IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 2, 2018

STATE OF TENNESSEE v. NEHEMIAH RIMMER

Appeal from the Criminal Court for Shelby County

No. 15-05452 John Wheeler Campbell, Judge

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No. W2018-00496-CCA-R3-CD

___________________________________

The Appellant, Nehemiah Rimmer, was convicted in the Shelby County Criminal Court 

of rape of a child, a Class A felony, and received a twenty-year sentence to be served at 

one hundred percent. On appeal, he contends that the trial court erred by denying his 

motion to suppress his confession, that the trial court erred by allowing the victim’s and 

her mother’s out-of-court statements to be read to the jury, and that the evidence is 

insufficient to support the conviction. Based upon the record and the parties’ briefs, we 

discern no reversible error and affirm the judgment of the trial court. 

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Eric Mogy (on appeal) and Terita Hewlett (at trial), Memphis, Tennessee, for the

appellant, Nehemiah Rimmer.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Lessie Rainey and 

Dru Carpenter, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At trial, Officer Rondey Martin of the Memphis Police Department (MPD) 

testified that on the night of April 10, 2006, he responded to a “criminal assault” call at a 

home on Tagen Drive. When he arrived, he spoke with the victim’s mother. He then 

detained the Appellant, who also was present. Officer Martin later arrested the Appellant 

and began asking him for general information such as his name, date of birth, and 

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address. Officer Martin stated, “Well, after I had just asked him just those questions his 

response was, just from no interjection from me, that he did it and he needed some help.” 

Officer Martin’s partner transported the Appellant to the police department, and Officer 

Martin escorted the victim and her mother to the Memphis Sexual Assault Resource 

Center (MSARC). On cross-examination, Officer Martin testified that he could not 

remember if anyone other than the victim, her mother, and the Appellant was present at 

the home.

Eddie Scallions testified that in October 2007, he was an investigator for the 

district attorney’s office and collected a cheek swab from the Appellant. The swab was 

transported to the Tennessee Bureau of Investigation (TBI).

Pam Preston testified as an expert in sexual assault examinations that she was a 

retired registered nurse and used to be a sexual assault nurse examiner at the MSARC. 

She examined the seven-year-old victim at 12:15 a.m. on April 11, 2006, but first spoke 

with the victim’s mother privately. Preston read to the jury the following statement made 

by the victim’s mother: “I was told that my nephew, . . . Nehemiah Rimmer, 19 year old 

black male, forced [the victim] to suck on his penis and he fondled her. Initially I was 

told by my mother and then my child who told me that.” After Preston spoke with the 

victim’s mother, Preston talked privately with the victim. Preston read to the jury the 

following statement made by the victim: “Nehemiah he told me to suck his thing and he 

did it for a couple of minutes. And my brother woke and he heard . . . Nehemiah’s 

footsteps. He touched me on my butt and my private part . . . on top of my clothes.” The 

victim pointed to her genital area as her “private part.” She denied vaginal or anal 

penetration. 

Preston testified that she examined the victim’s entire body and her vaginal area 

and collected oral, vulvar, and anal swabs. Preston also collected the victim’s clothing, 

including her underwear. Preston said that she did not observe any injuries to the victim,

which was not unusual even for a child who had been sexually assaulted. She collected a 

urine sample in order to test the victim for chlamydia and gonorrhea, and the test was 

positive for chlamydia. Preston explained that chlamydia was contracted by sexual 

penetration of the mouth, vaginal area, or anal area. The victim’s urine test did not reveal

where the victim’s infection was located, but Preston acknowledged that the infection 

could have been in the victim’s mouth or vagina. Preston prescribed an antibiotic to treat 

the victim’s infection. 

Lieutenant Evertina Halfacre of the MPD testified that on April 11, 2006, she was 

informed “the victim had been raped” and interviewed the Appellant at the police 

department. Prior to the interview, Lieutenant Halfacre advised the Appellant of his 

Miranda rights. He appeared to understand his rights and signed an advice of rights form. 
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The Appellant agreed to speak with Lieutenant Halfacre and began giving his statement 

at 12:15 a.m. In the statement, the Appellant denied penetrating the victim’s vagina with 

his penis or fingers. However, he admitted to putting his penis inside her mouth. He said 

the incident occurred at 11:00 p.m. on Sunday, April 9, in the back bedroom of his 

grandmother’s house on Tagen Drive and that a sleeping four-year-old child also was in 

the room. Lieutenant Halfacre asked the Appellant, “Whatever made you want [the 

victim] to suck your penis?” The Appellant answered, “Something just said do it.” He 

explained to Lieutenant Halfacre that he asked the victim “if she ever did it before” and 

that the victim said, “[Y]es to someone at school.” The Appellant told the victim to show 

him how she “did it,” so the victim unzipped his pants, pulled out his penis, and “started 

sucking.” The Appellant denied fondling the victim’s buttocks. He told Lieutenant 

Halfacre that he did not take off the victim’s clothes and that he did not ejaculate.

On cross-examination, Lieutenant Halfacre testified that at the time of the 

Appellant’s interview, he was a student taking GED classes. She said that he had been at 

the police department for “just minutes” when she made contact with him and escorted 

him to the interview room. She told the Appellant that he was under arrest and that he 

could give a statement if he wanted to do so. She denied telling him that he could go 

home if he gave a statement.

Lawrence James, a special agent forensic scientist for the TBI, testified as an 

expert in forensic DNA analysis that he tested the victim’s swabs and underwear. He did 

not find semen or sperm on the swabs but found a semen stain on the underwear. He 

compared the DNA profile from the sperm in the semen to the DNA profile in the 

Appellant’s saliva sample, and the profiles matched. 

At the conclusion of Agent James’s testimony, the State rested its case. The 

Appellant did not present any proof, and the jury convicted him as charged of rape of a 

child. After a sentencing hearing, the trial court sentenced him to twenty years to be 

served at one hundred percent.

II. Analysis

A. Motion to Suppress

The Appellant claims that the trial court erred by failing to grant his motion to 

suppress his confession to Lieutenant Halfacre. The State argues that the trial court did 

not err. We agree with the State.

Before trial, the Appellant filed a motion to suppress his statement to Lieutenant 

Halfacre on the basis that he did not give the statement voluntarily. During a hearing on 
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the motion, Lieutenant Halfacre testified that prior to the Appellant’s interview, she read 

his rights to him from an advice of rights form. The Appellant appeared to understand 

his rights, signed the form, and agreed to give a statement. He did not appear to be under 

the influence of an intoxicant and did not exhibit any mental issues that concerned her. 

Had he done so, she would not have taken his statement. She said that she did not force

him or coerce him into giving his statement and that she did not promise him anything in 

exchange for his statement.

On cross-examination, Lieutenant Halfacre testified that officers arrested the 

Appellant at his home and brought him to the police department. She began interviewing 

him at 12:15 a.m. She said that she did not know when he arrived at the police 

department but that he had been in the interview room “no more than an hour” when he

gave his statement. Before the interview, Lieutenant Halfacre advised the Appellant that 

he was under arrest and read his Miranda rights to him. She did not tell him that he could 

go home if he gave a statement. Lieutenant Halfacre asked the Appellant to sign the 

advice of rights form, but he printed his name on the form instead. Lieutenant Halfacre 

stated, “I had to explain to him what a signature is and I needed a signature, not a 

[printing] of his name.” The Appellant was not handcuffed during his interview but was 

not free to leave. A transcriptionist also was in the interview room and transcribed the 

Appellant’s answers. After the Appellant gave his statement, Lieutenant Halfacre 

handcuffed him. 

The State introduced the Appellant’s advice of rights form and statement into 

evidence. The advice of rights form showed that the Appellant printed his name on the 

signature line for waiving his rights but signed his name under his printed name. 

The Appellant introduced two letters from Midtown Mental Health Center into 

evidence. In the first letter, dated May 25, 2006, a clinical psychologist stated that he 

evaluated the Appellant on May 24, 2006, and that the Appellant “understood the nature 

of the legal process, he understood the charge and the potential consequences of the 

charge, and he seemed capable of assisting counsel and participating in his defense.” The 

psychologist said he would render an opinion as to diminished capacity on a later date. 

In the second letter, dated August 21, 2006, the psychologist stated that the Appellant’s 

evaluation was complete and that the Appellant had learning disabilities but was of 

average intelligence. The psychologist concluded that the Appellant was depressed but 

that no evidence supported a diminished capacity defense.

At the conclusion of the hearing, defense counsel argued that the trial court should 

suppress the Appellant’s statement because he had a learning disability and “doesn’t even 

know how to sign [his] name.” The trial court stated that that defense counsel’s argument 

about the signature was a “mischaracterization” because the evidence showed that the 
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Appellant mistakenly printed his name on the form but then signed the form as 

Lieutenant Halfacre directed. The trial court noted that although the psychologist said the 

Appellant had a learning disability, the psychologist did not reveal “what his learning 

disability is” and found him to be of average intelligence. The trial court concluded that 

nothing indicated the Appellant’s learning disability made him incapable of waiving his 

rights. The court accredited Lieutenant Halfacre’s testimony that the Appellant 

understood what was going on when he gave his statement and denied the Appellant’s 

motion to suppress. 

In reviewing a trial court’s determinations regarding a suppression hearing, 

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and 

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier 

of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings 

of fact in a suppression hearing will be upheld unless the evidence preponderates 

otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of 

law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). 

Furthermore, the prevailing party is “entitled to the strongest legitimate view of the 

evidence adduced at the suppression hearing as well as all reasonable and legitimate 

inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. We note 

that “in evaluating the correctness of a trial court’s ruling on a pretrial motion to 

suppress, appellate courts may consider the proof adduced both at the suppression 

hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

Generally, the Fifth Amendment to the United States Constitution and article I,

section 9 of the Tennessee Constitution provide a privilege against self-incrimination to 

those accused of criminal activity, making an inquiry into the voluntariness of a 

confession necessary. See State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998). As our 

supreme court has explained,

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the 

United States Supreme Court held that “the prosecution may 

not use statements, whether exculpatory or inculpatory, 

stemming from custodial interrogation of the defendant unless 

it demonstrates the use of procedural safeguards effective to 

secure the privilege against self-incrimination.” The 

procedural safeguards must include warnings prior to any 

custodial questioning that an accused has the right to remain 

silent, that any statement he makes may be used against him, 

and that he has the right to an attorney.
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State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). Miranda warnings are necessary 

only in situations involving custodial interrogation or its functional equivalent. See, e.g., 

Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); State v. Dailey, 273 S.W.3d 94, 102-

03 (Tenn. 2009).

Our courts look to the totality of the circumstances surrounding the interrogation 

to determine if the criteria for a proper waiver are met. See State v. Van Tran, 864 

S.W.2d 465, 472-73 (Tenn. 1993). In doing so, we consider the following factors 

regarding the voluntariness of a confession: (1) the appellant’s age, education or 

intelligence level, and previous experience with the police; (2) the repeated and 

prolonged nature of the interrogation; (3) the length of detention prior to the confession; 

(4) the lack of any advice as to constitutional rights; (5) the unnecessary delay in bringing 

the appellant before the magistrate prior to the confession; (6) the appellant’s intoxication 

or ill health at the time the confession was given; (7) deprivation of food, sleep, or 

medical attention; (8) any physical abuse; and (9) threats of abuse. See State v. 

Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996). “‘[N]o single factor, such as IQ, is 

necessarily determinative in deciding whether a person was capable of knowingly and 

intelligently waiving, and [did] so waive, the constitutional rights embraced in the 

Miranda rubric.’” Blackstock, 19 S.W.3d at 208 (quoting Fairchild v. Lockhart, 744 F. 

Supp. 1429, 1453 (E.D. Ark. 1989)). Furthermore, this court has stated,

Coercive police activity is a necessary prerequisite in order to 

find a confession involuntary. The crucial question is 

whether the behavior of the state’s officials was such as to 

overbear [Appellant’s] will to resist and bring about 

confessions not freely self-determined. The question must be 

answered with complete disregard of whether or not the 

accused was truthful in the statement.

State v. Phillips, 30 S.W.3d 372, 377 (Tenn. Crim. App. 2000) (quotation marks and 

citations omitted).

Here, the Appellant was nineteen years old when he gave his statement to 

Lieutenant Halfacre. Although the Appellant had some type of learning disability, he

was taking GED classes at the time of his interview and was of average intelligence. 

Lieutenant Halfacre testified that he did not appear to be under the influence of an 

intoxicant and that he appeared to understand what was happening. The officer advised 

him of his rights, and he signed a waiver of rights form. The Appellant gave his 

statement soon after his arrest and arrival at the police department, and nothing indicates 

that he complained of being deprived of sleep or food. The Appellant was not physically 

abused, and Lieutenant Halfacre denied telling him that he could go home if he gave a 
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statement. In sum, the Huddleston factors do not weigh in favor of finding that the 

Appellant’s statement was involuntary.

B. Hearsay

The Appellant contends that the trial court erred by allowing Pam Preston to read

to the jury the victim’s and the victim’s mother’s out-of-court statements. The State 

argues that the trial court did not err. We conclude that the trial court erred by allowing 

Preston to read the victim’s mother’s statement but that the error was harmless.

Before trial, the Appellant filed a motion to prohibit the State from presenting 

“testimonial evidence of the victim.” In the motion, the Appellant indicated that the 

victim would not testify and argued that any statements made by her would be hearsay 

and violate his right of confrontation. On the first day of trial, the trial court asked the 

State if the victim was going to testify, and the State advised the court that it had tried to 

serve the victim with a subpoena but that it had been unable to locate her or her mother. 

Neither the victim nor her mother testified at trial.

During Pam Preston’s direct examination, she testified that she interviewed the 

victim’s mother and then the victim. Preston stated that the purpose for her interviewing 

a child’s parent was so that she could “go over the child’s medical history with them. 

And then I would go over a history of the event that brought them in. Just like you would 

do if you went to a regular office for a complaint. This is a medical complaint.” The 

State asked why she would interview a victim prior to the victim’s examination, and 

Preston answered:

So I’m taking a history to find out what they came to 

see me for so that I know what they may need. You know, 

what kind of counseling might they need. Where might they 

have injuries. You know, what kind of long-term problems 

might they encounter from this problem. Do they need to go 

be seen at the hospital immediately. You know, all those kind 

of things. What kind of diagnostic test might I need to do 

based on what I’m being told. And in the case of something 

like this I also need to know where I most likely [will] find 

evidence.

Defense counsel objected to Preston’s being allowed to read the victim’s and the 

victim’s mother’s statements from Preston’s written report to the jury because the 

statements were hearsay and “double hearsay,” respectively. In a jury-out hearing, 

counsel also asserted that because Preston’s information was used by the police during 
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their investigation, the statements to Preston were testimonial. The State argued that the 

statements were admissible pursuant to Tennessee Rule of Evidence 803(4), the hearsay 

exception for statements made for purposes of medical diagnosis and treatment. The trial 

court noted that “just because it is eventually used for investigative purposes doesn’t 

mean . . . that it has to be testimonial” and agreed with the State that the statements were 

admissible under Rule 803(4).

Hearsay is defined as “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible during a 

trial unless the statement falls under one of the exceptions to the rule against hearsay. 

See Tenn. R. Evid. 802. Rule 803(4), Tennessee Rules of Evidence, provides the

exception to the hearsay rule for “[statements] made for purposes of medical diagnosis 

and treatment describing medical history; past or present symptoms, pain, or sensations; 

or the inception or general character of the cause or external source thereof insofar as 

reasonably pertinent to diagnosis or treatment.” The Advisory Commission Comments 

for Rule 803(4) clarify that such statements “must be for both diagnosis and treatment.” 

Our supreme court has explained that “if physicians or other medical personnel 

rely upon the statement in diagnosing and treating the patient, then the statement should 

be sufficiently trustworthy to be admissible in a court of law.” State v. McLeod, 937 

S.W.2d 867, 870 (Tenn. 1996). For both adults and children, courts must consider the 

circumstances surrounding the statement in order to determine if the statement was made 

for purposes of medical diagnosis and treatment. This is particularly important for a 

child’s statement “because the child’s ability to articulate the reason for the statement 

may be affected by age or developmental maturity.” State v. Stinnett, 958 S.W.2d 329, 

332 (Tenn. 1997). 

A trial court’s factual findings and credibility determinations regarding hearsay are 

binding upon this court unless the evidence preponderates against them. Kendrick v. 

State, 454 S.W.3d 450, 479 (Tenn. 2015). However, the determination of whether the 

statement in question is hearsay and whether a hearsay exception applies are questions of 

law that we review de novo. Id. We agree that the victim’s and her mother’s statements 

to Preston were hearsay.

In Tennessee, criminal defendants are entitled to confront witnesses against them 

under the Sixth Amendment to the United States Constitution and article I, section 9 of 

the Tennessee Constitution. The exercise of the right to confront “is controlled by the 

trial judge,” and “the trial court’s decision will be upheld absent an abuse of discretion.” 

State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006) (internal quotation marks and citation 

omitted).
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“Currently, Crawford v. Washington, 541 U.S. 36 (2004), and its progeny are the 

controlling authority for determining whether the admission of hearsay violates a 

defendant’s rights under the federal confrontation clause, and this Court has applied 

Crawford to challenges under the Tennessee Constitution, as well.” State v. Parker, 350 

S.W.3d 883, 898 (Tenn. 2011). In Crawford, the United States Supreme Court drew a 

distinction between the admission of testimonial and nontestimonial hearsay, explaining 

that the admission of nontestimonial hearsay is exempt from Confrontation Clause 

scrutiny but that the “Sixth Amendment demands . . . unavailability and a prior 

opportunity for cross-examination” for the admission of testimonial hearsay. 541 U.S. at 

68. However, the Court did not comprehensively define “‘testimonial.’” Id.

Subsequently, in Davis v. Washington, 547 U.S. 813, 822 (2006), the Court 

determined that courts should examine the statement’s “primary purpose.” Thereafter, 

the Court provided the following non-exhaustive list of testimonial statements.

[1] ex parte in-court testimony or its functional equivalentthat is, material such as affidavits, custodial examinations, 

prior testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants would 

reasonably expect to be used prosecutorially; [2] extrajudicial 

statements . . . contained in formalized testimonial materials, 

such as affidavits, depositions, prior testimony, or 

confessions; [and 3] statements that were made under 

circumstances which would lead an objective witness 

reasonably to believe that the statement would be available 

for use at a later trial.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (internal quotation marks and 

citation omitted). Our own supreme court has agreed that “‘an out-of-court statement is 

testimonial . . . if its primary purpose is evidentiary and it is either a targeted accusation 

or sufficiently formal in character.’” State v. Dotson, 450 S.W.3d 1, 69 (Tenn. 2014) 

(quoting Young v. United States, 63 A.63 1033, 1043-44 (D.C. 2013)).

The Appellant first claims that the victim’s hearsay statement to Preston violated 

his right of confrontation because the victim did not testify. He contends that in finding 

the victim’s statement to be admissible under the hearsay exception in Rule 803(4), the 

trial court also found the victim’s statement to be nontestimonial. He asserts that the 

victim’s statement was testimonial because police officers referred and escorted her to the 

MSARC and because nurse Preston was “there as a quasi-governmental agent to collect 
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statements and physical evidence to assist in the prosecution of the offender.” We 

disagree with the Appellant.

In State v. Cannon, 254 S.W.3d 287 (Tenn. 2008), the defendant argued that the 

admission of the rape victim’s statements into evidence through emergency room (ER) 

medical personnel and a nurse violated his right to confrontation because the victim, 

while available, did not testify at trial. Our supreme court held that “statements in 

medical records given for the primary purpose of medical diagnosis and treatment are 

nontestimonial” and, therefore, governed by the rules of evidence. Cannon, 254 S.W.3d 

at 303. However, statements made primarily for the purpose of “‘establish[ing] or 

prov[ing] past events potentially relevant to later criminal prosecution’” are testimonial 

and, therefore, generally inadmissible. Id. at 305 (quoting Davis, 547 U.S. at 822). The 

court concluded that the victim’s statements to the nurse, made after the victim spoke 

with and sought medical diagnosis and treatment from ER personnel, were testimonial 

and inadmissible because the defendant had no prior opportunity to cross-examine the 

victim. Id. at 305-06. Therefore, the court did not need to address the issue of whether 

the nurse’s testimony was admissible under Tennessee Rule of Evidence 803(4).

Unlike the victim in Cannon, the victim in this case spoke only with Preston about 

the abuse. Preston used the information given by the victim to examine her, test her for 

sexually transmitted diseases, and treat her for chlamydia. The victim was escorted to the 

MSARC by a police officer late at night and was old enough to understand she was in a 

medical setting and needed to be truthful. See Stinnett, 958 S.W.2d at 332 (stating that 

six-year-old victim was old enough to understand that she was being examined by a 

physician to determine whether there was injury or trauma and she needed treatment). 

She used child-like terms to describe the abuse, and nothing indicates that she was 

motivated to lie to Preston. See id. Therefore, the victim’s statement to Preston was 

nontestimonial and properly admitted under Tennessee Rule of Evidence 803(4). 

We note that the Appellant contends for the first time and without any citation to 

authorities that the victim’s statement was particularly important because it identified the 

person who assaulted her. To the extent the Appellant is arguing that the trial court erred 

by allowing the victim’s statement to identify him as her perpetrator, we conclude that 

the issue has been waived. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.

App. 1996) (stating that “[o]rdinarily, issues raised for the first time on appeal are 

waived”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, 

citation to authorities, or appropriate references to the record will be treated as waived in 

this court.”).
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In a related argument, the Appellant claims that the victim’s mother’s statement to 

Preston was “double hearsay” and inadmissible under Rule 803(4).1 He contends that 

while the victim’s mother’s statement to Preston may have been for purposes of medical 

diagnosis and treatment of the victim, the victim’s statement to her mother was not. 

We agree with the Appellant that the victim’s mother’s statement contained two 

layers of hearsay: first, the victim’s statement to her mother and second, the victim’s 

mother’s statement to Preston. When a hearsay statement contains double hearsay, each 

part must qualify for an exception to the hearsay rule in order to be admissible. Tenn. R. 

Evid. 805. Here, the trial court found that the victim’s mother’s statement to Preston 

“was made in furtherance of diagnosis and treatment.” The Appellant does not contest 

that ruling. Instead, he contests the admissibility of the victim’s statement to her mother, 

which the trial court did not specifically address. The State argues that the victim’s 

statement to her mother also was admissible under the hearsay exception for purposes of 

medical diagnosis and treatment.

In the present case, we know nothing about the circumstances in which the victim 

or her grandmother made statements to the victim’s mother because none of them 

testified at trial. Therefore, the record does not establish that the victim made a statement 

to her mother for purposes of medical diagnosis and treatment. Moreover, given that the 

victim herself was able to make a trustworthy statement to Preston and that the victim’s 

mother’s statement did not add any additional information that would have been 

necessary for Preston to diagnose and treat the victim, we believe that the trial court erred 

by allowing Preston to read the victim’s mother’s statement to the jury. 

The admission of inadmissible hearsay is a non-constitutional error. Accordingly, 

the defendant has the burden of demonstrating that the error “more probably than not 

affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App. 

P. 36(b); State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008). “The greater the 

amount of evidence of guilt, the heavier the burden on the defendant to demonstrate that a 

non-constitutional error involving a substantial right more probably than not affected the 

outcome of the trial.” Rodriguez, 254 S.W.3d at 372 (citing State v. Toliver, 117 S.W.3d 

216, 231 (Tenn. 2003); State v. Francis, 669 S.W.2d 85, 91 (Tenn. 1984)). The evidence 

shows that the Appellant volunteered to Officer Martin “that he did it and he needed 

some help.” The Appellant later gave a detailed statement in which he said he had the 

victim fellate him, and his semen was on the victim’s underwear. In sum, he has failed to 

demonstrate that the trial court’s error affected the outcome of his trial.

 

1 The Appellant does not raise any issue regarding the victim’s mother’s statement violating his 

right of confrontation.
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C. Sufficiency of the Evidence

The Appellant contends that the evidence is insufficient to support the conviction 

because no physical evidence linked him to the offense and because the State did not 

have any eyewitnesses, particularly the victim, testify. The State argues that the evidence 

is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the 

standard for review by an appellate court 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); Tenn. R. App. P. 13(e). The State is entitled to the strongest 

legitimate view of the evidence and all reasonable or legitimate inferences which may be 

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions 

concerning the credibility of witnesses and the weight and value to be afforded the 

evidence, as well as all factual issues raised by the evidence, are resolved by the trier of 

fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or 

reevaluate the evidence, nor will this court substitute its inferences drawn from the 

circumstantial evidence for those inferences drawn by the jury. Id. Because a jury 

conviction removes the presumption of innocence with which a defendant is initially 

cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the 

burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle, 

639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a 

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140 

(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and 

‘[t]he inferences to be drawn from such evidence, and the extent to which the 

circumstances are consistent with guilt and inconsistent with innocence, are questions 

primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting 

Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the 

same whether the conviction is based upon direct or circumstantial evidence.’” State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 

275 (Tenn. 2009)).

Relevant to this case, rape of a child is the unlawful sexual penetration of a victim 

by a defendant if the victim is more than three years old but less than thirteen years old. 

Tenn. Code Ann. § 39-13-522(a). “Sexual penetration” includes fellatio. Tenn. Code. 

Ann. § 39-13-501(7).
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Taken in the light most favorable to the State, the proof shows that on the night of 

April 10, 2006, the police responded to a sexual assault call on Tagen Drive. Officer 

Martin spoke with the victim’s mother and the Appellant, and the Appellant volunteered 

to Officer Martin that he “did it” and “needed some help.” The police arrested the 

Appellant and transported him to the police department, and he gave a statement to 

Lieutenant Halfacre in which he told her that he had the seven-year-old victim suck his 

penis at their grandmother’s home on Tagen Drive. Meanwhile, the victim told nurse 

Preston that the Appellant put his penis in her mouth for a couple of minutes. Physical 

evidence in the form of the Appellant’s semen was on the victim’s underwear, linking

him to the crime. Accordingly, we conclude that the evidence is sufficient to support the 

conviction. 

III. Conclusion

Based upon the record and the parties’ briefs, we find no reversible error and 

affirm the judgment of the trial court.

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NORMA MCGEE OGLE, JUDGE