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Miller v. Gywn

Court of Appeals of Tennessee, Knoxville

May 23, 2018

RONALD MILLER
v.
MARK GYWN, DIRECTOR OF THE TENNESSEE BUREAU OF INVESTIGATION

          Session November 14, 2017

          Appeal from the Chancery Court for Sullivan County No. 15-CV-18092 E.G. Moody, Chancellor

         In 2001, Ronald Miller was convicted, in Maryland, of sexually molesting his eleven-year-old niece. When he moved to Tennessee in 2007, he registered with the sex offender registry (SOR). The Tennessee Bureau of Investigation subsequently reclassified him several times. In 2013, the TBI granted Miller's request to be removed from the SOR. However, in 2014, the General Assembly amended Tenn. Code Ann. § 40-39-207 (2014 & Supp.2017), to require lifetime registration for an offender whose victim was twelve years old or younger. The TBI reinstated Miller on the SOR pursuant to this amendment. Miller appealed to the trial court under the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322 (2015 & Supp.2017). The trial court reversed the TBI's decision, holding that "TBI is bound by the face of the [Maryland] conviction offense, and since no provision of the offense involves a crime against a child ages twelve (12) years or less, the Petitioner does not have to comply with the lifetime registry requirements." The Maryland statute at the time of the offense provided that "a person may not engage in . . . sexual contact with another without the consent of the other." We hold that the TBI demonstrated that Miller was convicted of this offense, and that his victim was eleven years old at the time of the offense. Based on our review of the record, we hold that the TBI's decision was neither arbitrary nor capricious or unsupported by substantial and material evidence. We reverse the trial court's judgment and hold that Miller must be registered on the SOR for life.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed; Case Remanded

          Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Brooke K. Schiferle, Assistant Attorney General, Nashville, Tennessee, for the appellant, Mark Gywn, Director of the Tennessee Bureau of Investigation.

          Carl Roberts, Jr., Elizabethton, Tennessee, for the appellee, Ronald Miller.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., joined. Thomas R. Frierson, II, J., not participating.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         In September of 2000, Miller was accused of sexually molesting his niece in an incident that occurred in July of 1998. According to the sworn application for statement of charges filed in Anne Arundel County, Maryland, Miller lifted up her shirt, sucked on her breasts, and inserted his finger in her vagina. He told her not to tell anyone or he would hurt her. He was indicted on four counts, the last of which was Fourth Degree Sexual Offense. Miller entered an Alford plea[1] on this count, resulting in his conviction on March 20, 2001. In July 1998, the victim was eleven years old.

         Miller moved to Tennessee in 2007 and registered with the SOR. He was initially classified as a violent sexual offender, a designation that would have required him to remain on the SOR for life. On August 7, 2009, the TBI sent Miller a letter stating, in pertinent part, as follows:

Your initial classification as a "violent" offender occurred because your victim was eleven years old. In Tennessee, the definition of a child is one under the age of thirteen. An offense against a child is generally considered "violent." However, based on research on old Maryland laws and recent discussions with the State Attorney General's office, it appears that the elements of your crime indicate that the offense must occur against an older minor, which takes your crime out of the "violent" classification. In determining classification, we are bound not by the actual age of the victim, but by the age of the victim as defined in the elements of the crime (if age is defined).
Since age is defined in your crime and it does not fit the criteria of being under the age of thirteen, TBI will change your classification to "sexual" and you will, at the appropriate time, be eligible for removal from the Registry.

         The TBI's determination in this letter that "the elements of your crime indicate that the offense must occur against an older minor" was, as we will explain later in this opinion, an erroneous interpretation of the Maryland statute defining Fourth Degree Sexual Offense.

         Later, Miller applied for his removal from the SOR, which the TBI granted on July 17, 2013. However, effective July 1, 2014, the legislature amended Tenn. Code Ann. § 40-39-207(g)(1) to provide that:

An offender required to register under this part shall continue to comply with the registration, verification and tracking requirements for the life of that offender, if that offender:
(C) Has been convicted of an offense in which the victim was a child of twelve (12) years of age or less.

         The TBI, applying this new statutory section, notified Miller on September 25, 2014, that it was reinstating him on the SOR.[2] He appealed this decision to the trial court under the provisions of the TUAPA, Tenn. Code Ann. § 4-5-322. The trial court reversed the TBI's decision, ruling as follows in pertinent part:

In July of 1998, the victim was eleven (11) years old; she was thirteen (13) years old at the time she gave her statement to police and she was fourteen (14) years old when the Petitioner was convicted.
The TBI incorrectly denied the Petitioner's request to be removed from the registry.
Maryland's fourth degree sex offense only pertains to victims who are fourteen (14) or fifteen (15) years of age.
Since there is no evidence to corroborate the victim's statement that she was eleven (11) years old at time of the offense, TBI cannot use the victim's statement to specify under which provision that the Petitioner plead.
TBI is bound by the face of the conviction offense, and since no provision of the offense involves a crime against a child ages twelve (12) years or less, the Petitioner does not have ...

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