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State v. Johnson

Court of Criminal Appeals of Tennessee, Nashville

July 15, 2019


          Assigned on Briefs April 16, 2019

          Appeal from the Circuit Court for Grundy County No. 5910 Thomas W. Graham, Judge

         Following a bench trial in the Grundy County Circuit Court, the Defendant, Roger F. Johnson, was convicted as charged of indecent exposure, a Class B misdemeanor. He was subsequently sentenced to a six-month sentence, with service of forty-five days in jail prior to serving the remainder of the sentence on supervised probation. On appeal, the Defendant argues: (1) the indictment fails to charge an offense because it does not include the correct mens rea; (2) the indictment is duplicitous; and (3) the evidence is insufficient to sustain his conviction.[1] We affirm the judgment of the trial court.

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

          Matthew S. Bailey, Spencer, Tennessee, for the Appellant, Roger F. Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Mike Taylor, District Attorney General; and David McGovern, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.




         E.F., [2] who was thirteen years old at the time of the Defendant's bench trial and twelve years old at the time of the incident in this case, testified that on March 23, 2017, she was visiting her aunt and uncle, who lived across the street from the Defendant. E.F. stated that she was playing with her cousin G.M. in the front yard when she heard the Defendant whistling. She said that the Defendant was standing in the doorway of his trailer as he whistled at them and that his whistling lasted approximately five to ten minutes. E.F. agreed that the Defendant's whistling sounded like a "catcall." She also said the Defendant's whistling scared G.M. and her and caused them both to cry. Immediately after this incident, E.F. told her aunt what had happened. She said she never saw the Defendant unclothed during this incident but did see him walking back inside his home.

         G.M., who was eleven years old at the time of trial and ten years old at the time of this incident, testified that she did not hear the Defendant whistling. When E.F. told her that the Defendant was whistling, G.M. saw that the Defendant, who was standing "a little bit . . . farther out from the doorway," had his pants down around his ankles and was looking at them. G.M. stated that the Defendant's hands were "[u]p near his privates" and that his hands were "covering" his privates. She said she could not see the Defendant's "privates" or his buttocks. Although G.M. could see the Defendant's blue jeans around his ankles, she did not see the Defendant's underwear. She also did not see the Defendant go back inside his home following this incident. G.M. said that the fact that the Defendant's pants were down around his ankles scared her and caused her to cry. After a couple of minutes, she went to tell her father and then her mother what had happened. G.M. acknowledged that her family had previously had a dispute with the Defendant over a cat, which resulted in people cursing at one another and the police being called. She also acknowledged that her father did not like the Defendant.

         J.M., G.M.'s father, testified that the incident involving the Defendant took place in the late afternoon or early evening, although it was still light outside. He stated that the Defendant's trailer, which was directly across the street, was approximately 100 to 150 yards from his home. J.M. said he was burning brush in his backyard when he heard whistling and then heard G.M. yell to him that the Defendant was "on the front porch naked." He stated that G.M. was "sh[a]ken up, startled, starting to cry[.]" J.M. said he quickly turned around and saw the Defendant going back inside his own home. At the time, J.M. could see the Defendant's bare buttocks as he walked inside. J.M. said that he was "one hundred percent positive" that he observed the Defendant's bare buttocks that day. He also asserted that he was able to observe the Defendant's buttocks even though the Defendant was approximately 100 to 150 yards away from him. J.M. said that although he heard whistling, it lasted approximately thirty seconds rather than five to ten minutes. He asserted that G.M. was "nervous, shaking" and began crying as a result of the Defendant's actions. J.M. immediately called the police to report the incident.

         J.M. acknowledged that there had been prior disputes between the Defendant and him. He admitted that he had previously said he wished the Defendant were not his neighbor. J.M. stated that the Defendant's trailer had burned following this incident but denied setting it on fire.

         N.M., G.M.'s mother, testified that although she did not observe the Defendant herself, G.M. told her that the Defendant had his pants around his ankles and that G.M. had seen the Defendant's "privates." She said that G.M. never said she could see the Defendant's penis, testicles, or buttocks, only that she had seen the Defendant's "privates." She said that G.M. and her niece, E.F., were very upset and were crying following this incident. She described G.M. as "quite hysterical" after this incident.

         The Defendant testified in his own behalf. He admitted that he went on his front porch and dropped his pants for "fun" but claimed that he was still wearing his white boxer shorts at the time. When he was asked why he dropped his pants, the Defendant said, "You know, I really don't know." He denied ever putting his hands over his genital area. The Defendant said that after dropping his pants, he turned around and went back inside his home. Although the Defendant initially said he did not remembering whistling, he later acknowledged that he might have whistled. He said he did not notice E.F. and G.M. across the street. He asserted that he did not like his neighbors so "why would [he] pay attention to what's going on over there[.]" The Defendant admitted that he could see the front yard of the home belonging to J.M. and N.M. from his front porch but denied ever seeing J.M. that day.

         The Defendant asserted that there had been several disputes between J.M. and him in the three years prior to this incident. He said that because J.M. and his family had obtained a no contact order against him following this incident, he moved out of his trailer that was across the street from them. The Defendant said that although he had turned off the electricity and water to his trailer, it burned down the day that J.M. and N.M. returned from vacation.

         At the conclusion of the proof, the trial court found that the Defendant's conduct was "intentional[80]." The court stated, "[T]here's no reasonable explanation to why he would drop his pants on his porch that faced another residence, with children playing in the yard, other than he expected to been seen by those children." The court then stated the following:

[H]is hands on his privates would lead one to believe that they were there for sexual arousal. The catcall would just further exemplify that he was wanting to be seen by, I guess, the little girls, primarily, and the fact that the father saw it almost simultaneously as he wheeled around and went the other way, and that there was no doubt at that time that his pants were all the way to the ground is enough for any ordinary person to be either offended or to-for the little girls' position or at least [G.M.], she was viewing him conducting himself for the purpose of sexual gratification. I really don't have any doubt about that. There's no explanation-he doesn't give any other explanation. I suppose he could-I mean, he took the stand and testified, he could have said, well, I just stepped off the porch to take a leak, but he didn't say that. He gave no explanation why he dropped his pants, so I think it fits the statute.

         The court, as the trier of fact, convicted the Defendant of the charged offense of indecent exposure. On March 2, 2018, the court sentenced the Defendant to six months, with service of forty-five days in jail and the remainder of the sentence on supervised probation. The judgment of conviction for this offense was entered the same day. Thereafter, the Defendant filed a timely motion for judgment of acquittal, motion for arrest of judgment, and motion for new trial, which the trial court denied. The Defendant then filed a timely notice of appeal.


         I. Notice to Defendant of Charged Offense.

         The Defendant argues that his indictment fails to charge an offense because it does not include the correct mens rea. The State counters that the indictment provided sufficient notice to the Defendant because the challenged portion does not relate to the mens rea for the offense, and that even if it did, the Defendant was able to easily determine the mens rea from the named statute. We conclude that the indictment provided sufficient notice to the Defendant of the mens rea for the charged offense.

         The United States Constitution and the Tennessee Constitution state that a defendant is entitled to knowledge of "the nature and cause of the accusation." U.S. Const. amend. VI; Tennessee Const. art. I, § 9. The Tennessee Supreme Court has stated that an indictment is valid if it contains sufficient information (1) to enable the defendant to know the accusation to which answer is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the defendant against double jeopardy. State v. Hammonds, 30 S.W.3d 294, 302 (Tenn. 2000) (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)). Moreover, pursuant to Tennessee Code Annotated section 40-13-202, the indictment must

state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner so as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.

Tenn. Code Ann. § 40-13-202; see Hammonds, 30 S.W.3d at 300 (stating that "indictments which achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements"). Because challenges to the validity of an indictment involve issues of law, we review them de novo. State v. Smith, 492 S.W.3d 224, 239 (Tenn. 2016) (citing Hill, 954 S.W.2d at 727).

         The Tennessee Supreme Court reiterated that when determining the validity of an indictment, the strict pleading requirements have been relaxed:

[W]e emphasize the fact that the Court has moved away from the strict pleading requirements adhered to under the common law. As we noted in Hill, "the purpose of the traditionally strict pleading requirement was the existence of common law offenses whose elements were not easily ascertained by reference to a statute. Such common law offenses no longer exist." Were we to hold ...

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