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State v. Hoss

Court of Criminal Appeals of Tennessee, Nashville

December 15, 2017

STATE OF TENNESSEE
v.
MILVERN HOSS, JR.

          Assigned on Briefs November 28, 2017

          Appeal from the Circuit Court for Rutherford County No. F-73615 David M. Bragg, Judge

         Following a bench trial, the trial court found the defendant, Milvern Hoss, Jr., guilty of violating the requirements of the sexual offender registry due to his failure to report monthly, for which he received a sentence of four years of incarceration. On appeal, the defendant asserts the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 is unconstitutional in its application to him, and the trial court lacked sufficient evidence to sustain the conviction. Following our review of the record and pertinent authorities, we affirm the judgment of the trial court.

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

          Thomas E. Parkerson, Murfreesboro, Tennessee, for the appellant, Milvern James Hoss, Jr..

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Jennings H. Jones, District Attorney General; and Sara Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J. and Robert W. Wedemeyer, J., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         On June 4, 1992, the defendant pled guilty to aggravated sexual battery in the state of Kansas and received a sentence of three to ten years of incarceration. Kansas law did not require the defendant to register as a sexual offender in that state. The defendant was conditionally released on April 11, 1997, and his sentence expired on July 1, 2003.

          After being released from prison in Kansas, the defendant moved to Tennessee in 2004 and was arrested for public intoxication in 2010. Prior to being released from jail, on June 9, 2010, the defendant registered as a violent sexual offender in Tennessee due to his prior Kansas conviction for aggravated sexual battery. When signing the registration form, the defendant acknowledged reading and understanding the registry's requirements. The defendant was released from jail the same day and was informed he had to report to the police department within forty-eight hours and update the registry with his new address.

         The defendant failed to report to the police station as instructed, so in October 2011, Jennifer West, a detective with the Murfreesboro Police Department tasked with overseeing the sexual offender registry, obtained a warrant for the defendant's arrest. The defendant lived in Oregon at the time, where he registered as a sexual offender on June 15, 2012. The defendant was eventually arrested in Oregon as a fugitive and transferred back to Tennessee in October 2012. Based on the record before this Court, we are unsure as to the outcome of this charge.

         The defendant first reported to Detective West on March 17, 2014, when he signed an instruction form that included the forty-eight hour reporting requirements, the requirement that "[a]ny offender who enters a plea of guilty or is adjudicated delinquent in any other state to a qualifying offense shall register or report in person with the designated law enforcement agency, by completing and signing a TBI Registration Form under penalty of perjury;" and the requirement that "offender[s] who are required to register or report as any type of sexual offender in another jurisdiction prior to their presence in this state, shall register or report in person with the designated law enforcement agency, by completing and signing a TBI Registration Form under the penalty of perjury." Detective West gave the defendant the opportunity to review the requirements in their entirety prior to their meeting, and she then individually discussed each directive during the meeting. The defendant was given the opportunity to ask questions, and the form contained an acknowledgement signed by the defendant indicating he read and understood the federal and state registration, verification, and tracking requirements.

         On April 18, 2014, the defendant again checked in with Detective West and reported his address in Murfreesboro, Tennessee as "homeless." When signing the tracking form, the defendant wrote "UD" behind his name. According to the defendant, this meant "under duress" because he knew he would return to jail if he did not execute the form. At the same time, the defendant again signed an instruction form listing the sexual offender reporting and registration requirements and acknowledging his understanding of them.

         Due to his homeless status, Tennessee law required the defendant to report to Detective West monthly. Accordingly, he met with her on May 19, 2014, June 2, 2014, July 8, 2014, and August 15, 2014. Each time the information the defendant provided to the registry remained the same, and each time he was given the opportunity to ask questions regarding the requirements of the sexual offender registry. The defendant again signed an instruction form listing the requirements of the sexual offender registry and acknowledging his understanding of them. Most of the time the defendant included "UD, " meaning "under duress, " when signing or initialing his name. According to the defendant, he included "UD" because despite his belief the sexual offender law did not apply to him, he begrudgingly executed the forms in an effort to stay out of jail.

         After August 15, 2014, the defendant quit reporting to Detective West. Authorities additionally discovered the defendant had been dishonest about his address and actually resided within 1000 feet of a school or park. As a result, on February 25, 2015, the defendant pled no contest to perjury and violating the requirements of the sexual offender registry and received an effective suspended sentence of two years. In addition, the defendant was to resume checking in with the reporting agency and pay a fine of $350.00. At that time, Jennifer Brittain, a probation and parole officer with the Tennessee Department of Corrections who supervises sexual offenders, received the defendant as a client. The defendant was required to report to Officer Brittain within forty-eight hours of his release from jail, yet failed to ever report to her. As a result, on April 1, 2015, Officer Brittain filed a revocation petition based on the defendant's violation of the sexual offender registry requirements. Following the execution of a bench warrant, the defendant could not be located at his last known address. The trial court held a revocation hearing on October 8, 2015, found the defendant to be in violation of the terms of his probation, and reinstated the defendant's original two year sentence.

         During the bench trial in the present matter, the State called Detective West and Ms. Brittain to testify. After making a motion for judgment of acquittal, which the trial court denied, the defendant opted to testify. The defendant stated that he moved to Tennessee in 2004, and was arrested for public intoxication in Murfreesboro, Tennessee in 2010. On June 9, 2010, while in jail following his arrest for public intoxication, the defendant signed sexual offender registry documents under duress. The defendant then made extensive legal arguments regarding why, in his opinion, Tennessee Code Annotated section 40-39-208 is unconstitutional in its application to him. The defendant further testified that he signed all sexual offender registry forms while under the influence of alcohol and under duress, sometimes documenting his objection by adding "U.D." behind his signature. The defendant claimed he registered as a sexual offender in Oregon as a result of "trickery" and confirmed he was never required to register as a sexual offender in Kansas.

         The trial court found the defendant guilty of failing to comply with the requirements of the sexual offender registry and sentenced the defendant to four years of incarceration. The defendant subsequently filed a motion for new trial in which he challenged the sufficiency of the evidence to sustain ...


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