1 The appellant was or iginally charged by indictment of two counts of aggravated rape and one count of aggravated

sex ual battery. Upon his entry of a nolo contendere plea to aggravated 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE STATE OF TENNESSEE, v. FRED ERICK JAMES BRUSH. Direct Appeal from the Circuit Court for Stewart County No. 4-1087-CR-98, Robert E. Burch, Trial Judge

No. M1999-00622-CCA-R3-CD - Decided April 14, 2000
Following denial of a motion to suppress, the app

ellant Frederi

ck James B rush, entered a nolo contendere

plea in the Stewart

County Circuit Court to one count of aggravated sexual battery and re ceived a sentence of eight years incarce ration. Pursuant to Tenn. R. App. P. 3(b) and Ten n. R

. Crim. P. 37(b)(2)(i), the appellant explicitly re serve d the right to challenge the admissibility of evidence seized pursuant to a searc h of his res idence. Specific ally, he con

tends that the aff

idavit supporting issuance of the se arch warrant is

insufficient to

establish probable cause

because it fails to establish the reliability of the three year old victim informant. As we find the issue no t dispositive, we are without jurisdiction to entertain the appeal. Accordingly, the appeal is dismissed and the case re

manded to the tria

l court.
Ten n. R. App. P. 3(b) Appe al as of Right; Judgme nt of the Circuit Cour

t is vacated and remanded; appeal dismissed

. H AYES , J., delivered the opinion of the court, in which S MITH , J., and O GLE , J., joined. Ernest W. Williams, Franklin, Tennessee, for the appellant, Frederick James Brush. Paul G. Summers, Attorney General and Reporter, Micha

el Moore, Solicitor

General, Elizabe

th T. Ryan, AssistantAttorney Ge neral, Dan Mitch

um Alsobrooks,

District Attorney General, and Robert Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The appellant, Frederick James Brush, appeals from a judgment of conviction entered by the Circuit Court of Stewart County. On April 26, 1999, the appellant entered a plea of nolo contendere to one count of ag

gravated sexua

l battery, a

class B fel ony. 1 As provided by the plea agre

ement,sexual battery, the remaining counts of the indictment were dismissed und erthe terms of the plea

agreement.

2 This proof is th

e basis of the appellant’s conviction for aggravated sexual battery which occurred in February 1998. 

### -2- the appellant was sentenced to eight ye

ars incarcera

tion in the Tennessee Department of Correction. As a condition of his plea, the appellant, with the consent of the Stat

e, reserved the

right to appeal, as a certified question of law, the trial court’s denial of his motion to suppress the searc h of h is residence. The warrant wa s i ssue d based solely

upon the testimony

of a three y

ear old victim informant. On appeal, the appellant challenges the credibility of this or any three y ear old, arguing that a three year old’s reliability should not be me asured by the same standar

d as that of the “ty

pical” citizen informant. After review of the record, the appeal is dismissed and the case is remanded for further proceedings.

Background T he facts at the gui

lty plea hea

ring establishe

d that the appella

nt and the three y

ear old victim’s mother were close acquaintances. On occasion, the mother would leave her daughter in the care of the appellant. One of these occasions occurred in February 1998 and another in July 1998. The mother confirmed

that the child was in the ap pella nt’s c are du ring t hese p eriod s of ti me. In August 1998, the three year old began “telling of a sexual encounter with the [appellant ].” Specifically

, she related to la

w enforcement o

fficers: she liked pancakes. . . . And, for her to have pancakes at the defendant’s house, that she would have to play with his “pee-pee” . . . . And, if she did that, then sh

e would get pancakes. The c

hild also told us that when she would take a bath sometimes, that the defendant would come in and take photographs of her in the bathtub. Based upon the three y

ear old’s stateme

nts, a search warr

ant was obtained a

nd as a result of the search o f the appellant’s residence, officers recovered a video tape filmed in the appellant’s bedroom in which the appel

lant is seen masturbating and touching the three yea r old victim with his pen is. 2 Also s eized were other pornographic photographs of the victim and other unidentified children. Analysis The appellant, in this appeal, seeks review of the certified questions under the provisions of Tenn. R. Crim. P. 37(b)(2)(i). The judgment of conviction specifically reserves t he certified question. Accordingly, we proceed to determine whether the questions are properly before this court under subsection (i).3 Although the plea agreem ent and final order o

f the trial court a

re not included in

the record before this court, we note that the t ranscript of the guilty plea hearing reflects the trial court’s acknowledgment

that the guilty pleawas conditionally entered reserving a certified question of law regarding the validity of the search warrant based upon the reliability of the three year o

ld informant. Moreover, the fi

nal judgment of con

viction provides: The Stateof Tennessee and the defendant through counsel wishes to reserve to the Courtof Criminal Appeals the following certified question of Laww hich both declare to be dispositive of this case: That the affidavit in the search warrant failed to establish

p robable cause in that reliability of the informant had not been established and that the affidavit in the search warrant did not

relate an adequ

ate time frame in which the alleged criminal activity occurred.

4 The appellant contends that this court should address, a s an issue of first impression, the question of whether a

child inf ormant be evalua

ted for reliabili

ty as a criminal inf

ormant or as a citizen informant. Although we find the presented questions non-dispositive we would note

that this court has on previous occasion addressed the issue of a child inf orman t, concluding that a child informant be evaluated as

a citizen informa

nt. See State v. Tina M. Yeomans and David McCluster Wade, Jr. , No. 02C01-9810-CC-00312 (Tenn. Crim. App. at Jackson, Oct. 25, 1999) ( fo r publication ). In so concluding, J udge Riley, writing

on behalf of this court, held that, although “the age of the inform

ant is certainly

relevant, the mere fact that the citizen was a juvenile . . . does not preclude a finding of reliability.” State v. Tina M. Yeomans and David McCluster Wade, Jr. , No. 02C01-9810-CC-00312 (citin g Easton v. City of Boulder , 776 F.2d 1441, 1450 (10 th Cir. 1985) (permissible

to rely upon statement s of five year old and three yea

r old children in iss

uing arrest warra nt)). Additionally, the court acknowledged that, even where evidence is not “legally co mpeten t in a criminal trial,” that same evidence may be used to establish probable cause. State v. Tina M. Yeomans and David McCluster Wade, Jr. , No. 02C01-9 810-C C-00312 (citing United States v. Ventresca , 380 U.S. 102, 85 S.Ct. 741 (1965)). 

### -3- An appeal lies from a guilty plea, pursuant to

Rule 37(b)(2)(i), if the final order of judgment contains a statement of the dispositive certif

ied question of law

reserved by

the defendant, w

herein the que sti on i s so cle arl y sta ted as t o id ent ify t he scope and the limits of the legal issues reserved. See State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988); see also Statev. Pendergrass , 937 S.W.2d 834 (Tenn. 1996). The

order must

also state that the certified question was expressly reserved as part of the plea agreement, that the State and the trial judge consented to the reservation, and that the Stateand the tri al judge are of the opinion that the question is dispositive of the case. 3 Preston , 759 S.W.2d at 650. The record satisfies the requirements of Preston and Patterson

. “An issue is dispositive when this court must either aff irm the judgment or reverse and dismiss.” State v. Wilkes , 684 S.W.2d 663 (Tenn. Crim. App. 1984). 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 p roof to convict. We

are unable to co

nclude that the ce

rtified questions a

re dispositive of th

e case. 4 Although the incriminating evidence resulting from the s earch o f the appellant’ s house provides m aterial proof of his guilt, the fac

t remains that the t

estimony of th

e victim was sti

l l

### -4-

available to establish the appellant’s guilt. Considering both the testimony of the victim and her mother, a rational trier of fact could have found the appellant guilty of agg ravated sexual battery without the State introducing the evidence seized from the search of the appellant’s residence. This court is not at liberty to assume jurisdiction of a matter conferred by agreement of

the litigants and the trial court where none is conferred by law. See Wilkes , 684 S.W.2d at 667. As we find the certified questions not dispositive of the case, this court has no jurisdiction to ente rtain this appeal. See Tenn. R. Crim. P. 37(b)(2). Furthermore, because the guilty plea was the product of a negotiated plea

agreement, the

plea agreeme

nt is vacated and the case is remanded to the trial court for trial or other

appropriate pro

ceedings. Accordingly, the appeal is dismissed.