State v. Collier

Decision Date14 January 2021
Docket NumberNo. W2019-01985-CCA-R3-CD,W2019-01985-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. ROBERT COLLIER
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Shelby County

No. 18-07225

Jennifer Johnson Mitchell, Judge

On July 12, 2019, Defendant-Appellant, Robert Collier, entered a guilty plea to criminal attempt aggravated sexual battery and indecent exposure, for which he received an effective sentence of seven years, eleven months, and twenty-nine days, all of which was to be served on supervised probation. Tenn. Code Ann. §§ 39-12-101, 39-13-504 (2019). As part of his sentence, the Defendant was also ordered to register as a violent sex offender and placed on community supervision for life. Tenn. Code Ann. § 39-13-524 (2014). Within three months, on October 15, 2019, the trial court revoked the Defendant's supervised probation based on a violation of Tennessee Code Annotated section 40-39-211(d)(1)(B) (2019), which restricts movement of violent sex offenders, and ordered the Defendant to serve the original sentence in the Tennessee Department of Correction. The Defendant now appeals the order of the trial court arguing that subsection (d)(1)(B) is unconstitutional in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because certain terms including "playground," "any other specific or legitimate reason," "stand," "sit idly," and "remain" are not defined and "ambiguous." He additionally argues that subsection (d)(1)(B) is overbroad in violation of his First Amendment rights because (1) it applies to all sex offenders even if the offense did not involve a child victim; and (2) the term "playground" can include a church, an offender's front yard, and places where other adults are present.1 Following our review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Phyllis Aluko, District Public Defender, and Barry W. Kuhn, Assistant Public Defender, for the Defendant-Appellant, Robert Collier.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paige Munn, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

As a Range II, multiple offender charged with criminal attempt aggravated sexual battery, a Class C felony, the Defendant was subject to a sentence range of six to twelve years. Tenn. Code Ann. §§ 39-12-101, 39-13-504, 40-35-106, 40-35-112. As outlined above, the Defendant entered a guilty plea to criminal attempt aggravated sexual battery and indecent exposure and was placed on supervised probation for seven years, eleven months, and twenty-nine days. The judgment forms reflect count one was nolle prosequi with no costs, registration as a violent sex offender, community supervision for life, and "out of range" was written in the special conditions box. On the same day of his guilty plea, the Defendant signed a Tennessee Department of Correction probation order agreeing to, among other things, "abide by the provisions of Community Supervision for Life, pursuant to [Tennessee Code Annotated section] 39-13-524."

On August 26, 2019, an arrest warrant for the Defendant was issued based upon an affidavit from Laquita Hampton, the Defendant's probation officer, alleging that the Defendant had violated his probation. The affidavit specifically alleged as follows:

Count 1: [The Defendant] violated Rule #1 in that on or about August 17, 2019, complainant called for Officer(s) out of concern for the children that were present at the business. Officer(s) made contact with [the Defendant] and co-defendant who were both sitting next door to the indoor playground where approximately three children actively playing. [The Defendant] was arrested for being 1000 feet of a playground w[h]ere children under the age of 15 were present. [The Defendant] was transported to Felony Response Bureau and charged[.]
Count 2: [The Defendant] violated Rule #1 in that on or about August 16, 2019, complainant called for Officer(s) out of concern for the children that were [p]resent at the business. Officer(s) made contact with [the Defendant] and co-defendant who were both sitting next door to the indoor playground where approximately three children actively playing. [The Defendant] was caught on camera August 15, 2019 inside of the playground area.2

The Defendant was arrested, and the State filed a petition for revocation of suspension of sentence on August 26, 2019. The petition alleged the same grounds as relied upon in the affidavit; however, it further alleged that following the Defendant's arrest from the McDonald's restaurant, the Defendant failed to report the matter to his probation officer upon release from custody.

The Defendant was appointed counsel, and a hearing in this matter was conducted on October 14, 2019. The Defendant's probation officer, Shunta Lowery, testified that she no longer supervised the Defendant, and she had only met him twice during her supervision. She said the Defendant's probation was violated based on a new arrest; specifically, a violation of the sex offender registry. On cross-examination, she identified the Tennessee Bureau of Investigation Sex Offender Registry Rules (SOR), admitted as an exhibit, which are given to "new intakes when they come in to learn their terms of the sex offender conditions." She explained the SOR includes "copies of the law" and global positioning system (GPS) monitoring; however, "[GPS] doesn't specify exactly like their boundaries." Although she was not the intake officer for the Defendant, Lowery agreed that it was standard office policy to "go over," read, and explain each rule with each probationer. She agreed she had never told a probationer "not [] to be at certain restaurants[.]"

She clarified that the Defendant was placed on GPS monitoring on the day of intake as part of his probation. Each probationer is required to be placed on GPS for at least 90 days, and GPS tracks their whereabouts including public schools, parks, or daycare centers. A probationer's presence at a playground would trigger the GPS, and the control center would then call the probation officer. The GPS system does not "light up" or alert the offender of the violation. Instead, the probation officer notifies the probationer. Lowery's office does not maintain a physical list of state parks or locations because this information was "already inside" the tracking system. She reviewed the Defendant's GPS report at the time of his arrest, and it did not register any alerts. Lowery confirmed that the GPS system would not alert on a park that was not "state mandated."

On redirect examination, Lowery testified that she was "on call" at the time of the Defendant's arrest, and the call center did not inform her of his location. She believed this may have occurred because the Defendant was at a restaurant with an attached playground. She nevertheless insisted that the Defendant would have been instructed at intake "not to remain within a thousand feet of children" who were not his own. On re-cross examination, Lowery agreed that the "statute" does not explicitly require defendants to be "within a certain distance" of children. The trial court asked for clarification regarding her understanding of the law, and Lowery affirmed that areas that are not "state mandated,"like churches, are not included in the GPS system because they may not include playgrounds.

Officer Michael Gibbs testified that he was working on August 17, 2019, and responded to a call from a manager at a McDonald's restaurant in Memphis, Tennessee. Upon arrival, he spoke with the manager, identified the Defendant and the individual he was seated with, and asked for their identification. Officer Gibbs confirmed the Defendant and his "co-defendant" were violent sex offenders. Officer Gibbs described the area where the Defendant was sitting as "right next to a glass partition that was backed up to a McDonald's playground." The glass partition separated the play area from the rest of the restaurant. Officer Gibbs testified that, from the Defendant's vantage point, a person could see children at play. Officer Gibbs approached the Defendant, who then asked "am I not supposed to be here [?]" The entire encounter was captured on the body camera of Officer Gibbs, which was played for the trial court and later entered as an exhibit. After consulting a supervisor, Officer Gibbs placed the Defendant under arrest.

On cross-examination, Officer Gibbs confirmed that the manager reported that the Defendant had been eating at the restaurant. Officer Gibbs observed food on the table when he approached the Defendant. On redirect examination, Officer Gibbs testified that children were playing on the playground while the Defendant was at the restaurant. The parties stipulated that the McDonald's restaurant is located in Memphis, Tennessee, and is a privately-owned fast food restaurant operated for the purposes of generating a profit. The parties further agreed that the McDonald's has a surveillance system; however, the footage from August 16, 2019, and August 17, 2019, was not preserved.

Lieutenant Israel Taylor of the Memphis Police Department (MPD) testified on behalf of the Defendant. Lieutenant Taylor was the field supervisor who responded to the McDonald's and advised the officers on the scene on the appropriate charges in this case. He agreed that he initially had a question about the public versus private language in the "statute;" however, after consulting Felony Response and the Sex Crimes Bureau, he charged the Defendant with the instant violation. Portions of his body camera showing the discussion between the officers were played for the trial court and admitted into...

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