State v. Pickett

• Decision Date: 22 January 2007
• Citation: 211 S.W.3d 696
• Parties: STATE of Tennessee v. Kelly Michael PICKETT. and State of Tennessee v. Gregory T. Harwood.
• Court: Tennessee Supreme Court

211 S.W.3d 696

STATE of Tennessee v.Kelly Michael PICKETT. andState of Tennessee v.Gregory T. Harwood.

Supreme Court of Tennessee, at Nashville.

October 4, 2006 Session.

January 22, 2007.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Kelly Michael Pickett.

Jodie A. Bell and Wendy S. Tucker, Nashville, Tennessee, for the appellant, Gregory T. Harwood.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bernard McEvoy and Brian K. Holmgren, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., and ADOLPHO A. BIRCH, JR., SP. J., joined.

We granted the appeal in each of these cases to determine the constitutionality of Tennessee Code Annotated section 39-17-1003(2003), which prohibits the possession of child pornography.Initially, the statute is neither unconstitutionally vague nor overbroad.Secondly, we hold that because the charges against Pickett were multiplicitous, only one conviction is permissible under the circumstances of that case.In consequence, the judgment of the Court of Criminal Appeals in each case is affirmed.

I.Factual and Procedural BackgroundState v. Pickett

When police discovered images of nude children on his personal computer, Kelly Michael Pickett was indicted on eleven counts of sexual exploitation of a minor in violation of Tennessee Code Annotated section 39-17-1003(2003).Prior to trial, Pickett filed a motion to dismiss the entire indictment, alleging that Tennessee Code Annotated section 39-17-1003 was unconstitutional on its face.In the alternative, he sought dismissal of ten of the counts on grounds of multiplicity.The trial court ruled that the charges in the indictment were not multiplicitous.As to Pickett's constitutional challenge, the trial court concluded that resolution of the issue was not "capable of determination without a trial of the general issue."The case proceeded to trial without a jury some eleven months later.

The testimony established that in October of 1999, Pickett moved his personal computer to the residence of a friend, Allen Birney, who had Internet access.Thereafter, Pickett visited the Birney residence regularly in order to use the computer.On one occasion, Birney observed an "unusual" image on the screen while Pickett was using the computer.He later accessed some files on the computer and discovered images depicting nude children, one of which was a representation of two young boys engaged in oral sex.When Birney confronted Pickett, demanding that he either delete the images or remove the computer from the residence, Pickett claimed that the images had been e-mailed to him by a friend.

After being alerted that Pickett possessed child pornography, Detectives Robert Carrigan and Grant Carroll of the Metropolitan Nashville Police Department asked for and received permission from Pickett to search the computer.They discovered numerous images of nude children stored in the computer's temporary Internet file.Detective Carroll testified that he found images of both prepubescent and teenage girls in provocative poses.Detective Carroll explained that when a user visits a website that contains images, the images are automatically stored in the temporary Internet file.

A more thorough search of Pickett's computer revealed even more stored images.Detective Stanley Mitchell of the Computer Forensics Laboratory of the police department testified that in addition to those images contained in the temporary Internet file, there were more than one hundred images in the computer's unallocated space.Detective Mitchell explained that the images could have been placed in the computer's unallocated space when Pickett visited child pornography websites or when he downloaded and then deleted images from either the Internet, a diskette, or an e-mail.The officer explained that there was no way to conclusively determine how the images had been stored in the unallocated space.

Following the trial, the trial court upheld the constitutionality of Tennessee Code Annotated section 39-17-1003 and found Pickett guilty of eleven counts of sexual exploitation of a minor based upon eleven of the images recovered from his computer.On appeal, the Court of Criminal Appeals held that the statute was not unconstitutional but dismissed ten of the eleven convictions, concluding that the charges were multiplicitous.

State v. Harwood

Because the appeal by Harwood is interlocutory, few facts were developed in the trial court.He was indicted for four counts of sexual exploitation of a minor in violation of Tennessee Code Annotated section 39-17-1003(2003).Following the indictment, Harwood filed a motion to dismiss, challenging the constitutionality of Tennessee Code Annotated section 39-17-1003.The trial court rejected the claim, ruling that the statute was constitutional, but granted the request for this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.The Court of Criminal Appeals affirmed the ruling of the trial court.

II.Analysis

A.Constitutionality of Tennessee Code Annotated section 39-17-1003(2003)

Both Pickett and Harwood assert that Tennessee Code Annotated section 39-17-1003(2003) is unconstitutional on its face.Relying on the United States Supreme Court decision in Ashcroft v. Free Speech Coalition,535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403(2002), each defendant contends that the statute is unconstitutionally vague and overbroad.

Initially, our courts are charged with upholding the constitutionality of statutes where possible.Dykes v. Hamilton County,183 Tenn. 71, 191 S.W.2d 155, 159(1945);State v. Joyner,759 S.W.2d 422, 425(Tenn.Crim.App.1987)."In evaluating the constitutionality of a statute, we begin with the presumption that an act of the General Assembly is constitutional."Gallaher v. Elam,104 S.W.3d 455, 459(Tenn.2003)(citingState v. Robinson,29 S.W.3d 476, 479-80(Tenn.2000);Riggs v. Burson,941 S.W.2d 44, 51(Tenn.1997)).Moreover, this Court is required to "`indulge every presumption and resolve every doubt in favor of the statute's constitutionality.'"Id.(quotingState v. Taylor,70 S.W.3d 717, 721(Tenn.2002)).

This Court's role when construing a statute is "`to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope.'"Houghton v. Aramark Educ. Res., Inc.,90 S.W.3d 676, 678(Tenn.2002)(quotingOwens v. State,908 S.W.2d 923, 926(Tenn.1995))."Legislative intent is determined `from the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend or limit the statute's meaning.'"Osborn v. Marr,127 S.W.3d 737, 740(Tenn.2004)(quotingState v. Flemming,19 S.W.3d 195, 197(Tenn.2000))."When the statutory language is clear and unambiguous, we apply the plain language in its normal and accepted use."Boarman v. Jaynes,109 S.W.3d 286, 291(Tenn.2003)(citingState v. Nelson,23 S.W.3d 270, 271(Tenn.2000)).

At the time of the offenses in these cases, Tennessee Code Annotated section 39-17-1003 provided as follows:

(a) It is unlawful for any person to knowingly possess material that includes a minor engaged in:

(1) Sexual activity; or

(2) Simulated sexual activity that is patently offensive.

(b) In a prosecution under this section, the trier of fact may infer that a participant is a minor if the material through its title, text, visual representation or otherwise represents or depicts the participant as a minor.

(c) A violation of this section is a Class E felony.

Tenn.Code Ann. § 39-17-1003(2003)(emphasis added).¹

In Ashcroft v. Free Speech Coalition, the United States Supreme Court ruled that the provision of the Child Pornography Prevention Act of 1996 that prohibited any visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct" was unconstitutional.SeeFree Speech Coalition,535 U.S. at 258, 122 S.Ct. 1389;see also18 U.S.C. § 2256(8)(B)(1996).²Citing its earlier decisions in Miller v. California,413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973)(defining obscenity, which is not constitutionally protected speech, as "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value"), and New York v. Ferber,458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113(1982)(concluding that pornography which is created by using actual children is not constitutionally protected speech), the Court concluded that the statutory provision at issue was overbroad because it criminalized even those images that were not obscene and that did not involve the exploitation of actual children, such as computer-generated images or the use of adults that appear to be minors.Id. at 250-56, 122 S.Ct. 1389.

Both Pickett and Harwood assert that Tennessee Code Annotated section 39-17-1003(b), which provides that "the trier of fact may infer that a participant is a minor if the material through its title, text, visual representation or otherwise represents or depicts the participant as a minor," abridges free speech because it encompasses images where no child exploitation was actually involved, such as computer-simulated or virtual images.The defendants also contend that subsection (b) impermissibly shifts the burden to the defendant to prove that the images do not portray actual minors.The State submits that subsection (b) does not prohibit constitutionally protected speech and that the...