State of Tennessee v. Dantis Lakka-Lako

                                                                                          12/12/2023


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               October 10, 2023 Session

             STATE OF TENNESSEE v. DANTIS LAKKA-LAKO

                Appeal from the Criminal Court for Davidson County
                   No. 2019-A-739      Jennifer L. Smith, Judge
                     ___________________________________

                           No. M2023-00080-CCA-R3-CD
                       ___________________________________

A Davidson County jury convicted the Defendant, Dantis Lakka-Lako, of one count of
especially aggravated robbery, two counts of aggravated rape, one count of especially
aggravated burglary, and two counts of theft of property. The trial court sentenced the
Defendant to an effective sentence of fifty years of incarceration. On appeal, the Defendant
asserts that the trial court erred when it denied his motion to suppress his confession. He
additionally contends that the evidence was insufficient to support his convictions for
especially aggravated robbery and aggravated rape, and that the trial court erred when it
sentenced him. After review, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN W.
CAMPBELL, SR., and KYLE A. HIXSON, JJ., joined.

Manuel B. Russ (on appeal) and Brent Horst (at trial), Nashville, Tennessee, for the
appellant, Dantis Lakka-Lako.

Jonathan Skrmetti, Attorney General and Reporter; Andreé Sophia Blumstein, Solicitor
General; Philip Hammersley, Assistant Solicitor General; Glenn R. Funk, District Attorney
General; and Doug Thurman and Kristen E. Stonehill, Assistant District Attorneys General,
for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the Defendant’s assault and rape of the victim inside her
Nashville apartment. The victim, who was pregnant at the time, jumped out of her third-
floor apartment window to escape the Defendant. The Defendant then stole the victim’s
husband’s vehicle and the victim’s credit cards, which he later used to make purchases.
For these offenses, a Davidson County grand jury indicted the Defendant for one count of
especially aggravated robbery, two counts of aggravated rape, one count of especially
aggravated burglary, and two counts of theft of property.

                                  A. Motion to Suppress

       Prior to trial, the Defendant filed a motion to suppress his statement to the police on
the grounds that it was involuntary as a result of coercion and misleading tactics by law
enforcement, including statements made by one detective minimizing the impact the
Defendant’s statements would have on his future.

       The trial court held a hearing, at which the following evidence was presented:
Detective Kimberlin Rothwell testified that she worked for Metro Nashville Police
Department (“MNPD”) in the sex crimes unit. On September 5, 2018, Detective Rothwell
was called to Vanderbilt University Medical Center about a female who was the victim of
a home invasion. The victim, who had been injured, reported being sexually assaulted
inside her apartment. The victim said that she escaped her attacker by using a knife to slash
open a window screen and jumping out of her third-story apartment unit. The victim was
pregnant and suffered multiple injuries, including a fractured pelvis.

        Detective Rothwell received information from the victim’s husband that her credit
card had been used at Mapco. Mapco provided their surveillance recording, which showed
the Defendant using the victim’s credit card. The Defendant’s fingerprints were also
identified on the victim’s husband’s vehicle, which was stolen after the assault. Based on
this, law enforcement obtained a search warrant for the Defendant’s residence that he
shared with his mother and siblings. Law enforcement executed the warrant on September
18, 2018, which was the Defendant’s sixteenth birthday. On that same day, law
enforcement asked to speak with the Defendant, and the Defendant willingly spoke to the
detective in the detective’s vehicle in the parking lot of the Defendant’s residence’s
complex. The Defendant was not handcuffed. Detective Rothwell was dressed in plain
clothes and driving an unmarked vehicle. Detective Rob Carrigan also attended the
interview. Detective Rothwell sat in the driver’s seat, the Defendant in the front passenger
seat, and Detective Carrigan in the backseat. Detective Rothwell asked the Defendant if
he wished to waive his Miranda rights, and the Defendant indicated that he did. The
Defendant also signed a written waiver confirming this. The Defendant indicated that he
had completed the eighth grade and was not under the influence of alcohol or drugs.

       The interview was audio-recorded, and the trial court admitted a transcript of the
interview as an exhibit to the hearing. The Defendant did not ask to speak to a lawyer or

                                              2
with his family, who remained inside their apartment. The Defendant indicated that he had
retained a lawyer in the past for other criminal matters.

        During the interview, which Detective Rothwell stated lasted one hour and twenty
minutes, the Defendant did not ask for a break, and the detectives did not threaten him. At
some point during the interview, the Defendant asked to speak to Detective Rothwell alone,
and Detective Carrigan exited the police vehicle. The Defendant initially admitted to using
the victim’s stolen credit card but said he was not involved with the robbery or rape. He
blamed the robbery and rape on someone named “Joe Joe.” By the end of the interview,
the Defendant admitted to being inside the victim’s apartment, then to taking a knife from
the apartment, and then to attempting to rape the victim. The Defendant was arrested and
charged in juvenile court before the case was transferred to general sessions court.
Detective Rothwell said that she would have brought the Defendant’s mother to the vehicle
if the Defendant had so requested.

        On cross-examination, Detective Rothwell stated that Detective Carrigan got out of
the police vehicle halfway through the interview, and Detective Rothwell finished it alone.
Detective Rothwell then got out of the car, and Sergeant Sean Rohweder got in and spoke
to the Defendant. Sergeant Rohweder’s portion of the interview lasted twenty to thirty
minutes. Detective Rothwell agreed that the Defendant was not told he was free to leave
the interview but never indicated he wanted a break or asked to leave. The Defendant was
respectful and compliant.

       Sergeant Rohweder testified that he joined the other officers at the Defendant’s
apartment complex. Thereafter, he became involved in the Defendant’s interview being
conducted inside the police vehicle. He recalled that Detective Carrigan stepped out of the
vehicle and told Sergeant Rohweder that the Defendant appeared to want to be cooperative
with the investigation but was somewhat apprehensive. After Detective Rothwell finished
speaking with the Defendant, Sergeant Rohweder got into the police vehicle and spoke
with him. At that point, Sergeant Rohweder was under the impression that the Defendant
had admitted to being present in the victim’s apartment but had not “fully confessed” to
sexually assaulting the victim. The Defendant did not “fully confess to raping her” during
Sergeant Rohweder’s portion of the interview.

       The transcript of the interview indicates that Detective Rothwell told the Defendant
explicitly that he was not in custody. She explained his Miranda rights to him which she
explained meant he “[didn’t] have to talk” to law enforcement. The Defendant indicated
in the affirmative that he understood his rights and wished to be interviewed. Detective
Carrigan encouraged the Defendant to be honest and not dig himself into a hole. The
Defendant admitted to seeing the victim and asking for her phone. He admitted to going
inside her apartment and taking a knife from the victim’s kitchen. Detective Rothwell
                                            3
exited the vehicle and, when she returned, asked if the Defendant needed to take “a minute”
and the Defendant said he was fine. The Defendant admitted to going into the victim’s
bedroom to look for items to steal but denied attempting to rape her.

       Detective Rothwell exited the vehicle again and Sergeant Rohweder replaced her.
Sergeant Rohweder told the Defendant, in essence, that he supported the Defendant as if
he was his own son. The Defendant replied that he had made “too big of a mistake.”
Sergeant Rohweder replied that it did not have to amount to a “forever mistake.” Sergeant
Rohweder encouraged him to clear his conscience and tell the truth. The Defendant said
he saw his crime as an “opportunity” to steal from the victim and make money to live. He
took the victim’s purse and a locked safe. The Defendant said he told the victim to “get on
her knees” but she was “fighting” back. The Defendant attempted to take his pants off but
was unable to. He denied raping the victim.

       Defense counsel argued that, based on the evidence presented, a reasonable sixteen-
year-old would not have felt free to leave and was therefore in custody.

       The trial court denied the Defendant’s motion to suppress, stating the following in
an order:

             The Defendant now challenges the admissibility of the statements
      made to the third officer, Sergeant Rohweder, on grounds that his statement
      was a product of coercion and illusory promises. At the suppression hearing,
      defense counsel conceded that the statements made to Detectives Rothwell
      and Carrigan in the first hour and twenty minutes of the interview were
      voluntary and thus admissible.

             ....

             The Court finds from the totality of the circumstances that the
      Defendant’s statement was voluntarily given. Detective Rothwell and
      Sergeant Rohweder testified at the hearing on [the] Defendant’s motion,
      giving this Court the opportunity to see, hear, and assess their credibility.
      The Court also reviewed a recording and transcript of Detective Rothwell,
      Detective Carrigan, and Sergeant Rohweder’s September 11, 2018,
      encounter with the Defendant.

             Looking at the totality of the circumstances, the encounter between
      the detectives and the Defendant took place on the morning of September 11,
      2018, and lasted approximately one hour and fifty minutes. Detective
      Rothwell and her partner initiated the encounter with the Defendant validly
                                            4
by executing a search warrant at the Defendant’s residence and asking if they
could speak with him outside in their unmarked car. The Defendant
accompanied the detectives voluntarily. He was not restrained by handcuffs.
Detective Rothwell informed the Defendant that he was not in custody, and
there is nothing [in] the record to suggest that he did not understand that
information.

       For the duration of the interview, the Defendant sat in the passenger
seat of the unmarked police car. He spoke with three different officers.
Detective Rothwell and her partner Detective Carrigan were present in the
beginning of the interview. They were stern but polite throughout the
process. In the middle of the interview, the Defendant asked to speak with
only Detective Rothwell, at which time Detective Carrigan obliged and
stepped out of the vehicle. Sergeant Rohweder joined Detective Rothwell
for the last thirty minutes of the interview and was calm and polite when
addressing the Defendant.

       Detective Rothwell informed the Defendant that they had surveillance
video of the Defendant coming out of the victim’s apartment; they found the
Defendant’s fingerprints inside the victim’s stolen vehicle, which was found
at the Defendant’s apartment complex; they had video of the Defendant at
multiple businesses using the victim’s stolen credit cards; and they had DNA
from the victim’s assailant. None of the detectives threatened or abused the
Defendant in any way but explained that they were giving him the
opportunity to explain his motivations and take responsibility for his actions.
The Defendant was cooperative, though not initially forthcoming. The
Defendant admitted to the robbery allegations after learning that the
Detectives had video footage of the apartment complex and saw the
Defendant entering and exiting the victim’s apartment alone. Although the
Defendant did not initially admit to the sexual assault, he ultimately told
Sergeant Rohweder that he directed the victim to get on her knees but
claimed he was unsuccessful and his pants never came off.

       There is nothing about the personal characteristics of the Defendant,
aside from his age, that would make him particularly susceptible to coercion.
The Defendant had just turned sixteen at the time of the interview. He was
a freshman in high school and was able to read and write English. The Court
credits the testimony of Detective Rothwell that the Defendant gave no
indication that he did not understand what was going on. The Defendant
denied being under the influence of drugs or alcohol. [The] Defendant also

                                      5
gave no indication that he was sleep deprived or in need of food or medical
attention.

       The Defendant was read his Miranda warnings and indicated that he
understood those rights and still wanted to talk. The Defendant signed a
waiver of rights, which was admitted at the suppression hearing as Exhibit 1.
He had previous experience with law enforcement and admitted he had
previously been advised of his rights during an earlier encounter with police
and had experience with an attorney in the past. Although the Defendant’s
mother was in close proximity inside the apartment during the interview, the
Defendant never asked that she or any other adult be present during
questioning. The Court credits the testimony of Detective Rothwell that the
Defendant’s mother never tried to join the Defendant during the interview.

       The Defendant conceded at the suppression hearing that his
statements to Detectives Rothwell and Carrigan were voluntary.
Nevertheless, the Court finds nothing in Detective Carrigan’s statements to
the Defendant that would render his statement involuntary. In Callahan, the
Tennessee Supreme Court upheld the admissibility of a juvenile’s statements
made after Miranda, explaining that “neither the Tennessee Constitution nor
the United States Constitution requires police officers to inform the
defendant that he may be prosecuted as an adult.” 979 S.W.2d at 578.
Detective Carrigan’s interactions with the Defendant fall well within legal
bounds and did nothing to overbear the Defendant’s will.

        The Court also finds no fault with Sergeant Rohweder’s statements to
the Defendant that he would give his son the same advice and, “This isn’t a
permanent thing. It’s not a forever thing. It’s not a ‘I’m going to spend the
rest of my life in jail thing.’” The Court is guided by the decision of the Sixth
Circuit Court of Appeals in United States v. Charlton, 

,
261 (6th Cir. 2018), cert. denied, 

 (2018), in which the court
ruled that officers’ offer to help the defendant and to protect his family if
they could were not a promise of leniency and were not objectively coercive.

       Similarly, Sergeant Rohweder’s statements were not objectively
coercive. Nor did he make any improper promise of leniency. Persuasion is
not the same as coercion. See id. The Defendant’s decision to talk with
detectives appears to this Court to have been motivated by his realization of
the strong evidence against him rather than by any alleged misconduct of
Sergeant Rohweder. Moreover, the Defendant had already admitted to other

                                       6
      officers that he was present in the victim’s apartment before Sergeant
      Rohweder joined the conversation.

            Considering the totality of the circumstances, the Court concludes that
      the Defendant’s statements to detectives were voluntary and not
      contaminated by duress or coercion.

                                         B. Trial

        At the Defendant’s trial, the parties presented the following evidence: The victim,
who testified through an interpreter, stated that she was from Thailand and that English
was her second language. In 2018, she was living in a Nashville apartment with her
husband and was five months pregnant. The day of the incident, she took her mother in
her husband’s car to a doctor’s appointment and then went to the grocery and the post
office. The victim’s husband had gone to work in her car. After her errands, the victim
returned to her apartment complex around 3 p.m. and observed a teenage boy sitting on the
stairs of her apartment building. The victim took two trips to get her groceries from her
car to her apartment. On the second trip, the boy asked her for her phone. She took her
groceries inside her apartment and locked her door. The victim later identified the boy at
her apartment building as the Defendant sitting in the courtroom.

       The victim laid down on her bed and soon after the Defendant entered her bedroom.
He was wearing gloves and holding a knife from the victim’s kitchen. The Defendant told
her not to scream or make noise and held her at knifepoint to keep her from leaving the
room. The Defendant took the cash that was in her purse, about $600. Then he grabbed
her wrist and twisted it behind her back. The Defendant told her to perform oral sex on
him and took off his pants. He made the victim get on her knees and tried to force her
mouth onto his penis. The victim squeezed his testicles while refusing and struggling to
get away from him. The Defendant then put his mouth on her vagina and put his tongue
inside. He then penetrated her vagina with his penis several times. The victim continued
to struggle, so the Defendant was not able to ejaculate.

        The victim tried to push the Defendant away and ended up smashing a bottle on his
head causing his head to bleed. He left the bedroom but left the knife behind, which the
victim grabbed. The victim thought the Defendant would kill her, and she looked for ways
to escape. She eventually cut a hole in the window screen and jumped out of her apartment
window, which was on the third level. She ran to the parking lot and banged on a car to
set off the car alarm. The victim then ran to a bystander who called the police. The victim
watched the Defendant drive away in her husband’s car. The keys had been hanging on
the wall inside her apartment. The police responded, and the victim went to the hospital.

                                            7
The victim was shown a photographic lineup at the hospital, but she could not identify her
attacker.

       Regarding her injuries, the victim stated that she suffered a pelvic crack on her
posterior. She needed surgery, but did not have it because of her pregnancy. She suffered
severe pain, which remained three years later at the time of trial. As a result of her injury,
she was not able to give birth vaginally, but instead needed to have a cesarean section. The
victim sustained an injury to her arm that healed on its own, but resulted in lingering pain.
The victim was hospitalized for two to three months and struggled to walk well, so she
required a wheelchair at times. The victim described the incident as “terrifying” and said
she has since been “afraid of everything.” She stated that she lost her trust in people and
no longer had loving feelings towards kids. The victim stated that the Defendant punched
her twice in the face with a closed fist.

       The victim’s husband testified that he was born in Burma and that English was his
second language. The victim and her husband moved into their apartment and the crime
occurred the next day. The victim’s husband received a phone call at work and was told
to go to the hospital to meet his wife. She appeared badly injured and could not move
easily. The victim was in the hospital for an extended period and then went to live at her
parents. She suffered continual pain and limited movement.

       While the victim was in the hospital, her husband returned to their apartment to
retrieve some items and found it in disarray. He observed the broken window and many
items out of place. The victim’s husband noticed transactions on the victim’s credit card
at Mapco, Walmart, and McDonald’s. The victim was still in the hospital at that time.
Police eventually recovered the stolen car with trash and nicotine products inside, none of
which belonged to the victim or her husband. The victim’s husband testified that a jewelry
safe was stolen from their apartment.

       Heather Kennedy testified that she was an emergency room nurse at Vanderbilt
University Medical Center and examined the victim there. Ms. Kennedy confirmed that
the victim was five months pregnant. The victim stated that the sexual assault occurred in
her bedroom and that the Defendant did not ejaculate inside her. The victim indicated that
the Defendant had licked her vagina. Ms. Kennedy took DNA samples from inside the
victim’s mouth, under her fingernails, and her genital area.

       Officer Richard Olive with the MNPD testified that he responded to the victim’s
apartment and observed her substantial injuries. She appeared “traumatized, bleeding,
multiple parts of her body having difficulty moving.”



                                              8
       Investigator Lynnette Mace testified that she worked as a crime scene investigator
for MNPD and responded to the victim’s apartment. Inside the bedroom she found a
broken beer bottle and the window screen cut open, consistent with the victim’s testimony.
Investigator Mace found a kitchen knife on the ground outside the victim’s window.

       Officer Gerald Gomes with the MNPD testified that he received a tip about the
location of the victim’s stolen vehicle, which was at another apartment complex. Officer
Gomes ran the tag number on the vehicle, and it was registered to the victim’s husband.
The vehicle was towed from the scene and processed for evidence. Lorita March with the
MNPD Crime Lab received fingerprints that were lifted from inside the stolen vehicle
registered to the victim’s husband. Found inside the vehicle was a bottle of lotion that the
victim’s husband indicated did not belong to him. Ms. Marsh testified that the Defendant’s
fingerprints were found on the bottle.

       Julie Ellis, with the MNPD forensic biology unit, testified that she analyzed DNA
samples taken from the victim, her husband, and the Defendant. She also analyzed samples
taken from the stolen vehicle, the kitchen knife, and items found inside the victim’s
apartment. Testing indicated the presence of the Defendant’s DNA under the victim’s
fingernails. DNA consistent with the Defendant was also found on a paper towel found
inside the victim’s apartment and on the steering wheel and gear shifter of the stolen
vehicle.

       Upon hearing this evidence, the jury convicted the Defendant of one count of
especially aggravated robbery, two counts of aggravated rape, one count of especially
aggravated burglary, and two counts of theft of property.

                                      C. Sentencing

       The trial court held a sentencing hearing at which the presentence report was
admitted into the record. The presentence report indicated that the Defendant had been
adjudicated delinquent in juvenile court for six offenses, offenses that would have been
felonies had they been committed by an adult. The following evidence was presented: The
Defendant’s sister testified that the Defendant was one of six children. She characterized
the Defendant as loving and caring, a “helper” who had never been violent towards anyone.
She apologized on behalf of the Defendant. Other family members testified favorably in
support of the Defendant. The State did not present any additional evidence. At the
conclusion of the hearing, the trial court made the following statement:

             In determining the appropriate sentence in this case, the Court has
       considered the evidence presented at the trial, and I have made a point to go

                                             9
back and very carefully review my notes from the trial and the evidence
presented in this sentencing hearing.

      The Court also received a presentence report which was admitted into
evidence as Exhibit 1.

      The Court has considered the statutory sentencing principles that are
embodied in Tennessee Code Annotated 40-35-103. The Court has
considered the nature and characteristics of the conduct involved in this case
and the evidence and information offered by the parties with respect to
enhancing and mitigating factors.

       The Court has also considered any evidence before it today that would
have any bearing one way or another on the [D]efendant’s potential for
rehabilitation and treatment.

        The [D]efendant is a Range [I] standard offender, but he stands
convicted today of especially aggravated robbery, a Class A felony, which
carries a range of punishment for a standard offender of 15 to 25 years in
prison.

        He has been convicted by a jury of two counts of aggravated rape, also
a Class A felony, which carries a range of punishment of 15 to 25 years in
prison.

      He stands convicted of aggravated burglary, a Class C felony, that
would carry a range of 3 to 6 years in prison.

       And he stands convicted of two counts of theft, one count at a value
over $2500, which is a Class D felony, which carries a 2 to 4-year prison
range and one count of misdemeanor theft which carries jail time up to 11
months and 29 days.

       In determining where to place the sentence within those applicable
ranges, the statute and the law requires that the Court consider certain
statutory enhancement factors and mitigating factors. And the State has
offered a number of factors that it believes to be applicable in this case in
terms of enhancement.

       ....

                                     10
       The State offers enhancement factor number 6, that the personal
injuries inflicted upon or the amount of damage to property sustained by or
taken from the victim was particularly great. And the Court does find that
that enhancement factors applies and the Court finds that enhancement factor
carries great weight.

       [H.H.] testified that she was no longer able to give birth naturally after
this incident, in which she was forced to literally leap from a three-story
window to save her own life. At the time of the trial she was still in physical
pain and described her psychological suffering. She was also in the hospital
for a month after this incident happened which indicates, again, the severity
of her injuries. And so[,] for all of these reasons, that factor applies and is
very weighty.
       ....

        Factor number 9, the [D]efendant possessed or employed a firearm or
explosive device or other deadly weapon during the commission of the
offense was clearly established in proof at the trial, and the Court does apply
that factor with respect to counts 3, 4, 5, and 6.

        Factor number 10, the [D]efendant had no hesitation about
committing a crime when the risk to human life was high. And the Court
does apply that and specifically with respect to [the victim’s] unborn child.
The victim was obviously pregnant at the time of this incident. The
[D]efendant would have known she was pregnant. And so for that reason,
that factor does apply.

       Factor 13, at the time of the felony in these -- the felonies in these
cases, the [D]efendant was released on probation. Again, that factor was
established in the proof at the trial today and is set out in Exhibit Number 2.

       And finally, the [D]efendant was adjudicated to have committed a
delinquent act or acts as a juvenile that would constitute a felony if
committed by an adult was also established clearly by the collective Exhibit
Number 2, which indicates that the [D]efendant had been previously
adjudicated delinquent for six acts that would constitute felonies if they had
been committed by an adult. And that is that’s an extensive, extensive
juvenile record that proceeded this incident.




                                       11
       So[,] with respect to enhancement factors, the Court does find five
factors that are clearly established by the proof and in this Court’s view quite
weighty considering the totality of the circumstances.

       In mitigation, the defense presented several character witnesses who
came here to testify on the [D]efendant’s behalf, family members, close
friends, a supervisor from a juvenile facility. And I appreciate all of you
coming here to testify.

       ....

       What I did not hear today, however, and what I had hoped to hear
today, was any expression from this [D]efendant, the [D]efendant who stands
convicted of a number of very violent and serious offenses. I heard no
remorse. I heard no explanation, no reason why a pregnant woman who was
minding her own business, taking in groceries to a new apartment would be
viciously attacked, raped in her own home, forced to fling herself out a third-
story window, shattering her pelvis, and endangering the unborn child that
she carried in her body.

        I had hoped to hear that because this -- these types of acts are always
inexplicable and sometimes an explanation provides a little bit more weight
to the testimony about the defendant being a good person. Because it is
impossible for this Court to reconcile the testimony of the family members
that the [D]efendant is a good person, a polite person, a mannerly person with
the testimony that this Court heard, that the [D]efendant raped a pregnant
woman and forced her to fling herself out a third-story window. It is
irreconcilable because a good person would not do that, okay, without some
reason. And the reason is not known to me. The reason is not known to the
Court. And so[,] without a reason, then I am forced to look at nothing but
this event.

       So[,] taking all of that into consideration, you know, we have got
multiple applicable enhancement factors and very little mitigation and no
explanation.

       Before going to the length of sentence, I am going to move directly
into the consecutive sentencing, because the State has asked that these are
multiple offenses and this Court has the discretion if certain statutory
considerations are met to run any or all of these sentences consecutively.

                                      12
And the Court does find that at least three statutory bases for consecutive
sentencing are established here.

       The [D]defendant is an offender whose record of criminal activity is
extensive. Not only do we have multiple convictions in the incident case,
but his juvenile record is extensive, as I have previously stated.

       The [D]efendant is sentenced for an offense committed while on
probation. And he had just been placed on probation and yet still committed
the crimes here.

       And finally, the Court does agree with the State that the [D]efendant
is a dangerous offender whose behavior indicates little or no regard for
human life and no hesitation about committing a crime in which the risk to
human life is high.

       In applying this factor, the Court does find that the circumstances
surrounding the offense were aggravated for all of the reasons as previously
stated. The victim was a small woman, pregnant, alone, had a language
barrier, ended up leaping multiple stories, sustaining serious injuries. An
extended sentence is necessary to protect the publi[c].

      The Court also finds that the aggregate length of the sentences
reasonably relates to the [offenses] for which the [D]efendant is convicted.

        So[,] with all of those findings, the Court sentences the [D]efendant
as follows:

       As to Count 1 on the offense of especially aggravated robbery, the
Court sentences the [D]efendant to the maximum term of 25 years.

      On Count 2, the offense of aggravated rape, the Court sentences the
[D]efendant to the maximum term of 25 years.

      As to Count 3, on the conviction for aggravated rape, the Court
sentences the [D]efendant to the term of 25 years.

      For his conviction of aggravated burglary, the Court sentences the
[D]efendant to 6 years.



                                     13
             For his conviction for theft over $2500, the Court sentences the
       [D]efendant to 4 years.

              For his sentence for theft at a value under $1,000, the Court sentences
       the [D]efendant to 11 months and 29 days.

             The sentences in counts 1 and 2, especially aggravated robbery and
       aggravated rape, will be run consecutively.

             The sentences in counts 3, 4, 5, and 6 will run concurrently with the
       sentence in Count 1.

       The Defendant received a total effective sentence of fifty years of incarceration. It
is from these judgments that the Defendant appeals.

                                        II. Analysis

       On appeal, the Defendant asserts that the trial court erred when it denied his motion
to suppress his statement to “members of MPD.” He also asserts that the evidence is
insufficient to support his convictions for aggravated rape and especially aggravated
robbery. Finally, he contends that the trial court erred when it sentenced him.

                                      A. Suppression

         The Defendant contends that the trial court erred when it denied his motion to
suppress his statement to members of the MNPD. He contends that his statement was not
knowing and voluntary because, based on his juvenile status, his waiver of his rights was
not valid. The State responds that the Defendant did not challenge the validity of his waiver
at trial, and thus, his argument on appeal amounts to a new theory and is subject to plain
error review. The State contends that the Defendant cannot establish plain error because
1) no Miranda violation occurred because the Defendant was not in custody when he made
the statement; 2) if the Defendant was in custody, he validly waived his Miranda rights;
and 3) any Miranda violation that did occur did not affect the Defendant’s substantial rights
or create a substantial injustice.

                                    1. Level of Review

       The State contends that the Defendant’s argument on appeal was not properly
presented at trial, and thus that his argument on appeal pursuant to a new theory is entitled
only to plain error review. The Defendant does not appear to address this issue in his brief.

                                             14
       The Defendant motioned to suppress his statements made in the police vehicle. He
eventually conceded that his statements to Detectives Rothwell and Carrington were
voluntary but challenged the admissibility of his statement to Sergeant Rohweder. At the
suppression hearing, he argued that a reasonable person would not have felt free to leave
and therefore he was in custody.

       The stated objections did not include the issue of the validity of his Miranda waiver
based upon his status as a juvenile. “Appellate review generally is limited to issues that a
party properly preserves for review by raising the issues in the trial court and on appeal.”
State v. Minor, 

 (Tenn. 2018) (citing Tenn. R. Crim. P. 51; Tenn. R.
Evid. 103(a)-(b); Tenn. R. App. P. 3(e), 13(b), 27(a)(4), 36(a)); State v. Bledsoe, 

 (Tenn. 2007). In keeping with these principles, a party is bound by
the ground asserted when making an objection to the admission of evidence and cannot
assert a new or different theory to support the objection in the motion for new trial. State
v. Adkisson, 

 (Tenn. Crim. App. 1994). As the Defendant’s
objection to the statement was only made on the grounds of it being custodial, in keeping
with the foregoing, we are constrained to review this issue pursuant to the plain error
doctrine.

       The doctrine of plain error applies when all five of the following factors have been
established:

       (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 must not have waived the issue for tactical reasons; and
       (e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 

 (Tenn. 2006) (quoting State v. Terry, 

 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be] especially
egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to
rise to the level of plain error.” Id. at 231.

                            2. Statement to Law Enforcement

       We review for plain error the Defendant’s argument that his waiver of his rights was
unknowing and involuntary, based on the totality of the circumstances including his age,
the location and his lack of true understanding of his rights.

        The Fifth and Fourteenth Amendments to the United States Constitution and article
I, section 9 of the Tennessee Constitution protect an accused’s privilege against self-
                                             15
incrimination. Moreover, the United States Supreme Court held that the Fifth and
Fourteenth Amendments’ prohibition against compelled self-incrimination requires police
officers, before initiating custodial interrogation, to advise the accused of his right to
remain silent and his right to counsel. Miranda v. Arizona, 

 (1966).
Assuming the use of these procedural safeguards by police interrogators and provided that
the accused is acting voluntarily, knowingly, and intelligently, an accused may waive his
Miranda rights. State v. Mann, 

 (Tenn. 1997).

        The Defendant lists the factors contained in our supreme court’s opinion in State v.
Callahan as the framework for our consideration of the voluntariness of a juvenile’s waiver
of his right against self-incrimination. 

 (Tenn. 1998). The defendant in
Callahan was fifteen years old at time he waived his rights and gave a statement confessing
to killing his mother and sister. In analyzing the validity of his waiver, our supreme court
concluded that juvenile waivers would be analyzed under a totality-of-the-circumstances
test requiring consideration of the following factors:

       (1) consideration of all circumstances surrounding the interrogation
       including the juvenile’s age, experience, education, and intelligence;
       (2) the juvenile’s capacity to understand the Miranda warnings and the
       consequences of the waiver;
       (3) the juvenile’s familiarity with Miranda warnings or the ability to read and
       write in the language used to give the warnings;
       (4) any intoxication;
       (5) any mental disease, disorder, or retardation; and
       (6) the presence of a parent, guardian, or interested adult.

Callahan, 

. In holding that the defendant’s waiver of his rights was
voluntary, the Callahan court considered that the defendant was:

       reread his rights and verbally acknowledged that he understood his rights.
       He signed the Miranda forms. Both the atmosphere of the interrogation and
       the defendant’s demeanor were calm. The defendant was permitted to take
       a break and was provided a snack and a soft drink. He possessed above-
       average intelligence and was able to read and write in the language used to
       convey his Miranda rights. The defendant was not under the influence of any
       intoxicants at the time of the waiver and did not appear to be suffering from
       any mental disorders. His demeanor during his statement was calm, polite,
       and cooperative.

                                             16
       In considering the totality of the circumstances in the present case, we look at the
following factors: The Defendant voluntarily accompanied law enforcement to the police
vehicle where he gave his statement. The interview was relatively short, lasting less than
two hours in total. The Defendant was seated in the front of the police vehicle,
unrestrained, and was told he was not in custody. The Defendant indicated that he
understood his rights and had prior dealings with law enforcement, and he never asked for
his mother, who was nearby, to be present. The Defendant requested to speak with one of
the interviewers alone, and the second interviewer exited the vehicle as a result. The
Defendant indicated he was not impaired and appeared sober. The Defendant exhibited an
understanding of what was being asked and did not exhibit any signs of being confused.
The Defendant signed a waiver of rights. He remained cooperative throughout while
gradually revealing what happened inside the victim’s apartment.

        Based on our consideration of the foregoing circumstances, we agree with the State
that the Defendant is not entitled to plain error relief because he has not carried his burden
of showing that there was a clear and unequivocal breach of a rule of law. All the factors
for consideration listed in Callahan, save one, indicate that the Defendant voluntarily
waived his Miranda rights. We acknowledge the fact that the Defendant’s mother was
present inside their apartment but not on the scene when the Defendant gave his statement.
His mother had the right as his parent to be present for the interview or to insist that he not
give one. No such request was made. Because the factors weigh in favor of the
Defendant’s confession being voluntary, we conclude that he is not entitled to plain error
relief on this issue.

                              B. Sufficiency of the Evidence

        The Defendant contends that the evidence is insufficient to support his convictions.
He contends that the State did not present sufficient proof that the Defendant was the
proximate cause of the victim’s serious injuries necessary to sustain his convictions for
especially aggravated robbery and aggravated rape. The State responds that the evidence
is sufficient from which the jury could conclude that the Defendant caused the victim’s
injuries and therefore that the evidence was sufficient to sustain his convictions. We agree
with the State.

       When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 

 (1979) (emphasis in original);
see Tenn. R. App. P. 13(e); State v. Goodwin, 

 (Tenn. 2004) (citing
State v. Reid, 

 (Tenn. 2002)). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of both direct and
                                              17
circumstantial evidence. State v. Pendergrass, 

 (Tenn. Crim. App.
1999) (citing State v. Dykes, 

 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 

 (Tenn. 1973). “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, 

 (Tenn. 2006) (quoting Marable v. State, 

 (Tenn.
1958)). “The standard of review [for sufficiency of the evidence] ‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 

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

 (Tenn.
2009)).

       In determining the sufficiency of the evidence, this court should not re-weigh or
reevaluate the evidence. State v. Matthews, 

 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 

 (Tenn. 1999) (citing Liakas v. State, 

 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 

 (Tenn.
1997). “‘A guilty verdict by the jury, approved by the trial judge, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the theory of the State.’”
State v. Cabbage, 

 (Tenn. 1978) (quoting State v. Grace, 

 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus[,] the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 

 (Tenn. 1966) (citing Carroll v. State, 

 (Tenn. 1963)). This court must afford the State the “‘strongest legitimate view of the
evidence’” contained in the record, as well as “‘all reasonable and legitimate inferences’”
that may be drawn from the evidence. Goodwin, 

 (quoting State v. Smith,

 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. State v. Carruthers, 

 (Tenn. 2000).
                                              18
      As relevant here, aggravated rape is the “unlawful sexual penetration of a victim by
the defendant or the defendant by a victim accompanied by any of the following
circumstances: (1) Force or coercion is used to accomplish the act and the defendant is
armed with a weapon; (2) The defendant causes bodily injury to the victim. T.C.A. § 39-
13-502(a)(1), (2) (2018). Especially aggravated robbery is a robbery accomplished with a
deadly weapon and where the victim suffers serious bodily injury. T.C.A. § 39-13-403(a).

       Our supreme court has held that “causation in criminal cases generally is a question
of fact for a properly instructed jury,” and “a jury’s determination of the causation issue
will be reviewed under the familiar sufficiency of the evidence standard and will not be
disturbed by an appellate court so long as the evidence is sufficient to support the jury’s
determination.” State v. Farner, 

 (Tenn. 2001). The State points
us to our decision in State v. Locke as determinative of this issue. 

 (Tenn.
Crim. App. 1988). The victim in Locke, after being raped by the defendant, jumped from
her second-story apartment unit’s window and suffered serious injury from her fall. 

. The trial court in Locke determined that the victim’s injuries “sustained by her efforts
to escape the wrath of the defendant by jumping from the second floor” were caused by the
defendant. 

.

        The Defendant contends that there was insufficient proof that he was the proximate
cause of the victim’s injuries because she chose to jump out the window, notwithstanding
his criminal behavior at the time she made the decision. He contends that the State did not
demonstrate a “causal relationship” between his conduct and her injuries, and that her
decision to jump was not a “natural and probable consequence of his assaultive behavior.”
We disagree. While the victim’s injuries were a direct result of her choosing to jump out
the window, it is indisputable that her decision to do so was a natural and probable result
of the Defendant’s conduct. The victim stated that she thought the Defendant would kill
her, so she chose the lesser consequence of suffering any injuries that she might sustain
from jumping from her apartment. The Defendant may not have been the sole cause of the
victim’s injuries, but he was certainly the sole cause of the victim’s act of flight, which
caused her to sustain those injuries. For these reasons, we conclude that the evidence was
sufficient from which a rational jury could have concluded that the Defendant caused
bodily injury, sufficient to prove aggravated rape, and serious bodily injury, sufficient to
prove especially aggravated robbery. The Defendant is not entitled to relief.

                                      C. Sentencing

      Lastly, the Defendant contends that the trial court erred when it sentenced him. He
contends that the trial court improperly enhanced his sentences to the maximum allowable
sentence within the applicable range. He also contends that the trial court erred when it
                                             19
imposed consecutive sentences. The State responds that the trial court properly imposed a
within-range sentence. The State points out that the trial court considered the factors
presented and declined to apply several enhancement factors while properly applying
others to justify a sentence greater than the minimum. As to the imposition of partially
consecutive sentences, the State contends that the trial court properly considered the
applicable factors, namely the aggravated circumstances of the crime which occurred while
the Defendant was on probation, as well as his extensive criminal history, and reasonably
determined that consecutive sentences were justified. We agree with the State.

                            1. Enhancement of the Sentences

        “Sentences imposed by the trial court within the appropriate statutory range are to
be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”
State v. Bise, 

 (Tenn. 2012). A finding of abuse of discretion “‘reflects that
the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer,

 (Tenn. 2001) (quoting State v. Moore, 

 (Tenn.
1999)). To find an abuse of discretion, the record must be void of any substantial evidence
that would support the trial court’s decision. Id. at 554-55; State v. Grear, 

 (Tenn. 1978); State v. Delp, 

 (Tenn. Crim. App. 1980). The
reviewing court should uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the purposes
and principles listed by statute.” Bise, 

. So long as the trial court
sentences within the appropriate range and properly applies the purposes and principles of
the Sentencing Act, its decision will be granted a presumption of reasonableness. 

.

       The misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from a trial court’s sentencing decision. 

 A reviewing
court should not invalidate a sentence on this basis unless the trial court wholly departed
from the principles of the Sentencing Act. 

 So long as there are other reasons consistent
with the purpose and principles of sentencing, a sentence within the appropriate range
should be upheld. 

        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; (7) any
                                             20
statement the defendant made in the defendant’s own behalf about sentencing; and (8) the
result of the validated risk and needs assessment conducted by the depart and contained in
the presentence report. See T.C.A. § 40-35-210 (2019); State v. Taylor, 

 (Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2019).

        We conclude that the trial court properly sentenced the Defendant. The trial court
carefully considered the relevant principles and sentenced the Defendant to a within range
sentences for each of his crimes. The trial court applied enhancement factor (6), that the
victim suffered injuries that were particularly great, based on the severe injuries sustained
by the victim, her lengthy hospital stay, trouble with physical mobility, and complicated
childbirths. T.C.A. § 40-35-114(6) (2019). The trial court applied enhancement factor (9),
that the Defendant brandished a knife while committing the crime, and enhancement factor
(13), that the Defendant was on probation when he committed the offense. T.C.A. § 40-
35-114(9), (13). All of these factors were supported by the evidence presented at trial and
contained in the presentence report. As such, the appropriate application of enhancement
factors supports the trial court’s sentencing decision. The Defendant is not entitled to relief
on this issue.

                                2. Consecutive Sentencing

       Where a defendant is convicted of one or more offenses, the trial court has discretion
in determining whether the sentences shall be served concurrently or consecutively. T.C.A.
§ 40-35-115(a). “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to consecutive sentencing determinations.” State v. Pollard, 

 (Tenn. 2013). A trial court may order multiple offenses to be served
consecutively if it finds by a preponderance of the evidence that a defendant fits into at
least one of the seven categories in Code section 40-35-115(b). This court must give
“deference to the trial court’s exercise of its discretionary authority to impose consecutive
sentences if it has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” Pollard, 

. When imposing consecutive sentences, the court must still consider the general
sentencing principles that each sentence imposed shall be “justly deserved in relation to the
seriousness of the offense,” “no greater than that deserved for the offense committed,” and
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. §§ 40-35-102(1), -103(2), -103(4); State v. Imfield, 

(Tenn. 2002). “So long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard, 

 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 

).
                                              21
       Here, the trial court found that consecutive sentencing was proper, pursuant to
section 40-35-115(b)(2), because the Defendant had a record of extensive criminal activity,
including six offenses which would be considered felonies. The trial court also determined
that consecutive sentencing was proper based on the Defendant’s excessively violent
actions towards the victim which warranted the application of the dangerous offender
factor. 

 § 40-35-115(b)(3). We agree. The Defendant is not entitled to relief as to this
issue.

                                     III. Conclusion

     In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.



                                                  ________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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