IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE v. STEVIE SMITH Direct Appeal from the Criminal Court for Knox County No. 63061 Richard Baumgartner, Judge

No. E1999-00386-C CA-R3-CD - Dec ided May 23, 2000

Defendant

Stevie Smith was convicted by a jury of two counts of aggravated sexual battery and one coun t of assaul t. The trial court subsequently impose

d an effective s

entence of nine

years. Defendant

challenges his convictions , raising the follow ing issues: (1) whe

ther the evidenc

e is sufficient to support the convictions for aggravated sexual battery; (2) whether the trial court should have suppressed a stat

ement that Defen

dant gave to

police; and (3) whether the trial court properly admitted evi dence abo ut the manner in which offenders make confessions during questioning by police. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

W OODALL , J. delivered the opinion of the court, in which T IPTON , J. and O GLE , J. joined.

Mark E. Stephens , District Public Defender, R. Scott Carpenter, Assistant Public Defender, and Paula R. Voss, Assistant Public Defender, Knoxville, Tennessee, for the appellant,

Stevie Smith.

Paul G. Su mmers, Attorney General and Reporter, Patricia C. Kussmann, Assistant Attorney General, Randall E. Nichols, District A ttorney Genera

l, Charme Knight, Assistant District Attorney General, and Steve Garrett, Assistant District Attorney General, for the appellee, Stateof Tennessee.

OPINION
I. FACTS

Twelve year old B.N. (it is the poli cy of this Court to refer to the victims of child sexual abuse only by their initials) testified that around Christmas of 1996, Defendant started visiting the residence shelived in with her mother and her siblings. B.N. initially thought that Defendant was
a good person, but her feelings change d when he began “[r]ubbing his private parts against [her] bottom” and rubbing

her chest.

B.N. testified that on one occasion while she was cooking in the kitchen, Defendant “bent down and pressed his private part against [her] bottom.” When B.N. told Defendant that she w a s uncomfortable, he backed away. On another occasion while B.N. was washing dishes in the kitchen,-2-

Defendant

bent his knees and “placed his private on [her] bottom.” On one occasion while B.N. was in the living room, Defendant grabbed her and had her sit on his lap. Defendant then rubbed B.N.’s chest with his hand. On another occasion while B.N. wa s lying on a couch, Defendant lay down behind her. D efendant then put his arms around B.N. and “put his private against [her] bottom.” Defendant also told B.N. not to tell what had happened.

Debbie Greene of the Department of Children’s Services testified that

on April 24, 1997, she and Investigator Sam Brown of the Knoxville Police Department interviewed Def endant at the polic e station. After Brown rea d Defendant’s r

ights to him, De fendant signed a waiver of rights f

orm. Defendant

initially r esponded to Brown’s questions by stating that he could not recall having any inappropriate

contact with B.N. Defendant then said that he might have rubbed her, and some of the allegations might be

true. Defendan

t then gave the fol

lowing written stat

ement: I, Stevie Smith, have rubbed on [B.N.] before Christmas ‘96. [B.N.] was sitting on the couch watching tv & her mom was gone. I rubbed her on her bottom. The second time, on couch in the living room, I rubbed h er chest over her clothes & kissed her mouth & I could have accidentally rubbed

her on her vagina over

her clothes. The third time, I kissed her on the neck. [B.N.] was in the kitchen doing dishes & I touched her bottom & rubbed my penis against her bottom. One time in a chair , [B.N.] was sitting

on my lap & rubbing my c hest. I rubbed her on her butt. I have rubbed my penis against her several times. I know I need help. I have thoughts, sexual fantasies, about women & kids. I have been like this since I was young.
Defendant’s mother testified for the defense that Defendant was born with meningocele and as a result, he had developmental problems and learning disabilities.

Defendant

testified that he had never been alone with B.N. and he had never touched he

r in
an inappropriate manner. Defendant also testified that he was shocked when Brown informed him of the allegations made by B.N.

Defendant

testified that

during the interview, he denied the allegations at least seven or eight times. Defendant admitted that his signature was on the waiver of rights form, but he could not recall reading or signing the form. Defendant admitted that he had signed the written statement, but he denied that he wrote the statement or read the statement. Defendant testified that he blacked out toward the end of the interview. Defendant claimed that he could not remember making any of the admissions that were contained in the written statement. Defendant subsequently claimed that he did not make the sta

tements.

Dr. Peter Young testified that he had previously evaluated Defendant. Dr. Young opined that Defendant

suffered from basic language processing difficulties and he had a p oor grasp of higher level language and

abstract reasoning. Dr. Young determined that Defendant had an IQ of 72, which
was above the level of mental retardation. Dr. Young also determined that Defendant could read at a sixth-grade le

vel.-3-

Dr. Young testified on

cross-examinat

ion that as a person reading a t a sixth-grade le

vel, Defendant

could have understood every statement included in his written confession. Dr. Young opined that Defendant w

ould have been ab

le to read everything on the waiver of rights form, but he
was not sure whether Defendant would have understood his rights. Dr. Young also o pined tha t Defendant would

not black out and lo se awareness of what was happeni

ng to him. Investigator

Sam Brown of the Knoxville Police Department testified in rebuttal that during the interview with De

fendant, he informed Defendant of each of his rights individually. Defendant initialed eachindividual right and he never indicated that he did not understand his rights. Brown also reviewed the paragraph contai ning a waiver of rights and he made sure that Defendant understood it. Brow

n denied yelling at

or arguing with De

fendant.
II. SUFFICIENCY OF THE EVIDENCE

Defendant

contends that the evidence is insufficient to support his convictions for aggravated sexual battery. Defendant does not challenge the sufficiency of the evide nce for his assault conviction.

The record indicate

s that Defendant was indicted and tried for three counts of aggravated sexual battery. The State made the following elec tion of offenses: for count one, the State chose

to rely on the evidence that Defendant had placed his private part against B.N.’s bottom while she was cooking i n the kitchen; for count two, the State chose to rely on evidence that Defendant rubbed B.N.’s chest while she was sitting on his lap; and for count three, the State chose to rely on evidence that Defendant lay down behind B.N. on the couch a nd placed his priva

te part against he

r bottom. The record

also indicates that the jury convicted Defendant of the lesser-included offense of assault under count one and the charged aggravated sexual battery offenses under c ounts two and three. Where the sufficiency

of the evidence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) . In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required t

o afford the State

the strongest legit

imate view of the evide

nce contained in

the record as well as all reasonable and legitimate inferences which may be drawn fr om the evidence. Statev. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). Since a verdict of guilt removes the presumption of a defendant’s innocence and replaces it with a presumption of guilt, the defendant has the burden of

proof on the sufficiency of the evidence at the appellate level. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

Under Tennessee law, “[a]ggravated sexual battery is unlawful sexual contact with a vic tim by the defendant or

the defendant by

a victim accompa

nied by any of the f

ollowing circumsta

nces:

. . . [t]he victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4) (1997).-4-

In addition, “‘[s]exual contact’ includes the intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate
area of the victim’s, the

defendant’s, or

any other person ’s intimate parts, if that intentional touching
can be reasonably construed as being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6) (1997). Further, “‘[i]ntimate parts’ includes the primary g enital area, groin, inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 39-13-501(2) (1997).

Defendant

does not dispute the fact that B.N . was le ss than thirteen years of age when the events at issue in this

case occurred and there is no question that the State established that element of the aggravate

d sexual battery o

ffenses.

Defendant

initially argues th

at th e evidenc e is insufficient to support his convictions for aggravated

sexual battery be

cause the State failed to prove that there was any touching of Defendant
or B.N.’s “intimate

parts.” We disagree. In regard to the conviction under count two, B.N. testified that Defendant grabbed her, had her sit on his lap, and rubbe

d her chest with his

hand. In addition, Defendant

admitted in his statement to police that he had rubbed B.N.’s ch est. The “breast of a human being” is expressly listed as an “intimate part ” under the statute. As for the conviction under count three, B.N. testified that while she was lying on a couch, Defendant lay down behind her, put his arms around her, and “put his private against [her] bottom.” Further, D efendant admitte

d in his statement that he rubbed his penis against B.N. Both the bu ttocks of B .N. and the penis of Defendant

fit the express definition of “intimate parts” under the statute. The State clearly proved that there was an intentional touching of B.N. and/or Defendant’s “intimate parts.”

Defendant

also argues that the evidence is insufficient because the State

failed to prove that any sexual contact was “for the purpose of sexual arousal or gratification.” We disagree. Defendant admitted in his statement that he had rubbed B.N.’s chest, he had kissed her on the mouth, and had rubbed his penis against her. In addition, Defendant expressly admitted that he had sexual fantasies about children. It can be reasonably construed from this evidence that the sexual contact was for the purpose of sexual arousal or gratification.
Further, Defendant contends that the evidence is insufficient

because B.N.’s testimony was notcorroborated by any independent evidence. However, there is no requirement that the victim’s testimony be corroborated and regardless, Defendant’s own statement cor robo rated most of the victim’s testimony. Finally, Defendant argu

es that the eviden

ce is insufficien

t because th

e victim was on ly a child when the events at

issue in this case o

ccurred and she

was probably con

fused about what a

ctually happened. However, “[t]he credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the ev idence are matters entrusted exclusively to the jury as the triers of fact.” State v. Cribbs , 967 S.W.2d 773, 793 (Tenn. 1998). The jury obviously accredited B.N.’s testimony.

In short, we conclude that when the evidence is viewed in the light most favorable to the State, as it must be, the evidence is sufficient for a rational jur

y to find beyond a reasonable doubt-5-

that Defendant had committed two counts of aggr a vated sexual battery. Defendant is not entitled to relief on this issue.
III. SUPPRESSION

Defendant contends that the trial court erred

when it failed to suppress a pretrial statement that he made to police. During a suppression hearing, Investigator Sam Brown testified that at

approximately 11:00
a.m. on April 24, 1997, he and Debbie

Greene went to the Hardee’sRestaurant where Defendant was employed. Upon arriving at Hard ee’s, Brown told Defendant that he needed to interview him and Brown asked Defenda

nt to meet him at the p

olice station. Def

endant agreed t

o meet Brown at the police station at 2:00 p.m. Brown then returned to the police station to prepare for the interview.

Brown testified that Defendant and his girlfriend arrived at the police station at approximately

2:00 p.m. Defendant’s girlfriend accompanied him to the third floor of the police station, but she remained outside when Defendant went into an interview r oom with B rown and Greene. Brown told

Defendant that he was not under arrest and if he became uncomfortable at any time, “he could walk out of the interview and leave a t his own will.” Brown gave Defe ndant a waiver of rights form and after Defendant read the form, Brown read it to him. Brown reviewed eachright individually with Defendant and Defendant initialed the line next to each indivi dual right. Defendant

stated that he understood his rights and he voluntarily waived them. Defend ant a lso signed the bottom of the wa iv er for m. Brown testified that Defendant did not appear to have any trouble understanding the things that were discussed and Defendant did not appea r to h ave any mental disability.

Brown testified that after Defendant waived his rights, he made a statement that was transcribed

by Greene. Defendant was then given the opportunity to review the statement and make corrections.The interview then concluded, and Brown gave Def endant and his girlfriend a ride home.

Brown testified on cross-examination that when Defendant arrived for the interview, Brown took Defendant’s photograph, but he did not take Defendant’s fingerprints. Brown denied that he told Defendant that

the allegations that had been mad e against him were

not serious and Bro

wn also denied that he called Defendant a liar.

Debbie Greene testified that she was present when De fendant read his

rights, had his rights read to him, and signed the waiver of rights form. Gree ne di d not see any indication during the interview that

Defendant had

any mental disability. Greene referred Defendant to a counselor after he stated at the end of the interview that he needed help.

Defendant

testified that Brow

n tr ansporte d him from Hardee’s to the police station. Defendant

stated that Brown was angry and argumentative during the interview, and he repeatedly refused to accept Defendant’s assertions of innocence. De fendant testified that throughout the-6-

interview, Brown repeatedly stated that Defendant knew that the allegations where true. Defendant denied that Brown told him that he could leave the interview at any time. Defendan t stated that when he arrived at the police station, he was both photographed and fingerprinted.

Defendant

testified that he could not recall whether Brown read his rights to h

im. Defendant admitted that his signature was on the waiver of rights form and his i

nitials were also

on the form, buthe could not recall signing the form. Defendant testified that he blacked out toward the end of the interview and he could not remember how the interview concluded.

At the conclusion of the hearing, the trial court ruled that th e statement was a

dmissible because the interview was not a custodial situation. The cour t als o found that there was overwhelming pro

of that Defenda

nt was advised of h

is rights before h

e gave the statem

ent.
A. “Questions of credibility of the witnesses, the weight and value of the evi dence, a nd resolution of conflicts in the evidence are ma

tters entrusted to

the trial ju dge as the trier of fact.” Statev. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). “The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppr ess ion hearing as we

ll as all reasonable

and legitimate inferences that may be drawn from that evidence.” Id. Indeed , “a trial court’s findings of fact in a suppression hea

ring will be upheld unless the evidence preponderates otherwise.” Id.

The Fifth Amendment to th e United States Cons

titution provides in

part that “no person . .

. shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. Similarly, Article I, Section 9 of the Tennessee Constit ution states that “i

n all criminal pros

ecutions, the accused . . . s

hall not be compell

ed to give evidenc

e against himself. ” Tenn. Const. art. I, § 9.

An accused may waive this right against self-incrimination. Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In Miranda , the United States Supreme Court held that a suspect in police custody must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used a

gainst him in a court of law, that he has the right to the presence of an attorney, and that if he can not afford an att

orney one will be a

ppointed for him

prior to any questioning if he so desires. 384 U.S. at 479, 86 S.Ct. at 1630. The Supreme Court held that a su spect may knowingly and intell igently

waive the right against self-incrimination only after being apprised of his or her Mi rand a rights. Id. , 384 U.S. a t 479, 86 S. Ct. at 1630. Accordingly, a constitutional waiver of the right against self-inc rimination requires the accused to make an intelligent, knowing, and voluntary waive r of the rights afforded by Miranda

. Id. , 384 U.S. at 444, 86 S.Ct. at 1612.

The evidence in therecor d does not preponderate against the trial court’s finding that Defen dant was advised of his right against self-incrimination and he signed a form in which he waivedthat right. Brown testified during the suppression hearing that he gave Defendant a waiver-7-

of rights form and after Defendant read the for m, Bro wn read it to him. Brown testified that he reviewed each rig ht individually with Defendant and Defendant initialed the line next to each individua l right. Bro wn testified that Defendant told him that he understood his rights and he voluntar i ly waived them. Brow n testified that De

fendant did not ap

pear to have any

trouble understanding t he things that were discussed and Defendant did not appear to have any mental disability. Similarly, Greene testified during the hearing that after Defendant read the waiver o f rights form, Brown reviewed each right individually and Defendant then initialed each right to show that he understood it. Greene testified that she did not see any indication that Defendant had a mental disability. Further, Defendant admitted during the hearing that his signature and initials were
on the waiver of rig

h ts form. In short, there is ample evidence which supports the trial court’s finding that Defendant was advised of his right against self-incrimination and he signed a form in which he waived t

hat right.

B.

Of course, even when there has been a valid waiver of the right against self-incrimination,
a confession must still be volun tary to be a dmissible. See State v. Smith , 933 S.W.2d 450, 455 (Tenn. 1996). In order to be consid ered voluntary,

the statement must

not be extracted by “any sort of threats or violen

ce, nor obtained

by any direct or im

plied promise s, h owever slight, nor by the exertion of

any improper influence.” Bram v. United States , 168 U.S. 532, 542–43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). However, “[a] defendant’s subjective perception alone is not sufficient to j ustify a conclusion of involuntariness in the constitutional sense.” Smith , 933 S.W. 2d at 455

. Instead, “coercive police activity is a necessary predicate to finding that a confession is not voluntary.” Id. In determining whe th er a confession has been made knowingly and voluntarily, courts must look to the totality of the circumstances. Id. at 455–56.

The record indicates that

after th e State called Brown and Greene during the suppression hearing, the State moved for “summary judgment . . . on the custodial issue.” Shortly thereafter, the following colloquy occurred:

[DEFENSE

COUNSEL]: As we aver in our pleading, your

Honor, there are learning disabilities which M

r. Smith has. THE COURT: Of cour

se, we have not ha

d any proof of tha

t. [DEFENSE

COUNSEL]: That is true, Your Honor. So I guess that is the point of the General making her motion a t this point. We don’t get to voluntariness, if Your Honor finds that the defenda

nt wasn’t in custody . So I mean it is still ou r position that— THE COURT: Say that again. We don’t get to voluntariness if he wasn’t in custody?

. . . . [DEFENSE COUNSEL] :: Well, it is my understanding

that the threshold

issues in a motion such as this to suppress, are that at the time the statement was made—well, there
are two threshold issues. A statement was made, and that the defendant was in custody at the time of making th

e statement.

. . . . [DEFENSE

COUNSEL]: If you have that prima facie showing, then we get to, you know, the State’s proof. Well, if in the course of the State’s proof, the State proves that the-8-

defend ant wasn’t in custody, or if we decide to put on proof ourselves with regard to th e custodial interrogation issue, then in essence that is the first question the Court has to answer. After the Court would find a custodial interrog ati on, then we would get to the question of whether or not the waiver was voluntary and the statement was voluntary. THE COURT: Okay. But say I find that this was a custodial int er rogation, for the purpose of argum

ent.

. . . . THE COUR T: I would

then have to find that the statement was voluntarily given. Are you saying that;

if I find that it is not a c ustodial interroga

tion, that I don’t ha

ve to address whether or not the statement was voluntarily given? [DEFENSE COUNSEL]: I don’t believe so. . . .

Defense counsel’s legal t

heory that the volu

ntariness of a sta

tement is only an issue when a statement is given during custodial interrogation is clearly incorrect. See Smith , 933 S.W.2d at 455. However, this erroneous theory was accepted by the trial court. At the conclusion of the h e aring, the trial court found that Defendant was not in custody when he gave the s tatem ent and thus, the court ruled that the statement was admissible. The trial court made no findings of fact or conclusions of law in regard to whether the statement was voluntarily made. Notwithstanding the trial court’s failure to make a

ny findin gs of fa ct or conclusion of law about the voluntariness of

Defendant’s statement, we conclude that there is no need for a rema

nd in this case. Quite simply, no proof was introduced during the suppression hearing that Defendant’s statement was the result of t

he kind of “coer

cive police acti

vity” that “is a ne

cessary predic

ate to finding that a confession is not voluntary.” See Smith , 933 S.W.2d at 455. I n fact, after de

fense counsel finished the direct examination of Defendant, he stated: I guess what I

was attempting to do, Your Honor, since the salient point at this point in our hearing is custodial status i s I was trying to limit all of my questions to whether or not the circumstances—what

the circumstanc

es were that rel

ate to custodial sta

tus. So I think at this point in the hearing, tha

t is the only releva

nt field of inquir

y. The voluntariness of the statement is not one which I hav e broache d with Mr. Smith in the course of my direct examination. (Emphasis added).

In short, the record does not preponderate against the trial court’s fi ndings that Defendant
was advised of his Miranda rights and he signed a waiver of those rights. Moreover, no proof was introduced during the suppression hearing that would support a finding that Defendant’s statement
was involuntary. Under these circumstances, we conclud e that the tria

l court did not err

when it failed to suppress Defendant’s statement. Defendant is not entitled to relief on this issue.
IV. CHALLENGED TESTIMONY

Defendant conte

nds that the trial c

ourt erred when

it admitted testimony about the manner in which offenders make confessions during questioning by police.-9-

The record indicates that during Greene’s direct examination, the prosecutor

asked Greene about the nature of

the interview with Defendant. During her description of the interview, Greene stated, “The training that we have been to, as far as how to interview suspects is that, initially, we know they deny lots of times.” Defense counsel objected to this testimony, but the trial court made no ruling on the objection. During Brown’s rebuttal testimony, the prosecutor asked Brown how he was able to obta in
a confession during his interview of Defendant. Brown responded, “Uh—in general, usually, you get—uh—you get

denials up front from

your people that you are interviewing.” Defense counsel objected, but the trial court overruled the objection and stated, “This is what he does for a living. Go ahead.” Brown then testified that “In general, you do get denials up front. Then you know, based on investigative techniques and things through that—you know, through the interview—you develop the truth.”

In a ddition, the prosecutor made the following comment during closing argumen t: “No w [Brown and Greene] told you that, in the beginning, [Defendant] didn’t admit right off. They said nobody does. He went through the denial, then he

went through the min

imization, and the

n he told what he had done.” There was no objection to this comment. The prosecutor also commented that Brown and Greene had testified that they did not tape the interview of Defendant because when they try to tape an interview in a chi ld sex abuse case

, the person being

interviewed ref

uses to talk. There was no objection to

this comment.

Defenda ntargues that the testimony of Brown and Greene was improper because it amoun te d to an allegation that Defendant’s statement to police was like that of sexual offenders in general who have specific psychological traits and a recognizable pattern of disclosure. Defendant also argues that this error was ma

gnified by th

e prosec utor’s comments about the testimony during closing argument.
A. Although it is not entirely clear, the trial court apparently ruled that the testimony of Brown and Greene was admissible because it was expert testimony.

The admission of expert testimony regarding scientific and technical evidence is governed by Rules 702 and 703 o

f the Tennessee

Rules of Evidence . Rule 702 provides: If scientific, technical, or other specialized knowledge will substantially assist the tri er of f act to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise. In addition, Rule 70

3 provides: The facts or data

in the particular

case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably

relied upon by experts in the particular field in forming opinions or inferences upon the subject, the fact s or da ta need not be adm issible in evidenc

e. The court shal

l-10-

disallow testimony in the for m of an opinion or inf

erence if the un

derlying facts or data indicate lack of

trustworthiness. “Questions regarding the ad mi ssibility, qualifications, relevancy and competency of e xpert testimony
are left to the discre

tion of the trial co

urt, whose ruling will notbe overturned in the absence of a

buse or arbitrary exercise of discretion.” State v. Begley , 956 S.W.2d 471, 475 (Tenn. 1997).

The Tennessee Supreme Court has promulgated sp

ecific principle

s to guide a trial cour

t in the determination of whether to admit scientific or technical evidence: First, the evidence must be relevant to a fact at issue in the case. Tenn. R. Evid. 401, 402. Second, the expert

must be qualified by specialized knowledge, skill, experience, training,
or education in the field of

expertise, and

the testimony in que

stion must substantia

lly assist the trier of fact to understand the evidence or determine a fact in issue. Tenn. R. Evid. 702; McDaniel[

v. CSX Transportation, Inc. , 955 S.W.2d 257, 264 ( Tenn. 1997)]; see also Otis v. Cambridge Mutual Fire Ins. Co. , 850 S.W.2d 439, 443 (Tenn. 1992). Finally, when the expert witness offers an opinion or states an inference, the underlying facts or da ta upo n which the expert relied must be trustworthy. Tenn. R. Evid. 703; McDaniel , [955 S.W.2d] at 264. Begley , 956 S.W.2d at 475.

We conclude that the challenged testimony of Brown and Greene that crimina l sus pects typically deny committing off

enses before c

onfessing during p

olice inte rrogation was not a dmissible
as expert testimony

. First, the testimony w as simply not releva

nt. Rule 401 of the Tennessee Rules of Evidence states that “‘[r]elevant evidence’ means evi dence having any tendency to make the existence of any fact that i s of consequence

to the determination of the action more proba ble or less probable than it would be without the evidence.” Here, the general behavior of other criminal suspects during questioning by police had no value in the determination of whether Defendant was guilty of the offenses for which he was charged in this case. Second, evidence about the behavior of criminal suspects

in other cases did

nothing to

assist the trier of fact to understand the evidence
or determine a

fact in iss ue. Further, there was absolutely no evidence from which it can be determinedthat the underlying facts or data upon which Brown and Greene relied on in reach ing their opinions were trustworthy. Therefore, the challenged testimony of Brown and Greene was not admissible expert opinion testimony.

B.

The State apparently concedes that the challenged testimony of Brown and Greene was not admissible

as expert opinion testimony. Rather, the State argues that the testimony was admissible as the opinions of lay witnesses.

The admissibility of opinion testimony from lay witnesses is governed by Rule 701 of the Tennessee Rules o

f Evidence, whic

h states in releva

nt part: If a witness is nottestifying as an e xpert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are-11- (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. The fact that the challenged opinion testimony came from lay witnesses rather than expert witnesses does not make the e vidence any more

relevant. The te

stimony was simply of

no help to th e jury i n determining a fact in issue. Moreover, Rule 403 of the Tennessee Rules of Evidence states that “[a]lthough relevant, evidence may be exclud ed i f its probative va

lue is substantially outweighed by the danger of unfair prejudice . . . .” Even if this testimony wassomehow relevant, its minimal probative value was substantially outweighed by the unfair prejudice of its tendency to imply that because cr

iminals always deny their crimes before a

dmitting to them, Def

endant is a criminal because he also denied his offens

es before conf

essing to them. Thus, the challenged testimony was not ad

missible as the opini

on of lay witnesse

s.
C.

Defendant als o complains that the prosecutor’s comments during closing argument emphasized

the improper testimony of Brown a nd Greene . However, the record indicates that D e fendant

did not object when the prosecutor made the comments. By failing to make a contemporaneous objection, Defendant waived any complaint ab out t he comments. See State v. Robinson , 971 S.W.2d 30 (Tenn. Crim. App. 1997); State v. Gilmore , 823 S.W.2d 566, 570 (Tenn. Crim. App. 1991); Tenn. R. App. P. 36(a).

D. Although we conclude that the trial court er

red when it

permi tted Brown and Gre ene to testify that criminal suspects typically deny committing offenses bef or e confessing during police interrogation, we

conclude that the

error was harml

ess.
Rule 36(b) of the Tennes see Rule s of Appellate Procedure states that “[a] final judgment from which relief is available and otherwise appropri ate sha ll not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process .” In this case, B.N. was absolutely unequivocal in her testimony that

Defendant

had “pressed his private part against [her] bottom” in the kitchen and
on the couch and tha

t he had rubbed he

r chest with his han

d while she sat on hi

s lap. Mo re over, Defendant

specifically admitted in his statement to police that he had rubbed B.N.’s chest and he had rubbed his penis a

gainst her several times. Defendant also admitted to kissing B.N. and to having sexual fantasies about c

hildren. Given the

strength of the ev

idence in this case, we are confident that the error in admitting the improper testimony did not aff ect t he judgment in this case and did not result in prejudice to the judicial process. Defendant is not entitled to relief on this issue. Accordingly, the judgment of the trial court is AFFIRMED.