VanArsdall v. State

Decision Date23 August 1995
Citation919 S.W.2d 626
PartiesDavid A. VanARSDALL, Appellant, v. STATE of Tennessee, Appellee.
CourtTennessee Court of Criminal Appeals

Anderson County, Hon. James B. Scott, Judge (Especially Aggravated Sexual Exploitation of a Minor).

W. Thomas Dillard, Kenneth F. Irvine, Jr., Ritchie, Fels & Dillard, Knoxville, for Appellant.

Charles W. Burson, Attorney General and Reporter, Jeannie Kaess, Assistant Attorney General, Nashville, James N. Ramsey, District Attorney General, Janice G. Hicks, Assistant District Attorney General, Clinton, for Appellee.

OPINION

WHITE, Judge.

Appellant, David A. VanArsdall, appeals his conviction for especially aggravated sexual exploitation of a minor pursuant to Rule 3, Tennessee Rules of Appellate Procedure. While he frames five issues on appeal, they essentially are three:

whether the court erred when it refused to accept the tendered plea agreement;

whether appellant's conduct constituted a violation of Tennessee Code Annotated Section 39-17-1005; and

whether the court erred in refusing to require election by the prosecution and in instructing the jury.

Appellant, originally charged with misdemeanor child abuse, was indicted for the offense of especially aggravated sexual exploitation of a minor. 1 The indictment alleged that VanArsdall committed the offense on or about May 9, 1991, in that he did unlawfully and knowingly transport a minor D.H. [ 2, age 11, to participate in the performance of sexual activity or simulated sexual activity which is patently offensive, to wit: masturbation, in violation of TCA 39-17-1005.

Several pretrial motions directed at clarifying and challenging the charged conduct were filed. 3 After the trial court denied motions to dismiss, an interlocutory appeal was unsuccessfully sought.

Thereafter, VanArsdall, pursuant to a plea agreement, tendered a plea to the reduced charge of child abuse. The agreement anticipated an eleven month, twenty-nine day suspended sentence, with ten days incarceration. The court rejected the proposed agreement and VanArsdall withdrew his plea.

At trial, the jury convicted appellant of especially aggravated sexual exploitation of a minor. That testimony, viewed in the light most favorable to the prosecution, was that appellant, while working as a self-employed private investigator, was retained by a woman seeking a divorce who suspected her husband of an extramarital affair. During the course of his investigation, VanArsdall learned that his client and her children claimed to have suffered emotional and physical abuse, and possibly, sexual abuse. VanArsdall befriended the children, visited in the home, and determined that he would take them on a camping trip individually, ostensibly for the purpose of obtaining information helpful to the divorce.

VanArsdall picked up his client's daughter to take her on the camping trip with he and his wife. His wife never arrived. During the course of the trip, VanArsdall talked to the child about sex, played tapes of people presumably engaging in sex, and showed her sexually explicit magazines.

After arriving at the campsite, VanArsdall asked the young girl to pose nude for him. He suggested she take a "white pill" to calm down. He also exposed himself to her, explained masturbation, masturbated in front of her, and asked her to masturbate herself. The child simulated masturbation under the sleeping bag by moving her hand under the covers but never actually touched her private parts. Eventually VanArsdall returned the child to her home. He later took the brother camping, apparently without incident.

We find appellant's conduct, as established clearly by the state's evidence, to be deplorable. He abused a position of trust, traumatized a young child, and worsened the already difficult experience that a young child embroiled in a bitter divorce battle faces. Our job, however, is not to evaluate the moral depravity of appellant's actions. Rather, we must determine whether appellant violated the statute under which he was convicted and whether he was afforded the constitutional safeguards to which he is entitled.

We address first VanArsdall's contentions that the negotiated plea agreement was wrongfully rejected by the trial judge. The Tennessee Rules of Criminal Procedure provide that parties to a criminal action may enter into negotiations which result in agreements. These agreements may recommend or agree not to oppose a particular sentence, or they may agree that a particular sentence is appropriate. Tenn.R.Crim.P. 11. The court is not obligated to accept any agreement, but if the agreement is to a specific sentence, the court must give the defendant an opportunity to withdraw the plea if the agreement is not accepted.

Generally, a guilty plea may be accepted only after an informed waiver of rights and an acknowledgment of facts sufficient to support a conviction. Additionally, a defendant who wishes to enter a plea but does not wish to acknowledge guilt may, in the court's discretion, plead guilty based on a representation that the plea is in the defendant's best interest. This plea, commonly known as an Alford plea, is acceptable upon a showing that it is voluntarily and intelligently entered. North Carolina v. Alford, 400 U.S. 25, 39, 91 S.Ct. 160, 168, 27 L.Ed.2d 162 (1970).

A defendant's right to enter an Alford plea, or any plea, is not absolute, but is subject to the appropriate exercise of discretion by the trial judge. When a defendant challenges the court's failure to accept a plea, our obligation as an appellate court is to determine if an abuse of discretion occurred. State v. Williams, 851 S.W.2d 828, 830 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1992). If no substantial evidence supports the trial judge's decision, an abuse will be found. Id.

Here the trial judge believed that the conduct complained of constituted a serious felony offense against a little girl. Given the nature of the crime, the trial judge believed that appellant's acknowledgment of guilt was an important consideration in the overall evaluation of the terms of the plea agreement. Under these circumstances, we do not find an abuse of discretion in the rejection of the plea agreement.

The more difficult arguments raised by appellant involve the nature of the offense and the proof in this case. Appellant alleges that he was tried and convicted of an offense not stated in the indictment, not cognizable under statute, and not proven at trial.

In 1989 with the passage of the Criminal Sentencing Reform Act, the legislature abolished all common-law offenses. Before conduct can now constitute a violation of the criminal law, it must be "defined as an offense by statute, municipal ordinance, or rule authorized by and lawfully adopted under a statute." Tenn.Code Ann. § 39-11-102(a) (1991 Repl.). This provision is essential to two of the stated objectives of the criminal code:

[to g]ive fair warning of what conduct is prohibited, and guide the exercise of official discretion in law enforcement, by defining the act and the culpable mental state which together constitute an offense; [and to g]ive fair warning of the consequences of violation....

Tenn.Code Ann. § 39-11-101(2) & (3) (1991 Repl.).

Thus, our code recognizes the importance of clearly defined criminal offenses. Clear definition is essential not only for the benefit of the accused but also to comply with state and federal constitutional obligations. Tenn. Const. Art. 1, §§ 8 & 9; U.S. Const. amend. VI, XIV. If an offense is not defined so as to afford persons of ordinary intelligence fair notice of what conduct is prohibited, it violates due process. State v. Netto, 486 S.W.2d 725, 728 (Tenn.1972).

In addition to clear definition in the code, an offense must be clearly described in the indictment. Tenn.Code Ann. § 40-13-202 (1990 Repl.). The description in the indictment serves three purposes: to inform the defendant of the precise charges to be answered; to inform the court as to the applicable punishment; and to protect the defendant against double jeopardy. Pope v. State, 149 Tenn. 176, 258 S.W. 775 (1924). Additionally, the indictment must contain all the essential elements of the offense. State v. Morgan, 598 S.W.2d 796, 797 (Tenn.Crim.App.1979). An offense is adequately charged if the indictment tracks the language of the statute or uses equivalent words. Patty v. State, 556 S.W.2d 776, 780 (Tenn.Crim.App.1977).

The indictment must also allege that the defendant violated the law. Therefore, in addition to alleging the elements, the indictment must state facts which constitute the offense. Warden v. State, 214 Tenn. 391, 381 S.W.2d 244, 245 (1964).

Here, the accused was charged with violating a statute which included four elements including a defined criminal intent. 4 The first element--the mental state--requires that an offender act knowingly. The second two elements of the offense set forth the prohibited actions. These actions include promoting, employing, using, assisting, transporting, or permitting a minor to participate in the performance or in the production of material. The third element--material--is defined broadly, but is largely limited to tangible items. 5 The fourth element limits the second by specifying the nature of the material which must be involved to violate the statute. First, the material must include a minor. Second, the minor must be engaged in either sexual activity or simulated sexual activity that is patently offensive. The statute specifically defines "sexual activity" 6 and "patently offensive." 7 "Simulated," which is not defined, must be given its ordinary meaning. 8

Thus, in charging an offense under Tennessee Code Annotated Section 39-17-1005, the indictment must allege that the offender knowingly engaged in one of the proscribed actions with regard to material, as specified, which included a minor engaged in one of two prohibited activities. Likewise, in...

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