       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                               August 18, 2015 Session

        STATE OF TENNESSEE v. BLAKE EDWARD CHILDRESS

               Appeal from the Criminal Court for Hamblen County
                   No. 12CR257     John F. Dugger, Jr., Judge




             No. E2014-02142-CCA-R3-CD – Filed November 25, 2015
                       _____________________________

Defendant, Blake Edward Childress, was convicted by a Hamblen County Jury of incest.
He was sentenced to six years in incarceration. On appeal, he argues that (1) the trial
court improperly denied a motion to suppress; (2) the trial court improperly allowed
introduction of evidence of prior bad acts; and (3) the evidence was insufficient to
support the conviction. After a review, we determine Defendant properly invoked his
right to counsel and, thereafter, was improperly subjected to continued discussion by a
detective that produced an incriminating response. Consequently, the subsequent
confession by Defendant was obtained in violation of his Fifth Amendment right to
counsel, and the trial court should have granted the motion to suppress. We determine
the subsequent introduction of the confession at trial was not harmless error, and the
judgment of the trial court is reversed and remanded for new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

W. Joe Bell, Knoxville, Tennessee, for the appellant, Blake Edward Childress.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Senior Counsel; and
Dan Armstrong, District Attorney General, for the respondent, State of Tennessee.


                                      OPINION

       This is Defendant‟s direct appeal from his conviction in Hamblen County for the
crime of incest.
                                     Factual and Procedural History

       A police report was filed on January 31, 2011, in Morristown, Tennessee. The
report alleged that Defendant committed incest against his half-sister1, M.B.2, during an
incident that occurred around Thanksgiving of 2011 when the victim was sixteen and
Defendant was twenty-two. Defendant was indicted by the Hamblen County Grand Jury
for incest.

                                             Motion to Suppress

       Prior to trial, Defendant filed a motion to suppress. At the hearing, Detective
Christian Newman of the Morristown Police Department testified that she was
responsible for investigating a complaint made by Defendant‟s half-sister to a counselor
and reported to the police by the counselor. The report indicated that the victim was first
“molested” by Defendant at the age of seven. Defendant moved into her home
temporarily when she was sixteen, and Defendant started abusing her again at that time
by forcing her “to perform oral sex on him.”

       Detective Newman met with the victim prior to meeting with Defendant. She
explained it was the policy of the Morristown Police Department that no audio or video
recording was taken during interviews of suspects. At the time she met with Defendant,
he was incarcerated on unrelated charges. Detective Newman spoke with Defendant in
the attorney room, taking “basic personal history” and eventually “read[ing] him his
Miranda rights and explain[ing] that to him and ask[ing] him if he would agree to talk to
me, and he did agree to talk to me and signed that waiver at that time.” After telling
Defendant why she was there, his “face turned red.” Defendant initially denied the
allegations until, at one point, he stated he would “talk . . ., but [he] want[ed] to run it by
an attorney first.” At that point, Detective Newman‟s questioning was “done” but she
proceeded to ask Defendant a “logistical question”3 about whether he would be willing to
submit to a lie detector test. Defendant said “No.” Detective Newman commented, “[I]f
what [the victim] is saying is true, you shouldn‟t take the test. . . .” At that point,
Defendant told Detective Newman, “I‟ll tell you now what happened, but I won‟t write
anything down, and I won‟t sign anything.”


       1
           Defendant and M.B. have the same mother and different fathers.
       2
           It is the policy of this Court to refer to victims of sexual offenses by their initials.
       3
          Detective Newman explained that it was a “logistical question” in the sense that Defendant was
incarcerated in Hamblen County at the time and she would “have had to make arrangement with the
Morristown Police Department . . . [to] transport [Defendant] for the test.”
                                                    -2-
        Defendant proceeded to tell Detective Newman his version of the events that took
place around Thanksgiving. According to Defendant, the victim was intoxicated and
performed oral sex on him. Defendant claimed that it was her idea. Immediately after
Defendant finished talking, Detective Newman took handwritten notes. In part, they
stated:

       What [the victim] said happened is what happened. I said, [“]Oral sex?[”]
       And he said, [“]She came downstairs and came to me.[”] I told him that
       [the victim] said it happened two times in the fall of 2011[,] and he said that
       was right. I asked if [he] performed oral sex on [the victim,] and he said,
       [“]I never touched her. She did it to me.[”] I asked if [the victim] put her
       mouth on his penis and he said, [“]Yes.[”] He said it happened in the
       basement and he had felt real bad since he did that. He went on to say that
       he had been suicidal in the past and felt like he needed to go to Lakeshore.
       I told him that he needed to see the jail nurse.

              ....

       When he was telling me what happened[,] he said that [the victim] was
       intoxicated and came onto him.

        Defendant testified at the hearing on the motion to suppress. He claimed that the
detective did not read him the waiver of rights “word for word.” At the time, he thought
that he was being questioned about “something that [he] had already been questioned
about with [his] daughter.” He was “surprised” when Detective Newman informed him it
was about his step-sister. Defendant insisted that he told Detective Newman that he
“wanted to speak with a lawyer” but that the questioning did not stop. Defendant
emphatically testified that the contents of Detective Newman‟s statement were “not what
I said.”

       The trial court determined that Defendant “clearly knew his rights” and “invoked
his right to counsel . . . , when [Defendant] said [he] want[ed] to talk to his attorney first.”
However, Defendant “initiated the response, initiated his statement and agreed, at that
time, to basically waive his Miranda rights and give a statement, and that he did so
voluntarily.” The trial court denied the motion to suppress, deeming the case a “matter of
credibility for the jury to determine who they believe.”

                                             Trial

       At trial, Detective Newman testified that she had worked for the Morristown
Police Department for twenty-six years. The police report that initiated the investigation
was filed by Dr. Reno, a clinical psychologist from Knoxville, Tennessee. As a result of
                                              -3-
the report, Detective Newman contacted the victim, and Defendant was identified as the
suspect.

        As explained at the hearing on the motion to suppress, Detective Newman spoke
with Defendant, who was already incarcerated on unrelated charges. Detective Newman
first read Defendant his Miranda rights. Defendant signed a waiver of rights. Detective
Newman informed Defendant of the allegations. Defendant‟s “face turned red, he kind of
acted scared like - - well like a deer in headlights. . . .” Defendant initially denied the
allegations, then asked to “run it by” his attorney.

        At that point, Detective Newman ceased questioning. Defendant “reinitiated the
conversation,” telling Detective Newman that the victim performed oral sex on him but
that it was consensual and initiated by the victim. Defendant confirmed that he placed his
penis into the victim‟s mouth in the basement of the home that belonged to their mother.

        The victim and Defendant‟s mother, S.S.,4 testified. She confirmed that
Defendant, his infant child, and the mother of the child moved in to her basement for a
while prior to the incident. S.S. was going through a divorce at the time and described
the relationship with her husband at the time as “not good.”

       M.B. testified that she was born in 1995. At the time of the trial she was eighteen
years of age. At the time of the incident, she was sixteen. The victim testified that
around Thanksgiving, she was downstairs hanging out with Defendant “because that‟s
where his room was at that time.” They were playing Nintendo. Defendant “turned the
TV off and he told [her] to give him a blow job.” The victim said “no” and tried to leave.
Defendant would not let her leave. He “pulled his pants down” and “his penis was erect.”
Defendant “forced [her] head down on his penis.” She described it as “kind of a
struggle” but she “just gave in to get it over with.” Defendant ejaculated in her mouth at
about the same time she heard her parents return home. She went upstairs. She did not
tell anyone about the incident until mid-January because she did not want to cause a
“disturbance” in the household. The victim told Dr. Reno after Defendant moved out,
and Dr. Reno reported the abuse to the police.

       The victim‟s father testified on behalf of the defense at trial. He recalled
Defendant living with them off and on in the fall of 2011 “depending on if he was there,
staying there or not, or if he was incarcerated at the time.” He testified that Defendant
did not have a job and often stayed out at night and slept during the day. He did not think
Defendant was living at the house at the time the victim reported the incident. At the
time of trial, the victim‟s father and S.S. were divorced.

       4
          We have chosen to refer to the mother of the victim and Defendant by her initials in order to
protect the identity of the victim.
                                                -4-
        Defendant testified at trial. He explained that he lived at home with his mother in
the fall of 2011. He normally stayed “up all night” and slept most of the day. He was not
working the majority of the time he was staying at the house. In his free time he liked to
“produce music and record music with a couple of friends.”

       Defendant testified that on November 24, 2011, the date of the alleged incident,
his mother was home all day. She asked Defendant and his friend to pick up the victim
from her friend‟s house. After Defendant and his friend picked up the victim, they
returned to the house where everyone ate together. Defendant left after eating “take-out
from a place in Jefferson City” and spent the night with his friend. The next day he could
not recall specifically what he was doing but thought that he was sleeping at his friend‟s
home.

       Defendant recalled talking to Detective Newman at the jail while “he was
incarcerated” for a violation of misdemeanor probation. Defendant also admitted that he
had prior charges for reckless endangerment and aggravated assault with a firearm.
Defendant “pled guilty” to those felonies because he “did them.”

      Defendant admitted that he signed the waiver before he knew what Detective
Newman came to talk to him about at the jail. Once she explained the allegations,
Defendant was “hurting” and wanted to talk to an attorney. Defendant called Detective
Newman a “liar” and denied making any of the statements to the Detective after he
invoked his right to counsel. He claimed the “allegations are a lie. There had never been
nothing [sic] going on before.”

        At that point, counsel for the State argued that Defendant “opened the door for the
state to put on evidence of other acts. . . .” The trial court determined Defendant “opened
the door the way he answered the question.”

       The State called the victim in rebuttal. The victim testified that there were other
incidents that occurred when Defendant moved back in to the house in September. The
victim explained that “this [abuse] happened when I was a child, and [Defendant] brought
that up that night [when he moved back in to the house] and asked how I felt about that
and if I would like those things could happen again. . . .” The victim described another
incident wherein Defendant was in her bedroom and asked for a “blow job.” The
victim‟s younger brother knocked on the door interrupting Defendant, and Defendant left
the room. Defendant denied these additional allegations.

       The jury found Defendant guilty of incest. After a sentencing hearing, the trial
court sentenced Defendant to six years in incarceration as a Range I, standard offender.
Defendant appeals, arguing that the trial court improperly denied the motion to suppress;
                                           -5-
that the evidence was insufficient; and that the trial court improperly allowed evidence of
Defendant‟s prior bad acts when he claimed that nothing had ever happened between him
and the victim.

                                             Analysis

                                       Motion to Suppress

       On appeal, Defendant argues that the motion to suppress should have been granted
because he properly invoked his right to counsel and Detective Newman continued the
interrogation in a manner intended to elicit incriminating statements. The State insists
that Defendant waived Miranda rights after invoking his right to counsel because he
responded to Detective Newman‟s “non-interrogatory question about whether he would
submit to a polygraph examination.” According to the State, the question was not
designed to elicit an incriminating response, and any confession by Defendant was
voluntary and spontaneous.

        In reviewing a trial court‟s ruling on a motion to suppress, this Court will uphold
the trial court‟s findings of fact “unless the evidence preponderates otherwise.” State v.
Bell, 429 S.W.3d 524, 528 (Tenn. 2014) (citing State v. Climer, 400 S.W.3d 537, 556
(Tenn. 2013)). Witness credibility, the weight and value of the proof, and the resolution
of conflicts in the proof “are matters entrusted to the trial court as the trier of fact.” Id. at
529. “The party prevailing in the trial court 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.” State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The trial court‟s
resolution of questions of law and application of the law to the facts are reviewed de novo
with no presumption of correctness. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008).
When reviewing a trial court‟s ruling on a motion to suppress, this Court “may consider
the entire record, including not only the proof offered at the hearing, but also the
evidence adduced at trial.” State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012)
(citing State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998)).

      The United States and Tennessee Constitutions protect a suspect from “being
compelled to give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn.
2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9); see also State v. Turner,
305 S.W.3d 508, 515 (Tenn. 2010). When a defendant is in custody5 and subject to

       5
          Merely being in custody on another charge does not automatically trigger the “in custody”
portion of the Miranda requirement. State v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim. App. 1998).

       [A]n inmate is not in custody for Miranda purposes unless there is an added imposition
       on the inmate‟s freedom of movement. Relevant to this determination is (1) the language
                                                -6-
interrogation, the police must first inform him of his Fifth Amendment rights in order for
his confession to be admissible as substantive evidence in the trial of the matter. See
Miranda v. Arizona, 384 U.S. 436 (1966). Encompassed within the federal and state
constitutional provisions is the right to counsel. See id. at 444. “[A]fter a knowing and
voluntary waiver of the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an attorney.” Davis v. United
States, 512 U.S. 452, 455 (1994). In Davis, the United States Supreme Court adopted a
significantly narrower standard for invoking a right to counsel under the Fifth
Amendment when it held that “[i]nvocation of the Miranda right to counsel „requires, at a
minimum, some statement that can reasonably be construed to be an expression of a
desire for the assistance of an attorney.‟” 512 U.S. at 459 (quoting McNeil v. Wisconsin,
501 U.S. 171, 178 (1991)).

        “When a suspect invokes the right to counsel, police must cease questioning until
counsel is present” or the suspect initiates further conversation with the police. State v.
Saylor, 117 S.W.3d 239, 246 (Tenn. 2003) (citing Miranda, 384 U.S. at 444-45; Edwards
v. Arizona, 451 U.S. 477 (1981); State v. Stephenson, 878 S.W.2d 530, 548 (Tenn.
1994)). A suspect can invoke the right to counsel “in any manner and at any stage of the
process[.]” Miranda, 384 U.S. at 444-45. As soon as the right to counsel is invoked, any
later statement made by a defendant as a consequence of interrogation by police must be
suppressed. Edwards, 451 U.S. at 487. In Davis, the United States Supreme Court stated
that although it is a good policy for law enforcement to clarify whether a suspect has
actually asked for an attorney when the suspect‟s request is ambiguous, it “decline[d] to
adopt a rule requiring officers to ask clarifying questions.” Davis, 512 U.S. at 461. The
Court explained, “If the suspect‟s statement is not an unambiguous or unequivocal
request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-
62.

       When a defendant in custody initially waives his right to counsel and insists that
he later revoked that waiver, the defendant bears the burden of proving he revoked the
waiver and clearly asserted his right to counsel. Turner, 305 S.W.3d at 519. Of course,
the waiver must be made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.
at 467. The test for voluntariness under the Tennessee Constitution is broader and more



       used to summon the inmate, (2) the physical surroundings of the interrogation, (3) the
       extent to which he is confronted with evidence of his guilt, and (4) the additional pressure
       exerted to detain the inmate. We agree that this standard is best suited to determine
       whether Miranda warnings must precede questioning in a prison setting, given the fact
       that a prisoner would always believe that he was not free to leave the prison.

Id. There is no question whether Defendant herein was in custody. In fact, Detective Newman made
certain that Defendant understood this much by informing him of his rights.
                                                  -7-
protective of individual rights than under the Fifth Amendment. State v. Smith, 933
S.W.2d 450, 455 (Tenn. 1996).

       In this case, no one disputes that Defendant initially made a voluntary, knowing,
and intelligent wavier of his rights to counsel and against self-incrimination prior to the
interview with Detective Newman. Instead, Defendant argues that once he learned of the
allegations against him he “unequivocally invoked his right to counsel under Miranda
and Edwards.” The trial court and the State agree but insist that even after invoking the
right to counsel, Defendant spontaneously initiated further conversation with police
wherein he confessed to the crime.

       Thus, the first question we must address in the case herein is whether Defendant
unequivocally invoked his right to counsel after his initial Miranda waiver. The issue of
whether a suspect‟s request for an attorney was unequivocal is a mixed question of law
and fact that is subject to de novo review. Climer, 400 S.W.3d at 556 (citing Turner, 305
S.W.3d at 514-15).6 In order to be unequivocal, a suspect is required to “articulate his
desire to have counsel present sufficiently clearly that a reasonable officer in the
circumstances would understand the statement to be a request for an attorney.” Davis,
512 U.S. at 459; Turner, 305 S.W.3d at 516; Saylor, 117 S.W.3d at 246.

       Bearing these tenants in mind, we turn to the case herein. After being confronted
with allegations that he forced his half-sister to perform oral sex on him, Defendant told
Detective Newman, “I will talk to you, but I want to run it by an attorney first.” We
deem Defendant‟s statement a clearly communicated desire to consult with counsel and is
analogous to other statements deemed to be unequivocal invocations of the right to
counsel. See, e.g., Edwards, 451 U.S. at 479 (“I want an attorney before making a
deal.”); Turner, 305 S.W.3d at 522 (“Get me a lawyer.”); State v. Koffman, 207 S.W.3d
309, 319 (Tenn. Crim. App. 2006) (“I want to call [a judge] and [a federal public
defender].”); State v. Tidwell, 775 S.W.2d 379, 387 (Tenn. Crim. App. 1989) (“I‟d like to

       6
          Seemingly contradictory, in State v. Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996),
this Court stated that “[w]hether the suspect made an equivocal or unequivocal request for counsel is a
question of fact.” In Turner, we recognized the common practice among this Court and noted:

       In practice, however, our intermediate appellate court has more properly considered the
       issue as a mixed question of law and fact and has not afforded deference to the rulings of
       trial courts. This is consistent with the approach taken in other jurisdictions. In fact, we
       were unable to find any reported decisions from appellate courts outside of this state that
       have reviewed the nature of a request for counsel as purely a question of fact. See, e.g.,
       People v. Porter, 9 N.Y.3d 966, 848 N.Y.S.2d 583, 878 N.E.2d 998, 999 (2007); State v.
       Dumas, 750 A.2d 420, 425 (R.I. 2000); Commonwealth v. Redmond, 264 Va. 321, 568
       S.E.2d 695, 697-98 (2002).

305 S.W.3d at 514.
                                                  -8-
call a lawyer before I discuss that.”); State v. Michael Lee McCormick, No. E2003-
02689-CCA-R9-DD, 2004 WL 2583903, at *11 (Tenn. Crim. App. Nov. 15, 2004) (“I‟d
be willing to [cooperate.] I‟d like to have a lawyer at this point.”), perm. app. denied
(Tenn. Mar. 21, 2005). Thus, the trial court correctly determined that Defendant
unequivocally invoked his right to counsel. At that point, Detective Newman was
constitutionally obligated to cease all questioning immediately.

       Our inquiry, however, does not end as Detective Newman continued to address
Defendant after he invoked the right to counsel. As mentioned above, Detective
Newman asked what she described as a “logistical” question about Defendant‟s
amenability to taking a lie detector test. Defendant replied, “No.” Detective Newman
commented, “If what [the victim] is saying is true, you shouldn‟t take the test.” At that
point, Defendant said he would “tell [the detective] now what happened, but [he] w[ould
not] write anything down and [he would not] sign anything.” According to Detective
Newman, Defendant “began to talk . . . and he told his version of what had happened” at
that point.

       Once a suspect invokes his right to counsel under the Fifth Amendment, he or she
“is not subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication, exchanges,
or conversations with the police.” Edwards, 451 U.S. at 484-85. In Edwards, the United
States Supreme Court essentially established a “second layer of prophylaxis for the
Miranda right to counsel: Once a suspect asserts the right, not only must the current
interrogation cease, but he may not be approached for further interrogation „until counsel
has been made available to him . . . .‟” McNeil v. Wisconsin, 501 US 171, 176-77 (1991)
(quoting Edwards, 451 U.S., at 484-85). This has been interpreted to mean that counsel
must be present. Minnick v. Mississippi, 498 U.S. 146 (1990). If the police do
subsequently initiate an encounter in the absence of counsel (assuming there has been no
break in custody), the suspect‟s statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial, even where the suspect executes a waiver
and his statements would be considered voluntary under traditional standards. This is
“designed to prevent police from badgering a defendant into waiving his previously
asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350 (1990). The Edwards
rule, moreover, is not offense specific. Said differently, at the point a suspect invokes the
Miranda right to counsel for interrogation regarding one offense, he may not be re-
approached regarding any offense unless counsel is present. Arizona v. Roberson, 486
U.S. 675 (1988).

      The voluntariness of a confession “remains distinct from Miranda.” State v.
Climer, 400 S.W.3d 537, 567 (Tenn. 2013) (citing Dickerson, 530 U.S. at 434-35)).
Because “coerced confessions are inherently unreliable,” only voluntary confessions may
be admitted as evidence. Id. (citing Dickerson, 530 U.S. at 433). It has long been held
                                            -9-
that for a statement to be voluntary, it “must not be extracted by any sort of threats or
violence, nor obtained by any direct or implied promises, however slight, nor by the
exertion of any improper influence.” State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980)
(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). “A defendant‟s subjective
perception alone is not sufficient to justify a conclusion of involuntariness in the
constitutional sense.” Smith, 933 S.W.2d at 455. Rather, “coercive police activity is a
necessary predicate to finding that a confession is not voluntary.” Id. (quoting State v.
Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)); see also State v. Downey, 259 S.W.3d 723,
733 (Tenn. 2008) (noting that “for a confession to be involuntary, it must be the product
of coercive state action”).

        This is not a case where, after invocation of the right to counsel, questioning came
from or statements were initiated by the defendant. See, e.g., Oregon v. Bradshaw, 462
U.S. 1039, 1045-46 (1983) (concluding that the defendant‟s question, “Well, what is
going to happen to me now?” evinced “a willingness and desire for a generalized
discussion about the case” and “was not merely a necessary inquiry arising out of the
incidents of the custodial relationship”); State v. March, 395 S.W.3d 738 (Tenn. Crim.
App. 2011) (determining defendant did not invoke the right to counsel, was not being
interrogated, and initiated conversation with detective over a two-hour period such that
statements were not subject to suppression); State v. Ezra Shawn Ervin, No. E1999-
00287-CCA-R3-CD, 2001 WL 15832 (Tenn. Crim. App. Jan. 9, 2001) (holding that
statement volunteered by defendant during his arrest that he “didn‟t rob that Krystal, that
manager just don‟t like me” was admissible because it was not the result of interrogation
and was initiated by the defendant), perm. app. denied (Tenn. June 4, 2001); State v.
Ensley, 956 S.W.2d 502, 510-11 (Tenn. Crim. App. 1996) (determining that, when
defendant was not in custody and “just started talking,” statements were admissible at
trial). In these cases, the defendants effectively re-waived their rights by making new
efforts to speak with the authorities without the functional equivalent of interrogation.

      In this case, the statements occurring after Defendant invoked his right to counsel
came directly from the Detective, not Defendant. The United States Supreme Court in
Rhode Island v. Innis provided the following guidance for lower courts:

       [T]he term “interrogation” under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other
       than those normally attendant to arrest and custody) that the police should
       know are reasonably likely to elicit an incriminating response from the
       suspect. The latter portion of this definition focuses primarily upon the
       perceptions of the suspect, rather than the intent of the police. This focus
       reflects the fact that the Miranda safeguards were designed to vest a suspect
       in custody with an added measure of protection against coercive police
       practices, without regard to objective proof of the underlying intent of the
                                           - 10 -
       police. A practice that the police should know is reasonably likely to evoke
       an incriminating response from a suspect thus amounts to interrogation.
       But, since the police surely cannot be held accountable for the
       unforeseeable results of their words or actions, the definition of
       interrogation can extend only to words or actions on the part of police
       officers that they should have known were reasonably likely to elicit an
       incriminating response.

Innis, 446 U.S. at 301-02 (emphasis added). In Innis, the defendant was arrested as a
suspect in the armed robbery of a cab driver; however, the defendant did not have a
weapon in his possession at the time of his arrest. Id. at 294. On three separate occasions
after his arrest, the police provided the defendant with Miranda warnings. Id. The third
time the defendant met with an officer, he told the officer he understood his rights, and
asked to speak with an attorney. Id. A police captain instructed three patrol officers to
transport the defendant to the police station and that they were not to question, intimidate,
or coerce the defendant. In the police car on the way to the station, two of the officers
conversed about the missing gun, one expressing concern about the possibility that one of
the children from a nearby school for handicapped children might find the missing
weapon and hurt themselves. Id. When an officer remarked that “it would be too bad” if
a little girl “pick[ed] up the gun and maybe kill[ed] herself,” the defendant interrupted the
officers‟ conversation and revealed the location of the gun. Id. at 294-95. The United
States Supreme Court rejected the defendant‟s argument that the officers‟ conversation
amounted to interrogation because the “record in no way suggest[ed] that the officers‟
remarks were designed to elicit a response.” Id. at 302. Furthermore, no evidence
suggested “that the officers were aware that the [suspect] was peculiarly susceptible to an
appeal to his conscience concerning the safety of handicapped children.” Id. at 302. In
other words, the suspect was not subjected to the “functional equivalent” of express
questioning for purposes of Miranda. Id. at 303. Thus, Innis recognizes that express
questioning is not necessary to trigger Miranda warnings, and that a conversation among
officers within earshot of a suspect may constitute interrogation for purposes of Miranda
when the suspect is in custody and the police are aware that their words or actions are
reasonably likely to evoke an incriminating response. Id. In such cases, although an
officer‟s intent may be relevant in determining “whether the officer should have known
his or her words or actions were reasonably likely to invoke an incriminating response,”
the primary focus rests “upon the accused‟s perception rather than on the police officer‟s
intent.” State v. Sawyer, 156 S.W.3d 531, 534 (Tenn. 2005) (citing Innis, 446 U.S. at
301). But see State v. Land, 34 S.W.3d 516, 524 (Tenn. Crim. App. 2000) (observing
that “[i]t is well established that questioning initiated by the defendant is not interrogation




                                             - 11 -
in the Innis sense” (citing Edwards, 451 U.S. at 484)).7 Thus, in order to determine if
actions by the police constitute interrogation,

        we must remember the purpose behind [the] decision[ ] in Miranda . . . :
        preventing government officials from using the coercive nature of
        confinement to extract confessions that would not be given in an
        unrestrained environment.

Arizona v. Mauro, 481 U.S. 520, 529-30 (1987). But see State v. Andrew Mann, No.
E2010-00601-CCA-R3-CD, 2012 WL 184157, at *7-8 (Tenn. Crim. App. Jan. 23, 2012)
(determining officer‟s statement “[y]ou know exactly what you‟ve done,” after Defendant
asked “what have I done” occurring prior to Miranda warning and notice of the charges
against him did not amount to custodial interrogation reasonably likely to elicit an
incriminating response such that defendant‟s action of “putting his head down and
nodding yes” should be suppressed), perm. app. denied (Tenn. June 20, 2012).

        Turning to the case herein, Detective Newman acknowledged at the hearing on the
motion to suppress that her “questioning was done” at the point Defendant asked to “run
it by an attorney.” Despite that acknowledgment, the detective continued the
conversation by asking Defendant if he would be “willing to take a lie detector test,” in
her estimation a “logistical question.” Defendant replied, “No.” Detective Newman
continued, commenting, “[Y]ou know, . . . if what she‟s saying is true, you shouldn‟t take
the test.” Only at this point did Defendant offer his version of the events. Looking at the
circumstances surrounding the confession, we note that Defendant was already
incarcerated on other charges and was being held in the attorney room at the courthouse.
We have already determined there is no question that Defendant was in custody or that he
had invoked his right to counsel. It is not necessary for us to determine whether merely
asking whether Defendant would be willing to take a lie detector test qualifies as a
question that a police officer should have known was reasonably likely to elicit an
incriminating response in the Innis sense. However, when Detective Newman continued
to comment that Defendant should not take the test if he committed the acts as alleged by
the victim, the words of the officer were, in our opinion, likely to elicit an incriminating
response. Therefore, this statement, made by Detective Newman after Defendant
invoked his right to counsel, constituted custodial interrogation, especially in light of the
fact that there was no distinct separation in time from the request for counsel and the

        7
           Interestingly, the “questioning” need not even come directly from the government in order to
constitute interrogation. See, e.g., Estelle v. Smith, 451 U.S. 454, 467 (1981) (questioning by court-
appointed competency psychiatrist found to implicate the defendant‟s Miranda rights); Wilson v.
O’Leary, 895 F.2d 378, 380-81 (7th Cir. 1990) (holding Miranda applicable where sheriff detained
defendant against his will in a vacant lot so husband of victim could interrogate defendant). Cf. Arizona
v. Mauro, 481 U.S. 520 (1987) (recorded meeting with wife after defendant invoked right to counsel was
not the type of psychological ploy designed to constitute interrogation).
                                                   - 12 -
statements by the officer. In fact, Detective Newman testified that a mere three to four
minutes elapsed from the invocation of counsel to the confession. Defendant‟s confession
to Detective Newman was initiated by the detective‟s question and comment about the lie
detector test. When Defendant responded to those statements, he specifically commented
that he did not want to write anything down or sign anything, indicating his perception
that he was under continued interrogation by the officer. We conclude that the statements
made by Detective Newman violated Defendant‟s Fifth Amendment right to counsel,
rendering Defendant‟s subsequent confession inadmissible. Consequently, we adopt the
factual findings of the trial court as to what happened, but we reject the trial court‟s
conclusion of law that those facts did not amount to a violation of the Fifth Amendment.

                                     Harmless Error

        Having determined that statements made by Defendant during custodial
interrogation should have been suppressed as a result of the Miranda violation, we must
next determine whether the erroneous admission of these statements requires reversal of
Defendant‟s conviction. Climer, 400 S.W.3d at 569. In conducting harmless error
analysis, this Court has identified three categories of error: (1) structural constitutional
error; (2) non-structural constitutional error; and (3) non-constitutional error. State v.
Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). The erroneous admission of evidence
obtained in violation of a defendant‟s Miranda rights is a non-structural constitutional
error, and as such, is subject to the harmless error analysis. Arizona v. Fulminante, 499
U.S. 279, 295-96 (1991) (holding that the admission of a coerced confession is subject to
harmless error analysis and recognizing that federal circuit courts of appeal have held that
the introduction of statements elicited in violation of Miranda is subject to harmless error
analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir. 2008); State v. Bates, 804
S.W.2d 868, 876 (Tenn. 1991); Koffman, 207 S.W.3d at 320. Non-structural
constitutional errors do not require automatic reversal. Rodriguez, 254 S.W.3d at 371.
“However, the burden on the State to demonstrate that a non-structural constitutional
error is harmless remains quite stringent. The existence of a non-structural constitutional
error requires reversal unless the State demonstrates beyond a reasonable doubt that the
error is harmless.” Id. The test is “whether it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Id. (internal quotation
marks omitted); see also Neder v. United States, 527 U.S. 1, 15 (1999); Chapman v.
California, 386 U.S. 18, 24 (1967).

      The State‟s brief on appeal does not address whether the admission of Defendant‟s
statements was harmless error presumably because the State concludes that Defendant
voluntarily waived his rights and continued the conversation with the detective.
Defendant, on the other hand, posits that the State‟s case rested squarely on Defendant‟s
confession and that the confession was merely corroborated by the victim‟s testimony.
While Defendant took the stand and denied the allegations, we note that there was no
                                           - 13 -
other tangible or direct evidence as to guilt or innocence. While we recognize that a
guilty verdict may rest entirely on circumstantial evidence, State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011), our determination of this issue does not turn on whether the
remaining admissible evidence was sufficient to support the conviction for incest.
Instead, we must determine “whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Climer, 400 S.W.3d at 570
(quoting Rodriguez, 254 S.W.3d at 371 (internal quotation marks omitted)).

        A confession by a defendant has been described as “probably the most probative
and damaging evidence that can be admitted against him.” Fulminante, 499 U.S. at 296
(quoting Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J., dissenting)); see
also Colorado v. Connelly, 479 U.S. 157, 182 (1986) (Brennan, J., dissenting) (observing
that “[t]riers of fact accord confessions such heavy weight in their determinations that the
introduction of a confession makes the other aspects of a trial in court superfluous”
(internal quotation omitted)); Miranda, 384 U.S. at 466 (Harlan, J., dissenting)
(explaining that a confession is “the most compelling possible evidence of guilt” (citing
Mapp v Ohio, 367 U.S. 643, 685 (1961)); Hopt v Utah, 110 U.S. 574, 584-85 (1884)
(recognizing that a “voluntary confession of guilt is among the most effectual proofs in
the law”); Deathridge v. State, 33 Tenn. 75, 78-79 (1853) (noting that “[g]reat weight and
credit are justly due to a confession” that is “free and voluntary” because “we are to
presume, in the absence of influence and motive, a person who is innocent of crime will
not confess himself guilty”).

        Excluding the confession, the remaining evidence of Defendant‟s guilt could
hardly be said to be overwhelming. Save the victim‟s testimony as to the events that took
place at the house, nothing else points to Defendant‟s guilt. We conclude, after
reviewing the record, the State failed to establish beyond a reasonable doubt that the
erroneous admission of Defendant‟s statement did not contribute to the verdict. As noted
in Climer, the State is not precluded from retrying Defendant for incest. At any future
trial, Defendant‟s statements to Detective Newman would be inadmissible in the case-in-
chief, but could be admissible for impeachment purposes should Defendant take the stand
at trial. 400 S.W.3d at 571 (citing Harris v. New York, 401 U.S. 222, 224-26 (1971)
(stating that voluntary statements elicited in violation of Miranda are inadmissible in the
prosecution‟s case-in-chief but may be used to impeach a defendant‟s credibility)).
Accordingly, we reverse the judgment of the trial court and remand for a new trial.

                                Sufficiency of the Evidence

       Defendant complains that the evidence was insufficient to support the conviction
because there were no documents confirming the familial relationship, no physical
evidence of the penetration, and no direct testimony to corroborate the allegations of the
victim. Despite our determination that the confession was improperly admitted, we are
                                           - 14 -
obliged to review this issue with the evidence as presented at trial in the event of further
appeal.

       The standard of review for sufficiency of the evidence is whether “after
considering the evidence in a light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” State
v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000) (quoting State v. Buggs, 995 S.W.2d 102, 105
(Tenn. 1999)). Questions concerning the “credibility of the witnesses, the weight to be
given their testimony, and the reconciliation of conflicts in the proof are matters entrusted
to the jury as the trier of fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277
(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

       In this case, the evidence was sufficient to sustain a verdict for incest—sexual
penetration, including fellatio, with a person‟s sister “of the whole or half-blood.” T.C.A.
§§ 39-15-302(a), 39-13-501(7). The victim‟s mother testified that she was also the
defendant‟s mother, establishing the relationship between the victim and Defendant. The
victim testified the incident occurred around Thanksgiving and that at first she tried to
struggle with Defendant and that she gave in to “get it over with.” The victim explained
that during the incident, Defendant stuck his penis in her mouth and ejaculated in her
mouth. A victim‟s testimony alone is sufficient to support a conviction. See, e.g., State
v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). Defendant denied the
allegations. The jury‟s role was to view the witnesses and assess their credibility. After
doing so, they found sufficient evidence of guilt, accrediting the State‟s witnesses. The
evidence was sufficient to support the conviction.

                                      Prior Bad Acts

       Next, Defendant complains that his testimony that nothing ever happened between
him and the victim did not open the door to rebuttal testimony by the victim.
Specifically, Defendant argues that the victim was allowed to testify about uncharged
instances of criminal sexual conduct by Defendant in violation of Tennessee Rule of
Evidence 404(b). The State insists that Defendant opened the door to the testimony. We
are obliged to address the issue in the event of further appellate review in this matter.

      Prior to trial, Defendant filed a motion in limine seeking to exclude evidence of
“uncharged sexual conduct.” Attached to the motion was a copy of the victim‟s
statement in which she alleged Defendant first touched her at the age of seven, by
grabbing her breasts as well as touching and licking her vagina. The appellate record
does not contain an order disposing of the motion or a transcript of the hearing on the
                                            - 15 -
motion. Defendant objected to the rebuttal testimony of the victim but did not request a
404(b) hearing.

        Evidence of a defendant‟s prior crimes, wrongs, or acts may be admissible where
it is probative of material issues other than conduct conforming with a character trait.
Tenn. R. Evid. 404(b). Thus, evidence of a criminal defendant‟s previous misconduct
may become admissible when it logically tends to prove material issues such as: (1) the
use of “motive and common scheme or plan” to establish identity, (2) to establish the
defendant‟s intent in committing the offense on trial, and (3) to “rebut a claim of mistake
or accident if asserted as a defense.” McCary, 922 S.W.2d at 514. In order for such
evidence to be admitted, the rule specifies:

      (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or
      acts is not admissible to prove the character of a person in order to show
      action in conformity with the character trait. It may, however, be
      admissible for other purposes. The conditions which must be satisfied
      before allowing such evidence are:

      (1) The court upon request must hold a hearing outside the jury‟s presence;

      (2) The court must determine that a material issue exists other than conduct
      conforming with a character trait and must upon request state on the record
      the material issue, the ruling, and the reasons for admitting the evidence;

      (3) The court must find proof of the other crime, wrong, or act to be clear
      and convincing; and

      (4) The court must exclude the evidence if its probative value is outweighed
      by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

       In reviewing a trial court‟s decision to admit or exclude 404(b) evidence, an
appellate court may disturb the lower court's ruling only if there has been an abuse of
discretion. DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134 (Tenn.
Crim. App. 1990). Where the trial court has been called to pass upon the admissibility of
evidence of other crimes, wrongs, or acts under Rule 404(b), its determination is entitled
to deference when it has substantially complied with the procedural requisites of Rule
404(b). See DuBose, 953 S.W.2d at 652.

      In this case, Defendant objected to the rebuttal testimony but did not request a
404(b) hearing. Defendant‟s brief references a pretrial hearing, but this hearing is not
                                           - 16 -
included in the record. It is the burden of the Appellant to prepare a full and complete
record for appellate review. See Tenn. R. App. P. 24(b). Absent an adequate record, we
are unable to review this issue unless there is plain error. In order to obtain plain error
review, the defendant must show that:

       (a) the record clearly establishes what occurred in the trial court; (b) a clear
       and unequivocal rule of law was breached; (c) a substantial right of the
       accused was adversely affected; (d) the accused did not waive the issue for
       tactical reasons; and (e) consideration of the error is “necessary to do
       substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). “[T]he presence of all five factors must be
established by the record before this Court will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record
that at least one of the factors cannot be established.” Id. at 283. Because trial counsel
did not request a 404(b) hearing, it is not apparent that the trial court breached a “clear
and unequivocal rule of law” by failing to follow the procedures of 404(b). The rule
states that the trial court must hold a jury-out hearing upon request. Tenn. R. Evid.
404(b)(1). While a trial court may sua sponte conduct a hearing, the language of the rule
indicates that “the trial court was not obligated to conduct such a hearing absent a
request.” State v. Hall, 958 S.W.2d 679, 707 (Tenn. 1997) (app‟x); see also State v.
Jones, 151 S.W.3d 494, 498 n.3 (Tenn. 2004) (declining to consider whether evidence
should have been excluded pursuant to 404(b) when the defendant failed to request a
404(b) hearing). Because the defendant did not request a 404(b) hearing, the trial court
was not obligated to conduct one. Because the defendant has failed to show all five plain
error factors are satisfied, we need not consider the remaining factors. Defendant is not
entitled to any relief on this issue.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is reversed and remanded
for new trial.


                                                     _________________________________
                                                     TIMOTHY L. EASTER, JUDGE




                                            - 17 -
