# FILED
May 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C

01-9708-CR-00362 Appellee, ) ) SUMNER COUNTY VS. ) (10248A & 10248B Below) ) RICKY GENE WILKERSON, ) The Hon. Jane Wheatcraft AND TINA LYN N WILKERSON, ) ) (Cer tifi ed Qu esti on of

Law) Appellants. ) AFFIRMED PU RSUANT TO R ULE 20 O R D E R This matter is again before the Court upon the state’s moti on requesting that the judgment in the above-sty led cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules . Previously, thi s Court ordered that the appellants would have 10 days to request that the trial court clerk c

ertify and transmit a

supplemental record which included the final judgments. The supplemental record is now before the Court, and after reviewing

the pleadings andthe entire record on appeal, we find that this is an appr opriate case for affirmance pursuant to Rule 20 and therefore, grant the state’ s motion.

The appellants pled guilty to possession of mariju ana with intent to sell. It appeared that they had reserved a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i) regarding the search of their home, howe ver, the final judgments w ere not included in the record on appeal. Ins tead, the record included the agreed orders , entered
on August 13, 1997, wherein the appellants’ pleas were accepted by the trial court and it
was expressly

stated that the appellants were reserving the ri ght to appeal the search as a certified question of law with the consent of

the state and of the trial court and that the issue was dispositive of the case. The final judgments, now before this Court, incorporate by reference the agreed or ders which set forth the c ertified question of law.

In State v. Preston , 759 S.W.2d 647 (Tenn. 1988),our Supreme Court held:
Regardless of what has appeared in prior petitions, orders, colloquy in open court or otherwise, the final orde r or judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the disposit ive certified question of law reserved by defendant for appellate review and the question of law must be stated so as to clearly identify the sc ope and the limits of the legal issue reserved.-2-

Id

. at 650. See also , State v. Pe ndergrass , 937 S.W.2d 834, 837-38 (Tenn. 1996). It appears that our Supreme Court r elaxed the Preston requirements to some ext ent by its order in State v. Sarah Hutton Dow ney , No

. 03C01-930 7-CR-00221, Hamilton County (filed July6, 1994). In Downey , this Court dismissed an attempted appeal on a certified question of law, finding "[i]n thi s case the final order simply incorporated by

reference various

issues the appellant raised in sev eral motions before the trial co urt." Our Supreme Court remanded the case "for consideration of the c ertified issue," and set for th what it had determined the certified issue to be. In the pres ent case, the final judgments clearly incorporateby refer ence the agree d orders wh ich set f orth the certifie d questio n of law. Accordingly, the Court finds that the appellants’ certified question is properly befo re us.

The specific issue raised by the appellants is whether the state failed toshow that appellan t Ricky Gene Wilk erson knowingly and voluntarily co nsented to the warrantless search of the appellants’ home. After a hearing on the motion to suppr ess, the trial court entered a written order denying the motion and making the following findings:

Defendant Ricky Gene Wilkerson did not make a credible witness. He was evasive in the manner in which he answered questions.The Court finds that he gave consent to the officers to enter the premises and that he knowingly sig ned the Consent to Search form. The Court does not belie ve h is testimony that he asked the officers to leave. The of ficers ar e experienced, conscientious task force officer s who k n ow what their legal boundaries are. Off. Bunch candidly admitted to this Court that they conduct a “knock & talk” when they do not have probable cause for a sear ch warrant. The Court findsit significant that defense counsel candidly admit ted that no suppression issue was raised until the defense could not make the State back down from its offer of six (6) months to ser

ve for the Defendant Ricky Gene Wilkerson. Defense counsel stated tha t the Wilkersons were trying to keep the children from being involved. Yet when the State refused to back down from its plea offer, a motion to suppress was fil ed and a ten (10) year old child w

as put on the stand to testify and be subjected to intense cross examination. If a legitimate suppression issue existed, it existed in November

of 1996. Significant issues such as suppression motions should not be used as a tactic to coerce the Distric t Attorney into a

more favorable plea agreement. This court is aware that the State bears a heavy burden to establish that consent is voluntari ly given. The State h as met that burden.

A search conducted without a warrant is per se unreasonable unless it falls within a specifically establi shed and well-delineated exce ption. Schneck loth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Voluntarily-3-

given consent is an established e xception to both the warrant and probable cause requirements. Id . at 219, 93 S.Ct. at 2043-44; see also State v. Bartram , 925 S.W.2d 227, 230 (Tenn. 1996). The state has the burde n of showing, by a prep onder ance of the evi dence, that the consent to a warr antless search was g iven freely and vol untarily. Id

.

The question of whether appellant Ricky Gene Wilk erso n voluntarily
conse nt ed to the search was a factual question regarding credibility, and the trial court accredited the police officer’s testimony . Questions concerning the credibility of witnesses and weight and value to be given their testi mony are for resolution by the tri al court. Black
v. State , 794 S .W.2d 75 2, 755 (Tenn. Crim. App. 1990). M oreover, on appeal, a tri al court's findings of fact on a motion to suppress a re conclusive unless the evidence preponderatesagainst those findings. State v. Woods , 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990); State v. Johnson , 7 17 S. W.2 d 2 98 , 3 04 -0 5 ( Te nn . C ri m. Ap p. 19 86 ). We conclude that the evidence i n the record supports the tr ial court's findings.

IT IS, TH EREF ORE, ORDERED that the sta te’s motion to affirm the judgmen t pur suant to Rule 20 is grant ed. The judgment of the trial cour t is hereby affirmed. The petitioner being indi gent, costs of this appeal ar e taxed to the state.
ENTER, this the ____ day of May, 1998.

________________________________ JERRY L. SMITH, JUD GE CONCUR:

________________________________ JOHN H. PEAY, JUDG E

________________________________ DAVID H. WELLES, JUDGE