State of Tennessee v. Jeffrey Cochran

                                                                                           12/27/2022
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 20, 2022

               STATE OF TENNESSEE v. JEFFREY COCHRAN

                Appeal from the Criminal Court for McMinn County
                  No. 20-CR-144 Andrew Mark Freiberg, Judge


                             No. E2022-00600-CCA-R3-CD


The Defendant, Jeffrey Cochran, was convicted by a McMinn County Criminal Court jury
of aggravated kidnapping, for which he is serving a nine-year sentence. See T.C.A. § 39-
13-304(a)(5) (2018). On appeal, he contends that (1) the trial court erred in denying, in
part, his motion to suppress, (2) the trial court erred in denying his motion for a
continuance, (3) the evidence is insufficient to support his conviction, and (4) his sentence
is excessive. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TOM GREENHOLTZ, JJ., joined.

Gregory P. Isaacs (on appeal) and Robert L. Jolley (at trial), Knoxville, Tennessee; and
Randy George Rogers (at trial), Athens, Tennessee, for the Appellant, Jeffrey Cochran.

Jonathan Skrmetti, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Stephen D. Crump, District Attorney General; Matthew Dunn and
Ashley Ervin, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

        The Defendant’s conviction relates to a domestic incident involving his wife. The
Defendant and his wife were separated and were divorcing. At the time, the Defendant’s
wife lived in a McMinn County, Tennessee home, and the Defendant lived in a Florida
home, both of which were owned by the couple. The incident occurred in the McMinn
County home. The Defendant was indicted for attempted first degree murder and
especially aggravated kidnapping, and the State elected to dismiss the attempted first
degree murder charge on the morning of the trial.
       At the trial, McMinn County Sheriff’s Corporal Nathan Stiles testified that in the
early morning hours of October 19, 2019, he responded to a report of a suspicious van that
the property owner did not recognize. Corporal Stiles said that when he reached the scene,
he saw a van with a small dog inside. He checked the van’s registration and eventually
determined that the van had been sold to the Defendant, although it was not titled to him.
Corporal Stiles advised the property owner that he could have the van towed from the
property.

        Corporal Stiles testified that he went to an address “two to three driveways down”
from the property where the van was parked because his investigation had determined the
address to be the one used when the Defendant bought the van. Corporal Stiles said that
when he arrived, a woman came outside and identified herself as Karen Cochran, the
victim, whom he described as visibly upset. He said that when he asked if the Defendant
was home, she began to cry. Corporal Stiles said he noticed dried blood on the victim’s
forehead and left ankle. He said that when he asked her what had happened, she told him
that she had been assaulted and that guns were inside the house. Corporal Stiles said that
he asked for backup officers to come to the scene and that he took the victim to his patrol
car. He said that as he spoke to the victim, he noticed a face appear briefly in a window of
the house and later saw the Defendant come out the front door. Corporal Stiles said that
after other officers arrived, they approached the porch and took the Defendant into custody.

       Corporal Stiles testified that after the Defendant was in the backseat of a patrol
truck, he advised the Defendant of his Miranda rights and questioned the Defendant, who
provided information about where guns were located in the home. Corporal Stiles said he
went inside the home to collect and photograph evidence. He said that glass in the house’s
backdoor had “fallen out” as if it had been “knocked in.” He said a mark on the wall in a
bedroom appeared to be from a gunshot. He identified photographs of the home, which
were received as exhibits. They included photographs of a handgun on a small table behind
a loveseat in the living room, a second firearm inside an antique box on the small table, a
chambered round of ammunition in one of the firearms, and the apparent bullet hole in a
bedroom wall. Corporal Stiles identified the firearms as Glock weapons of .40 and .45
caliber. He identified photograph exhibits depicting blood on the following items: the
basement stairs, a rug, a “shop vac,” and a wall near the bottom of the basement stairs. He
also identified photograph exhibits depicting an unfired round of .22-caliber ammunition
on the basement floor, a container of zip ties on top of the washer and dryer, the words
“My Blood” spray painted on the wall behind the washer and dryer, and the words “My
Blood On” and other indiscernible writing spray painted on a wall.

        Corporal Stiles identified photograph exhibits showing the broken window in the
home’s backdoor, a shoe mark on the door, and a tire rim on the back porch. He identified
photograph exhibits depicting the victim with dried blood on her nose, her forehead, her
hair, her clothing, and her left ankle. He also identified photograph exhibits showing a belt

                                            -2-
around her waist. He said that in his interactions with the victim, the belt did not restrict
the victim’s movements or her use of her hands. Video recordings from Corporal Stiles’s
body camera, which showed portions of his interactions with the victim and his
conversation with the Defendant after the Defendant was in custody in the back of a patrol
truck, were played for the jury.

        Corporal Stiles acknowledged that he had not turned on his body camera
immediately when the victim came out of the home. Thus, the video recording of the
victim began during an ongoing interaction with Corporal Stiles. The recording showed
the following: When Corporal Stiles asked what happened to the victim’s head, she stated
that “he” knocked her down the stairs. Other evidence established that she was speaking
about the Defendant. Some of the victim’s statements are not discernible due to her crying,
but Corporal Stiles called for backup, stating that the Defendant had a gun and had made
threats. She stated that the Defendant sent her outside to talk to Corporal Stiles and told
her, “Don’t let them take me,” when he saw the patrol car arrive. She stated the Defendant
had never been arrested. While walking with Corporal Stiles to his patrol car, she stated
that the Defendant had two pistols and that he claimed to have more guns. She said the
Defendant had “knocked down” glass in the back of the house. While seated in the front
seat of the patrol car, the victim stated that her back hurt. She said there was blood in the
basement from her fall on the stairs. In speaking on his police radio, Corporal Stiles noted
that the victim had a laceration on her head. She said the Defendant pointed a gun at her
and shot a bedroom wall. When asked why the Defendant fired the gun, she said he was
trying to kill her. She agreed that the Defendant came into the home about 4:00 a.m. and
said he entered through “glass” on the porch. She said she woke when she heard pounding,
which she thought might have been from a storm. She said she got out of bed and saw the
Defendant, who held a flashlight, “had a gun strapped across his side,” and had two pistols.
She said one of the pistols was “his Glock.” She said she asked the Defendant, “What are
you doing?” She stated that the last time the Defendant had been at the home, she had told
him, “Get out.” She said she ran to the bedroom to get her cell phone to call 9-1-1. She
said that the Defendant had left a gun for her but that she would not have been able to use
it. She said, “He wrestled me down.” She said she did not want the Defendant to hurt
himself. After other officers arrived, Corporal Stiles moved his patrol car and instructed
the victim to stay inside the car. Corporal Stiles went to the car’s trunk and took out a rifle.
The victim told Corporal Stiles that the Defendant had stated he would shoot himself before
he would let anyone take his guns and that the Defendant had written in spray paint on her
basement walls. Corporal Stiles shouted, “Hands, both hands,” and stated in a radio
transmission that the Defendant had come onto the porch and had his hands raised.
Corporal Stiles asked the Defendant if he was “Mr. Cochran” and told him to stay on the
porch until other officers arrived. Armed with the rifle, Corporal Stiles walked closer to
the home, but he remained at a distance on the opposite side of the driveway from the home
until other officers arrived. Officer Stiles and other officers ran toward the home. The
recording reflected a break or a redaction in the recording, after which Officer Stiles put

                                              -3-
his rifle into his trunk and advised the victim that the Defendant was in custody and was
unharmed. Officer Stiles stated that he was going to ask someone to examine the victim
medically to determine if she needed treatment. He asked the victim if the officers could
enter and search the house, and she granted permission.

         Corporal Stiles testified that his recorded conversation with the Defendant began at
10:50 a.m. In the recording of the conversation, Corporal Stiles advised the Defendant of
his Miranda rights, and the Defendant agreed to waive his rights. Corporal Stiles asked
the Defendant about Corporal Stiles’s having found the Defendant’s van earlier, and the
Defendant explained that he had come from Florida, where he had been living, and that he
and the victim had maintained a good relationship until his last visit from Florida, when
they “had words.” He said they both had divorce attorneys. The Defendant said he sneaked
into the house through the back door, which he kicked off its tracks. He said he asked the
victim to go to the basement with him to talk. He said he asked the victim not to call the
police because he had a “spotless record.” He said, “I did put my hand on her because she
. . . because I had a gun. She knows I keep a gun on me. Every time I’m up here, I’ve got
a gun.” He said he had .40- and .45-caliber Glock guns. He said that the victim “grabbed
for” his gun and tried to take it from him, that they “got to scuffling,” and that “she fell
down the stairs.” He said he went into the basement to talk to the victim. He said the
victim tried to get his gun again and that he “had to restrain her” by grabbing her arms and
pushing her, which he explained involved walking her into the basement. He said that he
told the victim not to grab his gun again and that she “kn[e]w better than that.” When
Corporal Stiles asked how the Defendant kept the victim in the basement, the Defendant
said he was holding two guns. He said he told the victim that he was going to “harm”
himself. He said he had shot himself after his daughter was killed. He said he was not
trying to harm anyone else. He said that he did not threaten to kill himself when he was
inside the home with the victim but that he had said he would kill himself rather than go to
jail. He said that he had not told the victim that he was coming to town and that he no
longer had a key to the home because she had changed the locks. The Defendant stated
that he and the victim had been married for thirty-six years and that he had never hurt her.
He said that the present incident happened because she tried to get his gun. When asked if
he threatened to shoot the victim and if he fired a gun inside the house, the Defendant
agreed he had done both. He explained that the victim had a gun she had given him and
that he was afraid she would shoot him. He said he fired the gun into the bedroom wall to
the far right of the bed. He said that one gun was on a small table in the living room and
that the other gun was in an antique chest. When Corporal Stiles asked a second time about
why the Defendant had parked down the street, the Defendant said he was afraid the victim
would “call the law.” The Defendant said he had hoped he and the victim could work
things out, despite the pending divorce litigation.

       Corporal Stiles identified as exhibits two items found during the search of the home:
a bag of ammunition and a box which had contained a loaded .40-caliber Glock gun. He

                                            -4-
said the .45-caliber gun had also been loaded. He identified a .30-06-caliber rifle, which
he said had been loaded and had been recovered from the master bedroom. He said the
bag of ammunition had been found with the rifle and contained ammunition which was the
appropriate type for the rifle. He said the victim recently “provided” him with a .22-caliber
pistol. He said the Defendant never mentioned a .22-caliber pistol. He agreed that he and
two other officers who searched the house did not find the .22-caliber pistol.

       Corporal Stiles acknowledged that the victim had said the Defendant had not been
violent toward her previously. He did not recall if the basement had an outside door other
than the garage door or what types of tools had been in the garage. He agreed that he had
been aware of the Defendant’s prior suicide attempt. Corporal Stiles thought the Defendant
or the victim had mentioned that the Defendant had done most of the construction to build
the McMinn County house. Corporal Stiles said he had not recovered the projectile that
had been fired into the bedroom wall because doing so would have caused further damage
to the wall. He said he had not been told that a bulldog had been shot on “those steps”
about three months earlier. He said the inventory sheet for the van’s contents listed “[o]ne
bag of meds.” He said he did not look at the bottles inside the bag to determine if they
contained medications prescribed to the Defendant. Corporal Stiles said he looked for but
did not find a Glock cartridge casing in the house or on the Defendant’s person. He said
he did not perform gunshot residue testing on the Defendant or the victim. He said he was
unaware of any court order prohibiting the Defendant from being in the McMinn County
house at the time of the incident. Corporal Stiles agreed that the Defendant stated he had
driven all night from Florida to Tennessee and that the Defendant said he did not want a
divorce.

       Corporal Stiles agreed that he had seen a cell phone next to a gun in the living room
but said he did not know who owned the cell phone. He agreed that the Defendant
cooperated when the Defendant came out of the house and when the officers took the
Defendant into custody.

       The victim testified that she and the Defendant were still married. She said they
had been married for thirty-eight years and that they separated in December 2018. She
said that they moved into the McMinn County home in February 2012 and that they
previously owned a home in Florida. She said that when they separated in 2018, they
agreed that she would live in the McMinn County home and that he would live in the
Florida home.

       The victim testified that on October 16, 2019, she was awakened by a loud noise.
She said she looked at a digital clock and noticed that the time was 4:10 or 4:12 a.m. She
said she got out of bed to determine what had caused the noise and that as she came out of
the master bedroom, she saw the Defendant with a rifle, two pistols, and a flashlight. She
said, “It looked like the movie Rambo” because he had the pistols in his hand and the

                                            -5-
flashlight held in his teeth, which shined in her eyes. She said that she asked what the
Defendant was doing and that he stated he was going to kill her. She said that she ran to
get her cell phone from her nightstand and that “a gunshot went off” to her right in the
master bedroom. She said that she held her cell phone close to her torso and fell onto the
bed and that the Defendant overpowered her, took her cell phone, and placed it in his
pocket. She said the Defendant choked her by putting his arm around her neck and that
she struggled but could not get free until he released his hold. She said he threw her on the
bed and hit her head “many times” for “maybe a couple of minutes” with his right fist. She
said neither of them spoke during the assault. She said that after the assault ended, she
stood, and the Defendant pulled her by her hair through the bedroom, kitchen, and living
room to the basement stairs. She said that the Defendant released her hair, that she told
him she needed to use the restroom, and that he told her to “get down those stairs now.”
She said she did not want to go downstairs. She saw the Defendant holding a pistol and
tried to get away from him. She said he pushed her shoulder, which caused her to fall to
the bottom of the stairs. She said she heard a gunshot and that a few days later, she saw a
cartridge casing fall from a rug that had been standing in the basement corner and noticed
a bullet hole in the rug. She said that after she fell down the steps, the Defendant came
down the stairs holding a pistol and demanded that she get up. She said she stood and told
him that she was bleeding. She said he said he did not care and demanded, “Get down, get
in this basement now.” She said she went at gunpoint into the basement. Referring to
photographs of the stairs and the basement, she identified her blood on the stairs, wall, rug,
and shop vac. She acknowledged that the Defendant shot a bulldog about one and one-half
years before the incident but said the dog’s blood had been cleaned up and that the blood
in the photographs was hers.

        The victim testified that she was scared and that the basement was “pretty full of
things.” She said the Defendant tried to get her to go into a part of the basement that was
“studded up with two by fours” but that she said she could not get “through” due to
previously stacked items which had fallen. She said he directed her to the area where the
washer and dryer were and told her to sit on a child’s picnic table. She said the Defendant
sat against the washer and dryer with the gun on his leg. She said that he accused her of
trying to “take everything in the divorce” and that she told him she only wanted her half.
She said the Defendant called her the “glue” that held him together after his father’s death
and said they “could’ve had so much together” if they did not divorce. She said that after
a long silence, she asked the Defendant what he was thinking and that he stated he was
going to kill her and was trying to decide where he would kill himself. She said she asked
him not to kill himself and reminded him that after a 2011 suicide attempt, he promised
God that he would never try to kill himself again. She said that she would have “loved” to
try to get out of the basement but that the Defendant held a gun on her continuously. She
said that she asked several times if they could go upstairs but that the Defendant refused.
She said that while they were in the basement, the Defendant took a can of spray paint from
a shelf and wrote “My blood” on a wall and “My blood on U and Amy Blackwell” on

                                             -6-
another wall. The victim identified Ms. Blackwell as her divorce attorney. The victim said
that they were in the basement for several hours and that long periods of silence passed
between their conversations. The victim said that the Defendant retrieved a container of
zip ties from a shelf and stated that he was going to bind her hands but that she begged him
not to do this. She said he stopped getting the zip ties from the container and turned to an
“orange drop cord.” She said she was afraid he would choke her with the cord and begged
him not to use the cord. She said he placed a belt around her waist. She said that she asked,
“Why are you doing this to me?” and that he responded, “You are my hostage.” She said
that the Defendant thought he heard footsteps and that they went upstairs. She said the
Defendant stated that if the police were at the home, he would shoot her and then kill
himself before the police could shoot him.

       The victim testified that the Defendant held her by the back of the belt he had placed
on her and had her go into rooms to ensure that the police were not present. She said the
Defendant held a pistol and the belt as she walked through the home. She said she told the
Defendant that she had to use the restroom and that he permitted her to go to the restroom
but would not allow her to close the door. She said the Defendant held the gun at his side
while she used the restroom. She said the couple owned four dogs and that the Defendant
let one dog go outside after she left the restroom. She said while she and the Defendant
had been in the basement, three other dogs had gone outside through the broken door
through which the Defendant had entered. She said that the dogs would not come inside
when the Defendant called them and that he had her stand behind a door and call them.
She said she did not leave the home to walk the dogs.

        The victim testified that she and the Defendant sat in the living room. She said the
Defendant told her twice to wash her face, which was stained with blood. She said he told
her a third time and lifted the pistol toward her. She said she went into the master bathroom
and washed the blood from her face. She said she saw a clock, which showed the time as
10:02 a.m. She said that when she returned to the living room, the Defendant told her that
the police were outside and told her to go outside and “act like nothing is going on.” She
said he stated, “You better not tell them nothing.”

        The victim testified that she went outside and that she began crying when Corporal
Stiles approached her. She said she told Corporal Stiles that her husband was in the home,
that he fired a shot inside the home, that he kept her there and took her into the basement,
and that he threatened to kill her. She identified the rifle which had been previously
identified as having been recovered from the master bedroom as the rifle the Defendant
had “around his chest and back.” She identified the Glock pistols previously identified as
exhibits as the other weapons the Defendant had possessed.




                                            -7-
        The victim testified that sometime after the incident, she found a cocked .22-caliber
pistol in a toolbox in a guest bathroom of the home. She thought the gun had belonged to
the Defendant’s father. She said she later provided the gun to Corporal Stiles.

        The victim testified that the Defendant did some of the construction work on the
McMinn County house they owned. She said she filed for divorce in July 2019 and thought
the Defendant had been to the McMinn County home three times after she filed for divorce,
the last being the present incident. She said that on previous occasions when the Defendant
came to the home, he told her ahead of time that he was coming and that he arrived in the
afternoon. She said that he slept on a sofa or in a recliner in the home when he came to
Tennessee and that he sometimes removed belongings from the home late at night. She
said that when the Defendant was at the home in August 2019, they argued for about two
hours over “papers” he wanted her to get from her attorney the next morning. She denied
that she had attacked him, clawed his face, or threatened to call the police. She said that
twice, she told the Defendant to leave the home and that he left eventually. She said that
before he left, he told her that she “would pay” and that he would take “almost everything.”
When asked if she told him not to return to the home, she said she told him to leave. She
said that she did not change the locks and that the Defendant had keys to the home. She
said that she had given the Defendant her key to the Florida house when they separated but
that the Defendant had refused to surrender his keys to the Tennessee house. She said she
did not have a court order regarding who had rights of access to the houses but that she and
the Defendant signed a document in August 2018 stating that she would live in the
Tennessee house and that he would live in the Florida house. She said the Defendant had
wanted them to sign this document, which she acknowledged predated the divorce
proceedings.

       The victim testified that the Defendant’s daughter had been “part of a homicide
investigation.” The victim said the daughter’s mother had died in a car wreck and that the
victim had raised the child as her own. The victim agreed that the daughter’s death in 2009
had been difficult for the Defendant and that he tried to commit suicide in 2011. She
acknowledged that the Defendant had been diagnosed with anxiety and depression but
stated that she was not aware of a bipolar disorder diagnosis. She agreed the Defendant
“took a lot of medication.”

       When asked if she had told Corporal Stiles that she had gone into the bedroom to
get a gun, the victim testified that she had told him that the Defendant had given her a gun
in December 2018. She said the gun was in a dresser and not near her nightstand, where
her cell phone was stored. She said she told Corporal Stiles this because she wanted him
to know about another gun inside the house.

     The victim testified that the upstairs of the house had two outside doors and that the
basement had a garage door and a second outside door. She said that the basement door

                                            -8-
was inaccessible from inside the basement because items were stored in front of it and that
the garage door opener was broken. She said the master bathroom had two windows that
were about 30″ wide and 2.5 to 3′ tall. She said that the windows did not extend to the
floor and that they opened to the deck. She agreed that the Defendant carried guns on his
person throughout their marriage.

       The victim testified that she did not go to the emergency room after the incident and
that she saw a doctor about one week later for bruising on her back and tailbone, which she
thought might indicate a broken bone.

       The Defendant elected not to present evidence.

        The jury acquitted the Defendant of especially aggravated kidnapping but convicted
him of the lesser-included offense of aggravated kidnapping. At a sentencing hearing, the
trial court imposed a nine-year sentence. This appeal followed.

                                             I

                                   Motion to Suppress

        The Defendant contends that the trial court erred in denying his motion to suppress
his statement to Corporal Stiles at the scene. The trial court suppressed the portion of the
Defendant’s statement which preceded the Miranda warnings but denied the motion as to
the portion which followed. The State contends that the court did not err in denying the
motion to suppress. We agree with the State.

        The Fifth Amendment of the United States Constitution, which applies to the states
via the Fourteenth Amendment, provides 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 Constitution states that “in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. Art. I,
§ 9. “The test of voluntariness for confessions under Article I, § 9 of the Tennessee
Constitution is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” State v. Smith, 

 (Tenn.
1996); see State v. Northern, 

 (Tenn. 2008). To be considered
voluntary, a statement must not be the product of “any sort of threats or violence, nor
obtained by any direct or implied promises, however slight, nor by the exertion of any
improper influence.” State v. Smith, 

 (Tenn. Crim. App. 2000) (quoting
Bram v. United States, 

 (1897)). A defendant’s subjective perception
is insufficient to establish the existence of an involuntary confession. 

 The essential
inquiry is “whether the behavior of the State’s law enforcement officials was such as to
overbear [the defendant’s] will to resist and bring about confessions not freely self-
                                            -9-
determined[.]” State v. Kelly, 

 (Tenn. 1980) (quoting Rogers v.
Richmond, 

 (1961)). A confession is involuntary if it is the product of
coercive state action. See, e.g., Colorado v. Connelly, 

 (1986). “The
State has the burden of proving the voluntariness of a confession by a preponderance of
the evidence.” State v. Willis, 

 (Tenn. 2016).

        In determining whether a confession is voluntary, a trial court examines the totality
of the circumstances, which encompasses “both the characteristics of the accused and the
details of the interrogation.” State v. Climer, 

 (Tenn. 2013) (quoting
Dickerson v. United States, 

 (2000)). Relevant circumstances include
the following:

       [T]he age of the accused; his lack of education or his intelligence level; the
       extent of his previous experience with the police; the repeated and prolonged
       nature of the questioning; the length of the detention of the accused before
       he gave the statement in question; the lack of any advice to the accused of
       his constitutional rights; whether there was an unnecessary delay in bringing
       him before a magistrate before he gave the confession; whether the accused
       was injured, intoxicated[,] or drugged, or in ill health when he gave the
       statement; whether the accused was deprived of food, sleep, or medical
       attention; whether the accused was physically abused; and whether the
       suspect was threatened with abuse.

State v. Huddleston, 

 (Tenn. 1996) (quoting People v. Cipriano, 

 (Mich. 1988)).

       A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 

 (Tenn.
1996); State v. Jones, 

 (Tenn. Crim. App. 1990). Questions about the
“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.” Odom,

. The prevailing party is entitled to the “strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.” State v. Keith, 

 (Tenn. 1998); see State v. Hicks, 

 (Tenn. 2001). A trial court’s application of the law to its factual findings is a
question of law and is reviewed de novo on appeal. State v. Yeargan, 

(Tenn. 1997). In reviewing a trial court’s ruling on a motion to suppress, this court may
consider the trial evidence as well as the evidence presented at the suppression hearing.
See State v. Henning, 

 (Tenn. 1998); see also State v. Williamson,

 (Tenn. 2012).



                                             -10-
        At the suppression hearing, Corporal Stiles testified consistently with his trial
testimony regarding his initial response to the victim’s home and his encounter with the
victim outside the home. Corporal Stiles said that after backup officers arrived, they
detained the Defendant, who had come outside onto the front porch, and placed him in the
backseat of a patrol truck. Corporal Stiles said he instructed the other officers not to speak
to the Defendant while Corporal Stiles placed his rifle into the trunk of his patrol car and
that the other officers did not talk to the Defendant.

        Corporal Stiles testified that he advised the Defendant of his Miranda rights and
that this was recorded using his body camera. The recording was received as an exhibit
and contained two files. One file depicted the Defendant’s arrest on the porch and his being
placed in a police truck, and the second depicted Corporal Stiles reading the Defendant his
Miranda rights and the Defendant’s statement to Corporal Stiles at the scene. The first file
showed three uniformed, armed officers running toward the home’s porch. An officer
handcuffed the Defendant, who was lying on his stomach on the porch. Corporal Stiles
asked the Defendant if anyone else was inside the home and if the Defendant had guns or
knives on his person. Two officers helped the Defendant stand after he was handcuffed.
Corporal Stiles told the Defendant that they would talk after the officers “got [the
Defendant] situated.” When Corporal Stiles asked if the Defendant drank any alcohol that
day or the previous night, the Defendant responded that he had not. When Corporal Stiles
asked the Defendant if he had taken any medication, the Defendant responded that he took
“a lot of medication” for depression and listed the medications. The Defendant made a
statement about loving the victim. Two additional officers arrived but stayed at the end of
the driveway away from the porch where the Defendant and the other officers were.
Corporal Stiles told the Defendant that he should sit in the back of the police truck and that
Corporal Stiles would talk to him shortly. An officer walked with the Defendant to the
truck. Corporal Stiles told the other officers that he was going to read the Defendant his
rights before questioning him, and Corporal Stiles walked to his patrol car, which was
parked across the street, to put his rifle in the trunk and speak to the victim. The second
file reviewed at the suppression hearing was the one which was later received as evidence
at the trial.

        Corporal Stiles testified that “a couple of hours” elapsed between the time he
received the initial call about the parked van at a neighbor’s property and his going to the
victim’s home. He said that during this time, the authorities were investigating the identity
of the van’s owner. He said he went to the victim’s home about 10:00 a.m. He said the
Defendant came outside with his hands up about one minute before the backup officers
arrived. Corporal Stiles thought Deputy Bausch walked the Defendant to the truck after
the three officers took the Defendant into custody. Corporal Stiles said that if Deputy
Bausch and the Defendant had any conversation, Corporal Stiles did not hear it. Corporal
Stiles said, however, that the handcuffed Defendant “was talking until we put him in the
truck.” Corporal Stiles agreed that the Defendant had not been given Miranda warnings at

                                            -11-
this point and stated that the Defendant “began talking on his own” without being asked
any questions.

        Corporal Stiles testified that after the Defendant was seated in the truck, Corporal
Stiles read the Miranda rights from a card. Corporal Stiles said the Defendant mentioned
that he and the victim were divorcing and that he had an attorney. Corporal Stiles described
the Defendant as “upset” and said the Defendant mentioned that he took medications for
depression. Corporal Stiles said the Defendant mentioned that his daughter had passed
away.

        The trial court found that Corporal Stiles read advised the Defendant of the full
Miranda admonitions by reading them from a card. The court found, based upon the video
recording, that the Defendant “appeared very calm, and really, all things considered, absent
emotion.” The court noted that the Defendant had been emotional in the recording of the
arrest and that he was “calm and stoic” in the second recording. The court found that the
Defendant mentioned his prescribed Xanax, that he “provided informed and appropriate
responses,” and that he “possessed a clear working knowledge of both short and long term
memory.” The court found that the second recording demonstrated that the Defendant
“expressed not just voluntariness but also an inherent logic and . . . reasonableness.” The
court noted that the Defendant appeared to possess average intelligence but “minimal
[prior] experience with the criminal justice system.” The court found that, nevertheless,
the Defendant was “comfortable and confident enough to express his own story and
memory of the events at issue in this case.” The court found that Corporal Stiles had not
engaged in suggestive or coercive tactics in the interview and that the Defendant “want[ed]
to talk,” to minimize his involvement, and to explain that although he fired a gun, he did
not fire it at the victim and just wanted to talk to her about the divorce. The court found
that the Defendant did not appear impaired from the medication he reported he had taken.
The court found that the Defendant voluntarily waived his Miranda rights and gave the
statement. The court ruled that the first recording, which was before the Miranda warnings
were given, was suppressed but that the second recording was admissible.

        The Defendant argues on appeal that he possessed minimal education, having
dropped out of school after the eighth grade, and that he did not read and write well. He
also argues that the statement was given shortly after a “very physical arrest,” in which the
Defendant was in “an emotional state.” He notes his lack of prior experience with law
enforcement, his “extensive history of mental illness and suicide attempts,” and his use of
medication. The Defendant also argues that the manner, detail, and language of Corporal
Stiles’s Miranda admonition was insufficient. Thus, the Defendant concludes that he did
not knowingly, intelligently, and voluntarily waive his rights and that the trial court erred
in denying the motion to suppress the evidence of his statement.



                                            -12-
       We have reviewed the evidence offered at the suppression hearing, as well as the
relevant trial evidence. The video recordings show that the Defendant was arrested at
gunpoint while prone on the porch of the victim’s home, at which time he was upset and
emotional. After he was taken to a police truck and several minutes had elapsed, Corporal
Stiles advised him of his Miranda rights, and the Defendant, who was calm and not
emotional, agreed to waive his rights. The Defendant gave a statement in which he clearly
and logically explained his version of the relevant events.

       Upon review of the record, we conclude that the evidence does not preponderate
against the trial court’s findings. See Odom, 

; Jones, 

.
The trial court did not err in denying the motion to suppress.

                                              II

                           Denial of Motion for a Continuance

        The Defendant contends that the trial court abused its discretion in denying his
motion to continue the trial after the State elected, on the morning of the trial, to nolle
prosequi the attempted first degree murder count of the indictment. He acknowledges that
he failed to raise this issue in the motion for a new trial but asks this court to grant relief
pursuant to Tennessee Rule of Appellate Procedure 36(b) and State v. Adkisson, 

 (Tenn. Crim. App. 1994), generally known as the plain error doctrine.
To this end, he argues that the last-minute notice of the State’s decision not to pursue the
attempted first degree murder charge deprived him of his constitutional right to the
effective assistance of counsel because his attorneys were “unable to effectively change
their trial strategy” in the wake of the State’s “tactical bombshell.” The State responds that
the Defendant has not shown that he is entitled to relief as a matter of plain error. We agree
with the State.

      As the Defendant notes, he failed to raise this issue in the motion for a new trial.
Tennessee Rule of Appellate Procedure 3(e) states, in pertinent part:

       [I]n all cases tried by a jury, no issue presented for review shall be predicated
       upon error in the admission or exclusion of evidence, jury instructions
       granted or refused, misconduct of jurors, parties or counsel, or other action
       committed or occurring during the trial of the case, or other ground upon
       which a new trial is sought, unless the same was specifically stated in a
       motion for a new trial; otherwise such issues will be treated as waived.

T.R.A.P. 3(e). The issue is waived. See id.; cf. State v. Johnson, 980 S.W.414, 418 (Tenn.
Crim. App. 1998) (holding that the defendant waived issue regarding denial of a
continuance because the motion for a new trial was untimely). Our review is limited to

                                             -13-
one for plain error. See T.R.A.P. 36(b) (“When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at
any time, even though the error was not raised in the motion for a new trial or assigned as
error on appeal.”).

       Five factors are relevant

              when deciding whether an error constitutes “plain error” in the
              absence of an objection at trial: “(a) the record must clearly
              establish what occurred in the trial court; (b) a clear and
              unequivocal rule of law must have been breached; (c) a
              substantial right of the accused must have been adversely
              affected; (d) the accused did not waive the issue for tactical
              reasons; and (e) consideration of the error is ‘necessary to do
              substantial justice.’”

State v. Smith, 

 (Tenn. 2000) (quoting Adkisson, 

-
42); see also State v. Minor, 

 (Tenn. 2018). All five factors must exist
in order for plain error to be recognized. Smith, 

. “[C]omplete
consideration of all the factors is not necessary when it is clear from the record that at least
one of the factors cannot be established.” 

 In order for this court to reverse the judgment
of a trial court, the error must be “of such a great magnitude that it probably changed the
outcome of the trial.” Id.; Adkisson, 

.

       “[A] motion for a continuance is addressed to the sole discretion of the trial judge,”
and the judge’s decision “will not be reversed on appeal absent an abuse of discretion and
prejudice to the defendant.” Baxter v. State, 

 (Tenn. Crim. App.
1973); State v. Willis, 

 (Tenn. 2016); see State v. Goodwin, 

 (Tenn. 1995). It is the appealing party’s burden to show how the trial
court’s decision was prejudicial. Baxter, 

. The critical inquiry “is
whether one has been deprived of his rights and whether an injustice has been done.” 

As a result, the record must reflect that “the denial of the requested continuance ‘denied
the defendant a fair trial or that the result of the trial would have been different.’” State v.
Vaughn, 

 (Tenn. Crim. App. 2008) (quoting State v. Odom, 

 (Tenn. 2004)); see Willis, 

; Goodwin, 

.

       Upon review of the record, we conclude that the Defendant cannot establish the
breach of a clear and unequivocal rule of law, that a substantial right was affected, and that
consideration of the issue is necessary to do substantial justice. See Smith, 

 (Tenn. 2000); Adkisson, 

. Trial counsel argued in support of its
motion to continue that its defense strategy would be “disjointed and disorganized” if a

                                             -14-
continuance were not granted. However, the record fails to reflect that trial counsel was
unable to present a logical and cohesive opening statement and closing argument, to cross-
examine witnesses, and to raise objections. Because the issue was not raised in the motion
for new trial, the record fails to contain specific information from trial counsel about an
actual inability or impairment which occurred in the trial of the case, particularly instances
in which trial counsel were unable to fulfill their duties to provide the Defendant with the
effective assistance of counsel. Because the Defendant cannot establish the Smith/Adkisson
plain error requisites, he is not entitled to relief on this basis.

                                             III

                               Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient to support his aggravated
kidnapping conviction. The State responds that the evidence is sufficient. We agree with
the State.

        In determining the sufficiency of the evidence, the standard of review 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, 

 (1979); see State v. Vasques, 

(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 

. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the
trier of fact.” State v. Bland, 

 (Tenn. 1997); see State v. Sheffield, 

 (Tenn. 1984).

       “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 

 (Tenn. 1998); see State v.
Sutton, 

 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 

 (Tenn. 2011) (quoting State v. Hanson, 

 (Tenn.
2009)).

       As relevant to the present case, “(a) Aggravated kidnapping is false imprisonment,
as defined in § 39-13-302, committed . . . [w]hile the defendant is in possession of a deadly
weapon or threatens the use of a deadly weapon.” T.C.A. § 39-13-304(a)(5) (2018). “A
person commits the offense of false imprisonment who knowingly removes or confines
another unlawfully so as to interfere substantially with the other’s liberty.” Id. § 39-13-
302(a) (2018).


                                            -15-
        Viewed in the light most favorable to the State, the evidence shows that the
Defendant, determined to talk to the victim about their pending divorce because he opposed
it, entered her home in the early morning hours by kicking in a door. The Defendant was
armed with three guns, one of which he fired when the victim tried to get her cell phone to
call 9-1-1. The Defendant beat the victim and pushed her into a basement, where he
confined her at gunpoint for several hours and threatened to kill her and to kill himself.
The Defendant told the victim that she was his hostage and continued the confinement until
a police officer arrived. The victim was able to extricate herself when the Defendant told
her to go outside to talk to the officer but not to tell him what was happening inside the
home.

       We have considered the Defendant’s arguments that the victim’s account contained
inconsistencies and that forensic evidence related to gunshot residue and blood was not
collected and analyzed. He also argues that he was not prohibited by court order from
entering the home. We note, first, that the Defendant admitted firing a weapon inside the
home, that the Defendant admitted he entered the home forcibly while armed, that he
“scuffled” with the victim, and that he admitted he held her in the basement at gunpoint in
order to discuss the divorce with her. We note, as well, the Defendant’s statement that the
victim bled and Corporal Stiles’s observation of blood on the victim. To the extent that
the Defendant invites this court to reweigh the evidence by discrediting the victim’s
testimony, we must decline to invade the province of the jury as the trier of fact. See
Bland, 

; Sheffield, 

.

        The evidence is sufficient to support the Defendant’s conviction. He is not entitled
to relief on this basis.

                                            IV

                                        Sentencing

       The Defendant contends that the trial court imposed an excessive sentence of nine
years, rather than the eight-year minimum sentence. The State counters that the court did
not abuse its discretion. We agree with the State.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 

 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant

                                           -16-
made on his own behalf, the potential for rehabilitation or treatment, and the result of the
validated risk and needs assessment. T.C.A. §§ 40-35-103 (2019), -210 (2019); State v.
Ashby, 

 (Tenn. 1991); State v. Moss, 

 (Tenn.
1986); State v. Taylor, 

 (Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102
(2019).

       Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 

. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” 

. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. 

        At the sentencing hearing, the presentence report was received as an exhibit and
reflected the following: The fifty-nine-year-old Defendant had no prior criminal
convictions. He dropped out of school in the eighth grade. He reported current good
mental health due to his psychiatric medications being “stabilized.” He did not currently
drink alcohol and had never used drugs. The Defendant had been employed as a fabricator
at a pool company until he was incarcerated upon his conviction. He also had employment
history with Lowe’s and self-employment as a handyman, carpenter, and motorcycle shop
owner. His Risk Assessment Tool evaluation determined that he was “a low risk offender.”

        The Defendant provided a statement regarding his version of the events, in which
he minimized his culpability. He acknowledged coming into the McMinn County home
by kicking in a door while armed with two Glock pistols, which he said he always had
when he traveled. He stated that he wanted to talk to the victim, that the gunshot had been
fired accidentally when the victim reached for the gun, that the victim reached for his gun
a second time and fell down the basement steps because she lost her balance when he pulled
back, and that they had conversations in the basement and the living room. He said he had
no ill will toward anyone and planned to be kind and make the best of all circumstances he
faced. He said he planned to remarry and build another house. He recounted his religious
faith. He asked the trial court to afford him a second chance and promised he would “do
it right.”

        The Defendant’s sister submitted a letter, which was incorporated in the family
information section of the presentence report. The letter detailed the divorce of the
Defendant’s parents, his upbringing in an abusive home, his parenting a daughter when his
first wife left him and was later killed in a car wreck, his care of his daughter when she had
a brain tumor, his daughter’s drug abuse and eventual death, his depression after her death,

                                            -17-
the death of the Defendant’s father and its effect on the Defendant, the Defendant’s suicide
attempt, the Defendant’s sister’s suspicion that the Defendant’s prescription medications
were not properly regulated at the time of the present offense, the Defendant’s industrious
nature and role as a provider for his family, his devastation when the victim sought to
divorce him, and signs of his mental illness of which the sister became aware after the
Defendant’s arrest in the present case.

       The victim testified that she still thought about the offense daily and that she had
nightmares about it. She said she lived in constant fear of the Defendant’s returning to kill
her. She said she cried frequently. She said that she sought medical care due to her injuries
from the incident and that she had difficulty walking for a month. She said that she spent
money to repair the door the Defendant kicked in during the incident and that she was still
upset when she saw the bullet hole in the bedroom wall and the spray paint in the basement.
She said that she had eleven text message alerts related to the Defendant’s release on bond
with an ankle monitor and that on one occasion, the police told her to leave her house for
the night because the Defendant was within nine miles of her home.

       The victim testified that the Defendant had always had a bad temper and that he had
been verbally and physically abusive to her and their children during their marriage. She
said that in road rage incidents, he had pointed a pistol at other motorists. She said that he
often had problems with others, including at work and with neighbors, and that neighbors
in both Tennessee and Florida had called the police about the Defendant’s conduct. The
victim said that toward the end of their marriage, the Defendant would block her car with
another car to which she did not have keys in order to keep her at home while he was at
work.

        The Defendant’s son testified that the victim had struggled emotionally since the
offense. He said he was not surprised by his father’s behavior which led to the conviction,
which was consistent with the Defendant’s behavior the son had observed for all of the
son’s life. The son said the Defendant had “almost brag[ged]” over the years about an
incident at a tee ball game in which the Defendant had been involved in an altercation with
another parent, who was a Green Beret, in which the Defendant “ran the gentleman out
with a knife.” The Defendant’s son said he had been removed from the tee ball team and
banned from the ballpark as a result of the Defendant’s conduct. The Defendant’s son
recalled an incident when he was age eight and observed the Defendant with “pure rage in
his eyes” and his hands around the victim’s neck. The Defendant’s son said he had been
terrified of disappointing or frustrating the Defendant. The Defendant’s son said that he
had drug charges as a juvenile and that the Defendant threw him against a closet door and
choked him when the Defendant came home. The Defendant’s son said he had been
diagnosed as an adult with post-traumatic stress disorder related to the Defendant’s fits of
rage in the son’s childhood.


                                            -18-
        The Defendant’s son testified that after the Defendant’s “first” suicide attempt, the
police confiscated the Defendant’s guns and asked the son to take them for safekeeping
until the Defendant was healthy. The Defendant’s son said that when he took the Defendant
home from the hospital, the Defendant began asking about the guns within ten minutes.
The Defendant’s son said the Defendant became “enraged” and “unglued” on the way
home from the hospital. The Defendant’s son said the Defendant threatened to go to the
son’s mother-in-law’s house and “turn [it] upside down” because the Defendant thought
the guns might be stored there. The Defendant’s son said that his wife and children were
at his mother-in-law’s house and that because he was concerned for their safety, he agreed
to get the Defendant’s guns. The Defendant’s son said he felt responsible for the
Defendant’s attempted suicide about two weeks later. The Defendant’s son said that a few
years ago, the Defendant’s brother had obtained an order of protection due to threats from
the Defendant.

       The Defendant’s son testified that he had been estranged from the Defendant since
the son’s wife accused the Defendant of trying to sexually assault her. The Defendant’s
son said that on another occasion, he had asked the Defendant not to use certain language
around the son’s children and that the Defendant became enraged and threw his son out of
the house. The Defendant’s son said, though, that he did not hold a grudge against the
Defendant and that he prayed for the Defendant.

        The trial court credited the testimony of the victim and the Defendant’s son and
stated that it gave the son’s testimony great weight. Relative to enhancement factors, the
court found that, based upon the Defendant’s son’s testimony, the Defendant had a prior
history of criminal behavior involving domestic violence and the assault at the tee ball
game. See T.C.A. § 40-35-114(1) (2019) (subsequently amended) (“The defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range[.]”). The court also found the Defendant treated the
victim with exceptional cruelty, noting the trial evidence that the Defendant fired a gun in
the victim’s bedroom, the physical injuries the victim sustained, the blood on the stairs,
and the terrifying circumstances surrounding the victim’s confinement in the basement
with the spray painting on the walls, the length of the detention, the display of a weapon,
and the threats by the Defendant to kill himself and the victim. See id. at (5) (“The
defendant treated . . . a victim . . . with exceptional cruelty during the commission of the
offense[.]”). Considering the mitigating factors, the trial court found that the Defendant
voluntarily released the victim and that he “voluntarily provided information which led to
his own prosecution.” See id. § 39-13-304(b)(2) (2018) (“If the offender voluntarily
releases the victim alive or voluntarily provides information leading to the victim’s safe
release, such actions shall be considered by the court as a mitigating factor at the time of
sentencing.”). The court found, as well, that despite the Defendant’s history of violent
behavior, he had no prior criminal convictions, and that he had been financially successful
and had provided for his family. See id. § 40-35-113(13) (2019) (subsequently amended)

                                            -19-
(allowing mitigation for “[a]ny other factor consistent with the purposes of this chapter.”).
Upon balancing the enhancement and mitigating factors, the court afforded greater weight
to the enhancement factors, “but not by much.” The court noted that the offense was
statutorily ineligible for alternative sentencing and that the sentencing range for the
Defendant as a Range I offender was eight to twelve years. The court concluded that the
appropriate sentence was nine years in the Department of Correction.

        The Defendant does not argue that the trial court erred in applying the enhancement
factors or that it failed to apply relevant mitigating factors. Rather, he argues that the court
erred in its weighing of the factors. In his view, the court should not have given
considerable weight to the Defendant’s son’s testimony about domestic violence because
it “implicitly discredited [the victim’s] testimony regarding [the Defendant’s] previous
violence.” Our supreme court has said, “[M]ere disagreement with the trial court’s
weighing of the properly assigned enhancement and mitigating factors is no longer a
ground for appeal.” Bise, 

. In any event, the evidence showed that
although the victim initially maintained that the Defendant had not been violent toward her
before the date of the crime, she testified at the sentencing hearing about the Defendant’s
verbal and physical abuse. She testified, as well, about her fear after the crime that the
Defendant would return and kill her. The court made specific findings crediting the
testimony of the victim’s son regarding the Defendant’s prior domestic abuse and violence.
It is not the function of this court to substitute our judgment for that of the trial court, made
after hearing the testimony and observing the witnesses presented at the sentencing hearing.
See generally 

.

       The record reflects that the trial court followed the statutory guidelines for
sentencing, including its reflection upon the appropriate considerations and factors. See
T.C.A. §§ 40-35-103, -210; Ashby, 

. The court made findings regarding
the applicable enhancement and mitigating factors based upon the evidence from the trial
and the sentencing hearing. The court announced its deliberative process in weighing the
factors and its reason for affording greater weight to the enhancement factors. It imposed
a within-range sentence. Affording the court the presumption of reasonableness, we
conclude that the court did not abuse its discretion in sentencing the Defendant to nine
years. The Defendant is not entitled to relief on this basis.

       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.

                                               _____________________________________
                                                ROBERT H. MONTGOMERY, JR., JUDGE




                                              -20-