State of Tennessee v. Robert M. Atwell, Jr.

03/01/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 26, 2021 Session

STATE OF TENNESSEE v. ROBERT M. ATWELL, JR.

Appeal from the Criminal Court for Washington County

No. 44381 Stacy L. Street, Judge

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No. E2021-00067-CCA-R3-CD

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Defendant, Robert M. Atwell, Jr., was convicted by a jury of one count of violating the sex

offender registry. The trial court imposed a sentence of one year, with ninety days

incarceration, and the remainder to be served on probation. On appeal, Defendant argues

that: the trial court erred by admitting specific evidence of his prior sexual offenses after

he offered to stipulate his status as a sex offender; his conviction for violation of the sex

offender registry violates the Ex Post Facto Clause of both the United States and Tennessee

Constitutions; there was a fatal variance between the indictment and the proof presented at

trial; and there was cumulative error. Following our review of the entire record and the

briefs of the parties, we affirm the judgments of the trial court.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and CAMILLE R. MCMULLEN, JJ., joined.

William S. Lockett, Jr., Knoxville, Tennessee, for the appellant, Robert M. Atwell, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Senior Assistant

Attorney General; Ken C. Baldwin, District Attorney General; and Justin Irick, Assistant

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

OPINION

Factual and Procedural Background

This case arises from Defendant’s presence at the South Side Elementary School on

August 6, 2018. Defendant was a registered sex offender from the State of Missouri and

had accompanied his girlfriend to register her son to attend the school without first

obtaining permission or giving written notice to the school of his sex offender status before

entering the school’s campus. The Washington County Grand Jury returned an indictment

against Defendant charging him with violation of the Tennessee Sex Offender Registry Act

(“SORA”).

At trial, Officer Brett Jenkins of the Johnson City Police Department testified that

on August 6, 2018, he was assigned to the South Side Elementary School and another

school as a school resource officer. He said that August 6 was the first day of school which

included registration for new students. Officer Jenkins explained that new students were

accompanied by their parents into the school to obtain the necessary paperwork, “and

provide paperwork that’s necessary in order to register them in that particular location.”

He testified that anyone entering the school had to be “buzzed” in by office staff and report

to the office. Officer Jenkins further testified:

And Johnson City Schools purchased a security system from a

vendor Raptor and we have a Raptor Security System now located

in every office. And when a person comes into the school for the

first time they provide a state or government issued ID that is

scanned through that system. That system will let them check NCIC,

the nationwide database for anyone who is an active registered sex

offender and that’s the only criteria that it checks for.

Officer Jenkins testified that the Raptor system worked on an issued identification (“ID”)

from any state and would alert to convictions from any state.

Officer Jenkins testified that on August 6, 2018, he was called to South Side

Elementary school from the other school after there was an alert from the Raptor System

on Defendant’s Nevada driver’s license. After office staff turned the driver’s license over

to Officer Jenkins, he spoke with Defendant. Officer Jenkins confirmed Defendant’s

identity and established that he was a registered sex offender in the state of Missouri.

Defendant told Officer Jenkins that he was at the school to assist his girlfriend in registering

her son for school. Officer Jenkins did not recall Defendant referring to the child as

Defendant’s son. Officer Jenkins testified: “He said that he had, I believe he said he had

come in the night before or just a couple of nights before and that he was there to assist her

in registering her son.” Defendant provided Officer Jenkins with a Missouri address and

said that he was a “self-employed band driver and drove across the country frequently.”

Officer Jenkins informed Defendant that under Tennessee law, Defendant should have

obtained written permission to be on campus or enter the school. Officer Jenkins did not

recall Defendant saying that he was helping his girlfriend because she had seizures.

Investigator Shane Malone of the Johnson City Police Department testified that he

spoke with Defendant on August 6, 2018, after Defendant had been taken into custody and

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transported to the police station. Defendant was advised of his Miranda rights, signed a

waiver of those rights, and agreed to speak with Investigator Malone. Investigator Malone

testified that he reviewed two judgments of conviction against Defendant from the State of

Missouri which placed Defendant on the sex offender registry there. One conviction in the

Circuit Court for Linn County at Linneus, Missouri, dated October 28, 1996, was for

misdemeanor child molestation in the second degree. The second conviction in the Circuit

Court for Adair County, Missouri, dated August 16, 2001, was for sexual assault.

Defendant admitted to Investigator Malone that he was a registered sex offender.

He said that he had just arrived in town “the day prior and he was visiting his girlfriend at

the time whose son she was enrolling at school at South Side.” Defendant denied being

the child’s parent or legal guardian but said that he had been in a relationship with the

child’s mother for approximately two years. Investigator Malone testified that Defendant

said he usually visited Tennessee for one or two days at a time, and he was last in Tennessee

approximately six months prior to the interview. Defendant indicated that he knew the

laws in Tennessee which required him to report if he stayed in the state for more than forty-

eight hours and that he would usually leave Tennessee before that time. Defendant

indicated that his girlfriend, who was a paralegal, had researched the sex offender laws in

Tennessee and told him that it was okay for him to be at the school. He said that he had

never been questioned when he visited other schools in Missouri.

Defendant testified that he visited the South Side Elementary School on August 6,

2018, because his girlfriend asked him to help register her son for school. He explained

that it was the anniversary of her father’s death, and she thought that Defendant would help

calm her son who had “autistic spectrum disorder.” Defendant testified that his girlfriend

worked as a paralegal for several attorneys, and she advised him that she had checked, and

it was “fine” for him to go to the school. Defendant asserted that he relied on her advice.

He thought that he was acting as a custodian of his girlfriend’s son when he went to the

school because he and his girlfriend had discussed making their relationship “a little more

permanent,” and her son needed a male role model. However, Defendant admitted that he

was not the child’s biological or adopted father, nor had he at any point been granted

custody of the child. Defendant testified that he was unaware that he had to obtain written

permission from the principal to enter South Side Elementary School.

Defendant testified that he was asked for his driver’s license when he entered the

school and he was aware that they would check to see if he was a sex offender, but he was

not concerned. He told Officer Jenkins and the school psychologist that he had been

advised that he could be at the school. Defendant testified that he was not immediately

arrested and was told to email the school before visiting again. He said that Officer Jenkins

recorded his license plate number and advised him to “register with the city before my 48

hours was up before 5:00 o’clock that day and I told him I would. And then he sent me on

my way.” Defendant testified, “I made a mistake. I wasn’t intending to break any laws. I

try not to do that. I’ve got too much going on to jeopardize that.” He estimated that he

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visited Tennessee five times in the two years that he and his girlfriend had been dating.

Defendant assumed that Tennessee’s sex offender laws were very similar to Missouri’s,

“because Missouri has one of the most stringent set of laws on sex offenders in the

nation[.]” He agreed that under Missouri law, he was not to be present within 500 feet of

any school when persons under the age of eighteen were present unless he was a “parent,

legal guardian or custodian of the person and ha[d] obtained permission from the school

superintendent, school board, or principal of a private school.”

Emma Beazley, Defendant’s former girlfriend, testified that she and Defendant went

to South Side Elementary School on August 6, 2018, to register her son for school. She

said that she and Defendant had been seeing each other for approximately two years at the

time, but Defendant lived in Missouri and in Kansas City. Ms. Beazley testified that

Defendant visited sporadically depending on “whether or not he was on tour.” She said

that the longest Defendant stayed with her was for two weeks in October of 2017.

Ms. Beazley was aware that Defendant was registered as a sex offender in Missouri,

and she and Defendant had “generally” researched the sex offender laws in Tennessee

approximately six months before going to the school to determine if Defendant could live

with her and her son. She was aware that Defendant could not live near a school. Ms.

Beazley did not recall whether she told Defendant that it was fine for him to go to the

school with her. She said:

If I did, it wouldn’t be under any actual legal capacity. I can’t

practice law. I’m only a paralegal and any research that I would have

done would have been with that knowledge and with me explicitly

saying that I cannot give legal advice here is how I interpret this. I

cannot give legal advice and so I would not have done that.

Ms. Beazley agreed that Defendant was not her son’s biological or adoptive father, and she

did not do or say anything to Defendant to indicate that he was a parent or legal guardian

to her son.

Ms. Beazley agreed that she had some issues with seizures, and Defendant went to

school with her to register her son on the anniversary of a tragic event in her life. She said

that Defendant willingly gave his ID to school officials on August 6, 2018, and it did not

appear to Defendant that he was doing anything wrong. Ms. Beazley testified that she did

not know if Defendant relied on their conversations about the sex offender laws to

determine whether he could be in the school.

Analysis

I. Refusal to Accept Defendant’s Stipulation to Being a Sex Offender

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Defendant argues that the trial court erred by admitting specific evidence of his prior

sexual offenses after he offered to stipulate his status as a sex offender to prove his charge

for violation of the SORA. The State counters that its refusal to accept Defendant’s

stipulation and the subsequent admission of the evidence was harmless error and does not

entitle him to a new trial.

It is well-established “that trial courts have broad discretion in determining the

admissibility of evidence, and their rulings will not be reversed absent an abuse of that

discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Tennessee Rule of

Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of other

acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or mistake,

and the probative value outweighs the danger of unfair prejudice. Tenn. R. Evid. 404(b)

Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v.

Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987). However, “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity with the character trait.” Tenn. R. Evid. 404(b). Before admitting

evidence under Rule 404(b), the rule provides that (1) upon request, the court must hold a

hearing outside the jury's presence; (2) the court must determine that the evidence is

probative on a material issue and must, if requested, state on the record the material issue

and the reasons for admitting or excluding the evidence; (3) the court must find proof of

the other crimes, wrongs, or acts to be clear and convincing; and (4) the court must exclude

the evidence if the danger of unfair prejudice outweighs its probative value. Id.

“[A] defendant can offer to stipulate to the elements of an offense, but by doing so

cannot prevent the jury from learning of an element of the offense or stipulation.” State v.

Marvin Senathan Hall, Jr., No. W2008-00933-CCA-R3-CD, 2009 WL 1643435, at *8

(Tenn. Crim. App., at Jackson, June 12, 2009). However, it is well-settled that the State is

free to reject a defendant’s offer to stipulate to certain facts. State v. Smith, 644 S.W.2d

700, 701 (Tenn. Crim. App. 1982); State v. Griffis, 964 S.W.2d 577, 595 (Tenn. Crim. App.

1997). “[A] mere offer to stipulate evidence does not render that evidence irrelevant under

Rule 404. State v. James, 81 S.W.3d 751, 761 (Tenn. 2002); see also State v. Robert J.

Wrigglesworth, Jr., No. M2005-01841-CCA-R9-CO, 2006 WL 2069430, at *4 (Tenn.

Crim. App., at Nashville, July 26, 2006). Concerning status offenses, such as violation of

the sex offender registry, “specific references to the prior felony [are] relevant to establish

an essential element of the charged offense.” State v. Curtis Dewayne Brown, No. E2019-

02052-CCA-R3-CD, 2021 WL 5318389, at *11 (Tenn. Crim. App, at Knoxville, Nov. 16,

2021), no perm. app. yet filed.

However, in State v. James, 81 S.W.3d 751, 761 (Tenn. 2002), defendant was

charged with felony escape which required the State to prove that he was incarcerated for

a felony at the time of the escape. In order to prevent the jury from learning of the specific

felonies for which he had been convicted, defendant offered to stipulate that he had been

incarcerated for a felony at the time of his escape. The State rejected defendant’s

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stipulation and presented testimony at trial identifying each of defendant’s prior felony

convictions. Our supreme court in James concluded:

[W]e hold that evidence of the specific offenses for which the

defendant had previously been convicted is relevant to establish the

prior-conviction element of the offense of felony escape. However,

we also hold that when the only purpose of the other-acts evidence

is to prove the defendant’s status as a convicted felon, and when the

defendant offers to stipulate to his prior convictions, the names of

the offenses should not be admitted into evidence because the risk of

unfair prejudice outweighs their probative value.

Id. at 762.

In this case, the following exchange took place concerning Defendant’s prior

convictions from Missouri:

[Defense counsel]: Judge, I guess there is one question about

how far you’re going to let the State get into the facts of

[Defendant’s] prior convictions. We will stipulate that he’s a sex

offender.

[Prosecutor]: Your Honor, a stipulation does not bar the

State from entering his prior convictions. I have case law to that

effect, if the Court would like to see it.

THE COURT: I mean, I’m not going to let him go into the

underlying facts, but I think they can put in the judgment as evidence

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[Defense counsel]: There are two judgments which I think

would be redundant to put both of them in to establish he’s a sex

offender.

[Prosecutor]: Both of those judgments placed him on that

sex offender registry and both of them are listed on the government

website.

THE COURT: I’ll allow the documents in, but no

discussions about the underlying facts of those offenses.

At trial, Investigator Malone testified that he reviewed two judgments of conviction

against Defendant from the State of Missouri, which placed Defendant on the sex offender

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registry there. One conviction in the Circuit Court for Linn County at Linneus, Missouri,

dated October 28, 1996, was for misdemeanor child molestation in the second degree. The

second conviction in the Circuit Court for Adair County, Missouri, dated August 16, 2001,

was for sexual assault. The document attached to Defendant’s judgment for misdemeanor

child molestation indicated that Defendant had sexual contact with a twelve-year-old child.

In this case, the State was required to prove that Defendant had a prior conviction

for a sexual offense or violent sexual offense and that he was knowingly on the grounds or

premises of a school when he had reason to believe that children under the age of eighteen

years old were present. T.C.A. §40-39-211(d)(1)(A). Defendant’s offer to stipulate that

he was a sex offender encompassed one of the elements that the State was required to prove.

The SORA defines a “sexual offender” as a “person who has been convicted in this state

of committing a sexual offense or has another qualifying conviction[.]” T.C.A. § 40-39-

202(19). As in James, the sole purpose of admitting Defendant’s prior convictions as

evidence was to prove status as a convicted sex offender. Therefore, we conclude that the

trial court erred by allowing the State to introduce specific proof of Defendant’s prior

offenses. James, 81 S.W.3d at 762.

However, the error is subject to harmless error analysis. Id. Defendant is not

entitled to relief on this basis unless the error complained of “affirmatively appears to have

affected the result of the trial on the merits. Tenn. R. Crim. P. 52(a). “[W]hen evaluating

the effect of an error on the trial, we will evaluate that error in light of all the other proof

introduced at trial.” James, 81 S.W.3d at 763. “The greater the amount of evidence of

guilt, the heavier the burden on the defendant to demonstrate that a non-constitutional error

involving a substantial right more probably than not affected the outcome of the trial.”

State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008).

In this case, the evidence that Defendant violated the Tennessee SORA was

overwhelming and uncontroverted. He does not dispute that he was convicted of a sexual

offense or violent sexual offense and that he was present at South Side Elementary School

on August 6, 2018, without first obtaining permission or giving written notice to the school

of his sex offender status before entering the school’s campus. The only dispute was

whether Defendant was at the school acting as a parent or legal guardian to his girlfriend’s

son, which would serve as a defense. However, nothing in the record supported such a

defense. Defendant was not the child’s biological or adoptive father and thus, did not

qualify as a parent under the SORA. T.C.A. § 40-39-202(11). Although Defendant

asserted that he relied on advice of his girlfriend, who was a paralegal, to determine that

he could accompany her into the school to register her son, this does not serve as a defense.

We conclude that the admission of the specific sexual offenses for which Defendant

had previously been convicted “had no impact whatsoever on the jury’s verdict” in this

case. State v. Billy J. Coffelt and Lyle T. Van Ulzen, No. M2002-01214-CCA-R3-CD, 2003

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WL 22116628, at *6 (Tenn. Crim. App., at Nashville, Sept. 11, 2003). Defendant is not

entitled to relief on this issue.

II. Whether Tennessee’s Sex Offender Registry Act Violates the Ex Post

Facto Clause of Both the United States and Tennessee Constitutions

Defendant contends that he is entitled to plain error review for his claim that

Tennessee’s SORA violates the Ex Post Facto Clause of the United States and Tennessee

Constitutions. The State argues that Defendant is not entitled to plain error relief because

he has failed to show that his conviction for violation of the SORA violated a clear and

unequivocal rule of law or that one of his substantial rights was adversely affected.

Initially, we point out and Defendant concedes that he waived the issue of whether

the SORA violates the Ex Post Facto clause by failing to raise it in the trial court. See State

v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time

on appeal are considered waived”). Therefore, the issue may be considered under plain

error review. We may only consider an issue as plain error when all five of the following

factors are met:

a) the record must clearly establish what occurred in the trial court;

b) a clear and unequivocal rule of law must have been breached; c)

a substantial right of the accused must have been adversely affected;

d) the accused did not waive the issue for tactical reasons; and e)

consideration of the error is “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641–42 (Tenn. Crim. App. 1994) (footnotes omitted).

“[C]omplete consideration of all the factors is not necessary when it is clear from the record

that at least one of the factors cannot be established.” State v. Donald Ray Smith, 24 S.W.3d

274, 283 (Tenn. 2000). “When asserting plain error, the defendant bears the burden of

persuading the appellate court that the trial court committed plain error and that the error

was of sufficient magnitude that it probably changed the outcome of the trial.” State v.

Michael Smith, 492 S.W.3d 224, 232-33 (Tenn. 2016) (citing State v. Hester, 324 S.W.3d

1, 56 (Tenn. 2010)).

In this case, we conclude Defendant has not established that he is entitled to plain

error relief. Specifically, he has not demonstrated that a clear and unequivocal rule of law

was breached or that a substantial right was adversely affected. See Adkisson, 899 S.W.2d

at 641-42; State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016); Hester, 324 S.W.3d at 56.

Both the United States and Tennessee Constitutions prohibit ex post facto laws.

U.S. Const. Art. I, § 10, cl. 1; Tenn. Const. Art. I, § 11. In order for a law to fall within the

prohibition, it “must be retrospective, that is, it must apply to events occurring before its

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enactment” and “it must disadvantage the offender affected by it.” State v. Pike, 978

S.W.2d 904, 925 (Tenn. 1998) (quoting Miller v. Florida, 482 U.S. 423, 430 (1987))

(internal quotation marks omitted). Four types of law are prohibited:

1st. Every law that makes an action done before the passing of the law, and

which was innocent when done, criminal; and punishes such action. 2d.

Every law that aggravates a crime, or makes it greater than it was, when

committed. 3d. Every law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when committed. 4th. Every

law that alters the legal rules of evidence, and receives less, or different,

testimony, than the law required at the time of the commission of the offense,

in order to convict the offender.

Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Calder v. Bull, 3. U.S. 386, 390

(1798) (seriatim opinion of Chase, J.)). However, the United States Supreme Court has

held that changes in procedural laws are not ex post facto, even if the change works to the

disadvantage of a defendant. Dobbert v. Florida, 432 U.S. 282, 293 (1977). Instead, the

prohibition of ex post facto laws “was intended to secure substantial personal rights against

arbitrary and oppressive legislation. . . and not to limit the legislative control of remedies

and modes of procedure which do not affect matters of substance.” Id.

First, Defendant has not demonstrated that a clear and unequivocal rule of law was

breached. Tennessee’s SORA laws have consistently been upheld against ex post facto

challenges:

[t]o date, every ex post facto challenge of Tennessee’s

statutory scheme requiring persons classified as sexual

offenders to register with the TBI sex offender registry has

been rejected. The United States Supreme Court and the

United States Court of Appeals for the Sixth Circuit upheld

Tennessee’s sex offender registry in Smith v. Doe, 538 U.S.

84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), Conn. Dept. of

Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed.

2d 98 (2003), Doe v. Bredesen, No. 3:04-CV-566, 2006 WL

849849 (E.D. Tenn. Mar. 28, 2006), aff’d 507 F.3d 998 (6th

Cir. 2007), pet. cert. denied, ––– U.S. ––––, 129 S. Ct. 287, 172

L. Ed. 2d 210 (2008), and Cutshall v. Sundquist, 193 F.3d 466

(6th Cir. 1999). Furthermore, both the Court of Appeals and

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the Court of Criminal Appeals of Tennessee upheld the sex

offender registry against ex post facto challenges. See Strain

v. Tennessee Bureau of Investigation, No. M2007-01621-

COA-R3-CV, 2009 WL 137210 (Tenn. Ct. App. Jan. 20,

2009); State v. Gibson, No. E2003-02102-CCA-R3-CD, 2004

WL 2827000 (Tenn. Crim. Ct. App. Dec. 9, 2004).

John Doe v. Robert E. Cooper, Jr., as Attorney General for State of

Tennessee, No. M2009-00915-COA-R3-CV, 2010 WL 2730583, at

*7 (Tenn. Ct. App. July 9, 2010), perm. app. denied (Tenn. Dec. 7,

2010). The Tennessee Supreme Court has considered the Act and

noted that “[a]n examination of the clearly-expressed legislative

intent of the registration act supports the conclusion that the

registration requirements imposed by the sex offender registration

act are nonpunitive and that they are therefore a collateral

consequence of a guilty plea.” Ward [v. State], 315 S.W.3d [461,]

469-70 (quoting Tenn. Code Ann. § 40-39-201). “[W]hile the

registration requirement is undoubtedly a definite, immediate, and

largely automatic consequence of a conviction of a sexual offense or

violent sexual offense, it does not have an effect on the length,

manner, or service of the defendant’s punishment.” Id. at 472.

Richard Terry Woodson v. State, No. M2018-02153-CCA-R3-PC, 2020 WL 406855, at *3

(Tenn. Crim. App., at Nashville, Jan. 24, 2020) no perm app. filed.

Although the Court of Appeals for the Sixth Circuit in Does #1-5 v. Snyder, et al.,

834 F.3d 696 (6th Cir. 2016), which Defendant relies on in support of his argument, held

that Michigan’s SORA constituted an ex post facto violation as applied to five sex

offenders in Michigan, this does not create a clear and unequivocal rule of law that the

Tennessee SORA on its face violates the Ex Post Facto Clause. See Does #1-2 v. Lee, et

al., 518 F. Supp. 3d 1157, 1182 (6th Cir. 2021). Nor do any of the Sixth Circuit cases

involving an ex post facto challenge to Tennessee’s SORA create a clear and unequivocal

rule of law that the SORA violates the Ex Post Facto Clause as a matter of law. See Id.;

Doe v. Rausch, 461 F. Supp. 3d 747, 768-69 (E.D. Tenn. 2020); Doe v. Rausch, 382 F.

Supp. 3d 783, 799-800 (E.D. Tenn. 2019). In Does #1-2 v Lee, the court declined to find

that the SORA constituted a facial ex post facto violation. The court concluded:

As noted above, to succeed on a typical facial challenge, “a plaintiff

must establish ‘that no set of circumstances exists under which [the

statute] would be valid.’” Speet, 726 F.3d at 872 (quoting Stevens,

559 U.S. at 472, 130 S.Ct. 1577).

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As discussed above, Plaintiffs ask the Court to find that “every

retroactive application” of SORA is unconstitutional under the Ex

Post Facto Clause. (Doc. No. 93 at 11). In other words, they ask the

Court to find that the statute is unconstitutional on its face. But the

Court declines to do so because Plaintiffs have not made a sufficient

showing, as required, that all retroactive applications of SORA are

unconstitutional. The Court has noted above this lack of evidence,

and the fact that several of the factors cut against a finding that

SORA imposes punishment in all cases or as a general matter. The

most glaring of these is the rational-connection factor, which “is a

‘[m]ost significant’ factor in our determination that the statute's

effects are not punitive.” Smith v. Doe, 538 U.S. at 102, 123 S.Ct.

1140 (quoting United States v. Ursery, 518 U.S. at 290, 116 S.Ct.

2135).

Therefore, the Court finds that it cannot grant Plaintiff's Motion to

the extent is makes a facial challenge.

Does #1-2 v Lee, 518 F. Supp. 3d at 1203.

Defendant in this case has also failed to show that one of his substantial rights was

adversely affected by Tennessee’s SORA. The record does not demonstrate that the SORA

as applied to Defendant violated the Ex Post Facto Clause. Although Defendant argues in

his brief that the restrictions and reporting requirements of Tennessee’s SORA have the

effect of punishment, he does not allege how the SORA, as applied to his particular

circumstances, violates the Ex Post Facto Clause. As-applied constitutional challenges are

“limited to [the complaining party’s] particular situation and circumstances.” Rausch, 461

F. Supp. 3d at 761-62; see also Barry L. Clark v. Gwyn, et al., No. M2018-00655-COA-

R3-CV, 2019 WL 1568666, at *7, (Tenn. Ct. App. April 11, 2019) (Appellant “must

demonstrate by the ‘clearest proof’ that the challenged provisions of the 2004 [SORA], as

applied to him, are so punitive in effect that they constitute punishment in violation of the

ex post facto provisions of the federal and state constitutions.”). Additionally, as pointed

out by the State, Defendant was a resident of Missouri, and nothing in the record indicated

that he was unable to find a house or job due to the SORA while he was visiting Tennessee.

The record does not reflect that Defendant had children in Tennessee or that the SORA

restricted his ability to parent any children outside of Tennessee. Therefore, any challenge

to the SORA is moot. See Richard Erling Kelly v. Slatery, et al., No. 1:18-cv-00170-

DCLC-SKL, Memorandum and Order, at 4-5 (E.D. Tenn. Mar. 18, 2021) (Ex post facto

challenge to the Tennessee SORA is moot when the offender moves out of state).

Defendant is not entitled to relief on this issue.

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III. Whether There was a Fatal Variance Between the Indictment and the

Evidence.

Defendant argues that there was a fatal variance between the indictment and the

evidence presented by the State at trial because the indictment alleged that the offense

occurred on August 26, 2018 and the proof reflected the date of August 6, 2018.

An accused is constitutionally guaranteed the right to be informed of the nature and

cause of the accusation. U.S. Const. amend. VI, XIV; Tenn. Const. art. I, § 9; see Wyatt v.

State, 24 S.W.3d 319, 324 (Tenn. 2000). Our courts have interpreted this constitutional

mandate to require an indictment to “1) provide notice to the accused of the offense

charged; 2) provide the court with an adequate ground upon which a proper judgment may

be entered; and 3) provide the defendant with protection against double jeopardy.” Wyatt,

24 S.W.3d at 324 (citations omitted). Further, an indictment is statutorily required to “state

the facts constituting the offense in ordinary and concise language, without prolixity or

repetition, in such a manner as to enable a person of common understanding to know what

is intended, and with that degree of certainty which will enable the court, on conviction, to

pronounce the proper judgment.” T.C.A. § 40-13-202. The question of the validity of an

indictment is one of law and, as such, our review is de novo. State v. Hill, 954 S.W.2d 725,

727 (Tenn. 1997).

“A variance between an indictment or a subsequent bill of particulars and the

evidence presented at trial is not fatal unless it is both material and prejudicial.” State v.

Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000) (citing State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984)). A variance is not material when substantial correspondence exists

between the proof and the indictment. Shropshire, 45 S.W.3d at 71. “A defendant suffers

no harm from the variance unless it affects his substantial rights. State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984). When the indictment and the proof substantially correspond, the

defendant is not misled or surprised at trial, and there is protection against a second

prosecution for the same offense, the variance is not considered material. Moss, 662

S.W.2d at 592. It is not reversible error when a defendant is sufficiently aware of the

charge and is able to adequately prepare for trial. Id.

Tennessee Code Annotated section 40-13-207 provides that “[t]he time at which the

offense was committed need not be stated in the indictment, . . . unless the time is a material

ingredient in the offense.” In State v. Byrd, 820 S.W.2d 739 (Tenn. 1991), our supreme

court held, “[t]he rule of law is well-established in Tennessee that the exact date, or even

the year, of an offense need not be stated in the indictment or presentment unless the date

or time ‘is a material ingredient in the offense.’” Id. at 740 (quoting T.C.A. § 40-13-207).

“In fact, in order to establish the legal sufficiency of that charging instrument, the State

need only allege that the offense was committed prior to the finding of the indictment or

presentment.” Id.

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Defendant in this case has not shown that any variance between the indictment and

the evidence presented at trial was both material and prejudicial. The date of the offense

is not an essential element of the offense of violating the SORA. Therefore, the date “is

immaterial and can be omitted from the indictment.” State v. Taft Arkey Murphy, M2007–

00403-CCA-R3-CD, 2008 WL 4735494, at * 4, (Tenn. Crim. App., Nashville, Oct. 27,

2008), (citing State v. Shaw, 113 Tenn. 536, 82 S.W. 480 (Tenn. 1904); State v. West, 737

S.W.2d 790, 792 (Tenn. Crim. App. 1987)). We note that the State filed a motion to amend

the indictment ten months prior to trial to correct the clerical error and reflect the correct

date, and Defendant did not respond to the motion.

We also determine that Defendant did not suffer any prejudice as a result of the

incorrect date listed on the indictment. Defendant was sufficiently informed of the charges

against him, and he was not misled or otherwise hampered in his ability to present a

defense. The variance also did not present a danger that Defendant could be prosecuted a

second time for the same offense. See Moss, 662 S.W.2d at 592.

Defendant cannot show that his substantial rights were affected by the incorrect date

listed on the indictment, and reversible error did not occur. Defendant is not entitled to

relief on this issue.

IV. Cumulative Error

Defendant contends that he is entitled to a new trial because the cumulative effect

of errors denied him a fair trial. The State counters that Defendant has failed to demonstrate

that there was more than one error at trial, and proof of Defendant’s guilt was

overwhelming, therefore he is not entitled to cumulative error relief.

Our supreme court has stated:

The United States Constitution protects a criminal defendant’s right to a

fair trial; it does not guarantee him or her a perfect trial. We have reached

the same conclusion with regard to the Constitution of Tennessee. It is

the protection of the right to a fair trial that drives the existence of and

application of the cumulative error doctrine in the context of criminal

proceedings. However, circumstances warranting the application of the

cumulative error doctrine to reverse a conviction or sentence remain rare.

The cumulative error doctrine is a judicial recognition that there may be

multiple errors committed in trial proceedings, each of which in isolation

constitutes mere harmless error, but which when aggregated, have a

cumulative effect on the proceedings so great as to require reversal in

order to preserve a defendant’s right to a fair trial.

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Hester, 324 S.W.3d at 76-77 (citations omitted).

To warrant assessment under the cumulative error doctrine, there must have been

more than one actual error committed in the trial proceedings. State v. Herron, 461 S.W.3d

890, 910 (Tenn. 2015) (citing Hester, 324 S.W.3d at 77). After considering each of

Defendant’s issues on appeal and finding only one error that was harmless, we need not

consider the cumulative effect of any alleged errors. Defendant is not entitled to relief on

this issue.

CONCLUSION

Based on foregoing analysis, we affirm the judgments of the trial court.

____________________________________

JILL BARTEE AYERS, JUDGE

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