Petition for Writ of Certiorari — Robert M. Atwell, Petitioner v. Tennessee

APPENDIX A

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE

AT KNOXVILLE

October 26, 2021 Session

[DATE STAMP]

FILED

03/01/2022

Clerk of the

Appellate Courts

STATE OF TENNESSEE v.

ROBERT M. ATWELL, JR.

Appeal from the Criminal Court for

Washington County

No. 44381 Stacy L. Street, Judge

No. E2021-00067-CCA-R3-CD

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

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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

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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

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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 transported to the police

station. Defendant was advised of his Miranda rights,

signed a waiver of those rights, and agreed to speak

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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 l6, 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

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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

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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 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

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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

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Accept Defendant’s

Stipulation to Being a Sex Offender

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

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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. Grffis, 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

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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 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

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[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 of–

[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 registry there. One

conviction in the Circuit Court for Linn County at

Linneus, Missouri, dated October 28, 1996, was for

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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. § 40-39202(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

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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,

14a

2003 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

15a

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

16a

before its 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

17a

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.

Sundguist, 193 F.3d 466 (6th Cir. 1999).

Furthermore, both the Court of Appeals

and 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. M2007-01621COA-R3-CV, 2009 WL 137210 (Tenn. Ct.

App. Jan. 20, 2009); State v. Gibson, No.

18a

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.

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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).

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

20a

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

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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.

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

22a

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

23a

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.

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, M200724a

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.

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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.

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

26a

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

27a

APPENDIX B

IN THE CRIMINAL COURT OF TENNESSEE

FOR THE FIRST JUDICIAL DISTRICT

AT JONESBOROUGH

CASE NO. 44381

Filed 12 day of Jan 2021

at 2:27 o'clock P

Brenda Downes, Clerk HG

STATE OF TENNESSEE,

Plaintiff,

vs.

ROBERT ATWELL,

Defendant.

ORDER DENYING MOTION FOR NEW TRIAL

Pursuant to Rule 33 Tennessee Rule of Criminal

Procedure, the Defendant filed a motion for new trial

alleging various errors. After careful consideration of

each issue and a hearing held on December 14, 2020,

the Court finds that those arguments are without

merit.

IT IS THEREFORE ORDERED, ADJUDGED

AND DECREED that the Defendant's motion for new

trial is respectfully denied.

28a

/s/

JUDGE STACY STREET

DATE: 1/12/2021

ENTERED

MINUTEBK 769B PAGE 316

CIR. CT. CLK

APPROVED FOR ENTRY:

/s/

Gene G. Scott, Jr. BPR# 021681

Attorney for Defendant

1211 E. Jackson Blvd., Suite 2

P.O. Box 575

Jonesborough, TN 37659

(423) 753-0460

/s/

Justin Irick

Assistant District Attorney

ENTERED

MINUTEBK769B PAGE 317

CIR. CT. CLK

29a

APPENDIX C

IN THE CRIMINAL CIRCUIT COURT

FOR WASHINGTON COUNTY, TENNESSEE

Case Number: 44381

Count# 1

Counsel for the State:

JUSTIN B IRICK

Judicial District 1st

Judicial Division II

Counsel for the Defendant: Gene Scott

Co-Counsel for the Defendant: ___

: Retained

9 Pub Def Appt

9 Private Atty Appt

9 Counsel Waived

9 Pro Se

State of Tennessee vs. Defendant:

ROBERT M. ATWELL JR.

Alias: ___

Date of Birth: 09/26/1977

Sex: Male

Race: White

SSN: [Redacted]

Driver License #: [Redacted]

Issuing State: NV

Relationship to Victim: ___

Victim's Age: ___

State Control #: ___

Arrest Date: ___

Indictment Filing Date: ___

[DATE STAMP]

8 day of

July 20 at ___

12:06 o'clock PM

Brenda Downes, Clerk

JUDGMENT

9 Amended

: Original

9 Corrected

Come the parties for entry of judgment.

30a

On the 22nd day of January 2020 The defendant:

9 Plead Guilty

9 Plead Guilty –

9 Pled Nolo Contendere

Certified Question Findings

Incorporated by Reference

9 Dismissed

9 Nolle Prosequi with costs

9 Nolle Prosequi without costs

Is found:

9 Not Guilty

: Jury Verdict

Merged with Count: ___

: Guilty

9 Not Guilty by Reason of

Insanity

9 Bench Trial

Indictment: Class (circle one) 1st A B C D E

: Felony

9 Misdemeanor

Indicted Offense Name:

VIOLATION SEXUAL OFFENDER RESTRICTIONS

Indicted Offense TCA §: 40-39-211

Amended Offense Name: ___

Amended Offense TCA §: ___

Offense Date: 08/26/2018

County of Offense: WASHINGTON

Conviction Offense Name:

Viol. Sexual Offender Restrictions

Conviction Offense TCA §: 40-39-211

Conviction: Class (circle one) 1st A B C D (E)

: Felony

9 Misdemeanor

Sentence Imposed Date: 07/08/2020

After considering the evidence, the entire record, and

in the case of sentencing, all factors in Tennessee Code

Annotated Title 40, Chapter 35, all of which are

31a

incorporated by reference herein, it ORDERED and

ADJUDGED that the conviction described above is

imposed hereby and that a sentence and costs are

imposed as follows:

Offender Status (Check One)

9 Mitigated

: Standard

9 Multiple

9 Persistent

9 Career

Release Eligibility for Felony Offense (Check One)

9 Mitigated 20%

9 Mitigated 30%

: Standard 30%

9 Multiple 35%

9 Persistent 45%

9 Career 60%

9 § 40-35-501(I) 100%

9 Multiple Rapist 100%

9 Child Rapist 100%

9 Agg Rapist 100%

9 Child Predator 100% 9 § 39-13-518 100%

9 Agg Rob 85%

9 Agg Rob /Prior 100%

9 § 39-17-1324(a), (b) 100%

9 Mult § 39-17-1324(j) 100%

9 Agg Assault w/Death 75%

9 Att 1st Deg Murder /SBI 85%

9 Agg Child Neg/En 70% 9 Agg Child Neg/En 85%

9 Agg Vehicular Homicide 60%

9 Carjacking 75%

9 § 40-35-501(u) 85%

9 1st Degree Murder

9 Pre-1989

9 Reform Act 1989

9 Drug Free Zone

9 Gang Related

9 Repeat Violent Off

Concurrent with: ___

Consecutive to: ___

32a

Pretrial Jail Credit Period(s):

From ___ to ___

From ___ to ___

From ___ to ___

From ___ to ___

From ___ to ___

From ___ to ___

It is not the intent of the court for duplication

of Jail Credit to be applied to consecutive

sentences

Sentenced To:

9 County Jail

: TDOC

9 Workhouse

Sentence Length:

1 Years ___ Months ___ Days ___Hours

9 Life

9 Life w/out Parole

9 Death

Mandatory Minimum Sentence Length:

Judg Mi §§ 39-19-417-, 39-13-513, 39-13-514, 39-17432 in Prohibited Zone

Judg Mi § 55-10-401 DUI 4th Offense

Judg MI § 39-17-1324 Possession/Employment of

Firearm

90 days § 40-39-208, -211 Violation of Sex Offender

Registry

Judg Mi Meth §§ (39-17-434, -417, -418)

Period of incarceration to be served prior to release

on probation or Community Corrections:

___ Months ___ Days ___ Hours

Minimum Service prior to eligibility for work

release, furlough, trusty status and rehabilitative

programs: ___% (Misdemeanor Only)

33a

Alternative Sentence: : Sup Prob

9 Unsup Prob

9 Comm Corr

9 Prob Sup By Comm. Corr (CHECK ONE BOX)

1 Years ___ Months ___ Days

Effective: 07/08/2020

WAS DRUG/RECOVERY COURT ORDERED

AS A CONDITION OF THE ALTERNATIVE

SENTENCE?

9 Yes

: No

HONORABLE STACY STREET

Judge's Name

/s/

Judge's Signature

ENTERED

MINUTEBK 763B

PAGE 521

CIR. CT. CLK

Case Number: 44381

Judicial District: 1st

Count #: 1

Judicial Division: II

State of Tennessee vs. Defendant:

ROBERT M. ATWELL JR.

Alias: ___

Date of Birth: 09/26/1977

Sex: Male

Race: White

SSN: [Redacted]

CONTINUATION OF JUDGMENT

: Original

9 Amended

34a

9 Corrected

Court Ordered Fees and Fines:

$___ Court Costs

$___ Fine Assessed

$___ Traumatic Brain Injury Fun (68-55-301 et seq.)

$___ Drug Testing Fun (TN Drug Control Act)

$___ CICF

$___ Sex Offender Tax

$___ Other: ___

Costs to be Paid by

: Defendant

9 State

Restitution:

Victim Name ___

Address ___

Total Amount $ ___

Per Month $ ___

9 Unpaid Community Service:

___ Hours ___ Days ___ Weeks ___ Months

:

9

9

9

The Defendant having been found guilty is

rendered infamous and ordered to provide a

biological specimen for the purpose of DNA

analysis.

Pursuant to 39-13-521, the defendant or

ordered to provide a biological specimen for

the purpose of HIV testing

Pursuant to 39-13-524 or 39-13-518, the

defendant is sentenced to community

supervision for life following sentence

expiration.

Pursuant to Title 68, Chapter 11, Part 10, 716-117, or 71-6-119, the clerk shall forward this

judgment to the Department of Health.

35a

Special Conditions: – Defendant shall not report

to serve 90 days jail sentence until after the hearing

on the motion for new trial.

HONORABLE STACY L. STREET

Judge's Name

/s/

Judge's Signature

____________________________

Defendant/Defendant's Counsel/Signature (optional)

I ___, clerk, hereby certify that, before entry by the

court, a copy of this judgment was made available to

the party or parties who did not provide a signature

above.

ENTERED

MINUTEBK 763B

PAGE 502

CIR. CT. CLK

36a

APPENDIX D

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

[DATE STAMP]

FILED

08/03/2022

Clerk of the

Appellate Courts

STATE OF TENNESSEE v.

ROBERT M. ATWELL, JR.

Criminal Court for Washington County

No. 44381

No. E2021-00067-SC-R11-CD

ORDER

Upon consideration of the application for

permission to appeal of Robert M. Atwell, Jr. and the

record before us, the application is denied.

PER CURIAM

37a

APPENDIX E

[LETTERHEAD OF TENNESSEE COURT OF

CRIMINAL APPEALS]

William Soaper Lockett, Jr.

2816 Rocking Chair Way

Knoxville TN 3 7931

Re:

E2021-00067-CCA-R3-CDSTATE OF TENNESSEE v. ROBERT ATWELL

Notice: Brief (Other) - Supplemental Authority Filed

Attached to this cover letter, please find the referenced

notice issued in the above case. If you have any

questions, please feel free to call our office at the

number provided.

cc:

William Soaper Lockett, Jr.

Courtney Nicole Orr

Additional case information

www.tncourts.gov

38a

can

be

found

at

[LETTERHEAD OF THE OFFICE OF THE

TENNESSEE ATTORNEY GENERAL]

October 20, 2021

Honorable James M. Hivner, Clerk

Appellate Court Clerk's Office-Knoxville

Supreme Court Building

505 Main Street, Suite 200

Knoxville, TN 37902

Re:

State v. Robert Atwell, Jr.,

No. E2021-00067-CCA-R3-CD

Dear Mr. Hivner:

Pursuant to Tenn. R. App. P. 27(d), the State now

submits, as supplemental authority to the argument in

the State's brief, the following enclosed opinions:

1.

United States v. Jones, No. 1:05-CR-132, 2006

WL 399234, at *4 (E.D. Tenn. Feb. 16, 2006),

aff'd, United States v. Jones, 253 Fed. Appx.

550, 553 (6th Cir. Nov. 2007);

2.

United States v. Penney, No. 1:04-cr-036, 2004

7330378, at *11 (E.D. Tenn. May 14, 2004),

conviction affd, United States v. Penney, 576

F.3d 297 (6th Cir. 2009);

3.

United States v. Harding, No. 7:13cr00008, 2013

WL 1832564, at *5 (W.D. Vir. May 1, 2003) (no

perm. app. filed); and

39a

4.

State v. Armburst, 59 P.3d 1000, 1002-03 (Kan.

2002).

All of these cases were found while I was preparing for

oral argument. They are relevant to the State's

argument, on pages 19-22 of its brief, that the

defendant's conviction does not adversely affect one of

his substantial rights. They are also relevant to the

defendant's argument, on pages 14-15 of his reply

brief, that his conviction for being a sex offender on

school grounds violates ex post facto protections.

Under Tenn. R. App. P. 27(d) and Tenn. Sup. Ct. R. 46

§ 3.02(a), I am enclosing a copy of the accompanying

opinion. I am also forwarding copies of this letter and

the accompanying opinion to opposing counsel.

If you have any questions or need additional

information, please do not hesitate to contact me. My

office telephone number is (615) 741-2455 and my

email address is Courtney.0rr@ag.tn.gov.

Sincerely,

/s/ Courtney N. Orr

Courtney N. Orr

Senior Assistant Attorney General

ec:

William S. Lockett, Jr.

Attorney for the Appellant

40a