State v. William Dearry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1997 February 6, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9612-CC-00462
)
Appellee, )
)
) JEFFERSON COUNTY
VS. )
) HON. WILLIAM R. HOLT, JR.
WILLIAM DEARRY, ) JUDGE
)
Appe llant. ) (Rape of a Child)

ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF JEFFERSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

LU ANN BALLEW JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
Fourth Judicial District
P.O. Box 416 SANDY R. COPOUS
Dandridge, TN 37725 Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243

AL SCHMUTZER, JR.
District Attorney General

JAMES L. GOSS
Assistant District Attorney General
P.O. Box 70
Dandridge, TN 37725

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

The Defenda nt, William D earry, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure. He was convicted by a Jefferson

Coun ty jury of one count of rape of a child.1 The trial court sentenced h im to

fifteen years imprisonment with the Department of Correction. In this appeal, the

Defendant presents five issues for review:

(1) Tha t the ind ictme nt was fatally de fective in that it did not
sufficiently allege the mens rea necessary for conviction;
(2) that the trial court erred in denying his motion for an inpatient
mental evaluation;
(3) tha t the trial c ourt er red in a dmittin g his sta teme nt at trial;
(4) that the trial court erred in permitting the State to pose leading
questions to the child victim at trial; and,
(5) that the trial co urt erred in failing to require the State to elect the
proof relied upon to sustain the conviction.

After reviewing the record, we conclude the Defendant’s issues lack merit and

affirm the ju dgme nt of the trial co urt.

Although the Defendant does not specifically challenge the sufficiency of

the evidence, we begin with a summary of the pertinent facts. In January of

1995, the Defend ant was living with the victim , T.R., and he r mother. 2 The

Defendant was dating the victim ’s mo ther. T he victim was n ine yea rs old a t this

time. In early February of 1995, the victim complained of sexual abuse to

Department of Huma n Services (“D HS”) officials. She was interviewed by Penny

Inman, a coun selor with D HS, at her ele mentary school and identified the

1
Tenn. Code Ann. § 39-13-522.

2
It is the policy o f this C ourt n ot to re fer to child v ictim s of s exu al off ens es by n am e. In th is
opinion, w e will refer to the victim as “T.R.” o r simp ly as “the victim .”

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Defendant as the perpe trator of the sexual abuse. The Defendant was

subsequently interviewed by police and arrested on charges of rape of a child.

Given the youth of the victim, the facts adduced at trial relating to the

allegations of sexual abuse were, not surprisingly, vague at times. At trial, the

prosecutor asked the victim, “did he [the Defendant] touch you in some way that

was bad?” In response to this o pen-e nded ques tion, the victim te stified in

general terms that the Defendant touched her “private parts” with his hands and

had her touch his “private pa rts.” After this testimony, however, the prosecutor

was clearly interested in eliciting details of a particular incident. Over the

Defe ndan t’s objection, the trial court permitted the prosecutor to direct the

victim’s attention to an incident which allegedly occurred after school had begun

again following the 1994-1995 Christmas break but before she spoke with Penny

Inman on Fe bruar y 3, 199 5. The victim’s m other ha d appa rently gon e to

Georgia. The victim te stified in greater detail about this occasion, stating that the

Defendant took her into a bedroom of their home and showed her books

containing sexua lly explicit pho tograph s. The Defendant told her to do what the

individu als in the pictures were doing. As a result, the victim “licked” the

Defendant’s penis.

On cross -exam ination , the victim adm itted tha t she to ld the doctor who first

examined her that the Defendant had put his fingers inside her vagina and had

penetrated her vagina with his penis. On redirect examination, the victim clarified

that statem ent, testifying that the Defe ndan t had trie d to pu t his fing ers an d pen is

in her vagina, but she had “pretty much” stopped him from doing so.

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 The State also offered the testimony of Bud McCoig, a detective with the

Jefferson Coun ty Sheriff’s D epartm ent. McC oig testified th at, on February 3,

1995, he took a statement from the Defendant regarding the allegations of sexual

abus e. A red acted version of the s tatem ent wa s read into evid ence at trial:

I [the Defendant] need h elp. I’m on disability. I can’t w ork. T[.R .]
excites me bu t not all the time. I’m ge tting to w here in [sic] wo n’t
rise on me. I ne ed help bec ause T[.R .]’s exciting me sexua lly.
It’s been about a month ago. She had her clothes off. I
unzipped my pants. I rubbed my penis on her vagina when I started
to come I jerked it back and caught the come in a rag. She also
licked my pen is down the side o f it. I hadn’t come at that time but I
had a hard on.
When T[.R.] was licking my penis she put her mouth over the
side of my penis. Then I jerked back.
It happened on the bed, mine and Janie’s. She had her
clothes off. Janie had gone to get her brother at that time.

Because the Defendant was illiterate, McCoig made the written account of what

the Defendant said, read the statement back to the Defendant, and the

Defen dant the n signed it.

The Defendant presented the testimony of Dr. John Ellis. Dr . Ellis

examined the victim on February 3, 1995. Ellis testified that he performed a

cursory physical examination in response to allegations of sexual abuse. The

examination revealed no evidence of vaginal penetration of the victim. On cross-

examination, Ellis testified that his findings were limited to vaginal penetration.

He stated that he could not de termin e if the vic tim had been penetrated orally or

if the victim’s vagina had merely bee n touched o n the exterior.

The Defendant testified in his own behalf at trial. He stated that he had

once accide ntally touched the victim’s vagina while picking her up, but he denied

the allegations of sexual abuse. More specifically, he denied the alleged incident

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of oral pen etration as well as eve r having p enetrate d the victim ’s vagina. W ith

regard to his statemen t to Detective McCoig, the Defendant testified that he

simp ly could no t remem ber wha t he had told McC oig. On cross-examination, the

Defendant stated that alth ough he co uld not remember what he had told McCoig,

he was sure that he had told the truth.

The Defendant was indicted on one count of rape of a child. He was tried

on October 31, 1995. After considering the proof presented at trial, the jury found

the De fendan t guilty as cha rged. He now ap peals his conviction to this Cou rt.

In his first issue on appeal, the Defendant argues that the indictment

charging him with rape of a child was fatally defec tive in that it d id not s ufficien tly

allege the mens rea necessary to sustain a conviction. He cites a recent decision

of a pan el of this Cour t that he ld an indictment invalid which charged the offense

of aggra vated rape in language similar to that in the case sub judice. See State

v. Roge r Dale Hill, C.C.A. N o. 01C01-9508-CC-00267, Wayne County (Tenn.

Crim. App., N ashville, Ju ne 20, 1 996), rev’d, 954 S.W.2d 725 (Tenn. 1997). The

Defendant conten ds that be cause the indictm ent cha rging him with rape of a ch ild

failed to allege the requisite mens rea, his conviction for that offense is void.

It is well-established in Tennessee that an indictment or presentment must

provide notice of the offense charged, an adequate basis for the entry of a proper

judgm ent, and suitable p rotection a gainst do uble jeop ardy. State v. Trusty, 919

S.W.2d 305, 310 (T enn. 19 96); State v. Byrd, 820 S.W.2d 739, 741 (T enn. 1991 );

State v. Lindsay, 637 S.W.2d 886, 890 (Tenn. Crim. App. 1982). The indictment

“must state the fac ts in ord inary a nd co ncise langu age in a ma nner th at wou ld

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enab le a pers on of c omm on un dersta nding to kno w wha t is intended , and with

a degree of certainty which would enable the court upon conviction, to pronounce

the proper judgm ent.” Wa rden v. Sta te, 381 S.W.2d 244, 245 (Tenn. 1964);

Tenn. Code Ann. § 40-13-202.

A lawful acc usation is an esse ntial jurisdictiona l elemen t, and thus , a

prosecution cannot proceed without an indictment that sufficiently informs the

accused of the essen tial eleme nts of the o ffense. State v. Perkinson, 867

S.W.2d 1, 5 (Tenn. Crim. App. 1992); State v. Morgan, 598 S.W.2d 796, 797

(Tenn. Crim. App. 1979). A judgment based on an indictmen t that does not

allege all the essential elements of the offens e is a nullity. Warden, 381 S.W.2d

at 245; McCra cken v. S tate, 489 S.W .2d 48, 53 (T enn. Crim. A pp. 1972).

Furthermore, the Tennessee Code provides that “[i]f the definition of an

offense within this title does not plainly d ispense with a m ental elem ent, intent,

knowledge, or reck lessn ess su ffices to estab lish the culpa ble m ental state.”

Tenn. Code Ann. § 39-11-301(c). The definition of rape of a child neither

specifies nor plainly dispenses with a m ental elem ent. Tenn. Code Ann. § 39-13-

522. Thus, pursuant to Tennessee Code Annotated section 39-11-301(c), the

mental eleme nt is satisfied if proof esta blishes th at the pro scribed a ct was

committed with intent, knowledge or recklessness.

Relying on this Court’s opinion in State v. Rog er Da le Hill, the Defendant

contends that the indictment in the present case fails to allege a reckless,

knowing or intentional mental state. As a result, he argues that the failure to

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allege the req uisite m ental s tate ren ders th e indic tmen t fatally de fective a nd his

conviction void. The indictment in the case at bar reads as follows:

The Grand Jurors for the State of Tennessee, having been
duly summoned, elected, impanelled, sworn and charged to inq uire
for the bod y of the Co unty and State afo resaid, pre sent, that William
D. “Buddy” Dearry on the ___ day of January, 1995, before the
finding of this ind ictme nt, in the State a nd Co unty afo resaid , did
unlawfully, feloniously sexually penetrate [T.R.], a person less than
thirteen (13) years of age, in violation of T.C.A. Section 39-15-522
[sic], contrary to the statute, and against the peace and dignity of the
State of Tennessee.3

As the Defendant points out, the indictmen t does not specifically refer to the

required mental state as intentional, knowing or reckless.

Our supreme court recently provided guidance on this issue in its opinion

reversing this Court’s decision in Hill. The su preme court state d that:

for offenses which neither expressly require nor plainly dispense
with the requirement for a culpable mental state, an indictment
which fails to allege such m ental state will be sufficient to sup port
prosecution and conviction for that offense so long as

(1) the language of the indictment is sufficient to meet
the cons titutiona l requiremen ts of notice to the accused
of the charge against which the accused must defend,
adequ ate basis for entry of a proper judgment, and
protection from doubly jeopard y;
(2) the form of the indictment meets the requirem ents
of Tenn. Code Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the
conduct alleged.

State v. Hill, 954 S.W .2d 725, 726 -27 (Tenn . 1997).

Applying these princip les to th e cha rging in strum ent in the case sub judice,

we conc lude th at the in dictm ent is not fatally de fective. The indictment satisfies

3
The indictment refers to Te nnessee Co de Annotated section 39-15-52 2. The statutory
provision regarding rape of a child is actually contained at section 39-13-522. Prior to the point at
which jeopardy attached, the prosecutor noticed the typographical error and the trial court ordered that
the indictment be amended to reflect the correct statutory provision.

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the constitution al notice re quirem ents. It provided adequate notice that the

Defendant was charged w ith the statutory offense of rape of a child as codified

in Tennessee Code Annotated section 39-13-522, which contained the essential

eleme nts of the offense. Here, too, is sufficient information by which the trial

judge could have pronounced judgmen t for that offense. Finally, the Defendant

is adequately protected against a second prosecution for the offense of rape of

a child committed against T.R. during the month of January, 1995.

Regarding the requ iremen t that the form of the indictment satisfy the

statutory provisions of Tennessee Code Annotated section 40-13-202, it is readily

apparent that the indictmen t was drafted su ch that a perso n of ordinary

intelligence could unde rstand with wha t offense he or she was charged. The

language of the in dictm ent cle arly tracks the language of the statute defining the

criminal offense of rape of a child.

Likewise, the third require ment, th at the m ental state be logically inferred

from the indictm ent, has been satisfied. One can infer th e require d men tal state

of recklessness, knowledge, or intent from the nature of the charged criminal

condu ct, name ly that the Defendant “did unlawfully, feloniously sexu ally penetra te

[T.R.], a perso n less tha n thirteen (13) years of age .” See Hill, 954 S.W.2d at

729. Accordingly, we conclude that the indictment in the case at bar meets the

constitutional and statutory requirem ents of notice an d form and is therefore

valid. The Defen dant’s first issu e on ap peal lack s merit.

In his second issue on appeal, the D efendant arg ues that the trial court

erred in den ying his motion for an inpatient mental evaluation. He challenges the

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trial court’s ruling in two res pects . First, he conte nds th at the re sults o f his

outpatient evaluation indicated that an inpatient evaluation was ne eded to ensure

that he wa s com peten t to stan d trial. Second, he contends that an inpatient

evaluation was necessary because the results of the outpatient evaluation did not

sufficie ntly answer the question of whether his m ental illn ess re ndere d him

subs tantially incapab le of confo rming h is condu ct to the req uireme nts of the law,

as is required un der State v. Graham, 547 S.W .2d 531, 543 (Tenn. 197 7).

Prior to trial, upon a petition by defense counsel, the trial court ordered that

the Defendant undergo an outpatient forensic evalua tion to d eterm ine his

competency to stan d trial an d his m ental c onditio n at the time of the alleged

offense. See Tenn. Code Ann. § 33-7-301(a). Dr. Jeffrey Munson, a clinical

psychologist with Cherokee Health Systems, conducted the outpatient evaluation

on July 20 , 1995 . The o utpatie nt evalu ation consisted of a clinical interview

lasting approxima tely two hours. No psychologica l testing was perform ed. Dr.

Munson did, however, review records of other psychological evaluations

performed on the Defe ndan t in 199 2 and 1993 as we ll as the Defe ndan t’s

scholastic records.

The records which Dr. Munson reviewed indicated that the Defendant

underwent a psych ological e valuation in July of 199 2 to deter mine h is capac ity

to serve as a parent. P sycho logica l testing was p erform ed as part of th is

evaluation. These tests revealed that the Defen dant ha d a verba l IQ of 59, a

performance IQ of 63, a nd a fu ll-scale IQ of 5 8, plac ing him in the m ildly me ntally

retarded range of intellectual functioning. The Defendant underwent another

psychological evaluation in July of 19 93 to de termine his eligibility for disa bility

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benefits. A wide varie ty of psychological tests were again performed as part of

this evaluation. These tests revealed that the Defendant had a verbal IQ of 67,

a performance IQ of 67, and a full-scale IQ of 66, ag ain pla cing h im in th e mild ly

men tally retarded range of intellectual functioning. The tests revealed no

evidence of psychosis, and the Defendant’s thoug ht proc esse s were gene rally

conventional and concrete.

After conducting the outpatient evaluation, Dr. Munson filed a report w ith

the trial court concluding that the Defendant was competent to stand trial and that

an insanity defense could not be supported. Dr. Munson noted that although the

Defendant was legally com petent to stand trial, his comp etence was “m inimal.”

According ly, Dr. Munson stated that an additional, inpatient evaluation of the

Defendant “might yield additional information of value in this ‘close call’ type of

case.”

On October 19, 19 95, the Defe ndan t filed a m otion fo r an ad ditiona l,

inpatient evaluation, asserting that the results of the outpatient evaluation were

not sufficient to determine the Defendant’s com peten cy to sta nd trial o r his

mental condition at the time of the offense. The trial court conducted a hearing

on the mo tion on O ctober 2 3, 1995 . The on ly witness to testify at the hearing

was Dr. Munson, the clinical psychologist who conducted the Defenda nt’s

outpatient evaluation. Dr. Mun son’s tes timony p rimarily reitera ted the re sults of

the outpatient evaluation. He testified that he had re viewe d the D efend ant’s

scho lastic records as well as records of recent psychological testing. The

outpa tient eva luation itself consisted of a two-hour clinical interview. Based on

the review of the records and the outpatient evaluation, Dr. Munson testified that

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the Defenda nt was suffering from mild men tal retardation. Dr. Munson

concluded, however, that the Defendant was minimally competent to stand trial

and that, in spite of his mental retardation , the Defe ndant w as able to differentiate

right from wrong at the time of the alleged offense.

Upon further questioning, Dr. Munson stated that a thirty-day inpatient

evaluation migh t be he lpful in d eterm ining the Defendant’s competency and

sanity becau se it stood “a good chanc e of yielding additiona l information.” In

particular, Dr. Munson testified that a neuro psych ologic al evalu ation, w hich w ould

include a wide variety of tests to assess cognitive processes, might be helpful

because the De fenda nt repo rted tha t he ha d suffe red he ad inju ries as a child.

In addition, Dr. Munson stated that the Wechsler Adult Intelligence Scale -

Revised test might be helpful to assess changes in the Defendant’s intellectual

functioning since his last psychological evaluation.

On cross-examination, Dr. Munson testified that he had performed

outpatient evaluations to determ ine comp etency and s anity in the past. Dr.

Munson stated that if he believed he could no t make a judgm ent as to

competency or san ity base d sole ly on the outpa tient eva luation , he wo uld refer

the subject for an inpatient evaluation. After hearing Dr. Munson’s testimony, the

trial court denied the Defendant’s motion for an additional, inpatient evaluation.

On appe al, the Defendant first contends that the trial court erred in denying

his motion for an inpatient evaluation because the results of his outpatient

evaluation indicated that an inpatient evaluation was needed to ensure that he

was competent to stand trial. The Defendant argues that Dr. M unson’s rep ort

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and testimony revealed that the outpatient evaluation was not sufficient to make

a proper determination of his com petenc y. In particular, the Defendant focuses

on Dr. Mu nson ’s conc lusion that “wh ile Mr. D earry a ppea rs to be legally

comp etent, his c ompe tence is m inimal.”

The primary statutory provision go vernin g com peten cy eva luation s is

Tennessee Code Anno tated s ection 33-7-3 01. Th at sec tion rea ds, in pertinent

part, as follows:

When a person charged with a criminal offense is believed to
be incompetent to stand trial, or there is a question as to the
perso n’s mental capacity at the time of the commission of the crime,
the criminal, circ uit, or general ses sions court judg es may . . . order
the defendant to be evaluated on an outpatient basis . . . . If in the
opinion of those performing the mental health evaluation, further
evaluation and trea tment is n eeded , the court may order the
defendant hospitalized, and if in a state hospital or state-supported
hosp ital, in the custody of the commissioner for not more than thirty
(30) days for the purp ose of further eva luation an d treatm ent as it
relates to competency to stand trial subject to the availability of
suitable accommodations.

Tenn. Code Ann. § 33-7-3 01(a) (Sup p. 199 7). Th e plain language of subsection

(a) vests the trial court with discretion in granting a motion for psychological

evaluation as well as in orde ring an inpatie nt evalu ation s hould those individu als

performing the outpatient evaluation recommend further testing . State v.

Rhoden, 739 S.W .2d 6, 16 (T enn. C rim. App . 1987); State v. Johnson, 673

S.W.2d 877, 880 (Tenn. Crim. App. 1984). On appe al, this Court will not disturb

the ruling of the trial court absent a showing that the trial court abused that

discretion . See State v. Lane, 689 S.W .2d 202, 204 (Tenn. Crim . App. 1984 ).

After reviewing the reco rd, we do not b elieve that the trial ju dge a buse d his

discretion by denying the Defendant’s motion for an inpatient evaluation.

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Although Dr. Munson stated that the outpatient evaluation of the Defendant

presented a “clos e call,” h e did fin d the D efend ant to b e com peten t to stan d trial.

Moreover, the additional tests mentioned by Dr. Munson were performed on the

Defendant during the summers of both 1992 and 1993. The records reviewed by

Dr. Munson as part of the outpatient evaluation reveal that the Defendant

underwent psychologica l testing in July of 1992 to determine his inte llectual ability

and emotio nal functio ning with respec t to his capacity to parent. That evaluation

included a clinical interview, the Wechsler Adult Intelligence Scale - Revised test,

and the Rors chach Ink Blot tes t. In addition, th e Defe ndant underwent

psychological testing in Ju ly of 1993 to determ ine his qu alification for d isability

benefits. That evaluation included a clinical interview , the W echs ler Adu lt

Intelligence Scale - Revised test, the Wide Range Achievement test, the Bender

Visual Motor G estalt test, the Rorsch ach Ps ychodia gnostic te st, and the

Minnes ota Multiphasic Personality Inventory - Critica l Item List tes t. Both

evaluations indica ted tha t the D efend ant wa s mildly mentally retarded . Dr.

Munson took th ese e valuatio ns into acco unt wh en m aking his de termin ation of

the Defendant’s competency after the outpatient evaluation. From this record,

we cannot conclude that the trial judge erred in denying the Defendant’s motion

for an in patien t evalua tion to d eterm ine his com peten cy to sta nd trial.

The Defendant next contends that the trial court erred in den ying his

motion for an inpatient evaluation because the results of the outpatient evaluation

did not sufficiently answer the question of wh ether his me ntal illness rendered

him substan tially incapab le of confo rming h is condu ct to the requirements of the

law. The Defendant alleges that Dr. Munson, in finding that an insanity defense

could not be supported, concluded only that the Defendant’s mental illness did

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not prevent his knowing the wrongfulness of his conduct. The Defendant focuses

on the follo wing lang uage fro m Dr. M unson ’s report to th e trial court:

After completion of the evaluation based on the standard adopted
by the Tennessee Supreme Court in Graha m vs. Sta te in 1977, and
on the criteria se t forth in T.C.A . 39-11-5 01, it is my o pinion tha t a
defense of insanity cannot be supported. This opinion is based on
the determination that although the defendant was suffering from a
mental illness a t the tim e of the crime , the m ental s tatus was not
such a s to preve nt his kno wing the wrongfu lness of h is act.

The Defendant therefore argues that Dr. Munson’s conclusions from the

outpatient evalua tion are inadeq uate with respe ct to the issue of san ity.

In Graham v. State, 547 S.W .2d 531 (Te nn. 1977), ou r supreme court

stated that a “person is not responsible for criminal conduct if at the time of such

conduct as a resu lt of menta l disease or defec t he lacks substan tial capac ity

either to appre ciate the wrongfu lness of h is condu ct or to con form his condu ct to

the requirements of the law.” Graham, 547 S.W.2d at 543. As the Defendant

points out, Dr. Munson’s outpatient evaluation revealed that the Defendant was

suffering from the mental illness of mental retardation. The Defendant argues

that while Dr. Munson was able to conclude that his mental retardation did not

render him sub stantially inca pable o f apprec iating the wrongfuln ess o f his

condu ct, the outpa tient evalua tion did no t answer the ques tion of w hethe r his

mental retardation rendered him substantially incapable of confo rming his

conduct to the requ iremen ts of the law . Accordingly, the Defendant contends that

the outpatient evaluation was deficient with regard to the issue of sanity and the

trial court erred in den ying an additiona l, inpatient evaluation to cure the

deficiency.

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 After a care ful revie w, we b elieve th e outp atient e valuatio n ade quate ly

addressed the issue of the Defendant’s mental condition at the time of the

offense in comp liance with the requ iremen ts of Graham. From th e outpa tient

evaluation, Dr. Munson concluded that the Defendant was indeed suffering from

a mental illness at the time of the alleged offens e, namely m ental retardation. Dr.

Munson went on to conclu de, how ever, that an insanity defense could not be

supported in the Defendant’s case. In so finding, Dr. Munson specifically

referenced the standard set forth in Graham and Tennessee Code Annotated

section 39-11-501, basing his conclusion on their requirements. Furthermore, at

the hearing on the Defendant’s motion for an inpatient evaluation, Dr. Munson

testified that in his pr ofess ional o pinion , the D efend ant’s men tal retar dation did

not “come into pla y at all” at the time of the alleged offense. While the language

of Dr. Munson ’s report sp ecifically me ntions on ly the Defe ndant’s a bility to

appreciate the wrongfulness of his conduct, we do not believe that this general

explanation for Dr. Munson’s conclusion that an insanity defense could not be

supported indicates that the outpatient evaluation did not comply with the

requirem ents of Graham. This is highlighted by Dr. Munson’s testimony that the

Defe ndan t’s mental retardation did not “come into play at all” at the time of the

offense . Accordingly, we conclude that the trial court did not err in denying the

Defe ndan t’s motion for an inpatient evaluation. The Defendant’s second issue

lacks m erit.

In his third issue on appeal, the Defendant argues that the trial court erred

in admitting his statement to Detective McCoig. He contends that the totality of

the circumstances indicates that his Miranda waiver and subsequent statement

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to McCoig w ere not voluntary. 4 In particular , the Defe ndant p oints to his mental

retardation, low IQ, lack of education, illiteracy, and limited intellectual

functioning. He argues that these circumstances render his statement

involuntary.

It is well-e stablis hed th at, in ord er to be valid, a w aiver must be made

“voluntarily, knowingly, and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444,

86 S.Ct. 1601, 16 L.Ed.2d 694 (1966). In determining the voluntariness of a

defen dant’s statement, courts must consider the totality of the circumstances

surrounding the statem ent. State v. Kelly, 603 S.W.2d 726, 728 (T enn. 1980 );

State v. Benton, 759 S .W .2d 42 7, 431 -32 (T enn. C rim. A pp. 19 88). O n app eal,

this Court will not disturb the trial court’s determination as to voluntariness unless

the evidence in the re cord preponderates against that determ ination. Kelly, 603

S.W.2d at 729.

In the case sub judice, the Defendant filed a pretrial motio n to su ppres s his

statement and the trial court conducted a hearing on October 30, 1995. At that

hearing, Dete ctive McC oig tes tified tha t on Fe bruar y 3, 199 5, after th e victim ’s

report of sexual abuse, he interviewe d the D efend ant at th e DH S office in

Dandridge, Ten ness ee. Mc Coig read the Defendant his Miranda rights because

the Defendant indicated th at he could not read the Miranda waiver form. The

Defendant then signed the waiver form and agreed to speak with him about the

allegations of sexual abuse. Penny Inman, a DHS counselor, witnessed th e

waiver. The Defendant made a statement, which McCoig reduced to writing and

4
The State does not contest that the Defendant was “in custody” for purposes of his interview
with Detective McCoig, but rather focuses solely on the validity of the Defendant’s Miranda waiver. As
a result, we will assume that the Defendant was “in custody” in addressing this issue.

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read back to the Defendant, giving the Defendant an opportunity to make

changes. The Defendant then signed the statement. McCoig testified that the

Defendant appeared to understand both his Miranda rights and his waiver of

those rights. On cross-examination, McCoig admitted that he was unaware that

the Defendant was mentally retarded.

Penny Inman , a DHS couns elor, testified that she witnessed the

Defend ant’s Miranda waiver. She confirmed that the Defendant appeared to

understand Detective McCoig as he explained the Miranda rights and the waiver

form.

The Defen dant testified that he went to sc hool thro ugh on ly the fourth

grade. He attended special education classes, but is currently unable to read or

to write. He stated that he recalled Detective McCoig talking to him a bout h is

rights but did not understand McCoig. In particular, he did not fully understand

his right to coun sel. On cr oss-e xamin ation, th e Def enda nt adm itted tha t McC oig

had told him that the court would appoint an attorney for him if he needed one.

The Defendant testified, however, that he believed he could not consult an

attorney at the time he g ave the statem ent becaus e there was not one available.

It was undisputed that, according to psychological evaluations performed

in 1992 and 1993, the De fenda nt was mildly mentally retarded. In July of 1992,

he was found to have a full-scale IQ of 58. In July of 1993, he was foun d to have

a full-sc ale IQ of 66. After hearing all of the evidence, the trial court denied the

Defen dant’s m otion to su ppress his statem ent.

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 From our review of the reco rd, we ca nnot co nclude that the evidence

preponderates again st the tria l court’s determ ination that the Defe ndan t’s

statement was voluntary. The trial court was in a better po sition to eva luate the

credibility of McCoig, Inman, and the Defendant. McCoig and Inman testified that

the Defendant appea red to unde rstand his Mira nda rig hts an d the w aiver, w hile

the Defendant testified to the contrary. The trial judge resolve d the c onflicts in

the testimon y agains t the Defe ndant. W e cann ot conclu de that the evidence

preponderates against this finding. Moreover, the Defendant’s mild mental

retardation, low IQ, minimal education, and illiteracy do no t, in and of themselves,

render the Defen dant’s sta temen t involuntary . See State v. Greer, 749 S.W.2d

484, 485 (Ten n. Crim. App . 1988); State v. Kelley, 683 S.W.2d 1, 6 (Tenn. Crim.

App. 1984). Rather, they constitute factors for th e trial co urt to co nside r in

evaluating the totality of the circumstances. In the present case, the

psychological evidence pertaining to the Defendant’s limited intellectual

functioning did not demonstrate that the Defendant was wholly incapable of

understanding and waiving his rights. Instead, the trial judge found from his

observation of the testim ony at th e sup press ion he aring th at the D efend ant’s

statement was vo luntary, in spite of evidence of mild mental retardation. From

this record, we cannot conclude that the trial court erred in denying the

Defendant’s motion to suppress his statement to Detective McCo ig. See State

v. Howse, 634 S.W .2d 652, 654 -55 (Tenn . Crim. App. 19 82). The D efend ant’s

third issue is without m erit.

In his fourth issue on appeal, the Defendant argues that the trial court erred

in permitting the State to pose le ading q uestions to the victim a t trial. The victim

was ten years old at the time of the Defendant’s trial. On direct examination, the

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prosecutor often pos ed gen eral, non -leading q uestions to the victim and, not

surpris ingly, received somewhat vague answers from the child victim. As a

result, the prosecutor occasionally sought to direct the victim’s attention and

answers to relevant details. The Defendant sometimes objected to these leading

questions, and the trial court sustained a number of the Defendant’s objections.

The princip al com plaint o n app eal, however, centers upon an entire line of

questioning. On direct examination of the victim, the prosecutor initially asked

the very general question of whether the Defendant had done “something bad”

to her. T he victim respon ded tha t the Defe ndant h ad touc hed he r “private pa rt”

with his hands and had her touch his “private pa rt.” The following colloquy then

took place:

Q. What did he ask you to do?
A. Take off my clothes.
Q. Alright. Did you do th at?
A. Yes.
Q. What else did he ask you to do?
A. I can’t remem ber.
Q. Did you ever touch him with your mouth?
A. Yes.

At this point, the Defendant objected to the leading nature of the question. The

trial court sustained the objection, and a bench conference was held at which the

prosecutor proposed to the trial court the line of questioning he wished to pursue.

The Defe ndan t main tained his objection to the prosecutor’s questions. After the

prosecutor had narrowed the time frame to “after Christmas, after school started

and before you told anybody, before you told Penny Inman [the DHS couns elor],”

the trial court permitted the following line of questioning:

Q. T[.R.], did you touch him with your mouth somewhere?
A. Yes.
Q. Wh ere did you touch him? Tell the Jury about that, will you?
THE COUR T: Just tell them what happened.

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 A. W ell, he tried , he tricked me, he said that h e was g oing to
take a nap when Mama was gone to Georgia and he took m e into
the bedroom and he was showing me these dirty b ooks a nd stuff.
He told me to do what they were doing.
Q. And tell the Jury the rest of it. What was that they were
doing?
A. Licking h is private pa rt.
Q. Did you do that?
A. Yes.

On appeal, the Defendant argues that the trial court erred in permitting this line

of questioning. He contends the questions were impermissibly leading in that the

victim had not mentioned any instances of oral penetration when answering the

prose cutor’s initial general question about what had occurred between her and

the De fendan t.

Of course, rulings on the admissibility of evidence and the propriety and

form of the examination of witnesses are entrusted to the sound discretion of the

trial court. See, e.g., State v. Hutchison, 898 S.W .2d 161, 172 (Tenn. 199 4),

cert. denied, 116 S.Ct. 137, 133 L.Ed.2d 84 (199 5); State v. Harris , 839 S.W.2d

54, 72 (Te nn. 199 2), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746

(1993). Such rulings will not be reversed on appeal absent an abuse of that

discretion. See State v. Caughron, 855 S.W .2d 526, 5 41 (Te nn. 199 3), cert.

denied, 510 U.S. 579, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993). Furthermore, trial

courts have been given broad discretion in permitting leading questions in sexual

abus e cas es wh en the witnes s is a ch ild victim. Swafford v. State, 529 S.W.2d

748, 749 (T enn. Crim. A pp. 1975).

In the case at bar, we conclude that the trial judge did not abuse his

discretion in allowing the prosecutor to direct the child victim’s testimony to the

incident involving oral penetration. As the passages quoted above demonstrate,

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although some of the que stions po sed to the victim were leading, n one of the

questions w ere unduly suggestive of a desired response. From this record, we

simply cannot conclude that the trial court erred in permitting the State’s

question s to the ch ild victim. Th e fourth iss ue is witho ut merit.

In his fifth issue on appeal, the Defendant argues that the trial court erred

by failing to require the State to elect the proof relied upon to sustain the

conviction. The Defendant contends that the State p resen ted pro of of m ultiple

acts of sexual abuse committed by the Defendant against the victim. The

indictment charg ed the Defe ndan t with on e cou nt of rap e of a c hild occu rring in

January of 1995 , but did no t specify an y further de tails of the offense. The

Defendant complains that these circumstances posed the danger that the jury

might have rea ched a “patchw ork” verdic t, with some jurors convicting him based

on one incident while other jurors convicted based on a different incident. Thus,

the Defen dant ch allenges the State ’s failure to ele ct the partic ular offense for

which it sough t a convictio n and a rgues th at the trial cou rt erred by fa iling to

require th e State to elect.

W e agree with the Defe ndan t that ou r supre me c ourt’s h olding in Burlison

v. State, 501 S.W .2d 801 (Te nn. 1973), requires the State to identify th e spe cific

offenses for which it se eks con victions. Burlison, 501 S.W.2d at 804. Moreover,

it is the duty of the trial court to require election, regardless of a request from the

defend ant. Id. Our suprem e court explained the reasoning behind the rule as

follows:

First, to enable the defen dant to prepare for and make his defense
to the sp ecific charg e; sec ond, to protec t him from double jeopardy
by individualization of the issue, and third, so that the jury’s verdict

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 may not be a m atter of choice be tween offens es, some jurors
convicting on on e offense an d others, anoth er.

Id. at 803. Of these three rationales, the third addresses the most serious

concern, namely the constitutional right to a unanimous jury verdict before a

criminal conviction is impos ed. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.

1993).

In the case sub judice, we believe that the State did, in effect, elect the

proof upon which it sought conviction even though the trial court did not explicitly

require an election. As the Defen dant su ggests , the proo f at trial did relate to

multip le instances of sexual abuse. In response to the State’s initial open-ended

questioning, the victim te stified on direct examination in general terms that the

Defendant touched her “pr ivate pa rt” with h is han ds an d had her tou ch his

“private part.” The State did not, howeve r, attemp t to elicit further d etails to

narrow the time frame in which these acts occurred. Instead, the prosecutor

directed the victim’s atten tion to any acts which had occurred after school began

following the 1994-1995 Christmas break but before the victim spoke with DHS

counselor Penny Inman about the abuse. This period corresp onded roughly w ith

the period set forth in the indictment, January of 1995. The victim then related

the incident in w hich the D efenda nt show ed her “d irty books ” and told h er to do

what wa s portraye d in them , name ly “[l]icking his priva te part.”

On cross -exam ination , the victim admitted that she had told an examining

doctor that the Defendant had penetrated her vagina with both h is finge rs and his

penis. On red irect exam ination, howe ver, the State s ough t clarifica tion of th is

testimony. The victim then testified that the Defendant had attemp ted to put his

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fingers and penis in h er vagina, bu t she had “pretty much” stopped him from

doing so.

The remain der of the State’s pro of conce rning the eleme nts of the offense

came from Detective Bud McCoig. McCoig testified that he took a statement

from the Defendant on February 3, 1995. McCoig then read a redacted version

of the statement into evidence. In the statement, the Defendant related an

incident in which he “rubbed [his] penis on her vagina” and an incident in which

the victim “licked” his penis, putting “her mouth over the side of [his] penis.” The

time frame given by the Defendant for these in cidents w as “abo ut a mo nth ago .”

As part of his proof, the Defendant offered the expert medical testimony of

Dr. John Ellis. Dr. Ellis testified that he performed a physical examination of the

victim in resp onse to allegations of sexual abuse. Dr. Ellis’s examination

revealed that the victim’s hymen was intact and that there was no physical

evidence of penetration of the victim’s vagina. The S tate did not ch alleng e this

testimony, but instead chose to question Dr. Ellis about whether his examination

could have revealed evidence of oral penetration or mere touching of the exterior

of the victim’s vagina. Dr. Ellis stated that his examination could not reveal such

evidence but rather was limited to evidence of vaginal penetration.

At the close of proof, th e Def enda nt did not request that the State elect the

proof relied upo n to susta in the con viction, nor d id the trial cou rt sua sponte

require the State to elect. Y et the tra nscrip t of the p rosec utor’s closing argument

revea ls that the State did, in effect, elect to proceed upon the proof of oral

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penetration. In his initial closing argument, the prosecutor summarized the proof

as follows:

The proof has shown you that the Department of Human
Services got some information that this child had, somebody had
done something to this child and they went to talk to her and she
told them like she told you here today that the defendant had been
doing some ba d things to her. And in the wo rds of a little child you
heard testimony that he tou ched her priv ate pa rts there in the home
when her ma ma wa sn’t there a nd nob ody was around . He had her
touch his private pa rts with her m outh an d lick his priva te parts w ith
her mouth. And that happened in the home when nobody was
around as she told.

The prosecutor went on to argue that the Defendant’s own statement confirmed

the testimony of the victim . In particular, the prosecutor pointed out that “[i]n h is

own words he [the Defendant] told you what he did and how he would pull back

and how he had her put her mouth over the side of his penis and lick him and he

touche d her.”

The Defendant’s closing argument focused on the prior inconsistent

statement given by the v ictim. D efens e cou nsel p ointed out tha t the victim had

initially told her examining doctor that the Defendant had vaginally penetrated her

with both his fingers and his penis. Defense couns el then pro ceede d to

emphasize that the expert medical proof indicated that the victim’s hymen was

intact and that she had not been penetrated vaginally. Accordingly, defense

counsel argued that the jury could not trus t the victim ’s testimony “about the other

type of pe netration . . . what the Judge I believe will call oral penetration, in her

mouth , his penis.”

In his rebuttal argument, the prosecutor attempted to respond to the

Defe ndan t’s closing argument by emphasizing that the victim was n ine yea rs old

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at the time of the offense and did not understand the technical significance of

penetration. The prosecutor con tende d that b ecau se of h er you th, the vic tim

might term even a me re touch on the ex terior of her v agina a “penetra tion.” In

concluding his argument that the jury should disregard the victim’s prior

inconsistent statement, the prosecutor stated that “[m]ay be he d idn’t pene trate

her, not in th e vagin a. But s he told you sh e had to lick his penis or his p rivate

part. He d id pene trate her th ere and he’s com mitted R ape of a Child.”

Of even greater significance are the prosecutor’s final remarks to the jury.

I subm it to you the truth is wha t the little g irl said, th at it
happened, what Bud McCoig heard, what Penny Inman heard and
what came out of the defendant’s own mouth when he was at the
Department of Human Services. And that was that she put her
mouth over the s ide of his p enis just like he said in his statement.
And those things happened right he re in Je fferson Coun ty and h e’s
guilty of ra ping th at little girl.

The jury was instructed on the indicted offense of rape of a child and the lesser

included offense of aggravated sexual battery. After deliberating, the jury found

the De fendan t guilty of rape of a child as charge d in the ind ictmen t.

From our reading of the record, we believe that the prosecutor’s closing

argument effectively served as an election of the pro of upon wh ich the S tate

wished to proceed. The proof presented by the State at trial related to mu ltiple

instances of sexual abuse, apparently including touching of the victim’s vagina

and an incident in which the victim “licked” the Defendant’s penis. It is clear from

the prosecutor’s attempts to direct the victim’s attention to the latter incid ent,

however, that the State was primarily interested in eliciting proof of the alleged

oral penetra tion. Furthe rmore , the prose cutor’s clo sing argu ment fo cused the

jury’s attention on the alleged incident of oral penetration as the act constituting

-25-
the criminal offense o f rape of a c hild. In fact, the prosecutor all but admitted that

there was insufficient evidence of vaginal penetration. We believe that these

circumstances obviated the danger of a “patchwork” ve rdict, the principal conce rn

of the doctrin e of electio n. Accord ingly, we conc lude th at the p rosec utor did in

fact effectively elect the proof upon which the State wished to proceed, that of

oral penetration, du ring his closing argu ment to the jury.

Moreover, even if we were to conclude that the State had failed to elect,

we believe the error to have been harmless beyond a reasonable doubt under the

circumstances of the case sub judice. The victim testified only in general terms

that the Defe ndant h ad touc hed he r vagina. M ore significantly, however, she

testified in greater d etail to one incident, o ccurring betwee n the 1994-1995

Christmas school break and her Fe bruary 3, 1995, interview with DHS counselor

Penny Inman, in which she “licked” the Defendant’s penis. The prosecutor

emphasized this inciden t during bo th the pre sentation of proof and closing

argument. Because the jury returned a verdict of rape of a child rather than

aggravated sexual battery, we conclude that the jury must ha ve considered the

evidence of the incident involving oral pene tration in convicting the Defe ndant. 5

See State v. Shelton, 851 S.W.2d 134, 138-39 (Ten n. 199 3). Th e Def enda nt’s

fifth issue therefore provides no basis for reversal of his conviction.

For the reas ons se t forth in the discussion above, we conclude that the

Defe ndan t’s issues on appeal lack merit. We therefore affirm the judgment of the

trial court.

5
As we stated above, the jury was instructed on both rape of a child and aggravated sexual
battery. Of course, rape of a child requires proof of sexual penetration whereas aggravated sexual
battery requ ires proo f of sexu al contac t. See Tenn. Code Ann. §§ 39-13-522, 39-13-504.

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 ____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
GARY R. WADE, JUDGE

___________________________________
JERRY L. SMITH, JUDGE

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