State of Tennessee v. Antoine Tony Blugh

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 21, 2015
STATE OF TENNESSEE v. ANTOINE TONY BLUGH
Appeal from the Criminal Court for Sullivan County
No. S62120 Robert H. Montgomery, Jr., Judge
No. E2014-01597-CCA-R3-CD – Filed October 23, 2015
The Defendant-Appellant, Antoine Tony Blugh, was charged by presentment in count 1
of violating the Sex Offender Registration Act by establishing a residence within 1000
feet of a public park, in count 2 of violating the Sex Offender Registration Act by failing
to timely register within forty-eight hours of changing his residence, in count 3 of an
enhanced violation of the Sex Offender Registration Act by establishing a residence
within 1000 feet of a public park after already having been convicted of a prior sex
offender registry violation, and in count 4 of an enhanced violation of the Sex Offender
Registration Act by failing to timely register after already having been convicted of a
prior sex offender registry violation, all of which were Class E felonies. See T.C.A. §§
40-39-211, -208. Prior to trial, Blugh filed a motion to dismiss the presentment, which
the court denied. At trial, the jury acquitted Blugh in counts 1 and 3 but convicted him of
count 2, and, following the second part of the bifurcated trial, convicted him of the
enhanced violation in count 4. After merging count 2 with count 4, the trial court
imposed a sentence of two years and six months, with a mandatory minimum sentence
length of 180 days‟ imprisonment. See id. § 40-39-208(d). On appeal, Blugh argues: (1)
the trial court erred in denying his motion to dismiss the presentment; (2) the trial court
erroneously instructed the jury as to the applicable law regarding his status as a sexual
offender in Tennessee; and (3) the trial court erred in denying his motion for judgment of
acquittal because there was a fatal variance between the crimes alleged in the
presentment and the evidence presented at trial. Upon review, the judgments of the trial
court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROGER A. PAGE
and ROBERT L. HOLLOWAY, JR., JJ., joined.
Stephen M. Wallace, District Public Defender, and Steven D. Bagby, Assistant Public
Defender, Blountville, Tennessee, for the Defendant-Appellant, Antoine Tony Blugh.
Robert E. Cooper, Jr., Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Emily Smith,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On August 12, 1996, Blugh entered a guilty plea to the charge of Rape, Third
Degree in the state of New York. As a result of his guilty plea, Blugh was required to
register with New York‟s sex offender registry.
Trial. Jeanne Broadwell, general counsel for the Tennessee Bureau of
Investigation (TBI) and legal advisor to the Sex Offender Registry Unit, testified that the
TBI maintains records for each offender required to register in the state of Tennessee.
Broadwell, after identifying Blugh‟s certified conviction, stated that Blugh had been
convicted of Rape, Third Degree in New York. She identified Blugh‟s crime as “[b]eing
21 years old or more [and] engaging in sexual intercourse with another person less than
17 years old to whom the actor is not married.” She stated that Blugh was currently
categorized as a “sexual offender” in Tennessee.
Broadwell said it was her professional legal opinion that an individual with an out-
of-state conviction who was required to register in the convicting state had to register in
Tennessee, regardless of the type of conviction in the convicting state. She
acknowledged that Blugh‟s certified conviction did not include a statement requiring
Blugh to register as a sexual offender in the State of New York. However, a New York
State Sex Offender Registration Form, which was entered as an exhibit at trial, showed
that Blugh was required to register as a sex offender in New York as a result of his
conviction for Rape, Third Degree.
Janet Burgess, a probation and parole officer with the Tennessee Department of
Correction, testified that she was assigned to supervise Blugh on January 7, 2012. At
their March 7, 2012 meeting, they reviewed the sex offender registry, and Blugh signed a
copy of the registration form including these rules. Burgess stated that one of the rules
they discussed was the requirement that Blugh notify her within forty-eight hours of any
change in his residence. During their December 3, 2012 meeting, she reviewed the rules
regarding the sex offender registry rules with Blugh a second time, and Blugh again
signed the form containing the rules. Burgess stated that she went through the
registration process with Blugh because he had a conviction for Rape, Third Degree,
which is a sex offense, and because she had been trained that if an individual is required
to register in another state, then he is required to register as a sex offender in Tennessee
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as well. She stated that the TBI makes the determination about which individuals are
required to register in Tennessee.
On December 10, 2012, Blugh telephoned Burgess to inform her that he had left
his marital residence because of a disagreement with his wife and had checked himself
into the Speedway Motel in Bristol, Tennessee. Burgess informed Blugh that it was
permissible for him to stay at that address.
On the morning of December 19, 2012, Burgess learned that Blugh was not a
resident of the Speedway Motel when she conducted a routine home check; however, she
acknowledged that Blugh stayed at this motel the night of December 19, 2012. Burgess
called Blugh on December 19, 2012, and asked him to come to her office that day. At
their meeting, Blugh told Burgess that he had been staying at his mother‟s apartment in
Bristol, Virginia, and she informed him that he could not stay there because it was
outside the state of Tennessee. Blugh then told her that he would return to the Speedway
Motel. During the December 19, 2012 meeting, Burgess placed a GPS tracking device
on Blugh‟s ankle. On December 20, 2012, Blugh called and left Burgess a message that
he was going to continue to stay at the Speedway Motel.
Burgess did not have contact with Blugh again until they met on January 9, 2013.
At that meeting, Blugh completed a registration form but left the address section blank.
Burgess asked if he had spent the last night at the Speedway Motel, and Blugh replied
that he had not. Blugh then told her that it had been nine days since he had last stayed at
the Speedway Motel. He asked Burgess to check a couple of addresses, including 610
Rose Street, Bristol, Tennessee, and she informed him that he could not stay at the Rose
Street address because it was less than 1000 feet from a city park.
Ashley Fuller, the director of an electronic monitoring company that contracts
with the Tennessee Department of Correction, was declared an expert in Global
Positioning System (GPS) tracking technology. Fuller stated that during the period from
December 24, 2012 to January 9, 2013, Blugh spent substantial periods of time at 610
Rose Street, Bristol, Tennessee.
Donas Garrett, Blugh‟s co-worker, testified that on December 24, 2012, Blugh
asked to stay for a couple of weeks at his home, which was located at 610 Rose Street.
Blugh never informed Garrett that he was a registered sex offender. Blugh stayed at
Garrett‟s home from December 25, 2012 until the first week of January 2013, although
Garrett acknowledged that Blugh had not spent every night at his home during that time
period.
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The defense recalled Janet Burgess to testify during its case-in-chief. Burgess
stated that Blugh was allowed to report changes in his residence by calling her office
phone or cell phone, by leaving a message on either of these phones, or by notifying her
in person during their meetings. Burgess acknowledged that she was not at work from
December 24, 2012 to January 1, 2013. However, she asserted that her office was not
closed every day between December 25, 2012 and January 3, 2013. Burgess said that
Blugh never contacted her to report that he had moved to 610 Rose Street. She stated that
the only phone call she received from Blugh was on December 20, 2012, when he left a
message stating that he was going to continue staying at the Speedway Motel.
During the second part of the bifurcated trial regarding count 4, the State entered a
certified judgment form showing that on February 10, 2011, Blugh entered a guilty plea
in Sullivan County Criminal Court to violating the sex offender registry, for which he
received a sentence of three years to be served on supervised probation.
ANALYSIS
I. Motion to Dismiss. Blugh contends that the trial court erred in denying his
motion to dismiss the presentment. Although Blugh was acquitted of counts 1 and 3, he
was convicted of counts 2 and 4. We conclude that the court‟s denial of the motion to
dismiss was proper.
Blugh was charged in count 2 with violating the Sex Offender Registration Act by
failing to timely register within forty-eight hours of changing his residence. His
obligations as a convicted sex offender are outlined in Tennessee Code Annotated
sections 40-39-201 to -215, which is known as the “Tennessee Sexual Offender and
Violent Sexual Offender Registration, Verification and Tracking Act of 2004” (referred
to in this opinion as the Act, the Registration Act, or the Sex Offender Registration Act).
This Act “is a comprehensive statute requiring persons convicted of certain offenses to
register with the TBI and to have their names, addresses and other information
maintained in a central offender registry.” Stephen Strain v. Tenn. Bureau of
Investigation, No. M2007-01621-COA-R3-CV, 2009 WL 137210, at *2 (Tenn. Ct. App.
Jan. 20, 2009); see also T.C.A. § 40-39-206 (2012); Ward v. State, 315 S.W.3d 461, 468
(Tenn. 2010).
“It is an offense for an offender to knowingly violate any provision” of the Sex
Offender Registration Act. T.C.A. § 40-39-208(a). A person “acts knowingly with
respect to the conduct or to circumstances surrounding the conduct when the person is
aware of the nature of the conduct or that the circumstances exist.” Id. § 39-11-302(b).
A violation of the Act shall include the “[f]ailure of an offender to timely register or
report[.]” Id. § 40-39-208(a)(1). As applicable to count 2, Tennessee Code Annotated
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section 40-39-203(a)(1) provides, “Within forty-eight (48) hours of establishing or
changing a primary or secondary residence, . . . the offender shall register or report in
person, as required by this part.”
On April 29, 2014, prior to trial, Blugh filed a motion to dismiss pursuant to
Tennessee Rule of Criminal Procedure 12(b)(2), arguing that he did not have a conviction
in Tennessee for an offense listed in Code section 40-39-202 as a “sexual offense” or a
“violent sexual offense” and that his conviction in New York for Rape, Third Degree was
not a “qualifying conviction” under Code section 40-39-202. In a hearing immediately
prior to the start of trial, the court noted that it had previously denied the motion to
dismiss, although no transcript from a hearing on this motion and no order denying the
motion was included in the record. After the trial court mentioned the potential elements
for a jury instruction for count 2, defense counsel renewed its motion to dismiss the
presentment based on his belief that the court‟s proposed jury instruction was erroneous
under Tennessee law.
Defense counsel again argued that Blugh‟s conviction did not constitute a “sexual
offense” or a “violent sexual offense” under Code section 40-39-202. The court
responded that because Blugh had “another qualifying conviction,” he met the definition
of “sexual offender” under Code section 40-39-202(19). The court also stated that
pursuant to Code section 40-39-203(a)(2), Blugh was required to register because he had
been “required to register as any form of sexual offender, juvenile offender or otherwise,
in another jurisdiction prior to the offender‟s presence in this state.” In response, defense
counsel argued that because Blugh‟s New York conviction equated with the offense of
statutory rape in Tennessee, his conviction did not meet the definition of “conviction” in
Code sections 40-39-202(1) or -212(b). Consequently, defense counsel asserted that
Blugh was not a “sexual offender” under Tennessee law and that the charges should be
dismissed.
The trial court found that while Code section 40-39-212(b) identified a category of
offender that must register under the Act, it believed that the definition of “sexual
offender” in Code section 40-39-202(19) included an individual like Blugh who had a
“qualifying conviction.” Moreover, the court found that the legislature‟s intent was to
require an individual to register in Tennessee if that individual had been required to
register in the convicting state, regardless of whether that individual would have been
required to register if he or she committed the offense in Tennessee. For those reasons,
the trial court denied the motion to dismiss. Defense counsel renewed his motion to
dismiss based upon the same arguments several times throughout trial, and the trial court
denied the motion each time.
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Although Blugh did not raise the issue regarding the denial of his motion to
dismiss in his motion for new trial, we may address this issue on its merits. Tennessee
Rule of Appellate Procedure 3(e) provides, in pertinent part:
[I]n all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or counsel, or
other action committed or occurring during the trial of the case, or other
ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as
waived.
Tenn. R. App. P. 3(e) (emphasis added). By its explicit terms, Rule 3(e) operates as a
waiver of only those issues in which a new trial is the remedy for the error. Because the
remedy for this issue would be the dismissal of the charges in the presentment, Blugh was
not required to raise it in his motion for new trial. See id.; State v. Keel, 882 S.W.2d 410,
416 (Tenn. Crim. App. 1994) (“The waiver provision of Rule 3(e) . . . does not apply
when the issue, if found to be meritorious, would result in the dismissal of the
prosecution against the accused.”). Therefore, we will address Blugh‟s issue on its
merits.
First, Blugh argues that because his New York conviction for Rape, Third Degree
does not meet the definition for “sexual offense” in Code section 40-39-202(20), he is not
a “sexual offender” under Code section 40-39-202(19) or an “offender” under Code
sections 40-39-202(9). See T.C.A. §§ 40-39-202(19) (“„Sexual offender‟ means a person
who has been convicted in this state of committing a sexual offense or has another
qualifying conviction[.]”), 40-39-202(9) (“„Offender‟ means sexual offender, violent
sexual offender and violent juvenile sexual offender, unless otherwise designated.”). He
claims there is nothing within the Registration Act that requires a departure from the clear
language in the definition of “offender” in Code section 40-39-202(9) and that Code
section 40-39-203(a)(2) does not assign a different meaning for the term “offender.”
Second, Blugh contends his out-of-state conviction is not included in the definition
of “conviction” in Tennessee Code Annotated section 40-39-202(1), which provides that
a “conviction . . . for an offense committed in another jurisdiction that would be classified
as a sexual offense or a violent sexual offense if committed in this state shall be
considered a conviction for the purposes of this part.” He also argues that the meaning of
the phrase “another qualifying conviction” in the definition of “sexual offender” in Code
section 40-39-202(19) is derived from the definition of “conviction” in Code section 40-
39-202(1). He claims this interpretation is proper because it is mirrored by the definition
of “prior conviction” in Code section 40-39-207(g)(2)(B), a section having to do with
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offenders who must comply with the registration requirements for life because they have
one or more prior convictions for a sexual offense. See id. § 40-39-207(g)(2)(B) (“„Prior
conviction‟ includes convictions under the laws of any other state, government or country
that, if committed in this state, would constitute a sexual offense. If an offense in a
jurisdiction other than this state is not identified as a sexual offense in this state, it shall
be considered a prior conviction if the elements of the offense are the same as the
elements for a sexual offense[.]”).
Finally, Blugh challenges the holding in Cary Arnaz Harbin, a case in which the
Tennessee Supreme Court denied permission to appeal but designated as “not for
citation.” See State v. Cary Arnaz Harbin, No. 2013-02742-CCA-R3-CD, 2014 WL
5242612 (Tenn. Crim. App. Oct. 15, 2014), perm. app. denied (Tenn. Feb. 13, 2015). In
Harbin, the court held that Code section 40-39-211(a) applied not only to sexual
offenders classified by the Tennessee Code but also to out-of-state offenders required to
register under the Tennessee Act:
We . . . note that the Defendant was not charged with violating the
Act by failing to register in this State but rather upon establishing his
primary residence within one thousand feet of a licensed day care. See
Tenn. Code Ann. § 40-39-211(a). The initial clause of section -211(a)
reads, “While mandated to comply with the requirements of this chapter, no
sexual offender, as defined in § 40-39-202, or violent sexual offender, as
defined in § 40-39-202,” shall engage in the prohibited behavior. If we
were to read the plain text of this clause literally, this section would only
apply to an offender classified by the Tennessee Code, which would yield
an absurd result and cannot be what the legislature intended as the
legislature also made provisions for out-of-state offenders to register.
Looking at the entire statutory scheme, we further conclude that, if the
Defendant was mandated to comply with the registration requirements of
the Act, this necessarily included the restrictions on establishing a place of
residence forbidden by section -211(a). Therefore, we conclude that the
Defendant was an offender subject to all requirements of the registration
act, and the indicted charge may proceed.
Id. at *7. Blugh claims that the absurdity noted by this court in Harbin regarding Code
section 40-39-211(a) does not exist in his case because the term offender “refers to a
person with either . . . in-state convictions defined by [Code] section [40-39-]202 or out-
of-state convictions that would have been a sexual offense under [Code] section [40-39-]
202 if committed in this state.” Blugh asserts that Code section 40-39-203(a)(2) should
“be interpreted to exclude persons who do not have convictions that would equate to a
registry offense in Tennessee regardless of their registry status in other states.” He
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claims that “to conclude otherwise would be to disregard and render superfluous or void
the statute‟s use of the clearly defined term “offender” in [Code s]ection [40-39-
]203(a)(2).”
Blugh‟s arguments concern whether he qualifies as a “sexual offender” subject to
the requirements of the Registration Act. Consequently, resolving these arguments
necessarily involves principles of statutory construction. See State v. Jim George
Conaser, No. M2011-02086-CCA-R3-CD, 2013 WL 4505410, at *6 (Tenn. Crim. App.
Aug. 21, 2013). We acknowledge that “[t]he role of courts in construing statutes is to
determine legislative intent and to effectuate legislative purpose.” Lind v. Beaman
Dodge, Inc., 356 S.W.3d 889, 903 (Tenn. 2011). Courts must “ascertain and give effect
to the legislative intent without unduly restricting or expanding a statute‟s coverage
beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing
State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)); see also Carter v. Bell, 279 S.W.3d
560, 564 (Tenn. 2009). When statutory language is clear and unambiguous, we must
look to its plain meaning and ordinary use to determine legislative intent. See State v.
Springer, 406 S.W.3d 526, 533 (Tenn. 2013) (citing Carter, 279 S.W.3d at 564); see also
State v. Collins, 166 S.W.3d 721, 726 (Tenn. 2005) (citing State v. Wilson, 132 S.W.3d
340, 341 (Tenn. 2004)). “In ascertaining the intent of the legislature, this Court may look
to the language of the statute, its subject matter, the object and reach of the statute, the
wrong or evil which it seeks to remedy or prevent, and the purpose sought to be
accomplished in its enactment.” Collins, 166 S.W.3d at 726 (internal quotation marks
and citations omitted). “[If] the parties derive different interpretations from the statutory
language, an ambiguity exists, and we must look to the entire statutory scheme in seeking
to ascertain legislative intent.” Owens, 908 S.W.2d at 926 (citing Lyons v. Rasar, 872
S.W.2d 895, 897 (Tenn. 1994)). Moreover, “[w]hen statutes conflict, either in language
or application, courts should construe each statute reasonably, in a manner that avoids
conflict and facilitates the harmonious operation of the law.” Lind, 356 S.W.3d at 903
(citations omitted). Furthermore, “[w]here two statutes are capable of coexistence, it is
this Court‟s duty, absent clearly expressed intention to the contrary, to regard each statute
as effective.” Horton v. Carroll Cnty., 968 S.W.2d 841, 844 (Tenn. Ct. App. 1997)
(citation omitted). “Statutes „in pari materia‟—those relating to the same subject or
having a common purpose—are to be construed together.” Owens, 908 S.W.2d at 926
(citing Lyons, 872 S.W.2d at 897); see Collins, 166 S.W.3d at 726. Additionally, courts
“„will not apply a particular interpretation to a statute if that interpretation would yield an
absurd result.‟” State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001) (quoting State v. Flemming,
19 S.W.3d 195, 197 (Tenn. 2000)). Issues regarding statutory construction are reviewed
de novo without a presumption of correctness. See Baker v. State, 417 S.W.3d 428, 433
(Tenn. 2013) (citing Carter, 279 S.W.3d at 564).
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At the time that Blugh entered his 1996 guilty plea to Rape, Third Degree,
Tennessee had in effect the “Sexual Offender Registration and Monitoring Act,” the
precursor to the “Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification, and Tracking Act of 2004.” See T.C.A. § 40-39-101 to -111 (1996),
repealed by T.C.A. § 40-39-201 to -211 (effective June 8, 2004). At the time of Blugh‟s
guilty plea, the term “sexual offense” was defined to include “statutory rape, under § 39-
13-506.” See id. § 40-39-101(3) (1996). That subsection was later amended to define
“sexual offense” to include the following: “Statutory rape, under § 39-13-506, if the
defendant has one (1) or more prior convictions for mitigated statutory rape under § 39-
13-506(a), statutory rape under § 39-13-506(b) or aggravated statutory rape under § 39-
13-506(c), or if the judge orders the person to register as a sexual offender pursuant to §
39-13-506(d)[.]” See id. § 40-39-202(20)(A)(ii) (effective July 1, 2012). The New York
State Sex Offender Registration Form, which was admitted into evidence, showed that
Blugh was required to register with the sex offender registry in the state of New York
after entering his guilty plea. Based on the July 1, 2012 amendment, which is still valid
law, a trial court has the discretion to order a defendant guilty of the offense of statutory
rape to register in Tennessee. Here, Blugh was charged by presentment on March 19,
2013, for his failure to timely register within forty-eight hours of changing his residence.
In Ward v. State, 315 S.W.3d at 468, the Tennessee Supreme Court held that because the
Act‟s language shows a clear intent that its requirements be applied retroactively to any
sexual offender, the “present form” of the Registration Act is applicable to a defendant,
rather than “the version in effect when [the defendant] entered his plea.” Therefore,
applying the current form of the Act, we conclude that Blugh meets the definition of
“sexual offender” because his offense, if committed in Tennessee, could have resulted in
a trial court ordering him to register as a sex offender in this state. Compare Harbin,
2014 WL 5242612, at *5.
Moreover, any lingering doubt is resolved by Tennessee Code Annotated section
40-39-203(a), which requires any out-of-state offender who is ordered to register in the
convicting state to register in Tennessee upon establishing sufficient contact, regardless
of the conviction offense. Code section 40-39-203(a) provides in pertinent part:
(a)(1) Within forty-eight (48) hours of establishing or changing a primary
or secondary residence, establishing a physical presence at a particular
location, becoming employed or practicing a vocation or becoming a
student in this state, the offender shall register or report in person, as
required by this part. Likewise, within forty-eight (48) hours of release on
probation or any alternative to incarceration, excluding parole, the offender
shall register or report in person, as required by this part.
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(2) Regardless of an offender‟s date of conviction, adjudication or
discharge from supervision, an offender whose contact with this state is
sufficient to satisfy the requirements of subdivision (a)(1) is required to
register in person as required by this part, if the person was required to
register as any form of sexual offender, juvenile offender or otherwise, in
another jurisdiction prior to the offender‟s presence in this state.
Id. § 40-39-203(a)(1)-(2) (emphasis added). Pursuant to the plain language of this
subsection, we conclude that Blugh, after establishing sufficient contact with this state,
was required to register in Tennessee because he was required to register in New York
following entry of his guilty plea. Compare, Harbin, 2014 WL 5242612, at *6. Such an
interpretation recognizes New York‟s adjudication and reasonably relates to the Act‟s
purpose of protecting Tennessee residents from sexual offenders and by preventing
sexual offenders from moving to Tennessee to avoid registration. See id. § 40-39-201(b).
Moreover, a 2009 Attorney General opinion supports this interpretation. In that
opinion, the Attorney General determined that out-of-state offenders whose convictions
have been expunged must register in Tennessee if they were required to register as any
form of sexual offender in another jurisdiction, so long as the offender meets the
residency or physical presence requirements in Code section 40-39-203. Tenn. Att‟y
Gen. Op. 09-01 (Jan. 8, 2009). As it relates to this case, the Attorney General concluded
that “Tenn. Code Ann. § 40-39-203(a)(2) (2008 Supp.) clearly and unambiguously
requires the registration of any out-of-state sex offender who establishes a presence in
Tennessee if, prior to establishing such a presence, the offender was required to register
in another state.” Id.
Therefore, we conclude that the registration requirements of the Act apply to any
individual, with sufficient contact with Tennessee, required to register with another
state‟s sex offender registry, regardless of whether that individual would have been
required to register if he or she had committed the offense in Tennessee. There is no
question that Blugh had sufficient contact with Tennessee to trigger the registration
requirements of the Act. Moreover, Code section 40-39-203(a)(2) states that the
registration requirements apply “if the person was required to register as any form of
sexual offender” in a different jurisdiction, a description that most certainly applies to
Blugh. Such language is indicative of the General Assembly‟s recognition that other
states may require registration for crimes other than those delineated in Tennessee and its
intent for such out-of-state offenders to register in Tennessee. Because Blugh‟s
conviction required him to register with the sex offender registry in New York, he was,
upon sufficient contact with this state, required to register with the sex offender registry
in Tennessee and was required to abide by all the requirements of the Tennessee Act.
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Consequently, we conclude that the trial court did not err in declining to dismiss the
presentment in this case.
II. Jury Instruction. Blugh also contends that due to the trial court‟s failure to
grant his motion to dismiss prior to instructing the jury, the court provided an erroneous
jury instruction in count 2 regarding the applicable law as to his status as a sex offender
in Tennessee, regarding the definition of “conviction” as contained in the Act, and
regarding the proper interpretations of the terms “sex offender” and “another qualifying
conviction.” Noting that the trial court fashioned its own jury charge in count 2, Blugh
claims the instruction given to the jury failed to fairly submit the legal issues and misled
the jury as to the applicable law.
As we previously noted, Tennessee Rule of Appellate Procedure 3(e) states that all
issues for review upon which a new trial is sought must be raised in a motion for new
trial. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for
review shall be predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or counsel, or other action
committed or occurring during the trial of the case, or other ground upon which a new
trial is sought, unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived.”). Although not raised by the State,
Blugh‟s issue regarding erroneous jury instructions, for which the appropriate remedy is a
new trial, was not included in his motion for new trial. While defense counsel attempted
to orally amend his motion for new trial to include “all of the issues that [he raised
during] pretrial, during trial, and sentencing” at the hearing, he did not reduce the
amendment to writing within thirty days of the entry of the judgment as required by
Tennessee Rules of Criminal Procedure 33(b). See Tenn. R. Crim. P. 33(b) (“A motion
for a new trial shall be in writing or, if made orally in open court, be reduced to writing,
within thirty days of the date the order of sentence is entered.”). This court has routinely
held that a defendant‟s failure to reduce an oral amendment to writing within thirty days
of entry of the judgment results in waiver of the issue. See State v. Ronnie Joe Stokes,
No. E2012-02153-CCA-R3-CD, 2013 WL 5536209, at *2 (Tenn. Crim. App. Oct. 7,
2013), perm. app. denied (Tenn. Feb. 12, 2014); State v. Terry Sanders, No. M2011-
00426-CCA-R3-CD, 2012 WL 5948885, at *5 (Tenn. Crim. App. Nov. 15, 2012); State
v. Bobby A. Raymer, No. M2011-00995-CCA-R3-CD, 2012 WL 4841544, at *4 (Tenn.
Crim. App. Oct. 10, 2012); State v. Ronald Lee Stewart, No. M2008-00337-CCA-R3-
CD, 2010 WL 2025407, at *4 (Tenn. Crim. App. May 21, 2010).
Therefore, we conclude that Blugh has waived this issue, absent plain error. The
plain error doctrine states that “[w]hen necessary to do substantial justice, an appellate
court may consider an error that has affected the substantial rights of a party at any time,
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even though the error was not raised in the motion for a new trial or assigned as error on
appeal.” Tenn. R. App. P. 36(b). In order for this court to find plain error,
“(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is „necessary to do substantial justice.‟”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). “[P]lain error must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal
quotations marks and citations omitted). “It is the accused‟s burden to persuade an
appellate court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he
presence of all five factors must be established by the record before this Court will
recognize the existence of plain error, and complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established.” Smith, 24 S.W.3d at 283.
Blugh argues that the trial court provided an erroneous instruction in count 2. The
right to trial by jury is guaranteed by the United States and Tennessee Constitutions. U.S.
Const. amend. VI; Tenn. Const. art. I, § 6. It follows that a defendant also has a
constitutional right to a correct and complete charge of the law, so that each issue of fact
raised by the evidence will be submitted to the jury on proper instructions. State v.
Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011) (citing State v. Faulkner, 154 S.W.3d 48, 58
(Tenn. 2005); State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001); State v. Garrison, 40
S.W.3d 426, 432 (Tenn. 2000)). Because questions regarding the propriety of jury
instructions are a question of law, the standard of review is de novo with no presumption
of correctness. State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014) (citing State v.
Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013); Nye v. Bayer Cropscience, Inc., 347
S.W.3d 686, 699 (Tenn. 2011)).
When reviewing challenged jury instructions, this court must “view the instruction
in the context of the charge as a whole” in determining whether prejudicial error has been
committed. Id. (citing State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008); State v.
Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)). An instruction is prejudicially erroneous
when “the instruction alone infected the entire trial and resulted in a conviction that
violates due process[.]” Id. (citing State v. James, 315 S.W.3d 440, 446 (Tenn. 2010)). In
addition, an instruction is prejudicially erroneous when the jury charge, read as a whole,
fails to fairly submit the legal issues or misleads the jury as to the applicable law. Id.
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(citing State v. Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010)).
Prior to trial, the State filed a request for a specific jury instruction for count 2
based on its mistaken impression that none of the pattern jury instructions covered the
specific fact pattern under which Blugh was required to register.1 The State requested the
following instruction for count two:
Any person who violates the sex offender registration act is guilty of a
crime.
For you to find the defendant guilty of this offense, the state must have
proven beyond a reasonable doubt the existence of the following essential
elements:
(1) that the defendant had a conviction for the offense of Rape in the Third
Degree;
and
(2) that the defendant was an adult when the offense occurred, and was
required to register as any form of sexual offender in another jurisdiction
prior to the defendant‟s presence in this state;
and
(3) that the defendant knowingly failed to report in person with a
designated law enforcement agency, completing and signing a TBI
registration form, within forty-eight (48) hours of establishing a primary or
secondary residence in Tennessee.
In response, Blugh proposed the following instruction for count 2, in pertinent
part:
Any person who violates the sex offender registration act is guilty of a
crime.
For you to find the defendant guilty of this offense, the state must have
proven beyond a reasonable doubt the existence of the following essential
elements:
(1) that the defendant had a conviction for [__________] [insert in this
blank space a criminal offense or offenses listed in Tenn. Code Ann. § 40-
1
As we will explain, pattern instruction T.P.I.—Crim. 10.16(a), Part P was the appropriate
instruction based on the charge and evidence in this case.
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39-202 under the definition of “Sexual Offense” or “Violent Sexual
Offense.”];
and
(2) that the defendant was an adult when the offense occurred, and was
required to report as any form of sexual offender in another jurisdiction
prior to the defendant‟s presence in this state;
and
(3) that the defendant knowingly failed to report in person with the
designated law enforcement agency, completing and signing a TBI
registration form, after establishing or changing a primary or secondary
residence.
Blugh also requested that the instructions include the first three sentences of the
definition of “conviction” as set out in Code section 40-39-202.
The trial court, after considering the instructions proposed by both sides, decided
to provide the following instruction to the jury at trial:
Any person who violates the Sex Offender Registration Act is guilty of a
crime.
For you to find the defendant guilty of this offense[,] the state must have
proven beyond a reasonable doubt the existence of the following essential
elements:
(1) that the defendant was required to register as a sexual offender in any
form in another jurisdiction prior to the defendant‟s presence in Tennessee;
and
(2) that the defendant knowingly failed to report in person with the
designated law enforcement agency[,] completing and signing a TBI
Registration Form within 48 hours of establishing or changing a primary or
secondary residence.
The court also included the first two sentences of the definition of “conviction” that was
requested by Blugh. In addition, the court also included the full definitions of “secondary
residence” and “sexual offender” in Code sections 40-39-202(18), -202(19), despite the
fact that they had not been included in defense counsel‟s suggested instruction.
Despite some confusion as to this issue, we note that the pattern jury instructions
contain an instruction appropriate for this offense. Pattern instruction T.P.I.—Crim.
10.16(a) states, in pertinent part:
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Any person who violates the sex offender registration act is guilty of a
crime.
For you to find the defendant guilty of this offense, the state must have
proven beyond a reasonable doubt the existence of the following essential
elements:
[Part P: only for offenses committed on or after 7/1/11:
(1) that the defendant was required to register [as a sexual offender in any
form] in another jurisdiction prior to the defendant‟s presence in Tennessee;
and
(2) that the defendant knowingly failed to register in person with the
designated law enforcement agency, completing and signing a TBI
registration form, within forty-eight (48) hours of [establishing or changing
a primary or secondary residence]
7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 10.16(a), Part P. (2015).
We conclude that the jury instruction given by the trial court fairly submitted the
legal issues and contained a proper statement of the applicable law. The instruction given
to the jury at Blugh‟s trial was identical to the instruction suggested in the appropriate
pattern instruction. See T.P.I.—Crim. 10.16(a), Part P (2015). While we acknowledge
that pattern instructions do not carry the force of law, we conclude that the instruction
given in this case properly set forth the elements of this offense. See State v. Rutherford,
876 S.W.2d 118, 120 (Tenn. Crim. App. 1993); State v. Norman Branch, No. W2013-
00964-CCA-R3-CD, 2014 WL 3744322, at *10 (Tenn. Crim. App. July 28, 2014), perm.
app. denied (Tenn. Dec. 19, 2014). Consequently, Blugh has failed to establish that a
clear and unequivocal rule of law was breached, that a substantial right of his was
adversely affected, or that consideration of the error was necessary to do substantial
justice. Because Blugh failed to establish all five factors required for plain error, he is
not entitled to relief. See Smith, 24 S.W.3d at 282.
III. Fatal Variance between the Presentment and the Evidence. Lastly, Blugh
argues that the trial court erred in denying his motion for judgment of acquittal because
there was a fatal variance between the allegations in the presentment and the evidence
presented at trial. Specifically, he claims that the presentment alleged that he committed
the offense in count 2 on or about December 28, 2012, while the proof, even when
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viewed in the light most favorable to the State, established that he committed the offense
on January 2, 2013, or January 3, 2013. He claims that because the evidence at trial
showed that he could not have established a primary or secondary residence at 610 Rose
Street any earlier than December 30, 2012, he could not have failed to register his address
pursuant to the Act by December 28, 2012. Moreover, he claims that due to the forty-
eight hour grace period following the change of a primary or secondary residence
allowed by Code sections 40-39-202(31) and -203(a)(1) as well as the exclusion of
weekends and state and federal holidays, he could not have committed the offense in
count 2 before January 2, 2013, for a secondary address or January 3, 2013, for a primary
address. We conclude that Blugh is not entitled to relief on this issue.
Tennessee Rule of Criminal Procedure 29 provides, in pertinent part:
On defendant‟s motion or its own initiative, the court shall order the entry
of judgment of acquittal of one or more offenses charged in the indictment,
presentment, or information after the evidence on either side is closed if the
evidence is insufficient to sustain a conviction of such offense or offenses.
Tenn. R. Crim. P. 29(b). When considering a motion for judgment of acquittal, whether
at the close of the State‟s proof or after the conclusion of all proof at trial, the trial court is
only concerned with the legal sufficiency of the evidence and not with the weight of the
evidence. State v. Collier, 411 S.W.3d 886, 892 (Tenn. 2013) (citing State v. Hall, 656
S.W.2d 60, 61 (Tenn. Crim. App. 1983); State v. Blanton, 926 S.W.2d 953, 957 (Tenn.
Crim. App. 1996); State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995)). “This
rule empowers the trial judge to direct a judgment of acquittal when the evidence is
insufficient to warrant a conviction either at the time the state rests or at the conclusion of
all the evidence.” James, 315 S.W.3d at 455 (citing Overturf v. State, 571 S.W.2d 837,
839 & n.2 (Tenn. 1978)). If a defendant chooses to present proof after the trial court
denies the motion for judgment of acquittal made at the close of the State‟s case-in-chief,
then he “waive[s] any claim of error for failure to grant the motion for judgment of
acquittal at the conclusion of the proof offered by the State.” Collier, 411 S.W.3d at 893.
However, if the defendant renews his motion for judgment of acquittal at the conclusion
of all the evidence, he does not “waive his right to appeal the denial of the motion made
at the close of all of the proof or to challenge the sufficiency of the convicting evidence.”
Id.
When a motion for judgment of acquittal is made at the close of all the proof, the
trial court must favor the party opposing the motion with the strongest legitimate view of
the evidence, including all reasonable inferences from the evidence, and cast aside any
countervailing evidence. Id. (citing James, 315 S.W.3d at 455). We recognize that “[t]he
standard by which the trial court determines a motion for judgment of acquittal is, in
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essence, the same standard that applies on appeal in determining the sufficiency of the
evidence after a conviction[.]” Id. (citing State v. Little, 402 S.W.3d 202, 211 (Tenn.
2013)); see State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000).
Accordingly, we must consider “whether „any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d
883, 903 (Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn.
R. App. P. 13(e). The standard of review for sufficiency of the evidence “„is the same
whether the conviction is based upon direct or circumstantial evidence.‟” State v.
Dorantes, 331 S.W.3d at 379 (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). In applying this standard of review, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing Majors, 318 S.W.3d
at 857). The trier of fact must evaluate the credibility of the witnesses, determine the
weight given to witnesses‟ testimony, and reconcile all conflicts in the evidence. State v.
Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295
(Tenn. Crim. App. 1978)). This court shall not substitute its inferences for those drawn
by the trier of fact. Id.
Here, at the close of the State‟s proof, defense counsel moved for a judgment of
acquittal for count 2 on the basis that this count alleged that the offense took place on
December 28, 2012, while the proof at trial established that Blugh committed the offense
on January 4, 2013. Defense counsel argued that because a violation of the Act is a
continuing offense, Blugh risked being later prosecuted for the same violation occurring
during a slightly different time period. He asserted that Blugh was “entitled to an
accurate, clear and decisive indictment” that was “specific enough for him to defend
against.” After considering these arguments, the trial court observed that the State used
the phrase “on or about” when identifying the date of the offense in count 2 and
specifically charged Blugh in that count with failing to report a change of his primary or
secondary residence within forty-eight hours. Moreover, the trial court recognized that
during discovery Blugh was given the GPS information covering the period from
December 25, 2012 to January 9, 2013, which prevented him from being surprised at trial
and precluded double jeopardy problems. Ultimately, the trial court denied the motion
for judgment of acquittal, holding that there was substantial evidence from which a jury
could find Blugh guilty beyond a reasonable doubt of failing to notify his probation
officer within forty-eight hours of establishing a primary or secondary residence. After
the court made this ruling, the defense presented the testimony of Janet Burgess in its
case-in-chief.
Following Burgess‟s testimony and at the close of his case-in-chief, Blugh
renewed his motion to dismiss the charges and renewed his motion for judgment of
acquittal, repeating his prior arguments and making a new argument that Code section
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40-39-203(a)(2) was not referenced in the definitions of “sexual offender” and “violent
sexual offender” in the TBI Instructions Form for registrants because that section was
only meant to apply to “violent juvenile sexual offenders.” The trial court denied both
motions because it believed that Blugh‟s conviction, which required him to register with
the sexual offender registry in New York, was a qualifying conviction that required his
registration and compliance with the Act‟s requirements in Tennessee. The court noted
that the General Assembly had an interest in preventing individuals from moving to
Tennessee to avoid having to register as a sex offender. Blugh renewed his motion for
judgment of acquittal after the close of proof during the second part of the bifurcated trial
for count 4. Although Blugh waived his right to appeal any issue regarding the court‟s
failure to grant the motion for judgment of acquittal at the conclusion of the proof offered
by the State, he did not waive his right to appeal the court‟s denial of the motion made at
the close of all of the proof in the case and did not waive his right to challenge the
sufficiency of the convicting evidence.
Blugh argues that the trial court erred in denying his motion for judgment of
acquittal as to counts 2 and 4 because there was a fatal variance between the offenses
charged in the presentment and the evidence presented at trial. A variance exists when
the proof at trial does not correspond to the allegations in the indictment. State v. March,
293 S.W.3d 576, 588 (Tenn. Crim. App. 2008) (citing Keel, 882 S.W.2d at 416). A
variance is not fatal unless it is material and prejudicial. State v. Moss, 662 S.W.2d 590,
592 (Tenn. 1984); State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000); State
v. Holloman, 835 S.W.2d 42, 45 (Tenn. Crim. App. 1992). “A material variance occurs
only if the prosecutor has attempted to rely at the trial upon theories and evidence that
were not fairly embraced in the allegations made in the indictment.” State v. Mayes, 854
S.W.2d 638, 640 (Tenn. 1993) (citation omitted); State v. Ealey, 959 S.W.2d 605, 609
(Tenn. Crim. App. 1997). The Tennessee Supreme Court outlined the following test for
determining whether a variance is prejudicial:
“Unless substantial rights of the defendant are affected by a variance, he
has suffered no harm, and a variance does not prejudice the defendant‟s
substantial rights (1) if the indictment sufficiently informs the defendant of
the charges against him so that he may prepare his defense and not be
misled or surprised at trial, and (2) if the variance is not such that it will
present a danger that the defendant may be prosecuted a second time for the
same offense; all other variances must be considered to be harmless error.”
Mayes, 854 S.W.2d at 640 (quoting Moss, 662 S.W.2d at 592).
Upon review, we conclude that the presentment and the evidence substantially
corresponded. The trial transcript shows that the State relied on theories and evidence
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fairly embraced in the allegations made in the presentment. The proof established that
Blugh could have established a secondary residence as early as December 28, 2012, or a
primary residence as early as December 29, 2012, and the Registration Act required him
to report his change in address within forty-eight hours of establishing a primary or
secondary residence. See T.C.A. §§ 40-39-202(12) (“„Primary residence‟ means a place
where the person abides, lodges, resides or establishes any other living accommodations
in this state for five (5) consecutive days[.]”), 40-39-202(18) (“„Secondary residence‟
means . . . a place where the person routinely abides, lodges or resides for a period of four
(4) or more consecutive or nonconsecutive days in any month and that is not the person‟s
primary residence, including any out-of-state address[.]”). Accordingly, the presentment
sufficiently informed Blugh of his charges, allowing him to prepare a defense without
being misled or surprised at trial. See State v. Quincy D. Moutry, No. E2011-02531-
CCA-R3-CD, 2013 WL 3105616, at *8 (Tenn. Crim. App. June 17, 2013) (holding that
the variance was neither material nor prejudicial when the indictment charged the
defendant with committing the offense “on or about the 13th day of March” and the
evidence established that the offense occurred on March 4 because the defendant‟s
substantial rights were not affected); State v. Thomas Dee Huskey, No. E1999-00438-
CCA-R3-CD, 2002 WL 1400059, at *190 (Tenn. Crim. App. Oct. 11, 2002) (finding that
the variance was neither material nor prejudicial when the indictment stated the offense
occurred between August 23, 1991, and September 6, 1991, and the victim testified that it
occurred during the second week of August because the defendant was not surprised by
the dates testified to by the victims and there was no danger that he would be prosecuted
a second time for the same offense).
We also conclude that the presentment and evidence presented at trial are
sufficient to protect Blugh from further prosecution for the same offenses. Although
Blugh claims he could be later charged for these crimes because violations of the Act are
continuing offenses, the principles of double jeopardy preclude a subsequent prosecution
unless it is clear that the offenses are entirely separate and discrete. See, e.g., State v.
Goins, 705 S.W.2d 648, 650 (Tenn. 1986). Moreover, Blugh may rely on the indictment
and the entire record in this case if he is later prosecuted for the same offenses. See
Mayes, 854 S.W.2d at 642 (holding that the indictment along with the record prevented a
subsequent prosecution for a drug sale at the time and place identified in the indictment
despite the variance as to the identity of the purchaser). Because this alleged variance
was neither material nor prejudicial, the trial court did not err in denying Blugh‟s motion
for judgment of acquittal at the close of all the proof.
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CONCLUSION
Based on the aforementioned authorities and reasoning, we affirm the judgments
of the trial court.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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