       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                              August 10, 2015 Session

            STATE OF TENNESSEE v. MAURICE MCALLISTER

               Direct Appeal from the Circuit Court for Giles County
                        No. 15836 Stella Hargrove, Judge



             No. M2014-02022-CCA-R3-CD – Filed December 16, 2015


In 2012, a Giles County jury convicted the Defendant, Maurice McAllister, of rape, and
the trial court sentenced him to twelve years of confinement. On appeal, the Defendant
contends that the trial court erred when it: (1) denied his motion to suppress his
statements to police; (2) admitted evidence seized from his vehicle; and (3) imposed a
twelve-year sentence to be served in confinement. The Defendant lastly contends that the
cumulative effect of the errors at trial require a reversal of his conviction. After a
thorough review of the record and applicable law, we affirm the trial court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Robert D. Massey, Pulaski, Tennessee, for the appellant, Maurice McAllister.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Mike Bottoms, District Attorney General; Lawrence R. Nickell, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                      OPINION
                                       I. Facts

       This case arises from the Defendant‟s sexual contact with minor victims at his
home in Giles County, Tennessee. A Giles County grand jury indicted the Defendant for
thirteen offenses, including one count of aggravated rape. The aggravated rape count
was, by agreement of the parties, severed and the Defendant was tried in 2013 for one
count of the aggravated rape of one of the victims, L.H.S.1

                                            A. Pretrial Proceedings

        Officers brought the Defendant to the Giles County Sheriff‟s office on May 1,
2012, where he spoke with the police in a recorded interview and admitted to sexual
contact with the victim. Pretrial, the State sought to have the trial court rule that these
statements were admissible at trial, and the Defendant sought to suppress his statements,
contending that he gave them involuntarily. At the suppression hearing, the State played
the approximately three-hour audio recorded interview. In the recorded interview,
Investigator Mike Chapman identified himself and so did Agent Caleb Utterback. Agent
Utterback told the Defendant that he was going to read the Defendant his Miranda rights,
explaining that before the Defendant answered any questions, he must be read his rights.
The Defendant replied, “Okay.” Agent Utterback then read the Defendant his Miranda
rights, after which the Defendant replied, “No, yeah, that‟s fine.” The Defendant stated
that he had “no idea” why the police were questioning him. Investigator Chapman told
the Defendant that he “might consider” not talking to the police unless he planned to tell
the truth. Investigator Chapman stated that he would “minimize [the Defendant‟s]
exposure” as far as publicity if the Defendant told the truth, and the Defendant replied,
“Sure I‟ll shoot you straight. If I can.” Investigator Chapman told the Defendant that he
was being accused of sexual contact by a group of young Amish people. He commented
that the Amish community as a whole was not known for lying. He asked the Defendant
how he wanted to “approach” the interview, and the Defendant replied, “Ask me
questions.”

       Investigator Chapman asked the Defendant about his interactions with several of
the young Amish people who accused him of sexual contact. The Defendant told
Investigator Chapman about when he last saw or spoke to each of the victims, including
L.H.S., and in what context. Investigator Chapman asked the Defendant about several
different incidents where the victims were accusing him of inappropriate sexual contact.
At one point, the Defendant said he could not recall the exact details of an incident, but
said that he did not blame his inability to recollect on his age, which was 71 years old???.
The Defendant remarked, “I‟m in pretty good shape for my age.”

       Throughout the interview, the officers continued to ask the Defendant questions
and he readily answered them. The interview went on much like a conversation, and at
no point did the Defendant ask to leave or tell the officers that he did not want to answer
their questions. The Defendant was offered a snack or a drink of water and the
opportunity to take a break from the interview; he declined those offers. Later, the


1 It is policy of this Court to refer to minor victims and victims of sex crimes by their initials only.

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Defendant asked to use the restroom, which the officers allowed him to do. The
Defendant, at times, chuckled when he was talking and otherwise, he sounded
comfortable during the interview. Based upon the Defendant‟s responses, he appears
from the recording to understand the questions and the nature of the line of questioning.

        Agent Wayne Wesson is heard entering the interview room and introducing
himself to the Defendant. The Defendant and Agent Wesson discussed the Amish
community and its practices, and the Defendant agreed he had a relationship with some
of the Amish “kids.” He agreed that some of the kids used to work at his home and
identified several of them by name, including L.H.S. Agent Wesson stated that he
believed the Defendant was not being completely truthful, and the Defendant denied this,
insisting that he was being truthful about his interactions with the victims. About his
veracity, he said to Agent Wesson, “I‟m going to tell you how it is,” and that if he
testified “on the stand” he would say the same thing. The Defendant continued to answer
their questions and recalled details of the incidents and offered to take a lie detector test
to prove that he was telling the truth. He stated, “I don‟t want to be crucified but I did
what I did.” Agent Wesson asked the Defendant point blank if he stuck his finger in
L.H.S.‟s vagina, and he replied, “Yes.” The Defendant tried to estimate when it
happened and confirmed that it happened in the “shed” at his residence. The interview
continued with more conversation between Agent Wesson and the Defendant about the
Defendant‟s sexual interactions with the victims and the ages of the victims. The
Defendant admitted having had sexual interactions with the victims.

        Agent Caleb Utterback, an agent employed with the Tennessee Bureau of
Investigation (“TBI”), testified that he and two other officers questioned the Defendant
on May 1, 2012, about his relationship with L.H.S at the Giles County Sheriff‟s
Department. Agent Utterback agreed that he did not “research” the Defendant‟s
intelligence level or education background prior to the interview. Agent Utterback
recalled that, at the end of the interview, the agents and the Defendant went to the
Defendant‟s residence where a search warrant was executed. Their conversation with the
Defendant at his residence was not recorded. The Defendant‟s wife was present during
some or all of the conversation. Agent Utterback testified that he knew the Defendant
was eighty-one years old at the time of the interview. He agreed that Investigator Mike
Chapman told the Defendant that if he was honest during the interview, the agents would
“try to minimize [the Defendant‟s] exposure” in relation to the case. Agent Utterback
recalled that the Defendant asked him during the interview whether he was going to
prison, and the agent did not answer.

        Agent Utterback testified that, throughout the interview, the agents used
investigative techniques to put the Defendant “at ease” and encourage him to talk about
his relationship with L.H.S. Agent Utterback agreed that the Defendant stated, “I need a

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psychologist,” and Agent Utterback asked the Defendant to elaborate on his request.
Based on the Defendant‟s answer, Agent Utterback felt that it was proper for the
interview to proceed. Agent Utterback agreed that, even though the Defendant offered to
take a lie detector test, no lie detector test was administered. Agent Utterback recalled
that, midway through the interview, the district attorney made the decision to arrest the
Defendant.

        Agent Wayne Wesson testified that he was employed by the TBI and that he took
part in the interview of the Defendant. He stated that he entered the interview room after
the interview was already in progress. Agent Wesson agreed that, while interviewing the
Defendant, he engaged in tactics to make the Defendant comfortable, such as saying that
admitting his mistakes would show his good character. He agreed that he minimized the
Defendant‟s sexual behavior, stating that he had also “experimented” as a young man, to
make the Defendant more comfortable and open to speak about his involvement with the
victim. Agent Wesson stated that he asked the Defendant whether he owned a gun based
on L.H.S.‟s allegation that the Defendant had threatened her with a pistol. Agent Wesson
testified that he was aware of the Defendant‟s age and employment history before the
interview began.

       On cross-examination, Agent Wesson testified that the Defendant seemed “alert”
during the interview.

      Based upon this evidence, the trial court denied the Defendant‟s motion to
suppress his statement. The trial court made the following statement:

             [T]he Court is going to address . . . the [D]efendant‟s motion to
      suppress his statement. And we‟ve been listening to this statement for
      several hours. The Court has tried to listen very carefully. I think the
      thrust of the [D]efendant‟s argument is that considering certain factors,
      primarily age, the officers not knowing his full background of education,
      and his work experience, and so on; [the Defendant argues that in] totality,
      the statement is inadmissible as not being voluntarily given by the
      [D]efendant. . . . .

              Once they entered the [interview] room, [Investigator] Mike
      Chapman said a few things, I believe it was Agent Utterback that read the
      rights to [the Defendant.] I thought he read them very clearly and concise.
      And the [D]efendant immediately said, “That‟s fine.” And then they get
      into some questions on the part of Investigator Chapman as to, “How do we
      want this to go?” And I took that to mean the format as to how things
      would go as to the questions and answers, and that sort of thing. And the

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      [D]efendant clearly spoke up and said, “Ask me questions.”

              . . . Now in listening to the [Defendant‟s] statement, it‟s this Court‟s
      position that [the Defendant] understood the questions. I don‟t remember
      any, if any, he asked to be repeated. He responded quickly. He is
      forthcoming. He‟s helpful even, and says he wants to be helpful. At one
      point, he says, “I just want this to go away. You don‟t see me shaking or
      nervous here.” And then he talks about “I‟m in pretty good shape. I hope
      this doesn‟t screw up my trip to the Kentucky Derby.” And he talks about
      he‟ll always be honest with the officers‟ questions. And then he gives his
      answers throughout these three hours or so, he hedges to a certain extent
      and qualifies his answers. . . . .

             This statement clearly is very damaging to the [D]efendant, but it
      will come into evidence. The Court finds that it was voluntarily, freely,
      understandingly, intelligently given throughout. . . . .

                                         B. Trial

        At the Defendant‟s trial, Agent Utterback testified that he had been a TBI agent
for four and a half years and assisted the Giles County Sheriff‟s Department with its
investigation of this case. His involvement with the investigation began on April 30,
2012, when he met with other investigators from Giles and Lawrence Counties after they
had received a call that the Defendant had sexually assaulted a minor. The following
day, May 1, 2012, the Giles County Sheriff‟s office received a call that there was an
“unwanted visitor” at the victim‟s home, who turned out to be the Defendant. Sheriff‟s
deputies responded to the victim‟s home and brought the Defendant back to the sheriff‟s
office, where he was interviewed by sheriff‟s deputies and TBI agents. The audio
recorded interview was admitted as evidence and played for the jury. The recording of
the approximately three-hour interview was abridged into ten excerpts of the interview.
In the first excerpt, Investigator Mike Chapman identified himself and stated that the date
was May 1, 2012. Agent Caleb Utterback identified himself and read to the Defendant
his Miranda rights. The Defendant acknowledged his understanding of his rights and
agreed to talk with the officers. The Defendant stated that he had no idea why he was
being questioned.

       In the second excerpt, Investigator Chapman asked the Defendant if he threatened
the victim, L.H.S., and told her he would kill her if she told anyone about the sexual
contact. The Defendant agreed that he did tell the victim not to say anything about him
touching her. In the third excerpt, the Defendant again said that he told L.H.S not to tell
anyone about him “touching her breast.” He denied threatening her. In the fourth

                                             5
excerpt, the Defendant stated he had never carried a pistol in his pocket, although he did
have a pistol at home and a permit for it. The Defendant stated that his pistol was black.
In the fifth excerpt, the Defendant again denied threatening anybody. He stated that his
pistol was a .38 caliber Smith and Wesson. In the sixth excerpt, Agent Wesson was
present and the Defendant maintained to him that the “gun part” of L.H.S.‟s story was
untrue. He offered to take a lie detector test. He stated that he told L.H.S. that “it” was a
secret.

        In the seventh excerpt, the Defendant said he did not know the date of L.H.S.‟s
birthday. Agent Wesson told the Defendant that L.H.S. was accusing the Defendant of
putting his finger inside her on her birthday, and the Defendant responded, “Well I have
no idea when her birthday is.” The Defendant said that L.H.S. had several boyfriends
and had a relationship with another female. Agent Wesson asked the Defendant, “[D]id
you stick your finger in her at one time?” and the Defendant replied, “Yeah.” The
Defendant said that it happened two and a half or three years prior. He agreed that he
stuck his finger in her vagina and said that L.H.S was “okay with it.” The Defendant said
that they were out in a shed when it happened.

        In the eighth excerpt, the Defendant said that the “threat” part of L.H.S.‟s story
bothered him. In the ninth excerpt, the investigators asked the Defendant if L.H.S.‟s
claim that the incident happened in 2004 was correct. The Defendant replied, “I wouldn‟t
think it‟d be that far back.” The Defendant said he could not remember when his contact
with L.H.S occurred, but “maybe it was” 2004. In the tenth excerpt, the Defendant said,
“the only thing that anybody‟s lied about is me threatening somebody and [that I] had a
gun. No way.”

       Agent Utterback testified that he prepared the search warrant for the Defendant‟s
residence, which included the shed on the property and any vehicles. TBI agents and
sheriff‟s deputies executed the search warrant on the Defendant‟s residence, and they
photographed multiple weapons found inside, including pistols and handguns.
Photographs of the weapons were admitted as evidence. During the search, Detective
Utterback did not find a small silver pistol like the pistol described by the victim.
Detective Utterback recalled that he searched three vehicles on the property, including a
white Ford Expedition belonging to the Defendant. Inside the vehicle in the rear cargo
compartment, investigators found an envelope containing pubic hair, Viagra, and
condoms. Photographs of those three items were admitted as evidence. Detective
Utterback testified that, while at the Defendant‟s residence, Agent Wesson interviewed
the Defendant‟s wife.

       Agent Wesson, a TBI Special Agent, testified that, when he arrived at the sheriff‟s
office on May 1, the interview with the Defendant was already in progress. He stated that

                                             6
he interviewed the Defendant‟s wife at the residence she shared with the Defendant later
that day. While at the Defendant‟s residence, Agent Wesson showed the envelope
containing the hair to the Defendant, and the Defendant said that he had taken pubic hair
from L.H.S. in the past. The Defendant told Agent Wesson that L.H.S had cut her own
pubic hair and that he had kept it. Agent Wesson testified that the Defendant admitted to
putting his finger inside L.H.S.‟s vagina.

       On cross-examination, Agent Wesson stated that, for the majority of the interview,
only he and the Defendant were present, although other investigators came and went
throughout. He agreed that he took a written statement from the Defendant‟s wife.
Agent Wesson recalled that he had information that the Defendant had threatened L.H.S.
with a small, silver pistol, and the Defendant‟s wife confirmed that she owned a pistol
matching that description.

        Dianne McAllister, the Defendant‟s wife, testified that she had been married to the
Defendant for fifty-two years. She testified that they were “familiar” with the Amish
people and that they had gotten to know them, in part, because they bought vegetables
from them. She agreed that she and the Defendant kept guns in their home. She agreed
that they had a small pistol, but she said that it was black, not silver.

        On cross-examination, Mrs. McAllister testified that she and the Defendant had
thirty acres of land that they cared for themselves, along with the help of some girls from
the Amish community, one being L.H.S. L.H.S. and another girl helped the McAllisters
with weeding, painting, raking leaves, and working in the flower beds. Mrs. McAllister
stated that she and the Defendant had a “friendly” relationship with the girls and that they
visited each other‟s homes and exchanged gifts. Mrs. McAllister recalled that L.H.S.
came to their home and was curious about the modern appliances and amenities that she
did not have in the Amish community. The McAllisters paid L.H.S. to do work at their
house for a number of years.

        L.H.S. testified that she was twenty-five years old and married at the time of trial.
L.H.S. testified that she met the Defendant when she was twelve years old, and she
specifically recalled seeing him on her sixteenth birthday in September 2004. On that
occasion, L.H.S. saw the Defendant in the “wash-house” at her parents‟ home, a room
where her family did laundry and cooked meals. The Defendant came inside the “wash-
house” while she was cooking and hugged her. The Defendant then “reached on [her]
breast” on the outside of her dress while she “just stood there.” L.H.S. testified that she
did not want the Defendant to touch her, but she did not protest because she “knew he
was going to hurt [her]” if she did. She explained that the Defendant had shown her his
pistol in the past and said he would kill her if she told anyone about his physical contact
with her. L.H.S. testified that the Defendant then opened his pants and began

                                             7
masturbating in front of her and ejaculated. The Defendant told L.H.S. to look at his
penis while he was masturbating. Next, the Defendant reached up under L.H.S.‟s dress
and put his finger in her vagina. L.H.S. reiterated that she did not stop him because she
was afraid he had the pistol she had seen previously. She described the pistol he
threatened her with as a small, silver gun that fit into the Defendant‟s pocket. The
Defendant told her during this incident to remember that he had the pistol in his pocket
and that he would use it on her if she told anyone.

       L.H.S. testified that on a different occasion the Defendant gave her a pair of
scissors and told her to go into the “wash-house” and cut some of her pubic hair to give to
him.

       On cross-examination, L.H.S. stated that she and her sisters sometimes worked for
the McAllisters. She agreed that the McAllisters had visited her family‟s home on
occasions and said that they sometimes brought gifts. L.H.S. agreed that in the Amish
community having sexual contact with someone would be punishable through a process
called “shunning.”

       L.H.S. agreed that she did not see a pistol on the day the Defendant touched her in
the “wash-house,” but she reiterated that he told her he had one and threatened to shoot
her with it. L.H.S. stated that she kept working for the Defendant after the incident
because she did not want her parents to find out about the incident in the “wash-house.”
L.H.S. recalled that, at some point, the Defendant gave her and her siblings costumes to
dress up in, and he took pictures of them.

       The State rested its case, and the defense called Investigator Tim Scott as its first
witness. Investigator Scott testified that he served as the evidence custodian at the Giles
County Sheriff‟s office and took part in the search of the Defendant‟s residence. He
confirmed that, during the search, investigators were looking for guns and that they did
not find a small, silver pistol inside the residence.

        Investigator Mike Chapman testified that he was employed by the Giles County
Sheriff‟s office and that he interviewed the Defendant on May 1, 2012. He testified that
he began the interview in the presence of Agent Utterback until Agent Wesson took over
the interview. Investigator Chapman recalled that L.H.S.‟s father called police when the
Defendant showed up at his house, and officers subsequently brought the Defendant to
the sheriff‟s office where he gave an audio recorded statement. Investigator Chapman
testified that Agent Utterback administered Miranda warnings to the Defendant.

      Tyler Ultsch testified that he had been friends with the Defendant since 1985 and
was engaged to marry the Defendant‟s daughter. The Defendant‟s son had worked for

                                             8
him in the past. Mr. Ultsch and his fiancé had visited the Defendant in Tennessee
approximately twelve times, and, during their visits, they had visited L.H.S.‟s home. He
specifically recalled a visit in March of 2012 when he met L.H.S. Mr. Ultsch testified
that L.H.S. did not appear afraid of the Defendant but was laughing and talking with him.
He stated that he had never seen the Defendant with a pistol like the one described by
L.H.S.

        Debbie Lewis testified that she was the Defendant‟s daughter and lived in Oregon
with her fiancé. Ms. Lewis stated that she visited the Defendant in Tennessee several
times a year. She testified that the Defendant owned guns, including several pistols. She
testified that she had visited with L.H.S. and her family and that L.H.S. never seemed
afraid of the Defendant. Ms. Lewis denied that the Defendant owned a small, silver
pistol similar to the one described by L.H.S.

       At the conclusion of the evidence, the jury convicted the Defendant of the lesser-
included offense of rape.

                                      C. Sentencing

        At the Defendant‟s sentencing hearing, the presentence report was admitted as
evidence. Attached to it was a victim impact statement. Also admitted as evidence were
multiple letters written in support of the Defendant, a “Neuropsychological Evaluation
Report” prepared by Dr. James Walker, and a “Comprehensive Psychosexual Evaluation”
prepared by Dr. John Lancaster. L.H.S. testified that, as a result of the Defendant‟s
conduct, she could not sleep and sometimes would throw up. She stated that this
occurred more frequently when she was younger, closer to the date of the offense. L.H.S.
testified that she was afraid of the Defendant and worried that he would take advantage of
her. L.H.S. stated that she was undergoing counseling and that she worried someone
would sexually molest her children.

        The trial court sentenced the Defendant to twelve years‟ incarceration. In doing
so, the trial court noted the Defendant‟s “social history,” his advanced age, that he had no
prior criminal history, his prior military service, and his ongoing medical issues. The
trial court acknowledged the Defendant‟s statements of remorse for the offense but stated
that it had trouble reconciling the Defendant‟s other statement that the contact was
consensual. The trial court stated that it considered the “actions and character of the
Defendant” as well as the letters written on behalf of the Defendant.

       With respect to enhancement and mitigating factors, the trial court found and gave
“great weight” to the fact that “the Defendant ha[d] a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the

                                             9
appropriate range.” The trial court also applied the enhancement factor that “the offense
involved a victim and was committed to gratify [the Defendant‟s] desire for the pleasure
or excitement” and also gave it “great weight.” The trial court considered as a mitigating
factor the fact that the Defendant had cooperated with law enforcement and admitted to
his offenses.

       In consideration of the Defendant‟s potential for rehabilitation, the trial court
further noted Dr. Lancaster‟s conclusion that the Defendant was a “moderate risk to
reoffend” and both doctors‟ conclusions that the Defendant should be restricted from
contact with minors or other vulnerable individuals. The trial court also noted the
Defendant‟s “inability to report truthfully about inappropriate behaviors,” in reference to
the Defendant‟s claim that his contact with L.H.S. was consensual. Thus, the trial court
found that incarceration served the interests of society by protecting society from the
Defendant‟s possible future criminal conduct. The trial court found that the Defendant
did not appreciate the seriousness of the offense and that imposing an alternative sentence
would depreciate the seriousness of the offense. Finally, the trial court found that
incarceration would serve as an effective deterrent to prevent the Defendant from
committing similar offenses.

                                       II. Analysis

        On appeal, the Defendant contends that the trial court erred when it: (1) denied his
motion to suppress his statements to police; (2) admitted evidence seized from his
vehicle; and (3) imposed a twelve-year sentence to be served in confinement. The
Defendant also contends that the cumulative effect of the errors at trial require a reversal
of his conviction. We address each of the Defendant‟s arguments in turn.

                                 A. Motion to Suppress

       The Defendant contends that the trial court erred when it denied his motion to
suppress his statements to Agent Wesson, Agent Utterback, and Investigator Chapman.
He contends that the totality of the circumstances, specifically his age, his lack of
experience with the criminal justice system, the length of the interview, the interviewers‟
techniques, and the interviewers‟ “failure to answer his questions about whether he [was]
about to be arrested” establishes that his statement was not voluntary. The State responds
that the evidence presented at the suppression hearing established that the Defendant‟s
statement was voluntary. We agree with the State.

      Our standard of review for a trial court‟s findings of fact and conclusions of law
on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.
1996). Under this standard, “a trial court‟s findings of fact in a suppression hearing will

                                            10
be upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the
prevailing party in the trial court is afforded the „strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.‟” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the trial
court‟s application of the law to the facts, without according any presumption of
correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact,
is able to assess the credibility of the witnesses, determine the weight and value to be
afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at
23. In reviewing a trial court‟s ruling on a motion to suppress, an appellate court may
consider the evidence presented both at the suppression hearing and at the subsequent
trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       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). No single factor, however, is necessarily determinative. State v.
Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (citing Fairchild v. Lockhart, 744 F. Supp.
1429, 1453 (E.D. Ark. 1989)). Further, “[a] trial court‟s determination that a confession
was given knowingly and voluntarily is binding on the appellate courts unless the
defendant can show that the evidence preponderates against the trial court‟s ruling.”
State v. Keen, 926 S.W.2d 727, 741 (Tenn. 1994).

       “Coercive police activity is a necessary prerequisite in order to find a confession
involuntary.” Id. (citing State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). “The
crucial question is whether the behavior of the state‟s officials was „such as to overbear
[defendant]‟s will to resist and bring about confessions not freely self-determined.‟” Id.
(quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)); see State v. Kelly, 603 S.W.2d
726, 728 (Tenn. 1980). The question must be answered with “complete disregard” of
whether the defendant was truthful in the statement. Phillips, 30 S.W.3d at 377 (citing
Rogers, 365 U.S. at 544).


                                            11
       The evidence presented at the hearing does not preponderate against the trial
court‟s finding that the Defendant‟s statement was given voluntarily. The evidence
presented by the State at the suppression hearing was the three-hour audio recording and
the interviewing officers‟ testimony. Agent Utterback testified that he advised the
Defendant of his Miranda rights, which was also heard in the audio recording. In the
recording, the Defendant expressed his willingness to talk to investigators and continued
to do so for several hours without any indication that he did not wish to be questioned or
that he wanted the interview to end. The Defendant was forthcoming and stated
specifically that he was willing to answer the officers‟ questions. Throughout the
recording, there was no indication by the Defendant that he was not participating in the
interview voluntarily.

        The Defendant contends that his statement was not voluntary because officers did
not research the Defendant‟s intelligence level or age before questioning him and then
engaged in various tactics to encourage the Defendant to be comfortable and talk to them,
amounting to coercion. We disagree. The Defendant‟s advanced age and ignorance
about the criminal justice system does not necessarily amount to his statement being
involuntarily. See State v. Rosa, 996 S.W.2d 833, 838 (Tenn. Crim. App. 1999) (citing
Harris v. Riddle, 551 F.2d 936, 939 (4th Cir. 1977) (concluding that “[w]hen the police
have fully and fairly given a suspect the Miranda warnings their duty is discharged, and
we hold that they are under no further and additional duty whether or not the suspect acts
wisely or foolishly or misapprehends either the facts or the law”). Furthermore, 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. Anthony
Draine, No. W2013-02436-CCA-R3-CD, 2015 WL 1932273, at *6 (Tenn. Crim. App., at
Jackson, April 29, 2015) (citing State v. John Philip Noland, No. E2000-00323-CCA-R3-
CD, 2000 WL 1100327, at *6 (Tenn. Crim. App., at Knoxville, Aug. 3, 2000)).

        The Defendant has not presented evidence to show that the officers‟ questions or
tactics, reviewed in the totality of the circumstances, were such as to overbear the
Defendant‟s will to bring about a statement that was the product of coercion. The
Defendant gave his statement after being read his Miranda rights. He was not mistreated,
threatened, or treated disrespectfully by the questioning officers. The Defendant told
Agent Wesson that he was in “good shape” for his age, and repeatedly denied needing a
break from questioning or needing food or water during the three-hour interview. We
conclude, as did the trial court, that the Defendant‟s statement was voluntarily given.
The Defendant is not entitled to relief.

                            B. Admissibility of the Evidence


                                            12
       The Defendant next contends that the trial court erred when it admitted certain
items found in the search of his vehicle into evidence at trial: the envelope containing the
pubic hair, the Viagra, and the condoms. He contends that there was no proof that the
condoms or Viagra were ever used and no proof that the pubic hair had come from the
victim. He argues that none of this evidence was relevant to the charged offense of
aggravated rape. In the alternative, the Defendant argues that any of the items deemed
relevant were more prejudicial than probative. The State responds that the envelope of
pubic hair was particularly probative as corroborative of the victim‟s testimony and was
not unfairly prejudicial. As to the condoms and Viagra, the State contends that the items
were evidence of the Defendant‟s interest in sexual activity and that, even if the trial
court abused its discretion in admitting them, the error was harmless.

        The Tennessee Rules of Evidence provide that all “relevant evidence is
admissible,” unless excluded by other evidentiary rules or applicable authority. Tenn. R.
Evid. 402. Of course, “[e]vidence which is not relevant is not admissible.” Id. Relevant
evidence is defined as evidence “having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tenn. R. Evid 401. Even relevant evidence,
however, “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.

        After the trial court finds that the proffered evidence is relevant, it then weighs the
probative value of that evidence against the risk that the evidence will unfairly prejudice
the trial. State v. James, 81 S.W.3d 751, 757 (Tenn. 2002). If the court finds that the
probative value is substantially outweighed by its prejudicial effect, the evidence may be
excluded. Tenn. R. Evid. 403. “„Excluding relevant evidence under Tennessee Rule of
Evidence 403 is an extraordinary remedy that should be used sparingly and persons
seeking to exclude otherwise admissible and relevant evidence have a significant burden
of persuasion.” James, 81 S.W.3d at 757-58 (quoting White v. Vanderbilt Univ., 21
S.W.3d 215, 227 (Tenn. Ct. App. 1999) (citations omitted)).

        Generally, the admissibility of evidence rests within the sound discretion of the
trial court, and this Court does not interfere with the exercise of that discretion unless a
clear abuse appears on the face of the record. State v. Franklin, 308 S.W.3d 799, 809
(Tenn. 2010). “A trial court abuses its discretion only when it applies an incorrect legal
standard or makes a ruling that is „illogical or unreasonable and causes an injustice to the
party complaining.‟” Id.

       We first turn to the admissibility of the envelope containing the pubic hair. The

                                              13
trial court found that it was relevant and that the probative value substantially outweighed
the prejudicial effect. We similarly conclude that it was relevant, given the victim‟s
testimony that the Defendant gave her a pair of scissors and told her to cut her pubic hair
to give to him. The envelope containing the hair corroborates this testimony. The
Defendant admitted to investigators that the pubic hair was the victim‟s. Even if the
evidence meets the test of relevance, however, Tennessee Rule of Evidence 403 may still
justify exclusion of such evidence. Under Rule 403, relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” We conclude that, as
this evidence was directly linked to the victim‟s testimony, its introduction aided the jury
in determining the credibility of the victim‟s testimony. In our view, the probative value
of this evidence was not substantially outweighed by the danger of unfair prejudice.
Accordingly, the trial court properly admitted this evidence.

       As to the Viagra and condoms, the State concedes in its brief that these items are
prejudicial and have “little probative value taken alone,” however, the State argues that
their presence with the envelope of pubic hair confirms the “sexual nature of the
[D]efendant‟s retention of victim‟s hair.” Although the Defendant admitted that he had
sexual contact with the victim, there were discrepancies in his statements and between his
account and the victim‟s account. Additionally, the State had the burden at trial of
introducing relevant evidence from which a jury could conclude beyond a reasonable
doubt that the Defendant sexually assaulted the victim.

       We conclude that the Viagra and the condoms, both sexual in nature, and found in
close proximity to the pubic hair, are relevant evidence concerning whether or not the
Defendant sexually assaulted the victim. We agree with the State that these items, found
with the victim‟s pubic hair, add relevance to the pubic hair and make it more probable
than not that the Defendant was capable of sexual assault, which was a part of the jury‟s
consideration. See Tenn. R. Evid. 401. In our view, the probative value of these items,
taken in the context of their presence with the victim‟s hair, is not outweighed by the
danger of unfair prejudice. The Defendant is not entitled to relief on this issue.

                                      C. Sentencing

       The Defendant next contends that his sentence is “inappropriate” on multiple
grounds. He argues that the trial court misapplied the sentencing principles, particularly
when it applied the enhancement factors without providing a rationale as to how the
factors were weighed and apportioned. The Defendant contends that a nine-year sentence
would be appropriate and requests that he be granted an alternative sentence. The State
responds that the Defendant has a “significant history” of criminal behavior to support

                                            14
the trial court‟s application of the enhancement factor, and thus, his sentence is proper.

       The Defendant was sentenced for his 2004 crime under the terms of the 1989
Sentencing Act prior to the 2005 amendments and therefore, we review his challenge to
the sentence under our previous standard of review. Under that standard, when
considering a challenge to the length, range, or manner of service of a sentence, this court
conducts a de novo review with a presumption that the determinations of the trial court
are correct. T.C.A. § 40-35-401(d) (1997); see also State v. Carter, 254 S.W.3d 335, 342
(Tenn. 2008) (stating that “prior to 2005, the Sentencing Act set forth a „presumptive
sentence‟ to be imposed within the applicable range: the minimum sentence for all
felonies other than Class A felonies, and the midpoint sentence for Class A felonies.)
The presumption of correctness “is conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” Carter, 254 S.W.3d at 344-45 (quoting State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991)). The appealing party, in this case the Defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Cmts.; see also Carter, 254 S.W.3d at 344; Ashby, 823 S.W.2d at 169. If our review of
the sentence establishes that the trial court gave “due consideration and proper weight to
the factors and principles which are relevant to sentencing under the Act, and that the trial
court‟s findings of fact . . . are adequately supported in the record, then we may not
disturb the sentence even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the event the record fails to
demonstrate the required consideration by the trial court, appellate review of the sentence
is purely de novo. Ashby, 823 S.W.2d at 169.

       Under the law prior to the 2005 amendments to our Sentencing Act, our supreme
court had held that a trial court‟s enhancement of a defendant‟s sentence above the
presumptive sentence on the basis of judicially determined facts, other than a defendant‟s
prior convictions or admissions, violated that defendant‟s constitutional rights under the
Sixth Amendment to the United States Constitution. State v. Gomez, 239 S.W.3d 733,
740 (Tenn. 2007); see also Blakely v. Washington, 542 U.S. 296, (2004). We note that
the wrongful application of one or more enhancement factors by the trial court does not
necessarily lead to a reduction in the length of the sentence. State v. Gillard, No. W2002-
01189-CCA-R3-CD, 2003 WL 22446353, at *5 (Tenn. Crim. App., at Jackson, Oct. 21,
2003) (citing State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000)).

       In the present case, the trial court applied the enhancement factor that “the offense
involved a victim and was committed to gratify [the Defendant‟s] desire for the pleasure
or excitement” and gave it “great weight.” We conclude that the application of this
enhancement factor was error, as its application was based on “judicially determined
facts” and thus violated the Defendant‟s constitutional rights. See Gomez, 239 S.W.3d at

                                             15
740. However, the trial court also applied the enhancement factor that “the Defendant
ha[d] a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range.” The State contends in its brief, and we
agree with its contention, that the evidence provided to the trial court at the sentencing
hearing contains sufficient facts from which the trial court could determine that the
Defendant had a significant history of criminal behavior by having sexual contact with
minors. The evidence includes the Defendant‟s admissions, the presentence report,
which contains allegations of the Defendant‟s sexual contact with multiple minor victims
and Dr. Walker‟s report, submitted by the Defendant, in which Dr. Walker summarizes
the Defendant‟s accounts of the multiple sexual behaviors he engaged in with the victim
and her minor siblings. Based on this evidence in the record, we conclude that the trial
court properly applied this enhancement factor and properly sentenced the Defendant.

        Because we have determined that the Defendant‟s twelve-year sentence in
confinement for his rape conviction is proper, we conclude that he is ineligible for
probation. See T.C.A. § 40-35-303(a). The trial court considered the Defendant‟s
suitability for an alternative sentence and determined, based on the evidence, that an
alternative sentence would depreciate the seriousness of the offense, see T.C.A. § 40-35-
103(1)(B), and that the Defendant was not forthcoming about the nature of his
relationship with L.H.S. State v. Jamarcus Sydnor, No. M2009-00947-CCA-R3-CD,
2010 WL 271183, at *5 (Tenn. Crim. App., at Nashville, Jan. 25, 2010) (stating that “The
trial court may consider a defendant‟s untruthfulness and lack of candor as they relate to
the potential for rehabilitation.”) (citing State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.
App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v.
Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d
69, 84 (Tenn. Crim. App. 1995)). We conclude, based on the evidence in the record that
the trial court did not err when it declined to impose an alternative sentence because the
Defendant was ineligible. The Defendant is not entitled to relief.

                                  D. Cumulative Error

       Finally, the Defendant contends that the cumulative effect of the alleged errors
requires that the case be reversed because he was denied his right to a fair trial. Having
considered each of the Defendant‟s issues on appeal and concluding that the trial court
did not err, we need not consider the cumulative effect of the alleged errors. State v.
Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To warrant assessment under the cumulative
error doctrine, there must have been more than one actual error committed.”).

                                     III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the

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judgment of the trial court.

                                    ________________________________
                                     ROBERT W. WEDEMEYER, JUDGE




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