State v. Pendergrass

• Citation: 13 S.W.3d 389
• Decision Date: 12 August 1999
• Docket Number: 9810-CR-00371
• Parties: STATE OF TENNESSEE, Appellee, vs. JERRY C. PENDERGRASS and BROAD STREET VIDEO, a business entity, Appellants. C.C.A.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE MAY 1999 SESSION OPINION FILED:
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

STATE OF TENNESSEE, Appellee vs JERRY C. PENDERGRASS and BROAD STREET VIDEO, a business entity, Appellants

C.C.A. No. 03C01-9810-CR-00371

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

MAY 1999 SESSION

OPINION FILED: August 12, 1999

Hamilton County

Hon. Douglas A. Meyer, Judge

(Possession of Obscene Matter with Intent to Distribute, Distribution of Obscene Matter)

FOR THE APPELLANT JERRY C. PENDERGRASS:

H. LOUIS SIRKIN, Attorney at Law, 105 W. Fourth St., Ste. 920, Cincinnati, OH 45202

JOHN E. HERBISON, Attorney at Law, 2016 Eighth Ave. S, Nashville, TN 37204

FOR THE APPELLANT BROAD STREET VIDEO:

ARVIN H. REINGOLD, Attorney at Law, 1010 Market St., Chattanooga, TN 37402

FOR THE APPELLEE:

JOHN KNOX WALKUP, Attorney General & Reporter, ELLEN H. POLLACK, Asst. Attorney General, 425 Fifth Ave. North, 2d Floor, Cordell Hull Bldg., Nashville, TN 37243-0493

VICTOR S. JOHNSON, III, District Attorney General, BARRY STEELEMAN, Asst. District Attorney General, 600 Market St., Courts Bldg., Chattanooga, TN 37402

REVERSED & DISMISSED

JAMES CURWOOD WITT, JR., JUDGE

OPINION

The defendants, Jerry C. Pendergrass and Broad Street Video, were convicted of obscenity-related crimes at the conclusion of a jury trial in the Hamilton County Criminal Court. Both defendants were convicted of distribution of obscene matter, a Class A misdemeanor. See Tenn. Code Ann. § 39-17-902(a), (c)(1) (1997). Pendergrass was also convicted of possession with intent to distribute obscene matter, a Class A misdemeanor. See Tenn. Code Ann. § 39-17-902(a), (c)(1) (1997). Pendergrass received an eleven month, 29 day sentence, 75 percent of which was to be served in the county workhouse. Broad Street Video was fined $31,000. In this direct appeal, the defendants raise numerous issues for our consideration:

1. Whether proof of the mens rea is constitutionally sufficient to support each conviction.

2. Whether prosecutorial misconduct in closing argument warrants a new trial.

3. Whether the trial court properly instructed the jury.

4. Whether the cumulative effect of alleged prosecutorial misconduct and improper instructions violated the defendants' due process guarantees.

5. Whether Code section 39-17-902 is unconstitutional either on its face or as applied.

Having reviewed the record and the briefs of the parties, heard oral arguments, and studied the applicable law, we find the evidence insufficient to support the convictions. Accordingly, we reverse the convictions and dismiss the prosecution.

On January 30, 1996 an officer with the Chattanooga Police Department went into a business establishment at 2025 Broad Street. The officer looked around the store for 30 to 45 minutes and observed various types of merchandise of a sexual nature, including "sex toys" and sexually oriented videotapes. The videotapes were grouped together by the types of sex acts depicted. The officer selected a video entitled "Half and Half" and took it to the clerk behind the front desk. The clerk rang up the purchase; the officer tendered $53.82 and left the store. The only conversation the officer had with the clerk pertained to the purchase price and possibly to the clerk checking the officer's identification upon entering the store.

Thereafter, the officer viewed the videotape in furtherance of his investigation, and obscenity charges were initiated against the defendants.

At trial, the state presented the testimony of the officer regarding his observations and purchase on January 30, 1996. In addition to evidence of the facts described above, the officer testified that he did not see the defendant Pendergrass at Broad Street Video. The state also presented evidence via stipulation of the parties that (1) the Hamilton County Register of Deeds would testify that Jerry C. Pendergrass of 2437 Rossville Boulevard, Chattanooga, Tennessee, held the deed to the property at 2025 Broad Street, (2) the Chattanooga city treasurer would testify that (a) an application for business tax license 45480 was filed in the name Video and More by Jerry C. Pendergrass on June 9, 1993, (b) the name of the business was changed from Video and More to Broad Street Video, (c) Broad Street Video held business license 45480 in the name Jerry C. Pendergrass from April 1, 1995 to March 31, 1996, and (3) the Jerry C. Pendergrass referenced in the documents supporting the preceding stipulations was the same Jerry C. Pendergrass on trial. The state offered photographs of the building at 2025 Broad Street, which depict two neon signs reading "Adult Bookstore" along the front and one side of the building and two additional neon signs in the two front windows reading "Adult Books Videos Toys." The state also offered the videotape "Half and Half" and its printed cardboard container, and the tape was viewed in its entirety by the jury.

The defense presented no evidence.

I. Sufficiency of the Evidence

The first issue presented on appeal, and the one which is dispositive of the case, is whether the evidence that the defendants knowingly committed the crimes is sufficient to sustain their convictions.

When an accused challenges the sufficiency of the evidence, an appellate court's standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

Moreover, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613; State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).

In determining the sufficiency of the evidence, this court should not reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.

In pertinent part, the statute that the defendants were convicted of violating provides

It is unlawful to knowingly produce, send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter. . . .

Tenn. Code Ann. § 39-17-902(a) (Supp. 1995) (amended 1996).

As relevant to this case, the general mens rea provisions of the Criminal Code provide, "'Knowing' refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist." Tenn. Code Ann. § 39-11-302(b) (1997) (emphasis added); see also Tenn. Code Ann. § 39-11-106(a)(20) (1997).

Additionally, Code section 39-17-901 provides that certain definitions apply to Title 39, Part 9 (obscenity), unless the context requires otherwise. Tenn. Code Ann. § 39-17-901 (1997). Thereafter, the section supplies the following definition. "'Actual or constructive knowledge': a person is deemed to have constructive knowledge of the contents of material who has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material[.]" Tenn. Code Ann. § 39-17-901(1) (1997).

At trial, the state's case was geared toward a showing of the defendants' constructive knowledge of the suspect nature of the film "Half and Half." The trial court's instructions included the section 39-17-901(1) definition of the phrase "actual or constructive knowledge."

The question which arises is whether the "actual or constructive knowledge" definition applies to the crimes enumerated under section 39-17-902, when that section uses the word "knowingly" to describe the mental state required to constitute an offense and makes no reference to the phrase "actual or constructive knowledge."

Tennessee law provides the following principles to aid in interpretation of statutes. Penal statutes are to be construed giving fair import of their terms in a way which promotes justice and effects the objectives of the criminal code. Tenn. Code Ann. § 39-11-104 (1997). The duty of the courts is to give effect to legislative intent while...