State of Tennessee v. Robert Collier

01/14/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 7, 2020 Session

STATE OF TENNESSEE v. ROBERT COLLIER

Appeal from the Criminal Court for Shelby County
No. 18-07225 Jennifer Johnson Mitchell, Judge
___________________________________

No. W2019-01985-CCA-R3-CD
___________________________________

On July 12, 2019, Defendant-Appellant, Robert Collier, entered a guilty plea to criminal
attempt aggravated sexual battery and indecent exposure, for which he received an
effective sentence of seven years, eleven months, and twenty-nine days, all of which was
to be served on supervised probation. Tenn. Code Ann. §§ 39-12-101, 39-13-504 (2019).
As part of his sentence, the Defendant was also ordered to register as a violent sex offender
and placed on community supervision for life. Tenn. Code Ann. § 39-13-524 (2014).
Within three months, on October 15, 2019, the trial court revoked the Defendant’s
supervised probation based on a violation of Tennessee Code Annotated section 40-39-
211(d)(1)(B) (2019), which restricts movement of violent sex offenders, and ordered the
Defendant to serve the original sentence in the Tennessee Department of Correction. The
Defendant now appeals the order of the trial court arguing that subsection (d)(1)(B) is
unconstitutional in violation of the Due Process Clause of the Fourteenth Amendment to
the United States Constitution because certain terms including “playground,” “any other
specific or legitimate reason,” “stand,” “sit idly,” and “remain” are not defined and
“ambiguous.” He additionally argues that subsection (d)(1)(B) is overbroad in violation of
his First Amendment rights because (1) it applies to all sex offenders even if the offense
did not involve a child victim; and (2) the term “playground” can include a church, an
offender’s front yard, and places where other adults are present.1 Following our review,
we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Phyllis Aluko, District Public Defender, and Barry W. Kuhn, Assistant Public Defender,
for the Defendant-Appellant, Robert Collier.

1
We have combined the Defendant’s issues for clarity.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Paige Munn, Assistant
District Attorney General, for the Appellee, State of Tennessee.

OPINION

As a Range II, multiple offender charged with criminal attempt aggravated sexual
battery, a Class C felony, the Defendant was subject to a sentence range of six to twelve
years. Tenn. Code Ann. §§ 39-12-101, 39-13-504, 40-35-106, 40-35-112. As outlined
above, the Defendant entered a guilty plea to criminal attempt aggravated sexual battery
and indecent exposure and was placed on supervised probation for seven years, eleven
months, and twenty-nine days. The judgment forms reflect count one was nolle prosequi
with no costs, registration as a violent sex offender, community supervision for life, and
“out of range” was written in the special conditions box. On the same day of his guilty
plea, the Defendant signed a Tennessee Department of Correction probation order agreeing
to, among other things, “abide by the provisions of Community Supervision for Life,
pursuant to [Tennessee Code Annotated section] 39-13-524.”

On August 26, 2019, an arrest warrant for the Defendant was issued based upon an
affidavit from Laquita Hampton, the Defendant’s probation officer, alleging that the
Defendant had violated his probation. The affidavit specifically alleged as follows:

Count 1: [The Defendant] violated Rule #1 in that on or about August 17,
2019, complainant called for Officer(s) out of concern for the children that
were present at the business. Officer(s) made contact with [the Defendant]
and co-defendant who were both sitting next door to the indoor playground
where approximately three children actively playing. [The Defendant] was
arrested for being 1000 feet of a playground w[h]ere children under the age
of 15 were present. [The Defendant] was transported to Felony Response
Bureau and charged[.]

Count 2: [The Defendant] violated Rule #1 in that on or about August 16,
2019, complainant called for Officer(s) out of concern for the children that
were [p]resent at the business. Officer(s) made contact with [the Defendant]
and co-defendant who were both sitting next door to the indoor playground
where approximately three children actively playing. [The Defendant] was
caught on camera August 15, 2019 inside of the playground area.2

2
While the affidavit alleges prohibited conduct that occurred on two separate days, August 16,
2019, and August 17, 2019, the proof at the revocation hearing was limited to August 17, 2019.
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 The Defendant was arrested, and the State filed a petition for revocation of
suspension of sentence on August 26, 2019. The petition alleged the same grounds as
relied upon in the affidavit; however, it further alleged that following the Defendant’s arrest
from the McDonald’s restaurant, the Defendant failed to report the matter to his probation
officer upon release from custody.

The Defendant was appointed counsel, and a hearing in this matter was conducted
on October 14, 2019. The Defendant’s probation officer, Shunta Lowery, testified that she
no longer supervised the Defendant, and she had only met him twice during her
supervision. She said the Defendant’s probation was violated based on a new arrest;
specifically, a violation of the sex offender registry. On cross-examination, she identified
the Tennessee Bureau of Investigation Sex Offender Registry Rules (SOR), admitted as an
exhibit, which are given to “new intakes when they come in to learn their terms of the sex
offender conditions.” She explained the SOR includes “copies of the law” and global
positioning system (GPS) monitoring; however, “[GPS] doesn’t specify exactly like their
boundaries.” Although she was not the intake officer for the Defendant, Lowery agreed
that it was standard office policy to “go over,” read, and explain each rule with each
probationer. She agreed she had never told a probationer “not [] to be at certain
restaurants[.]”

She clarified that the Defendant was placed on GPS monitoring on the day of intake
as part of his probation. Each probationer is required to be placed on GPS for at least 90
days, and GPS tracks their whereabouts including public schools, parks, or daycare centers.
A probationer’s presence at a playground would trigger the GPS, and the control center
would then call the probation officer. The GPS system does not “light up” or alert the
offender of the violation. Instead, the probation officer notifies the probationer. Lowery’s
office does not maintain a physical list of state parks or locations because this information
was “already inside” the tracking system. She reviewed the Defendant’s GPS report at the
time of his arrest, and it did not register any alerts. Lowery confirmed that the GPS system
would not alert on a park that was not “state mandated.”

On redirect examination, Lowery testified that she was “on call” at the time of the
Defendant’s arrest, and the call center did not inform her of his location. She believed this
may have occurred because the Defendant was at a restaurant with an attached playground.
She nevertheless insisted that the Defendant would have been instructed at intake “not to
remain within a thousand feet of children” who were not his own. On re-cross examination,
Lowery agreed that the “statute” does not explicitly require defendants to be “within a
certain distance” of children. The trial court asked for clarification regarding her
understanding of the law, and Lowery affirmed that areas that are not “state mandated,”

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like churches, are not included in the GPS system because they may not include
playgrounds.

Officer Michael Gibbs testified that he was working on August 17, 2019, and
responded to a call from a manager at a McDonald’s restaurant in Memphis, Tennessee.
Upon arrival, he spoke with the manager, identified the Defendant and the individual he
was seated with, and asked for their identification. Officer Gibbs confirmed the Defendant
and his “co-defendant” were violent sex offenders. Officer Gibbs described the area where
the Defendant was sitting as “right next to a glass partition that was backed up to a
McDonald’s playground.” The glass partition separated the play area from the rest of the
restaurant. Officer Gibbs testified that, from the Defendant’s vantage point, a person could
see children at play. Officer Gibbs approached the Defendant, who then asked “am I not
supposed to be here [?]” The entire encounter was captured on the body camera of Officer
Gibbs, which was played for the trial court and later entered as an exhibit. After consulting
a supervisor, Officer Gibbs placed the Defendant under arrest.

On cross-examination, Officer Gibbs confirmed that the manager reported that the
Defendant had been eating at the restaurant. Officer Gibbs observed food on the table
when he approached the Defendant. On redirect examination, Officer Gibbs testified that
children were playing on the playground while the Defendant was at the restaurant. The
parties stipulated that the McDonald’s restaurant is located in Memphis, Tennessee, and is
a privately-owned fast food restaurant operated for the purposes of generating a profit. The
parties further agreed that the McDonald’s has a surveillance system; however, the footage
from August 16, 2019, and August 17, 2019, was not preserved.

Lieutenant Israel Taylor of the Memphis Police Department (MPD) testified on
behalf of the Defendant. Lieutenant Taylor was the field supervisor who responded to the
McDonald’s and advised the officers on the scene on the appropriate charges in this case.
He agreed that he initially had a question about the public versus private language in the
“statute;” however, after consulting Felony Response and the Sex Crimes Bureau, he
charged the Defendant with the instant violation. Portions of his body camera showing the
discussion between the officers were played for the trial court and admitted into evidence.
On cross examination, Lt. Taylor agreed the McDonald’s restaurant was “open to the
public” and “anybody can take their kids up there and play on the playground[.]” On
redirect examination, Lt. Taylor agreed the McDonald’s restaurant was a privately-owned
business.

Following argument of the parties, the trial court determined that the Defendant had
violated the terms and conditions of his probation and ordered execution of the original
sentence, plus jail credit. The Defendant filed a timely notice of appeal, and his case is
now properly before this court for review.
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 ANALYSIS

The Defendant’s base contention is that the evidence presented to the trial court was
insufficient to show that he violated his probation. However, he does not contest that he
was at a McDonald’s restaurant with an attached playground with children present as
alleged in the violation warrant and established at the revocation hearing. Accordingly, the
relevant facts are not in dispute, and we will address only legal issues in this appeal. Our
review of legal questions is de novo, affording no presumption of correctness to the
determination of the trial court. State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018).

The Defendant argues his conduct does not amount to a violation of Tennessee Code
Annotated section 40-39-211(d)(1)(B), which prohibits violent sexual offenders from
“stand[ing], sit[ting] idly . . . or remain[ing] within one thousand feet (1,000′) of the
property line of any . . . playground, recreation center or public athletic field available for
use by the general public in this state when children under eighteen (18) years of age are
present, while not having . . . any other specific or legitimate reason for being there[.]” The
Defendant points out that subsection (d)(1)(B) does not provide a definition for the term
“playground” and the phrase “any other specific or legitimate reason [.]” He applies the
definition of playground from subsection (a)(2), which excludes an offender from publicly-
owned properties only, and insists that he did not violate the terms of his probation because
the McDonald’s playground was privately-owned property. The Defendant maintains that
if the definition of playground under subsection (a)(2) does not apply to subsection
(d)(1)(B), then the term “playground” must be construed as ambiguous. He invokes the
rule of lenity and argues subsection (d)(1)(B) should be interpreted in his favor. See United
States v. Santos, 553 U.S. 507, 514 (2008). He further contends that he did not violate
subsection (d)(1)(B) because eating lunch constitutes a legitimate reason to stay near a
restaurant playground. As part of this argument, the Defendant claims the phrase “any
other specific or legitimate reason” is also ill-defined and vague in violation of due process.
Finally, while not entirely clear, the Defendant appears to argue that subsection (d)(1)(B)
is overbroad in violation of the First Amendment because (1) the front of his home could
be “playground” within the meaning of the statute; (2) attending church would be
prohibited under the statute; and (3) “any offender would be prohibited from being near a
playground even if his offense were committed against an adult.”

In response, the State contends the Defendant’s conduct was clearly proscribed by
the statute. The State concedes that “playground” is not defined for purposes of subsection
(d)(1)(B). Nevertheless, applying the ordinary and common meaning of the word, the State
argues “playground” includes “an indoor play area designed for children’s recreation, such
as the McDonald’s indoor play area” in this case. The State further points out that
“playground” in subsection (a)(1) is narrowly defined to include only playgrounds “owned
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by the state, a local government, or a not-for-profit organization[.]” See Tenn. Code Ann.
§ 40-39-211(a)(2) (2019). The State argues that the legislature could have easily applied
the narrow definition of playground in subsection (a)(1) to the entire statute, but it chose
not to do so. Following the canon of statutory construction expression unius est exclusion
alterius, the State posits “it can be presumed that the legislature intended the narrow
definition of playground—only a publicly owned playground—to apply only to subsection
(a)(1) and that the ordinary and common meaning of the word—a play area intended for
children’s recreation, without consideration of its ownership-would apply to the remainder
of the statute.” The State argues the rule of lenity does not apply because the Defendant
“has attempted to create an ambiguity by presenting an interpretation of ‘playground’ that
is clearly erroneous.” Regarding the phrase, “any other specific or legitimate reason,” the
State argues the Defendant is similarly not entitled to relief. Here, under the statutory
construction doctrine of ejusdem generis, the State explains that the phrase “any other
specific or legitimate reason” is broad and general but not ambiguous. The phrase follows
a specific exception under the statute for child-care responsibilities, and the State argues
“the specific and legitimate reasons” should be similar to the child-care exception, which
is based on an offender’s relationship and/or duty to be in the excluded location. Because
the Defendant had no such duty to remain at the McDonald’s, the exception does not apply
here. Finally, the State argues the Defendant has waived the portion of his overbreadth
challenge to subsection (d)(1)(B) regarding its reach to sex offenders with adult victims for
failure to present it to the trial court. And, to the extent the Defendant argues that the term
“playground” includes churches or playgrounds where other adults are present, the State
argues the Defendant has failed to demonstrate that the statute inhibits a substantial amount
of constitutionally protected conduct or that there are a substantial number of instances
where the law cannot be applied constitutionally. See State v. Burkhart, 58 S.W.3d 694,
700 (Tenn. 2001).

“In resolving questions of statutory construction, we are guided by the following
‘well-defined precepts.’” Frazier, 558 S.W.3d at 152 (citing Tenn. Dep’t of Corr. v.
Pressley, 528 S.W.3d 506, 512 (Tenn. 2017); quoting State v. Howard, 504 S.W.3d 260,
269 (Tenn. 2016) (footnote omitted)). “The most basic principle of statutory construction
is to ascertain and give effect to the legislative intent without unduly restricting or
expanding a statute’s coverage beyond its intended scope.” Howard, 504 S.W.3d at 269
(quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “In evaluating the
constitutionality of a statute, we begin with the presumption that an act of the General
Assembly is constitutional,” and “indulge every presumption and resolve every doubt in
favor of the statute’s constitutionality.” Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn.
2003) (citations omitted); State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002). “When the
statutory language is clear and unambiguous, we must apply its plain meaning in its normal
and accepted use.” Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). A
statute is ambiguous when “the parties derive different interpretations from the statutory
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language.” Howard, 504 S.W.3d at 270 (quoting Owens v. State, 908 S.W.2d at 926).
However, “[t]his proposition does not mean that an ambiguity exists merely because the
parties proffer different interpretations of a statute. A party cannot create an ambiguity by
presenting a nonsensical or clearly erroneous interpretation of a statute.” Powers v. State,
343 S.W.3d 36, 50 n.20 (Tenn. 2011). In other words, both interpretations must be
reasonable in order for an ambiguity to exist. Id. If an ambiguity exists, however, “we
may reference the broader statutory scheme, the history of the legislation, or other sources”
to determine the statute’s meaning. State v. Frazier, 558 S.W.3d 145, 152-53 (Tenn. 2018)
(internal citations omitted).

Tennessee Code Annotated section 40-39-211, a Class E felony, sets forth the
parameters for sex offenders and violent sex offenders to establish residence or accept
employment. It also provides the grounds for violations of the statute. Subsection (a)
specifically addresses residency and employment and states:

(a)(1) While mandated to comply with the requirements of this
chapter, no sexual offender, as defined in § 40-39-202, or violent sexual
offender as defined in § 40-39-202, shall knowingly establish a primary or
secondary residence or any other living accommodation or knowingly accept
employment within one thousand feet (1,000′) of the property line of any
public school, private or parochial school, licensed day care center, other
child care facility, public park, playground, recreation center, or public
athletic field available for use by the general public.

(2) For purposes of this subsection (a), “playground” means any
indoor or outdoor facility that is intended for recreation of children and
owned by the state, a local government, or a not-for-profit organization, and
includes any parking lot appurtenant to the indoor or outdoor facility.

While subsection (a) restricts residency and employment of sex offenders,
subsection (d)(1) restricts their movement and provides as follows:

(d)(1) No sexual offender, as defined in § 40-39-202, or violent sexual
offender, as defined in § 40-39-202, shall knowingly:

(A) Be upon or remain on the premises of any building or grounds of
any public school, private or parochial school, licensed day care center, other
child care facility, public park, playground, recreation center or public
athletic field available for use by the general public in this state when the
offender has reason to believe children under eighteen (18) years of age are
present;
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 (B) Stand, sit idly, whether or not the offender is in a vehicle, or
remain within one thousand feet (1,000′) of the property line of any building
owned or operated by any public school, private or parochial school, licensed
day care center, other child care facility, public park, playground, recreation
center or public athletic field available for use by the general public in this
state when children under eighteen (18) years of age are present, while not
having a reason or relationship involving custody of or responsibility for a
child or any other specific or legitimate reason for being there[.]

I. Fourteenth Amendment. The Fourteenth Amendment to the United States
Constitution guarantees dues process against state action and provides, in relevant part, that
“[n]o person shall ... be deprived of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV. The Defendant challenges subsection (d)(1)(B) as “ambiguous”
in violation of due process because neither the term “playground” nor the phrase “any other
specific or legitimate reason for being there” are defined. The Defendant also asserts that
several other statutory terms—including “stand,” “sit idly,” and “remain”—are so unclear
that neither individuals nor law enforcement officers can ascertain when the statute applies.
We must initially observe that while the Defendant addresses the unconstitutionality of
Tennessee Code Annotated section 40-39-211(d)(1)(B) on various grounds throughout his
brief, he does not denote whether he has lodged a facial or “as-applied” challenge to the
statute. Presented in this posture, we are constrained to analyze his vagueness claim as
applied to the particular circumstances of his case. See
State v. Crank, 468 S.W.3d 15, 25 n.5 (Tenn. 2015) (distinguishing between “a
facial challenge, which involves the constitutionality of the statute as written, [and] ‘[a]n
‘as applied’ challenge to the constitutionality of a statute [which] is evaluated considering
how it operates in practice against the particular litigant and under the facts of the instant
case, not hypothetical facts in other situations”).

When determining the constitutionality of claims under the vagueness doctrine, we
apply the following legal framework:

“‘It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.’” State v. Pickett, 211
S.W.3d 696, 704 (Tenn. 2007) (quoting Grayned v. City of Rockford, 408
U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). By virtue of the Due
Process Clause of the Fourteenth Amendment to the Federal Constitution and
article I, section 8 of the Tennessee Constitution, a criminal statute cannot be
enforced when it prohibits conduct “‘in terms so vague that [persons] of
common intelligence must necessarily guess at its meaning and differ as to
its application.’” Id. (quoting Leech v. Am. Booksellers Ass’n, 582 S.W.2d
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 738, 746 (Tenn. 1979)). The primary purpose of the vagueness doctrine is
to ensure that our statutes provide fair warning as to the nature of forbidden
conduct so that individuals are not “held criminally responsible for conduct
which [they] could not reasonably understand to be proscribed.” United
States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). In
evaluating whether a statute provides fair warning, the determinative inquiry
“is whether [the] statute’s ‘prohibitions are not clearly defined and are
susceptible to different interpretations as to what conduct is actually
proscribed.’” Pickett, 211 S.W.3d at 704 (quoting State v. Forbes, 918
S.W.2d 431, 447-48 (Tenn. Crim. App. 1995)); see also State v.
Whitehead, 43 S.W.3d 921, 928 (Tenn. Crim. App. 2000).
....
Despite the importance of these constitutional protections, this Court
has recognized the “inherent vagueness” of statutory language, Pickett, 211
S.W.3d at 704, and has held that criminal statutes do not have to meet the
unattainable standard of “absolute precision,” State v. McDonald, 534
S.W.2d 650, 651 (Tenn. 1976); see also State v. Lyons, 802 S.W.2d 590, 592
(Tenn. 1990) (“The vagueness doctrine does not invalidate every statute
which a reviewing court believes could have been drafted with greater
precision, especially in light of the inherent vagueness of many English
words.”). In evaluating a statute for vagueness, courts may consider the plain
meaning of the statutory terms, the legislative history, and prior judicial
interpretations of the statutory language. See Lyons, 802 S.W.2d at 592
(reviewing prior judicial interpretations of similar statutory
language); Smith, 48 S.W.3d at 168 (“The clarity in meaning required by due
process may ... be derived from legislative history.”).

Crank, 468 S.W.3d at 22-23.

A. “Playground.” The Defendant correctly observes that the term “playground”
is not defined in subsection (d)(1)(B). Subsection (a)(2) defines “playground” as “any
indoor or outdoor facility that is intended for recreation of children and owned by the state,
a local government, or a not-for-profit organization.” However, subsection (a)(2) begins
with the limiting clause, “For purposes of this subsection (a),” and therefore expressly
provides a definition for playground for subsection (a) only. “The canon of statutory
construction expressio unius est exclusio alterius provides that where the legislature
includes particular language in one section of a statute but omits it in another section of the
same act, it is generally presumed that the legislature acted purposefully in the subject
included or excluded.” State v. Welch, 595 S.W.3d 615, 623 (Tenn. 2020); State v. Loden,
920 S.W.2d 261, 265 (Tenn. Crim. App. 1995). Accordingly, we agree with the State, and

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conclude that the definition of playground in subsection (a)(2) is limited to subsection (a)
of the statute.

Alternatively, the Defendant contends that if the definition of playground in
subsection (a)(2) does not extend to subsection (d)(1)(B), then the rule of lenity requires
that the term be narrowly construed in his favor. We disagree. “The rule of lenity is
‘rooted in fundamental principles of due process which mandate that no individual be
forced to speculate, at peril of indictment, whether his or her conduct is prohibited.’” State
v. Hawkins, 406 S.W.3d 121, 137-38 (Tenn. 2013) (quoting State v. Marshall, 319 S.W.3d
558, 563 (Tenn. 2010)). Where there is ambiguity in a statue, the rule of lenity requires
the ambiguity to be resolved in favor of a defendant. State v. Smith, 436 S.W.3d 751, 768
(Tenn. 2014). “The rule of lenity has been described as a ‘tie-breaker’ for a defendant in
the event of an unresolved ambiguity in a statute, but resorting to the rule first necessitates
a ‘grievous ambiguity or uncertainty’ in the statute.” Welch, 595 S.W.3d at 623 n.4
(internal citations omitted). We see no tie breaker here. The word “playground” has
common and ordinary meaning. Merriam-Webster defines “playground” as “a piece of
land used for and usually equipped with facilities for recreation especially by children.”
Playground, Merriam-Webster’s Dictionary (2019). Utilizing the common understanding
and plain meaning of the word “playground,” we conclude that subsection (d)(1)(B) does
not “prohibit[ ] conduct ‘in terms so vague that [persons] of common intelligence must
necessarily guess at its meaning and differ as to its application.’” Crank, 468 S.W.3d at 22
(quoting State v. Pickett, 211 S.W.3d 696, 704 (Tenn. 2007)). The Defendant is not entitled
to relief on this ground.

B. “Any Other Specific or Legitimate Reason.” The Defendant also challenges
subsection (d)(1)(B) as vague based on the phrase “any other specific or legitimate reason.”
He claims he did not violate the terms of his probation because eating lunch at McDonald’s
is in fact a “specific or legitimate reason.” Once again, the Defendant correctly observes
that this phrase is not defined within the statute. As previously mentioned, this portion of
subsection (d)(1)(B) prohibits a sex offender’s presence in any of the excluded zones unless
he has “a reason or relationship involving custody of or responsibility for a child or any
other specific or legitimate reason for being there[.]” With little to no argument or analysis
as to how they apply here, the Defendant cites a handful of cases, Morales v. City of
Chicago, 527 U.S. 41, 64 (1999) (Morales), Kolender v. Lawson, 461 U.S. 352, 360 (1983)
(Kolender), and Doe v. Haslam, No. 3:16-CV-02862, 2017 WL 5187117 (M.D. Tenn. Nov.
11, 2017) (Doe), for the proposition that the phrase “any other specific or legitimate
reason” is open to arbitrary enforcement by law enforcement as evidenced by Lt. Taylor’s
discussion with the responding officers and their subsequent confusion concerning the
statute. In drafting subsection (d)(1)(B), the Defendant suggests that the legislature has
failed to establish minimum guidelines to govern law enforcement. We disagree.
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 As an initial matter, Doe is of no benefit to the Defendant. In that case, the plaintiffs,
both convicted sex offenders subject to the Tennessee sex offender registry, filed suit
against the State of Tennessee, the Governor, and the Tennessee Bureau of Investigation
in their official capacity alleging, among other things, that certain provisions of the
Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and
Tracking Act (“Act”) were unconstitutional in violation of the vagueness doctrine.
Specifically, with regard to subsection (d)(1)(B), plaintiffs argued “the extensive and ever-
shifting nature of the Exclusion Zones violate[] due process by (1) failing to give a person
of ordinary intelligence fair notice of the conduct punished (Count 8); and (2) imposing
requirements that are functionally impossible (Count 9). Doe, 2017 WL 5187117, at *18.
Defendants argued, however, “that the Act’s Exclusion Zones [were] constitutionally
sound because the formula for identifying Exclusion Zones [was] well-defined and the Act
clearly stated which actions were prohibited therein.” In its memorandum opinion denying
the defendant’s motion to dismiss as to this claim, the district court stated:

At least one aspect of the Exclusion Zones, however, is far less clear
than Defendants contend. Tenn. Code Ann. § 40-39-211(d)(1)(B) provides
that a registered offender cannot knowingly “[s]tand, sit idly, whether or not
the offender is in a vehicle, or remain within” an Exclusion Zone. It is
unclear to the Court where the line would be drawn between standing or
sitting idly versus standing or sitting non-idly. Defendants suggest that
“idly” means “for no apparent reason,” but it is not clear to the Court why it
matters that the reason be apparent, or to whom. Nor is it clear what
relationship there must be between the required apparent reason and the
registered offender’s presence in the Exclusion Zone. Does the offender
need an apparent reason to be standing or sitting, or an apparent reason for
standing or sitting in that particular spot? And how long must a registered
offender be in the Zone before he is considered idle, rather than passing
through? The prohibitions placed on Plaintiffs are sufficiently unclear on
their face that the Court will not dismiss Count 8 outright.

Upon a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
in Doe was charged with determining only whether “the claimant [was] entitled to offer
evidence to support the claims,” not whether the plaintiff can ultimately prove the facts
alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). As such, the district court’s inquiries as cited by the
Defendant hold no force. Moreover, Doe did not subject the statute to any constitutional
analysis, and the case remained pending on the docket for the Middle District of Tennessee
upon release of our opinion in this appeal.

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 In Kolender, the pro se plaintiff, an African American male, was detained
approximately fifteen times in less than a two-year period as a pedestrian or as a diner in a
cafe, and he was asked to present identification; some detentions lasted minutes, while
others lasted hours. He was also arrested several times pursuant to a California criminal
loitering statute, but prosecuted only twice, with one resulting conviction (the second
charge was dismissed). The United States Supreme Court considered a vagueness
challenge to the loitering statute which “require[d] persons who loiter or wander on the
streets to provide a ‘credible and reliable’ identification and to account for their presence
when requested by a peace officer under circumstances that would justify a [Terry] stop.”
Kolender v. Lawson, 461 U.S. 352, 353 (1983). The statute was challenged because it
“vest[ed] virtually complete discretion in the hands of the police to determine whether the
suspect ha[d] satisfied the statute.” Id. at 358. The Court noted that “as presently drafted
and construed ..., [the statute] contains no standard for determining what a suspect has to
do in order to satisfy the requirement to provide a ‘credible and reliable’ identification.”
Id. The Court reasoned the statute “furnish[ed] a convenient tool for harsh and
discriminatory enforcement by local prosecuting officials, against particular groups
deemed to merit their displeasure.” Id. (internal quotation marks omitted). The Court held
the statute was “unconstitutionally vague ... because it encourage[d] arbitrary
enforcement.” Id. at 361.

In Morales, the United States Supreme Court considered a vagueness challenge to a
Chicago anti-gang loitering ordinance. A violation would occur if the following took place.
First, a police officer had to reasonably believe that at least one of two or more persons
present in a “public place” was a member of a “criminal street gang.” Second, the persons
had to be “loitering,” which the ordinance defined as “remain[ing] in any one place with
no apparent purpose.” Third, the officer had to then order all of the persons to “disperse”
and remove themselves “from the area.” Fourth, a person had to disobey the officer’s
order. If any person, whether a gang member or not, disobeyed the officer’s order, that
person would be guilty of violating the ordinance. Morales v. City of Chicago, 527 U.S.
41, 47 (1999) (internal quotation marks omitted).

A majority of the Court held that the ordinance was unconstitutionally vague
because it failed to establish adequate guidelines to govern the enforcement and application
of the law. Id. at 56, 60. In particular, the Court held that the “no apparent purpose”
definition of loitering was unconstitutionally vague. The Court concluded that this
standard was “inherently subjective because its application depends on whether some
purpose is ‘apparent’ to the officer on the scene.” Morales, 527 U.S. at 62. The Court also
found it significant that Chicago’s ordinance did not require any showing that the loitering
had a harmful purpose, id. at 62 (Stevens, J. plurality), and a majority of the court stated
the ordinance would meet constitutional standards if it applied only to loitering with such
a purpose. The ordinance, therefore, conferred an arbitrary and, thus, unconstitutional
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authority on law enforcement officers to determine what activities constituted
loitering. Id. at 61.

While subsection (d)(1)(B) does not use the word “loiter” expressly, “loitering” has
been commonly defined as “to stand or wait around idly or without apparent purpose” and
“[t]o be slow in moving, to delay; to linger; to be dilatory; to spend time idly; to saunter;
to lag behind.” Metro. Gov’t of Nashville & Davidson Cty. v. Martin, 584 S.W.2d 643,
646 (Tenn. 1979); McCoy v. State, 466 S.W.2d 540, 542 (Tenn. Crim. App. 1971).
Replacing the word “loitering” with the common definition of the same word does insulate
or “defang” the statute. See Doe v. Snyder, 101 F. Supp.3d 672 (E.D. Mich. 2015)
(definition of term “loiter” irrespective of knowledge requirement was unconstitutionally
vague under Michigan Sex Offender Act). Our research has also revealed cases in which
other courts have sustained vagueness challenges to statutes with similar language as
subsection (d)(1)(B), which lends some credence to the Defendant’s ambiguity claim. See
e.g., Doe v. Cooper, 842 F.3d 833, 844 (4th Cir. 2016) (finding unconstitutionally vague
and overly broad a North Carolina law forbidding sexual offenders from knowingly being
within 300 feet of a place where minors gather for scheduled educational, recreational, or
social programs); Valenti v. Hartford Cty., Indiana, 225 F. Supp. 3d 770, 785 (N.D. Ind.
2016) (finding unconstitutionally vague Indiana law because there was no indication of
how long a person must be standing or sitting, or remaining in an area and statute failed to
sufficiently define the line between prohibited and permissible conduct). We will therefore
review the Defendant’s claim in the context of loitering laws.

First, we employ as an aid the doctrine of statutory construction ejusdem generis,
which means “where general words follow the enumeration of particular classes of things,
the general words will be construed as applying only to things of the same general class as
those enumerated.” Sallee v. Barnett, 171 S.W.3d 822, 829 (Tenn. 2005) (internal citations
omitted). “‘[W]here it clearly appears that the lawmaker was thinking of a particular class
of persons or objects, his words of more general description may not have been intended
to embrace any other than those within the class.’” Id. (internal citations omitted). The
statutory language at issue here follows an exception to the exclusionary zones identified
in subsection (d)(1)(B). The exception specifically demonstrates the legislature’s intent to
permit a sex offender to be present in an excluded zone based on his duty or responsibility
for a child. Applying ejusdem generis, it follows that “any other specific or legitimate
reason” should not embrace anything other than matters related to a sex offender’s
legitimate duties or responsibilities. See e.g., Tenn. Op. Att’y Gen. No. 16-35, 2016 WL
4698880 (Aug. 30, 2016) (noting that the “grammatical structure makes clear that the
General Assembly recognized the potential need for some reasonable exceptions in
addition to the child care exception while also recognizing that it could not foresee—and
therefore could not specifically enumerate—every possible exception” and reasoning that
“the general phrase may be understood to allow for an exception when the sex offender has
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a reason to be in the prohibited area related to his legitimate, cognizable responsibilities,
duties, or obligations”).

Applying the above construction, an ordinary person would understand that
choosing to “remain within” one thousand feet of a playground where minor children are
present, whether eating or not, is not a specific or legitimate reason for being there as
proscribed by subsection (d)(1)(B). We further conclude that subsection (d)(1)(B) does
not run afoul of Kolender and Morales. It is limited in scope and only applies to individuals
required to register as sex offenders in Tennessee. While there is no express temporal
element, the offense is triggered only “when children under eighteen (18) years of age are
present”3 and in certain identified excluded zones. By anchoring subsection (d)(1)(B) in
the requirement that minor children be present in the excluded zone, the Tennessee
legislature narrowed the reach of subsection (d)(1)(B) to conduct that has an “apparent
harmful purpose or effect.” See State v. Stark, 802 N.W.2d 165, 171 (S.D. 2011) (citing
Morales v. City of Chicago, 527 U.S. 41, 62-63 (1999)). The harmful purpose presumably
remains rooted in the high risk of recidivism posed by sex offenders upon reentry into
society. Compare McKune v. Lile, 536 U.S. 24, 33-34 (2002) (establishing, based on
Department of Justice statistics, that sex offenders are “more likely than any other type of
offender to be rearrested”) with Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016)
(finding retroactive application of amendments to Michigan SORA violated Ex Post Facto
clause based in part on evidence in the record casting doubt on McKune). Based on the
record before us, rather than “vest[ing] virtually complete discretion in the hands of
police[,]” subsection (d)(1)(B) provides clear standards for enforcement and fair warning
as to the nature of forbidden conduct. Accordingly, the trial court properly rejected the
Defendant’s vagueness challenge and revoked his probation for failure to comply with
Tennessee Code Annotated section 40-39-211(d)(1)(B).

II. First Amendment: The First Amendment to the United States Constitution
provides, in relevant part, that “[c]ongress shall make no law respecting an establishment
of religion, or prohibiting the exercise thereof.” U.S. Const. amend. I. The Defendant
asserts that Tennessee Code Annotated 40-39-211(d)(1)(B) is overbroad and
impermissibly interferes with his First Amendment rights because (1) it applies to all sex
offenders even if the original offense did not involve a child victim; and (2) the term
“playground” can include a church, an offender’s front yard, and places where other adults
are present. The Defendant frames this issue on behalf of third parties; thus, we review this
aspect of his appeal as a facial challenge to the constitutionality of subsection (d)(1)(B).
See United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative

3
Various sections of the statute provide exceptions for minor children who are related to
an offender. See Tenn. Code Ann. § 40-39-211(c)(1), (d)(2)(B), (d)(2)(D).
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[a]ct is . . . the most difficult challenge to mount successfully since the challenger must
establish that no set of circumstances exist under which the Act would be valid.”).

The Defendant’s brief first argues that the statute is overbroad because “it applies
to all offenders, whether or not children were involved in the offense.” We are unable to
address this precise issue because it was not raised before the trial court. Even if we were
inclined to do so, the Defendant would not be entitled to relief because of the undeveloped
record on this issue, and we decline the Defendant’s invitation from oral argument to
remand. As to the remaining issues, the State argues that the Defendant has failed to
demonstrate that the statute inhibits a substantial amount of constitutionally protected
conduct. We agree with the State.

When reviewing a facial challenge to the overbreadth of a statute, “a court’s first
task is to determine whether the enactment reaches a substantial amount of constitutionally
protected conduct.” Vill. Of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 (1982). If the court determines that the statute does not, “then the overbreadth
challenge must fail.” Id. In the context of First Amendment rights, “the overbreadth
doctrine permits the facial invalidation of laws . . . if the impermissible applications of the
law are substantial when ‘judged in relation to the statute’s plainly legitimate sweep.’”
Morales v. City of Chicago, 527 U.S. 41, 52 (1999) (quoting Broadrick v. Oklahoma, 423
U.S. 601, 612-15 (1973)). To maintain an overbreadth challenge, a defendant must first
show that the statute challenged involves constitutionally protected conduct. State v.
Burkhart, 58 S.W.3d 694, 700 (Tenn. 2001). If the statute reaches a substantial amount of
constitutionally protected conduct, a defendant must then “demonstrate from the text of the
law and actual fact that there are a substantial number of instances where the law cannot
be applied constitutionally. Id. (citing State v. Lyons, 802 S.W.2d 590, 593 (Tenn. 1990)).

Here, the Defendant argues that the statute is overbroad because if “playground”
includes both public and private playgrounds, the statute would prevent the Defendant from
attending church services, as most churches have a playground. Under the most liberal
interpretation, we view this as a Free Exercise Clause claim. The Free Exercise Clause
does not protect all conduct associated with religious practice. The clause “embraces two
concepts, [] freedom to believe and freedom to act. The first is absolute but, in the nature
of things, the second cannot be. Conduct remains subject to regulation for the protection
of society.” Cantwell v. State of Connecticut, 310 U.S. 296, 303-04 (1940). “The freedom
to act must have [an] appropriate definition to preserve the enforcement of that protection.”
Id. at 304. The Defendant remains free to hold whatever beliefs he may choose and
privately practice religion as he wishes. However, the Defendant cannot attend churches
with playgrounds or other similar statutorily prohibited zones. The State’s “paramount”
interest in “protect[ing] the public from [sexual] offenders” allows it to “define” and limit

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the extent of the Defendant’s “freedom to act.” Tenn. Code Ann. § 40-39-201 (2020); Id.
at 303-04.

Second, the Defendant argues that the State’s definition of “playground” is so broad
that it encompasses anywhere that children play. The Defendant argues that he could
violate his probation if children choose to play in his front yard. Citing Fla. Action Comm.,
Inc. v. Seminole Cty., 212 F. Supp. 3d 1213, 1219 (M.D. Fla. 2016), the Defendant is
apparently arguing that the statute also infringes upon his freedom of association. We
disagree with the Defendant’s reading of subsection (d)(1)(B). To be clear, the
exclusionary zones applicable to the Defendant’s residence under subsection (a)(1) are
narrowly tailored to prohibit the Defendant from living within one thousand feet of a
playground owned by the state or otherwise defined by subsection (a)(2). In contrast,
subsection (d)(1)(B) prohibits an offender from knowingly “stand[ing],” “sit[ting] idly, “or
remain[ing]” within one thousand feet (1,000′) of a playground where minor children are
present. Under its common meaning and understanding, a playground is a place designed
for children to play on or in, not any place where children may gather to play as suggested
by the Defendant. The mens rea of knowingly avoids the accidental scenarios posed by
the Defendant. See McFadden v. United States, 576 U.S. 186, 187 (2015) (quoting
Gonzales v. Carhart, 550 U.S. 124, 149 (2007)); See Doe v. Raush, No. 3:17-CV-504, 2020
WL 2495805 (E.D. Tenn. May 14, 2020) (rejecting vagueness challenge to subsection
(d)(1)(B) because the scienter requirement- knowledge- supported the statute’s
constitutionally and plaintiff’s claim based on hypotheticals, not proof). Accordingly, the
Defendant has failed to show that Tennessee Code Annotated section 40-39-211(d)(1)(B)
is overbroad and reaches a substantial amount of constitutionally protected conduct, and
his constitutional claim must fail.

CONCLUSION

Discerning no error, the judgments of the trial court are affirmed.

____________________________________
CAMILLE R. MCMULLEN, JUDGE

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