FILED

November 6, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER SESSION, 1998

STATE OF TENNESSEE, )

) No. 02C01-9804-CC-00116

Appellee )

) DYER COUNTY

vs. )

) Hon. LEE MOORE, Judge

GEORGE MILTON BROOKS, )

) (Rape of a Child)

Appellant )

For the Appellant: For the Appellee:

H. Tod Taylor John Knox Walkup

Asst. Public Defender Attorney General and Reporter

208 N. Mill Avenue

P. O. Box 742 Clinton J. Morgan

Dyersburg, TN 38025-0742 Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

2d Floor, Cordell Hull 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. Hayes

Judge
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OPINION

The appellant, George Milton 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 agreement, the trial court

sentenced the appellant to fifteen years incarceration in the Tennessee Department

of Correction. As a condition of his plea, the appellant reserved 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 permission 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 record, 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 reported 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, earlier that

day. Upon receiving this information, Officer Isbell, accompanied by two other

officers, proceeded to the appellant’s residence in Dyersburg.

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 attempted to talk to the officers at this point. 

However, the officers interrupted the appellant, informing him that he could talk to

them later. The appellant was then transported to the county jail.
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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 Miranda rights 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 really all about. And she said yeah. And so I went 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 you

have to do is ask. And she did make a statement. She said well, I

was going to ask you anyway if I could see it.

. . .

I . . .I was really . . . kind of joking . . . I said . . . makes you want to fool

around or something like that, you know, and she said 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 there in a minute, or something like that. I’ll . . . be

there in a second. And she got in the bed.

. . .

It was just . . . it was just some fondling.

. . .

She took her hand and started playing with my penis.

. . .

And I was rubbing her rear.

. . .

And then I . . . did proceed to mess with her vagina.

. . .

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. I did not drag her. . . . I did not take her

clothes off or nothing.

. . .

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

. . .

Well, it was . . . agreeable. I guess is the only way I know how to put

it, but I never actually 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 actually
1Although the State d id not con test appe llate review a t the trial level, we a re com pelled to

raise any defect relating to the certified questions sua 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 hon[est] . . . I didn’t have an erection.

. . .

[I]t’s just something I’ve had problems with. . . .

. . .

I mean . . . it was touching. . . .

...

. . . [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 thought 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 related by

the victim to the police, an arrest warrant was 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 appellant plead guilty to one count of rape of a child,

reserving two certified questions of law for appellate review.

Analysis

The appellant, in this appeal, seeks review of the certified questions under

the provisions of Tenn. R. Crim. P. 37(b)(2)(iii). The State argues that the

appellant's reliance upon this provision is misplaced and that the certified questions

reserved are appropriate only for review pursuant toTenn. R. Crim. P. 37(b)(2)(i) or

(iv).1 Thus, the State contends the appeal must be dismissed and the trial court's

decision affirmed. The trial court’s order specifically reserves the certified questions

under Tenn. R. Crim. P. 37(b)(2)(iii). Accordingly, we proceed to determine whether
5

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 all nonjurisdictional and procedural 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) (citing Parker v. State, 492 S.W.2d 456 (Tenn. Crim. App. 1973)). Thus,

a defendant’s right to appeal after entering a guilty plea is very limited. 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 [guilty plea]” and (2) that “such errors are apparent from the

record of the proceedings already had.” This provision is only applicable “where

guilt was not contested but the record clearly reflects an invalidating error, such as

the clear denial of the right to counsel or a conviction under an invalid statute,

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 face of a record is

that which is so patent that no reasonable person could disagree that error existed

on the record.” State v. Moton, No. 03C01-9104-CR-00129 (Tenn. Crim. App. at

Knoxville, Feb. 6, 1992), perm. to appeal denied, (Tenn. Jun. 22, 1992). “Error is

not apparent from the face of the record if one must resort to the weighing of

evidence to determine if there is error.” Moton, No 03C01-9104-CR-00129.

Rule 37(b)(2)(iii) does not provide an avenue of appeal for the errors claimed

by the appellant in the present case. There is no clear denial of a basic

constitutional right such as the right to counsel or the violation of double jeopardy. 

The trial court heard evidence and argument on both issues, weighed the testimony

of the witnesses, and applied legal principles in reaching its decision. See, e.g.,

State v. Turner, 919 S.W.2d 346, 359-360 (Tenn. Crim. App. 1995). Accordingly,

37(b)(2)(iii) is not the proper vehicle under which an appeal may lie in this case.
2W 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 that (iv) “would only apply where there was no plea 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 were to treat this as an appeal under Rule 37(b)(2)(iii), 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 that the appellant was pleading guilty conditioned upon his right to appeal two

certified questions of law. Moreover, the trial court entered an order on January 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 guilty plea if the final order of

judgment contains a statement of the dispositive certified question of law reserved

by the defendant, wherein the question is so clearly stated as to identify the scope

and the limits of the legal issues 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 consented to the

reservation, and that the State and the trial judge are of the opinion that the question

is dispositive of the case. Preston, 759 S.W.2d at 650 (emphasis added). “An issue

is dispositive when this court must either affirm the judgment or reverse and

dismiss.” Wilkes, 684 S.W.2d at 663. That is to say that, if we should find the

appellant’s position correct, there would be no case to prosecute as there would be

no proof to convict. 

In the present case, the December 9 plea agreement does not expressly

reserve the certified questions as part of the plea agreement. Moreover, there is no

indication that the trial court and the State determined that the certified questions

are dispositive of the case. Technically, the record fails to show that the

requirements of Preston and Patterson have been satisfied. However, as this case
3Although we nee d not add ress the merits of this issu e, we co nclude, fr om th e facts

before us, that the trial court properly denied the appellant’s motion to suppress. Initially, we find

that the proof contradicts the appellant’s assertion that his Sixth Amendment right to counsel had

been viola ted. Adver saria l proc eedings (the a rres t warr ant) h ad no t been initiated un til after the

appellant provided a statement and, thus, the appellant’s Sixth 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. denied, 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 record does not contain an express waiver, either written or verbal, by

the defendant, the lack of an explicit waiver does not autom atically require the exclusion of a

confession if the Miranda warnings were provided and if a waiver can be found from the facts 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 Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758 (1970). There is no

dispute that the appellant was advised of his Miranda rights and that he volu ntarily agreed to

provide a statement, in fact, when law enforcement officers first arrived at his residence, the

appellant anxiously attempted to explain his side to the officers. There is no indication that the

defend ant was the least bit re luctant to give a statem ent. 

4Notwithstanding the fact that this question is not properly before this court, we conclude

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. Evid. 412; see also State v. Cowans, No. 02C01-9610-CC-00359

(Tenn . Crim. App. at Jac kson , Nov. 25 , 1997), perm. to appeal denied, concurring in r esults only,

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 certified 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 evidence, the State could have presented the testimony of

the victim had the case gone to trial and, from this evidence, a rational trier of fact

could have found the appellant guilty of rape of a child without the State ever

introducing the appellant’s statement. Nor is the question of whether the trial court

properly refused to permit the introduction of prior sexual activity of the victim 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 instances of a victim’s sexual behavior

ma y be ad mitte d at tria l, the accused mu st file a written m otion ten days prior to trial,

accompanied by an offer of proof describing the specific evidence and the purpose for introducing

it. Tenn. R. Evid. 412(d)(1). In a pre-trial motion, the appellant sought to introduce evidence that

(1) the victim had viewed pornographic movies with her aunt and uncle; (2) the victim was

permitted to be in the same bed with her mother and step-father while they engaged in sexual

activities; and (3) the victim has in the past been sexually molested by someone other than the

defe ndant in or der to expla in the victim ’s kn owledge of se xual ma tters . Altho ugh the appellant’s

motion was timely filed and stated the purpose for seeking introduction 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. App. at Kno xville, Mar. 20 , 1997), perm . to

appeal denied, (Tenn. Oct. 27, 1997). Thus, the appellant has failed to comply with the

procedural requirements of Rule 412 and the motion was properly denied. Because of the

appellant’s procedural default as to this issue, we need not address other concerns including

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. App. at Nashville, Jul. 21, 1994), perm. to appeal

denied, (Tenn. Dec. 12, 1994) (issue regarding 412 evidence not dispositive of

case). Rather, such evidence was sought to establish the victim’s knowledge of

sexual matters and would only impact the weight to be afforded to the evidence.

This court will not violate court rules to assume 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 properly 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, Judge

CONCUR:

________________________________

JOHN H. PEAY, Judge

________________________________

L. T. LAFFERTY, Senior Judge