child, criminal responsibility for rape of a child,
and incest. “Aggravated sexual battery is unlawful sexual contact with a victim by the defendant or
the defendant by a victim . . . [if] [t]he victim is less than thirteen (13) years of age.” Tenn. Code
Ann. § 39-13-504(a)(4) (1997). “Rape of a child is the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age.” Tenn.
Code Ann. § 39-13-522(a) (1997). Furthermore,
                [a] person is criminally responsible for an offense committed by the
                conduct of another if:


         12
             In the appellant’s brief, the appellant admits that “the transcript does not reflect that conversation on the
record, although references are made to it. . . . Counsel will attempt to supplement the record with this additional
testimony as well.” However, there is no indication in the record that the appellant has attempted to supply this court
with the additional evid ence.

                                                          -22-
               ....
               (2) Acting with intent to promote or assist the commission of the
               offense, or to benefit in the proceeds or results of the offense, the
               person solicits, directs, aids, or attempts to aid another person to
               commit the offense; or

              (3) Having a duty imposed by law or voluntarily undertaken to prevent
              commission of the offense and acting with intent to benefit in the
              proceeds or results of the offense, or to promote or assist its
              commission, the person fails to make a reasonable effort to prevent the
              commission of the offense.
Tenn. Code Ann. § 39-11-402(2)-(3) (1997). Additionally, this court has previously observed that
the
              presence of one at the commission of a felony by another is evidence
              to be considered in determining whether or not [s]he is [criminally
              responsible]; and it has also been held that presence, companionship,
              and conduct before and after the offense are circumstances from which
              one’s participation in the criminal intent may be inferred.
State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982); see also State v. Maxey, 898
S.W.2d 756, 757 (Tenn. Crim. App. 1994). Finally, Tennessee Code Annotated section 39-15-
302(a)(1) (1997) provides:
              (a) A person commits incest who engages in sexual penetration as
              defined in § 39-13-501, with a person, knowing such person to be,
              without regard to legitimacy:

               (1) The person’s natural parent, child, grandparent, grandchild, uncle,
               aunt, nephew, niece, stepparent, stepchild, adoptive parent, [or]
               adoptive child.

                Again, the appellant was convicted of criminal responsibility for the aggravated sexual
battery of PMT; two counts of rape of a child, namely RGT and BJT; aggravated sexual battery of
RGT; incest involving BJT; and three counts of criminal responsibility for rape of a child, two of
which relate to BJT and one of which relates to RGT. We conclude that when the evidence in this
case is viewed in the light most favorable to the state, as is required, the evidence is sufficient to
support the convictions. The children testified graphically as to each offense perpetrated upon them.
Additionally, the evidence showed that the appellant was in the mobile home, sometimes in the same
bed, when Harris raped the children. RGT and BJT testified that they screamed and “hollered” while
they were being raped by Harris. The appellant made no attempt to rescue the children or to stop
Harris’ abuse. Moreover, Norwood testified that appellant told her that she had “messed with her
kids.” RGT testified that appellant instructed him to place his “front part” in her “front part” and also
told her to “suck” her breasts. Furthermore, BJT testified that the appellant came into his room, woke
him, and instructed him to penetrate her vagina with his penis. This issue is without merit.



                                                  -23-
                                           G. Sentencing
               Finally, the appellant argues that the trial court erred in sentencing her to sixty-two
years incarceration, specifically complaining about the length of the individual sentences and the
imposition of consecutive sentencing. Initially, we note that, because of the trial court’s
misapplication of various factors, we will review the trial court’s determinations de novo without a
presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In any event, the burden is on the appellant to demonstrate the impropriety
of her sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

                We must consider the following factors in the course of our de novo review: (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 enhancement
and mitigating factors; (6) any statement by the appellant in her own behalf; and (7) the appellant’s
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102 and -103 (1997), -210 (Supp.
2001); see also Ashby, 823 S.W.2d at 168.

                In the sentencing analysis, the presumptive sentence for a Class A felony is the
midpoint in the applicable range; however, for a Class B, C, D or E felony, the trial court must
presume that the appellant is entitled to the minimum sentence within the appropriate range. Tenn.
Code Ann. § 40-35-210(c). The appellant was sentenced as a standard Range I offender.
Accordingly, the presumptive sentence for the Class A felonies of rape of a child and criminal
responsibility for rape of a child was twenty years; the presumptive sentence for the Class B felonies
of aggravated sexual battery and criminal responsibility for aggravated sexual battery was eight years;
and the presumptive sentence for the Class C felony of incest was three years. Tenn. Code Ann. §
40-35-112(a)(1)-(3) (1997). The trial court should then “enhance the sentence within the range as
appropriate for the enhancement factors, and then reduce the sentence as appropriate for the
mitigating factors.” Tenn. Code Ann. § 40-35-210(e).

              The trial court found the following enhancement factors applicable, but did not clarify
to which offenses the factors applied:
              (2) The defendant was a leader in the commission of an offense
              involving two (2) or more criminal actors;
              (4) A victim of the offense was particularly vulnerable because of age
              or physical or mental disability;
              (5) The defendant treated or allowed a victim to be treated with
              exceptional cruelty during the commission of the offense;
              (7) The offense involved a victim and was committed to gratify the
              defendant’s desire for pleasure or excitement; and
               (15) The defendant abused a position of public or private trust, or used
               a special skill in a manner that significantly facilitated the commission
               or the fulfillment of the offense.



                                                 -24-
Tenn. Code Ann. § 40-35-114(2), (4), (5), (7), and (15) (1997).13 Furthermore, the trial court applied
these mitigating factors:
               (1) The defendant’s criminal conduct neither caused nor threatened
               serious bodily injury;
               (9) The defendant assisted the authorities in uncovering offenses
               committed by other persons or in detecting or apprehending other
               persons who had committed the offenses; and
               (13) The defendant had no significant prior criminal history.
Tenn. Code Ann. § 40-35-113(1), (9), and (13) (1997).

                 On appeal, the appellant argues that the trial court improperly considered enhancement
factor (5) in sentencing the appellant. Tenn. Code Ann. § 40-35-114(5). She contends that the proof
reflected no evidence of cruelty over and above that inherently attendant to the crime. We disagree.
In the instant case, the appellant remained in the home, often in the same bed, while her children were
repeatedly sexually assaulted. Additionally, she told Norwood that she would leave the trailer upon
hearing her children scream and cry while being raped. In State v. Arnett, 49 S.W.3d 250, 258 (Tenn.
2001), our supreme court determined that the exceptional cruelty factor is applicable in cases of
“extensive physical abuse or torture” or in cases where there is “proof of psychological abuse or
torture.” The victim impact statement submitted by PMT stated that the offenses “destroyed my
family . . . [and] it caused me to lose respect for myself and others. It is also hard for me to trust
anybody.” At the sentencing hearing, Tressa Helton, with whom PMT resides, related that PMT
“don’t respect herself. And she’s angry, too.” Moreover, Dawn Robertson, the foster mother of BJT
and RGT, testified that
                 [t]hey have nightmares. . . . They have a lot of anger and madness, and
                 they exert that in violence. . . . They are in counseling, now. They
                 have to receive a lot of that. They were on medication for their
                 psychological problems, which are – which is anger and violence.
                 They sexually matured before their age.
Furthermore, in a victim impact statement she submitted on behalf of the boys, Robertson maintained
that “[t]hey are both . . . emba[r]rassed of their names and want to change them so no one will know
who they are.” We conclude that this evidence is sufficient to support the application of enhancement
factor (5).

               Additionally, the appellant alleges that “there is no proof in the record to support the
court’s finding that enhancing factor [(2)] applied–that the defendant was the leader as between her
and Harris.” We disagree. “Our cases have established that enhancement for being a leader in the
commission of an offense does not require that the [appellant] be the sole leader but only that [s]he



        13
            Perip herally, we note that, beginning July 4, 2002, “[t]he 2002 am endment [to Tennessee Code Annotated
section 40-35-114] ad ded present [enhancement factor] (1) and redesig nated former (1) through (22) as present (2)
through (23), respe ctively.” Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002). Thus, enhancement factor (2)
becomes enhancement factor (3), enhancement factor (4) becomes enhancement factor (5), etc.

                                                        -25-
be ‘a’ leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). Accordingly, we find
the proof supports the application of this enhancement factor.

                The appellant also contends that the mitigating factors contained in Tennessee Code
Annotated sections 40-35-113(2), (3), (8), (11), and (12) are applicable due to the appellant’s mental
retardation. We agree with the appellant that the trial court should have considered Tennessee Code
Annotated section 40-35-113(8) because the appellant “was suffering from a mental . . . condition that
significantly reduced [her] culpability for the offense[s].” We do not find the presence of the
remaining mitigating factors.

                Furthermore, in disputing the trial court’s imposition of consecutive sentencing, the
appellant argues, and the State concedes, that the trial court erred in finding that the appellant “is a
dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a
result of an investigation prior to sentencing that the [appellant’s] criminal conduct has been
characterized by a pattern of repetitive or compulsive behavior with heedless indifference to
consequences.” Tenn. Code Ann. § 40-35-115(b)(3) (1997). We agree. Nothing in the record
indicates that any of the mental health experts deemed the appellant to be a “dangerous mentally
abnormal person.” The trial court erred in ordering consecutive sentencing on this basis.

               However, the appellant concedes that consecutive sentencing is appropriate under
Tennessee Code Annotated section 40-35-115(b)(5) because she was convicted of two or more
statutory offenses involving sexual abuse of a minor. Nevertheless, the appellant offers that
               [her] actions did not go on for years. The time span was relatively
               short, and while the victim impact statements did allude to residual
               mental damage, that should be viewed in a relative manner. Also, the
               face of the [appellant’s] sentence could change dramatically based
               upon the issues presented in this appeal. That notwithstanding, the
               Harris factor should not be overlooked as the apparent motivator and
               certainly the predator in this case.
While the appellant makes a persuasive argument, we conclude that the trial court did not err in
imposing consecutive sentences due to the multiple convictions involving the sexual abuse of minors.

                                         III. Conclusion
              Based upon the foregoing, we reverse the appellant’s convictions due to the appellant’s
lack of competency to stand trial and remand to the trial court for further proceedings pursuant to
Tennessee Code Annotated sections 33-7-301, et seq., and 33-5-402, et seq.




                                                        ___________________________________


                                                 -26-
       NORMA McGEE OGLE, JUDGE




-27-
