State v. Pendergrass

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
August 12, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appellate C ourt
MAY 1999 SESSION Clerk

STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9810-CR-00371
)
vs. ) Hamilton County
)
JERRY C. PENDERGRASS ) Hon. Douglas A. Meyer, Judge
and )
BROAD STREET VIDEO, )
a business entity, ) (Possession of Obscene Matter with
) Intent to Distribute, Distribution of
Appellants. ) Obscene Matter)

FOR THE APPELLANT FOR THE APPELLEE:
JERRY C. PENDERGRASS:
JOHN KNOX WALKUP
H. LOUIS SIRKIN Attorney General & Reporter
Attorney at Law
105 W. Fourth St., Ste. 920 ELLEN H. POLLACK
Cincinnati, OH 45202 Asst. Attorney General
425 Fifth Ave. North
JOHN E. HERBISON 2d Floor, Cordell Hull Bldg.
Attorney at Law Nashville, TN 37243-0493
2016 Eighth Ave. S.
Nashville, TN 37204 VICTOR S. JOHNSON, III
District Attorney General
FOR THE APPELLANT
BROAD STREET VIDEO: BARRY STEELEMAN
Asst. District Attorney General
ARVIN H. REINGOLD 600 Market St., Courts Bldg.
Attorney at Law Chattanooga, TN 37402
1010 Market St.
Chattanooga, TN 37402

OPINION FILED:________________

REVERSED & DISMISSED

JAMES CURWOOD WITT, JR., JUDGE
 OPINION

The defendants, Jerry C. Pendergrass and Broad Street Video, were

convicted of obscenity-related crimes at the conclusion of a jury trial in the Hamilton

County Criminal Court. Both defendants were convicted of distribution of obscene

matter, a Class A misdemeanor. See Tenn. Code Ann. § 39-17-902(a), (c)(1)

(1997). Pendergrass was also convicted of possession with intent to distribute

obscene matter, a Class A misdemeanor. See Tenn. Code Ann. § 39-17-902(a),

(c)(1) (1997). Pendergrass received an eleven month, 29 day sentence, 75 percent

of which was to be served in the county workhouse. Broad Street Video was fined

$31,000. In this direct appeal, the defendants raise numerous issues for our

consideration:

1. Whether proof of the mens rea is constitutionally sufficient to support
each conviction.
2. Whether prosecutorial misconduct in closing argument warrants a
new trial.
3. Whether the trial court properly instructed the jury.
4. Whether the cumulative effect of alleged prosecutorial misconduct
and improper instructions violated the defendants' due process
guarantees.
5. Whether Code section 39-17-902 is unconstitutional either on its face
or as applied.

Having reviewed the record and the briefs of the parties, heard oral arguments, and

studied the applicable law, we find the evidence insufficient to support the

convictions. Accordingly, we reverse the convictions and dismiss the prosecution.

On January 30, 1996 an officer with the Chattanooga Police

Department went into a business establishment at 2025 Broad Street. The officer

looked around the store for 30 to 45 minutes and observed various types of

merchandise of a sexual nature, including "sex toys" and sexually oriented

videotapes. The videotapes were grouped together by the types of sex acts

depicted. The officer selected a video entitled "Half and Half" and took it to the clerk

behind the front desk. The clerk rang up the purchase; the officer tendered $53.82

and left the store. The only conversation the officer had with the clerk pertained to
the purchase price and possibly to the clerk checking the officer's identification upon

entering the store.

Thereafter, the officer viewed the videotape in furtherance of his

investigation, and obscenity charges were initiated against the defendants.

At trial, the state presented the testimony of the officer regarding his

observations and purchase on January 30, 1996. In addition to evidence of the

facts described above, the officer testified that he did not see the defendant

Pendergrass at Broad Street Video. The state also presented evidence via

stipulation of the parties that (1) the Hamilton County Register of Deeds would

testify that Jerry C. Pendergrass of 2437 Rossville Boulevard, Chattanooga,

Tennessee, held the deed to the property at 2025 Broad Street, (2) the

Chattanooga city treasurer would testify that (a) an application for business tax

license 45480 was filed in the name Video and More by Jerry C. Pendergrass on

June 9, 1993, (b) the name of the business was changed from Video and More to

Broad Street Video, (c) Broad Street Video held business license 45480 in the

name Jerry C. Pendergrass from April 1, 1995 to March 31, 1996, and (3) the Jerry

C. Pendergrass referenced in the documents supporting the preceding stipulations

was the same Jerry C. Pendergrass on trial. The state offered photographs of the

building at 2025 Broad Street, which depict two neon signs reading "Adult

Bookstore" along the front and one side of the building and two additional neon

signs in the two front windows reading "Adult Books Videos Toys." The state also

offered the videotape "Half and Half" and its printed cardboard container, and the

tape was viewed in its entirety by the jury.

The defense presented no evidence.

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 I. Sufficiency of the Evidence

The first issue presented on appeal, and the one which is dispositive

of the case, is whether the evidence that the defendants knowingly committed the

crimes is sufficient to sustain their convictions.

When an accused challenges the sufficiency of the evidence, an

appellate court’s standard of review is whether, after considering 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d

63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.

1990).

Moreover, a criminal offense may be established exclusively by

circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.

Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d

608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a

criminal offense based upon circumstantial evidence alone, the facts and

circumstances "must be so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470

S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt

must be woven around the defendant from which he cannot escape and from which

facts and circumstances the jury could draw no other reasonable inference save the

guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613;

State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).

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 In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d

856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court must afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.

In pertinent part, the statute that the defendants were convicted of

violating provides

It is unlawful to knowingly produce, send or cause to be sent, or bring
or cause to be brought, into this state for sale, distribution, exhibition
or display, or in this state to prepare for distribution, publish, print,
exhibit, distribute, or offer to distribute, or to possess with intent to
distribute or to exhibit or offer to distribute any obscene matter. . . .

Tenn. Code Ann. § 39-17-902(a) (Supp. 1995) (amended 1996).

As relevant to this case, the general mens rea provisions of the

Criminal Code provide, "'Knowing' refers to a person who acts knowingly with

respect to the conduct or to circumstances surrounding the conduct when the

person is aware of the nature of the conduct or that the circumstances exist." Tenn.

Code Ann. § 39-11-302(b) (1997) (emphasis added); see also Tenn. Code Ann. §

39-11-106(a)(20) (1997).

Additionally, Code section 39-17-901 provides that certain definitions

apply to Title 39, Part 9 (obscenity), unless the context requires otherwise. Tenn.

5
Code Ann. § 39-17-901 (1997). Thereafter, the section supplies the following

definition. "'Actual or constructive knowledge': a person is deemed to have

constructive knowledge of the contents of material who has knowledge of facts

which would put a reasonable and prudent person on notice as to the suspect

nature of the material[.]" Tenn. Code Ann. § 39-17-901(1) (1997).

At trial, the state's case was geared toward a showing of the

defendants' constructive knowledge of the suspect nature of the film "Half and Half."

The trial court's instructions included the section 39-17-901(1) definition of the

phrase "actual or constructive knowledge."

The question which arises is whether the "actual or constructive

knowledge" definition applies to the crimes enumerated under section 39-17-902,

when that section uses the word "knowingly" to describe the mental state required

to constitute an offense and makes no reference to the phrase "actual or

constructive knowledge."

Tennessee law provides the following principles to aid in interpretation

of statutes. Penal statutes are to be construed giving fair import of their terms in a

way which promotes justice and effects the objectives of the criminal code. Tenn.

Code Ann. § 39-11-104 (1997). The duty of the courts is to give effect to legislative

intent while refraining from restricting or expanding a statute's scope beyond that

which was intended. See, e.g., State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993).

In so doing, the courts "must examine the language of a statute and, if

unambiguous, apply its ordinary and plain meaning." Parks v. Tennessee Municipal

League Risk Management Pool, 974 S.W.2d 677, 679 (Tenn. 1998) (citation

omitted). If, on the other hand, the language is ambiguous, the courts must resort

to examination of the statutory scheme as a whole and the legislative history in

6
order to determine the meaning. Id.

With these principles in mind, we hold that the language "knowingly"

in the description of the criminal offense is unambiguous. The term "knowing" is

defined in sections 39-11-302(b) and -106(a)(2) and is announced to apply

generally to the entire Criminal Code. Although the language "actual or constructive

knowledge" is defined at the beginning of the Criminal Code’s obscenity statutes

and is said to apply specifically to all sections in that part unless the context requires

otherwise, that language is never used in section 39-17-902(a). Where the

legislature has defined both terms and chosen the former, rather than the latter, in

describing the elements of the crime, this court must yield to the plain meaning of

the language used and its statutorily defined meaning.

We note with interest that the phrase "actual or constructive

knowledge" appears only in the definitions section of the obscenity statutes. See

Tenn. Code Ann. §§ 39-17-901 to -911. Prior to the 1989 revisions to the Criminal

Code, section 39-6-1101 defined the term "knowingly" for purposes of the obscenity

statutes to mean "having actual or constructive knowledge of the subject matter.

A person shall be deemed to have constructive knowledge of the contents if he has

knowledge of facts which would put a reasonable and prudent man on notice as to

the suspect nature of the material." Tenn. Code Ann. § 39-6-1101 (1988) (repealed

1989). Section 39-6-1104, which defined various crimes related to obscenity, made

it unlawful to "knowingly" engage in certain conduct. Thus, the prior version of the

statute incorporated an actual or constructive knowledge definition into the

"knowing" requirement. The 1989 Criminal Code simultaneously established the

sections 39-11-302(b), -106(a)(2) definition of “knowing” and deleted the special

obscenity definition of the term which encompassed constructive knowledge. The

legislature declined to use that phrase in proscribing the obscenity-related activities.

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We are bound by the legislature's clear and unambiguous choice of the word

"knowingly" in section 39-17-902(a) and the corresponding definition of "knowing"

in sections 39-11-106(a)(20) and -302(b).

As a consequence, the defendants' convictions may be sustained only

if there is sufficient proof of record of actual knowledge of the proscribed conduct.

Looking first to the convictions of the defendant Pendergrass, the evidence in the

light most favorable to the state demonstrates that he owned Broad Street Video

and the real property upon which it was located. He applied for and received a

business tax license from the City of Chattanooga. Broad Street Video stocked

items of a sexual nature, and signage on the building advertised such wares. From

this evidence, the jury could conclude that defendant Pendergrass knowingly

possessed obscenity for the purpose of distribution and that he knowingly

distributed obscenity.1 Equally, one could conclude that he did not. The degree of

his involvement in the business was not established. There was no evidence, for

example, that Pendergrass was observed on the premises and/or engaged in

activities such as assisting customers with purchases, stocking shelves, receiving

merchandise, or ordering merchandise.

As noted above, the facts and circumstances of a case built entirely

upon circumstantial evidence "must be so strong and cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant." Crawford, 225 Tenn.

at 484, 370 S.W.2d at 613; Jones, 901 S.W.2d at 396. The proof presented at trial,

even when viewed in the light most favorable to the state, fails to attain that level of

1
It is important to note that not all materials of a sexual nature are
obscene. While some sexually oriented matter may be lawfully distributed and
possessed for the purpose of distribution, that which is obscene is not
constitutionally protected and may be the subject of state criminal proscriptions.
See generally Leech v. American Booksellers Ass'n, 582 S.W.2d 738 (Tenn.
1979).

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confidence as to proof that the defendant acted knowingly.

We acknowledge that there is sufficient evidence from which to infer

Pendergrass' possession of obscene matter. See State v. Pendergrass, 795

S.W.2d 150, 154 (Tenn. Crim. App. 1989). However, that the defendant possessed

the material does not per se establish that he knowingly did so. Likewise, the

defense conceded at oral argument that, for purposes of appellate review, it did not

contest that the video "Half and Half" was obscene. However, this concession is of

no avail in proving the defendant Pendergrass' knowledge at the time of his alleged

crimes.

Without sufficient proof of knowing conduct, the defendant

Pendergrass' convictions cannot stand.

With respect to defendant Broad Street Video's conviction, we find that

it must fail, as well. Broad Street Video is a sole proprietorship operated by Jerry

C. Pendergrass. A sole proprietorship is "[a] form of business in which one person

owns all assets of a business in contrast to a partnership and corporation. The sole

proprietor is solely liable for all the debts of the business." Christine Duncan Hitt v.

George Burkett Hitt, No. 02A01-9310-CV-00218 (Tenn. Ct. App., Western Section,

Nov. 9, 1994) (citing Black's Law Dictionary). If the evidence is insufficient of the

defendant Pendergrass' knowing criminal conduct, it is likewise deficient of such

proof with respect to his business identity, Broad Street Video.2

II. Remaining Issues

2
Because we find the evidence insufficient as to both defendants, it is not
necessary to inquire whether prosecution of both the individual defendant and
his sole proprietorship violated constitutional prohibitions against double
jeopardy. Furthermore, this issue was not raised by the defendants.

9
 Despite the dispositive nature of our holding that the evidence is

insufficient to sustain the defendants' convictions, we nevertheless must address

the remaining appellate issues due to the possibility of appeal of our decision. See

Jacobs v. State, 224 Tenn. 106, 107, 450 S.W .2d 581, 581 (1970); State v. Donald

Ray Hammonds, No. 03C01-9709-CR-00420, slip op. at 5 (Tenn. Crim. App.,

Knoxville, June 24, 1999).

The resolution of several issues is controlled by our determination that

the knowledge element of the proscriptive statute does not include constructive

knowledge. The affected issues are (1) whether prosecutorial misconduct occurred

when the assistant district attorney incorrectly stated the law, (2) whether the trial

court properly instructed the jury, (3) whether section 39-17-902(a) is

unconstitutional as applied by the trial court. Based upon our determination in

section I above, these first two issues are resolved, and the third is moot.

The defendants complain of prosecutorial misconduct in closing

argument when the assistant district attorney made references to the fact that one

of the defense attorneys was from Cincinnati, Ohio, and another member of the

defense team was from Nashville. At the hearing on the motion for new trial, the

trial court found that the state's argument was improper but harmless. We agree.

The state's argument was improper; however, much of its prejudice was blunted by

the defense attorney Sirkin's references in closing argument to the fact that he was

not from Hamilton County, Tennessee. In the context of the state's entire argument,

this aspect is not a dominant theme. Moreover, this portion of the argument dealt

with the "community" standard for judging whether the videotape was obscene, and

the defense has conceded obscenity on appeal. For these reasons, we conclude

that the defendants were not prejudiced by this argument. Harrington v. State, 215

Tenn. 338, 340, 385 S.W.2d 758, 759 (1965) (when an issue of prosecutorial

10
misconduct is presented, the proper inquiry is "whether the improper conduct could

have affected the verdict to the prejudice of the defendant").

The defendants raise several related constitutional issues. First, they

contend that the criminalization of the distribution of obscene videos violates the

fundamental rights of the consumers of obscenity because the effect is to deny such

consumers any meaningful access to obscene materials. We have reviewed the

state and federal precedents commended to us by the defense in support of this

claim. We conclude that the Tennessee Constitution does not support such an

interpretation. See State v. Marshall, 859 S.W.2d 289 (Tenn. 1993) (obscenity is

not protected speech under Tennessee Constitution) (Reid, C.J., and Daughtrey,

J., dissenting); Leech v. American Booksellers Ass'n, 582 S.W.2d 738, 745 (Tenn.

1979) ("[T]his court may interpret Article I, § 19 [of the Tennessee Constitution] as

granting absolute protection to speech and press and forbid any and all regulation

of pornography in Tennessee. We have no inclination to do so."); cf. State v.

Pendergrass, 795 S.W.2d 150, 155-56 (Tenn. Crim. App. 1989) (upholding

constitutionality of prior obscenity law). We acknowledge that the defendants claim

that decisions prior to the supreme court's decision in Davis v. Davis, 842 S.W.2d

588 (Tenn. 1992) are inapt because Davis announced the fundamental right of

privacy as a matter of state law. However, we conclude that the supreme court's

rulings with respect to Article I, section 19 support a conclusion that the defendants'

challenge should be rejected.

In their next constitutional subissue, the defendants contend that the

"community" standard for determining whether matter is obscene violates equal

protection guarantees. The obscenity statute defines the "community" as the

judicial district in which the crime allegedly occurred, and the jury must apply

"contemporary community standards" in determining whether the matter is obscene.

11
Our supreme court has analyzed an analogous challenge to this definition of

"community" for violation of the Commerce Clause and found no constitutional

infirmity. See Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520, 530 (Tenn.

1993). In Davis-Kidd, the court found that geographical distinctions for determining

whether material is offensive by community standards have been allowed by the

United States Supreme Court and that the high court has allowed the states wide

latitude in defining "community." The reasoning of Davis-Kidd leads to a conclusion

that equal protection is not trampled by a definition of "community" as the judicial

district in which the crime is alleged to have occurred, rather than a statewide

standard.3

The defendants raise two subissues in which they contend that the

federal and state decisions which hold that obscenity is not protected speech under

the First Amendment and Article I, section 19 of the Tennessee Constitution are

wrongly decided, and specifically that Stanley v. Georgia, 394 U.S. 557, 89 S. Ct.

1243 (1969) should be overruled. As the defendants properly conceded, we , as

an intermediate appellate court, are bound by the decisions of the Tennessee

Supreme Court as to state and federal constitutional questions, and the United

States Supreme Court as the ultimate authority as to federal constitutional

questions. See, e.g., Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976); State v.

Dudley W. Marshall, No. 11 (Tenn. Crim. App., Jackson, July 25, 1990) (applying

rule to case in which appellants claimed obscene speech should be constitutionally

protected), aff'd on other grounds, 859 S.W.2d 289 (Tenn. 1993). Accordingly, we

adhere to prevailing law and hold that obscenity is not protected speech.

3
In fact, when the "community" was defined as the State of Tennessee,
the statute was challenged because it did not limit the definition to the judicial
district in which the crime was alleged to have occurred. See State v. Frazier,
683 S.W.2d 346 (Tenn. Crim. App. 1984).

12
 Finally, the defendants' claim that the cumulative effect of improper

jury instructions and prosecutorial misconduct has been rendered moot by our

determinations discussed above.

The defendants' convictions are reversed and the indictments are

dismissed.

_______________________________
JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_____________________________
JOHN EVERETT WILLIAMS, JUDGE

_____________________________
ALAN E. GLENN, JUDGE

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