        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 2, 2011

                 STATE OF TENNESSEE v. JIMMIE ROYSTON

              Direct Appeal from the Criminal Court for Shelby County
                        No. 10-00458    Lee V. Coffee, Judge


              No. W2010-02161-CCA-R3-CD - Filed December 13, 2011


A Shelby County jury convicted Defendant-Appellant, Jimmie Royston, of two counts of
prostitution near a school, a Class A misdemeanor. The two counts were merged into one
judgment, and he received a sentence of nine months and a $1,000 fine. On appeal, Royston
asserts that (1) the evidence was insufficient to support the convictions for prostitution, and
(2) the trial court erred in allowing the State to impeach Royston at trial with prior
misdemeanor theft convictions. Upon review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Timothy Albers (at
trial), Assistant Public Defenders, Memphis, Tennessee, for the Defendant-Appellant, Jimmie
Royston.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Kate Edmands, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Trial. Detective Gabriel Lawson of the Memphis Police Department Organized
Crime Unit testified that on April 19, 2009, he and his team were conducting an operation
to target “street-level prostitution in the area of Claybrook and Jefferson.” The area was
known for prostitution, and it was common to “find prostitutes there just about every day of
the week” and “at any time of the day.” Royston was arrested as a part of this operation, and
Detective Lawson completed the requisite paperwork. Detective Lawson testified that it was
not raining when the officers arrested Royston.

       Detective Daniel Arrington of the Organized Crime Unit testified that he was working
in an undercover capacity on April 19, 2009, along with other members of the Unit. He was
wearing plain clothes and driving an unmarked car. At about 11 p.m., he approached the
intersection of North Claybrook and Jefferson. Detective Arrington testified that a
convenience store located at the corner of that intersection was a “main hangout” for many
male prostitutes. When Detective Arrington drove in front of the convenience store at the
intersection, he saw Royston “just walking right on the sidewalk – right at the intersection,
he was standing on the sidewalk.” Detective Arrington and Royston made eye contact, and
Royston immediately approached Detective Arrington’s passenger window, which was down.
Royston asked “what [Detective Arrington] was looking for.” Arrington said he wanted oral
sex, and Royston responded that he did not perform oral sex. Royston offered instead to
either perform or receive anal sex. After Detective Arrington inquired about the price,
Royston told him it would cost thirty dollars for Royston to receive anal sex. Arrington
responded by saying, “Okay,” and Royston got in the car.

       Detective Arrington then drove away, giving the “takedown” signal to other officers
and telling Royston that he needed to go to a nearby convenience store to buy a condom.
When Arrington arrived at the store, he went inside, and the other officers arrested Royston.

        On cross-examination, Detective Arrington testified that he had just begun working
in the area when he saw Royston. When Arrington noticed him, Royston was standing on
the sidewalk at the intersection. Royston had a beer, and he did not go in the store before he
got in the car with Detective Arrington. It was not raining at the time. Arrington could not
recall whether Royston had an umbrella with him.

        Detective Joseph Rucker testified that he worked with the team targeting prostitution
at the intersection of Jefferson and Claybrook. He was in a marked police car and was
responsible for arresting prostitutes after undercover officers would give a “takedown”
signal. Detective Rucker arrested Royston, who was sitting in Detective Arrington’s car at
a convenience store. Detective Rucker testified that the intersection of Jefferson and
Claybrook is two to three tenths of a mile from Pyramid Academy, a school on Poplar
Avenue.

      Royston testified that on the night in question he was visiting a friend who lived about
one and a half blocks from the intersection of Claybrook and Jefferson. He arrived there
around 5 or 6:30 p.m. Since that time, he had gone to the store at the intersection of
Claybrook and Jefferson several times to buy beer. When he went to the store again to buy

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beer at around 10 or 11 p.m., he took an umbrella because it was “pouring down rain.”
Before he went in the store, a man drove up in a car and made eye contact with Royston. The
man motioned with a head nod for Royston to come to the car, and Royston did so. The man
said he wanted to have oral sex. Royston told the man that he “didn’t participate in[] activity
such as that.” The man then said he wanted to have anal sex with Royston and offered to pay
thirty-five dollars. Royston told the man to wait while he went in the store to buy beer, and
then he returned to the car and got in. In explaining why he got into the car, Royston stated:

              I was insulted by the fact that here is another man asking me to
              have sex with him. So I had something else in mind for him
              rather than having sex with him. . . . I was gonna beat the shit
              out of him.

        When Royston got into the car with his beer, the man asked him what kind he had
purchased. The man wanted a different kind, and Royston thought he was driving to another
store to buy that kind. When they arrived at the store, Royston got out of the car to “fluff
[his] umbrella.” Police officers then arrived and arrested Royston. Royston testified that he
never told the man that he would have anal sex with him, and he did not intend to engage in
prostitution.

        Royston acknowledged on direct examination that he had previously been convicted
of three misdemeanor thefts. On cross-examination, Royston conceded that he was aware
the area was known for prostitution, and particularly homosexual prostitution. This was not
the first time a man had tried to hire Royston as a prostitute in that neighborhood, but
Royston did not think that the man was trying to hire a prostitute when he motioned for
Royston. He acknowledged that the other man was substantially larger, and that Royston
might have been significantly injured had he attacked the man.

        Following the proof at trial, the jury convicted Royston as charged for both counts of
prostitution near a school. The two counts were merged into one judgment, and the trial
court sentenced Royston to nine months and a $1,000 fine. Royston filed a motion for a new
trial, which was denied. This timely appeal followed.

       I. Sufficiency of the Evidence. Royston argues that the evidence at trial was
insufficient to convict him of either count of prostitution near a school. Regarding the first
count, which alleged that he offered to engage in sexual activity as a business, Royston
maintains that the evidence was insufficient to prove that the activity was a “business” within
the meaning of the statute. Regarding the second count, which alleged that he loitered in a
public place for the purpose of being hired to engage in sexual activity, Royston asserts that
the evidence was insufficient to prove that he was “loitering.” The State responds that the

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evidence was sufficient on both counts. According to the State, the evidence was sufficient
to show that Royston “was engaged in the business of prostitution” because he approached
“customers seeking sex for money.” Additionally, the evidence showed that Royston was
“loitering” because he was standing on the sidewalk in front of the convenience store. We
agree with the State that the evidence was sufficient to convict Royston of prostitution near
a school.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The
trier of fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997) (citation omitted). A guilty verdict also “removes the presumption of
innocence and replaces it with a presumption of guilt, and the defendant has the burden of
illustrating why the evidence is insufficient to support the jury’s verdict.” Id. (citing State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

        In order to convict Royston of prostitution near a school, the State was required to
prove that he committed the offense of prostitution within one and a half miles of a school.
T.C.A. § 39-13-513(b)(2) (2006). One commits prostitution by “engaging in, or offering to
engage in, sexual activity as a business or being an inmate in a house of prostitution or
loitering in a public place for the purpose of being hired to engage in sexual activity.” Id. §
39-13-512(6). “‘Sexual activity’ means any sexual relations including homosexual
relations.” Id. § 39-13-512(7).



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        Although the term “loiter” is not statutorily defined, the Tennessee Supreme Court has
approved of two definitions of the term. Metro. Gov’t of Nashville and Davidson County
v. Martin, 584 S.W.2d 643, 646 (Tenn. 1979). The first defines “loiter” as “to be slow in
moving; to delay; to linger; to be dilatory; to spend time idly; to saunter; to lag behind.” Id.
(citing Hopper v. State, 253 S.W.2d 765, 766 (Tenn. 1952)). The second, from Black’s Law
Dictionary, similarly defines the term as “to be dilatory, to be slow in movement, to stand
around, to spend time idly, to saunter, to delay, to idle, to linger, to lag behind.” Id. (citing
McCoy v. State, 466 S.W.2d 540, 542 (Tenn. 1971)).

        Under either definition, the evidence was sufficient to prove that Royston loitered in
a public place for the purpose of being hired to engage in sexual activity and that he did so
within one and a half miles of a school. Detective Arrington testified that he first saw
Royston as he was driving toward the intersection, and Royston was standing on the sidewalk
in front of the store. Royston was located on a public street sidewalk behaving in a manner
that fits both of the above definitions of “loiter.” Royston’s purpose in being there, a place
he knew for male prostitution, was made clear when he approached Arrington. He inquired
about what sort of sex act Arrington wanted and offered to exchange anal sex for thirty
dollars. Finally, Detective Rucker testified that a school was two to three tenths of a mile
away, well within the required distance of one and a half miles. We conclude, therefore, that
the evidence, viewed in the light most favorable to the State, is sufficient to allow a rational
trier of fact to find all the elements of the crime beyond a reasonable doubt.

       Regarding the conviction for prostitution based on Royston’s engaging or offering to
engage in sexual activity as a business, Royston argues that the activity was not a “business”
as required by the statute. He asserts that although “business” is not defined in the
prostitution statute, this court has adopted the Business Tax Act definition of “business” for
the purpose of interpreting criminal statutes.1 See State v. Lane Pulley, No. M2000-02609-
CCA-R3-CD, 2001 WL 1597740, at *3 (Tenn. Crim. App., at Nashville, Dec. 14, 2001).
There, “business” is defined, in relevant part, to include “any activity engaged in by any
person . . . with the object of gain, benefit, or advantage, either direct or indirect.” T.C.A.
§ 67-4-702(2) (2006). The definition excludes “occasional or isolated sales or transactions
by a person not routinely engaged in business.” Id. According to Royston, this definition

        1
          For this argument, Royston relies on State v. F. Chris Cawood, No. E2000-02478-CCA-R3-CD,
2002 WL 264621 (Tenn. Crim. App., at Knoxville, Feb. 25, 2002) (finding insufficient evidence of
prostitution based on definition of “business”), perm. to appeal denied (Tenn. Sept. 9, 2002). As the State
points out, that opinion was designated “not for citation,” and it has no precedential value. See Tenn. Sup.
Ct. R. 4(E)(1). Nevertheless, F. Chris Cawood relied, in turn, on State v. Lane Pulley, No. M2000-02609-
CCA-R3-CD, 2001 WL 1597740, at *3 (Tenn. Crim. App., at Nashville, Dec. 14, 2001), which first adopted
the definition of “business” for which Royston argues. Lane Pulley, unlike F. Chris Cawood, remains
persuasive authority. See Tenn. Sup. Ct. R. 4(G)(1).

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precludes a finding that he engaged or offered to engage in sexual activity as a business
because there was no proof of the routine nature of his acts. We recognize Royston’s
argument concerning the definition of “business” as used in the prostitution statute.
However, the indictment upon which the State tried Royston charged alternative theories of
the same offense. One count alleged that Royston offered to engage in sexual activity as a
business, while the other alleged that he loitered in a public place for the purpose of being
hired to engage in sexual activity. Because the two verdicts merged into a single judgment,
the State must have produced sufficient evidence on only one of these two theories in order
for this court to affirm the conviction. Having found that the evidence was sufficient to
support Royston’s conviction of prostitution based on loitering, we need not determine the
alternative question of whether Royston’s conduct in this case amounted to “business”
activity as used in the prostitution statute. Royston is not entitled to relief on these claims.

        II. Admissibility of Prior Convictions. Royston argues that the trial court erred in
admitting his prior convictions for the purpose of impeaching his trial testimony under
Tennessee Rule of Evidence 609 because the State did not file timely notice and because the
court failed to balance the probative value of the convictions against any unfair prejudicial
effect. Although Royston concedes that he failed to raise the issue in his motion for a new
trial, he asserts that plain error review is available to correct the trial court’s mistake. The
State responds that Royston has waived the issue by failing to provide a complete record of
the relevant proceedings before the trial court. According to the State, this failure also
precludes plain error review. We agree with the State that Royston has waived this issue.

        First, Royston waived this claim by failing to present an adequate record for review.
The record reflects that the State filed notice of its intent to impeach Royston with certain
prior convictions under Tennessee Rule of Evidence 609 the day before trial commenced,
contemporaneous to jury selection. A transcript of these proceedings, however, was not
included in the record on appeal.2 Moreover, when the trial court questioned Royston
immediately before his testimony, it referred to earlier proceedings on this issue, making
clear that the parties discussed it before jury selection. The appellant has a duty to prepare
a record that conveys “a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). “Where . . . the record
is incomplete, and does not contain a transcript of the proceedings relevant to an issue

        2
          The record on this issue only includes the trial court’s final ruling, which occurred during trial
before Royston’s testimony. The court found the convictions met the ten-year limit and discussed the
probative value of the convictions. The court stated, “[A]ll [of the prior convictions] necessarily involve
dishonesty; and that’s one of the things that the jury will have to make a determination in this case as to
whether or not these witnesses[] and/or Mr. Royston . . . are, in fact, honest or believable . . . .” It did not
discuss the unfair prejudicial effect of the admission of the convictions or the amount of notice Royston
received.

                                                      -6-
presented for review, or portions of the record upon which a party relies, this Court is
precluded from considering the issue.” State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim.
App. 1988) (citing State v. Groseclose, 615 S.W.2d 142, 147 (Tenn. 1981); State v. Jones,
623 S.W.2d 129, 131 (Tenn. Crim. App. 1981)). “In the absence of an adequate record on
appeal, we must presume that the trial court’s ruling was supported by the evidence.” State
v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d
811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim.
App. 1979)). Here, the record is incomplete because Royston failed to include a transcript
of the proceedings in which the parties raised and the court first addressed the admissibility
of the convictions. Consequently, Royston has waived the issue.

        Second, Royston waived this argument by failing to include it in his motion for a new
trial before the trial court. Tennessee Rule of Appellate Procedure 3(e) states, in pertinent
part, that “in all cases tried by a jury, no issue presented for review shall be predicated upon
error in the admission or exclusion of evidence . . . or other ground upon which a new trial
is sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.” Because this issue, if found to be meritorious, would result
in a new trial, Royston’s failure to include it in his motion for a new trial results in waiver.
State v. Keel, 882 S.W.2d. 410, 416 (Tenn. Crim. App. 1994).

       Since Royston has waived this issue, we may review it only for plain error. See Tenn.
R. App. P. 36(b) (“When necessary to do substantial justice, an appellate court may consider
an error that has affected the substantial rights of a party at any time, even though the error
was not raised in the motion for a new trial or assigned as error on appeal.”). In State v.
Adkisson, this court stated that in order for an error to be considered plain:

       (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 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.”

899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (citations omitted). All five factors must
be shown, and it is unnecessary to consider each factor if it is obvious that one of the factors
cannot be established. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000). Furthermore,
“‘plain error’ must be of such a great magnitude that it probably changed the outcome of the
trial.” Adkisson, 899 S.W.2d at 642 (quoting United States v. Kerley, 838 F.2d 932, 937 (7 th
Cir. 1988)). Additionally, “rarely will plain error review extend to an evidentiary issue.”
State v. Ricky E. Scoville, No. M2006-01684-CCA-R3-CD, 2007 WL 2600540, at *2 (Tenn.
Crim. App., at Nashville, Sep. 11, 2007) (citation omitted).

                                              -7-
        We are unable to conclude, on this record, that the State’s untimely notice of its intent
to impeach Royston with his prior theft convictions amounted to plain error. First, as we
discussed earlier, the record does not clearly establish what occurred in the trial court.
Although the State filed its notice the day before trial, the record shows the trial court
conducted a hearing on this issue. Because the transcript of this hearing was not included
in the record on appeal, it is unclear whether Royston had been provided with his criminal
history prior to trial, see e.g State v. Barnard, 899 S.W.2d 617, 622 (Tenn. Crim. App.1994),
or whether the trial court provided Royston with an opportunity to continue the case in light
of the late filed notice, see e.g. State v. Andre D. Kimbrough, No.
M2001-02149-CCA-R3-CD, 2002 WL 31694496 * at 5 (Tenn. Crim. App., at Nashville,
Dec. 3, 2002). Moreover, Royston has failed to show that he was unduly prejudiced by the
State’s failure to follow Rule 609(a)(3). Here, Royston does not claim that he would not
have testified had he known his testimony was subject to impeachment based on the prior
theft convictions. In fact, the record demonstrates that the trial court advised Royston during
a Momon hearing that (1) a previous hearing was held to determine the admissibility of his
prior convictions; and (2) the court determined that those convictions would be admissible
if Royston chose to testify. Thus, Royston was provided with an opportunity to make an
informed decision whether to testify. Royston has failed to show plain error, and is not
entitled to relief.

                                       CONCLUSION

       Upon review, we affirm the judgment of the trial court.


                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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