State of Tennessee v. Jonathan Wade Rosson ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 8, 2011 Session
STATE OF TENNESSEE v. JONATHAN WADE ROSSON
Direct Appeal from the Circuit Court for Coffee County
No. 36418 Vanessa Jackson, Judge
No. M2010-01361-CCA-R3-CD- Filed May 18, 2012
On March 20, 2009, the defendant, Jonathan Wade Rosson, was convicted of solicitation of
a minor to commit aggravated statutory rape, a Class E felony. He was sentenced to two
years, with 120 days to be served in confinement in the county jail and the remainder to be
served in community corrections as a condition of probation. The defendant appeals his
conviction and sentence on numerous grounds, claiming that: (1) the evidence was
insufficient to support his conviction; (2) he was deprived of a fair trial by the State’s failure
to preserve all of the videotape footage taken by all of the surveillance cameras located in the
building where the incident occurred on the day in question; (3) the trial court erred by
admitting copies of videotape footage preserved from two surveillance cameras into
evidence; (4) the statute under which he was convicted is unconstitutionally vague, both
facially and as applied to him; and (5) a state law rendering him ineligible for work release
programs while serving his sentence that was enacted after the commission of his offense
violates the Ex Post Facto Clause of the U.S. Constitution by virtue of retroactively
increasing the punishment for his crime. After carefully reviewing the record, the relevant
laws and precedent, and the arguments of the parties, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.
Perry A. Craft, Brentwood, Tennessee, for the appellant, Jonathan Wade Rosson.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Charles Michael Layne, District Attorney General; and Jason M. Ponder, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant was indicted by the Coffee County Grand Jury on April 8, 2008, on one
count of solicitation of aggravated statutory rape in violation of Tennessee Code Annotated
section 39-13-506(c). This charge stemmed from events that occurred at the D.W. Wilson
Community Center (the “Center”) in Tullahoma, Tennessee, on November 21, 2007. The
defendant, an estimator for a construction company, toured the building on that date to
collect information and take notes in order to prepare a bid on certain parts of a two-million-
dollar renovation project for the center. The defendant was tried before a jury on March 19-
20, 2009, at which time the parties presented the following evidence:
The victim in this case took the stand near the end of the trial and testified that he had
been friends with another witness (hereinafter referred to as the “victim’s friend”) since the
sixth grade.1 He testified that on November 21, 2007, he went to this friend’s house and the
two left to play basketball together at the D.W. Wilson Community Center. While they were
playing, they saw some individuals walking through the gym carrying notepads and flip
folders. The victim testified that he did not pay any attention to these people. At one point,
the victim looked toward the door of the gym and saw the defendant standing in the doorway,
motioning for him to come over. He complied, exiting the gym and entering the adjacent
hallway.
The victim testified that once he was in the hallway, the defendant asked him how old
he was. The victim testified that he replied that he was thirteen. The victim testified that the
defendant asked him if he played basketball. He replied that he played for the school’s team,
West Middle. The victim testified that the defendant asked him if he “ever had a blow job.”
The victim testified that he responded “What?” The defendant then said “a blow job, do you
want one?” The victim testified that he was positive that the defendant used those exact
words. The victim testified that following this exchange, he backed up slowly and ran out
the hallway door back into the gymnasium. He testified that he yelled to his friend, who was
still playing basketball, to “run.” He testified that the two ran out a door and went to his
friend’s house.
On cross-examination, the victim testified that he did not know how many people
were in the Center’s gymnasium on that day. Defense counsel then attempted to impeach the
victim’s direct testimony with a prior statement the victim had made to the police, in which
1
Following policy of the court, we will not identify by name a minor victim of or minor witness to
a sex crime.
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the victim stated that the defendant “called,” rather than “motion[ed],” for him to come over.
Defense counsel also pointed out that the victim’s statement to police did not contain any
mention of the fact that he told the defendant that he played basketball for West Middle.
Defense counsel drew attention to the fact that the victim had told police in his statement that
he and his friend had run “home,” when, in fact, they had gone to his friend’s house. The
victim attempted to explain this discrepancy by testifying that his friend’s house was “pretty
much [his] second home.” When defense counsel asked the victim if he had ever heard of
a “bid job,” the victim replied that he had heard of the words “bid” and “job.” Finally,
defense counsel asked if the victim had ever been mistaken about important things in his life,
and the victim stated “maybe.”
On re-direct examination, the victim testified that he spent nearly every weekend at
his friend’s house. He testified that he had spoken with people who chewed tobacco before,
that he could normally tell when someone had tobacco in their mouth, and that he did not
notice any tobacco in the defendant’s mouth on the day of the incident. He testified that the
defendant’s speech was not slurred and that the noise level in the hallway was not such that
he had a difficult time hearing the defendant. The victim also verified his prior statements
to police, which were entered into evidence. On re-cross examination, the victim testified
that he had never met the defendant before the day of the incident and that he was not
familiar with the defendant’s voice.
Prior to soliciting the victim’s testimony, the State had called Harry Conway, an
investigator for the Tullahoma Police Department, to the stand as its first witness. Officer
Conway testified that on November 21, 2007, he received a call from his supervisor to
respond to the D.W. Wilson Community Center to investigate an allegation of a sex crime.
Officer Conway testified that when he arrived, he went immediately to the office area of the
building and spoke with several individuals there, including: the victim and his mother; the
victim’s friend and his friend’s father; Mr. Kurt Glick (the Director of the City of Tullahoma
Parks and Recreation Department); and Mr. J.P. Kraft (the City Forester of the City of
Tullahoma Parks and Recreation Department). He asked several of these individuals to give
written statements regarding what had transpired. Afterward, he and Mr. Kurt Glick
reviewed some surveillance camera footage and identified the defendant, Mr. Rosson, as the
individual appearing in that footage. From the stand, Officer Conway identified the
defendant in open court as Mr. Jonathan Wade Rosson, the man appearing in the surveillance
camera footage.
Officer Conway testified that during the course of his investigation, he had discovered
that the defendant was ostensibly in the building that day for purposes of conducting a “pre-
bid” inspection of the Center and that he had signed a “pre-bid” sign-in sheet that had been
put out for all of the contractors and employees of businesses that intended to make a bid.
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Officer Conway testified that the sign-in sheet bore the defendant’s signature, Wade Rosson.
By entering that name into the Tennessee driver’s license database, Officer Conway was able
to locate the defendant’s drivers license and make a positive identification of the defendant
from his driver’s license photograph. Using the phone number left by the defendant on the
sign-in sheet, Officer Conway testified that he called the defendant on his cell phone and
asked him to return to the D.W. Wilson Center. Officer Conway testified that the defendant
refused, claiming that he had traveled too far away from the building to turn around. Officer
Conway testified that he placed this phone call between 11:15 and 11:30 a.m.
Officer Conway testified that during his investigation, he reviewed surveillance video
footage from the building with the assistance of Mr. J. P. Kraft. Officer Conway testified
that he initially asked Mr. Kurt Glick for assistance who, in turn, called Mr. J.P. Kraft to
come into the office and operate the computer screen, pulling up different camera angles and
showing everything inside the building. Officer Conway focused his search on camera
footage that showed interaction between the defendant and either the victim or his friend.
Officer Conway testified that as he was reviewing the video footage, he came across various
places where there was interaction between the defendant and the two boys. Officer Conway
testified that he instructed Mr. Kraft to use the computer to “burn” a DVD containing those
portions of the surveillance video footage. Officer Conway testified that there was a
considerable amount of additional video footage that showed the defendant, other contractors
and architects, recreational staff, and other individuals walking around the facility that was
not “burned” to this DVD.
After taking statements from several witnesses and instructing Mr. Kraft to preserve
selected segments of videotape, Officer Conway returned to the police department and again
contacted the defendant by phone to verify the information appearing on his driver’s license.
Following this phone call, Officer Conway sought and received a warrant for the defendant’s
arrest. Officer Conway and a second investigator, Officer Jason Kennedy, then traveled to
the defendant’s residence in Lawrenceburg, Tennessee, to serve the warrant. When they
arrived, the defendant was not at home.
Officer Conway testified that the officers spoke with the defendant’s wife, Mrs.
Rosson, and informed her of the charge against the defendant. Upon hearing that the charge
was solicitation to commit aggravated statutory rape, Mrs. Rosson asked the officers, “was
it a boy or [a] girl?” The officers told Mrs. Rosson that they could not answer that question
and then asked her, “Has Mr. Rosson behaved strangely before?” The defendant’s wife
ignored the question, and when the officers asked her a second time, she stated, “I don’t want
to talk about it.”
Eventually, the defendant arrived at his home, and the officers arrested him. Officer
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Conway testified that the defendant was advised of his Miranda rights, placed in the back of
a police vehicle, and escorted back to Tullahoma. During this trip, the defendant waived his
Miranda rights and spoke with the officers. Officer Conway asked the defendant, and the
defendant confirmed, that he had been at the D.W. Wilson Community Center during the
pre-bid process. Officer Conway asked the defendant if he had spoken to anyone under the
age of eighteen, or who was a minor, while he was at the Center. The defendant told Officer
Conway that he had not. Following these questions, the two conversed about various other
subjects before Officer Conway asserted to the defendant that he had, in fact, made a
comment to a minor while he was at the Center. The defendant denied making any such
comment. At one point, the defendant asked Officer Conway, “has this got to do with taking
pictures?” Officer Conway replied that it did not.
Officer Conway testified that he asked the defendant if he would be willing to provide
a written statement to the police when they arrived at the police department, and that the
defendant agreed and did so. The State then introduced into evidence a photocopy of the
defendant’s statement to the Tullahoma Police Department, along with his written waiver of
the Miranda warnings. Officer Conway testified that after the defendant signed his written
statement, he handed the defendant a copy of his arrest warrant and the accompanying
affidavit and allowed him to read it. At some point while reading this statement, the
defendant looked up and said, “Videotape? Videotape?” At that point, Officer Conway
testified that the defendant became very upset and refused to talk any further. Officer
Conway concluded his direct testimony by stating that during his investigation, he had been
able to determine the exact location of the verbal exchange between the defendant and the
victim, and that this location was in Coffee County, Tennessee.
On cross-examination, Officer Conway testified that he directed Mr. Kraft to copy
only certain specific video surveillance footage related to the interaction between the
defendant and the victim or his friend. He did not instruct Mr. Kraft to preserve all of the
video surveillance footage that was available on the computer. Officer Conway also testified
that he had no idea how many people might have entered the hallway next to the gymnasium
during the pre-bid process. Officer Conway testified that, on the day of the alleged crime,
the defendant may have driven a pickup truck with his company’s name and telephone
number written on the side of it. Officer Conway confirmed that the defendant had signed
the pre-bid meeting sign-in sheet on the day of the alleged crime using his real name and his
actual company and telephone number and that Officer Conway did, in fact, use the
telephone number listed on that sheet to contact the defendant.
Officer Conway also testified that, for the duration of the ninety-minute drive back
to the Tullahoma police station, the defendant was seated with his hands cuffed behind his
back and that sitting in this position would not have been comfortable. Officer Conway
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testified that although he had the means available to him to record the entire conversation he
had with the defendant during that drive back, he chose not to do so. Officer Conway also
testified that he had the capability and the discretion to record the conversation that he had
with the defendant at the police station on the night of his arrest and that he had elected not
to record that conversation as well. Officer Conway testified that it was his understanding
from Mr. Kraft that the video surveillance system in place in the Center did not have an audio
component. Officer Conway testified that during his review of the video, there was no
indication that any touching had occurred between the defendant and any of the juveniles.
On redirect examination, Officer Conway testified that there were more than ten
cameras in operation at the building on the day of the alleged incident. Officer Conway
testified that approximately half an hour elapsed between the time the first contractors arrived
at the Center and the last segment of time that was preserved in the DVD of the video
surveillance footage. Officer Conway testified that under the facts of the case, he did not
deem it necessary to review the full six to ten hours of video surveillance footage from each
camera. Officer Conway testified that he did not cut anything out of the video surveillance
footage that he retrieved or leave out anything from the footage he preserved that would have
been helpful to either the defense or the prosecution in this case. The State then questioned
Officer Conway regarding testimony that the defendant had given at a previous hearing.
Officer Conway read portions of the transcript of that prior hearing into the record. In those
portions, the defendant stated that: (1) he was not given a copy of the arrest warrant on the
evening of his arrest; (2) he was not informed on the evening of his arrest that there was
video surveillance footage of him; and (3) he never got angry on the night of his arrest. The
witness read further testimony from the defendant in which the defendant asserted that even
after seeing the video surveillance footage, he still could not remember having had a
conversation with the victim on the date in question, notwithstanding the fact that, in his line
of business, he did not come in contact with a lot of children.
Next, the State presented the testimony of Mr. Kurt Glick, the Director of Parks and
Recreation (the “department”) in Tullahoma. Mr. Glick testified that the D.W. Wilson
Community Center was a thirty-year-old facility that was scheduled to undergo a major
renovation at the time of the alleged incident. He testified that the Center had an indoor
swimming pool, an outdoor swimming pool, a gymnasium, some meeting rooms, and a
weight room. He testified that in November of 2007, the department held a pre-bid meeting
concerning the renovation, during which the department took various contractors around the
building and showed them the site. Mr. Glick testified that approximately fifteen individuals
attended this meeting, along with a few of his own staff members. He testified that the
defendant attended this meeting and, at some point, took a walk-through of the Center. He
testified that the Center was not crowded on the day of the meeting and that the noise level
in the hallway where the incident allegedly occurred was not high. He further testified that
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during the time he spent with the defendant on that day, the defendant was not chewing
tobacco. Mr. Glick testified that if he had noticed the defendant chewing tobacco he would
have instructed him not to do so because a city ordinance prohibited the chewing of tobacco
in the facility.
Mr. Glick testified that at some point just before lunch on the day in question, he was
informed that an incident had occurred in the building. An individual who worked with him
for the City of Tullahoma pulled up to the facility in a vehicle and had two boys with him.
Mr. Glick testified that the group went into his office to examine the surveillance footage and
to try and identify the individual involved in the incident. Mr. Glick testified that he called
Mr. Kraft into the office to operate the video system. He testified that some police officers
also arrived. He testified that he went in and out of the office as the officers conducted their
investigation and the group reviewed the video surveillance footage and that nothing he
viewed during this time led him to believe that any evidence had been destroyed or hidden
during the ensuing investigation.
On cross-examination, Mr. Glick verified, and defense counsel entered into evidence,
various drawings and schematics of the D.W. Wilson Center before its renovation. The
witness also verified, and defense counsel entered in the evidence, the sign-in sheet from the
pre-bid meeting, which listed the defendant by his name and contained his company name
and telephone number. Mr. Glick testified concerning a number of different contractors and
subcontractors who had attended the pre-bid meeting. The witness testified in great detail
concerning the scope, difficulty, and intricacy involved in the overall renovation. Mr. Glick
testified that prior to the incident, while he was walking through the gymnasium, he told two
boys who were playing basketball to stop because he wanted it to be quieter while he was
talking. The witness also testified that there was noise being generated by various vending
and other machines in the building and hallway where the incident occurred. The witness
testified as to the location of various video cameras in the building and stated that he was not
aware precisely which cameras were working on the day of the incident. The witness
testified that the video surveillance footage taken by the Center’s surveillance cameras was
saved on a computer hard drive located in the office for thirty days. The witness testified that
if anyone had instructed him to do so, he would have saved all the surveillance footage from
all of the cameras that were operating on that day, assuming it was possible to do so. The
witness also testified that it was common for people in the gymnasium and other areas of the
recreational center to make noise.
The next witness to testify for the State was Mr. J.P. Kraft, the City Forester of the
City of Tullahoma Parks and Recreation Department. Mr. Kraft testified that he had worked
for the city for approximately three years and maintained an office in the D.W. Wilson
Community Center. He testified that he was present in the building but did not attend the
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pre-bid meeting. At some point on the day of the incident, he was requested to come to the
front office to review security camera footage. Mr. Kraft testified that the video surveillance
footage at the Center was recorded by a computer and was kept on a hard drive for thirty
days. Mr. Kraft testified that the Center had thirteen surveillance cameras, that those cameras
were motion activated, and that the cameras operated twenty-four hours a day. Mr. Kraft
testified that any motion would activate the cameras, such as a car driving down the street,
a person walking, or a tree limb blowing, and that as long as there was motion, the cameras
would record. Mr. Kraft testified that he was the one who copied selected video surveillance
footage from the office computer’s hard drive to a DVD. He testified that when using the
computer to “burn” the video camera footage to a DVD, a person could select a start time and
end time for the video and move the entire selected piece, but that it was not possible to move
either more or less than the full footage for the period of time selected. He testified that he
had copied the two video segments that appeared on the DVDs in their entirety, and that the
videos appearing on the DVDs were a full, fair and accurate depiction of the footage he had
removed from the building’s computer. Mr. Kraft testified that in the video surveillance
footage that was saved to the DVDs, there were small time lapses and jumps in the video and
that these skips and jumps were the natural result of the motion sensors.
The State then attempted to enter the two DVDs made by Mr. Kraft into evidence.
The defense objected and sought and received permission to cross-examine the witness
before the videos were admitted. During this cross-examination, the witness admitted that
every skip, jump, and fast-forward appearing in the videos was not the result of the motion
sensors. The witness admitted that he was unsure of the cause of some of the skips, jumps,
and fast-forwards appearing in the video and that he had no explanation for why the video
would “freeze” on occasion. The witness testified that the original computer hard drive no
longer existed and that there was presently no way to check the original surveillance camera
footage against the DVDs that he had copied and burned.
Following this cross-examination, the DVDs were entered into evidence over the
defense’s objection, and the jury viewed the videos. As the direct examination resumed, the
witness testified that none of the cameras in the Center possessed audio capabilities. The
witness testified that as far as he knew, every camera in the building was working on the day
of the incident. The witness testified that one video appeared to show a young man, the
victim, walk out of the gymnasium and into the adjoining hallway to speak with the
defendant. The witness testified that there was a second camera that was operable that day
that would have shown the same area but that he did not save the footage from that camera.
The witness identified footage from another camera, located in the gymnasium, that appeared
to show the victim exiting the gymnasium, reentering shortly thereafter, and running toward
the back door. A moment later, that same video showed the defendant exiting the back door.
The witness testified that he reviewed all the video footage from all the cameras on the day
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of the incident and that, after leaving, the defendant did not reappear on any of the building’s
video surveillance footage. The witness testified that he believed that the video footage that
had been shown to the jury was a full and fair depiction of what had happened on the day in
question and that nothing relevant had been left out.
On cross-examination, Mr. Kraft testified that there was a second operational camera
in the gymnasium and numerous other operational cameras that would have shown different
perspectives of the activity before, during, and after the incident on the day in question. The
witness testified that he could not identify everyone who appeared in all of the footage from
all thirteen cameras on the day of the incident. He testified that he was the person who
selected the camera footage and time of each video that was saved to the DVDs. He testified
that the police did not instruct him regarding precisely what footage to select, nor did they
instruct him to save all of the footage from all of the cameras. He testified that had the police
instructed him to do so, he would have saved all of the footage from every camera on the day
in question. Following this testimony, defense counsel reviewed the two videos that were
shown to the jury in extreme detail with the witness and questioned him regarding various
skips and jumps appearing in those videos. The witness generally testified that he could not
explain the various skips and jumps appearing in the videos and occasionally speculated that
they might have resulted from the motion activated nature of the cameras. The witness
ultimately admitted that because people do not stop, skip, or freeze in real life, the video
footage that had been shown to the jury was not an accurate depiction of what had occurred
on the day in question. The witness also extensively discussed what additional areas could
have been viewed from other camera angles had all of the surveillance footage from all of
the cameras been preserved. The witness testified that he did not know how long it would
have taken for him to burn all of the video footage from all thirteen cameras to DVDs, but
he indicated that he did not believe that it would have been an all-day job. He further
testified that nothing prevented him from copying the footage from every camera. After
giving this testimony, the witness verified, and the defense entered into evidence, a sheet
stipulating the length of the footage of the two videos that had been burned to DVDs and the
numbers of skips and fast-forwards that appeared on each video.
The State’s next witness was Mr. Joe Brown, the Public Service Officer at the
Tullahoma High School. Officer Brown testified that he had been in law enforcement for
thirteen years and that he was the father of the victim’s friend. He testified that the victim
and his son were good friends. He testified that on November 21, 2007, both boys asked him
for permission to go to the D.W. Wilson Community Center, which he granted. He stated
that the boys left his house at approximately 10:00 a.m. and that he saw them again forty-five
minutes later. He testified that when the boys returned, they ran through the door together
and that they appeared to be agitated and scared. He testified that the victim told him that
he needed to come back to the Center because something had happened. He further testified
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that his son told him that someone had tried to do something to the victim at the gym.
Specifically, a man had approached the victim and asked him if he wanted a “blow job.”
Officer Brown testified that he returned to the Center and apprised certain individuals
there of the situation. He unsuccessfully attempted to locate the individual that had spoken
to the victim based on a general description of the individual’s clothing. He then called the
police, and Investigator Harry Conway responded. Officer Brown testified that one of the
employees at the Center provided an initial tentative identification of the defendant based on
a description provided to her by the boys. He then walked back into the office where Mr.
Kraft was looking at the security camera footage on a computer. Sometime later, Mr. Kraft
announced that he had found a man matching the description provided by the boys, and he
reviewed the video footage of the incident. Officer Brown testified that he took the boys
home after Officer Conway finished interviewing them.
On cross-examination, Officer Brown testified that when he viewed the video footage
on the computer, he did not notice any skips, jumps, or fast-forwards. He testified that he,
his son, Mr. Kraft, Mr. Glick, Mr. Conway, and the victim were all in the office at various
points while the security camera footage was being reviewed.
The State’s next witness was the victim’s friend, who testified that he was thirteen
years old, that he attended West Middle School, and that he was in the eighth grade. The
victim’s friend further testified that on November 21, 2007, he was playing basketball in the
gym at the D.W. Wilson Community Center with the victim. The victim’s friend testified
that he had seen the two videos that had been shown to the jury that were taken by
surveillance cameras at the Center that morning, and he identified himself as one of the two
boys playing basketball on that footage. He testified that at some point while they were
playing, he saw the defendant in the gymnasium, looking at the floor and at the ceiling.
Later, he saw the defendant at the door to the gym that led into the adjoining hallway. The
victim’s friend testified that the defendant gestured to him with his finger to come over but
that he assumed this gesture was intended for someone else and ignored it. Afterward, he
saw the victim exit the gym through the door where the defendant was located. A few
seconds later, he saw the victim “bust” through the door and run back into the gym. The
victim’s friend testified that the victim was very scared when he re-entered the gym and that
the victim told him to grab his stuff and come with him. He testified that he ran after the
victim and that the two left the Center and went down the street. At some point afterward,
the victim became afraid that a car was following them and told him to hide behind an air
conditioning unit at a nearby house. The victim’s friend testified that while they were hiding
the victim told him what had happened. At that point, the boys went to his house and told
his father what had transpired.
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On cross-examination, the victim’s friend admitted that: (1) he did not know how
many people were in the gymnasium that day; (2) he was not present in the hallway when the
incident occurred; (3) he never exchanged words with the defendant and could not identify
his voice; (4) he never got closer to the defendant than thirty or forty feet; and (5) everything
he knew about the incident was based on what the victim had told him.
Following this testimony, the State rested. The defense moved for a judgment of
acquittal on the grounds that (1) the conduct at issue did not come under the ambit of the
statute, and (2) his client’s ability to put forth a defense had been jeopardized by the failure
of the police to preserve all of the video surveillance footage. The trial court denied the
motion.
The defense presented the testimony of Ms. Lori Ann Worthington, a client manager
for an architectural and engineering company who attended the pre-bid meeting on the date
in question. Ms. Worthington testified that approximately fifteen to seventeen people
attended that meeting. She identified some pictures that had been taken of the building,
which were admitted into evidence. She testified that following the pre-bid meeting, all of
the contractors were taken on a tour of the building. The witness was shown portions of the
video camera surveillance footage that had been entered into evidence and identified herself
when she appeared on the tape.
The witness was cross-examined by the State concerning some of the pictures that had
been entered into evidence and testified that the pictures, which showed “some pretty
messed-up metal,” reflected some damage that had occurred to the structural frame of the
indoor swimming pool. The witness further testified that one of the major problems with
the D.W. Wilson Community Center at the time was that the indoor swimming pool had been
closed because the structure was in danger of collapse. The witness said this was a major
portion of the project and that, while her firm refinished the gymnasium floor, painted the
walls, and installed new lights, they probably spent less than one-fifth of their time on that
day talking about the gymnasium. She testified that she measured the hallway adjoining the
gymnasium on the day in question and that, when she finished her measuring and walked out,
the only person left in the hallway was the defendant. On re-direct examination, the witness
testified that she did not remember everyone who was at the meeting that day and did not
remember every conversation she had on that day.
The defense also read into the record portions of testimony given at a prior hearing
by a witness named Mr. Bob Shane. Mr. Shane’s testimony was that he was an engineer for
an electrical subcontractor and that he had attended the pre-bid meeting at the D.W. Wilson
Community Center on the date in question. He stated that he had worked with the defendant
and his company, Clanton Construction, on prior occasions. Mr. Shane stated that he
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accompanied the defendant during a portion of their post-meeting tour and stated that they
talked about various construction-related topics. He testified that on the day of the incident,
the defendant was wearing a shirt that said “Clanton Construction” on it. The witness stated
on cross-examination that he did not see the defendant with any boys on the day of the
meeting and that he was not there when the defendant met with the boy shown on the video.
After this testimony had been read into the record, the defendant was advised of and
waived his right to testify in his own defense pursuant to the procedures described in Momon
v. State, 18 S.W.3d 152, 162-64 (Tenn. 1999). Following the usual Momon dialogue, the
parties made closing arguments and the jury was charged. The jury retired to begin
deliberations at 2:36 p.m., conveyed a question to the court that was subsequently addressed
in open court, retired again to deliberations, and returned at 4:15 p.m. with a verdict finding
the defendant guilty of solicitation to commit aggravated statutory rape as charged.
On June 26, 2009, the defendant was sentenced to “two (2) years in the Coffee County
Jail, split confinement for 120 days, balanced to be served with community corrections as a
condition of probation. In addition, the Court is not opposed to work release.” The
defendant filed timely motions for a judgment of acquittal and for a new trial, which were
denied by the trial court on May 18, 2010. The defendant filed a timely notice of appeal,
which we now address on the merits.
ANALYSIS
The defendant raises five issues in his appeal. First, he claims that the evidence
adduced at trial was insufficient to support his conviction. Second, he claims that he was
deprived of a fair trial by the State’s failure to preserve videotape footage taken by all of the
Center’s surveillance cameras on the day in question. Third, he claims that the trial court
erred by admitting into evidence two DVDs containing videotape footage selected from two
of the Center’s many surveillance cameras. Fourth, he claims that the statute under which
he was convicted is unconstitutionally overbroad and vague in violation of the Due Process
Clause of the United States Constitution and its state counterpart, both facially and as applied
to him. Finally, the defendant challenges the terms of his sentence, claiming that a state law,
passed after the commission of his offense and rendering him ineligible for work release
programs, violates the Ex Post Facto Clause of the United States Constitution. For the
reasons that follow, we deny each of these claims and affirm the judgment of the trial court.
I.
The defendant’s first claim – that the brief verbal exchange at issue did not constitute
a persuasion, invitation, or attempt to induce the victim into a sex act – is tantamount to a
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challenge to the sufficiency of the evidence used to convict him. “Because a verdict of guilt
removes the presumption of innocence and raises a presumption of guilt, the criminal
defendant bears the burden on appeal of showing that the evidence was legally insufficient
to sustain a guilty verdict.” State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). After examining all of the evidence in the light
most favorable to the State and asking whether any rational trier of fact could have found the
essential elements of the crime in question beyond a reasonable doubt, as we are required to
do when resolving a defendant’s sufficiency of the evidence challenge, see id., we conclude
that the defendant has failed to overcome the presumption of guilt.
The defendant was convicted of violating Tennessee Code Annotated section 39-13-
528(a), solicitation of a minor, which renders it a crime “for a person eighteen (18) years of
age or older, by means of oral . . . communication . . . to intentionally command, request,
hire, persuade, invite or attempt to induce a person whom the person making the solicitation
knows, or should know, is less than eighteen (18) years of age . . . to engage in conduct that,
if completed, would constitute a violation by the soliciting adult” of several specifically-
enumerated sex crimes. One of those crimes is aggravated statutory rape, defined as
“unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim
when the victim is at least thirteen (13) but less than eighteen (18) years of age and the
defendant is at least ten (10) years older than the victim.” T.C.A. 39-13-506(c). The
defendant does not dispute that performing a “blow job” on the victim would violate section
39-13-506(c), based on the nature of the sex act at issue and the parties’ respective ages.
Rather, the defendant argues that the State failed to prove that his conduct constituted
solicitation.
The defendant’s argument is that the victim’s testimony that the defendant asked him
“Have you ever had a blow job?” and “Would you like one?” was insufficient to establish
that a solicitation occurred. In the opinion of this court, however, not only are such
statements sufficient evidence to support a conviction for solicitation, taken together they
constitute a classic example of solicitation to commit the type of sex crime at issue.
Heard either alone or in the context of a conversation, the words “[w]ould you like [a
blow job]” could be reasonably construed both as an invitation to receive oral sex and an
attempt to induce the listener to receive oral sex. Furthermore, in only the rarest of instances
could such words reasonably be understood as serving any other purpose. The defendant
argues that both the rule of lenity and strict construction of the statute at issue require that
the terms “invitation” and “attempt to induce” be interpreted in the narrowest possible sense
and that urges that these terms do not forbid the mention of the words “blow job” to a minor.
But the victim’s testimony established that this defendant did more than let the words “blow
job” slip in the course of casual conversation with a minor. The victim’s testimony was that
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the defendant asked him if he wanted one.
The defendant makes much of the fact that the evidence adduced at trial established
that the conversation at issue took less than twenty seconds and strongly implies that this
period of time is too brief for the defendant to have committed such a serious felony.
However, the elements of section 39-13-528(a) do not embrace any temporal requirement;
there is no discrete period of time too brief to permit an individual to commit an unlawful
solicitation so long as the individual’s conduct satisfies all of the requisite statutory elements.
The defendant also urges this court that the mere act of asking whether someone wants
a blow job cannot be reasonably construed as an offer by the speaker to provide one.
However, in this case the court is not confronted with a situation in which the defendant
chose vague or discrete words with which to convey his unlawful desires. The victim
testified that the defendant solicited him in the most direct of possible terms.
Viewing the victim’s testimony in the light most favorable to the State, a reasonable
jury could have found that the defendant solicited the victim to engage in aggravated
statutory rape when he asked the victim if he wanted a “blow job.” The defendant’s claim
is therefore denied.
II.
The defendant claims that the State violated his federal and state constitutional rights
by failing to preserve all of the remaining footage from the two cameras used to create the
DVDs that were entered into evidence by the prosecution as well as all of the video footage
taken by eleven other surveillance cameras on the day of the alleged incident – including the
footage from a second camera located in the gymnasium and a second camera located in the
adjoining hallway where the incident occurred, which presumably would have shown the
same incident from different angles. The State responds that the defendant has waived
appellate review of this issue by virtue of his failure to prepare an adequate record. Even if
not waived, the State argues that the defendant has failed to show any exculpatory evidence
was lost or destroyed.
We first address the issue of waiver. A party seeking appellate review of an issue has
a duty to prepare a record that conveys a “complete account of what transpired with respect
to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn.
1993). The defendant initially raised his claim concerning the State’s failure to preserve
evidence in the trial court by filing a “Motion in Limine: Missing Evidence.” He raised the
issue again in his motion for new trial. The defendant included in the record a copy of the
trial court’s brief written order denying his motion for a new trial.
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However, the defendant neglected to include in the appellate record a copy of any
transcript from any hearing that may have been held on his motion in limine. The defendant
also did not include the transcript of the hearing on his motion for a new trial. Lacking these
transcripts, some danger exists that this court might misconstrue the trial court’s reasons for
denying the defendant’s claim. The defendant assumed a strong risk that this court would
find waiver when he failed to include either transcript. However, because the defendant
clearly preserved the issue itself in his motions and on appeal, because the trial transcripts
that the defendant did include in the record contain extensive discussion between the parties
and the trial court on this issue, and because the issue involved is one of pure law, we deem
this record sufficiently complete to avoid waiver on this occasion.
Concerning the merits of the defendant’s claim: When the State’s failure to preserve
allegedly exculpatory evidence is at issue, the key issue is whether, in the context of the
entire record, the defendant received a fundamentally fair trial. See State v. Ferguson, 2
S.W.3d 912, 914, 918 (1999). Resolution of this issue is a two-step process. See id. at 917-
18. First, a court must ascertain whether the State had and breached a duty to preserve the
evidence. If a court determines that the State had a duty to preserve evidence and that duty
was breached, then the court must proceed to the next step: determining the consequences
of that breach, bearing in mind the degree of negligence involved, the significance of the
destroyed evidence in light of available substitute evidence, and the sufficiency of other
evidence used at trial to support the conviction. Id.
Reasonable minds might question whether the State had any duty to preserve the
videotape footage taken by all of the Center’s cameras on the day in question – footage
whose only alleged exculpatory value was that it did not show the defendant stalking the
victim, waiting until the victim was alone before approaching him, or otherwise lurking about
the Center absent a lawful purpose. We opt to follow the example set by our supreme court
in Ferguson. In that case, although the court found the missing evidence at issue in that case
to be of “tenuous” and “marginal” exculpatory value, it found nonetheless that the State’s
duty to preserve that evidence had been breached and went on to consider what consequences
should flow from that breach in light of the legally-relevant factors: (1) the degree of
negligence involved, (2) the significance of the missing evidence, and (3) the sufficiency of
the convicting evidence. Id. at 918. Even assuming that the State had and breached a duty
to preserve the missing surveillance camera footage from the day in question, consideration
of these same three factors leads this court to conclude that the defendant’s due process rights
were not violated.
First, the defendant has not shown that the police acted in bad faith or were grossly
negligent in permitting the missing video surveillance footage to be erased. Therefore, as in
Ferguson, the State’s degree of culpability was slight.
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Second, the missing evidence was of minimal evidentiary significance. Numerous
witnesses testified that there was nothing in the missing videotape footage that would have
been helpful to either the prosecution or the defense. These witnesses were subjected to
cross-examination on the subject. Consequently, “In our view, the defendant has failed to
establish that the videotape contained evidence favorable to the defense.” State of Tennessee
v. Rodney Southers, No. E2004-01136-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 328,
at *23 (April 7, 2005).
Moreover, surveillance camera footage in general was of very limited evidentiary
value in this case because it lacked any audio component, and the key issue at trial was
whether the defendant verbally solicited the victim. Nothing in the surveillance camera
footage, whether it was preserved or destroyed, had the ability to establish whether the
precise verbal exchange alleged by the victim did or did not actually occur.
The defendant’s main argument concerning the evidentiary significance of the missing
surveillance camera footage – that it would show that there were other members of the public
around at the time of the alleged incident and, consequently, that the defendant did not
“wait[] until no one was around in the community center” before beckoning for the victim
to approach – does not pertain to any major issue of dispute at trial. The State did not dispute
that there were other individuals present in the Center at the time of the incident. Several
witnesses were available to testify, and in fact testified, to the fact that there were many
individuals roaming around the Center on the day in question. The missing videotape
footage would have been cumulative with their testimony.
Finally, the remaining evidence against the defendant was strong. The victim in this
case testified that the defendant committed the crime. Other witnesses testified that the
victim’s behavior following his encounter with the defendant was consistent with his being
in a state of fear and agitation. The victim promptly reported the incident to his friend, his
friend’s father, and others. Officer Conway testified that, after his arrest, the defendant
waived his Miranda rights, denied that he had talked to any minors during his time at the
Center, and went from being relaxed and talkative with the police to upset and uncooperative
after he saw the word “videotape” appearing on the affidavit accompanying his arrest
warrant. Considered as a whole, the evidence against the defendant was strong, and we do
not believe that the State’s failure to preserve the video surveillance footage from all of the
cameras in the Center “hindered [the defendant] in the full and complete exposition of his
theory to the jury.” Id. Rather, we conclude “that he experienced no measurable
disadvantage because of the unavailability of the videotaped evidence.” Id. The judgment
of the trial court concerning this issue is affirmed.
III.
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The defendant claims that the trial court erred by allowing the admission of selected
surveillance camera footage that was preserved by the police on DVDs from two of the
Center’s surveillance cameras. The defendant claims that the State violated the defendant’s
due process rights by admitting the footage from these DVDs because it was (1) misleading,
in that it showed skips, jumps, and freezes, and (2) not identical to the original video
surveillance footage because testimony at trial established that the original footage did not
contain skips, jumps, or freezes. However, these claims have been waived.
In the court below, the defendant filed both a motion for a new trial, pursuant to
Tennessee Rule of Criminal Procedure 33, and a motion for a judgment of acquittal, pursuant
to Tennessee Rule of Criminal Procedure 29. Each motion incorporated the arguments made
in the other by reference. In neither motion, however, did the defendant challenge the trial
court’s decision to admit the DVDs containing the selected surveillance camera footage. As
a result, the defendant has waived this issue. T.R.A.P. Rule 3(e) (“[N]o issue presented for
review shall be predicated upon error in the admission or exclusion of evidence . . . unless
the same was specifically stated in a motion for a new trial; otherwise such issues will be
treated as waived.”). His claim is denied accordingly.
IV.
The defendant’s last challenge to his conviction is that Tennessee Code Annotated
section 39-13-528(a) is void for vagueness and unconstitutional both on its face and as
applied to him. The defendant argues that the statute at issue violates his rights under the
First, Fifth, and Fourteenth amendments of the United States Constitution and their state
counterparts, because the statute does not provide him with fair notice as to what conduct is
prohibited by the statute. Moreover, the defendant argues that the statute at issue purports
to cover words that are merely distasteful and socially inappropriate and that both the federal
and state constitutions protect his right to utter those words. We conclude that these claims
are without merit.
A statute is fatally vague only when it exposes a potential actor to some risk or
detriment without giving him fair warning of the nature of the proscribed conduct. See
Rowan v. United States Post Office Dep’t., 397 U.S. 728, 740 (U.S. 1970) (citing United
States v. Cardiff, 344 U.S. 174, 176 (1952)). The key question for constitutional vagueness
purposes is whether the statute at issue gives persons of ordinary intelligence fair notice as
to what conduct is prohibited by the statute. See Papachristou v. Jacksonville, 405 U.S. 156,
162 (1972). We believe that section 39-13-528(a) provides sufficient notice to the defendant
as to what conduct is prohibited. It prohibits the defendant from inviting or attempting to
induce a minor into committing a sex crime. The Due Process Clause does not require
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Tennessee’s solicitation statute to specify every possible set of words or phrases that might
constitute such a solicitation – an impossible task indeed. It is enough that the statute places
defendants on notice that they may not use any language with a minor that is intended to
accomplish the specified unlawful purpose.
The defendant directs our attention U.S. v. Skilling, 130 S. Ct. 2896, 2933 (2010), in
which the U.S. Supreme Court provided a limiting construction to the term “honest services”
as used in 18 United States Code section 1346 (which defined criminal wire fraud as
“includ[ing] a scheme or artifice to deprive another of the intangible right of honest
services”) in order to avoid having to strike the statute down as unconstitutionally vague.
The clear implication to be drawn from the Court’s ruling was that, absent a construction
limiting the statute’s terms to bribery and kickback schemes, “the phrase ‘the intangible right
of honest services’” did “not adequately define what behavior it bars.” Skilling, 130 S.Ct.
at 2928 (quoting 18 U.S.C. §1346). In this case, however, the statute’s mens rea requirement
specifically limits application of the statute’s terms to situations that are understandable to
an ordinary layman. “Although the physical acts [that may violate the statute] are broadly
defined, the culpable mental states necessary to commit the offense sufficiently clarify the
statute and narrow its application.” State v. Forbes, 918 S.W.2d 431, 448 (Tenn. Crim. App.
1995). If the defendant had merely used the words “blow job” in a sentence without the
intent to invite, induce, command, etc., a minor into committing actions that would constitute
a covered sex crime if they were completed, his conduct would not come under the ambit of
the statute. Persons of ordinary intelligence can easily understand what is prohibited by the
statute – broadly speaking, any conversation or activity of any sort with a minor that is
intended to promote, incite or encourage the minor to engage in sexual activity.
Consequently, the statute is not so vague as to violate the Due Process Clause.
Nor is the statute unconstitutionally overbroad. “The constitutional test for
overbreadth is whether the statute’s language overreaches unlawful conduct and encompasses
activity that is constitutionally protected.” State v. Pickett, 211 S.W.3d 696, 702 (Tenn.
2007). With respect to the defendant’s First Amendment argument, however, we agree with
the State that while the United States and Tennessee Constitutions may protect the
defendant’s right to use the words “blow job,” it does not protect his right to proposition a
thirteen-year-old boy. The defendant attempts to equate section 39-13-528(a)’s prohibition
on solicitation to commit aggravated statutory rape to the federal Child Pornography
Prevention Act of 1996, which was struck down by the U.S. Supreme Court in Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 256 (U.S. 2002). However, in making this analogy,
the defendant overlooks the clear affirmation in that case that “Congress may pass valid laws
to protect children from abuse,” as well as the Court’s reaffirmation of the longstanding
principle that the states may ban possession of pornography produced using children because
of their “interest in preventing child pornography from being used as an aid in the solicitation
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of minors,” as well as their interest in preventing further victimization of the participants for
whom the video effectively serves as a “record of [their] sexual abuse. Id. at 245, 250. The
Free Speech Coalition Court struck down the statute at issue as unconstitutionally broad
because it criminalized “virtual child pornography” – and other forms of pornography made
entirely by consenting adults – “simply because it may fall into the hands of children.” Id.
at 252. The Court explained that the ban at issue was not narrowly drawn because it did not
only prohibit illegal conduct but also went “well beyond that interest by restricting the speech
available to law-abiding adults.” Id. at 252-53. In contrast, our state supreme court upheld
a similar child pornography law against an overbreadth challenge in State v. Pickett on
grounds that, in that case, “the plain language [the statute at issue] require[d] that the image
be of ‘a minor.’” 211 S.W.3d at 703 (quoting T.C.A. § 39-17-1003(a) (2003)). Because
Tennessee’s section 1003(a) did not prohibit the possession of material that “appears to be”
of a minor, and it was the “‘appears to be’ language [that] rendered the statute [at issue in
Free Speech Coalition] unconstitutionally overbroad,” the Tennessee supreme court
concluded that the statue at issue did not encompass “constitutionally protected speech.” Id.
Likewise, section 39-13-528(a) does not criminalize any constitutionally protected
speech. The statute does not criminalize, and the defendant’s crime did not involve, speech
intended to occur between two consenting adults. As the Free Speech Coalition Court made
clear, the longstanding principle of Brandenburg v. Ohio that “[t]he government may suppress
speech . . . advocating . . . a violation of law . . . if ‘such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action’” remains
intact. Id. at 253 (quoting Brandenburg v. Ohio, 395 U.S. 444, 449 (1969)). The Free Speech
Coalition Court took great pains to stress that “[t]here is here no attempt, incitement,
solicitation, or conspiracy,” to commit child sexual abuse. Id. at 253 (emphasis added). In
the case at bar, however, solicitation to commit child sexual abuse is precisely what is
prohibited by section 39-13-528(a). The statute’s terms are not overly broad in their attempt
to prohibit the sexual solicitation of children; its express terms confine it precisely to that
purpose. Consequently, the defendant’s overbreadth challenge to section 39-13-528(a) is
denied.
V.
Finally, the defendant challenges a 2008 change to Tennessee’s work release program
that rendered “person[s] convicted of a sexual offense or violent sexual offense” ineligible
for work release. T.C.A. § 40-35-213. Because this change in the law governing work release
eligibility occurred after the defendant committed his crime, the defendant urges that the new
law violates the Ex Post Facto Clause because it “changes punishment or inflicts a greater
punishment than the law annexed to the crime when it was committed.” State v. Pearson, 858
S.W.2d 879, 882 (Tenn. 1993). While the Ex Post Facto Clause generally prohibits the states
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from passing laws that affect the “standard of punishment applicable to crimes that have
already been committed,” it does not “forbid[] any legislative change that has any conceivable
risk of affecting a prisoner’s punishment.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506,
508 (U.S. 1995). More specifically, the Clause does not require courts to “invalidate any of
a number of minor (and perhaps inevitable) mechanical changes that might produce some
remote risk of impact on a prisoner’s expected term of confinement.” Id. at 508. “[T]he
question of what legislative adjustments ‘will be held to be of sufficient moment to transgress
the Constitutional prohibition’ must be a matter of ‘degree.’” Id. at 509 (quoting Beazell v.
Ohio, 269 U.S. 167, 171 (1925)).
The legislative change at issue here has not impacted the prisoner’s expected term of
confinement in any way. Solicitation of a minor to commit the offense at issue was a Class
E felony at the time the defendant committed his offense and remains so to this day. See
T.C.A. § 39-39-528(c) (2007 & 2011); T.C.A. § 39-13-506(c) (2007 & 2011). The sentencing
range for a Range I offender committing a Class E felony was, and remains, between one and
two years. See T.C.A. § 40-35-112(a)(5) (2007 & 2011). The actual sentence the defendant
received was, and remains, two years, with 120 days of that sentence being spent in
confinement in the county jail and the remaining time spent on probation with community
corrections as a condition of that probation. In short, the legislation has had no impact on the
defendant’s expected term of confinement.
The legislative change at issue affects only one possible aspect of the 120 days that the
defendant has been ordered to spend in jail: the possibility that he might be able to serve some
or all of those days performing work outside the jail during the daytime hours. However,
“work release is not a fundamental right.” State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994).
While work release has been referred to as an “alternative sentence,” T.C.A. § 40-35-
104(c)(7), and a “form of probation,” see, e.g., State v. Lowe, 661 S.W.3d 701, 703 (Tenn.
Crim. App. 1983), this court has clarified more recently that “work release is not probation”
but, rather, a form of “incarceration,” because it “occurs when a defendant, who is serving a
sentence of confinement, is temporarily released from confinement and must report back to
jail each day” and eligibility is “governed by either the administrative authority of the jail or
the sentencing court.” State v. Terrance Dwain Norton, No. M2004-02791-CCA-R3-CD,
2005 Tenn. Crim. App. LEXIS 1170, at **6-7 (Tenn. Crim. App. Nov. 7, 2005). While
attaching various conditions to a particular defendant’s work release eligibility, or denying
it altogether, may be onerous, “incarceration by its nature is intended to be punitive.” Id. at
*7.
In this case, the 2008 amendment passed by the legislature reflects only the State’s
decision to end early community contact for individuals committing specified sex crimes. The
decision to deny the defendant the potential privilege of working outside of the prison during
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some or all of his jail time confinement is a regulatory issue. While ending the defendant’s
eligibility for work release, like ending any other privilege a prisoner may have previously
enjoyed during his jail time, doubtlessly makes the time that a prisoner serves in confinement
less pleasant, alterations to work release and furlough programs have generally not been
deemed by courts to unconstitutionally change or inflict greater punishment on prisoners. See,
e.g., Lee v. Governor of New York, 87 F.3d 55, 59-60 (2d Cir. 1996); Milhouse v. Levi, 548
F.2d 357, 364 (D.C. Cir. 1976). Consequently, the defendant’s claim that section 40-35-213
(2008) violates the Ex Post Facto Clause is denied.
.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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