State of Tennessee v. Gregory Scott Barnum
M2016-00313-CCA-R3-CD
Tenn. Crim. App.Nov 1, 2016Background
- Gregory Barnum pleaded guilty in Tennessee to indecent exposure to a child under 13 but reserved the sentencing- enhancement issue: whether he was a "sexual offender" based on prior Kentucky convictions.
- Tennessee charged felony indecent exposure because defendant was 18+ and alleged to have prior qualifying sexual convictions (or be a sexual offender under Tenn. Code Ann. § 40-39-202).
- The State introduced Kentucky records: a certified district-court disposition calendar, computer printouts, an affidavit of complaint describing three drive-through exposures and masturbation, and an audio tape of the 1998 guilty pleas; Kentucky convictions were for three counts of indecent exposure.
- The trial court found the Kentucky convictions proved by clear and convincing evidence, that Barnum had counsel in 1998, that the prior convictions were separate (not merged), and that the convictions qualified as "sexual offenses" under Tennessee law, making Barnum a "sexual offender" and elevating the Tennessee indecent-exposure charge to a Class E felony.
- Barnum challenged (on appeal) sufficiency of proof of the prior convictions, alleged the Kentucky convictions should merge, contended the Kentucky offenses do not qualify as Tennessee "sexual offenses" for enhancement, and argued the wrong statutory definition of "sex/sexual offender" was applied.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Barnum) | Held |
|---|---|---|---|
| Sufficiency of proof of prior Kentucky convictions | Records (disposition calendar, computer printouts, affidavit, audio) and clerk testimony suffice to prove convictions and counsel representation by clear and convincing evidence | State failed to produce certified judgments; offered only docket entries/computer printouts and clerk testimony — insufficient | The court held the offered records and clerk's testimony satisfied clear and convincing proof; prior convictions established and counsel presence shown |
| Merger of prior Kentucky convictions for sentencing | Merger rule for multiple felonies within 24 hours applies only to multiple-offender sentencing; here defendant was sentenced as Range I standard offender | The three Kentucky convictions occurred within 24 hours and should merge into one for sentencing purposes | The court held § 40-35-106(b)(4) merger does not apply because defendant was not sentenced as a multiple offender; double jeopardy/merger claim waived by guilty pleas |
| Whether prior Kentucky convictions qualify as "sexual offenses" for enhancement | If the out-of-state acts, when viewed under Tennessee law, constitute indecent exposure, they qualify as convictions for purposes of the Sex Offender Act and support enhancement | Kentucky indecent-exposure statute differs and is narrower; conduct would at most be public indecency in TN and should not qualify as a sexual-offender predicate | The court held the Kentucky acts would constitute indecent exposure under Tenn. Code Ann. § 39-13-511; thus they qualify under § 40-39-202 and defendant is a "sexual offender" for enhancement |
| Proper statutory definition of "sexual/sex offender" to apply | The indecent-exposure statute cross-references the Sex Offender Act definition (Tenn. Code Ann. § 40-39-202), so that definition governs | Court should have applied the "sex offender" definition in Tenn. Code Ann. § 39-13-703 (Part 7) instead of § 40-39-202 | The court held the indecent-exposure statute explicitly references § 40-39-202; applying § 39-13-703 would contradict the statute, so § 40-39-202 controls |
Key Cases Cited
- Parke v. Raley, 506 U.S. 20 (U.S. 1992) (due-process concerns require proof that defendant had counsel at prior convictions used to enhance sentence)
- Menna v. New York, 423 U.S. 61 (U.S. 1975) (guilty plea does not automatically bar a double jeopardy claim when the record shows the claim was preserved)
- State v. Clever, 70 S.W.3d 771 (Tenn. Crim. App. 2001) (prior conviction may be proved by nonjudgment records and clerk testimony when certified judgment is unavailable)
- State v. Meeks, 262 S.W.3d 710 (Tenn. 2008) (mixed questions of law and fact reviewed de novo)
- State v. Franklin, 919 S.W.2d 362 (Tenn. Crim. App. 1995) (guilty plea waives merger claim unless explicitly reserved)