# FILED
November 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9804-CC-00116 Appellee ) ) DYER COUNTY vs. ) ) Hon. LEE MOORE, Judge GEORGE MILTON BROOK S, ) ) (Rape of a Child) Appellant )
For the Appellant : For the Appellee : H. Tod Taylor John Knox Walkup Asst. Public Defender Attorney General and Repor ter 208 N. Mill Avenue P. O. Box 742 Clinton J. Morgan Dyersburg, TN 38025-0742 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P. O. Drawer E Dyer County Courthouse Dyersburg, TN 38025

OPINION FILED:
APPEAL DISMISSED
David G. Hay

es Judge2 OPINION
The appellant, George Milto n Brooks, appeals from a judgment of conviction entered by the Circuit

Court of Dyer County . The appellant pled guilty to one count of rape of a child, a class A felony. Pursuant to the plea agreem ent, the trial court sentenced the appellant to fifteen year s incarceration in the Tennes see Department of Correction. As a condition of his plea, the appellant rese rved the right to appeal, as a certified question of law, the trial court's denial of (1) his motion to suppress his statement to the police and (2) his motion seeking permis sion to introduce prior sexual activity

of the victim pursuant to the “rape shield law,” Tenn. R. Evid. 412. See Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37(b).

After review of the recor d, the appeal is dismissed.

Background
On June 11, 1997, at approximately 12:39 p.m., Dyersburg Police were notified that a child was at a local hospital and had repor ted a sexual assault. Officer Steve Isbell responded to the hospital where the twelve year old victim informed him that she had been raped by her stepfather, the appellant, ear lier that day. Upon receivin g this information, Officer Isbel l, accompanied by two other officers, pro ceeded to the appellant’s res idence in Dyersbur g.
At approximately 1:30 p.m. , the officers arrived at the appellant’s residence. Although no questions were asked by the officers, the appellant was advised of his Miranda rights. The appellant attempt ed to talk to the officers at this point. However, the officers i nterrupted the appellant, informin g him that he could talk to them later. The appellant was then transported to the cou nty jail.3 Later that afternoon, Officer Isbell and Officer Lois Montgomery removed the appellant from the county jail and took him to an interview room at the police department. The appellant was again advised of his Mirandarights and proceeded to provide the police the following statement:

. . . . . . I have a tape.

. . . . . . [A] porno tape . . .

. . . . . .I ask[ed] her . . . if she might want to look at the tape . . . to see what . . . sex is r

eally all about. And she said yeah. And so I we nt and got it and put it in, and it . . . was playing, and . . . I told her, I said,. . . if it’s something, that . . .you’re curious about or something. . . all y

ou have to do is ask. And she did make a statement. She said w ell, I was going to ask y

ou anyway if I could see it.

. . . I . . .I was really

. . . kind of joking . . .I said . . . makes you w ant to fool around or something like that, you know, and she sai d um-ha. And . . . the next thing I knew

we was back in the bedroom, but now, honest to God, I did not, with my manlihood, did I penetrate her.

. . . And she took her clothes off, and . . . and she kind of laughed, you know, said I’ll be the re in a minute, or something like that. I’ll . . .be there in a second. And she go t in the bed.

. . . It was just . . . it was just s ome fondlin g.

. . . She took her hand and started playing with my penis.

. . . And I was rubbing her rear.

. . . And then I . . . did proceed to mes s with her vagi na.

. . . With my hand.

. . . I just rubbed and. . . I did put my finger up there.

. . . [W]e keep some Vaseline on the night stand, on Pam’ s side, and I thought it might be best to use some.

. . . So I did.

. . . Yeah. I didn’t force her. Idid not drag her. . . . Idid not take her clothes off or nothing.

. . . [D]espite what anythi ng was, I did not [ force my penis in her].

. . . Well, it was . . . agreeable. I guess is the only w ay I know how to put it, but I never actuall

y put it in.

. . . No. . . . I’ll be honest. We. . . gonna do this. I was there, but I didn’t.

. . . I just couldn’t.

. . . Well, it was a mutual thing, but I didn’t actually put . . .I didn’t actua lly1 Although the State d id not con test appe llate review a t the trial level, we a re com pelled to raise any

defect rel ating t

o the certi

fied questions s ua spo nte because it relates to the very nature of our juris diction. State v. Bow lin , 871 S.W .2d 170, 172-173 (Ten n. Crim. App. 1993). 4 get in her.

. . . Now, I . . . had . . . at about the same time. . . something snapped in me and . . . said no. I had a premature ejaculation. . . . I wasn’t in her, and I . . . seamened [sic] on her.

. . .

. . . . . . [I]f you want me to be ho n[est] . . . I didn’t have an erection.

. . . [I]t’s just something I’

ve had problems with.

. . .

. . . I mean . . . it was touchi ng. . . .

... . . . [B]ut I never . . . I did not go in her.

. . . Well, due to the fact that it wasn’t no . . . no decent erection at all, yes,. . . it maybe did [penetrate her] and I didn’t know it. All I know is. . . it was like all in one split second . . . I thoug ht to myself no, and then I was about ready to do it, and . . . I done it with my hand. Based upon the appellant’s statement and the previous statements r elated by the victim to the police,an arrest warrant w as obtained for the arrest of the appellant.
Following the trial court's denial of both the motion to suppress and the Rule 412 motion in limine, the appell ant plead guilty to one c ount of rape of a child, reserving t wo certifi ed questi ons of la w for appe llate revie w.
Analysis
The appellant, in this appeal, seeks review of the cer tified questions under the provisions of Tenn. R. C rim. P. 37(b)(2)(ii i). The State argues that the appellant's reliance upon thi s provision is mispl aced and that the certified questions reserved are appropri ate only for review pursuant toTenn. R. Crim. P. 3 7(b)(2)(i) or (iv). 1 Thus, the State contends the appeal must b e dismissed and the trial court's decision affirmed. The trial cour t’s order specifically

reserves the certified

questions under Tenn. R. Crim. P. 37(b) (2)(iii). Accor dingly, we proc

eed to determine whether5

the questions are properly before this court under subsection (iii).
A guilty plea is an admission of all facts alleged and is a waiver of allnonjurisdictional and proc

edural defects and constitutional infirmities, if any, in any prior stage of the proceeding. See State v. Wilkes , 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984) (citi ng Parker v. State , 492 S.W.2d 456 (Te nn. Crim. App. 1973)). Thus, a defendant’s right to appeal after entering a guilty plea is very li mited. For example, before an appeal may proceed pursuant to Tenn. R. Crim. P. 37(b)(2)(iii), the accused must establish (1) “that the error(s) complained of were not waived as a matter of law by the [gu ilty plea]” and (2) that “such errors are app arent from the record of the proceedings already had.” This provision is only applicable “where guilt was not contest

ed but the record clearly reflects an invalidati ng error, such as the clear denial of the rig ht to counsel or a convic tion under an invalid st atute, wherein it would be judicially inefficient to require a post-conviction collateral attack when the error is apparent upon the face of the existing record.” Advisory Commission Comments, Tenn. R. Crim. P. 37. “Error upon the f ace of a record is that which is so patent that no reasonable person could di sagree that error ex isted on the record.” State v. Moton , No. 03C01-9104-CR-00129 ( Tenn. Crim. App. at Knoxville, Feb. 6, 1 992), perm. to appeal denied , (Tenn. Jun. 22, 1992). “Error is not apparent from the face of the record if one mus t resort to the weig hing of evidence to determine if there is error.” Moton , No 03C01-9104-CR-00129.
Rule 37(b)(2)(iii ) does not provide an av enue of appeal for the errors clai med by the appellant in the present case. There is no clear denial of a ba sic constitutional right s uch as the right to counsel or the violation of double j eopardy. The trial court heard evi dence and argument on both issues,weighed the testimony of the witnesses, and applied legal principles in reaching its decisi on. See, e.g. , State v. Turner , 919 S.W .2d 346, 359-360 (Tenn. Cr im. App. 1995). Ac cordingly, 37(b)(2)(iii) is

not the proper vehicle un der which an appeal may lie in this case.2 W e note tha t provision 3 7(b)(2)(iv) is inapplicab le in the pres ent cas e. The C omm ent to the 1984 amendment provides t hat (iv ) “would onl

y apply where there was no p lea agreement and the defendant pled to the charge with the court impo sing sentence.” See Comm ent to 1984 Amendment, Tenn. R. Crim. App. 37. 6 Clearly, if we w

ere to treat this as an appeal under Rule 37(b)(2)(i ii), the appeal would be summarily dismissed. However, in the present case, the record reflects unanimous agreement by the District Attorney, the appellant, and the trial court tha t the app ellant was pleading guilty cond itioned upon his r ight to ap peal two certified questions of law . Moreover, the tri al court entered an order on J anuary 8, 1998, preserving such questions. As such, in order to affect the intent of the parties, we elect to review under the provisions of Rule 37(b)(2)(i). 2
Under Rule 37(b)(2)( i), an appeal lies from a gui lty plea if the final order of judgment contains a statement of the di spositive certified q uestion of law reserv ed by the defendant, wherein the q uestion is so clearly stated as to identify the sc ope and the limits of the legal i ssues reserved. See State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988); see also State v. Pendergrass , 937 S.W.2d 834 (Tenn. 1996). The order must also state that the certified question was expressly reserved as a part of the plea agreement, that the State and the trial judge c onsented to the reservation, and that the S tate and the trial judge ar e of the opinion that the question is disposit ive of the case. Preston , 759 S.W.2d at 650 (emphasis added). “An issue is dispositive w

hen this court must either affirm the judgment or reverse and dismiss.” Wilkes , 684 S.W.2d at 663. That is to say that, if w e should find the appellant’s position corr ect, there would be no case to prosecute as there wou ld be no proof to convict.
In the present case, the December 9 plea agreement do es not expressly reserve the certified q uestions as part of the plea agr eement. Moreover, there i s no indication that the trial court and the State determined that the certified questions are dispositive of the cas e. Technically, the rec ord fails to show that the requir ements of Preston and Patterson have been satisfied. However, as this case3 Although we nee d not add ress the merits of this issu e, we co nclude, fr om th e facts before us, t hat the t rial co urt properl y denied the appellant ’s motion to

suppress. Ini

tial ly, we find that the proof contrad icts th e appellant ’s asserti on that hi s Sixth Amendment right to counsel had bee n viola ted. A dver saria l proc eed ings (the a rres t warr ant) h ad no t bee n initiat ed un til after the appellant

provided a st

atement and, thus,the appell ant’s Si xth Amendment right to counsel had not attach ed. See Michigan v. Jackson . 475 U.S . 625, 639 106 S.C t. 1404, 14 07 (198 6); see also State v. Mitc hell , 593 S.W .2d 280, 2 83 (Te nn.), cert. deni ed , 449 U.S. 845, 101 S.Ct. 128 (1980); State v. Butler , 795 S.W .2d 680, 685 (Tenn. Crim . App. 1990). Additionally, the record suppo rts the trial cou rt’s conclu sion that the appellant h ad waive d his rights under th e Fifth Amendment. Although the r ecord does not cont

ain an express waiver, ei ther wri tten or v erbal, by the defendant, the lack of an explicit waiver does not autom atically require the exclusion of a confession i f the Miranda warnings were pr ovided and i f a waiver ca n be found from the fact s and surrou nding circ ums tances

. State v. Elrod , 721 S.W .2d 820, 8 23 (Te nn. Crim . App. 198 6). See also North Caroli na v. Butl er , 441 U.S. 369, 374-375, 99 S. Ct. 1755, 1758 (1970). There i s no dispute t hat the appel lant was advised of his Miranda rights and that he volu ntarily agreed to provide a st

atement, in f

act, when l aw enforcement offi cers first arrived at his residence, the appellant

anxiously

attempted to expl ain his si de to the off icers. There is no indi cation t hat the defend ant was the least bit re luctant to give a statem ent.

4 Notwithst

anding the f

act that this quest ion is not properly

before thi s court, we concl ude that Rule 412 is ap plicable to c ases inv olving the ra pe of a c hild. See Advisory Comm ission Com men ts [1991], T enn. R. E vid. 412; see also State v. Cowans , No. 02C01-9610-CC-00359 (Tenn . Crim. A pp. at Jac kson , Nov. 25 , 1997), perm. to appeal de nied , con curr ing in r esu lts on ly , 7 was initially reserved under (iii), such particularities may be sacrificed in the interest of justice. Cf

. State v. Rains , No. 01C01-9412-CR-00433 ( Tenn. Crim. App. at Nashville, Oct. 26, 1995), perm. to appeal denied , (Tenn. Apr. 1, 1996); State v. Hester , No. 01C01-9509-CR-00289 (Tenn. Crim. App. at Nashville, Jun. 11, 1996 ), perm. to appeal denied , (Tenn. Dec. 2, 1996 ) (holding that the supreme court appears to have relaxed the Preston requirements somewhat by its order in State v. Sarah Hutton Downey , No. 03C01-9307-CR-00221 ( Tenn. at Knoxville, Jul . 6, 1994)).
Even if we were to ignore the technical omissions by the appellant, we are unable to conclude that the certi fied questions are dispositive of the case. Specifically, we fail

to find the trial court’s denial of the appellant’s motion to suppress dispositive of the case. 3 Indeed, although the appellant’s confession is a strong part of the State’s ev idence, the State could have pr esented the testimony of the victim had the case gone to trial and, from this evidence, a rational trier of f act could have found the appellant g uilty of rape of a child w ithout the State ever introducing the appellant’s statement. Nor is the question of whether the trial cou rt properly refused to permit the introduction of prior sex ual activity of the v

ictim under Tenn. R. Evid. 412 dispositive of the case. 4 See, e.g. , State v. Sanders , No. 01C01-(Tenn. Jul. 6, 1998). However, before evidence of specific inst ances of a vict im’s sexual behav ior ma y be ad mitte d at tria l, the a ccu sed mu st file a writte n m otion ten d ays pr ior to tr ial, accompanied by an offer of proof descri bing the speci fic evi dence and the purpose f or intr oducing it. Tenn. R. Evid. 412(d)(1). In a pre-t rial moti on, the appel lant sought to int roduce evidence that (1) the vi ctim had viewed pornographic movies with her aunt and uncle; (2) the vi ctim was permitted t

o be in the same bed wi th her mother and st ep-father whi le they

engaged in sexual activities; and (3) the v icti m has in the past been sexu ally molested by someone other than the defe nda nt in or der to expla in the victim ’s kn owle dge of se xua l ma tters . Altho ugh the a ppe llant’s motion was timely

filedand stated t he purpose for seeki ng introdu ction of the evidence, the motion failed to m ake an offer of p roof that e ffectively sub stantiated his allegation s. See State v. Malone , No. 03C 01-951 0-CC -00314 (Tenn . Crim. A pp. at Kno xville, Mar. 20 , 1997), perm . to appeal denie d , (Tenn. Oct. 27, 1997). Thus, the appel lant has failed t o comply wit h the procedural r

equirements of Rul e 412 and the motion was p roperly denied. Because o

f the appellant’s procedural default as to thi s issue, we need no t address other

concerns incl uding whethe r the inciden ts alleged c onstitute “s exual ac tivity” within the purvie w of Ru le 412. 8 9312-CC-00420 (Tenn. Crim. Ap p. at Nashville, Jul . 21, 1994), perm. to appeal denied , (Tenn. Dec. 12, 1994) (iss ue regarding 412 evi dence not dispositive of case). Rather, such ev idence was sought to est ablish the victim’s k

nowledge of sexual matters and woul d only impact the weig ht to be afforded to the evidence.

This court will not v

iolate court rules to ass ume jurisdiction of a matter on agreement of litigants and the trial court. State v. Wilkes , 684 S.W.2d at 667. It is the appellant’s duty to pr operly perfect the appeal. As we find neither certified question dispositive of the case, this court has no jurisdiction to entertain this appeal. See Tenn. R. Crim. P. 37(b)( 2).
Accordingly, the appeal is dismissed.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

________________________________ JOHN H. PEAY, Judge

________________________________ L. T. LAFFERTY, Senior Judge