STATE OF TENNESSEE v. RANDALL GRAINGER

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 15, 2014 Session

STATE OF TENNESSEE v. RANDALL GRAINGER

Appeal from the Criminal Court for Davidson County

No. 12A592 Cheryl A. Blackburn, Judge

No. M2012-02545-CCA-R3-CD - Filed June 18, 2014

Following a bench trial Defendant, Randall Grainger, was convicted of three counts of

knowingly violating a condition of community supervision for life, with each condition

violated not in itself constituting a criminal offense, in violation of Tennessee Code

Annotated section 39-13-526 (a),(b)(1). Each conviction is a Class A misdemeanor. The

trial court imposed a sentence of eleven (11) months and twenty-nine (29) days for each

conviction and ordered the sentences to be served concurrently with each other. The trial

court suspended all of the effective sentence of eleven (11) months and twenty-nine (29) days

except for ten (10) days’ incarceration, followed by eleven (11) months and nineteen (19)

days of probation. In his appeal Defendant presents two issues for this Court’s review. First,

Defendant asserts that the convictions should be reversed and the charges dismissed because

Tennessee Code Annotated section 39-13-524(d)(1) violates Article II, section 3 of the

Tennessee Constitution. Second, Defendant argues that the conviction based upon his failure

to successfully complete sex offender treatment violates his right to due process guaranteed

by both the United States Constitution and the Tennessee Constitution. After a thorough

review of the record, the parties’ briefs, and the applicable law, we affirm the judgments of

the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and R OBERT W. W EDEMEYER, J., joined.

Brent Horst, Nashville, Tennessee, for the appellant, Randall Grainger.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Megan King,

Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

Background

Following a jury trial in the Williamson County Circuit Court, Defendant was found

guilty of aggravated sexual battery. The victim was his niece who was seven years old at the

time of the offense. The following facts were set forth in this Court’s opinion in Defendant’s

appeal from that conviction.

Though evidence of more than one incident between Defendant and

his niece was introduced at trial, at the conclusion of the proof, the state

elected to have the jury consider only the following incident. This incident

occurred when B.B., the victim, was seven years old. (We will refer to the

minor victim by her initials.) She was living with her grandmother in

Nashville and was visiting her aunt and uncle, the Defendant, in Franklin.

B.B. testified that on returning from a trip to the hardware store with the

Defendant, he pulled his van over and stopped in a field. He told her to pull

her shorts down and she said “no.” He told her again to pull her shorts

down and told her not to tell anybody. She further testified that Defendant

“touched it,” explaining that he put one hand between her legs and touched

her “privates.” The victim testified that while Defendant was touching her,

he said that he liked to touch his wife’s privates.

Kevin League, a Detective Sergeant with the Franklin Police

Department, testified that he took two statements from the Defendant.

League testified that on the first occasion, the Defendant speculated that the

meeting concerned his niece, before the detective made any mention of the

victim’s name. In a written statement, Defendant described the incident that

occurred on the way home from the hardware store. He claimed that his

niece pulled her shorts down and told him that she had hair on her privates

like her aunt Mellie, the Defendant’s wife. He claimed that he told her to

pull her shorts back up and did not touch her. Also according to

Defendant’s written statement, his niece asked him if he had ever “sucked

on body parts like a bottle.”

Defendant’s testimony at trial mirrored his written statement to

police. He admitted that the incident had occurred, but not as the victim

described. He claimed that his niece had initiated the incident, testifying

that the seven year old had been sexually aggressive toward him. Following

an incident that occurred in Defendant’s home, he told his wife that he

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thought their niece had been molested in the past and to watch her. His

wife, the victim’s aunt, testified at trial that Defendant never told her that

B.B. had “come onto” him, as Defendant claimed.

State v. Randall Veris Grainger, No. M2001-02178-CCA-R3-CD, 2002 WL 31385936 at *1

(Tenn. Crim. App. Oct. 22, 2002) perm app. denied (Tenn. Mar. 3, 2003).

This court affirmed the conviction and the ten-year sentence imposed by the trial

court. Id. 2002 WL 31385936 at *8. Because Defendant was convicted of aggravated sexual

battery in violation of Tennessee Code Annotated section 39-13-504, he was also sentenced

to community supervision for life (CSL) pursuant to Tennessee Code Annotated section 39-

13-524. The substance of that statute has not been amended since Defendant’s offense and

the statute currently states:

39-13-524. Sentence of community supervision for life.

(a) In addition to the punishment authorized by the specific statute

prohibiting the conduct, a person shall receive a sentence of

community supervision for life who, on or after:

(1) July 1, 1996, commits a violation of § 39-13-502, §

39-13-503, § 39-13-504, or § 39-13-522;

(2) July 1, 2010, commits a violation of § 39-13-531; or

(3) The applicable date as provided in subdivision (a)(1)

or (a)(2) attempts to commit a violation of any of the

sections enumerated in subdivision (a)(1) or (a)(2).

(b) The judgment of conviction for all persons to whom the provisions

of subsection (a) apply shall include that the person is sentenced to

community supervision for life.

(c) The sentence of community supervision for life shall commence

immediately upon the expiration of the term of imprisonment

imposed upon the person by the court or upon the person’s release

from regular parole supervision, whichever first occurs.

(d) (1) A person on community supervision shall be under the

jurisdiction, supervision and control of the department

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of correction in the same manner as a person under

parole supervision. The department is authorized on

an individual basis to establish such conditions of

community supervision as are necessary to protect the

public from the person’s committing a new sex

offense, as well as promoting the rehabilitation of the

person.

(2) The department is authorized to impose and enforce a

supervision and rehabilitation fee upon a person on

community supervision similar to the fee imposed by

§ 40-28-201. To the extent possible, the department

shall set the fee in an amount that will substantially

defray the cost of the community supervision program.

The department shall also establish a fee waiver

procedure for hardship cases and indigency.

(emphasis added)

The statute that Defendant was convicted of violating states in pertinent part as

follows:

39-13-526. Violations of community supervision – Venue for violations. –

(a) It is an offense for a person to knowingly violate a condition of

community supervision imposed upon the person pursuant to §

39-13-524.

(b) (1)If the conduct that is a violation of a condition of community

supervision does not constitute a criminal offense, the violation is a

Class A misdemeanor.

Tenn. Code Ann. § 39-13-526(a), (b)(1)

Defendant was convicted of violating community supervision in one count by

possessing alcohol, in another count for failure to successfully complete sex offender

treatment, and in the third count for viewing pornography. After Defendant had completely

served his ten-year sentence of imprisonment, he was placed on CSL as per the judgment of

conviction. Various conditions of CSL were set forth in a document, signed by Defendant,

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which is titled “Specialized Parole Conditions for Sex Offenders.” Relevant to this appeal

are the three following special conditions applicable to Defendant:

1. I will not purchase or possess any pornographic or sexually explicit

written, printed, photographed or recorded materials, software, cable

station nor frequent or be employed by or engage in activities in any

business where pornographic materials are openly exhibited,

including, but not limited to, adult bookstores, theaters, nude or strip

bars, clubs or areas of prostitution activity.

...

3. I will attend, participate in, and pay for treatment or counseling with

an approved treatment provider as deemed necessary by the Board,

the Court, or my Officer. I will continue in such treatment as

instructed for the duration of supervision unless my treatment

provider, in consultation with my Officer, instructs me in writing

that I have satisfactorily completed treatment.

...

4. I will not use or possess any alcoholic beverage or other mind-

altering substance, except pursuant to my own prescription from a

licensed physician. I will inform my Officer the next business day

of any prescription I receive and will submit to testing for the

presence of any controlled substance or alcohol.

ANALYSIS

Constitutionality of Tennessee Code Annotated section 39-13-524(d)(1)

Defendant argues that Tennessee Code Annotated section 39-13-524(d)(1) violates

Article II section 3 of the Tennessee Constitution, specifically the first sentence of that

section which states, “The Legislative authority of this State shall be vested in a General

Assembly, which shall consist of a Senate and House of Representatives, both dependent on

the people.” Tennessee Code Annotated section 39-13-524(d)(1) states as follows:

(d)(1) A person on community supervision shall be under the jurisdiction,

supervision and control of the department of correction in the same

manner as a person under parole supervision. The department is

authorized on an individual basis to establish such conditions of

community supervision as are necessary to protect the public from

the person’s committing a new sex offense, as well as promoting the

rehabilitation of the person.

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Defendant asserts that the General Assembly unconstitutionally delegated its

lawmaking authority to the Department of Correction (which by legislation took the place

of the Board of Probation and Parole after Defendant was placed on CSL) by enacting

Tennessee Code Annotated section 39-13-524(d)(1). Specifically, Defendant argues that

Tennessee Code Annotated section 39-13-524(d)(1) unlawfully authorized an executive

branch entity to define a criminal act and the scope of its applicability. In other words,

according to Defendant, by granting an executive branch entity the power to define and

create certain conditions of CSL, and by stating that a knowing violation of any such

condition is a crime as set forth in Tennessee Code Annotated section 39-13-526, the General

Assembly authorized the executive branch to act in a legislative capacity to define and

proscribe criminal acts.

In support of his argument, Defendant directs our attention to the wording of

Tennessee Code Annotated section 39-13-526(b)(1), which states, “(b)(1) If the conduct that

is a violation of a condition of community supervision does not constitute a criminal offense,

the violation is a Class A misdemeanor.” Defendant implicitly asserts that a plain reading

of this section of the statute clearly shows that under the challenged statute (Tenn. Code Ann.

§ 39-13-524(d)(1)), the Board of Probation and Parole (now the Department of Correction)

is authorized to criminalize an act or omission that the General Assembly has not

criminalized, simply by including the act or omission as a condition of CSL. Defendant

acknowledges that there are some restrictions on the executive branch when determining the

individualized conditions. That is, the specialized conditions must be “necessary to protect

the public from the [defendant’s] committing a new sex offense, as well as promoting the

rehabilitation of the person.” Tenn. Code Ann. § 39-13-524(d)(1). However, Defendant

argues that this “policy statement” is “too broad” to provide any restriction on what can be

a condition of CSL, which becomes the basis of a criminal charge upon being included as a

condition of CSL, even if the act is otherwise not a crime.

The State initially argues that Defendant has waived his claim that Tennessee Code

Annotated section 39-13-524(d)(1) is unconstitutional because he did not assert this claim

when he appealed his conviction for aggravated sexual battery. We do not agree and will

address the merits of the issue.

Defendant relies upon Tasco v. Long, 368 S.W.2d 65 (Tenn. 1963) for the well settled

proposition that the General Assembly cannot delegate its law making authority. Defendant

concedes, however, that even in criminal cases, the General Assembly may delegate to

agencies or departments of the executive branch rule making authority pertaining to

“implementation of criminal laws and criminal sanctions created by the General Assembly.”

Defendant argues that the language in Tennessee Code Annotated section 39-13-524(d)(1)

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fails to establish meaningful standards for the executive branch to follow and in fact provides

complete discretion in legislative activity to the executive branch. Our supreme court has set

forth the law regarding this issue as follows:

Article II, section 3 of the Tennessee Constitution vests the state’s

legislative power in the General Assembly. In general, “legislative power”

is “the authority to make, order, and repeal law.” Id. The General

Assembly may not delegate power that is “purely legislative.” State v.

Edwards, 572 S.W.2d 917, 919 (Tenn. 1978); see also Chattanooga-

Hamilton County Hosp. Auth. v. Chattanooga, 580 S.W.2d 322, 328 (Tenn.

1979). Therefore, the General Assembly may not delegate to an executive

branch agency the exercise of the legislature’s discretion as to what the law

shall be. See Dep’t of Pub. Welfare v. Nat’l Help “U” Ass’n, 197 Tenn. 8,

270 S.W.2d 337, 339 (1954). However, the General Assembly may

delegate to an administrative agency the authority to implement the

expressed policy of particular statutes. See Edwards, 572 S.W.2d at 919.

A grant of such authority may include the power to promulgate rules and

regulations that have the effect of law in the agency’s area of operation. See

Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997). Because the

enactment of reasonable rules and regulations is administrative in character,

it does not amount to the exercise of a legislative function, despite the

agency’s exercise of discretion. See Tasco Developing & Bldg. Corp. v.

Long, 212 Tenn. 96, 368 S.W.2d 65, 68-69 (1963); see also INS v. Chadha,

462 U.S. 919, 953 n. 16, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (noting that

rulemaking by administrative agencies resembles lawmaking).

The test for determining whether a legislature’s delegation of power to an

administrative agency is unconstitutional is “whether the statute contains

sufficient standards or guidelines to enable both the agency and the courts

to determine if the agency is carrying out the legislature’s intent.” Bean,

953 S.W.2d at 199.

Gallaher v. Elam, 104 S.W.3d 455, 464 (Tenn. 2003).

In Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1997), our supreme court also held

that,

Detailed or specific legislation may be neither required nor feasible when

the subject matter requires an agency’s expertise and flexibility to deal with

complex and changing conditions.

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The requirement of expressed standards may also be relaxed when the

discretion to be exercised relates to or regulates for the protection of the

public’s health, safety, and welfare.

Bean, 953 S.W.2d at 199.

By legislative enactment, any individualized conditions of CSL must be necessary to

protect the public from the defendant committing an additional sex offense and promote the

rehabilitation of the defendant. Obviously, these relate to the public’s safety and welfare.

The standards in the statute enable both the executive branch and the judicial branch to

determine if the executive branch is carrying out the intent of the General Assembly. We

hold that under Bean and Gallaher, Tennessee Code Annotated section 39-13-524(d)(1)

does not violate Article II, section 3 of the Tennessee Constitution. Defendant is not entitled

to relief on this issue.

Due Process Claim

Defendant argues that his conviction for violating a condition of CSL by “failure to

successfully complete sex offender treatment” violates his rights to due process guaranteed

by the United States and the Tennessee constitutions because the conviction punished him

“for refusing to confess a crime.”

Before addressing the merits of this issue, it is necessary to summarize the relevant

evidence from the trial. As noted above, one of the conditions of Defendant’s community

supervision was that,

3. I will attend, participate in, and pay for treatment or counseling with

an approved treatment provider as deemed necessary by the Board,

the Court, or my Officer. I will continue in such treatment as

instructed for the duration of supervision unless my treatment

provider, in consultation with my Officer, instructs me in writing

that I have satisfactorily completed treatment.

...

In order to begin participation with an approved treatment provider Defendant

contacted Dr. Donna Moore, Ph.D., a psychologist. Dr. Moore testified at trial as an expert

witness in the field of sex offender treatment and evaluation. Dr. Moore first met Defendant

when he came to her office for a psychosexual examination in December 2009. Defendant

was first interviewed that day and then tested on a subsequent visit in January 2010. Dr.

Moore testified that Defendant was “in denial” as to his committing improper sexual

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behavior which resulted in his conviction for aggravated sexual battery. As part of the

treatment program, Defendant was required to take a polygraph examination because he

remained “in denial” and also because he did not actively participate in nine consecutive

weekly group therapy sessions. After taking the polygraph examination and being confronted

with the results, Defendant “reluctantly” admitted some details of the incident which led to

his conviction. Defendant told the group therapy participants that “he knew how wrong” his

conduct had been.

Dr. Moore permitted Defendant to remain in her sex offender treatment program even

though he had been in denial from the beginning and had declined to participate in group

discussions because at this tenth session Defendant “was able to acknowledge some of the

behaviors, enough to be able to stay in treatment.” However, the following week at the

eleventh weekly group therapy session, Defendant disavowed the admissions he had made

the previous week. Dr. Moore testified that,

[Defendant] returned the following week and that week said that he had not

done the behaviors and that he only said the week before that he did [exhibit

the behaviors] was because I [Dr. Moore] had called him a liar and that we had

basically coerced him to admit those things.

Defendant came to one more group therapy session with Dr. Moore. Defendant

continued to deny that he was “sexually deviant” and that he had engaged in the offense of

aggravated sexual battery for the purpose of sexual gratification. Defendant was discharged

from Dr. Moore’s sex offender treatment program “because of his refusal to acknowledge

the behavior problem for which is the group’s purpose.” Thus, Defendant failed to

successfully complete sex offender treatment. In a “treatment summary” which Dr. Moore

prepared and sent to Defendant’s CSL officer, Dr. Moore provided details of why Defendant

had to be expelled from the sex offender treatment and why honesty by Defendant was

necessary for him to participate in treatment. The treatment summary was made an exhibit

and states in part as follows:

In summary, [Defendant] was compliant with attendance yet not prepared

to work in therapy as outlined in his treatment contract (enclosed). He was

unwilling to accept responsibility for his offense of record, sexual interest

in children, or ongoing sexual risks. He was unwilling to comply with the

therapeutic rules to assist him in lowering his risk for sexual reoffense.

Sexual offenders such as [Defendant], have created an offending

environment to act out and commit their sexual offenses, and try to do this

with others as well. That is, his attempt to create an offending environment

in treatment by using tactics of manipulation and deceit were unsuccessful

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for him to which he responded by playing the victim and blaming others for

his problems rather than learn ways to deal with them himself. He may seek

an alternative therapy program where he can manipulate and be successful

rather than address his issues. It is critical that he be able to make healthy

choices and learn to modify his behavior rather than seek settings in which

he can manipulate others. [Defendant] remains at risk for sexual reoffense

against children. His history of manipulative behaviors as demonstrated in

his offending and indicates entrenched patterns of behavior that need to be

addressed.

Thank you for your referral for this case. If I can provide additional

information, I would be happy to do so and you may contact me at ***-***-

****. I look forward to working with you in the future.

/s/ Donna L. Moore

Donna L. Moore, Ph.D.

Psychologist, H.S.P.

Defendant testified that he had maintained at his trial for aggravated sexual battery,

and continued to maintain at the time of his trial for violation of conditions of CSL, that he

was innocent of the charges of aggravated sexual battery. Defendant admitted that Dr.

Moore’s testimony about Defendant’s reluctance to admit his guilt to the sexual offense was

mostly accurate. Defendant testified that the only reason he got “kicked out” of the sex

offender treatment program was because he would not admit to committing the offense for

which he had been convicted. Defendant acknowledged that his community supervision

officer advised him to get back into “counseling” “once this [pending charge] is over.”

Defendant added that he had no reluctance to go to the counseling “as long as they don’t try

to force me into telling something that ain’s [sic] truth [sic].”

On cross-examination, Defendant admitted that he had been “expelled” from Dr.

Moore’s sex offender treatment program because he refused to “admit to having any sexual

intent or gratification concerning the offense for which [he had been] convicted.” Defendant

acknowledged that he had not attended any sex offender treatment program since being

expelled by Dr. Moore.

From our review of the record, we conclude that the only criminal conduct Defendant

had to admit to in order to comply with the sex offender treatment was the criminal conduct

pertaining to his conviction offense. Constitutional protections from double jeopardy would

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prohibit any further prosecution for the offenses of aggravated sexual battery for which he

had been convicted. See U.S. Const. Amend. 5.

Defendant concedes that his fifth amendment rights to remain silent and to have an

attorney [present during questioning] are not implicated. However, his entire citation to legal

authority is a citation to six state and federal cases, with no analysis of the cases in support

of the assertion that, “[M]any [s]tate and [f]ederal [c]ourts have held that it is a due process

violation to coerce a confession.” In its brief, the State satisfactorily distinguishes each case

submitted by Defendant.

According to the evidence, an offender’s acknowledgment of inappropriate behavior

in commission of the conviction offense is a necessary part of sex offender treatment for the

rehabilitation of the offender and for protection of the public from the offender’s commission

of more sexual offenses. Unless Defendant acknowledged his wrongful conduct, he could

not participate in sex offender therapy. He was expelled from treatment. Therefore he failed

to meet one of the conditions of community supervision. As a result he was formally

charged, tried, and convicted for the offense of violation of a condition of community

supervision, to-wit: failure to complete sex offender treatment. Admission by Defendant of

the acts resulting in his conviction for aggravated sexual battery could never be used against

Defendant in any future prosecution. Therefore, any admissions

he might have made concerning the conviction offense could not be incriminating statements.

The special condition of CSL pertaining to this issue required Defendant to continue in sex

offender treatment for the duration of CSL unless he was instructed in writing that he had

satisfactorily completed the program. The status of this condition of Defendant’s CSL is that

he was expelled by the State approved and State designated sex offender treatment provider

from participating in treatment and counseling because he refused to admit his criminal

conduct. The proof indicates he will never be permitted to again participate in sex offender

treatment as long as he refuses to acknowledge his sexual conduct with the victim.

Defendant maintained that he would never admit to any wrongful conduct. Therefore, the

proof shows he will never again be admitted to a sex offender treatment program, even if he

requests to resume treatment without a requirement to admit his criminal conduct.

Defendant’s due process claim appears to be a claim of violation of his right to

substantive due process. Substantive due process claims are usually allocated to one of two

categories. As noted by our supreme court in Mansell v. Bridgestone Firestone North

American Tire, LLC, et al., 417 S.W.3d 393 (Tenn. 2013):

In contrast to procedural due process, substantive due process bars oppressive

government action regardless of the fairness of the procedures used to

implement the action. Lynch [v. City of Jellico, 205 S.W.3d 384, 391-92

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(Tenn. 2006)]. Substantive due process claims are divided into two categories:

(1) deprivations of a fundamental constitutional guarantee, and (2) government

actions that are “arbitrary, or conscience shocking, in a constitutional sense.”

Id. at 392 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 128, 112

S.Ct. 1061, 117 L.Ed. 261 (1992)). “Appropriate limits on substantive due

process come not from drawing arbitrary lines but rather from careful ‘respect

for the teachings of history [and] solid recognition of the basic values that

underlie our society.’” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494,

503, 97 S.Ct. 1932, 52 L.Ed. 531 (1977)(quoting Griswold v. Connecticut, 381

U.S. 479, 501, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)(Harlan, J., concurring)).

Mansell, 417 S.W.3d at 409.

Defendant argues that the State used coercion in the form of criminal charges for

violating a condition of CSL in order to obtain a confession from Defendant. In other words

Defendant argues the State in effect told him, “Either confess to the crime for which you

have been convicted, or you will be charged with an additional criminal offense.”

We respectfully disagree with Defendant’s argument. Our holding in this case is

limited to the facts of this case. In order to successfully provide sex offender treatment for

Defendant, the State, through its approved and designated treatment provider, mandated that

Defendant must acknowledge the wrongfulness of his criminal acts which led to his

conviction for aggravated sexual battery. The conviction had been a final judgment for

several years prior to Defendant’s attempt to participate in sex offender treatment. The

admissions that Defendant refused to make could never be used against him in any criminal

proceedings and is therefore not a deprivation of a fundamental constitutional right. Based

on the proof, as long as Defendant refuses to admit his wrongful conduct, the State will never

permit him to attempt to comply with the condition of CSL that he participate in sex offender

treatment. This one time prosecution for violating a condition of CSL by failure to

successfully complete his sex offender treatment for the reason that he would not admit to

his criminal conduct is not arbitrary, irrational, improperly motivated, or so egregious to

shock the conscience. Defendant is not entitled to relief on this issue.

In conclusion, we affirm the judgments of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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