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State v. Hogg

Supreme Court of Tennessee, Nashville

September 25, 2014

STATE OF TENNESSEE
v.
BARRY H. HOGG

Session February 6, 2014

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Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed in Part and Reversed in Part. Appeal by Permission from the Court of Criminal Appeals Criminal Court for Wilson County. No. 10-CR-57. David Earl Durham, Judge.

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.

SHARON G. LEE, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

OPINION

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SHARON G. LEE, JUSTICE

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.

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

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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. § 39-17-1005 (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. § 39-13-506(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]

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

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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 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 ...


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