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State v. Frederick

Court of Criminal Appeals of Tennessee, Nashville

May 15, 2017

STATE OF TENNESSEE
v.
MARIO D. FREDERICK

          March 14, 2017 Session Heard at Belmont University College of Law [1]

         Appeal from the Circuit Court for Rutherford County No. F-72726 Royce Taylor, Judge

         The Defendant, Mario Frederick, was convicted of two counts of solicitation of sexual exploitation of a minor, a Class E felony, two counts of solicitation of sexual exploitation of a minor less than thirteen years of age, a Class C felony, and three counts of indecent exposure, a Class B misdemeanor. He received an effective sentence of five years' incarceration. On appeal, the Defendant argues that the trial court erred by denying his motion to sever the counts of the indictment and his motion for arrest of judgment. He also contends that the evidence was insufficient to support his convictions. Following our review, we affirm the judgments of the trial court.

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

          Gerald L. Melton, District Public Defender, for the Defendant-Appellant, Mario D. Frederick.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Jennings H. Jones, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         On December 2, 2014, the Rutherford County Grand Jury returned a nine-count indictment charging the Defendant with two counts of soliciting sexual exploitation of a minor, [2] three counts of soliciting sexual exploitation of a minor less than thirteen years of age, and four counts of indecent exposure.[3] On the morning of trial, the Defendant filed a motion to sever the counts in the indictment because the offenses occurred on four separate dates and involved several victims. The trial court denied the motion, ruling that the motion was untimely and that the Defendant's charges were properly joined "regarding the modus operandi and the identity of the [D]efendant." Subsequently, the State dismissed count one, charging the Defendant with soliciting sexual exploitation of a minor less than thirteen years of age, and count six, charging the Defendant with indecent exposure. A jury trial was held on August 11, 2015, at which the following proof was adduced.

         The first victim to testify, twenty-seven-year-old S.C., [4] said that, on October 3, 2013, she drove a friend to the Walgreens on Sam Ridley Parkway in Smyrna. S.C. testified that the incident occurred around 6:00 or 7:00 in the evening and that it was still light outside. S.C. parked and waited in the car while her friend went inside the Walgreens. S.C. testified that, while she was sitting in her car, a "dark red SUV" pulled into the parking spot to her left. When S.C. looked over at the SUV, she saw the Defendant sitting in the driver's seat masturbating. S.C. testified that the windows to her car and his SUV were both rolled down and that she "could see him just plain as day." The Defendant then exited his car and walked around the front of his SUV towards S.C. while continuing to masturbate with his pants down. The Defendant came within two feet of S.C. and stared at her as he approached, but did not say anything. As the Defendant approached her car, SC rolled her windows up and reversed out of the parking spot. S.C. picked up her friend at the front of Walgreens as she was leaving and drove out of the parking lot. S.C. testified that the Defendant also backed his SUV out and followed her around the Walgreens parking lot as she was driving away. S.C. called the police and met with officers in the parking lot later the same day to make a report. A few weeks later, SC saw the Defendant's photograph on television and contacted the police again. S.C. also identified the Defendant in a photographic lineup and at trial. On cross-examination, SC testified that there were only one or two other cars in the parking lot at the time of the incident.

         Later the same day, twenty-one-year-old T.G. was grocery shopping with her two-year-old daughter at the Kroger on Sam Ridley Parkway in Smyrna. T.G. recalled that she exited the Kroger around 8:00 p.m. and that it had just gotten dark outside. T.G. testified that, as she approached her car in the parking lot, she noticed the Defendant watching her from his car, which was parked in front of her car. T.G. described the Defendant's car as a "red" or "maroon colored" SUV with "really shiny, chrome" or "silver" wheels. T.G. testified that she put her daughter in her car seat, loaded the groceries, and then got in the driver's seat. When T.G. turned her headlights on, she saw the Defendant standing in front of her car masturbating with his pants down. T.G. testified that the Defendant was about three or four feet away from her car and that he stared at T.G. as he masturbated, but did not say anything. T.G. reversed out of the parking spot while "[the Defendant] was still masturbating." T.G. "believe[d] that [her daughter] didn't see" the Defendant because "she had a toy in her hand that she was looking at." However, T.G. confirmed that, when she backed out, her car was "almost perpendicular" to the Defendant and that her daughter could have seen him if she was not playing with the toy. T.G. also testified that the Defendant's SUV was parked in a spot directly facing her car and to the left, so that the Defendant could clearly see T.G. and her daughter as she approached the driver's side of her car. T.G. did not initially contact police, but she wrote about the incident on Facebook. T.G. was later contacted by a friend, A.H., about the Facebook post, and A.H. told T.G. that she had a similar experience at a nearby Walgreens with her three-year-old daughter. T.G. subsequently reported the incident and identified the Defendant in a photographic lineup and at trial.

         Three days later on October 6, 2013, C.Y. was at the K-Mart in Smyrna with her friend, S.R., and S.R.'s mother. Both C.Y. and S.R. were sixteen years old and in high school at the time. C.Y. testified that she and S.R. waited in the car while S.R.'s mother went inside the store. C.Y. was sitting in the back seat on the passenger's side behind S.R., who was in the front passenger's seat. C.Y. testified that she and S.R. noticed a SUV circling the parking lot before it pulled up beside them. C.Y. described the SUV as a "maroonish, burgundy Yukon" with shiny rims. C.Y. and S.R. noticed that someone in the car was "staring pretty hard" at them. C.Y. testified that she looked over and saw the Defendant sitting in the car with his door open and masturbating with his pants down. The Defendant's SUV was parked so close to their car that S.R. could not open the passenger door. C.Y. told her friend to run into the store and find her mother because they did not have the keys to the car. S.R. and C.Y. got out through the driver's side door and ran inside the K-Mart, where they found S.R.'s mother and called the police. C.Y. testified that when they were running in the store, the Defendant backed out of the parking spot and followed them towards the store. The Defendant did not say anything to them during the incident. C.Y. identified the Defendant at trial and at the preliminary hearing, but could not pick the Defendant out in a photographic lineup.

         S.R. testified similarly to C.Y. S.R. recalled that the Defendant's SUV was a "maroonish colored . . . Suburban" with "really silver and really shiny" rims. S.R. testified that she and C.Y. were in a small car and that the Defendant's SUV was "sitting up very high compared to us." S.R. testified that the Defendant would not stop staring down at them and that she could see the Defendant's face and eyes. The Defendant's car door was open and blocking S.R.'s door so that she could not see him masturbating. S.R. could not identify the Defendant in a photographic lineup, but she did identify him at the preliminary hearing and at trial. S.R. also identified photographs of the Defendant's SUV.

         The final victim to testify, twenty-year-old A.H., was with her three-year-old daughter and her mother at the Walgreens on Sam Ridley Parkway in Smyrna on October 18, 2013. A.H. and her daughter waited in the car while A.H.'s mother went inside the Walgreens. A.H. was sitting in the middle row on the passenger side and her daughter was sitting in the third row on the passenger side in a forward-facing car seat. While they were parked, A.H. noticed a "[m]aroon Yukon" SUV drive past, reverse, and then pull into the parking spot next to the passenger side of their car. A.H. recalled that the SUV had "rims" and "tinted windows." A.H. testified that the Defendant immediately rolled his window down, looked around, opened his door, exited the SUV, and exposed himself. A.H. said that the Defendant was standing about two or three feet away from her while he masturbated without any pants on. A.H. testified that the Defendant was looking at her daughter while he was masturbating, and that she distracted her daughter with a game on her phone so that her daughter would not see him. The Defendant did not say anything during the incident, and eventually stopped and returned to his SUV. A.H. was able to obtain the license plate number from the Defendant's SUV as he drove away. After the Defendant was gone, A.H. went inside the store and called the police. A.H. recalled seeing her friend, T.G., post on Facebook about a similar incident, and, when A.H. called her, she learned that the description of the perpetrator's car was the same. A.H. identified the Defendant "immediately" in a photographic lineup, at the preliminary hearing, and at trial. She also identified photographs of the Defendant's SUV. On cross-examination, A.H. testified that she believed her daughter could have seen the Defendant standing outside their car masturbating.

         Smyrna Police Department Detective Rick Hall testified that his investigation of this case began when he was notified of the incident that occurred on October 6, 2013, at K-Mart involving C.Y. and S.R. Detective Hall testified that C.Y. and S.R. had seen a "maroon full-sized vehicle with chrome wheels on it and a black male inside" and that the man "open[ed] his car door and expos[ed] himself to them." Detective Hall testified that they were only able to provide a description of the SUV at that time. Next, Detective Hall was notified about A.H.'s incident at the Walgreens on October 18, 2013, also involving a "maroon, large-sided SUV with chrome wheels on it and a black male who then started exposing himself and masturbating to her in the parking lot." A.H. provided a license plate number to Detective Hall as well as a description of the vehicle and the Defendant. Detective Hall testified that the vehicle was registered to the Defendant at a location in Clarksville, Tennessee, and that he obtained the Defendant's driver's license photograph which matched the Defendant's physical description.

         Detective Hall testified that he was also contacted by T.G. during his investigation, who indicated that the same thing had happened to her at Kroger with her daughter. Detective Hall created a photographic lineup and met with A.H. and T.G. at T.G.'s house. T.G. viewed the lineup first and identified the Defendant, noting that the Defendant's photograph "mostly look[ed] like him." A.H. arrived later and identified the Defendant in the lineup "immediately" and said that she was "99 percent" sure about her identification. A.H. identified a photograph of the Defendant's SUV with "100 percent" certainty. Detective Hall later contacted the two juvenile victims, C.Y. and S.R., to also view the photographic lineup. C.Y. and S.R. viewed the lineups at the Smyrna Police Department, but neither could make a positive identification. However, C.Y. and S.R. did positively identify the Defendant's SUV.

         Detective Hall obtained arrest warrants for the Defendant and did a media release including his photograph. Detective Hall received a tip that the Defendant was at an address in LaVergne, Tennessee, and he found the Defendant's SUV at the address. The Defendant later arrived at the apartment in another car and was arrested. Detective Hall testified that the Walgreens, Kroger, and K-Mart where the incidents occurred were all located within two miles or less of each other. Detective Hall also testified that the Defendant was arrested about three miles away from the location of the stores.

         The Defendant testified that he was thirty-three years old and lived in Clarksville, Tennessee with his parents. The Defendant confirmed he drove a maroon Yukon SUV with chrome wheels and that the photographs of his SUV were accurate. The Defendant also confirmed that he was arrested at his girlfriend's apartment in LaVergne and that his SUV was at the apartment. However, the Defendant claimed that he did not commit any of the offenses charged against him. Regarding the victims' identification of his car, the Defendant said he "couldn't explain their mistakes, " and, on cross-examination, the Defendant denied that he had ever been to Smyrna. The Defendant also denied that anyone else drove his car. When asked where he was on October 3, 2013, and October 6, 2013, the Defendant replied that he was "sure [he] was in Clarksville." When asked where he was on October 18, 2013, the Defendant testified that he was "[e]ither in Clarksville or . . . with [his] girlfriend."

         At the conclusion of the proof, the jury found the Defendant guilty as charged. The trial court ordered an effective sentence of five years.[5] On January 12, 2016, the Defendant filed a motion for new trial and a motion for arrest of judgment, followed by an amended motion for arrest of judgment on March 4, 2016.[6] The trial court denied both motions by written order on March 11, 2016.[7] This timely appeal followed.

         ANALYSIS

         The Defendant argues that the trial court erred by denying his motion to sever the counts of the indictment and his motion for arrest of judgment, and by finding that the evidence was ...


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