State of Tennessee v. Terrance McCracken

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 5, 2014

STATE OF TENNESSEE v. TERRANCE MCCRACKEN

Appeal from the Criminal Court for Shelby County
No. 11-03083 James M. Lammey, Jr., Judge

No. W2013-01396-CCA-R3-CD - Filed September 10, 2014

Appellant was convicted of rape, a Class B felony, and sentenced to nine years in
confinement. On appeal, appellant argues (1) that the trial court erred by failing to grant his
motion to suppress because there was an unreasonable delay in the judicial determination of
probable cause; (2) that the trial erred by failing to grant his motion to suppress because his
statements to police were involuntary; and (3) that there was insufficient evidence to support
his conviction. Following our review of the parties’ briefs, the record, and the applicable
law, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL, P.J.,
and A LAN E. G LENN, J., joined.

Stephen C. Bush, District Public Defender; and Phyllis L. Aluko (on appeal) and Jennifer
Case (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant,
Terrance McCracken.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Cavett Osner and Abby Wallace, Assistant District
Attorneys General, for the appellee, State of Tennessee.

OPINION

This case concerns the rape of the victim after appellant entered her Shelby County
home under the guise of using her telephone. Appellant was indicted for aggravated rape and
aggravated kidnapping. The jury found him guilty of the lesser-included offense of rape and
not guilty of aggravated kidnapping.
 I. Facts

A. Facts from Suppression Hearing

The trial court held a suppression hearing on July 5, 2012. Kerby Windless, an officer
with the Memphis Police Department, testified that on October 12, 2010, he responded to a
forcible rape call. He stated that when he arrived, the victim 1 told him that appellant had
become upset when her telephone rang and that he had held a knife to her throat and made
her perform oral sex. She then explained that appellant was inside her home attempting to
kill himself. Officer Windless observed “some redness around [the victim’s] throat and
forehead.” Officer Windless and several other officers entered the home and saw appellant
stabbing himself with a knife. Officer Windless ordered appellant to drop the knife, which
he did. Appellant was then taken to receive medical attention in the responding ambulance.

During cross-examination, Officer Windless conceded that the call he heard on the
radio was regarding a suicide rather than a forcible rape, describing it as an “armed party
call.” The incident occurred in Foote Homes in Shelby County. Between four and six
officers responded to the scene, and they all arrived at approximately the same time. Officer
Windless stated that the victim did not tell him she had been smoking crack cocaine and that
she did not appear as if she had been so doing. Officer Windless described the victim as
being “emotional,” “hysterical,” and “in distress” when he arrived at her home. When the
officers went upstairs, appellant had several cut wounds in the center of his chest, which
were bleeding, and he appeared upset. Officer Windless arrested appellant at 12:22 p.m.
The officers did not gather any information at the scene indicating the occupants had used
narcotics. Officer Windless stated that he was at the crime scene for approximately thirty
minutes and that he completed his crime scene report while other officers transported
appellant.

In response to the court’s questions regarding the sequence of events, Officer
Windless clarified that when they arrived,

[appellant] was in the house. He got upset due to [the victim] had a
phone call from another male and he got upset. That he got a knife, took it to
her throat. She pretty much tried to wrestle the knife out of his hand but he
overpowered her. And then she performed oral sex in fear of her life and then
at that time[,] he became upset because he couldn’t get an arousal . . . .

1
It is the policy of this court to protect the identity of victims of rape; therefore, we will refer to the
victim only as “the victim” throughout this opinion.

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 Sergeant Melvin Amerson, Jr., an investigator with the Memphis Sex Crimes Bureau,
testified that on October 12, 2010, he interviewed the victim at 4:10 p.m. The victim told
Sergeant Amerson that after appellant came over, he became angry and began choking her.
Appellant requested fellatio, which the victim refused, and a fight ensued. The victim also
stated that appellant attempted to kill himself. Sergeant Amerson described the victim’s
injuries, stating that the victim “had some markings in the neck area and forehead and face
area and on her arms were [sic] marked up pretty good.” Following the interview, Sergeant
Amerson interviewed appellant at 7:30 p.m. Sergeant Amerson explained that he advised
appellant of his Miranda rights and reviewed those rights with appellant in writing and
verbally. Sergeant Amerson testified that appellant did not seem to have a problem
understanding why he was there or what was occurring. On his advice of rights document,
appellant indicated that he understood his rights and wished to speak with law enforcement,
initialed beside his affirmative answers, and signed the document. Appellant then confessed
to using a knife to force the victim to perform oral sex. After taking appellant’s statement,
Sergeant Amerson obtained a forty-eight-hour hold while he attempted to contact the sex
crimes prosecutor. Sergeant Amerson asserted that there was “most definitely” probable
cause to arrest appellant at that time. In order to obtain the forty-eight-hour hold, Sergeant
Amerson presented a form to the judicial commissioner stating the relevant facts, when the
crime occurred, and the justification for the forty-eight-hour hold. The hold document was
signed and dated October 12, 2010, at 10:12 p.m. Appellant was formally charged the
following day after officers spoke with the prosecutor and canvassed the crime scene area.

During cross-examination, Sergeant Amerson stated that appellant was free to leave
the police station until the forty-eight-hour hold was issued; however, Sergeant Amerson
stated that appellant was in custody during his interview, which occurred prior to obtaining
the forty-eight-hour hold. Sergeant Amerson conceded that he was not present at the crime
scene and, therefore, did not know whether appellant was placed in handcuffs at the scene.
Sergeant Amerson first saw appellant when appellant was sitting inside the police station.
Sergeant Amerson explained that when presenting an arrestee with the advice of rights form,
he allows the arrestee to read the document, he informs the arrestee of the pending charges,
and then he asks the arrestee to read the document aloud. If the arrestee agrees to speak with
Sergeant Amerson, the arrestee answers the questions on the form affirmatively and initials
beside the responses. Sergeant Amerson described appellant’s demeanor as “real calm.”
Appellant told Sergeant Amerson that he was thirty-five years old and had a seventh grade
education. Appellant also told Sergeant Amerson that he and the victim had been smoking
crack cocaine together before appellant was arrested. Sergeant Amerson did not recall
appellant’s saying that he suffered from a mental disability and was unaware that a caller had
told dispatch that appellant was a “mental patient who was off his medications.” Sergeant
Amerson recalled that appellant had a bandage on his forehead and some “scratch marks.”
Sergeant Amerson stated that while appellant was in the police station, Sergeant Amerson

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and several other officers asked appellant whether he needed any food or water and whether
he needed to use the restroom.

Sergeant Amerson agreed that the purpose of the forty-eight-hour hold was to
continue investigating the incident and that he and his partner went to the crime scene to
canvas the area on October 13, the day following appellant’s arrest. Appellant was then
formally charged in this case at 4:37 p.m. on October 13. Sergeant Amerson went back to
the judicial commissioner and made an affidavit of complaint, which is a statement of
probable cause, against appellant.

Judicial Commissioner John Marshall testified that his core function as a judicial
commissioner was to make probable cause determinations that began the “charging process.”
He stated that on October 12, 2010, at 10:12 p.m., he authorized a forty-eight-hour hold for
appellant based on probable cause.

Appellant testified that in October 2010, he was thirty-five years old, had a seventh
grade education, and had not obtained his GED. Appellant had been diagnosed with
schizophrenia and prescribed Prozac and Trazodone in 2005. However, appellant had not
taken his medication for “a month or two” prior to the incident involving the victim.
Appellant also stated that he had been using crack cocaine for approximately eight years prior
to October 2010 and that he and the victim smoked eight rocks of crack cocaine on October
12, 2010. Appellant explained that when the police arrived, he was “poking [himself] with
scissors in [his] stomach” because he “felt depressed.” The officers handcuffed appellant
and escorted him outside. An ambulance responded to the scene and bandaged appellant’s
stomach, forehead, and elbow; however, appellant stated that he was not given the option to
go to the hospital. Appellant asserted that one of the officers told him that he was not going
to jail and that they were going to get appellant “some help.” Appellant was transported to
the Sex Crimes Bureau between 2:30 and 3:00 p.m. Appellant explained that he felt “very
depressed,” hungry, thirsty, exhausted, and sleepy. He stated that no one offered him food
or water at the Sex Crimes Bureau.

Appellant stated that his interview with Investigators Amerson and Covington began
at approximately 7:30 p.m. Appellant explained that although he did not want to speak with
the officers, the officers asked if he wanted to “‘give a statement now or tomorrow,’” and
because he did not want to “go through that again,” he said, “‘I’ll give you a statement
now.’” Appellant stated, “I just didn’t want to go through being starved or thirsty or scared.
I had to use the bathroom once[,] and they harassed me,” explaining that Sergeant Amerson
threatened to throw him out of a window. Appellant asserted that Sergeant Amerson did not
inform appellant of his constitutional rights before Sergeant Amerson began talking to
appellant about the incident with the victim; however, appellant testified that at some point

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during the interview, Sergeant Amerson provided him with a piece of paper that said he had
the right to remain silent. Appellant asserted that if he had “known [his] rights,” he
“wouldn’t have said nothing [sic].” At the end of the interview, appellant initialed and
signed his statement.

During cross-examination, appellant conceded that he initialed and signed the advice
of rights form and that he was advised of his Miranda rights. Appellant also agreed that his
statement was a typewritten summary of his responses to questions during his interview.

In response to the court’s questions, appellant testified that prior to this incident, he
had a criminal record and stated that he “knew [his] rights . . . from watching Dragnet and
stuff like that.” However, appellant stated that when he was interviewed, the police did not
inform him of his constitutional rights, and he was not thinking clearly. Appellant also stated
that his arraignment hearing occurred on October 14, within forty-eight hours of his arrest.

Following the hearing, the court made both oral and written findings. Regarding the
legality of appellant’s arrest, the court determined that probable cause to arrest existed after
the victim’s statement to police at the scene. The court also found that Commissioner
Marshall determined that probable cause had been established at 10:12 p.m., when appellant
was arrested at 12:22 p.m. that same day. Fewer than ten hours elapsed between appellant’s
arrest and his judicial determination, and an affidavit of complaint was filed within twenty-
eight hours of arrest, both of which were filed within the forty-eight-hour constitutional
threshold. The trial court determined that this was not an unreasonable delay and was not
done for purposes of further investigation. Therefore, the trial court found that appellant’s
arrest and the subsequent probable cause determinations were proper. Regarding the
suppression of appellant’s statement, the trial court stated that it credited Sergeant Amerson’s
testimony that Sergeant Amerson informed appellant of his Miranda rights before taking
appellant’s statement. The court also discredited appellant’s testimony. Furthermore, the
court determined that appellant was aware of his rights from his numerous past convictions
and that he was free to invoke them, yet he decided not to do so. The court also determined
that appellant had the mental capacity to validly waive his constitutional rights and that the
waiver was voluntarily given. Therefore, the court denied appellant’s motion to suppress.

B. Facts from Trial

Appellant’s trial began on February 25, 2013. Officer Windless’s testimony at trial
was substantially similar to his suppression hearing testimony. He elaborated that he was
dispatched “as an armed party that was upgraded to a possible mental consumer call,” which
meant someone may be having a mental health problem. After speaking with the victim,

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officers entered the victim’s upstairs bedroom and saw appellant stabbing himself with a
“kitchen butter knife.”

During cross-examination, Officer Windless stated that after he saw appellant, Officer
Windless considered appellant to be a danger to himself. Appellant was placed in handcuffs
for two purposes: to detain him during the investigation and for appellant’s own safety.
Officer Windless testified that appellant told the victim, “You don’t love me,” and, “Nobody
loves me.” The victim also told Officer Windless that appellant had initially retrieved the
knife.

The victim testified that on October 12, 2010, she returned to her home to find
appellant, whom she had known for two months, standing on her porch. Appellant asked to
use her telephone, and the two entered her apartment. Appellant had been inside her home
two or three times prior to this incident. After appellant and the victim watched television
for a time, the victim received a telephone call, and she informed appellant that he needed
to leave. Appellant then grabbed the victim’s neck and began choking her, telling her that
he was going to kill her. He threw her on her bed. A struggle ensued, and the victim
retrieved a knife from beneath her pillow. The two fought over the knife, and appellant
ultimately gained control of the knife. Appellant then forced the victim to perform oral sex
for two to four hours. The victim stated that at one point she attempted to leave but that
appellant grabbed her around the neck and forced her to return to the bed. The victim stated
that during this time she was “begging for [her] life.” In the end, appellant asked the victim
to call the police, which she did. The victim explained that she told the 9-1-1 operator that
someone was trying to kill himself rather than that someone was forcing her to perform oral
sex because, in her words, “I had promised him I wasn’t going to tell, and that was the reason
why he had me to call the police because he was thinking I wasn’t going to tell.” The victim
testified that when the police arrived, she told them that appellant was in the apartment trying
to kill himself and that he had just raped her. The victim denied taking illegal drugs on the
day in question and denied seeing appellant consume drugs at her apartment. The victim
explained that after appellant was apprehended, she gave a statement at the police department
and was physically examined at the Rape Crisis Center.

During cross-examination, the victim stated that appellant arrived at her home at 9:00
or 10:00 a.m. The victim explained that she had been in her bedroom for approximately
twenty to thirty minutes with appellant when she received a telephone call from a male
friend, who was coming to visit. The victim denied ordering or using crack cocaine with
appellant and denied agreeing to perform oral sex on appellant in exchange for crack cocaine.
She asserted that she had never willingly performed fellatio on appellant. The victim
explained that she kept a knife under her pillow for her protection. The victim agreed that
during the struggle for the knife, she and appellant both obtained cuts on their faces. The

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victim conceded that prior to trial, she did not tell the police that appellant had threatened to
kill her during the knife fight. The victim agreed that at her preliminary hearing, she testified
that appellant held the knife either at his side or held it on his chest as he lay on her bed. She
testified that appellant lay on her bed for the two to three hours during which she performed
oral sex. She explained that a friend called during this time and that she “begged and
pleaded” for him to come over. However, the man never arrived. After the victim finished
performing fellatio, she noticed that appellant “was acting like something was wrong.”
Appellant called a friend, and then after the call ended, appellant asked the victim to call the
police. The victim could not recall where the knife was during appellant’s telephone call.
The victim agreed that she told the 9-1-1 operator that appellant had not taken his medication
and that appellant suffered from depression and bipolar disorder.

Sergeant Amerson’s testimony was substantially similar to his testimony at the
suppression hearing. Sergeant Amerson stated that he and Sergeant Covington interviewed
appellant. He stated that standard operating procedure dictated that when they began
interviewing appellant, they establish a rapport with appellant by asking for his name, age,
and interests. However, before appellant was asked about the incident at issue, Sergeant
Amerson provided appellant with a written copy of his Miranda rights, which appellant
initialed and signed.

During his statement to police, appellant told the officers the following: Appellant
went to the victim’s apartment for a date. He knew the victim because his father and uncle
had previously dated her. Appellant asserted that he and the victim had previously had oral
sex for money and for crack cocaine. After he arrived, the victim called someone and
ordered a “dime,” which is a ten-dollar rock of crack cocaine, on three separate occasions.
After the cocaine was delivered each time, appellant and the victim used the narcotics, and
the victim performed fellatio. During this time, the victim received a telephone call from
“another trick,” who said he would arrive later. After the two had used the last of the crack
cocaine, appellant asked the victim to perform oral sex again, which she refused. Appellant
stated that he “pushed her onto the bed and held her face down into the pillow trying to make
her [perform fellatio.]” The victim then retrieved a knife and cut appellant. Appellant told
the victim, “‘I’m not going to hurt you, I just want some more [fellatio].” The victim then
performed oral sex, and appellant stated that “[e]very time that she would stop, [he] would
pick the knife back up.” In the end, appellant apologized to the victim, and the two
continued to use crack cocaine. The victim then performed oral sex again. Appellant stated,
“‘Then she tried to run out of the house, but I caught her.’” Afterward, he told the victim to
call the police. Appellant stated that he did not want to go to the hospital, so the police took
him to the police department. Appellant told Sergeant Amerson that the victim had told him,
“No,” and conceded that he had “force[d] [himself] onto her.”

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 During cross-examination, Sergeant Amerson stated that appellant was sweating and
talkative during the interview and that appellant told him that he had used crack cocaine
before the interview. Sergeant Amerson stated that he was unaware that appellant suffered
from depression and bipolar disorder and that he was unaware appellant had not been taking
his medication. Sergeant Amerson also denied threatening appellant.

Following this testimony, the jury found appellant guilty of rape. The trial court
sentenced appellant to nine years in confinement.

II. Analysis

Appellant now argues that the trial court erred by failing to grant his motion to
suppress because there was an unreasonable delay in the judicial determination of probable
cause, that the trial erred by failing to grant his motion to suppress because his statements to
police were involuntary, and that there was insufficient evidence to support his conviction.
The State responds that the trial court properly denied appellant’s motion to suppress and that
there was sufficient evidence to support appellant’s rape conviction. We agree with the
State.

A. Motion to Suppress

A trial court’s findings of fact at a hearing on a motion to suppress are binding upon
this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). As the trier of fact, the trial court is in a better position to assess the witnesses’
credibility, determine the weight of the evidence and the value to be afforded it, and resolve
any conflicts in the evidence. Odom, 928 S.W.2d at 23. However, the trial court’s
conclusions of law are not binding on this court. State v. Randolph, 74 S.W.3d 330, 333
(Tenn. 2002) (citing State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998)). Further, the trial
court’s applications of law to the facts are questions of law that we review de novo. State
v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000) (citations omitted). On appeal, the prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable inferences
drawn therefrom. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The appellant bears the
burden of establishing that the evidence contained in the record preponderates against the
trial court’s findings of fact. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975)
(citation omitted).

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 1. Delay in Probable Cause Determination

Appellant argues that appellant’s judicial probable cause determination was
unreasonably delayed because the delay was for the purpose of gathering additional evidence
and for delay’s sake.

The law requires that when a person is arrested without a warrant, he or she must be
brought “before a magistrate to ‘seek a prompt judicial determination of probable cause.’”
State v. Bishop, 431 S.W.3d 22, 42 (Tenn. 2014) (quoting Gerstein v. Pugh, 420 U.S. 103,
125 (1975) (holding that “the Fourth Amendment requires a timely judicial determination of
probable cause as a prerequisite to detention”); see also State v. Huddleston, 924 S.W.2d 666,
672 n.2) (Tenn. 1996). Tennessee Rule of Criminal Procedure 5(a)(1) provides that “[a]ny
person arrested — except upon a capias pursuant to an indictment or presentment — shall
be taken without unnecessary delay before the nearest appropriate magistrate.” The
Tennessee Supreme Court has recently stated that “a delay of less than forty-eight hours is
presumptively reasonable” and that when the delay exceeds forty-eight hours, the State must
show that “‘a bona fide emergency or other extraordinary circumstance’ caused the delay.”
Bishop, 431 S.W.3d at 42 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991)). Nonetheless, even a delay of less than forty-eight hours may be unreasonable “if
the delay is ‘for the purpose of gathering additional evidence to justify the arrest’ or if the
delay is ‘motivated by ill will against the arrested individual, or delay for delay’s sake.’” Id.
(quoting McLaughlin, 500 U.S. at 56). “Courts cannot ignore the often unavoidable delays
in transporting arrested persons from one facility to another, handling late-night bookings
where no magistrate is readily available, obtaining the presence of an arresting officer who
may be busy processing other suspects or securing the premises of an arrest, and other
practical realities.” McLaughlin, 500 U.S. at 56-57.

The remedy for failing to bring an arrestee before a magistrate without unnecessary
delay is exclusion of “any evidence obtained by virtue of a suspect’s unlawful detention,”
unless an exception to the exclusionary rule applies. Bishop, 431 S.W.3d at 42 (citing
Huddleston, 924 S.W.2d at 673-75). However, “when a suspect is arrested based on probable
cause, the ensuing detention is typically not illegal until it ‘ripens’ into a Gerstein violation.”
Id. (citing Huddleston, 924 S.W.2d at 675). “Obviously, if [an arrestee’s] statement was
given prior to the time the detention ripened into a constitutional violation, it is not the
product of the illegality and should not be suppressed.” Huddleston, 924 S.W.2d at 675.

Initially, we must determine when the police had probable cause to arrest appellant.
“Probable cause . . . exists if, at the time of the arrest, the facts and circumstances within the
knowledge of the officers, and of which they had reasonably trustworthy information, are
‘sufficient to warrant a prudent [person] in believing that the [defendant] had committed or

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was committing an offense.’” State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997) (quoting
Beck v. Ohio, 379 U.S. 89, 91 (1964)). “‘Probable cause must be more than a mere
suspicion.’” State v. Echols, 382 S.W.3d 266, 278 (Tenn. 2012) (quoting State v. Lawrence,
154 S.W.3d 71, 76 (Tenn. 2005)). However, “probable cause ‘deal[s] with probabilities[,]
. . . not technical[ities,] . . . the factual and practical considerations of everyday life on which
reasonable and prudent [persons] . . . act.’” Id. (quoting State v. Day, 263 S.W.3d 891, 902
(Tenn. 2008)); see Brinegar v. United States, 338 U.S. 160, 175 (1949). Moreover, a
determination of probable cause encompasses the accumulation of information known to law
enforcement collectively if a sufficient nexus of communication exists between the arresting
officer and a fellow officer with pertinent knowledge. Echols, 382 S.W.3d at 278 (citation
omitted).

In this case, the trial court determined that probable cause existed at the time of arrest,
and we agree. While the police initially responded to the crime scene for a “mental consumer
call,” which meant someone might have been experiencing a mental health problem, upon
arrival, the victim informed Officer Windless that appellant had held a knife to her throat and
had forced her to perform oral sex. She then explained that appellant was inside her home
attempting to kill himself. Officer Windless also observed “some redness around [the
victim’s] throat and forehead.” Therefore, at the time of arrest, there was sufficient
information to “warrant a prudent [person] in believing that the [defendant] had committed
or was committing an offense.’” Bridges, 963 S.W.2d at 491 (quoting Beck, 379 U.S. at 91).

Because appellant was arrested based on probable cause, the delay between his arrest
and his judicial probable cause determination was “not illegal until it ‘ripen[ed]’ into a
Gerstein violation.” Bishop, 431 S.W.3d at 42 (citing Huddleston, 924 S.W.2d at 675). The
facts show that appellant was arrested on October 12, 2010, at 12:22 p.m. His first judicial
determination occurred later that same day at 10:12 p.m. after both the victim and appellant
were interviewed. Appellant was then formally charged in this case at 4:37 p.m. on October
13, just over twenty-eight hours from arrest. Therefore, because the delay was less than
forty-eight hours, it is presumptively reasonable. Bishop, 431 S.W.3d at 42 (quoting
McLaughlin, 500 U.S. at 56).

Appellant argues that even though appellant’s judicial determination was made within
the forty-eight-hour window, the delay was still unreasonable because the reasons for delay
were for investigative purposes and delay for delay’s sake. However, appellant’s argument
conflates the type of investigation to establish probable cause that is prohibited according to
McLaughlin and a continuing, ongoing investigation to prove guilt beyond a reasonable
doubt for trial. A delay of less than forty-eight hours may be unreasonable “if the delay is
‘for the purpose of gathering additional evidence to justify the arrest.’” Id. (emphasis added)
(quoting McLaughlin, 500 U.S. at 56). As we have stated above, probable cause was

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established at the moment of arrest; therefore, any additional evidence gathered was not
collected to justify the arrest. Furthermore, the delay was not merely for delay’s sake. The
investigating officer interviewed the victim and appellant and then waited to contact the
prosecuting attorney. Based on the facts presented and the law, we conclude that the delay
for the investigator to interview the parties involved and contact the prosecuting attorney was
reasonable; therefore, the delay never “ripened” into a Gerstein violation. Bishop, 431
S.W.3d at 42 (citing Huddleston, 924 S.W.2d at 675). The trial court properly denied
appellant’s motion to suppress. Appellant is without relief as to this issue.

2. Involuntary Statement

Appellant also argues that his statement to law enforcement should have been
suppressed because appellant was not properly provided with his constitutional rights prior
to giving his statement and because the statement was not voluntarily given.

“The Fifth Amendment to the United States Constitution provides in part that ‘no
person . . . shall be compelled in any criminal case to be a witness against himself.’” State
v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005) (quoting U.S. Const. amend. V). “Similarly,
Article I, section 9 of the Tennessee Constitution states that ‘in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.’” Id. (quoting Tenn.
Const. art. I, § 9).

Due to “the inherently compelling pressures of in-custody interrogation,” the United
States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), “limited the admissibility
of statements that would ordinarily meet the due process test of voluntariness” by
establishing prophylactic rules designed “to permit a full opportunity to exercise the privilege
against self-incrimination.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992)). Any
statements, “whether exculpatory or inculpatory, stemming from custodial interrogation of
the defendant” must be excluded “unless [the prosecution] demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.” Miranda,
384 U.S. at 444. These procedural safeguards require an officer to advise an accused prior
to custodial interrogation or its functional equivalent

that he has the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.

Id. at 479; see also Rhode Island v. Innis, 446 U.S. 291, 298 (1980); State v. Sawyer, 156
S.W.3d 531, 534 (Tenn. 2005).

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 Notwithstanding, an accused may waive his right against self-incrimination. Thacker,
164 S.W.3d at 248 (citing Miranda, 384 U.S. 436, 444 (1966)). The accused’s waiver of his
right against self-incrimination under Miranda must be made intelligently, knowingly, and
voluntarily to be held constitutional. Id. (citing Miranda, 384 U.S. at 444).

The United States Supreme Court has interpreted the Fifth Amendment
in part to require that an incriminating statement or confession be freely and
voluntarily given in order to be admissible. This even applies to statements
obtained after the proper Miranda warnings have been issued. Statements and
confessions not made as a result of custodial interrogations must also be
voluntary to be admissible. 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.” Moreover, due process requires
that confessions tendered in response to either physical or psychological
coercion be suppressed. This has evolved into the “totality of circumstances”
test to determine whether a confession is voluntary.

Id. (internal citations omitted). Thus, to determine whether an accused’s statements were
voluntary, the appellate courts review the totality of the circumstances surrounding the
waiver of the right against self-incrimination. Id. at 249 (citing State v. Stephenson, 878
S.W.2d 530, 545 (Tenn. 1994)).

Appellant first argues that he was not properly given his Miranda rights. Specifically,
he directs this court to the exact times recorded on appellant’s statement and advice of rights
form to show that appellant was not provided with his constitutional rights until after his
interview had begun. Appellant’s statement indicates that his interview began at 7:30 p.m.
Appellant’s advice of rights has 7:35 p.m. written at the top of the form, indicating when the
officers provided appellant with his rights. The form was signed at 7:39 p.m. Appellant
argues that this provides proof that he was interviewed before the officers informed him of
his rights. However, Sergeant Amerson testified that the standard operating procedure
dictated that when they began interviewing appellant, they established a rapport with
appellant by asking for his name, age, and interests. Sergeant Amerson explained that before
appellant was asked about the incident at issue, appellant was provided with a written copy
of his Miranda rights, which appellant initialed and signed. The trial court credited Sergeant
Amerson’s testimony that Sergeant Amerson informed appellant of his Miranda rights before
taking appellant’s statement. The court also discredited appellant’s testimony. Furthermore,
the court determined that appellant was aware of his rights from his numerous past
convictions and that he was free to invoke them, yet he decided not to do so. As the trier of
fact, the trial court is in a better position to assess the witnesses’ credibility, determine the
weight of the evidence and the value to be afforded it, and resolve any conflicts in the

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evidence. Odom, 928 S.W.2d at 23. We will not disturb this credibility finding on appeal.
Appellant has failed to show that he was not properly informed of his constitutional rights.

Appellant further argues that his statement was not voluntarily given because he was
“hungry, thirsty, depressed, exhausted[,] and sleepy” and because he was “harassed when he
indicated that he needed to use the bathroom.” However, the trial court also discredited this
testimony and credited Sergeant Amerson’s testimony that multiple officers asked appellant
if he needed food, water, or a restroom break. This is a credibility determination we will not
disturb on appeal. See Odom, 928 S.W.2d at 23. The appellant has failed to establish that
the evidence contained in the record preponderates against the trial court’s findings of fact.
See Braziel, 529 S.W.2d at 506 (citation omitted). Appellant is without relief as to this issue.

C. Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to support appellant’s rape
conviction. Specifically, appellant argues that the evidence is insufficient to show that
appellant’s choking or throwing the victim on the bed was used to accomplish fellatio, rather
than “just an eruption of anger by a mentally ill man who exhibited suicidal tendencies.”

The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual disputes
raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court
presumes that the jury has afforded the State all reasonable inferences from the evidence and

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resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our
own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh
or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes
the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt
at the appellate level, the burden of proof shifts from the State to the convicted appellant,
who must demonstrate to this court that the evidence is insufficient to support the jury’s
findings. Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

To sustain a conviction for rape, the State must prove beyond a reasonable doubt the
“unlawful sexual penetration of a victim by the defendant [and] [f]orce or coercion [was]
used to accomplish the act.” Tenn. Code Ann. § 39-13-503(a)(1). Coercion “means threat
of kidnapping, extortion, force or violence to be performed immediately or in the future.”
Tenn. Code Ann. § 39-13-501(1). Sexual penetration means “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of
a person’s body or of any object into the genital or anal openings of the victim’s, the
defendant’s, or any other person’s body, but emission of semen is not required.” Tenn. Code
Ann. § 39-13-501(7). Rape is a Class B felony. Id. § 39-13-503(b).

Viewed in the light most favorable to the State, the evidence established that appellant
entered the victim’s home and that appellant forced or coerced the victim to perform fellatio.
The victim testified that appellant became angry after she received a telephone call, grabbed
her throat, and threw her onto the bed. She stated that after a struggle, appellant gained
control of a knife that she had retrieved from beneath her pillow. The victim stated that
appellant then forced her to perform oral sex for two to four hours. The victim stated that
at one point she attempted to leave but that appellant grabbed her around the neck and forced
her to return to the bed. The victim stated that during this time she was “begging for [her]
life.” Appellant also admitted that he asked the victim to perform fellatio, which she refused.
Appellant stated that he “pushed her onto the bed and held her face down into the pillow
trying to make her [perform fellatio.]” The victim then performed oral sex, and appellant
stated that “[e]very time that she would stop, [he] would pick the knife back up.”
Furthermore, both Officer Windless and Sergeant Amerson observed redness around the
victim’s throat and forehead. This information was sufficient for a reasonable jury to find
beyond a reasonable doubt that appellant raped the victim.

Appellant appears to attack the victim’s credibility by drawing attention to the
inconsistencies between the victim’s testimony at a preliminary hearing and her testimony
at trial. However, in a jury trial, questions involving the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. Bland, 958 S.W.2d at 659; Pruett, 788

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S.W.2d at 561. We will not disturb the jury’s credibility determinations on appeal. This
issue is without merit, and appellant is not entitled to relief.

CONCLUSION

Based on the parties’ briefs, the record, and the applicable law, we affirm the
judgment of the trial court.

_________________________________
ROGER A. PAGE, JUDGE

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