State of Tennessee v. Barry H. Hogg

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 6, 2014 Session
STATE OF TENNESSEE v. BARRY H. HOGG
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Wilson County
No. 10-CR-57 David Earl Durham, Judge
No. M2012-00303-SC-R11-CD - Filed September 25, 2014
The defendant was convicted of multiple counts of especially aggravated sexual exploitation
of a minor, criminal exposure of another to the human immunodeficiency virus (“HIV”), and
aggravated statutory rape. The Court of Criminal Appeals affirmed the convictions. Based
on our review, we hold (1) there is sufficient evidence to support the separate convictions of
especially aggravated sexual exploitation of a minor and aggravated statutory rape; (2) there
is sufficient evidence to support the convictions for four counts of criminal exposure to HIV
but insufficient evidence to support the convictions for three of the counts; and (3) the
defendant’s sentence, as modified, is not excessive.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed in Part and Reversed in Part
S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and
J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.
Gregory D. Smith, Clarksville, Tennessee (on appeal); Adam W. Parrish, Lebanon,
Tennessee (at trial); and Comer L. Donnell, District Public Defender, and William K. Cather,
Assistant Public Defender, for the appellant, Barry H. Hogg.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Andrew C. Coulam, Assistant Attorney General; Tom P. Thompson, District Attorney
General; and Thomas H. Swink and Javin R. Cripps, Assistant District Attorneys General,
for the appellee, State of Tennessee.
OPINION
I.
In November 2006, Barry H. Hogg (“Defendant”) was diagnosed as being
HIV-positive and having acquired immunodeficiency syndrome (“AIDS”).1 Defendant’s
doctor advised him that he could pass the virus to others through unprotected sexual
activity. In 2009, when Defendant was forty-seven, he met a thirteen-year-old boy (“the
victim”), and they began seeing each other frequently. On September 6, 2009, at an
abandoned store in Wilson County, Defendant and the victim engaged in multiple sexual
acts, including anal and oral sex. Defendant never told the victim that he was HIV-positive
and had AIDS. Defendant recorded the sexual conduct with a video camera and later
transferred the film clips onto his home computer.
On January 12, 2010, the Wilson County Grand Jury indicted Defendant on multiple
counts of sexual misconduct and criminal exposure of another to HIV. On January 31, 2011,
and February 1, 2011, Defendant was tried by a jury and convicted of eleven counts of
especially aggravated sexual exploitation of a minor, Tenn. Code Ann. § 39-13-1005 (2010
& Supp. 2013), seven counts of criminal exposure of another to HIV, Tenn. Code Ann.
§ 39-13-109 (2010 & Supp. 2013), and six counts of aggravated statutory rape, Tenn. Code
Ann. § 39-13-106(c) (2010).
At trial, five witnesses testified on behalf of the State: the victim, Detective Shannon
Hunt, Officer Carlo Sguanci, Special Agent Melanie Garner, and Dr. Catherine
McGowan. Defendant called no witnesses.
The victim testified that, between April and September 2009, he lived in Tennessee
with his mother, stepfather, and brother. He met Defendant at his grandmother’s house and
saw him three or four times a week and once or twice on the weekend. He did not know
Defendant was HIV-positive and had AIDS. For the victim’s fourteenth birthday on August
31, 2009, Defendant drove him to Nashville and bought him a pocket-sized vagina, lubricant,
and a bottle of Rush.2
1
HIV weakens the immune system and causes AIDS. A person who is HIV-positive is capable of
transmitting the virus to others through sexual contact. A person who is HIV-positive may or may not have
AIDS, as “AIDS is the most advanced form of HIV disease.” Aids.gov, http://aids.gov/hiv-aids-basics/
just-diagnosed-with-hiv-aids/overview/hiv-positive/ (accessed April 17, 2014).
2
The record indicates that Rush is a type of incense with a strong smell that when inhaled quickly
gives a type of high.
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The victim testified that on a later date, shown by the evidence to be September 6,
2009, Defendant gave him alcohol to drink and drove him to an abandoned store known as
the Buckeye Corner Market. The victim described the various sexual acts that occurred,
explaining, “There was oral sex, me and him both doing it to each other, anal with the finger,
and anal, him on me, and – it was masturbating, me and him both, and digital.” Defendant
brought a video camera to the store and filmed the sexual acts.
Detective Hunt of the Smith County Sheriff’s Department testified that on September
8, 2009, the Smith County Sheriff asked her to investigate the possible kidnapping of the
victim. Detective Hunt interviewed the victim, who initially said Defendant tried to kidnap
him. Later, the victim admitted that he had not been kidnapped but had engaged in sexual
acts with Defendant at the Buckeye Corner Market. Detective Hunt then questioned
Defendant, who admitted that he knew the victim and had driven him to Nashville to buy
some sex toys. Defendant admitted to taking a few pictures of the victim, but claimed none
of the pictures were sexual or obscene. Based on this information, Detective Hunt obtained
a search warrant for Defendant’s home and seized Defendant’s computer and a video camera
from his bedroom and another computer belonging to Defendant’s mother from the living
room.
Officer Sguanci, with the 15th Judicial District Drug and Violent Crime Task Force,3
testified that he and Director Mike Thompson interviewed Defendant at the Smith County
Sheriff’s Department on September 9, 2009. Defendant gave the officers a written statement,
which was introduced into evidence. The statement described Defendant’s sexual acts with
the victim, including the pictures and videos depicting this activity. This statement provided
in part:
Some of the pictures are of [the victim] going down on me. That is [the
victim] performing oral sex on me. . . . In some videos taken later you will see
him and me having anal intercourse. . . . [A]s you will see in the videos, they
are real explicit. At this time, I performed anal on him and did not ejaculate. I
performed oral sex on him, sucking his penis and licking his ass. This was a
play date. It is not necessary for me to come. He did not come this time. We
have had oral sex twice.
Special Agent Garner, with the Tennessee Bureau of Investigation, testified that she
worked in the Technical Services Unit, which handles technology-facilitated crimes
involving children. She had previously testified as an expert witness in many cases involving
3
The 15th Judicial Drug and Violent Crime Task Force covers Jackson, Macon, Smith, Trousdale,
and Wilson Counties.
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children. Special Agent Garner used forensic software to analyze the hard drive from
Defendant’s computer and found videos on Defendant’s computer that depicted sexual acts
between Defendant and the victim. She prepared a computerized report that contained
different video clips of the sexual acts between Defendant and the victim filmed on
September 6, 2009, and transferred to Defendant’s computer on September 8, 2009.
Eleven video clips taken from Defendant’s computer were played to the jury. The
victim testified that the videos were an accurate representation of what occurred at the
store. The video clips, which ranged in length from four seconds to four minutes and two
seconds, featured an assortment of sexual acts between Defendant and the victim. The video
clips showed Defendant directing the victim to masturbate and pose in sexual
positions. They also depicted Defendant performing unprotected anal intercourse on the
victim, performing fellatio on the victim, and the victim performing fellatio on
Defendant. Other video clips showed Defendant manually manipulating the victim’s penis,
digitally probing the victim’s anus, and licking the victim’s anus.
Dr. McGowan, an infectious disease specialist at Vanderbilt’s Comprehensive Care
Clinic, testified that in November 2006, she began treating Defendant, who was diagnosed
with HIV and AIDS. She explained that HIV can be transmitted through different bodily
fluids, including blood and genital secretions. She also testified that “[p]atients who have
HIV have it for life.” She said that one way to transmit HIV “is through very close contact
with bodily fluids such as through sexual contact.”
Dr. McGowan stated that HIV is transmitted through ejaculate and vaginal secretions
and that there is some risk of transmission in any sexual encounter. According to her
testimony, the risk of transmission is not dependent on ejaculation because the penis secretes
mucosal or pre-ejaculate fluid capable of transmitting HIV. Dr. McGowan testified that the
chances of HIV transmission can be evaluated by considering the type of sexual contact, the
viral load of the infected person, and the presence and quantity of bodily fluid exchanged
during sexual activity. Defendant, according to Dr. McGowan, was capable of exposing
another person to HIV. The various sexual acts between Defendant and the victim presented
different levels of risk, with penile/anal intercourse posing the greatest risk of HIV
transmission. She explained that it would be risky for one of her HIV-positive patients to
have sexual contact with others without a condom. Dr. McGowan explained that she had
counseling sessions with Defendant and would have advised him, as she did all her patients,
of the risk of passing the virus to others and of the importance of always using a form of
protection with all sexual encounters.
At the end of the State’s proof, the defense moved for a directed verdict, contending
that the especially aggravated sexual exploitation of a minor and the aggravated statutory
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rape counts were all based on a single sexual encounter. The defense also moved for
dismissal of the criminal exposure counts, arguing that the State failed to prove a significant
risk of HIV transmission. The trial judge denied the motions. The jury found Defendant
guilty of all twenty-four counts.
On July 29, 2011, the trial judge, after considering mitigating factors under Tenn.
Code Ann. § 40-35-113 (2010), and enhancement factors under Tenn. Code Ann.
§ 40-35-114 (2010 & Supp. 2013), sentenced Defendant to an effective sentence of 174
years. The trial judge considered Defendant’s admission of the offense and cooperation with
the police as mitigating factors under Tenn. Code Ann. § 40-35-113(13). The trial judge
found the following enhancement factors were applicable under Tenn. Code Ann.
§ 40-35-114 (4), (7), (10), (7), & (21) : the offense involved a victim and was committed to
gratify Defendant’s desire for pleasure or excitement; the victim was particularly vulnerable
because of his age; Defendant had no hesitation in committing a crime with high risk to
human life; and Defendant committed aggravated statutory rape knowing he was
HIV-positive.4 The trial court reviewed the pre-sentence report, which contained the victim’s
impact statement. In the box for personal reaction, the victim wrote: “Made me feel
different, shy, like I was a needle in a hay stack.” In the box for physical injuries, the victim
wrote: “Disap[p]ointment in my self, anger get’s [sic] out of hand because of it. And a broke
heart.” For medical treatment, the victim explained that “I have to go see my doctor and have
test[s] done to check for AIDS for the rest of my life.” For mental injuries, the victim
explained he suffered from “anger, stress, [and] images pop in my head of what happen[ed]
that day.”
The trial court imposed consecutive sentencing based on Tenn. Code Ann.
§ 40-35-115(b)(5) (2010), which provides for consecutive sentencing if a defendant is
convicted of more than one statutory offense involving the sexual abuse of a minor. The trial
court noted that the sexual acts “couldn’t have been more graphic and gruesome” and
characterized Defendant’s actions as “abominable.” Defendant’s effective sentence of 174
years included: twelve years at one hundred percent incarceration for each of the eleven
especially aggravated sexual exploitation convictions; six years at thirty percent for each of
the seven criminal exposure of another to HIV convictions; and four years at thirty percent
for each of the six aggravated statutory rape convictions. The sentences for especially
aggravated sexual exploitation were to run consecutive to the sentences for the seven
4
From our review of the record, it appears that subsection (4)—vulnerability due to age—was
applied to the HIV exposure convictions; subsection (7)—gratifying Defendant’s desire—was
applied to all convictions; subsection (10)—high risk to human life—was applied to all convictions;
subsection (21)—rape with knowledge of HIV—was applied to the aggravated statutory rape and
sexual exploitation convictions.
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convictions for criminal exposure of another to HIV and consecutive to each
other. Defendant’s aggravated statutory rape sentences were to run concurrently with one
another and with all other counts.
Defendant appealed, and the Court of Criminal Appeals affirmed. State v. Hogg, No.
M2012-00303-CCA-R3-CD, 2013 WL 1619392, at *8 (Tenn. Crim. App. Apr. 16,
2013). We granted Defendant’s application for permission to appeal and consider these
issues: (1) whether the evidence was sufficient to support the convictions for especially
aggravated sexual exploitation of a minor, aggravated statutory rape, and criminal exposure
of another to HIV; and (2) whether Defendant’s sentence was excessive.
II.
On the sufficiency of the evidence issue, Defendant first argues that the evidence was
insufficient to support eleven separate convictions for especially aggravated sexual
exploitation of a minor and six aggravated statutory rape convictions because the acts all
arose out of one continuous sexual act. Second, Defendant argues that the evidence was
insufficient to support his seven convictions for criminal exposure of another to HIV because
his sexual acts with the victim did not pose a “significant risk” of HIV transmission.
When considering the sufficiency of the evidence, an appellate court must afford the
State the strongest legitimate view of the evidence and draw all reasonable inferences in the
State’s favor. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). We defer to the trier of fact on questions concerning witness
credibility, weight and value of evidence, and other factual issues raised by the evidence. See
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966). The key issue is whether, after reviewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). This standard applies whether
the conviction was based upon direct or circumstantial evidence. State v. Farmer, 380
S.W.3d 96, 100 (Tenn. 2012) (citing State v. Sutton, 166 S.W.3d 686, 689 (Tenn.
2005)). When there is a verdict of guilty, the defendant on appeal bears the burden of
showing that the evidence was legally insufficient to support the 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)).
A.
Defendant asserts that his multiple convictions for especially aggravated sexual
exploitation of a minor and aggravated statutory rape are multiplicitous because all of the
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sexual acts occurred in the same place during a one-hour time frame. He contends they
constitute a single act and support only a single conviction for especially aggravated sexual
exploitation of a minor and a single conviction for aggravated statutory rape. Multiplicity
refers to the charging of a single offense in multiple counts of an indictment. State v. Smith,
436 S.W.3d__, No. M2011-00440-SC-R11-CD, 2014 WL 2766674, at *10 (Tenn. June 19,
2014) (citing State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996)). By imposing multiple
punishments for the same offense, multiplicity raises double jeopardy concerns. State v.
Watkins, 362 S.W.3d 530, 542 (Tenn. 2012). Both the United States and Tennessee
Constitutions protect individuals against double jeopardy arising from multiplicitous
charges. U.S. Const. amend. V; Tenn. Const. art. I, § 10.
Multiple punishment claims fall into one of two categories: (1) unit-of-prosecution
claims; or (2) multiple description claims. Watkins, 362 S.W.3d at 543. At issue here is a
unit-of-prosecution claim which is raised when a defendant who has been convicted of
multiple violations of the same statute asserts that the multiple convictions are for the same
offense. Smith, 436 S.W.3d at *11 (citing Watkins, 362 S.W.3d at 543). We recently
explained in Smith that “[i]n determining the unit of prosecution, we first examine the statute
in question to determine if the statutory unit of prosecution has been expressly
identified.” Id. *12. If the unit of prosecution is clear from the statute, there is no need to
review the history of the statute and other legislative history. When a statute is clear, courts
apply the statute’s plain language without complicating the task. State v. Pope, 427 S.W.3d
363, 368 (Tenn. 2013) (citing Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
2004)).
The offense of especially aggravated sexual exploitation of a minor criminalizes
“knowingly . . . us[ing] . . . a minor to participate in the performance of, or in the production
of, acts or material that includes the minor engaging in [sexual activity].” Tenn. Code Ann.
§ 39-17-1005(a)(1). The plain language of Tenn. Code Ann. § 39-17-1005(b) identifies the
“unit of prosecution” by providing for separate counts for especially aggravated sexual
exploitation when there are separate images or motion picture films. The statute reads, in
pertinent part: “A person violating subsection (a) may be charged in a separate count for each
individual performance, image, picture, drawing, photograph, motion picture film,
videocassette tape, or other pictorial representation.” Tenn. Code Ann. § 39-17-1005(b)
(emphasis added).
The State introduced eleven different clips from Defendant’s video camera that were
transferred to Defendant’s computer in separate files. Each of these video clips represents
a “unit of prosecution,” as each is a separate film or pictorial representation within the
meaning of the statute. Each contains graphic images of a child participating in sexual acts
or posing in simulated sexual positions. The plain language of section 39-17-1005(b) allows
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for separate counts for each of these images or pictorial representations. Therefore,
Defendant’s multiplicity argument as to his convictions for especially aggravated sexual
exploitation of a minor is without merit.
Defendant also faced six counts of aggravated statutory rape. Tennessee law defines
this offense as “the 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.” Tenn. Code
Ann. § 39-13-506(c). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio,
anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of
any object into the genital or anal openings of the victim’s, the defendant’s, or any other
person’s body, but emission of semen is not required[.]” Tenn. Code Ann. § 39-13-501(7)
(2010 & Supp. 2013). The definition of “sexual penetration” is broad and includes different
examples of sexual activity, including “any other intrusion, however slight.” The breadth of
this definition convinces us that the “unit of prosecution” is each act of “unlawful sexual
penetration.”
Defendant was convicted of six counts of aggravated statutory rape; all counts
included separate incidents of sexual penetration within the meaning of the aggravated
statutory rape law. There was sufficient evidence to support the multiple convictions, and
Defendant’s multiplicity argument as to these charges is also without merit.
B.
Defendant also challenges the sufficiency of the evidence with regard to his seven
convictions for criminally exposing the victim to HIV, claiming that Defendant’s conduct did
not pose a significant risk of transmitting HIV. This issue requires us to construe Tenn. Code
Ann. § 39-13-109 and clarify the meaning of “significant risk.”
Statutory construction is an issue of law which we review de novo. Wlodarz v. State,
361 S.W.3d 490, 496 (Tenn. 2012). We must look to the plain language of the statute to
determine the intent of the legislature. State v. Jennings, 130 S.W.3d 43, 46 (Tenn.
2004). When the language of the statute is clear and unambiguous, we apply the statute’s
plain language in its normal and accepted use. Keen v. State, 398 S.W.3d 594, 610 (Tenn.
2012). In doing so, we are restricted to the natural and ordinary meaning of the statute’s
language. Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998). “‘[E]very word in a
statute is presumed to have meaning and purpose.”’ Keen, 398 S.W.3d at 610 (alteration in
original) (quoting U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386
(Tenn. 2009)).
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Tenn. Code Ann. § 39-13-109 prohibits a person who knows he or she is infected with
HIV from knowingly exposing his or her bodily fluids to another person in any manner that
presents a significant risk of HIV transmission. The statute provides, in pertinent part:
(a) A person commits the offense of criminal exposure of another to human
immunodeficiency virus (HIV) when, knowing that the person is infected with
HIV, the person knowingly:
(1) Engages in intimate contact with another;
....
(b) As used in this section:
....
(2) “Intimate contact with another” means the exposure of the body of one
person to a bodily fluid of another person in any manner that presents a
significant risk of HIV transmission[.]
Tenn. Code Ann. § 39-13-109(a)(1), (b)(2) (emphasis added).
To support a conviction under this statute, the actual transmission of HIV is not
required, only the “exposure” of bodily fluids in such a way that poses a significant risk of
transmission. Id. § 39-13-109(d) (“Nothing in this section shall be construed to require the
actual transmission of HIV in order for a person to have committed the offense of criminal
exposure of another to HIV.”). The word “exposure” has been interpreted to mean that “a
defendant subjected a victim to risk of contact with bodily fluids in a manner that would
present a significant risk of HIV transmission.” State v. Bonds, 189 S.W.3d 249, 258 (Tenn.
Crim. App. 2005).
Defendant focuses his challenge on the meaning of the term “significant risk,” which
is not defined in the statute.5 He argues that the most appropriate definition is “risks so great
that they are almost certain to materialize if nothing is done.” See Brown v. Budz, 398 F.3d
904, 911 (7th Cir. 2005) (quoting Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004))
(analyzing the definition of “substantial risk” in the context of an inmate’s failure to protect
claim). The State counters that significant risk in the context of HIV exposure “means that
the risk is notable, as opposed to negligible or de minimis.”
5
The legislative history of Tenn. Code Ann. § 39-13-109 also does not provide any insight into the
meaning of “significant risk.” A related statute, Tenn. Code Ann. § 39-13-108 (2010), which concerns the
Department of Health’s ability to quarantine an HIV-positive individual who continues to pose a direct threat
to others, also uses but does not define the term “significant risk.”
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The United States Supreme Court addressed the concept of “significant risk” related
to the transmission of contagious diseases in School Board of Nassau County, Florida v.
Arline, 480 U.S. 273 (1987). The Court identified four factors for determining whether a
person with a contagious disease poses a significant risk to others. These include: (a) the
nature of the risk; (b) the duration of the risk; (c) the severity of the risk; and (d) the
probability the disease will be transmitted. Id. at 288.
The Eleventh Circuit Court of Appeals expanded upon this analysis in Onishea v.
Hopper, 171 F.3d 1289, 1297 (11th Cir. 1999), finding that “the significance of a risk is a
product of the odds that transmission will occur and the severity of the consequences.” The
court reasoned that “when the adverse event is the contraction of a fatal disease, the risk of
transmission can be significant even if the probability of transmission is low: death itself
makes the risk ‘significant.’” Id. The court elaborated:
We thus hold that when transmitting a disease inevitably entails death, the
evidence supports a finding of “significant risk” if it shows both (1) that a
certain event can occur and (2) that according to reliable medical opinion the
event can transmit the disease. This is not an “any risk” standard: the asserted
danger of transfer must be rooted in sound medical opinion and not be
speculative or fanciful. But this is not a “somebody has to die first” standard,
either: evidence of actual transmission of the fatal disease in the relevant
context is not necessary to a finding of significant risk.
Id. at 1299.
The United States Supreme Court also discussed “significant risk” in the context of
the Occupational Safety and Health Act (“OSHA”):
First, the requirement that a “significant” risk be identified is not a
mathematical straightjacket. . . . Some risks are plainly acceptable and others
are plainly unacceptable. If, for example, the odds are one in a billion that a
person will die from cancer by taking a drink of chlorinated water, the risk
clearly could not be considered significant. On the other hand, if the odds are
one in a thousand that regular inhalation of gasoline vapors that are 2%
benzene will be fatal, a reasonable person might well consider the risk
significant and take appropriate steps to decrease or eliminate it.
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 655 (1980).
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We conclude that “significant risk” is a product of both the severity of the
consequences and the likelihood that HIV will be transmitted. The question of whether a risk
is significant is fact specific and should not be hamstrung by a mathematical
straightjacket. Because the contraction of HIV and the development of AIDS can lead to
death, the consequences are severe. But simply using severity as the benchmark would be
too broad. If the chance of transmitting HIV is but a faint possibility and no more than
speculative in nature, see Onishea, 171 F.3d at 1299, then the risk is not “significant” for
purposes of the criminal exposure statute, despite the severity of the potential
consequences. We hold that in the context of the criminal exposure to HIV statute,
“significant risk” requires a chance of HIV transmission that is more definite than a faint,
speculative risk, as shown by expert medical proof.
Defendant argues that his sexual acts did not pose a significant risk of transmitting
HIV because he did not ejaculate during any of these sexual acts. We disagree. Dr.
McGowan testified that transmission of HIV may occur without ejaculation because
pre-ejaculate fluid or mucosal fluid is sufficient to transfer HIV to an uninfected
person. Defendant’s argument fails.
We now address whether sufficient evidence supports the seven convictions for
criminal exposure of another to HIV. The severity of the potential consequence is patently
obvious. However, the question remains whether the evidence supports a finding that each
of these sexual acts presented a chance of HIV transmission that is more definite than a faint,
speculative risk of transmission.
Count 12 involves Defendant licking the victim’s anus. Dr. McGowan testified that
although she would discourage one of her HIV-positive patients from licking the anus of an
uninfected person, the licking of the anus presented a “very low risk.” Based on this
testimony, taken in the light most favorable to the State, the medical proof offered by the
State shows that the risk of HIV transmission was too faint and speculative to support a
conviction in Count 12.
Count 13 involves Defendant performing oral sex on the victim. Dr. McGowan
testified that saliva is not considered an infectious source of HIV infection and that unless
the mouth contained open sores or there was blood flowing in the mouth, there likely would
not be bodily fluids present in the mouth to transmit HIV. The State presented no proof that
Defendant had sores or blood in his mouth. Based on this expert medical proof, we hold that
this sexual act did not pose a significant risk of HIV transmission but only a faint, speculative
risk. Therefore, the proof is insufficient to support the conviction in Count 13.
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Count 14 involves Defendant’s conduct of digitally probing the victim’s anus. Dr.
McGowan testified that there would be a risk of transmission if an HIV-positive patient had
bodily fluid on his finger capable of transmitting HIV and then penetrated another person’s
anus. Dr. McGowan discourages her HIV-positive patients from engaging in such
activity. The videos showed that the digital probing of the victim’s anus occurred after
Defendant performed oral intercourse on the victim. Given the timing of the digital
penetration and the fact that some sexual activity already had taken place between Defendant
and the victim, the jury could infer that pre-ejaculate fluid was on Defendant’s finger. In the
light most favorable to the State, there was sufficient evidence, including Dr. McGowan’s
expert medical testimony, for the jury to infer that the digital probing of the victim’s anus
presented a chance of HIV transmission more definite than a faint, speculative
risk. Therefore, we find that there was sufficient evidence to sustain Defendant’s conviction
on Count 14.
We next address Counts 15 and 16, which relate to Defendant performing anal sex on
the victim. The jury viewed two separate videos of Defendant using his penis to penetrate
the victim’s anus. Dr. McGowan testified that anal sexual contact posed the greatest risk of
HIV transmission of any form of intimate contact. The evidence establishes that the risk was
significant and not merely speculative. Accordingly, there was sufficient evidence to support
the guilty verdicts on Counts 15 and 16.
Count 17 involves the victim performing oral sex on Defendant. Dr. McGowan
testified that mouth to penile contact presented a risk of exposure to HIV. She explained that
mucosal fluid inside the penis can transmit HIV even if a male does not ejaculate. Taken in
the light most favorable to the State, Dr. McGowan’s expert medical testimony supports the
conclusion that the victim performing oral sex on Defendant presents a chance of HIV
transmission that is more definite than a faint, speculative risk. Therefore, we find there was
sufficient evidence to support the conviction in Count 17.
Count 18 involves Defendant’s manual manipulation of the victim’s
penis. Dr. McGowan testified that she would not even counsel an HIV-positive patient
against masturbating a partner because masturbating an uninfected person “would be low risk
to the uninfected person.” Viewing the evidence in the light most favorable to the State, we
find that there is not sufficient evidence to support the conviction in Count 18.
C.
Defendant also contends that his sentence was excessive. When a defendant
challenges the length, range, or manner of service of a sentence, this Court reviews the trial
court’s decision under an abuse of discretion standard, with a presumption of reasonableness
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granted to “within-range sentencing decisions that reflect a proper application of the purposes
and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This same deferential standard applies to consecutive sentencing. State v. Pollard,
432 S.W.3d 851, 859 (Tenn. 2013). Whether a defendant is sentenced concurrently or
consecutively is a matter primarily within the trial court’s discretion. Dorantes, 331 S.W.3d
at 392.
This deferential standard of review comports with the statutory language of Tenn.
Code Ann. § 40-35-115(a), which gives trial courts discretion to impose concurrent or
consecutive sentences if a defendant is convicted of more than one offense. A trial court may
impose consecutive sentencing upon a determination that one or more of the criteria set forth
in Tenn. Code Ann. § 40-35-115(b) exists. This section permits the trial court to impose
consecutive sentences if the court finds, among other criteria, that:
(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to
the victim or victims[.]
Tenn. Code Ann. § 40-35-115(b)(5).
The trial court explained its reasons for imposing consecutive sentencing, including
consideration of the serious aggravating circumstances that Defendant befriended the victim,
that he provided the victim with alcohol, and that he directed the victim to engage in different
sexual poses. The nature and scope of the sexual acts were extreme, with Defendant sexually
penetrating the victim in multiple orifices. The victim’s impact statement revealed how
deeply the experience negatively affected him. Furthermore, Tenn. Code Ann.
§ 39-17-1005(d) specifically allows for consecutive sentencing for convictions of especially
aggravated sexual exploitation of a minor, even if arising out of the same conduct. We find
no abuse of discretion in the trial court’s imposition of consecutive sentences under Tenn.
Code Ann. § 40-35-115(b).
Conclusion
We affirm all eleven convictions of especially aggravated sexual exploitation of a
minor, all six convictions of aggravated statutory rape, and four of the seven convictions for
criminal exposure of another to HIV. We reverse three convictions for criminal exposure of
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another to HIV, finding there was insufficient evidence to support those three convictions
in light of the expert medical testimony that those acts did not constitute a significant risk of
HIV transmission. Accordingly, Defendant’s sentence is modified to an effective term of
156 years. Otherwise, Defendant’s sentence is affirmed. Because Defendant is indigent,
costs of this appeal are taxed to the State of Tennessee, for which execution may issue if
necessary.
____________________________
SHARON G. LEE, JUSTICE
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