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State v. Jernigan

Court of Criminal Appeals of Tennessee, Nashville

March 15, 2017

STATE OF TENNESSEE
v.
LAVAR JERNIGAN

          Assigned on Briefs at Knoxville November 16, 2016

         Appeal from the Circuit Court for Rutherford County No. F-71221 Royce Taylor, Judge.

         The Defendant, Lavar Jernigan, was convicted by a Rutherford County Circuit Court jury of six counts of especially aggravated sexual exploitation of a minor, Class B felonies. See T.C.A. § 39-17-1005 (2010) (amended 2013). The trial court sentenced the Defendant to ten years for each count and ordered partial consecutive service, for an effective sentence of thirty years at 100% service. On appeal, the Defendant contends that the trial court erred by (1) admitting in evidence a notebook containing text messages exchanged between the Defendant and the victim, (2) denying his motion to dismiss the indictment, and (3) denying his motion for a bill of particulars. We affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Thomas D. Frost, Murfreesboro, Tennessee, for the appellant, Lavar Jernigan.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Jennings H. Jones, District Attorney General; and Nathan Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         The Rutherford County Grand Jury returned a forty-five-count indictment that charged the Defendant with multiple counts of especially aggravated sexual exploitation of a minor, aggravated sexual exploitation of a minor, and sexual exploitation of a minor. The jury convicted the Defendant of six counts of aggravated sexual exploitation of a minor. No judgments reflecting the dispositions of the remaining thirty-nine counts are included in the appellate record. The record reflects, though, that the thirty-nine counts were not discussed at the trial and were not submitted to the jury.

         Pretrial Motions

         Double Jeopardy

         Before the trial, the Defendant filed a motion to dismiss the indictment on the ground that his protection against double jeopardy had been violated. According to the Defendant's motion, the initial investigation in this case began in Lawrence County, and on April 10, 2013, arrest warrants were issued in Lawrence County, charging the Defendant with solicitation of a minor and sexual exploitation of a minor. During the investigation, Lawrence County Sheriff's Detective Nathan Neese interviewed N.R.[1], who admitted she had sent the Defendant sexually explicit photographs of herself. The Defendant's cell phone was seized at the time of the Defendant's arrest, and it was given to Murfreesboro Police Detective Tommy Roberts. According to the Defendant's motion, after the Lawrence County preliminary hearing, during which N.R. testified that she sent photographs of herself to the Defendant, the Lawrence County grand jury returned an indictment based upon testimony that the Defendant asked N.R. to send photographs of herself and that N.R. sent the Defendant photographs as he requested. On September 9, 2013, the Defendant pleaded guilty to one count of sexual exploitation of a minor by electronic means and received a two-year sentence to be served on probation. See T.C.A. § 39-13-529(b)(2) (Supp. 2012) (amended 2013).

         Meanwhile, the Defendant's cell phone was analyzed by the Murfreesboro Police Department and may have later been sent to the Tennessee Bureau of Investigation (TBI) for analysis. Multiple deleted photographs were recovered from the Defendant's phone. T hese photographs are the subject of this Rutherford County case. In his motion to dismiss, the Defendant argued that the recovered photographs stemmed from the same criminal episode for which he had previously pleaded guilty in Lawrence County and that the Rutherford County prosecution violated principles of double jeopardy.

         At the motion hearing, trial counsel told the trial court that the Lawrence County investigation revealed a relationship of a sexual nature between the Defendant and N.R., that the pair exchanged text messages, which included photographs depicting sexual content, and that the Defendant was arrested pursuant to the Lawrence County warrants. Counsel stated that the Defendant was interviewed by Lawrence County Detective Neese and Murfreesboro Police Detective Roberts at the Murfreesboro Police Department. Counsel stated, "If there were proof on this matter, the case would show that Detective Roberts . . . determined that little, if anything, had occurred in . . . Rutherford County, and felt it was a Lawrence County case."

         Trial counsel stated that during the Defendant's police interview, the Defendant said that all of the photographs he received from N.R. had been manually deleted from his cell phone. Counsel said that the Defendant's cell phone was given to Detective Roberts for the purposes of determining what photographs, if any, were on the phone, that the phone was provided to the TBI for analysis, and that the evidence at the Lawrence County preliminary hearing showed photographs were sent from the victim's cell phone in Lawrence County to the Defendant's cell phone in Rutherford County.

         Trial counsel argued that all of the evidence related to this case was "on the table" in Lawrence County, including the photographs exchanged by text messages. Counsel argued that the Defendant's guilty plea in Lawrence County resolved this matter and that the Rutherford County indictment violated principles of double jeopardy. Counsel clarified that although law enforcement had not retrieved the deleted photographs until the analyst recovered them, Lawrence County knew the photographs existed and had possession of the Defendant's and N.R.'s cell phones. Counsel stated that in the Lawrence County prosecution, the knowledge of the photographs was used as the basis for the Defendant's guilty plea, that the same photographs were being used to prosecute the Defendant in Rutherford County, and that the present prosecution violated principles of double jeopardy.

         The prosecutor argued that the basis for the Lawrence County prosecution was the Defendant's sending N.R. nude photographs of himself and photographs of the Defendant's engaging in masturbation. The prosecutor noted that the Defendant was also charged in Lawrence County of solicitation for statutory rape and that the Defendant was not indicted in Lawrence County for N.R.'s sending the Defendant sexually explicit photographs. The Prosecutor stated that the Rutherford County charges were based upon N.R.'s sending the Defendant nude photographs of herself at the Defendant's request. The prosecutor stated that both counties had jurisdiction and that this prosecution was based upon conduct that occurred in Rutherford County.

         The trial court relied upon State v. Watkins, 362 S.W.3d 530 (Tenn. 2012), and Blockburger v. United States, 284 U.S. 299 (1932), in determining that the dual prosecutions did not violate principles of double jeopardy. Relative to the legislative intent, the court could not ascertain whether our legislature intended to allow multiple convictions for the relevant statutes. The court noted that the State conceded in its written response to the motion that if the Defendant were convicted in Rutherford County, the convictions in both counties would have been the result of the same act or transaction. T he trial court stated that the Defendant pleaded guilty in Lawrence County to exploitation of a minor by electronic means, which required proof that the Defendant displayed to a minor sexual activity or simulated sexual activity, and that the indicted offenses in Rutherford County did not require proof that the Defendant displayed anything to a minor. The court determined that the indicted offenses in Rutherford County required proof that the Defendant possessed certain material involving a minor and that the Defendant "did certain acts or intended to do certain acts with the material." Therefore, the court concluded that the Rutherford County prosecution did not violate principles of double jeopardy.

         Bill of Particulars

         Also before the trial, the Defendant filed a motion to require the State to furnish information regarding (1) the date and time each photograph was sent to the Defendant's cell phone from N.R.'s cell phone, (2) the location of N.R. and her phone when she sent each photograph to the Defendant's phone, (3) the date and time each photograph was received by the Defendant's phone, (4) the location of the Defendant's phone when each photograph was received by the Defendant's phone, (5) the date and time each photograph was deleted from the Defendant's phone, (6) the location of the Defendant's phone when each photograph was deleted from the Defendant's phone, (7) the date, time, and location of the Defendant when he promoted, permitted or assisted N.R. in the production of the photographs depicting the minor engaged in sexual activity, (8) the date, time and location of the Defendant when he knowingly transported or exchange the material depicting the minor engaged in sexual activity, and (9) the date, time and location of the Defendant when he knowingly possessed material depicting the minor engaged in sexual activity.

         At the pretrial hearing, trial counsel argued that the photographs had been deleted from the Defendant's cell phone, that the photographs were recovered using sophisticated software, and that the phone was returned to the Defendant after the analysis. Counsel argued that the Defendant did not possess the photographs because the Defendant could not access the photographs. Counsel stated that the requested information was relevant to whether the photographs were ever possessed by the Defendant when he was in Rutherford County.

         The prosecutor stated that he did not possess the information requested by trial counsel. The prosecutor argued that he did not have to establish an exact date of the photographs, that the Defendant lived in Rutherford County, and that the Defendant's cell phone was seized by the police when the Defendant was in Rutherford County. The prosecutor stated that it was a question of fact for the jury to determine whether the Defendant possessed the photographs when the Defendant was in Rutherford County. The prosecutor noted that he had provided counsel with all the evidence the State intended to produce at the trial.

         The trial court determined that the Defendant was not entitled to a bill of particulars. The court found that the State was not required to provide the Defendant with the date and time of the photographs or the location of the Defendant or his cell phone, that the Defendant had seen the photographs, and that the Defendant knew the identity of the victim and the time period during which the alleged offenses occurred. The court found that the State had provided the Defendant with all the information in its possession and that the State believed it could establish venue at the trial by showing the Defendant lived in Rutherford County at the time of the offenses. T he court determined that the Defendant had sufficient information to prepare an adequate defense.

         Trial

         N.R. testified that she was age sixteen in late 2012, that she lived in Lawrence County, and that she met the Defendant when she was age thirteen. She said that the Defendant worked with the school band director, that the Defendant choreographed the school's band and color guard movements on the football field, and that the Defendant was a mentor to many of the students. She said that the band and color guard performed annually at Middle Tennessee State University (MTSU) in Rutherford County.

         N.R. testified that in October 2012, the Defendant gave her his email address and that he told her to contact him if she became stressed and needed advice. She recalled that she had recently become the leader of the color guard, that her grandfather had died, that a classmate had died, and that she had been stressed. She said the Defendant knew about the stressful events in her life at this time. She said that two weeks after the Defendant gave her his email address, she sent an email to the Defendant because she was stressed about being the leader of the color guard for the first time in a competition. She said that a few weeks later, the topics of their emails changed. She s aid they began talking on the telephone by late December. She said she saved the Defendant's cell phone number under the name Babooshka.

         N.R. testified that one day after color guard practice, she walked down the band hallway and entered the color guard closet to place her flag inside, that the Defendant followed her to the small closet, that they both walked inside the closet, that the Defendant closed the door, and that the Defendant asked if "there was anywhere [they] could meet." N.R. said that she and the Defendant agreed to meet at a nearby park, that they left the school in their respective vehicles, and that they drove to the park. She said she was age sixteen at this time. She said they sat at a picnic table and discussed the color guard. She said the Defendant provided her with guidance and did not touch her.

         N.R. testified that her relationship with the Defendant became "physical" after a football game at her school. She recalled that she and the Defendant drove their respective vehicles to "the back road" near the school, that they parked their vehicles, and that she got inside the Defendant's car. She said that they talked and that the Defendant placed his hand on her leg. She recalled another incident that occurred while she was at a competition at MTS U.She said that she and the other members of the color guard were walking to a room to rehearse before the competition, that she held open the door for the color guard members, that the Defendant motioned for her to come to another hallway, and that she followed him to the hallway. She said that they entered a closet-type room, that the Defendant kissed her, and that he placed his hands on her buttocks.

         N.R. testified that by the time of the MTSU incident, she and the Defendant had exchanged text messages containing sexually explicit material. She said the messages discussed "what we could do to each other" and contained photographs of each of them. She said that the first photograph she sent the Defendant was of her wearing only a bra and a skirt and that the photograph was her idea. She said she eventually sent the Defendant photographs of her breasts and vagina. She said she sent the photographs of her vagina at the Defendant's request. She said the ...


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