        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 7, 2014

    STATE OF TENNESSEE v. ANTHONY DRAINE A.K.A. ANTHONY
                       DRAINE-LOVE

              Direct Appeal from the Criminal Court for Shelby County
                        No. 12-04580     Chris Craft, Judge


                No. W2013-02436-CCA-R3-CD - Filed April 29, 2015


A Shelby County Criminal Court Jury convicted the appellant, Anthony Draine a.k.a.
Anthony Draine-Love, of aggravated burglary. He was sentenced as a Range II, multiple
offender to nine years in the Tennessee Department of Correction. On appeal, the appellant
challenges the trial court’s denial of his motion to suppress and contends that the evidence
was insufficient to sustain his conviction. Upon review, we affirm the judgment of the trial
court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and T IMOTHY L. E ASTER, JJ., joined.

Stephen Bush and Phyllis Aluko (on appeal); William Yonkowski and Samuel Christian (at
trial), Memphis, Tennessee, for the appellant, Anthony Draine a.k.a. Anthony Draine-Love.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General, and Mariane Bell and Chris Lareau, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       The appellant’s charge stemmed from a break-in that occurred at a residence in
Memphis. At trial, the victim, Valencia Yvette Woodin testified that on Saturday, April 7,
2012, she was driving home when a neighbor called to inform her that someone had broken
into her apartment. The victim arrived home between 2:00 and 3:00 p.m. When she entered
the residence, she saw that a living room window had been broken. She walked outside to
examine the window and noticed that the screen had been removed. She saw the screen in
a nearby ditch.

        The victim walked through her apartment and noticed that several items were missing:
three children’s Easter baskets, candy, food, a television, a DVD player, a “suitcase rolling
[school] bag,” Social Security cards, and other forms of identification. The victim estimated
that the total value of the items taken was around $500 or $600. The victim said that she did
not give anyone permission to enter her apartment and remove items that day. The victim
called the police, who came to the apartment, searched, and dusted for fingerprints.

        The victim denied that she had ever invited the appellant to her apartment. She said
that she had a conversation with the appellant at a store in the neighborhood and that she had
invited him to the church where she was a minister. The appellant gave her his telephone
number, but she was not aware that he knew where she lived. The victim’s neighbor told her
that the appellant had been at her neighbor’s apartment “earlier.”

       On cross-examination, the victim said that she and her children had left the apartment
that morning at 10:30 a.m. and that they returned between 2:00 and 3:00 p.m. She had not
given anyone else access to her apartment. The victim said that the intruder had attempted
to take a picture, but it was too big to fit through the window. The victim said that the
intruder would have had to walk through her entire apartment to obtain all of the items.

       When the victim examined her apartment, the window was the only damage to an
“entry point[]” that she noticed. The victim explained that just outside the window was a
“walk path” that was for use by the tenants. The window had been broken so that someone
could reach in and unlock it. The victim said that someone could enter the apartment easily
through the window.

        The victim said that she watched the police dust the window for fingerprints; however,
she did not notice the officers looking for fingerprints anywhere else. The victim
acknowledged that she had met the appellant at a Cricket store where he worked and that he
had tried to pursue a relationship with her “as far as trying to invite himself.” However, the
victim did not encourage him, stating that she “never kn[e]w him long enough to even be in
a relationship.” The victim said that the appellant gave her his telephone number and that
he called her on his brother’s telephone.

        Memphis Police Officer Mujahed Abdellatif testified that on April 7, 2012, he went
to the victim’s apartment to dust for fingerprints. He dusted inside and outside the apartment
and found a “possible print” on the window the intruder used to access the apartment.

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       On cross-examination, Officer Abdellatif said that the bottom half of the window was
broken and that he found the fingerprint outside on the bottom of the window. He was
unable to find any other viable prints. Officer Abdellatif said that the area surrounding the
window was not an area to which the public had access. He explained, “[I]t’s a bunch of
trees back there. So I think if you didn’t live there you didn’t have no reason being back
there.” He acknowledged that he did not know how long the fingerprint had been on the
window.

       Officer Larry Preston, a latent print examiner with the Memphis Police Department,
was qualified to testify as an expert in latent fingerprint analysis. Officer Preston testified
that he entered the fingerprint lifted from the scene into a database and determined that the
fingerprint matched the appellant. When asked how many points of comparison were
necessary to make a positive identification, Officer Preston responded, “There’s really no set
number that you really need. It depends, the quality of the print, the type of print it is. But
generally you would want, you know, a minimum of seven or eight good points.” In the
instant case, he identified more than fifteen matching points of comparison.

          On cross-examination, Officer Preston said that any given fingerprint could have at
least fifty points of comparison but that a match could be made by comparing as few as seven
or eight points. In the instant case, Officer Preston found more than fifteen matching points
of comparison between the fingerprint found at the scene and the appellant’s fingerprint.
Nevertheless, he examined the entire fingerprint. He stated, “When I feel like the print is
identical I stop usually but I may look at the whole print. But there’s no point in looking at
a . . . a hundred or fifty points. . . . [I]t’s just a waste of time.” Officer Preston asserted that
in his office, at least two examiners checked and identified the fingerprints before agreeing
upon a match.

        Officer Preston said that when he ran the fingerprint found at the scene through the
AFIS database,1 he asked AFIS to provide him with the top ten potential matches. He
explained that the database “doesn’t identify the print. It only brings back suspect of
possibilities. Examiners actually make the identifications.” He said that the first print
returned by the database was usually the match. Officer Preston said that no one in his office
had ever made a false identification. However, he did not know whether there was “an error
rate in this process.” He said, “I can only speak for what happens in my office, I don’t know
about anybody else.”

       On redirect examination, Officer Preston said that he had been a latent print examiner
since 1974 and that he had extensive training in performing the examinations. He said that

       1
           AFIS stands for “Automated Fingerprint Identification System.”

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part of his training occurred at the Federal Bureau of Investigation (FBI) office in Quantico.

       On recross-examination, Officer Preston acknowledged that in another case “the FBI
at one point made a one hundred percent positive identification of a fingerprint that was later
found to be erroneous.”

        Memphis Police Detective Joshua Brown testified that after police learned the
appellant’s fingerprint had been found at the scene of the burglary, the appellant was brought
into the precinct. After being advised of his Miranda rights, the appellant agreed to speak
with Detective Brown. The appellant initially denied any involvement in the burglary.
However, after being informed that his fingerprint was found at the scene, the appellant said
that he entered the apartment through a window. He walked through the house and took food
from a freezer, Easter baskets, a converter, and a cable box.

       The appellant acknowledged that he took a black backpack with wheels from the
owner’s bedroom and that he put the food and other items in the backpack. He said that he
sold the DVD player, the converter box, and the Easter baskets and that he “got rid of” the
backpack.

       On cross-examination, Detective Brown said that the appellant did not request an
attorney nor did he “ask to remain silent.”

      The appellant chose not to testify or offer proof. The jury found the appellant guilty
of aggravated burglary. The trial court sentenced the appellant as a Range II, multiple
offender to nine years in the Tennessee Department of Correction.

        On appeal, the appellant challenges the trial court’s denial of his motion to suppress
his statement to police and the sufficiency of the evidence sustaining his conviction.

                                        II. Analysis

                                   A. Motion to Suppress

       On appeal, the appellant contends that the trial court should have suppressed his
confession to the police because he was not timely advised of his Miranda rights and that his
confession was not knowingly and voluntarily given because of his “mental difficulties.” The
State asserts that the trial court correctly found that the confession was admissible. We agree
with the State.

       Immediately prior to trial, the trial court held a hearing on the appellant’s motion to

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suppress. At the hearing, Detective Joshua Brown testified that on April 30, 2012, he and
Officer Smith interviewed the appellant at the task force office. Detective Brown asserted
that the appellant was advised of his Miranda rights prior to any discussion of “the
particulars” of the case. Detective Brown said that he read the advice of rights form to the
appellant, asked the appellant to read the form, and asked the appellant if he understood his
rights. After the appellant said that he understood his rights, Detective Brown asked him to
sign the form acknowledging that he had been advised of his rights, and the appellant
complied. The form reflected that the discussion began at 3:40 p.m.

       Detective Brown said that the appellant’s demeanor was relaxed and normal and that
he did not appear to be intoxicated or suffering from any mental difficulties, noting that his
responses to questions were rational. Detective Brown said that he did not doubt the
appellant’s ability to knowingly waive his Miranda rights. Detective Brown denied coercing
the appellant or using forceful tactics to overcome his will.

        On cross-examination, Detective Brown acknowledged that the appellant did not read
the advice of rights form out loud; however, Detective Brown asserted that he “read [the
appellant] his rights on the paper, asked him to read over them and sign them.” Detective
Brown said that he was not present when the appellant was arrested and did not know the
exact time of the arrest.

        Detective Brown said that the appellant was interviewed in a conference room and
that one of his hands was handcuffed to the chair. At the time of the interview, Detective
Brown did not know anything about the appellant’s mental health history. Detective Brown
acknowledged that the appellant may have appeared “eccentric. . . . But I mean nothing out
of the absolute normal.” The appellant was coherent and cooperative. Detective Brown did
not threaten the appellant or make promises to him. During the interview, Detective Brown
offered the appellant water, asked if he needed to use the restroom, and ensured that he was
comfortable.

        Detective Brown said that the appellant initially denied any involvement in the
burglary. However, after Detective Brown informed him that his fingerprints were found on
the window used to enter the victim’s apartment, the appellant agreed to talk. Officer Smith
typed the statement as the appellant was speaking. After the statement was typed, Detective
Brown had the appellant read the statement and instructed him that if the statement were true,
to initialize the first two pages and sign his name on the third. Detective Brown did not have
the appellant read his statement out loud. Detective Brown was not aware that the appellant
quit school after the eighth grade and could not read or write well.

       The appellant testified that when Detective Brown informed him that his fingerprints

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had been found at the victim’s residence and that the police knew he had broken into the
victim’s house, the appellant responded, “I don’t know what you’re talking about.” Detective
Brown told the appellant that if he confessed to the burglary, he could go home. At that
point, the appellant said, “[W]ell I did it.” Detective Brown told the appellant to sign some
papers, and the appellant complied. The appellant maintained that he did not know what was
written on the papers; nevertheless, he signed where Detective Brown indicated, thinking he
would be released.

       The appellant said that he attended school until the ninth grade. He could not read
well and thought he had told Detective Brown of his impairment. The appellant said that
when Detective Brown handed him the statement, “I just looked at it. And he told me to put
yes on everything. That’s what I did.” The appellant also denied that the officers offered
him water during the interview.

       Following the appellant’s testimony, defense counsel argued

              that there’s some serious question about whether [the appellant]
              freely gave his statement or his statement was accurate or not.
              [The appellant] doesn’t read and write well. And the fact that
              he’s signed off on a statement that wasn’t read to him and that
              he’s not capable of reading indicates that there’s some problems
              with it. And he indicates that he only gave the statement
              because he was promised that he could go home then.

         The trial court said that the statement did not contain any complicated language and
that it appeared to be voluntary. The court found that the appellant lacked credibility and that
Detective Brown was credible. The court said, “I see the signed waivers. The fact that they
would just make this up and tell him to just sign and put yes on everything, it’s just hard for
this Court to believe.” The court concluded that the statement was knowingly and voluntarily
made after the appellant was advised of his Miranda rights and, accordingly, denied the
appellant’s motion to suppress. On appeal, the appellant challenges this ruling.

       Our supreme court recently reiterated that

              “[T]he standard of review applicable to suppression issues is
              well established. When the trial court makes findings of fact at
              the conclusion of a suppression hearing, they are binding upon
              this Court unless the evidence in the record preponderates
              against them. Questions of credibility of the witnesses, the
              weight and value of the evidence, and resolution of conflicts in

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              the evidence are matters entrusted to the trial judge as the trier
              of fact. 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.

                      Our review of a trial court’s application of law to the
              facts is de novo with no presumption of correctness. Further,
              when evaluating the correctness of the ruling by the trial court
              on a motion to suppress, appellate courts may consider the entire
              record, including not only the proof offered at the hearing, but
              also the evidence adduced at trial.”

State v. Bishop, 431 S.W.3d 22, 34-35 (Tenn. 2014) (emphasis omitted) (quoting State v.
Echols, 382 S.W.3d 266, 277 (Tenn. 2012)).

       The Fifth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution provide a privilege against self-incrimination to individuals accused
of criminal activity, thus necessitating our examination of the voluntariness of a statement
taken during custodial interrogation. State v. Northern, 262 S.W.3d 741, 763 (Tenn. 2008).
Specifically, for a confession to be admissible, it must be “‘free and voluntary; that is, [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. Smith,
933 S.W.2d 450, 455 (Tenn. 1996) (quoting Bram v. United States, 168 U.S. 532, 542-43
(1897)). In other words, “the essential inquiry under the voluntariness test is whether a
suspect’s will was overborne so as to render the confession a product of coercion.” State
v. Climer, 400 S.W.3d 537, 568 (Tenn. 2013).

        If, prior to making a statement, the accused is advised of his Miranda rights and then
knowingly and voluntarily waives those rights, the statement is admissible against the
accused. State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998) (citing Miranda, 384 U.S. at
444-45). Our supreme court has held that “the State need only prove waiver [of Miranda
rights] by a preponderance of the evidence. In determining whether the State has satisfied
that burden of proof, courts must look to the totality of the circumstances.” State v. Bush,
942 S.W.2d 489, 500 (Tenn. 1997) (citation omitted). In the course of our examination, we
consider the following factors in determining the voluntariness of a confession: the
appellant’s age; education or intelligence level; previous experience with the police; the
repeated and prolonged nature of the interrogation; the length of detention prior to the
confession; the lack of any advice as to constitutional rights; the unnecessary delay in
bringing the appellant before the magistrate prior to the confession; the appellant’s

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intoxication or ill health at the time the confession was given; deprivation of food, sleep, or
medical attention; any physical abuse; and threats of abuse. State v. Huddleston, 924 S.W.2d
666, 671 (Tenn. 1996). Proof that an accused was made aware of his Miranda rights,
although not conclusive, weighs in favor of the admission of a confession into evidence. See
State v. Carter, 16 S.W.3d 762, 767 (Tenn. 2000).

       On appeal, the appellant complains that the officers questioned him before he was
advised of his Miranda rights. He maintains that at trial, Detective Brown testified that
questioning began at 2:00 p.m. but that the appellant was not advised of his rights until 3:40
p.m. The State argues that this issue was not raised in the trial court and is waived.

        At the suppression hearing, the appellant limited his complaints to whether his limited
ability to read and write, his mental difficulties,2 and the officer’s promises of leniency
impacted the voluntariness of his confession. In his motion for new trial, the appellant
merely asserted that the trial court erred by denying his motion to suppress. Therefore, we
conclude that the appellant waived the issue. Nevertheless, we note that at the suppression
hearing Detective Brown testified that the appellant was informed of his Miranda rights prior
to any discussion about “the particulars” of the case. Moreover, although Detective Brown
initially testified at trial that the appellant was brought into the precinct and advised of his
rights at approximately 2:00 p.m., after reviewing the advice of rights form, he clarified that
the interview began at 3:40 p.m.

        Next, the appellant argues that his lack of education, poor comprehension skills, and
mental problems affected whether his confession was knowingly and voluntarily made. He
also asserts that the voluntariness of his confession was affected by his being held for two
hours then being told that he could go home if he confessed. This court has previously stated
that a defendant’s “illiteracy, mental disability, and educational background . . . do not, in
and of themselves, render [a] statement involuntary. Rather, they constitute factors for the
trial court to consider in evaluating the totality of the circumstances.” State v. John Philip
Noland, No. E2000-00323-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 608, at *6
(Knoxville, Aug. 3, 2000) (citations omitted). Detective Brown testified that the appellant
was relaxed, rational, coherent, and cooperative and that he appeared to understand his
Miranda rights and his statement. Additionally, Detective Brown asserted that he read the
advice of rights form to the appellant, that he had the appellant read the form, and that the
appellant signed the form prior to any discussion of “the particulars” of the case. Detective


        2
         We note that the appellant adduced no proof about his mental health at the suppression hearing or
during the guilt phase of his trial; however, his mental health records were submitted as an exhibit at the
sentencing hearing to show that the appellant had “been continually diagnosed as having schizoid effective
disorder, a history of cocaine abuse and borderline to mild mental retardation.”

                                                   -8-
Brown further denied that he made any promises to the appellant in order to elicit a
confession. The trial court specifically accredited the testimony of Detective Brown and
found that the appellant was not credible. We conclude that the evidence does not
preponderate against the trial court’s finding that the confession was knowing and voluntary
and that the trial court did not err by denying the appellant’s motion to suppress. See State
v. Danny Ray Smith, No. E2012-02587-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS 784,
at *22-25 (Knoxville, Aug. 13, 2014).

                               B. Sufficiency of the Evidence

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proven, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

      Aggravated burglary is defined as “burglary of a habitation.” Tenn. Code Ann. § 39-
14-403. “A person commits burglary who, without the effective consent of the property
owner . . . [e]nters a building . . . with intent to commit a felony, theft or assault.” Tenn.
Code Ann. § 39-14-402(a).

       The proof at trial reflected that the appellant confessed to the crime. Nevertheless,
in Tennessee, “[a] conviction based on a confession cannot stand unless the jury was
presented with independent corroborating evidence.” State v. Clark, 452 S.W.3d 268, 279

                                              -9-
(Tenn. 2014). Our supreme court has explained that to determine whether the confession has
been sufficiently corroborated, appellate courts are to apply the following “‘modified
trustworthiness’ corroboration test”:

              When a defendant challenges the admission of his extrajudicial
              confession on lack-of-corroboration grounds, the trial court
              should begin by asking whether the charged offense is one that
              involves a tangible injury. If the answer is yes, then the State
              must provide substantial independent evidence tending to show
              that the defendant’s statement is trustworthy, plus independent
              prima facie evidence that the injury actually occurred. If the
              answer is no, then the State must provide substantial
              independent evidence tending to show that the defendant’s
              statement is trustworthy, and the evidence must link the
              defendant to the crime.

Bishop, 431 S.W.3d at 58-59 (footnote omitted). Our supreme court further explained that
“[o]ne way the State can effectively bolster the defendant’s admission or confession is to
present independent evidence that ‘parallel[s] the defendant’s confession’ or corroborates the
defendant’s account of what happened immediately before or after the crime.” Id. at 60.

       On appeal, the appellant contends that without his confession, the proof is not
sufficient to convict him. However, we have concluded that the trial court did not err by
admitting the confession. Moreover, the appellant’s confession was corroborated by the
proof at trial. The victim testified that she left her apartment and returned to discover that
a window had been broken and that the exact items listed by the appellant in his statement
had been taken from the apartment. When police investigated, they discovered the
appellant’s fingerprint on the exterior bottom half of the broken window. The fingerprint and
the victim’s testimony about the items taken corroborated the appellant’s confession.

       The appellant also questions the accuracy of the fingerprint analysis. However, the
jury heard the testimony about the fingerprint analysis and accredited Officer Preston’s
conclusion that the fingerprint matched the appellant’s. This court has previously stated that
“‘[f]ingerprint evidence alone may support a conviction and the weight to be given to such
evidence is for the jury’s determination.’” State v. Richmond, 7 S.W.3d 90, 92 (Tenn. Crim.
App. 1999) (quoting State v. Evans, 669 S.W.2d 708, 710 (Tenn. Crim. App. 1984)). Based
upon the foregoing, we conclude that a reasonable jury could have found the evidence
sufficient to convict the appellant of aggravated burglary.




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                              III. Conclusion

Finding no error, we affirm the judgment of the trial court.


                                            _________________________________
                                            NORMA MCGEE OGLE, JUDGE




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