Court of Criminal Appeals of Tennessee, Nashville
Session August 12, 2014
Appeal from the Criminal Court for Sumner County No. 492-2013 Dee David Gay, Judge
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; L. Ray Whitley, District Attorney General; and Jayson C. Criddle, Assistant District Attorney General, for the appellant, State of Tennessee.
David A. Doyle, District Public Defender, for the appellee, Cary Arnaz Harbin, III.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
On June 6, 2013, a Sumner County grand jury returned a two-count indictment against the Defendant, charging him in Count 1 with theft of merchandise valued over $500 and in Count 2 with violating the sexual offender registration act's requirements. See Tenn. Code Ann. §§ 39-14-103, -105, -146 & 40-39-211. Specifically, Count 2 of the indictment charged the Defendant as follows:
[The Defendant h]eretofore on or about April 18, 2013, . . . did unlawfully and knowingly establish a primary residence within 1, 000 feet of the property line of a licensed day care center, after having been convicted in Oakland County, Michigan, as a sexual offender as defined by Tennessee Code Annotated 40-39-202(19) said conviction resulting from his violation in Oakland County, Michigan, on November 2008, of Sexual Conduct, and his victim was a minor, against the peace and dignity of the State of Tennessee.
Thereafter, the Defendant filed a motion to dismiss Count 2, contending that "the Defendant was not convicted in Michigan of an offense that would be classified as either a 'sexual offense' or 'violent sexual offense'" as defined by the registration act and, thus, he was not subject to the residential and work restrictions of the sexual offender registry. The Defendant attached the Michigan judgment form to his motion. The Michigan judgment form reflected that the then twenty-two-year-old Defendant pled guilty on October 22, 2008, to criminal sexual conduct in the third degree in violation of Michigan Compiled Laws Annotated section 750.520d(1)(a). The judgment form also provided that the Defendant was to submit to DNA and HIV testing, was to comply "with sex offender registration requirements, " and was to have no contact with the victim.
The State responded to the Defendant's motion to dismiss. Initially, the State conceded that the Defendant's Michigan conviction for criminal sexual conduct in the third degree did not meet the definition of "sexual offense" or "violent sexual offense" as defined by Tennessee Code Annotated section 40-39-202 "at the time [the Defendant] was convicted." However, the State "submit[ted] that there [were] two other bases that would support a conviction for [v]iolation of the [s]ex [o]ffender [r]egistry[.]" As the first basis, the State cited to section 40-39-203(a)(2), which reads,
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.
(Emphasis added in State's response). The State argued that "[u]nder this section, if the Defendant was required to register in Michigan as a result of his conviction[, ] he [was] also required to register in Tennessee, regardless of whether he would have been required to register in Tennessee had the offense occurred in Tennessee." The State further argued that the language of this subsection requiring the offender to register "as required by this part, " included all of the requirements of the registration act.
Secondly, the State argued that the Defendant's Michigan conviction was the equivalent of statutory rape in Tennessee, and although it was a "non-[r]egistry offense in Tennessee at the time of the Defendant's conviction in 2008, [s]tatutory [r]ape [was now] a [r]egistry eligible offense in Tennessee at the [trial c]ourt's discretion." Citing to Ward v. State, 315 S.W.3d 461, 468 (Tenn. 2010), for support that the present form of the registration act is applicable to the Defendant, the State reasoned that, "as long as the Defendant's conviction in Michigan required him to ...