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State v. Driver

Court of Criminal Appeals of Tennessee, Jackson

May 27, 2015


Assigned on Briefs March 3, 2015.

Appeal from the Circuit Court for Madison County No. 14-7 Roy B. Morgan, Jr., Judge.

George Morton Googe, District Public Defender, and Jeremy B. Epperson, Assistant Public Defender, Jackson, Tennessee, for the appellant, James Harrell Driver.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jerry Woodall, District Attorney General; and Rolf G.S. Hazlehurst, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Robert H. Montgomery Jr. and Timothy L. Easter, JJ., joined.



I. Background and Facts

The Defendant impregnated his wife's younger sister, C.E., [1] when she was between fifteen and seventeen years old, and C.E. gave birth to a boy in December 2000. The Defendant was convicted of statutory rape of C.E. in 2002 and placed on the Sex Offender Registry. After his release from prison, the Defendant renewed his relationship with C.E. in an effort to have a relationship with his son. At this time, C.E. also had a minor daughter ("minor child") living with her from a relationship with another man. On August 24, 2013, a Madison County Sheriff's Office deputy found the Defendant residing at C.E.'s residence where C.E.'s then five-year-old daughter also resided, in violation of the Sex Offender Registry requirement that the Defendant not live with a minor that is not his legal child. A Madison County grand jury indicted the Defendant for violation of the Sexual Offender Registry residency restriction.

At a trial on this charge, the parties presented the following evidence: Mark Headen, a Jackson Police Department investigator, testified that he oversaw all sex offenders on the Sex Offender Registry. He confirmed that the Defendant was one of the persons that he supervised in this capacity. Investigator Headen identified the 2002 judgment of conviction of the Defendant for statutory rape. He stated that he had been supervising the Defendant since 2011. He also identified the Tennessee Bureau of Investigation ("TBI") requirement form for persons on the Sex Offender Registry signed by the Defendant and dated July 2, 2013.

Investigator Headen explained that the Defendant had "been on the registry for quite some time" but, during the last review of the TBI requirement form, Investigator Headen asked the Defendant if there were any requirements he did not understand. The Defendant responded, "No, sir. Are there any new changes?" Investigator Headen informed the Defendant that there were no new changes, and the Defendant signed the requirement form. Investigator Headen confirmed that he had reviewed the requirements with the Defendant "numerous times" over the course of his supervision of the Defendant, and the Defendant had attended a class in October 2011 where Investigator Headen reviewed the requirements with attendees "more specifically." Investigator Headen stated that, based upon his experience with the Defendant, he believed the Defendant understood what was required of him in relation to the Sex Offender Registry.

Investigator Headen read aloud the requirement that "no sex offender or violent sex offender whose victim was a minor shall knowingly reside with" a minor unless the offender is the legal parent of the minor. Investigator Headen confirmed that the Defendant listed an address located on Highway 70 East address as his secondary residence as recently as August 28, 2013. He explained that the TBI defined a secondary residence as, "some place that you may stay 15 times a year, some place that you do not permanently reside but have an occasion to visit."

On cross-examination, Investigator Headen explained that the Defendant told him that he wanted to list the Highway 70 address as a secondary residence in order to help out an ill family member. Investigator Headen stated that he was aware that C.E. resided at this address but that the Defendant's son also lived there. He understood that the Defendant's presence at the residence was to assist in caring for his son. On redirect examination, Investigator Headen stated that he was unaware that a second child not related to the Defendant also lived at the Highway 70 residence. He confirmed that the Defendant and C.E. were not married.

Shane Paar, a Madison County Sheriff's office deputy, testified that in August 2013 he was dispatched to an address on Highway 70 to conduct a welfare check. Deputy Paar explained that the nature of the welfare check was to confirm that a minor child was not living at the residence with an offender in violation of the Sex Offender Registry. When Deputy Paar arrived at the address, he observed toys in the yard and a black pickup truck in the driveway. Deputy Paar "ran the registration of the truck" and confirmed the Defendant's ownership of the truck. Deputy Paar made contact with a white female at the front door who advised that the Defendant was "on his way home." Deputy Paar explained the purpose of his visit, and the female invited him inside the residence. He described the residence as "poor living conditions for any type of child." He recalled that the female identified herself as the Defendant's wife and, by all indications of her statements, the Defendant was a resident at this address.

Deputy Paar observed two pairs of mens jeans inside one of the bedrooms. He also found the minor child in the "parent's bedroom, " and the Defendant's son in his own bedroom at the rear of the trailer. The minor child was in a "makeshift bed" at the foot of the bed in the "parents' bedroom." Deputy Paar stated that he made contact with the Defendant by telephone, and the Defendant stated that he was on his way "home." Deputy Paar explained that he was conducting a welfare check and asked to speak with the Defendant in person. The Defendant arrived, on foot, shortly after the telephone call.

Deputy Paar testified that he asked the Defendant how many times a week he stayed at the trailer and about his relationship to each of the people residing there. The Defendant told Deputy Paar that the minor child was his daughter. Deputy Paar then informed the Defendant that he had already identified the minor child's father, who was out of the country at that time. The Defendant admitted to Deputy Paar that he did reside overnight at the residence "from time to time" while the minor child was present. Deputy Paar arrested the Defendant and transported him to the criminal justice complex where the Defendant gave a statement.

Deputy Paar read the Defendant's statement aloud, as follows:

I, [the Defendant], do use [the Highway 70 residence], as a secondary address. The reason for this being my secondary address is my 12-year-old son lives there. Also living there is [P.E.], my son's grandmother, [C.E.], [my son's] mother, and [the minor child], [my son's] younger sister. . . . I stay at [the Highway 70 residence] from Friday 'til Monday when [my son's grandmother] has to work, and sometimes either Thursday or Tuesday I help [my son's grandmother, P.E., ] by making sure [my son] gets up for school and takes his medicines in the morning, afternoon and at night. I do help with chores when I'm there. I am present while [the minor child] is there but never alone with her. [C.E.] watches [the minor child], even if we all are outside playing. I have been at [the Highway 70 residence] this week for the fact that [my son] was released from the hospital Saturday, 8/17, from being hospitalized with staph infection in the bend of his right arm. When I stay at [the Highway 70 residence] I sleep on the couch in the living room. [My son] sleeps in the back room along with his grandmother when she's off work. [The minor child] sleeps in the front bedroom with [C.E.], her mother. I was told by [C.E.] that she had called the District Attorney, Jody Pickens, and talked to him about me being around her and staying at the [Highway 70 residence]. I was told by [C.E.] that Jody Pickens told her if she was okay with me being around her and staying at the [Highway 70 residence], then he was okay with it as well. I have called Jody Pickens and he returned my call. I spoke with him about me being around [C.E.] because she and I were wanting to date each other. She wants me to be a part of my 12-year-old son's life. Jody Pickens informed me that he did not feel comfortable talking to me seeing that he and I are on different sides of the law. Jody did tell me that he would talk to [C.E.] if she called him.
I have spoken with Investigator Mark Headen, and he is aware that I do and have stayed at [the Highway 70 residence], with my son . . . . Investigator Headen is aware that [C.E.] and I are also dating and want to be a family for our son . . . . I have left messages for Investigator Headen I would be staying at [the Highway 70 residence], while I would be staying there. I have also left a message for Investigator Headen that my 12-year-old son . . . was hospitalized Thursday, 8/15, at 4:30 a.m. at Regional Hospital with staph infection in his right arm. [My son] was released Saturday, 8/17, and I have been staying with [my son].

The statement was signed and dated August 24, 2013. Deputy Paar identified the minor child's birth certificate listing C.E. as the mother and no listing for a father.

C.E. testified on the Defendant's behalf that she and the Defendant have a twelve-year-old son together. Their son was thirteen at the time of trial and would turn fourteen on December 21. C.E. confirmed that she was the victim of statutory rape and that the Defendant was convicted as a result. C.E. stated that she had remained in contact with the Defendant concerning their son since the Defendant's conviction. C.E. recalled that in August 2013, her son contracted a staph infection and was hospitalized. Upon his release from the hospital, the Defendant came to her residence to help her with the administration of their son's medication. She explained, "[The Defendant] was not living with us. He was staying there helping us with [my son] because [my son] was on 800 milligram[s] of antibiotics and we had to give them every eight hours, and ...

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