        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 12, 2011

             STATE OF TENNESSEE v. CARL LEE HOUGHTON

                 Appeal from the Circuit Court for Henderson County
                      No. 09-063-2     Donald H. Allen, Judge


                  No. W2010-01482-CCA-R3-CD - Filed June 30, 2011


The Defendant, Carl Lee Houghton, was found guilty by a Henderson County Circuit Court
jury of aggravated sexual battery, a Class B felony. See T.C.A. § 39-13-504(a)(4) (2010).
He was sentenced as a Range I, standard offender to ten years’ confinement in the
Department of Correction. On appeal, he contends that (1) the evidence was insufficient to
support his conviction, (2) the trial court erred by denying his motion to suppress his
confession because it was not made voluntarily, and (3) the trial court erred in sentencing by
not giving more weight to applicable mitigating factors. We affirm the judgment of the trial
court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and R OBERT W. W EDEMEYER, JJ., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Carl Lee Houghton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; James G. Woodall, District Attorney General; and Angela Scott, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        This case relates to the Defendant and his step-granddaughter. At the trial, the victim
testified that she was nine years old at the time of the trial. She and her siblings lived with
her grandmother during the week, and the Defendant was married to her grandmother and
lived in the same home. The victim said she referred to the Defendant as her “Pawpa.”
        The victim testified that in October 2008, she watched a video called “A Good Touch
and a Bad Touch” at her elementary school and that afterwards, she told Ms. Christy that the
Defendant had touched her a week earlier. She said that the Defendant touched her bottom
and her chest over her clothes and that the touching made her feel bad. She said that the
Defendant touched her in the bedroom she shared with her brother but that only she and the
Defendant were in the room when he touched her. She said that the Defendant did not say
anything when he touched her and that she did not say anything to him. She said that she did
not wrestle with the Defendant and that she did not remember the Defendant’s touching her
on any other occasions. She said that after speaking with Ms. Christy, she spoke with women
at the Carl Perkins Center. She said that because she was nervous, she told the women at the
center that the Defendant did not touch her. She said she also told her mother that the
Defendant did not touch her.

        On cross-examination, the victim testified that she remembered the Defendant’s
removing ticks from the front of her leg in October 2008. She denied the Defendant removed
ticks from her buttocks or from the back of her leg. She said she discussed her allegations
against the Defendant with her mother, Ms. Christy, Investigator Crystal Pratt, and the
prosecutor.

       Henderson County Sheriff’s Investigator Crystal Pratt testified that she worked
primarily on child abuse and sex crimes. She was informed of the victim’s allegations
against the Defendant in October 2008. The first step in her investigation was to have the
Carl Perkins Center perform a forensic interview with the victim. She said she observed a
recording of the interview because the only persons allowed in the interview room were the
victim and the interviewers. She said that during the interview, the victim denied the
Defendant touched her.

        Investigator Pratt testified that she contacted the Defendant on November 11, 2008,
and that she met with him that day. She said the Defendant made a written statement in
which he denied the victim’s allegations. She said the Defendant stated that he wrestled with
the victim and that if he ever touched the victim inappropriately, it was an accident. At the
end of the interview, the Defendant agreed to return for a polygraph examination with the
Tennessee Bureau of Investigation (TBI). She said the Defendant called her on November
14, 2008, and informed her that he recalled an incident when he removed a tick from the
victim near her “private area.”

       Investigator Pratt testified that she arranged for TBI Agent Valerie Troutt to interview
the Defendant and administer a polygraph examination on the morning of December 3, 2008.
She said she was present when the Defendant signed a form consenting to the polygraph
examination. She identified the form and said she signed the form as a witness. She

                                              -2-
identified a second form signed by the Defendant titled, “Tennessee Bureau of Investigation
Warnings as to Constitutional Rights,” and said it informed the Defendant of his Miranda
rights, including his right not to incriminate himself and his right to an attorney. She said she
was present when the form was reviewed with the Defendant and signed by him. She said
she left the room at approximately 9:45 a.m. after the Defendant signed the forms because
standard procedure allowed only the Defendant and Agent Troutt to be in the interview room.

       Investigator Pratt testified that she was called back to the room about one hour later.
She identified a statement signed by the Defendant and said she was present when the
Defendant made the statement and signed it. She said that Agent Troutt wrote the statement
as the Defendant spoke but that the Defendant reviewed the statement and was allowed to
make changes before he signed it. The statement was read to the jury:

                     This is my voluntary statement given to Special Agent
              Valerie Troutt and Investigator Crystal Pratt. Valerie is writing
              my statement because I asked her to. I have not been coerced,
              threatened, or promised anything. I simply want to set the
              record straight and own what I did and explain what I did not
              do:

                      I did touch [the victim’s] butt approx. five times outside
              of her clothing at [my home] when I knew I had crossed the line
              and the touching became sexual in nature. I’ve never watched
              [the victim] undress, however, for any type of sexual
              satisfaction. If I touched [the victim’s] vagina there was no
              sexual intent like when I touched [the victim’s] butt. The
              touches of [the victim’s] vagina were on top of her clothing.
              I’m glad [the victim] stood up for herself. The times I touched
              [the victim’s] butt and it got out of hand (sexual, touchie-feelie)
              I knew around the third or fourth time I should not have touched
              her in that way. The sexual touching started around about
              September of this year. The touching always started out
              innocent. I don’t know why it progressed to a sexual nature
              those five times. I’m sorry I did it and sorry I got caught. To
              make sure this never happens again I should not be around those
              kids. I think I deserve some jail time for this and I have learned
              my lesson. Amen. Carl Houghton.

Investigator Pratt said the statement was completed at 11:00 a.m. on December 3, 2008. She
said that they allowed the Defendant to go home and that they arrested him the next morning.

                                               -3-
        On cross-examination, Investigator Pratt agreed that the Defendant voluntarily came
to the Sheriff’s department for his initial interview and for the polygraph examination. She
said that she did not write down what the Defendant stated during their initial interview on
November 11, 2008, but that the Defendant wrote his own statement denying the victim’s
allegations. Although the Henderson County Sheriff’s Department had tape recording
equipment, the interviews with the Defendant on November 11, 2008, and December 3,
2008, were not recorded. She said the department rarely recorded interviews.

       Investigator Pratt testified that she was present when the Defendant gave his statement
to Agent Troutt. She said she was absent from the interview room for about one hour and
did not know what occurred in the room before the Defendant gave his statement. On
redirect examination, Investigator Pratt testified that she and Agent Troutt heard the
Defendant give his statement.

       TBI Agent Valerie Troutt testified that she was the polygraph examiner for West
Tennessee. On December 3, 2008, she prepared to administer a polygraph examination on
the Defendant. She identified a form on which the Defendant consented to the polygraph and
said she read the form to the Defendant before he signed it. The form provided that the
Defendant had the right to have the polygraph examination recorded, but she said the
Defendant did not exercise that right. She said TBI policy was not to record an examination
unless a defendant requested the recording. She identified a form from which the Defendant
was informed of his constitutional rights and said she read the form to the Defendant and had
him read the waiver of his rights aloud before he signed it. She said the Defendant agreed
to sign the form after being advised of his rights. She said Investigator Pratt was present
when the Defendant signed the forms.

       Agent Troutt testified that after the Defendant signed the forms, she explained to him
that in order for the polygraph examination to be valid, the only persons allowed in the
interview room were herself and the Defendant. She said that after Investigator Pratt left the
room, she spent about thirty minutes asking the Defendant questions regarding his
background and medical conditions that could affect the examination. She said she then
asked the Defendant the reason why he was taking the polygraph examination and why he
thought the victim lied. She said the Defendant “dropped his head” and “had an issue with
saying that [the victim] lied.” She said she then asked, “She’s not lying, is she?” She said
the Defendant replied, “No, she’s not.” She said that they then spoke of the victim’s
allegations in detail and that the Defendant explained what he did and did not do to the
victim. She said she called Investigator Pratt back to the room and had the Defendant give
a formal statement.




                                             -4-
        Agent Troutt identified the Defendant’s signed statement and testified that she wrote
the statement at the Defendant’s request. She said that as the Defendant explained what he
had done, she stated aloud what she wrote and asked him if the statement was accurate and
whether he would change the content or the wording. She said she had the Defendant read
the statement aloud, initial the first and last line, and sign the statement. She said the
Defendant was remorseful as he gave the statement. She said she did not administer the
polygraph because the Defendant confessed while she asked “pre-test” questions. She said
the Defendant did not request another polygraph examination.

       On cross-examination, Agent Troutt agreed that the Defendant met with her
voluntarily but testified that she did not know whether the Defendant or Investigator Pratt
requested the polygraph examination. She said that although she could have recorded the
interview, she would not record an interview if a defendant stated that he or she did not want
it recorded. She agreed a recording would have captured each word said during their
conversation. Agent Troutt said that before the interview, she was informed that the victim
told her guidance counselor the Defendant rubbed her breasts, vagina, and buttocks and that
the Defendant denied the allegations in his initial interview with Investigator Pratt. She did
not recall if she was informed that the victim denied the Defendant touched her when the
victim spoke with persons at the Carl Perkins Center, but she agreed the victim’s denial
would have been important to know.

        Agent Troutt testified that the Defendant was cooperative, polite, and “likeable”
during the interview. She said that she asked preliminary questions to build a rapport with
the Defendant and that the Defendant denied being treated for any medical condition, being
in any current pain or discomfort, having been hospitalized within five years for any serious
illness, or using any illegal drugs. She said the Defendant informed her that he and his wife
did not have sex, that he had a problem ejaculating, that he was diagnosed with diabetes in
2004, and that he received a medical discharge from the military.

        Agent Troutt testified that she did not know why the Defendant wanted her to write
his statement for him. She said the written statement was a synopsis of what the Defendant
said, but not verbatim. She said the Defendant determined what information went into the
written statement. She said Investigator Pratt returned to the interview room about fifteen
minutes before she wrote the Defendant’s statement. On redirect examination, Agent Troutt
testified that she and Investigator Pratt witnessed the Defendant give his statement.

        The Defendant testified that he joined the Tennessee National Guard after completing
high school and that he received a medical discharge because he had type II diabetes. He
said he took medication to control his diabetes. He said that he lived with his wife and that
their grandchildren, including the victim, lived with them during the week to facilitate the

                                             -5-
children’s school attendance. The victim and her siblings lived with their mother on the
weekends. When asked to describe his relationship with his grandchildren, he said he was
their “daddy.” He said that the victim was eight years old in the fall of 2008 and that he
never had any problems with her. He said that he previously touched the victim’s buttocks
to remove ticks but that the touching was not inappropriate and was the only time he ever
touched the victim in that way.

       The Defendant testified that he learned of the victim’s allegations after speaking with
Investigator Pratt on November 11, 2008. He said he voluntarily met with Investigator Pratt
and told her the truth. He said he called Investigator Pratt a few days later because he
recalled that he removed ticks from the victim. He said that he voluntarily met with
Investigator Pratt and Agent Troutt on December 3, 2008, to take a polygraph and that he
signed a form consenting to the polygraph examination. He said that he looked over the form
but that he was not able to read well that morning due to his glaucoma. He agreed he also
signed a waiver of his Miranda rights.

        The Defendant testified that Investigator Pratt left the interview room and that
although Agent Troutt was initially nice, her attitude changed suddenly and made the
Defendant feel like he was guilty. He agreed that he spoke with Agent Troutt about the
victim’s allegations and that she wrote his statement. He said that the first thing he said
when she started writing was, “What do you want me to say?” He said he did not tell Agent
Troutt the truth because she made him feel guilty and he wanted to “get out of her office.”
He said that his eyes were “blurry” but that Agent Troutt read the statement to him. He said
he signed the statement out of “stupidity” because he wanted “to get it over with.” He said
that although he told Agent Troutt he removed ticks from the victim, the statement did not
contain that information. He did not recall telling Agent Troutt that he touched the victim
sexually and said he never touched the victim with any type of sexual intent. He said the
interview with Agent Troutt took fifteen to thirty minutes.

         On cross-examination, the Defendant testified that when he spoke with Investigator
Pratt, he denied the victim’s allegations. He said that if he ever touched the victim, it was
done accidentally while they were outside playing and wrestling. He said that although the
victim testified that she did not wrestle with the Defendant, the victim may not have
remembered playing in the yard. He agreed the victim testified that she remembered the
Defendant’s removing ticks from her body, that the incident with the ticks was not when the
Defendant touched her inappropriately, and that the Defendant touched her while she wore
night clothes. When asked if the victim was lying, the Defendant said, “I’m not calling her
a liar.”




                                             -6-
       The Defendant identified the written statement created during his interview with
Agent Troutt and testified that the signature and initials on the statement appeared to be his
own. He said he always signed his name, “Amen. Carl Houghton.” He agreed he told Agent
Troutt he touched the victim approximately five times in September 2008. He agreed Agent
Troutt read the statement to him but said he gave a false statement. He said he told the truth
during his first interview but lied during the second interview. He said he lied because he
had not taken his medication and wanted to “get out of the place and try to get some
medication for myself.” He agreed Agent Troutt asked him if he had any reason he could not
take the polygraph or tell the truth that day, and he said he told Agent Troutt he would do the
best he could. He agreed he told Agent Troutt that he never watched the victim undress and
that he never touched the victim anywhere other than on her buttocks.

        Nathaniel Green testified that he was a clergyman with the Peace United Methodist
Church. He said that he knew the Defendant through the church and that the Defendant was
a truthful man. On cross-examination, Mr. Green testified that he had known the Defendant
for about nine months and that he did not know the Defendant before the victim’s allegations
were made against the Defendant.

      Upon this evidence, the jury found the Defendant guilty of aggravated sexual battery.
He was sentenced as a Range I, standard offender to ten years’ confinement in the
Department of Correction. This appeal followed.

                                               I

       The Defendant contends that the evidence was insufficient to support his conviction
because the victim first reported the touching long after it occurred, the victim denied that
the Defendant touched her when she spoke with persons at the Carl Perkins Center, he denied
making the signed statement, and he offered a proper reason for touching the victim’s
buttocks when he stated he removed ticks from the victim. The State contends that the
evidence was sufficient to support the Defendant’s conviction. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh
the evidence but must presume that the trier of fact has resolved all conflicts in the testimony
and drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

                                              -7-
        As pertinent to this appeal, aggravated sexual battery is “unlawful sexual contact with
a victim by the defendant” when the victim is less than thirteen years of age. T.C.A. § 39-13-
504(a)(4). Sexual contact is “the intentional touching of the victim’s . . . intimate parts, or
the intentional touching of the clothing covering the immediate area of the victim’s . . .
intimate parts, if that intentional touching can be reasonably construed as being for the
purpose of sexual arousal or gratification.” T.C.A. § 39-13-501(6) (2010).

        Taken in the light most favorable to the State, the victim testified that in October
2008, she watched a video called “A Good Touch and a Bad Touch” at her elementary school
and that afterwards, she told Ms. Christy that the Defendant touched her a week earlier. She
said the Defendant touched her bottom and her chest over her clothes while she was in her
bedroom. She said that because she was nervous, she told women at the Carl Perkins Center
that the Defendant did not touch her. She remembered the Defendant’s removing ticks from
the front of her leg in October 2008 and said the ticks were not removed from her buttocks
or the back of her leg. The Defendant signed a written statement in which he admitted to
touching the victim’s buttocks approximately five times in a sexual nature. Investigator Pratt
and Agent Troutt testified that Agent Troutt read the statement to the Defendant and that the
Defendant reviewed the statement and was allowed to make changes before he signed it. We
conclude that a rational trier of fact could have found the elements of aggravated sexual
battery beyond a reasonable doubt. The Defendant is not entitled to relief on this issue.

                                              II

        The Defendant contends that the trial court erred by denying his motion to suppress
his confession because it was not made voluntarily. He argues that his statement was not
voluntary because he originally denied the allegations, because Agent Troutt made him feel
guilty during their interview, and because he asked Agent Troutt, “What do you want me to
say?” before he made the statement. The State contends that the trial court did not err
because the Defendant’s statement was made voluntarily and because the Defendant was
informed of his constitutional rights and voluntarily waived those rights before making his
statement. We conclude that the Defendant’s statement was made voluntarily and that the
trial court did not err by denying the Defendant’s motion to suppress.

        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). If a suspect is in custody and
under state-initiated 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). Miranda warnings are not required
in the absence of custodial interrogation. State v. Northern, 262 S.W.3d 741, 749 (Tenn.

                                              -8-
2008) (citing Miranda, 384 U.S. at 478). In Miranda, the Court defined “custodial
interrogation” as “questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way.”
384 U.S. at 444. See also Stansbury v. California, 511 U.S. 318, 323 (1994) (stating that
when determining whether a subject was in custody, the ultimate inquiry is whether there was
a formal arrest or a restraint on the person’s freedom of movement of the degree associated
with a formal arrest).

        “The test of voluntariness for confessions under article I, § 9 of the Tennessee
Constitution is broader and more protective of individual rights than the test of voluntariness
under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (citing
State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994)); see State v. Northern, 262 S.W.3d
741 (Tenn. 2008). For a confession to be considered voluntary, it must not be the product
of “‘any sort of threats or violence, . . . any direct or implied promises, however slight, nor
by the exertion of any improper influence.’” State v. Smith, 42 S.W.3d 101, 109 (Tenn.
Crim. App. 2000) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). The
essential question, therefore, is “‘whether the behavior of the State’s law enforcement
officials was such as to overbear [the Defendant’s] will to resist and bring about confessions
not freely self-determined . . . .’” State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980) (quoting
Rogers v. Richmond, 365 U.S. 534, 544 (1961)). The Supreme Court has held that in order
for a confession to be involuntary, it must be the product of coercive state action. See, e.g.,
Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).

        On review, an appellate court may consider the evidence presented at the suppression
hearing as well as at trial in determining whether the trial court properly denied a pretrial
motion to suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). A trial court’s
factual findings in a motion to suppress hearing are conclusive on appeal unless the evidence
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones,
802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence
are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The
prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The
application of the law to the facts as determined by the trial court is a question of law, which
is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

      At the hearing on the motion to suppress, the evidence regarding the Defendant’s
confession was similar to that presented at the trial. Investigator Pratt testified that she first
met with the Defendant on November 11, 2008, and that the Defendant attended voluntarily
and was not under arrest. She said that after the Defendant denied the victim’s allegations,

                                               -9-
she asked the Defendant to submit to a polygraph examination on December 3, 2008. She
said that the Defendant voluntarily came to the polygraph examination and that he was not
under arrest. She said she was present when the Defendant signed a form consenting to the
polygraph examination and when Agent Troutt explained the form to the Defendant. She
said she was present when Agent Troutt advised the Defendant of his constitutional rights
and when the Defendant signed a written waiver of those rights. The forms were entered
into evidence.

       Investigator Pratt testified that she left the interview room for about one hour and that
when she was called back to the room, she was told that Agent Troutt did not administer the
polygraph examination because the Defendant confessed to touching the victim. She said
she was present when the Defendant gave his written statement and signed it. She said Agent
Troutt wrote the statement at the Defendant’s request. The statement was entered into
evidence. She said that the Defendant was not under arrest during the interview and that he
was allowed to leave after he completed his statement. She said that she spoke with the
prosecutor after the Defendant confessed and that the Defendant was arrested the next day.

       On cross-examination, Investigator Pratt agreed that she left the interview room after
the Defendant consented to the polygraph and waived his constitutional rights and that the
Defendant signed the forms at 9:44 and 9:45 a.m. She agreed that the Defendant signed his
written statement at 11:00 a.m. and that she was absent from the interview room for about
one hour and fifteen minutes. She said that although the Henderson County Sheriff’s
Department had recording equipment, the Defendant’s interview was not recorded. She
agreed the Defendant denied the victim’s allegations when he met with her on November 11,
2008.

        Agent Troutt testified that she explained to the Defendant that he had the right to have
his polygraph examination recorded but that the Defendant did not request a recording. She
said she explained the Defendant’s constitutional rights to him before Investigator Pratt left
the interview room. She said a valid polygraph examination required all persons to leave the
room except the examiner and the examinee. She said that after Investigator Pratt left the
room, she asked the Defendant if he had any medical conditions that could affect the
examination. She said she explained the victim’s allegations and how a polygraph
examination worked. She said that after she told the Defendant that the test could be affected
by any unresolved issues he had or “anything weighing on him,” the Defendant stated that
he had done exactly what the victim alleged and that the polygraph examination was
unnecessary. She said the Defendant told her what he had done and had not done to the
victim. She said that she asked Investigator Pratt to return to the interview room and that she
wrote the Defendant’s statement after he asked her to write it for him. She said the



                                              -10-
Defendant went over the statement “word-for-word,” initialed it at the beginning and at the
end, and signed the statement, “Amen. Carl Houghton.”

         On cross-examination, Agent Troutt testified that the times reflected on the polygraph
consent form, the Miranda waiver, and the Defendant’s statement were accurate. She said
that it took about one hour and fifteen minutes to prepare the Defendant for the polygraph
examination and that the Defendant stated he wanted to explain what happened before she
began the polygraph examination. She said the Defendant admitted what he had done before
Investigator Pratt returned to the interview room. She said the Defendant made his statement
around 10:45 a.m., but she did not know the exact time. She said the written statement was
an accurate representation of what the Defendant told her. She said it took her about ten
minutes to write the Defendant’s statement. She said that there was nothing unusual about
how long it took the Defendant to read his statement and that she also read the statement to
the Defendant.

        Agent Troutt agreed that the statement did not include everything she discussed with
the Defendant and said that she discussed many things with the Defendant, including his Gulf
War experiences, his education, his work history, where he grew up, what medications he
took, how many hours he slept the previous night, and what he ate for breakfast before the
examination. She said the written statement only included what was “germane to the
allegations.” She said the Defendant informed her that he had not taken any medications or
illegal drugs before the examination and that he drank three cups of coffee and ate twelve
pieces of chicken for breakfast that morning.

        Agent Troutt testified that she reviewed the case facts with Investigator Pratt before
meeting with the Defendant and that she was aware the Defendant denied the victim’s
allegations during an interview on November 11, 2008. She did not know if the Defendant’s
initial denial was in writing and said she was not informed whether he made statements to
anyone else. She said that during her interview with the Defendant, he was cooperative,
genial, and appeared to be remorseful. She said the Defendant “completely” understood their
discussion.

       The trial court found that the Defendant voluntarily spoke with the officers on
December 3, 2008, and that the Defendant was not under arrest and was free to leave the
interview. The trial court denied the Defendant’s motion to suppress after it concluded that
the Defendant’s statement was given freely, voluntarily, and without any type of coercion.

        The record reflects that the Defendant voluntarily met with Investigator Pratt and
Agent Troutt on December 3, 2008. He was not under arrest and left the sheriff’s department
after he gave his statement. Because the Defendant was not in custody or otherwise deprived

                                             -11-
of his freedom of action in any significant way when he gave his statement, Miranda
warnings were not required. See Northern, 262 S.W.3d at 749. In any event, the Defendant
was informed of his constitutional rights and signed a written waiver of his rights before
giving his statement. Furthermore, nothing in the record suggests that the Defendant was
threatened, improperly influenced, or promised anything in exchange for his statement.
Agent Troutt testified that she explained the victim’s allegations to the Defendant and that
they discussed the Defendant’s background and medical history for about one hour before
he confessed. The Defendant’s statement notes that it was voluntarily made and that the
Defendant was not “coerced, threatened, or promised anything.” The statement was read to
the Defendant, and he was permitted to make changes before he initialed it twice and signed
it. We agree with the trial court’s conclusion that the Defendant’s statement was made
voluntarily, and we conclude that the trial court did not err by denying the Defendant’s
motion to suppress. The Defendant is not entitled to relief on this issue.

                                              III

        The Defendant contends that the trial court erred in sentencing by not giving more
weight to applicable mitigating factors. The State contends that the trial court properly
sentenced the Defendant and that the weighing of enhancement and mitigating factors is left
to the discretion of the trial court. We agree with the State.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

        However, “‘the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and



                                             -12-
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).

        Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       In imposing a sentence within the appropriate range of punishment for the defendant:

                     [T]he court shall consider, but is not bound by, the
              following advisory sentencing guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)).

        At the sentencing hearing, the State introduced the Defendant’s presentence report.
No testimony was presented. The trial court found that the following enhancement factors
applied: (1) the Defendant had a history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range, and (14) the Defendant abused
a position of private trust in a manner that significantly facilitated the commission or the
fulfillment of the offense. See T.C.A. § 40-35-114 (2010). The trial court found that the
following mitigating factors applied: (13) the Defendant was forty-seven years old, served

                                             -13-
in the military, and did not have a substantial criminal history other than misdemeanor
convictions for driving under the influence and violating the bad check law. See T.C.A. §
40-35-113 (2010). The trial court gave “moderate” weight to enhancement factor (1) and
mitigating factor (13) and sentenced the Defendant as a Range I, standard offender to ten
years’ confinement in the Department of Correction.

       Although the Defendant claims that the trial court erred by not giving more weight to
applicable mitigating factors, the 2005 amendments to the 1989 Sentencing Act “deleted as
grounds for appeal a claim that the trial court did not weigh properly the enhancement and
mitigating factors.” Carter, 254 S.W.3d at 344. The record reflects that the trial court
imposed a sentence within the applicable range that was consistent with the purposes and
principles of the Sentencing Act. The Defendant is not entitled to relief on this issue.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.


                                             ____________________________________
                                             JOSEPH M. TIPTON, PRESIDING JUDGE




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