         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 15, 2003 Session

                STATE OF TENNESSEE v. TONYA M. JENNINGS

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2001-I-765    Steve R. Dozier, Judge



                     No. M2002-01190-CCA-R3-CD - Filed April 16, 2003


A trial court found the Defendant not guilty by reason of insanity of the offense of stalking.
Following judicial hospitalization in the Middle Tennessee Mental Health Institute, the Defendant
filed a motion requesting the trial court to expunge all public records pertaining to the stalking
offense. The trial court denied the Defendant’s request. The Defendant now appeals, arguing that
the trial court erred by denying the Defendant’s request to expunge her records. Finding no
reversible error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODA LL, JJ., joined.

Jay Steed and Jeffrey A. DeVasher (on appeal) and Laura C. Dykes (at trial), Assistant Public
Defenders, Nashville, Tennessee, for the appellant, Tonya M. Jennings.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Pam Anderson and Gigi Braun, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                  I. FACTUAL BACKGROUND

         According to the indictment, the Defendant was charged with “intentionally and repeatedly
follow[ing] or harass[ing] Kimberly A. Turner in such a manner as would cause Kimberly A. Turner
to be in reasonable fear of being assaulted, suffering bodily injury or death in violation of Tennessee
Code Annotated § 39-17-315(b)(2).” Following a bench trial, the trial court found the Defendant
not guilty by reason of insanity and referred her to Middle Tennessee Mental Health Institute
(MTMHI) for an evaluation. MTMHI assessed the Defendant and determined that she met the
standards for judicial hospitalization. The trial court then ordered that the Defendant be committed
to the custody of MTMHI for treatment. After the Defendant was released from MTMHI, she filed
a motion requesting that the trial court remove and destroy all public records pertaining to the
stalking offense. In the motion, the Defendant stated that she was found by the trial court to be
“incompetent, committable and insane at the time of the offense” and that she completed her
mandatory hospitalization. No evidence was presented at the hearing on the motion to destroy all
public records. The trial court denied the request.

                                            II. ANALYSIS

        The Defendant argues that the trial court erred by failing to expunge the public records
pertaining to the stalking offense in this case. The statute governing the expungement of records
provides, in pertinent part as follows:
        All public records of a person who has been charged with a misdemeanor or a felony,
        and which charge has been dismissed, or a no true bill returned by a grand jury, or a
        verdict of not guilty returned by a jury, and all public records of a person who was
        arrested and released without being charged, shall, upon petition by that person to the
        court having jurisdiction in such previous action, be removed and destroyed without
        cost to such person . . . .
Tenn. Code Ann. § 40-32-101(a)(1). The statute also provides:
        Upon petition by a defendant in the court which entered a nolle prosequi in the
        defendant’s case, the court shall order the public records expunged.
Id. § 40-32-101(a)(3). “Thus, the statute provides for the expungement of criminal records where
the suspect has been charged in four specific situations: upon dismissal of the charge, upon a return
of no true bill, upon a verdict of not guilty, and upon the reversal of conviction on appeal.” State v.
Jonathan Blanchard, No. E2001-00314-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 796, at *5
(Tenn. Crim. App., Knoxville, Sept. 23, 2002).

         A fundamental rule of statutory construction is that “the mention of one subject in a statute
means the exclusion of other subjects that are not mentioned.” State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). In Blanchard, our Court concluded that the failure of the legislature to mention a
pardon as a basis for expungement effectively denied any relief for the defendant. 2002 Tenn. Crim.
App. LEXIS 796, at ** 5-6. Our Court has also held that a trial court properly denied expungement
because “[a] retired case, which has not been dismissed, is not listed as subject to expungement
under Tenn. Code Ann. § 40-32-101.” Alfred Lee Mauldin v. State, No. M1999-00532-CCA-R3-CD,
2000 Tenn. Crim. App. LEXIS 261, at *3 (Tenn. Crim. App., Nashville, Mar. 17, 2000). Like the
courts in Blanchard and Maudlin, the trial court in this case, in an order denying the Defendant’s
motion, stated that it was “of the opinion that the legislature was specific in drafting this statute and
setting forth the precise dispositions for which expungement would be available.” The trial court
in this case noted that “a defendant who is found not guilty in a bench trial is not specifically entitled
to an expungement under the statute.”

       Without question, we agree with the Defendant’s argument that a verdict of not guilty
returned by a trial judge at the conclusion of a bench trial is equivalent to a verdict of not guilty


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returned by a jury. In both instances, a criminal charge against the defendant fails to result in a
conviction due to the defendant being found not guilty. As the Defendant asserts in her brief:
       There is no legal significance, pertinent to Tenn. Code Ann. § 40-32-101(a)(1), that
       the defendant was found not guilty after a bench trial, rather than after a trial by jury.
       Indeed, if the statute is to be read so as to preclude expungement after a bench trial,
       no defendant who maintains her innocence should ever submit to a bench trial, as the
       charge will remain on public records, even after a dismissal by the trial court.
We agree.

         We conclude that a verdict of not guilty after a trial is a verdict of not guilty, whether it be
returned by the jury or by the court. There are no differences of any significance whatsoever. For
that reason, we conclude that a reasonable interpretation of the expungement statute would include
allowing for the expungement of criminal records in cases where a defendant is found not guilty after
a bench trial. That being said, we must now determine whether, for the purposes of the expungement
statute, a verdict of not guilty by reason of insanity is equivalent to a verdict of not guilty.

        As the Defendant recognizes in her brief, there are differences between a verdict of not guilty
and a verdict of not guilty by reason of insanity. A verdict of not guilty by reason of insanity is based
on Tennessee Code Annotated § 39-11-501(a), which provides, “It is an affirmative defense to
prosecution that, at the time of the commission of the acts constituting the offense, the defendant,
as a result of severe mental disease or defect, was unable to appreciate the nature or wrongfulness
of such defendant’s acts.”

        A verdict of not guilty by reason of insanity, while functioning as an acquittal, is a verdict
indicating that a defendant cannot be held criminally responsible for his or her conduct because he
or she was unable to appreciate the nature or wrongfulness of his or her conduct due to severe mental
disease or defect. Such a verdict does not indicate that a defendant did not engage in the criminal
conduct. A verdict of not guilty means that the prosecution failed to prove beyond a reasonable
doubt that a defendant engaged in the criminal conduct. This difference is significant. Additionally,
a verdict of not guilty by reason of insanity does not necessarily end the legal proceedings in a case.
Tennessee Code Annotated § 33-7-303 provides for further proceedings including detention and
mental health treatment, in cases involving verdicts of not guilty by reason of insanity.

         Because of these significant distinctions, we agree with the State that had the legislature
intended to include persons found not guilty by reason of insanity in the list of those entitled to
expungement of their records, the legislature would have expressed such intent in the statute. Like
the trial court, we conclude that the legislature is “the more appropriate forum for relief” for the
Defendant.

        Accordingly, the judgment of the trial court is AFFIRMED.

                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE


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