Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 16, 2019
from the Circuit Court for Grundy County No. 5910 Thomas W.
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. We affirm the judgment of the trial court.
R. App. 3 Appeal as of Right; Judgment of the Circuit Court
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
Camille R. McMullen, J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
CAMILLE R. MCMULLEN, JUDGE
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
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
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.
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.
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.
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.
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
conclusion of the proof, the trial court found that the
Defendant's conduct was "intentional." 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.
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
Notice to Defendant of Charged Offense.
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.
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
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).
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 ...