                                                                                           01/24/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 2, 2018

               STATE OF TENNESSEE v. NEHEMIAH RIMMER

                  Appeal from the Criminal Court for Shelby County
                  No. 15-05452      John Wheeler Campbell, Judge
                       ___________________________________

                           No. W2018-00496-CCA-R3-CD
                       ___________________________________

The Appellant, Nehemiah Rimmer, was convicted in the Shelby County Criminal Court
of rape of a child, a Class A felony, and received a twenty-year sentence to be served at
one hundred percent. On appeal, he contends that the trial court erred by denying his
motion to suppress his confession, that the trial court erred by allowing the victim’s and
her mother’s out-of-court statements to be read to the jury, and that the evidence is
insufficient to support the conviction. Based upon the record and the parties’ briefs, we
discern no reversible error and affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Eric Mogy (on appeal) and Terita Hewlett (at trial), Memphis, Tennessee, for the
appellant, Nehemiah Rimmer.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lessie Rainey and
Dru Carpenter, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

        At trial, Officer Rondey Martin of the Memphis Police Department (MPD)
testified that on the night of April 10, 2006, he responded to a “criminal assault” call at a
home on Tagen Drive. When he arrived, he spoke with the victim’s mother. He then
detained the Appellant, who also was present. Officer Martin later arrested the Appellant
and began asking him for general information such as his name, date of birth, and
address. Officer Martin stated, “Well, after I had just asked him just those questions his
response was, just from no interjection from me, that he did it and he needed some help.”
Officer Martin’s partner transported the Appellant to the police department, and Officer
Martin escorted the victim and her mother to the Memphis Sexual Assault Resource
Center (MSARC). On cross-examination, Officer Martin testified that he could not
remember if anyone other than the victim, her mother, and the Appellant was present at
the home.

        Eddie Scallions testified that in October 2007, he was an investigator for the
district attorney’s office and collected a cheek swab from the Appellant. The swab was
transported to the Tennessee Bureau of Investigation (TBI).

       Pam Preston testified as an expert in sexual assault examinations that she was a
retired registered nurse and used to be a sexual assault nurse examiner at the MSARC.
She examined the seven-year-old victim at 12:15 a.m. on April 11, 2006, but first spoke
with the victim’s mother privately. Preston read to the jury the following statement made
by the victim’s mother: “I was told that my nephew, . . . Nehemiah Rimmer, 19 year old
black male, forced [the victim] to suck on his penis and he fondled her. Initially I was
told by my mother and then my child who told me that.” After Preston spoke with the
victim’s mother, Preston talked privately with the victim. Preston read to the jury the
following statement made by the victim: “Nehemiah he told me to suck his thing and he
did it for a couple of minutes. And my brother woke and he heard . . . Nehemiah’s
footsteps. He touched me on my butt and my private part . . . on top of my clothes.” The
victim pointed to her genital area as her “private part.” She denied vaginal or anal
penetration.

       Preston testified that she examined the victim’s entire body and her vaginal area
and collected oral, vulvar, and anal swabs. Preston also collected the victim’s clothing,
including her underwear. Preston said that she did not observe any injuries to the victim,
which was not unusual even for a child who had been sexually assaulted. She collected a
urine sample in order to test the victim for chlamydia and gonorrhea, and the test was
positive for chlamydia. Preston explained that chlamydia was contracted by sexual
penetration of the mouth, vaginal area, or anal area. The victim’s urine test did not reveal
where the victim’s infection was located, but Preston acknowledged that the infection
could have been in the victim’s mouth or vagina. Preston prescribed an antibiotic to treat
the victim’s infection.

      Lieutenant Evertina Halfacre of the MPD testified that on April 11, 2006, she was
informed “the victim had been raped” and interviewed the Appellant at the police
department. Prior to the interview, Lieutenant Halfacre advised the Appellant of his
Miranda rights. He appeared to understand his rights and signed an advice of rights form.
                                           -2-
The Appellant agreed to speak with Lieutenant Halfacre and began giving his statement
at 12:15 a.m. In the statement, the Appellant denied penetrating the victim’s vagina with
his penis or fingers. However, he admitted to putting his penis inside her mouth. He said
the incident occurred at 11:00 p.m. on Sunday, April 9, in the back bedroom of his
grandmother’s house on Tagen Drive and that a sleeping four-year-old child also was in
the room. Lieutenant Halfacre asked the Appellant, “Whatever made you want [the
victim] to suck your penis?” The Appellant answered, “Something just said do it.” He
explained to Lieutenant Halfacre that he asked the victim “if she ever did it before” and
that the victim said, “[Y]es to someone at school.” The Appellant told the victim to show
him how she “did it,” so the victim unzipped his pants, pulled out his penis, and “started
sucking.” The Appellant denied fondling the victim’s buttocks. He told Lieutenant
Halfacre that he did not take off the victim’s clothes and that he did not ejaculate.

       On cross-examination, Lieutenant Halfacre testified that at the time of the
Appellant’s interview, he was a student taking GED classes. She said that he had been at
the police department for “just minutes” when she made contact with him and escorted
him to the interview room. She told the Appellant that he was under arrest and that he
could give a statement if he wanted to do so. She denied telling him that he could go
home if he gave a statement.

       Lawrence James, a special agent forensic scientist for the TBI, testified as an
expert in forensic DNA analysis that he tested the victim’s swabs and underwear. He did
not find semen or sperm on the swabs but found a semen stain on the underwear. He
compared the DNA profile from the sperm in the semen to the DNA profile in the
Appellant’s saliva sample, and the profiles matched.

       At the conclusion of Agent James’s testimony, the State rested its case. The
Appellant did not present any proof, and the jury convicted him as charged of rape of a
child. After a sentencing hearing, the trial court sentenced him to twenty years to be
served at one hundred percent.

                                      II. Analysis

                                 A. Motion to Suppress

        The Appellant claims that the trial court erred by failing to grant his motion to
suppress his confession to Lieutenant Halfacre. The State argues that the trial court did
not err. We agree with the State.

      Before trial, the Appellant filed a motion to suppress his statement to Lieutenant
Halfacre on the basis that he did not give the statement voluntarily. During a hearing on
                                          -3-
the motion, Lieutenant Halfacre testified that prior to the Appellant’s interview, she read
his rights to him from an advice of rights form. The Appellant appeared to understand
his rights, signed the form, and agreed to give a statement. He did not appear to be under
the influence of an intoxicant and did not exhibit any mental issues that concerned her.
Had he done so, she would not have taken his statement. She said that she did not force
him or coerce him into giving his statement and that she did not promise him anything in
exchange for his statement.

        On cross-examination, Lieutenant Halfacre testified that officers arrested the
Appellant at his home and brought him to the police department. She began interviewing
him at 12:15 a.m. She said that she did not know when he arrived at the police
department but that he had been in the interview room “no more than an hour” when he
gave his statement. Before the interview, Lieutenant Halfacre advised the Appellant that
he was under arrest and read his Miranda rights to him. She did not tell him that he could
go home if he gave a statement. Lieutenant Halfacre asked the Appellant to sign the
advice of rights form, but he printed his name on the form instead. Lieutenant Halfacre
stated, “I had to explain to him what a signature is and I needed a signature, not a
[printing] of his name.” The Appellant was not handcuffed during his interview but was
not free to leave. A transcriptionist also was in the interview room and transcribed the
Appellant’s answers. After the Appellant gave his statement, Lieutenant Halfacre
handcuffed him.

       The State introduced the Appellant’s advice of rights form and statement into
evidence. The advice of rights form showed that the Appellant printed his name on the
signature line for waiving his rights but signed his name under his printed name.

       The Appellant introduced two letters from Midtown Mental Health Center into
evidence. In the first letter, dated May 25, 2006, a clinical psychologist stated that he
evaluated the Appellant on May 24, 2006, and that the Appellant “understood the nature
of the legal process, he understood the charge and the potential consequences of the
charge, and he seemed capable of assisting counsel and participating in his defense.” The
psychologist said he would render an opinion as to diminished capacity on a later date.
In the second letter, dated August 21, 2006, the psychologist stated that the Appellant’s
evaluation was complete and that the Appellant had learning disabilities but was of
average intelligence. The psychologist concluded that the Appellant was depressed but
that no evidence supported a diminished capacity defense.

       At the conclusion of the hearing, defense counsel argued that the trial court should
suppress the Appellant’s statement because he had a learning disability and “doesn’t even
know how to sign [his] name.” The trial court stated that that defense counsel’s argument
about the signature was a “mischaracterization” because the evidence showed that the
                                           -4-
Appellant mistakenly printed his name on the form but then signed the form as
Lieutenant Halfacre directed. The trial court noted that although the psychologist said the
Appellant had a learning disability, the psychologist did not reveal “what his learning
disability is” and found him to be of average intelligence. The trial court concluded that
nothing indicated the Appellant’s learning disability made him incapable of waiving his
rights. The court accredited Lieutenant Halfacre’s testimony that the Appellant
understood what was going on when he gave his statement and denied the Appellant’s
motion to suppress.

        In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of
law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the prevailing party is “entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. We note
that “in evaluating the correctness of a trial court’s ruling on a pretrial motion to
suppress, appellate courts may consider the proof adduced both at the suppression
hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       Generally, the Fifth Amendment to the United States Constitution and article I,
section 9 of the Tennessee Constitution provide a privilege against self-incrimination to
those accused of criminal activity, making an inquiry into the voluntariness of a
confession necessary. See State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998). As our
supreme court has explained,

                      In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the
              United States Supreme Court held that “the prosecution may
              not use statements, whether exculpatory or inculpatory,
              stemming from custodial interrogation of the defendant unless
              it demonstrates the use of procedural safeguards effective to
              secure the privilege against self-incrimination.”         The
              procedural safeguards must include warnings prior to any
              custodial questioning that an accused has the right to remain
              silent, that any statement he makes may be used against him,
              and that he has the right to an attorney.



                                            -5-
State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). Miranda warnings are necessary
only in situations involving custodial interrogation or its functional equivalent. See, e.g.,
Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); State v. Dailey, 273 S.W.3d 94, 102-
03 (Tenn. 2009).

        Our courts look to the totality of the circumstances surrounding the interrogation
to determine if the criteria for a proper waiver are met. See State v. Van Tran, 864
S.W.2d 465, 472-73 (Tenn. 1993). In doing so, we consider the following factors
regarding the voluntariness of a confession: (1) the appellant’s age, education or
intelligence level, and previous experience with the police; (2) the repeated and
prolonged nature of the interrogation; (3) the length of detention prior to the confession;
(4) the lack of any advice as to constitutional rights; (5) the unnecessary delay in bringing
the appellant before the magistrate prior to the confession; (6) the appellant’s intoxication
or ill health at the time the confession was given; (7) deprivation of food, sleep, or
medical attention; (8) any physical abuse; and (9) threats of abuse. See State v.
Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996). “‘[N]o single factor, such as IQ, is
necessarily determinative in deciding whether a person was capable of knowingly and
intelligently waiving, and [did] so waive, the constitutional rights embraced in the
Miranda rubric.’” Blackstock, 19 S.W.3d at 208 (quoting Fairchild v. Lockhart, 744 F.
Supp. 1429, 1453 (E.D. Ark. 1989)). Furthermore, this court has stated,

              Coercive police activity is a necessary prerequisite in order to
              find a confession involuntary. The crucial question is
              whether the behavior of the state’s officials was such as to
              overbear [Appellant’s] will to resist and bring about
              confessions not freely self-determined. The question must be
              answered with complete disregard of whether or not the
              accused was truthful in the statement.

State v. Phillips, 30 S.W.3d 372, 377 (Tenn. Crim. App. 2000) (quotation marks and
citations omitted).

       Here, the Appellant was nineteen years old when he gave his statement to
Lieutenant Halfacre. Although the Appellant had some type of learning disability, he
was taking GED classes at the time of his interview and was of average intelligence.
Lieutenant Halfacre testified that he did not appear to be under the influence of an
intoxicant and that he appeared to understand what was happening. The officer advised
him of his rights, and he signed a waiver of rights form. The Appellant gave his
statement soon after his arrest and arrival at the police department, and nothing indicates
that he complained of being deprived of sleep or food. The Appellant was not physically
abused, and Lieutenant Halfacre denied telling him that he could go home if he gave a
                                            -6-
statement. In sum, the Huddleston factors do not weigh in favor of finding that the
Appellant’s statement was involuntary.

                                        B. Hearsay

       The Appellant contends that the trial court erred by allowing Pam Preston to read
to the jury the victim’s and the victim’s mother’s out-of-court statements. The State
argues that the trial court did not err. We conclude that the trial court erred by allowing
Preston to read the victim’s mother’s statement but that the error was harmless.

        Before trial, the Appellant filed a motion to prohibit the State from presenting
“testimonial evidence of the victim.” In the motion, the Appellant indicated that the
victim would not testify and argued that any statements made by her would be hearsay
and violate his right of confrontation. On the first day of trial, the trial court asked the
State if the victim was going to testify, and the State advised the court that it had tried to
serve the victim with a subpoena but that it had been unable to locate her or her mother.
Neither the victim nor her mother testified at trial.

       During Pam Preston’s direct examination, she testified that she interviewed the
victim’s mother and then the victim. Preston stated that the purpose for her interviewing
a child’s parent was so that she could “go over the child’s medical history with them.
And then I would go over a history of the event that brought them in. Just like you would
do if you went to a regular office for a complaint. This is a medical complaint.” The
State asked why she would interview a victim prior to the victim’s examination, and
Preston answered:

                      So I’m taking a history to find out what they came to
              see me for so that I know what they may need. You know,
              what kind of counseling might they need. Where might they
              have injuries. You know, what kind of long-term problems
              might they encounter from this problem. Do they need to go
              be seen at the hospital immediately. You know, all those kind
              of things. What kind of diagnostic test might I need to do
              based on what I’m being told. And in the case of something
              like this I also need to know where I most likely [will] find
              evidence.

       Defense counsel objected to Preston’s being allowed to read the victim’s and the
victim’s mother’s statements from Preston’s written report to the jury because the
statements were hearsay and “double hearsay,” respectively. In a jury-out hearing,
counsel also asserted that because Preston’s information was used by the police during
                                            -7-
their investigation, the statements to Preston were testimonial. The State argued that the
statements were admissible pursuant to Tennessee Rule of Evidence 803(4), the hearsay
exception for statements made for purposes of medical diagnosis and treatment. The trial
court noted that “just because it is eventually used for investigative purposes doesn’t
mean . . . that it has to be testimonial” and agreed with the State that the statements were
admissible under Rule 803(4).

        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). 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. Rule 803(4), Tennessee Rules of Evidence, provides the
exception to the hearsay rule for “[statements] made for purposes of medical diagnosis
and treatment describing medical history; past or present symptoms, pain, or sensations;
or the inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.” The Advisory Commission Comments
for Rule 803(4) clarify that such statements “must be for both diagnosis and treatment.”

       Our supreme court has explained that “if physicians or other medical personnel
rely upon the statement in diagnosing and treating the patient, then the statement should
be sufficiently trustworthy to be admissible in a court of law.” State v. McLeod, 937
S.W.2d 867, 870 (Tenn. 1996). For both adults and children, courts must consider the
circumstances surrounding the statement in order to determine if the statement was made
for purposes of medical diagnosis and treatment. This is particularly important for a
child’s statement “because the child’s ability to articulate the reason for the statement
may be affected by age or developmental maturity.” State v. Stinnett, 958 S.W.2d 329,
332 (Tenn. 1997).

       A trial court’s factual findings and credibility determinations regarding hearsay are
binding upon this court unless the evidence preponderates against them. Kendrick v.
State, 454 S.W.3d 450, 479 (Tenn. 2015). However, the determination of whether the
statement in question is hearsay and whether a hearsay exception applies are questions of
law that we review de novo. Id. We agree that the victim’s and her mother’s statements
to Preston were hearsay.

        In Tennessee, criminal defendants are entitled to confront witnesses against them
under the Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution. The exercise of the right to confront “is controlled by the
trial judge,” and “the trial court’s decision will be upheld absent an abuse of discretion.”
State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006) (internal quotation marks and citation
omitted).
                                           -8-
       “Currently, Crawford v. Washington, 541 U.S. 36 (2004), and its progeny are the
controlling authority for determining whether the admission of hearsay violates a
defendant’s rights under the federal confrontation clause, and this Court has applied
Crawford to challenges under the Tennessee Constitution, as well.” State v. Parker, 350
S.W.3d 883, 898 (Tenn. 2011). In Crawford, the United States Supreme Court drew a
distinction between the admission of testimonial and nontestimonial hearsay, explaining
that the admission of nontestimonial hearsay is exempt from Confrontation Clause
scrutiny but that the “Sixth Amendment demands . . . unavailability and a prior
opportunity for cross-examination” for the admission of testimonial hearsay. 541 U.S. at
68. However, the Court did not comprehensively define “‘testimonial.’” Id.

      Subsequently, in Davis v. Washington, 547 U.S. 813, 822 (2006), the Court
determined that courts should examine the statement’s “primary purpose.” Thereafter,
the Court provided the following non-exhaustive list of testimonial statements.

              [1] ex parte in-court testimony or its functional equivalent-
              that is, material such as affidavits, custodial examinations,
              prior testimony that the defendant was unable to cross-
              examine, or similar pretrial statements that declarants would
              reasonably expect to be used prosecutorially; [2] extrajudicial
              statements . . . contained in formalized testimonial materials,
              such as affidavits, depositions, prior testimony, or
              confessions; [and 3] statements that were made under
              circumstances which would lead an objective witness
              reasonably to believe that the statement would be available
              for use at a later trial.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (internal quotation marks and
citation omitted). Our own supreme court has agreed that “‘an out-of-court statement is
testimonial . . . if its primary purpose is evidentiary and it is either a targeted accusation
or sufficiently formal in character.’” State v. Dotson, 450 S.W.3d 1, 69 (Tenn. 2014)
(quoting Young v. United States, 63 A.63 1033, 1043-44 (D.C. 2013)).

        The Appellant first claims that the victim’s hearsay statement to Preston violated
his right of confrontation because the victim did not testify. He contends that in finding
the victim’s statement to be admissible under the hearsay exception in Rule 803(4), the
trial court also found the victim’s statement to be nontestimonial. He asserts that the
victim’s statement was testimonial because police officers referred and escorted her to the
MSARC and because nurse Preston was “there as a quasi-governmental agent to collect

                                            -9-
statements and physical evidence to assist in the prosecution of the offender.” We
disagree with the Appellant.

       In State v. Cannon, 254 S.W.3d 287 (Tenn. 2008), the defendant argued that the
admission of the rape victim’s statements into evidence through emergency room (ER)
medical personnel and a nurse violated his right to confrontation because the victim,
while available, did not testify at trial. Our supreme court held that “statements in
medical records given for the primary purpose of medical diagnosis and treatment are
nontestimonial” and, therefore, governed by the rules of evidence. Cannon, 254 S.W.3d
at 303. However, statements made primarily for the purpose of “‘establish[ing] or
prov[ing] past events potentially relevant to later criminal prosecution’” are testimonial
and, therefore, generally inadmissible. Id. at 305 (quoting Davis, 547 U.S. at 822). The
court concluded that the victim’s statements to the nurse, made after the victim spoke
with and sought medical diagnosis and treatment from ER personnel, were testimonial
and inadmissible because the defendant had no prior opportunity to cross-examine the
victim. Id. at 305-06. Therefore, the court did not need to address the issue of whether
the nurse’s testimony was admissible under Tennessee Rule of Evidence 803(4).

       Unlike the victim in Cannon, the victim in this case spoke only with Preston about
the abuse. Preston used the information given by the victim to examine her, test her for
sexually transmitted diseases, and treat her for chlamydia. The victim was escorted to the
MSARC by a police officer late at night and was old enough to understand she was in a
medical setting and needed to be truthful. See Stinnett, 958 S.W.2d at 332 (stating that
six-year-old victim was old enough to understand that she was being examined by a
physician to determine whether there was injury or trauma and she needed treatment).
She used child-like terms to describe the abuse, and nothing indicates that she was
motivated to lie to Preston. See id. Therefore, the victim’s statement to Preston was
nontestimonial and properly admitted under Tennessee Rule of Evidence 803(4).

       We note that the Appellant contends for the first time and without any citation to
authorities that the victim’s statement was particularly important because it identified the
person who assaulted her. To the extent the Appellant is arguing that the trial court erred
by allowing the victim’s statement to identify him as her perpetrator, we conclude that
the issue has been waived. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.
App. 1996) (stating that “[o]rdinarily, issues raised for the first time on appeal are
waived”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.”).




                                           - 10 -
       In a related argument, the Appellant claims that the victim’s mother’s statement to
Preston was “double hearsay” and inadmissible under Rule 803(4).1 He contends that
while the victim’s mother’s statement to Preston may have been for purposes of medical
diagnosis and treatment of the victim, the victim’s statement to her mother was not.

        We agree with the Appellant that the victim’s mother’s statement contained two
layers of hearsay: first, the victim’s statement to her mother and second, the victim’s
mother’s statement to Preston. When a hearsay statement contains double hearsay, each
part must qualify for an exception to the hearsay rule in order to be admissible. Tenn. R.
Evid. 805. Here, the trial court found that the victim’s mother’s statement to Preston
“was made in furtherance of diagnosis and treatment.” The Appellant does not contest
that ruling. Instead, he contests the admissibility of the victim’s statement to her mother,
which the trial court did not specifically address. The State argues that the victim’s
statement to her mother also was admissible under the hearsay exception for purposes of
medical diagnosis and treatment.

        In the present case, we know nothing about the circumstances in which the victim
or her grandmother made statements to the victim’s mother because none of them
testified at trial. Therefore, the record does not establish that the victim made a statement
to her mother for purposes of medical diagnosis and treatment. Moreover, given that the
victim herself was able to make a trustworthy statement to Preston and that the victim’s
mother’s statement did not add any additional information that would have been
necessary for Preston to diagnose and treat the victim, we believe that the trial court erred
by allowing Preston to read the victim’s mother’s statement to the jury.

       The admission of inadmissible hearsay is a non-constitutional error. Accordingly,
the defendant has the burden of demonstrating that the error “more probably than not
affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
P. 36(b); State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008). “The greater the
amount of evidence of guilt, the heavier the burden on the defendant to demonstrate that a
non-constitutional error involving a substantial right more probably than not affected the
outcome of the trial.” Rodriguez, 254 S.W.3d at 372 (citing State v. Toliver, 117 S.W.3d
216, 231 (Tenn. 2003); State v. Francis, 669 S.W.2d 85, 91 (Tenn. 1984)). The evidence
shows that the Appellant volunteered to Officer Martin “that he did it and he needed
some help.” The Appellant later gave a detailed statement in which he said he had the
victim fellate him, and his semen was on the victim’s underwear. In sum, he has failed to
demonstrate that the trial court’s error affected the outcome of his trial.


        1
          The Appellant does not raise any issue regarding the victim’s mother’s statement violating his
right of confrontation.
                                                - 11 -
                             C. Sufficiency of the Evidence

        The Appellant contends that the evidence is insufficient to support the conviction
because no physical evidence linked him to the offense and because the State did not
have any eyewitnesses, particularly the victim, testify. The State argues that the evidence
is sufficient. We agree with the State.

       When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

       A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

      Relevant to this case, rape of a child is the unlawful sexual penetration of a victim
by a defendant if the victim is more than three years old but less than thirteen years old.
Tenn. Code Ann. § 39-13-522(a). “Sexual penetration” includes fellatio. Tenn. Code.
Ann. § 39-13-501(7).



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       Taken in the light most favorable to the State, the proof shows that on the night of
April 10, 2006, the police responded to a sexual assault call on Tagen Drive. Officer
Martin spoke with the victim’s mother and the Appellant, and the Appellant volunteered
to Officer Martin that he “did it” and “needed some help.” The police arrested the
Appellant and transported him to the police department, and he gave a statement to
Lieutenant Halfacre in which he told her that he had the seven-year-old victim suck his
penis at their grandmother’s home on Tagen Drive. Meanwhile, the victim told nurse
Preston that the Appellant put his penis in her mouth for a couple of minutes. Physical
evidence in the form of the Appellant’s semen was on the victim’s underwear, linking
him to the crime. Accordingly, we conclude that the evidence is sufficient to support the
conviction.

                                     III. Conclusion

       Based upon the record and the parties’ briefs, we find no reversible error and
affirm the judgment of the trial court.

                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE




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