Based on evidence that he inserted his finger into the vagina of a 15-year-old girl and masturbated in front of her, Noel Ellison, who was 37 years old at the time of the incident, was convicted of aggravated sexual battery and child molestation. Ellison was acquitted of a second count of aggravated sexual battery, in which he was charged with penetrating the victim’s anus. Ellison was sentenced to an aggregate of 20 years to serve 12 in confinement. He filed a motion for new trial on January 10, 2005, which newly appointed appellate counsel amended on May 16, 2008. The motion was denied following an evidentiary hearing. On appeal, Ellison argues that the trial court erred in denying his motion to suppress his statement, in denying his claim of ineffective assistance of counsel, in permitting the jury to hear that he was a recidivist after the verdict was announced, and in excluding evidence of the victim’s dress and demeanor on the evening of the incident. Finding no error, we affirm. 1. Ellison challenges the denial of his motion to suppress his custodial statement. In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal.1 At the Jackson-Denno hearing, Detective D. L. Brewster testified that after he interviewed the victim and other witnesses in this case, he secured an arrest warrant for Ellison. Brewster learned that Ellison was at work at a Holiday Inn, so Brewster proceeded there to talk to him. Ellison was called to the lobby and agreed to speak with Brewster, who was accompanied by another detective. Ellison led the detectives to his office. Brewster asked whether Ellison knew the victim and explained the allegations she made against him. Brewster then stated that he had an arrest warrant for child molestation, and he placed Ellison under arrest. While walking Ellison out the back door through a breezeway, Brewster read him his Miranda rights. After placing Ellison in the vehicle, Brewster asked Ellison whether he wanted to make a statement. Ellison said that he did. Brewster took a videotaped statement at the station. In the statement, Ellison said he had placed his finger inside the victim’s vagina “about to the second knuckle” and then placed his hands on his erect penis. He did not admit that he had been masturbating.
Brewster testified that he did not promise Ellison anything in return for making his statement; that he did not coerce or threaten Ellison; that Ellison was cooperative; that he never refused to answer any questions; that he did not invoke his rights to counsel or to remain silent; that Brewster removed Ellison’s handcuffs at the station; and that the statement took about an hour. Brewster also testified that before he informed Ellison about the arrest warrant, Ellison did not ask to leave. The trial court found from a preponderance of the evidence and based on the totality of the circumstances that the statement was freely and voluntarily made. As the evidence adduced at the hearing supported the trial court’s ruling, that ruling was not clearly erroneous.
