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State v. Person

Court of Criminal Appeals of Tennessee, Jackson

January 16, 2018

STATE OF TENNESSEE
v.
QUANTEZ PERSON

          Assigned on Briefs August 1, 2017

         Appeal from the Criminal Court for Shelby County No. 13-0458 James M. Lammey, Jr., Judge

         The defendant, Quantez Person, appeals his Shelby County Criminal Court jury conviction of criminal exposure to human immunodeficiency virus ("HIV"), see T.C.A. § 39-13-109(a), arguing that the trial court erred by consolidating the charge of criminal exposure to HIV with a charge of aggravated rape of which the defendant was later acquitted, that the trial court erred by admitting health department records, and that the evidence was insufficient to support his conviction. Under the circumstances presented in this case, Tennessee Rule of Criminal Procedure 8(a) barred the State from bringing the charge of criminal exposure to HIV to trial. In consequence, the defendant's conviction is vacated, and the charge is dismissed.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Case Dismissed

          Claiborne Ferguson, Memphis, Tennessee, for the appellant, Quantez Person.

          Herbert H. Slatery III, Attorney General and Reporter; Robert Wade Wilson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Abbey Wallace, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer, J., joined. Timothy L. Easter, J., concurred in results.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         Originally charged with aggravated rape and criminal exposure to HIV, the defendant was convicted by a Shelby County Criminal Court jury of criminal exposure to HIV based upon his engaging in unprotected sexual acts with the victim in March 2012.

         At the defendant's May 2016 trial, the victim testified that as she walked from her home to the home of a friend, a man driving a Chrysler convertible stopped and offered to give her a ride in his car. Although she was only two or three blocks from her destination, the victim accepted the offer and got into the car. The victim recalled that the car's interior was decorated with Dallas Cowboys memorabilia. The victim provided the man with directions to her destination, but the man did not stop when he reached the destination. Instead, he kept driving and stopped only when he reached a secluded area behind the "Food Stamp Office" in Memphis. The victim testified that the man brandished a knife and demanded that the victim remove her clothing. The victim complied, and the man forced her to engage in vaginal and oral sex, which sex acts culminated in the man's ejaculating into the victim's mouth and vagina. According to the victim, the man released her following the sex acts, and she telephoned a friend to take her to the hospital.

         Forensic evidence collected during the victim's examination was forwarded to the Tennessee Bureau of Investigation ("TBI") for testing. During a subsequent interview with the police, the victim identified the defendant as the man who had forced her to engage in sex acts. Testing performed by the TBI confirmed the presence of the defendant's sperm in the victim's mouth and in her vagina.

         Carol Boyd, an "environmentalist in epidemiology" with the Shelby County Health Department who had previously worked as a counselor in the sexually transmitted disease department of the health department, testified that part of her counseling duties had been to "notify and counsel clients if they had a sexual [sic] transmitted disease or if they had been named as a contact." Ms. Boyd testified that she counseled the defendant after he tested positive for HIV in 2004. Ms. Boyd said that she informed the defendant of his HIV status and apprised him of "all the risks of being HIV positive, " including that he could transmit the disease via unprotected sex. Health department records exhibited to Ms. Boyd's testimony confirmed that the defendant had previously tested positive for HIV.

         Based upon this evidence, the jury acquitted the defendant of aggravated rape but convicted him of criminal exposure to HIV. Following a sentencing hearing, the trial court imposed a sentence of six years' incarceration. The defendant filed a timely but unsuccessful motion for new trial followed by a timely notice of appeal.

         In this appeal, the defendant asserts that the trial court erred by granting the State's motion to consolidate the offenses under Tennessee Rule of Criminal Procedure 8(a) and by denying his motion to sever the offenses pursuant to Tennessee Rule of Criminal Procedure 14(b)(2). He also contends that the admission of the health department records, which included the results of previous HIV testing, violated the rule against hearsay and his rights under the Confrontation Clause. Finally, the defendant asserts that the evidence was insufficient to support his conviction because the State failed to establish that his behavior created a significant risk of transmission of HIV. We consider each claim in turn.

         I. Joinder/Severance

         The defendant asserts that the trial court erred by granting the State's motion to consolidate the aggravated rape charge with the criminal exposure to HIV charge, arguing that consolidation of the offenses was barred by the State's failure to join the two offenses prior to the first trial of the aggravated rape charge in 2014, which trial ended in a mistrial. Relatedly, the defendant argues that even if the trial court correctly consolidated the offenses under Rule 8, the trial court should nevertheless have severed the offenses under Rule 14 because a fair determination of his guilt of both offenses was not possible in a joint trial. The State contends that the defendant is not entitled to relief because he cannot establish that he was prejudiced by the ruling of the trial court.[1]

         In November 2014, following a mistrial of the aggravated rape charge, the State moved the trial court to consolidate indictment number 12-05938, which charged the defendant with aggravated rape of the victim, with indictment number 13-00458, which charged the defendant with criminally exposing the victim to HIV. At the May 2, 2016 hearing on the State's motion, the State argued that consolidation of the indictments was mandatory under the terms of Rule 8 because the two offenses arose "out of the same criminal offense." The prosecutor stated that at the time the defendant was indicted for aggravated rape, "the state did not know that he had HIV." The prosecutor agreed that it would have been preferable to seek a superseding indictment in case number 12-05938 and could not explain why the State had instead obtained a separate indictment for the HIV offense. The prosecutor acknowledged that when case number 12-05938 went to trial in 2014, the State was aware of the defendant's HIV status and knew that he had been charged with criminally exposing the victim to HIV. The prosecutor said that the State did not believe it was "appropriate" to seek joinder of the offenses at that time but offered no further explanation for the State's failure to seek consolidation prior to the 2014 trial.

         The defendant agreed with the State "that Rule 8 requires mandatory joinder of these two alleged criminal . . . actions" but argued that consolidation of the charges at that point would violate the terms of Rule 8(a) as well as double jeopardy principles because the aggravated rape charge had already been tried in 2014, and that trial had ended in a mistrial after the jury failed to return a verdict. He contended that because the State elected to proceed to trial on only the aggravated rape offense when Rule 8 mandated joinder, the State was now barred from seeking a trial on the charge of criminal exposure to HIV.

         The defendant further asked that, should the court rule that consolidation was mandatory and that the criminal exposure to HIV charge was not barred, the court sever the offenses under Rule 14. He argued that a fair determination of his guilt of both offenses would not be possible in a joint trial because he intended to present a defense that his sexual intercourse with the victim was consensual and that presenting such a defense would require that he admit an element of the charge of criminal exposure to HIV.

         The court stated that, had the defendant been convicted in 2014, then "it's pretty much a no-brainer there" that double jeopardy principles would have prevented trial on the HIV charge but that, because the 2014 trial ended in a mistrial, "the defendant's not harmed in any way." The court concluded that joinder of the offenses was mandatory under Rule 8 and consolidated the indictments for trial. As to the defendant's severance motion, the court found that the defendant's claim of consent "doesn't make sense, " asking, "Do you think somebody is going to consent to having sex with you?" The court denied the severance:

I don't find that a severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense. I don't find that to be true. I think it would be unfair to sever these, especially in light of the fact, like I was trying to say, if the defense [is] consent, then they're going to find out about HIV, regardless. It just only makes sense, it seems.

         Here, the offenses were not charged in a single indictment but in two separate indictments. The trial court held, and the parties agreed, that joinder of the offenses in this case was covered by the rules concerning mandatory joinder.

         Previously, the author of this opinion has stated that all questions of joinder and severance were subject to review for an abuse of the trial court's discretion. See, e.g., State v. Schiefelbein, 230 S.W.3d 88, 125 (Tenn. Crim. App. 2007). This standard, however, has been altered by more recent caselaw. To be sure, prior to the passage of the rules of criminal procedure, all questions of joinder and severance were reviewed for an abuse of discretion because the trial court retained broad discretion with regard to both joinder and severance of offenses. See State v. Johnson, 342 S.W.3d 468, 472 (Tenn. 2011) ("Early on, the prevailing view-animated by the belief that trial courts were charged with safeguarding the rights of both the prosecution and the defendant-left decisions regarding the consolidation of charges, even charges involving separate and distinct crimes, to the sound discretion of the trial court."). The adoption of Rule 8 in particular "embodies a significant departure from the earlier court-made principles governing joinder of offenses." Id. Specifically, Rule 8(a) makes joinder mandatory rather than discretionary when certain requirements are met. For that reason, when reviewing a claim regarding the mandatory joinder provision of Tennessee Rule of Criminal Procedure 8(a), this court is bound by the factual findings of the trial court unless the evidence preponderates against them, see State v. Baird, 88 S.W.3d 617, 620 (Tenn. Crim. App. 2001), but we review "de novo with no presumption of correctness" the trial court's application of the law to the facts, Johnson, 342 S.W.3d at 471; State v. Brandon Churchman, No. W2013-00175-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Nashville, Apr. 28, 2014).[2]

         As indicated, the offenses at issue in this case stem from two separate indictments rendered prior to the defendant's first trial on the aggravated rape charge in 2014. Tennessee Rule of Criminal Procedure 13 provides that a trial court "may order consolidation for trial of two or more indictments . . . if the offenses and all defendants could have been joined in a single indictment, presentment, or information pursuant to Rule 8." Tenn. R. Crim. P. 13(a). Tennessee Rule of Criminal Procedure 8 governs mandatory joinder of offenses:

Two or more offenses shall be joined in the same indictment, presentment, or information, with each offense stated in a separate count, or the offenses consolidated pursuant to Rule 13, if the offenses are:
(A) based on the same conduct or arise from the same criminal episode;
(B) within the jurisdiction of a single court; and
(C) known to the appropriate prosecuting official at the time of the return of the indictment(s), presentment(s), or information(s).

Tenn. R. Crim. P. 8(a). The evidence in this case clearly establishes that the offenses are based on the same conduct-the defendant's emission of semen into the victim's mouth and vagina during his sexual penetration of her. See Johnson, 342 S.W.3d at 473 (observing that "the simplest example of a same conduct offense involves a single act that results in a number of interrelated offenses").[3] Both offenses occurred within the jurisdiction of the Shelby County Criminal Court and, importantly, both offenses were "known to the appropriate prosecuting official at the time" of the request for consolidation under Rule 13. Indeed, the record establishes that the prosecutor was aware of not only the salient facts underlying the offense but also the existence of the indictment charging the defendant with criminal exposure to HIV prior to the defendant's first trial on the aggravated rape, and it intentionally elected not to request consolidation of the offenses at that time. Under these circumstances, joinder of the two offenses was required. See Tenn. R. App. P. 8(a).

         Although the defendant agrees that consolidation of the offenses was mandatory under the terms of Rule 8, he argues, as he did prior to trial, that the State forfeited its right to prosecute the charge of criminal exposure to HIV by proceeding to trial on only the aggravated rape charge when it was aware of the criminal exposure to HIV charge. The State claims that because the first trial ended in a mistrial, multiple trials were inevitable such that the defendant suffered no prejudice flowing from the State's failure to join the offenses prior to the first trial.

         Our supreme court has observed that "[o]ne of the purposes of the mandatory joinder requirements in [Rule] 8(a) is to stop the practice by some prosecuting attorneys of 'saving back' charges because this practice necessitates multiple trials and adversely affects discovery, plea bargaining, and other pre-trial procedures." Johnson, 342 S.W.3d at 473 (quoting Baird, 88 S.W.3d at 621). Indeed, the Advisory Commission Comments for Rule 8 provide:

The commission wishes to make clear that section (a) is meant to stop the practice by some prosecuting attorneys of "saving back" one or more charges arising from the same conduct or from the same criminal episode. Such other charges are barred from future prosecution if known to the appropriate prosecuting official at the time that the other prosecution is commenced, but deliberately not presented to a grand jury. "Appropriate prosecuting official" shall be so construed as to achieve the purpose of this rule, which is the prevention of a deliberate and willful "saving back" of known charges for future prosecution. The refusal of the grand jury to act upon such other charges would not be a violation of this joinder rule so as to bar future prosecution of such charges.

Tenn. R. Crim. P. 8, Advisory Comm'n Cmt. The State's failure to join offenses when joinder is mandatory under Rule 8(a) "prevents the State from subsequently prosecuting the other charges that should have been included in the original indictment unless the charges have been severed" pursuant to Rule 14(b)(2). Johnson, 342 S.W.3d at 473; see also King v. State, 717 S.W.2d 306, 308 (Tenn. Crim. App. 1986).

         Because the approach employed by this court to questions concerning the late addition of offenses that must be joined under the terms of Rule 8 has been anything but consistent, even in the absence of questions concerning principles of due process and prosecutorial vindictiveness, we deem it necessary to recount those cases in our search for common threads that might lead us to some rule of law that can be consistently applied in the future.[4]

         We begin with King, for it appears that, as is unfortunately too often the case, "[m]uch of the uncertainty and confusion in the law has resulted from the practice of departing, in legal opinions, from the point in judgment, and throwing out loose dicta upon kindred subjects." Cox v. Bank of Tenn., 35 Tenn. 140, 143 (1855). King was originally charged in January 1982 with one count of assault with intent to commit murder in the first degree but convicted of malicious stabbing. King, 717 S.W.2d at 307. King appealed his conviction, and this court reversed his conviction on grounds "that malicious stabbing is not a lesser included offense of assault with intent to commit murder in the first degree." Id. (citing State v. Willie Joe King, No. 82-242-III (Tenn. Crim. App., Nashville, Oct. 21, 1983)). Following this court's dismissal of the case, King was charged via a January 1984 indictment with malicious stabbing. The trial court granted King's subsequent motion to dismiss the January 1984 indictment "on the ground that the second indictment was prohibited by Rule 8(a)." Id.

         The State appealed the trial court's ruling, arguing that dismissal of the second indictment was not proper because the State had not acted intentionally or maliciously when failing to join the charge of malicious stabbing with the original charge of assault with intent to commit first degree murder. This court rejected the idea that Rule 8(a) "addresses only volitional acts of the District Attorney and applies only when the District Attorney is not acting in good faith." Id. Instead, the court, observing that the purpose of Rule 8(a) "is to prevent a defendant from being subjected to separate trials for multiple offenses when the multiple offenses are based upon the same conduct or arise from the same criminal episode, " concluded, in keeping with the plain language of the rule, that "[a] subsequent indictment is permitted after the defendant has been tried on the first charge" only when "the subsequent offense is not known to the District Attorney General at the time of the return of the indictment upon which the defendant was tried, " "the second charge is not within the jurisdiction of the same court that tried the defendant, " or "there is a severance pursuant to Rule 14." Id. at 308 (emphasis added). In addition to this holding, the court stated in dicta,

We do not perceive that any evil results from subsequent indictments being returned against a defendant charging him with additional offenses which are based on the same conduct or which arise from the same criminal episode upon which prior indictments have been returned; when the defendant has not been tried ...

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