Opinion

State of Tennessee v. Randall Ray Ward

Court: Court of Criminal Appeals of Tennessee
Filed: Feb 27, 2020
Status: Published
On the bench: Judge J. Ross Dyer
Cited by: 0 cases
Authority: More cited than 11.1%

The opinion

02/27/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 3, 2019

STATE OF TENNESSEE v. RANDALL RAY WARD

Appeal from the Circuit Court for Madison County

No. 17-495 Donald H. Allen, Judge

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No. W2019-00345-CCA-R3-CD

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A Madison County jury convicted the defendant, Randall Ray Ward, of two counts of

promoting prostitution and one count of trafficking a person for a commercial sex act.

Following a sentencing hearing, the trial court imposed an effective sentence of twenty

years in confinement. On appeal, the defendant challenges the sufficiency of the

evidence to support his convictions. He also argues the trial court erred in failing to

merge the convictions regarding S.C.1 and in failing to give the jury an instruction on

accomplice testimony. After reviewing the record and considering the applicable law, we

affirm the defendant’s convictions but remand for merger of Counts three and four.

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

and Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN

and ROBERT H. MONTGOMERY, JR., JJ., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public

Defender, for the appellant, Randall Ray Ward.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant

Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown,

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

OPINION

Facts and Procedural History

It is the policy of this Court to refer to victims of sexual crimes by their initials. We intend no

disrespect.

A Madison County grand jury indicted the defendant, Randall Ray Ward, for two

counts of trafficking a person for a commercial sex act (Counts one and three) and two

counts of promoting prostitution (Counts two and four). Following a jury trial, the

defendant was convicted of one count of trafficking a person for a commercial sex act

(Count three) and two counts of promoting prostitution (Counts two and four). The

defendant was acquitted on Count one. At trial, the State presented the following facts

for the jury’s review.

T.G. testified she was a heroin addict for twenty years, and, to support her habit,

she began engaging in acts of prostitution. Initially, she worked for a man named Chew.

However, after a physical altercation, T.G. wanted more protection. The defendant

approached her and promised to take care of her if she worked as a prostitute for him.

S.C. testified she met the defendant shortly after moving to Jackson. Like T.G.,

S.C. was addicted to heroin and moved to Jackson for easier access to drugs. While in

Jackson, S.C.’s friend posted an ad for her on Backpage, a website containing

advertisements for commercial sex services. Three days after her ad was posted, the

defendant contacted S.C. and asked her to work for him. The defendant promised S.C.

she would “never have to be dope sick” again. S.C. explained “dope sick[ness]” occurs

when your body goes through heroin withdrawal.

To procure clients for T.G. and S.C., the defendant took “almost nude”

photographs of them posing suggestively. T.G. and S.C., who went by the names

“Barbie” and “Peaches,” respectively, posed both alone and together. Although only the

defendant took T.G.’s pictures, S.C. testified both the defendant and T.G. took pictures of

her. The defendant then edited the pictures and used them in advertisements he posted on

Backpage. The advertisements listed T.G. and S.C.’s location as Jackson and provided

their cell phone numbers for potential clients to contact. Neither T.G. nor S.C. had the

password to the defendant’s Backpage account and had no control over the content of the

advertisements or how long they stayed on the website.

While working for the defendant, T.G. acted as his “bottom.” She explained that

this meant she was the defendant’s “right[-]hand man.” As a “bottom,” T.G. had access

to better quality drugs, slept in her own room, and recruited women to work in the

defendant’s “stables.” Additionally, if the defendant were not present, T.G. was in

charge of the other women.

T.G. and S.C. testified the defendant was both physically and mentally abusive.

The defendant kept all of the money they earned, and, if he believed they were not seeing

enough clients, he would withhold drugs until they earned more money. T.G. estimated

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she saw eight to fifteen clients each day and charged $200 per hour. Although the clients

paid T.G. and S.C. directly, all of the money they earned went to the defendant

immediately after the client left. In addition, the defendant controlled where T.G. and

S.C. slept, when they ate, and what they wore. The defendant also kept both T.G. and

S.C.’s identification in his wallet, only relinquishing them when they were needed to rent

a hotel room. However, after the room was paid for, the defendant immediately regained

control of the ID.

If T.G. refused to perform a sexual act with a client, the defendant would threaten

her, asking why she was “going to make [him] kill [her].” The defendant also threatened

to abandon T.G. with “just the shirt on [her] back.” Although she wanted to leave, T.G.’s

drug addiction acted like “invisible handcuffs,” preventing her from escaping the

defendant’s grasp. However, shortly before the defendant’s arrest, T.G. attempted to

escape while the defendant was asleep. As she was running from the hotel, the defendant

chased her, pulled her hair, and “threw [her] around.”

S.C. testified she was not forced to see particular clients as long as she “made up

the money . . . another way.” When asked if she were able to come and go as she

pleased, S.C. stated she “never really tested that theory” because she was afraid of what

the defendant would do to her. Once, the defendant was physically violent with S.C. to

“prove . . . he was in control.” Another time, S.C. saw the defendant hit T.G., resulting in

a “big knot on her head” and bruises.

On June 14, 2017, T.G., S.C., the defendant, and another woman travelled from

Jackson to Memphis to meet clients. After checking into a hotel, S.C. and the other

woman overdosed on heroin. Although S.C. recovered from her overdose, T.G. took the

other woman to the hospital. Officers from the Bartlett Police Department arrived at the

hospital to investigate the overdose, and T.G. was taken into custody. However, T.G. did

not initially disclose her relationship with the defendant because she was only concerned

with “getting that next lick of dope.” Likewise, when initially questioned, S.C. did not

reveal her connection with the defendant. However, after she was arrested in Madison

County two weeks later, S.C. spoke to Special Agent Chris Carpenter with the Tennessee

Bureau of Investigation and disclosed that she was working as a prostitute for the

defendant.

On cross-examination, T.G. acknowledged having perks as a result of being the

defendant’s “bottom,” including additional freedom and her own cell phone, and she

agreed she never reached out to family or friends for help. T.G. also acknowledged she

sometimes used physical violence or threats to control the other women when the

defendant was not present. Although she was initially charged with the same offenses as

the defendant, the charges were dropped after she agreed to cooperate with police.

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On cross-examination, S.C. agreed she did not reveal that the defendant was

physically violent until the second time she spoke with Special Agent Carpenter and

acknowledged she was allowed to attend rehab shortly after giving the police her

statement. S.C. also agreed she was allowed to get food without the defendant but

testified T.G. was always with her if the defendant was not present.

Detective Mike Christian with the Bartlett Police Department responded to a

report of an overdose at a local hospital on June 14, 2017. After speaking with T.G.,

Detective Christian obtained a search warrant for the defendant’s hotel room and

instructed fellow detectives to arrest the defendant. Detective Christian searched the

defendant’s hotel room, finding a number of cell phones, a laptop computer, and various

documents. Following the defendant’s arrest, Detective Christian seized the defendant’s

wallet and a Samsung Galaxy cellphone. In the defendant’s wallet, Detective Christian

discovered S.C.’s state-issued ID and a handwritten note which read “I, [S.G.], give my

human rights up to my daddy, T-Bone, for the rest of forever as long as we continue

showing our mutual respect forever.” S.C. admitted writing the note but testified it was

as a joke. She stated the note was a gift for the defendant because she wanted to do

“something nice for him.”

Lieutenant Jerry Springer with the Bartlett Police Department conducted an

examination of the Samsung Galaxy cell phone found on the defendant at the time of his

arrest. During the examination, Lieutenant Springer extracted videos, photographs, text

messages, and phone logs. In particular, the phone contained scantily clad pictures of

T.G. and S.C. with the names “Barbie” and “Peaches” superimposed on them. Lieutenant

Springer also recovered several photographs of the defendant with T.G. and S.C..

The defendant declined to present evidence. Following deliberations, the jury

found the defendant guilty of promoting prostitution with regard to his actions against

T.G. (Count two) and trafficking a person for a commercial sex act and promoting

prostitution with regard to his actions against S.C. (Counts three and four). The

defendant was found not guilty of trafficking a person for a commercial sex act with

regards to T.G. (Count one). Following a sentencing hearing, the trial court imposed an

effective sentence of twenty years.

The defendant filed a timely motion for new trial in which he argued, in part, the

evidence at trial was insufficient to support the jury’s verdict and the trial court erred in

refusing to give an accomplice jury instruction and in refusing to merge Counts three and

four. The trial court denied the motion, and this timely appeal followed.

Analysis

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On appeal, the defendant argues the evidence at trial is insufficient to support his

convictions. The defendant also argues the trial court erred in refusing to merge his

convictions for promoting prostitution and trafficking a person for a commercial sex act

relating to S.C. and refusing to give a jury instruction on accomplice testimony. The

State contends the evidence is sufficient to sustain the defendant’s convictions and the

trial court properly refused the accomplice instruction and merger.

I. Sufficiency

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “whether, after viewing 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, 319 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier of

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92

(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All

questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). Our Supreme Court has stated the following rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus, the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere, and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d

523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A. Trafficking a Person for a Commercial Sex Act

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The jury convicted the defendant of trafficking a person for a commercial sex act

with regards to his actions against S.C.. As charged in this case, trafficking a person for a

commercial sex act occurs when a person “[k]nowingly subjects, attempts to subject,

benefits from, or attempts to benefit from another person’s provision of a commercial sex

act” or “[r]ecruits, entices, harbors, transports, provides, purchases, or obtains by any

other means, another person for the purpose of providing a commercial sex act.” Tenn.

Code Ann. § 39-13-309(a)(1)-(2). For the purposes of subsection (a)(2), other means

may include:

(1) Causing or threatening to cause physical harm to the person;

(2) Physically restraining or threatening to physically restrain the person;

(3) Abusing or threatening to abuse the law or legal process;

(4) Knowingly destroying, concealing, removing, confiscating or

possessing any actual or purported passport or other immigration document,

or any other actual or purported government identification document, of the

person;

(5) Using blackmail or using or threatening to cause financial harm for the

purpose of exercising financial control over the person; or

(6) Facilitating or controlling a person’s access to a controlled substance.

Id. § 39-13-309(3). A commercial sex act is “[a]ny sexually explicit conduct for which

anything of value is directly or indirectly given, promised to or received by any person,

which conduct is induced or obtained by coercion” or “[a]ny sexually explicit conduct

that is performed or provided by any person, which conduct is induced or obtained by

coercion.” Id. § 39-13-301(4)(A)-(B). Coercion includes “[c]ausing or threatening to

cause bodily harm to any person, physically restraining or confining any person or

threatening to physically restrain or confine any person;” “[d]estroying, concealing,

removing, confiscating, or possessing any actual or purported passport or other

immigration document, or any other actual or purported government identification

document, of any person;” or “providing a controlled substance . . . to a person.” Id. §

39-13-301(3)(A), (C), (D).

The defendant contends the evidence is insufficient because the “only proof

alleging [the defendant] trafficked S.C. came from the testimony of her and T.G..” The

defendant asserts the introduction of hotel receipts and copies of Backpage

advertisements does not establish the defendant “compelled or forced” S.C. to engage in

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commercial sex acts. At most, the defendant concedes the State showed he assisted S.C.

with her prostitution “activities.”

Viewed in the light most favorable to the State, S.C. testified she began working

for the defendant three days after her first posting on Backpage. The defendant and T.G.

took suggestive photographs of S.C., and the defendant posted the pictures in an

advertisement for sexual services on Backpage. While working for the defendant, S.C.

was required to give the defendant all of the money she made working as a prostitute.

Additionally, the defendant controlled where S.C. lived, what she ate, and what clothes

she wore. The defendant also confiscated S.C.’s identification, only allowing her access

to it when she rented hotel rooms for him. S.C.’s identification was in the defendant’s

possession at the time of his arrest. While with the defendant, S.C. was addicted to

heroin, and, if the defendant believed she was not earning enough money, he withheld

drugs until she saw more clients. S.C. also testified the defendant used physical violence

to exert control over her. Based on this testimony, a rational jury could find the

defendant guilty of trafficking a person for a commercial sex act beyond a reasonable

doubt. The defendant is not entitled to relief on this issue.

B. Promoting Prostitution

The jury also convicted the defendant of two counts of promoting prostitution. As

charged in this case, promoting prostitution is defined as “[e]ncouraging, inducing, or

otherwise purposely causing another to become a prostitute.” Tenn. Code Ann. §§ 39-13-

512(4)(A)(iii); -515(a)(1). Prostitution includes “engaging in, or offering to engage in,

sexual activity as a business[.]” Id. § 39-13-512(6). The defendant argues he cannot be

guilty of promoting prostitution because both S.C. and T.G. engaged in prostitution prior

to meeting him.

The evidence, considered in the light most favorable to the State, showed the

defendant, at different times, approached T.G. and S.C., offering to protect them and

provide them with drugs if they worked for him as prostitutes. The defendant took

suggestive photographs of S.C. and T.G., edited them, and posted them in advertisements

for sexual services using his Backpage account. Although the prostitution took place in

hotel rooms rented in either T.G. or S.C.’s name, the defendant provided cash to pay for

the rooms and chose where they stayed. Furthermore, the money made by T.G. and S.C.

while working as prostitutes was given directly to the defendant. Based on this evidence,

a rational jury could find the defendant guilty of promoting prostitution beyond a

reasonable doubt. The defendant is not entitled to relief on this issue.

II. Failure to Merge Convictions

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The defendant argues the trial court erred in failing to merge his convictions for

trafficking a person for a commercial sex act and promoting prostitution regarding S.C..

Specifically, the defendant contends the prohibition against double jeopardy requires that

the two convictions be merged. While the defendant concedes the two offenses have

different elements, he states “the proof at trial essentially was that [the defendant]

recruited [S.C.] [to] work for him as a prostitute.”

Both the federal and state constitutions protect an accused from being “twice put

in jeopardy of life or limb” for “the same offense.” U.S. Const. Amend. V; Tenn. Const.

art. 1, sec. 10. The Double Jeopardy Clause provides three distinct protections: (1)

protection against a second prosecution for the same offense after acquittal; (2) protection

against a second prosecution for the same offense after conviction; and (3) protection

against multiple punishments for the same offense. State v. Watkins, 362 S.W.3d 530,

541 (Tenn. 2012). A claim that multiple convictions violate the protection against double

jeopardy is a mixed question of law and fact, which this Court will review de novo

without any presumption of correctness. State v. Smith, 436 S.W.3d 751, 766 (Tenn.

2014) (citing State v. Thompson, 285 S.W. 3d 840, 846 (Tenn. 2009)).

The Tennessee Supreme Court has divided single prosecution, multiple

punishment claims into two categories: (1) unit-of-prosecution claims, “when a defendant

who has been convicted of multiple violations of the same statute asserts that the multiple

convictions are for the same offense,” and (2) multiple description claims, “when a

defendant who has been convicted of multiple criminal offenses under different statutes

alleges that the statutes punish the same offense.” Id. (citing Watkins, 362 S.W.3d at

543-44). Here, the defendant is making a multiple description claim. To address a

multiple description claim, we must apply the two-pronged test articulated in

Blockburger v. United States, 284 U.S. 299, 304 (1932).

In a Blockburger analysis, our primary focus is whether the General

Assembly expressed an intent to permit or preclude multiple punishments.

If either intent has been expressed, no further analysis is required. When

the legislative intent is unclear, however, we must apply the “same

elements test” from Blockburger. Under this test, the first step is to

determine whether the convictions arise from the same act or transaction.

The second step is to determine whether the elements of the offenses are the

same. If each offense contains an element that the other offense does not,

the statutes do not violate double jeopardy.

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Smith, 436 S.W.3d at 767 (internal citations omitted).2

In the present case, the defendant’s single objective was to benefit from S.C.’s

continued work as a prostitute; thus his acts constituted a continuing course of conduct

and arose out of the same act or transaction. Therefore, the first prong of the Blockburger

test has been met, and we will focus our analysis on the second prong of the Blockburger

analysis.

The defendant was convicted of both promoting prostitution and trafficking a

person for a commercial act in regards to his actions against S.C.. As charged in Count

four, promoting prostitution is defined as “[e]ncouraging, inducing, or otherwise

purposely causing another to become a prostitute.” Tenn. Code Ann. § 39-13-

512(4)(A)(iii). Prostitution is “engaging in, or offering to engage in, sexual activity as a

business[.]” Id. §39-13-512(6). As charged in Count three, trafficking a person for a

commercial sex act occurs when a person “[k]nowingly subjects, attempts to subject,

benefits from, or attempts to benefit from another person’s provision of a commercial

act” or “[r]ecruits, entices, harbors, transports, provides, purchases, or obtains by any

other means, another person for the purpose of providing a commercial sex act.” Id. §39-

13-309(a)(1)-(2). The term “by any means” may include:

(1) Causing or threatening to cause physical harm to the person;

(2) Physically restraining or threatening to physically restrain the person;

(3) Abusing or threatening to abuse the law or legal process;

(4) Knowingly destroying, concealing, removing, confiscating or

possessing any actual or purported passport or other immigration document,

or any other actual or purported government identification document, of the

person;

Although we acknowledge the State’s argument that the legislature, by placing the offenses in

separate parts of Chapter 13, implied the defendant’s convictions should be punished separately, we

believe the legislature’s intent is ultimately unclear, as neither statute references the other and the

legislative history is silent as to whether separate punishments were intended or even considered. We

note legislatures in other jurisdictions have expressed their intent to distinguish between promoting

prostitution and sex trafficking in a number of ways. See, e.g., Tex. Penal Code Ann. § 20A.02(c)

(articulating their intent that a defendant may be punished for both sex trafficking and promoting

prostitution by adding the following sentence to their trafficking statute: “If conduct constituting an

offense under this section also constitutes an offense under another section of this code, the actor may be

prosecuted under either section or under both sections”); Me. Rev. Stat. Ann. Tit. 17-A, § 852-53

(promoting prostitution is not an offense rather “sex trafficking” is defined as a person who “knowingly

promotes prostitution” and “aggravated sex trafficking” as promoting prostitution by compulsion).

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