                                                                                         04/28/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              November 19, 2019 Session

             STATE OF TENNESSEE v. DAVID ERIC LAMBERT

                Appeal from the Criminal Court for Sullivan County
                    No. S67078 James F. Goodwin, Jr., Judge
                     ___________________________________

                           No. E2018-02296-CCA-R3-CD
                       ___________________________________


Defendant, David Eric Lambert, appeals his conviction for attempted unlawful
photography in violation of Tennessee Code Annotated section 39-13-605. Following his
conviction, the trial court sentenced Defendant to serve six months in confinement. In
this appeal as of right, Defendant asserts that: 1) the trial court erred by denying his
motion to dismiss because the unlawful photography statute is unconstitutionally vague
and his conduct did not constitute a crime; 2) the admission of his statement violated
Rule 404(b) of the Tennessee Rules of Evidence; 3) the trial court erred by denying
Defendant’s requests for special jury instructions; 4) the trial court erred by instructing
the jury on attempt as a lesser-included offense; and 5) the evidence was insufficient to
support Defendant’s conviction. We conclude that the trial court erred by admitting
Defendant’s statement to police, and the erroneous admission of the statement would
entitle Defendant to a new trial. Because, however, the evidence adduced at trial was
insufficient to support Defendant’s conviction, the conviction is reversed and the case is
dismissed with prejudice.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and D. KELLY THOMAS, JJ., joined.

Stephen M. Wallace, District Public Defender; and Lesley A. Tiller and Dustin J.
Franklin, Assistant District Public Defenders, for the appellant, David Eric Lambert.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Emily M. Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

        Defendant was charged with unlawful photography in three separate cases
involving three different victims. The incident in this case occurred at the Hobby Lobby
in Kingsport on February 27, 2016. Defendant’s motion to dismiss pertained to all three
of his cases. We include only the facts pertinent to the case before us.

Motion to Dismiss

       Prior to trial, Defendant filed a motion to dismiss the charges in all three cases on
the grounds that his “alleged actions occurred in public places where there is no
expectation of privacy,” and therefore Defendant’s “alleged acts are not illegal under
Tennessee law.”        Defendant also argued that the statute proscribing unlawful
photography, Tennessee Code Annotated section 39-13-605, was unconstitutionally
vague because the language of the statute “is so broad that it does not provide individuals
with adequate notice of proscribed activity and does not provide law enforcement with
sufficient guidance to protect against arbitrary and discriminatory enforcement.”

       At the April 12, 2017, hearing on Defendant’s motion to dismiss, following the
arguments of the parties, the trial court concluded that the statute was not unconstitutional
because it was not “so vague that the defendant wouldn’t know what conduct” was illegal
given that the statute has other elements that impact whether the taking of a photograph
qualifies as a criminal offense.

       At the hearing, Detective Martin Taylor testified that he met with Defendant after
receiving reports about “a stalking type incident” at Hobby Lobby. On March 24, 2016,
Detective Taylor obtained a written statement from Defendant, which Detective Taylor
read into evidence at the hearing. The statement read:

              This all started about four or five years ago when my father died of
        cancer. I began videoing in public. I like blonde haired females but
        have no preference really. I recently have been going to shopping
        centers in Kingsport and have filmed women in Hobby Lobby, Walmart,
        and Ross and the shopping center on East Stone Drive. I did not mean to
        scare anyone and only filmed the females for my own purposes. I just
        like using the video function on my phone. It’s kind of like an obsession
        with the technological aspect of a phone. I have never posted any of the
        images I have taken on the internet or share with other people. I actually
        did not think I was doing anything wrong because everything was done
        in a public place however I realize this was not a good decision on my
        part. If it was not illegal it was definitely crossing moral boundaries.
                                            -2-
              . . . . I gave the officers permission to look through the phone.
        Today I am giving Detective Taylor permission to examine my phone for
        the videos I have stored on the phone. There should be around 20 videos
        on the phone of different females I have collected recently. I understand
        the seriousness of the charges against me and need help with the
        problems I have. I am willing to undergo treatment and with the
        willingness of the court will do what is necessary to get help for my
        problem. Again I am very sorry for all of this and want the women I
        videoed to know I never meant any harm and I apologize for my actions.
        This is a truthful statement.

      Detective Taylor examined the photos and videos on Defendant’s cell phone and
found no photos or videos of any of the victims in any of the three Sullivan County cases.

        Donna Brown, the victim in this case, testified that she was shopping with her
sister, Melissa Bays, at the Hobby Lobby in Kingsport on February 27, 2016. Ms. Brown
testified that Defendant followed them around the store “everywhere [they] went.” She
testified that he “would peek through things and peek around things . . . and [the sisters]
couldn’t shake him.”         Ms. Brown testified that at one point, Defendant was
“uncomfortably close” to her, “like a foot maybe” away from her. Ms. Brown added that
Defendant did not have her consent to follow her or take her photo. She testified that if
Defendant captured her image on video or photograph, she would be “mad and
embarrassed.” Ms. Brown eventually confronted Defendant at the store and used her cell
phone to take his photo, at which time Defendant left the store.

       On cross-examination, Ms. Brown acknowledged that she assumed there were
surveillance cameras inside Hobby Lobby capturing video of customers. She testified
that she was wearing jeans or pants on the day of the incident. She testified that
Defendant did not touch her or put his phone down her shirt or pants.

     Melissa Bays testified that she saw Defendant appear to take a photo of Ms.
Brown while Ms. Brown was bent over looking at a display. She testified that Ms.
Brown was in a position that “would have show[n] like her cleavage maybe[.]” Ms.
Brown and Ms. Bays both testified that they did not know Defendant.

       As to this case, the trial court found that Defendant had “readily admit[ted] to
videoing or filming or taking pictures with his phone of women in public.” The trial
court noted that Defendant “was probably within one foot” of Ms. Brown and that Ms.
Bays testified that she observed Defendant “taking pictures of Ms. Brown both of her
cleavage and buttock.” The trial court ruled that Ms. Brown had a reasonable expectation
                                           -3-
of privacy given the “very close proximity” from which Defendant was taking photos.
The court noted, “even if you’re in public [ ] you’ve got an expectation of privacy that
you’re not going to be photographed or filmed in your crotch or your rear end or your
breasts . . . .” The trial court denied Defendant’s motion as to the victim in this case.

Motion to dismiss because Defendant’s conduct did not violate statute

        Tennessee Rule of Criminal Procedure 12 provides that “[a] party may raise by
pretrial motion any defense, objection, or request that the court can determine without a
trial of the general issue.” Tenn. R. Crim. P. 12(b)(1). Our supreme court has
determined that Rule 12 “is identical to its federal counterpart,” Federal Rule of Criminal
Procedure 12, and has concluded that matters “substantially founded upon and
intertwined with factual evidence of the alleged offense that will necessarily be
introduced at trial . . . fall[] within the province of the ultimate finder of fact, and ruling “
on such matters “should be deferred until trial.” State v. Vickers, 970 S.W.2d 444, 447
(Tenn. 1998) (citations omitted). An “issue is ‘capable of determination’ under the
analogous federal rule if ‘the facts surrounding the commission of the alleged offense
would be of no assistance in determining’ the issue.” State v. Sherman, 266 S.W.3d 395,
403 (Tenn. 2008) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)).
Although those questions capable of determination tend to “raise questions of law rather
than questions of fact,” Rule 12 permits the trial court to “make findings of fact necessary
to decide the questions of law presented by a pretrial motion so long as the factual
findings are not intertwined with the general issue of guilt or innocence.” State v.
Goodman, 90 S.W.3d 557, 561 (Tenn. 2002) (citations omitted). “Where the factual
findings necessary to resolve the motion are intertwined with the general issue, a ruling
must be deferred until trial since, in criminal cases, there simply is no pretrial procedure
akin to summary judgment for adjudicating questions of fact involving the general issue
of guilt or innocence.” Id. (citing Vickers, 970 S.W.2d at 447; State v. Burrow, 769
S.W.2d 510, 512 (Tenn. Crim. App. 1989)). To this end, the trial court “may consider
evidence beyond the face of the indictment” so long as the facts to be considered are
“relevant only to the legal question presented by the defendant’s motion, not to the
general issue of guilt or innocence” and do not “qualify as ‘factual evidence of the
defendant’s conduct at the time of the alleged offense.’” Sherman, 266 S.W.3d at 402
(quoting Goodman, 90 S.W.3d at 561). In any event, the trial court’s factual findings
must “not encroach upon the province of the jury.” Sherman, 266 S.W.3d at 403 (citation
omitted).

       The trial court properly declined to consider Defendant’s argument that his
conduct did not encompass all of the elements of Tennessee Code Annotated section
(hereinafter T.C.A. §) 39-13-605. Defendant’s motion was essentially a pretrial
challenge to the sufficiency of the State’s evidence to support a conviction. This would
                                              -4-
be “akin to summary judgment for adjudicating questions of fact involving the general
issue of guilt or innocence.” Goodman, 90 S.W.3d at 561. That procedure does not exist
in criminal cases. Id.

Constitutionality of T.C.A. § 39-13-605

      At the time of the offense in this case, T.C.A. § 39-13-605 provided:

        (a) It is an offense for a person to knowingly photograph, or cause to be
        photographed an individual, when the individual has a reasonable
        expectation of privacy, without the prior effective consent of the
        individual, or in the case of a minor, without the prior effective consent
        of the minor’s parent or guardian, if the photograph:

        (1) Would offend or embarrass an ordinary person if such person
        appeared in the photograph; and

        (2) Was taken for the purpose of sexual arousal or gratification of the
        defendant.

        (b) As used in this section, unless the context otherwise requires,
        “photograph” means any photograph or photographic reproduction, still
        or moving, or any videotape or live television transmission of any
        individual.

        (c) All photographs taken in violation of this section shall be confiscated
        and, after their use as evidence, destroyed.

T.C.A. § 39-13-605(a)-(c) (2014).        As indicated, the defendant challenged the
constitutionality of T.C.A. § 39-13-605 on grounds that the phrase “when the individual
has a reasonable expectation of privacy” is vague, essentially asserting a claim that
T.C.A. § 39-13-605, due to its vagueness, failed to place him on notice that his conduct
would violate the statute. The trial court concluded that the statute was not
unconstitutional.

        “Issues of constitutional interpretation are questions of law, which we review de
novo without any presumption of correctness given to the legal conclusions of the courts
below.” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citing Colonial Pipeline Co.
v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)). “In evaluating the constitutionality of a
statute, we begin with the presumption that an act of the General Assembly is
constitutional,” see Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (citations
                                           -5-
omitted), and “indulge every presumption and resolve every doubt in favor of the
statute’s constitutionality,” State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002).

       “It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). A “vague statute is vulnerable to a constitutional challenge because it (1) fails to
provide fair notice that certain activities are unlawful; and (2) fails to establish reasonably
clear guidelines for law enforcement officials and courts, which, in turn, invites arbitrary
and discriminatory enforcement.” State v. Pickett, 211 S.W.3d 696, 702 (Tenn. 2007).
“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 reasonable understand to be proscribed.’”
State v. Crank, 468 S.W.3d 15, 22-23 (Tenn. 2015) (quoting United States v. Harriss, 347
U.S. 612, 617 (1954)).

       “Despite the importance of these constitutional protections,” our supreme court
“has recognized the ‘inherent vagueness’ of statutory language . . . and has held that
criminal statutes do not have to meet the unattainable standard of ‘absolute precision.’”
Crank, 468 S.W.3d at 23 (quoting Pickett, 211 S.W.3d at 704; State v. McDonald, 534
S.W.2d 650, 651 (Tenn. 1976)). “The vagueness doctrine does not invalidate every
statute [that] a reviewing court believes could have been drafted with greater precision,
especially in light of the inherent vagueness of many English words.” State v. Lyons, 802
S.W.2d 590, 592 (Tenn. 1990). When “evaluating a statute for vagueness,” this court
“may consider the plain meaning of the statutory terms, the legislative history, and prior
judicial interpretations of the statutory language.” Crank, 468 S.W.3d at 23 (citing
Lyons, 802 S.W.2d at 592); see T.C.A. § 39-11-104 (stating that each statute must be
“construed according to the fair import of its terms, including reference to judicial
decisions and common law interpretations, to promote justice, and effect the objectives of
the criminal code”).

       Defendant correctly points out that the phrase “when the person has a reasonable
expectation of privacy” is not defined in the statute. It is, however, a phrase commonly
used in the law. The discussion of the existence of a reasonable expectation of privacy
most often occurs in cases discussing the Fourth Amendment to the United States
Constitution, but its use is not limited to that arena, and we can fathom no reason to
ascribe the phrase as used in T.C.A. § 39-13-605 a meaning different from that it enjoys
in every other legal context. It is well established that a person has a reasonable
expectation of privacy when the person has “an actual, subjective expectation of privacy
and . . . society is willing to view the individual’s subjective expectation of privacy as
reasonable and justifiable under the circumstances.” State v. Munn, 56 S.W.3d 486, 494
(Tenn. 2001) (citations omitted).
                                             -6-
       Utilizing the common understanding of the terms contained in T.C.A. § 39-13-
605, we conclude that the statute 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 Pickett, 211 S.W.3d at 704).
Consequently, the trial court did not err by denying Defendant’s constitutional challenge.

Evidence at trial

        Donna Brown testified that on February 27, 2016, she was shopping with her sister
at the Hobby Lobby in Kingsport. Ms. Brown testified that she was “bent over” looking
at “a display of trinkets.” She noticed Defendant behind her, and Defendant walked away
when she looked up at him. She testified that Defendant followed her and her sister
around the store. She testified, “everywhere we would go, there he was.” She testified
that Defendant pointed his phone at them, and “he was scary.” Ms. Brown and her sister
became “really nervous.” Defendant held his phone “down” and “in a lower position.”
Ms. Brown testified that it “went on for a long time . . . 45 minutes to maybe an hour.”
Ms. Brown approached a store associate because she was “afraid to go outside.” Ms.
Brown took out her cell phone and pointed it at Defendant and said, “You like taking
pictures, let me take yours.” Defendant left the store when Ms. Brown confronted him.

        Ms. Brown testified that she did not give Defendant permission to take photos or
video of her and that if Defendant had a video or photo of her, she would be embarrassed
by it. She acknowledged that Hobby Lobby had security cameras in the store, but she
testified that video taken by the store would not have embarrassed her “because . . .
they’re in the ceiling, they’re not focusing in on certain parts of your body, you know.”

         On cross-examination, Ms. Brown testified that she was wearing “[j]eans and a
top.” She acknowledged that Defendant did not physically touch her, nor did Defendant
put his camera down her shirt or pants. Ms. Brown posted the photos she took of
Defendant on Facebook. She acknowledged that the photos were “shared” over 8,000
times. She testified, “I did that because I wanted to just warn the ladies out there to be
careful.” Ms. Brown acknowledged that she did not know whether Defendant, in fact,
took a photo of her. She testified, “I think he took a picture of my breasts, and I think he
took a picture of my butt.” Ms. Brown testified that she would be embarrassed by
someone having taken a photo of her body. She testified, “If someone wants to glance at
it, that’s fine, don’t take a picture of it and take it home.”

       The defense introduced into evidence four photos of Ms. Brown that she had
posted on her own Facebook page. The photos depict: 1) Ms. Brown is standing in front
of a mirror with her backside reflected in the mirror, and she is wearing jeans and a shirt;
                                           -7-
2) Ms. Brown is sitting on a stool, wearing jeans and a tank top, with her back toward the
camera, and a tattoo on her shoulder is visible; 3) Ms. Brown is sitting beside a
swimming pool, wearing a bathing suit, and her cleavage is visible; and 4) Ms. Brown is
wearing a tank top, and her cleavage is visible. About the Facebook photos, Ms. Brown
testified, “I had a choice . . . whether I wanted to put [those photos] on [Facebook] or not.
Some of them might have been bad decisions, but it was my decision.” She testified that
she intended for people she knew to see the photos “for the most part,” but she
acknowledged that some photos were shared with the public.

        Melissa Bays, Ms. Brown’s sister, testified that she noticed Defendant following
them around the store. Defendant had “his phone down low, like filming us.” The
women continued to shop, and Defendant followed them “like he was fixed” on them.
Ms. Brown “got aggravated” and took a photo of Defendant, and Defendant left the store.
Ms. Bays testified that Defendant appeared to be taking photos of Ms. Brown’s breasts
when Ms. Brown was “bent down looking at things.” However, she acknowledged that
she did not see the screen of Defendant’s cell phone, and she did not know whether
Defendant actually took any photos or videos of herself or Ms. Brown. Ms. Bays
testified that she did not remember what kind of shirt Ms. Brown was wearing that day,
and she did not know whether Ms. Brown’s cleavage was visible.

      Detective Martin Taylor received a report from Ms. Brown, and he contacted
Defendant. On March 24, 2016, Detective Taylor obtained a written statement from
Defendant. A redacted version of Defendant’s statement was read to the jury. The
statement read to the jury is as follows:

        [Blank space on redacted statement admitted as evidence.] I began
        videoing women in public. I like blonde haired females but have no
        preference. Recently, I have been going to shopping centers in
        Kingsport and have filmed women in Hobby Lobby [blank space on
        redacted statement admitted as evidence.] I did not mean to scare
        anyone and only filmed the females for my own purposes. I just liked
        using the video function on my phone. It is kind of like an obsession
        with the technological aspect of the phone. I have never posted any of
        the images I have taken on the Internet or shared with other people. I
        actually did not think I was doing anything wrong because everything
        was done in a public place. However, I realize this was not a good
        decision on my part. If it was not illegal, it was definitely crossing moral
        boundaries.

        [Blank space on redacted statement admitted as evidence.] It is a LG G2
        phone with a silver case and blue sleeve underneath. [Blank space on
                                            -8-
        redacted statement admitted as evidence.] Today, I am giving Det.
        Taylor permission to examine my phone for the videos I have stored on
        the phone. There should be [blank space on redacted statement admitted
        as evidence] videos on the phone of different females I have collected
        recently. I understand the seriousness of the charges against me and
        need help with the problems I have. I am willing to undergo treatment
        [blank space on redacted statement admitted as evidence] will do what is
        necessary to get help for my problem. Again, I am very sorry for all of
        this and want the women I videoed to know I never meant any harm and
        apologize for my actions. This is a truthful statement.

       Detective Taylor searched Defendant’s cell phone but did not find any images of
Ms. Brown. Detective Taylor testified that the amount of deleted data that can be
retrieved depends on the software updates available. He testified, “sometimes you get a
partial data dump, sometimes you get a hundred percent so, it’s kind of hit or miss.
Detective Taylor reviewed Hobby Lobby surveillance video from the date of the incident
and confirmed that Defendant entered the store on that date, but the store did not provide
any video of Defendant inside the store.

       Defendant did not testify or present any other proof.

Defendant’s statement to police

       Defendant contends that the trial court erred by admitting his statement into
evidence, arguing that its admission violated Tennessee Rule of Evidence 404(b)’s
prohibition on propensity evidence. The State contends that Defendant has waived
consideration of this issue by failing to provide an adequate record on appeal.

        Defendant was charged in three separate Sullivan County cases with unlawful
photography, and the motions filed by Defendant covered all three of the cases. In his
motion in limine, Defendant moved the trial court for a hearing out of the presence of the
jury to determine the admissibility of certain evidence, including the statement he
provided to Detective Taylor and any evidence of other bad acts committed by
Defendant. The charge in case number S67,079 went to trial before the charge in this
case, and the trial court held a hearing on the admissibility of Defendant’s statement prior
to the beginning of that trial.

       During the hearing, Defendant argued that the statement violated Rule 404(b)’s
prohibition on propensity evidence, arguing that his general admission to “filming
women” was not a specific admission of the charged offenses. The State conceded that
Defendant’s statement contained admissions that “could be considered referencing prior
                                           -9-
bad acts” but argued that “they are highly relevant and probative of elements that we
would have to prove . . . including the identity of the defendant, his intent in committing
the crime.” The State contended that, because it had no video or photograph of the victim
purportedly taken by the defendant, the defendant’s admission “that he videos women in
public, that he has a preference for blonde-haired females . . . that he goes into shopping
centers in Kingsport” established his identity as the perpetrator. The State also argued
that Defendant’s admission that he took the videos because he was obsessed with the
technology available on his cellular telephone established his intent and that his
admission that his actions crossed “moral boundaries” established that he acted for the
purpose of sexual gratification as required by T.C.A. § 39-13-605.

      The trial court concluded that the evidence was admissible on the issues of intent
and motive. The court also ruled that the probative value of the statement on these issues
was not outweighed by the danger of unfair prejudice. The court ordered that the
statement be redacted and marked a copy of the statement with the necessary redactions.

        We begin by noting that Defendant’s statement does not contain any admission to
wrongdoing specific to this case. He admitted to filming women in Hobby Lobby, but
did not state a timeframe other than “recently.” He did not admit to filming Ms. Brown
in this case. Other than that, his statement contains a general admission that he had been
using his cellular telephone to videotape women in the Kingsport area. The admission of
this evidence of other bad acts by Defendant is governed by Tennessee Rule of Evidence
404(b).

       Generally speaking, “[e]vidence of a person’s character or trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Tenn. R. Evid. 404(a). To admit such evidence, the rule specifies four
prerequisites:

        (1) The court upon request must hold a hearing outside the jury’s
        presence;

        (2) The court must determine that a material issue exists other than
        conduct conforming with a character trait and must upon request state on
        the record the material issue, the ruling, and the reasons for admitting the
        evidence;

        (3) The court must find proof of the other crime, wrong, or act to be
        clear and convincing; and



                                           - 10 -
        (4) The court must exclude the evidence if its probative value is
        outweighed by the danger of unfair prejudice;

Id. When, as here, the trial court substantially complies with the procedural requirements
of Rule 404(b), this court will overturn the trial court’s ruling only when there has been
an abuse of discretion. See State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005).

        The rationale underlying the general rule is that admission of such evidence carries
with it the inherit risk of the jury’s convicting the defendant of a crime based upon his
bad character or propensity to commit a crime, rather than upon the strength of the
evidence. Thacker, 164 S.W.3d at 239. Nothing in this rule prohibits its application to
statements made by the defendant, and although evidence of other bad acts “usually does
not come in the form of statements or confessions made by the defendant, there exists no
valid reason to make an exception to the requirements [of Rule 404(b)] for prior bad act
evidence disclosed in a defendant’s confession.” Id. Despite Rule 404(b)’s general
proscription on propensity evidence, “Tennessee recognizes three instances in which
evidence of uncharged crimes may be admissible: (1) to prove identity (including motive
and common scheme or plan); (2) to prove intent; and (3) to rebut a claim of mistake or
accident if asserted as a defense.” State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996)
(citations omitted).

       As was the case in McCary, “[n]one of the exceptions are present in this case.” Id.
Defendant’s identity was not an issue because he was captured on the Hobby Lobby
surveillance video and conclusively identified by Ms. Brown, including by photographs
of Defendant taken by Ms. Brown at the Hobby Lobby. Additionally, Defendant did not
assert that he was not the man featured in the video but instead “characterized his
conduct, essentially, as non-criminal.” Id. Similarly, the statement was not admissible to
prove motive because Defendant did not make the issue of motive material. Moreover,
the statement was not admissible, as the State argued, to prove that Defendant acted for
the purpose of sexual gratification because nothing in the statement suggests that
Defendant’s conduct was motivated by a desire for sexual gratification. If anything, the
statement belies such a motivation because Defendant claimed he was compelled to make
video recordings by his obsession with the technical functions of his cellular telephone.
That Defendant, a man, admitted that he had been videotaping women, even blonde
women in particular, does not, without more, evince of a motive of sexual gratification.

       Additionally, the statement was not admissible to establish a “common scheme or
plan.” As our supreme court has recognized, this “exception, although recognized in
Tennessee, is often misunderstood” because it is, in reality, “a vehicle for admitting other
nearly identical crimes when the identity of the defendant is in issue.” Id. (citation
omitted) (emphasis added). Because identity was not a material issue in this case, there
                                           - 11 -
was no need to resort to the common scheme or plan notion as a means of supplying the
identity of the perpetrator. See id.

        Finally, Defendant did not assert either accident or mistake of fact as a defense to
the charged offense, so the admission of his statement was not necessary to rebut either
defense. Consequently, Defendant’s statement was not admissible “on any material issue
in this case. It’s character, therefore, was that of ‘propensity evidence,’” and, as a result,
it should have been excluded pursuant to Rule 404(b). McCary, 922 S.W.2d at 114; see
also id. at 515 (holding that McCary’s personal diary entries expressing romantic feelings
for several young men “constituted highly prejudicial ‘propensity’ evidence” and should
not have been admitted when they did not reference any of the victims or witnesses at
trial). Indeed, the State’s arguments in the trial court establish that the State wanted to
admit Defendant’s statement to prove that because he had videotaped other women, he
had necessarily videotaped or photographed Ms. Brown in this case. Indeed, the State
argued that Defendant’s admission to videotaping other women proved that either a
photograph or video existed in this case, despite that no video or photograph of Ms.
Brown was ever recovered. That is precisely the type of inference prohibited by Rule
404(b).

       The evidence of Defendant’s guilt was not overwhelming and was, as will be
discussed below, not sufficient to support his conviction. Given the dearth of evidence
supporting Defendant’s guilt, we are constrained to conclude that the erroneous
admission of Defendant’s statement cannot be classified as harmless. Were we not
reversing Defendant’s conviction and dismissing the charge based upon the insufficiency
of the evidence, we would reverse his conviction and remand it for a new trial based upon
the erroneous admission of his statement.

Jury instructions

Special jury instructions

       Defendant contends that the trial court erred by denying his motions for special
jury instructions. The State responds that the trial court properly instructed the jury.

       Generally, the trial court has a duty to give a correct and complete charge of the
applicable law. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The right to a
correct and complete charge is constitutional, and each issue of fact raised by the
evidence should be submitted to the jury with proper instructions. State v. Dorantes, 331
S.W.3d 370, 390 (Tenn. 2011). A trial court’s instructions “must describe and define
each element of the offense or offenses charged.” State v. Clark, 452 S.W.3d 268, 295
(Tenn. 2014).
                                            - 12 -
        Special instructions are intended “‘to supply an omission or correct a mistake
made in the general charge, to present a material question not treated in the general
charge, or to limit, extend, eliminate, or more accurately define a proposition already
submitted to the jury.’” Dorantes, 331 S.W.3d at 390 (quoting State v. Cozart, 54
S.W.3d 242, 245 (Tenn. 2001)). It is error to refuse a special instruction only when the
standard charge, read as a whole, does not fully and fairly provide the applicable law.
State v. Adams, 405 S.W.3d 641, 661 (Tenn. 2013). Jury instructions must be reviewed
in their entirety, with no phrase examined in isolation. State v. Rimmer, 250 S.W.3d 12,
31 (Tenn. 2008). The sufficiency of jury instructions is a question of law that this court
must review de novo with no presumption of correctness. Clark, 452 S.W.3d at 295
(citing State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013).

        Prior to trial, Defendant filed two motions pursuant to Rule 30 of the Tennessee
Rules of Criminal Procedure, requesting that the trial court give special jury instructions:
1) defining when an individual has a reasonable expectation of privacy, and 2) stating
that “[i]t is not illegal simply to take a photograph of someone without their permission in
a public place” and that the State must prove all of the elements of the offense.

      The unlawful photography statute was amended in 2018 to add the following
language to T.C.A. § 39-13-605(b):

        (2) As used in this section, an individual has a reasonable expectation of
        privacy, regardless of the location where a photograph is taken, if:

        (A) The photograph is taken in a manner that would offend or embarrass
        a reasonable person; and

        (B) The photograph depicts areas of the individual’s body, clothed or
        unclothed, that would not be visible to ordinary observation but for the
        offensive or embarrassing manner of photography.

T.C.A. § 39-13-605(b)(2) (2018); see also 2018 Pub. Ch. 866, § 1, 110th Gen. Assembly.

       The language added to the statute in 2018 was not contained in the version of the
statute in effect at the time of Defendant’s conduct in 2016. See T.C.A. § 39-13-605
(2014). Defendant’s special jury instruction request used the exact language from the
2018 amendment to define when an individual has a reasonable expectation of privacy.
The trial court denied Defendant’s request “because that’s not what the law was in 2016.”



                                           - 13 -
         Defendant acknowledges that the amendment was not in effect at the time of his
offense. However, Defendant contends that the amendment offers “clear guidance” about
the legislative intent of the statute, and Defendant asserts that the trial court’s denial of
his request “denied the jury the opportunity to have the law fully and fairly stated to
them.” The trial court also denied Defendant’s other request for a special jury instruction
that it is “not illegal simply to take a photograph of someone without their permission in a
public place” and instructing the jury that the State must prove all the elements of the
offense.

       We conclude that the language contained in the 2018 amendment was not
necessary to provide a correct and complete charge of the law as it existed in 2016. The
jury charge was not transcribed. The jury charge as written was made an exhibit and
provided:

             For you to find the defendant guilty of this offense, the state must
        have proven beyond a reasonable doubt the existence of the following
        essential elements:

        1.    that the defendant photographed an individual;

                     and

        2.    that the photograph would offend or embarrass an ordinary person
              if such person appeared in the photograph;

                     and

        3.    that the photograph was taken for the purpose of sexual arousal or
              gratification of the defendant;

                     and

        4.    that the photograph was made without the prior effective consent of
              the individual photographed;

                     and

        5.    that the individual in the photograph had a reasonable expectation
              of privacy;

                     and
                                           - 14 -
          6.   that the defendant acted knowingly in taking the photograph[.]

        The jury instructions also stated that “[t]he state must have proved beyond a
reasonable doubt all of the elements of the crime charged . . . .” The record shows that
the trial court gave a complete and accurate charge of the law. Defendant is not entitled
to relief on this issue.

Attempt

         Defendant also contends that the trial court erred by instructing the jury on the
offense of attempted unlawful photography without consent as a lesser included offense.
Defendant argues that without any photo or video, the jury could not determine whether
the individual had a reasonable expectation of privacy, whether the photograph would
offend or embarrass an ordinary person, or whether the photograph was taken for the
purpose of Defendant’s sexual arousal or gratification. The State argues that the evidence
at trial fairly raised the issue of the completed offense.

       Whether the trial court properly instructed the jury on a certain offense as a lesser
included offense of the charged offense is a mixed question of law and fact. State v.
Thorpe, 463 S.W.3d 851, 859 (Tenn. 2015) (citing State v. Rush, 50 S.W.3d 424, 427
(Tenn. 2001)). Accordingly, the standard of review is de novo with no presumption of
correctness. Id.

       As stated above, it is “well-settled that a defendant has a constitutional right to a
complete and correct charge of the law, so that each issue of fact raised by the evidence
will be submitted to the jury on proper instructions.” Dorantes, 331 S.W.3d at 390. This
“‘includes the right to jury instructions on each and every lesser included offense
embraced within the charged offense(s) and supported by the proof.’” Thorpe, 463
S.W.3d at 859 (quoting State v. Davis, 266 S.W.3d 896, 902 (Tenn. 2008)).

       An offense is a lesser included offense if the offense “is an attempt to commit the
offense charged or an offense that otherwise meets the definition of a lesser included
offense in subdivision (f)(1)[.]” T.C.A. § 40-18-110(f)(3). Thus, attempted unlawful
photography without consent is clearly a lesser included offense of unlawful photography
without consent, the offense charged in this case. The trial court is required to charge a
lesser included offense only when “the judge determines that the record contains any
evidence which reasonable minds could accept as to the lesser included offense.” T.C.A.
§ 40-18-110(a). In order to make this determination, the trial judge views the evidence
“in the light most favorable to the existence of the lesser included offense without making
any judgment on the credibility of such evidence.” Id. The trial judge shall also
                                           - 15 -
determine whether the evidence, viewed in this light, is legally sufficient to support a
conviction for the lesser included offense.

      Below, we conclude that the evidence was insufficient to support Defendant’s
conviction. Therefore, the issue of whether the trial court found sufficient evidence to
support a jury instruction on attempt is moot.

Sufficiency of the evidence

        Defendant argues that a rational juror could not have found him guilty beyond a
reasonable doubt of attempted unlawful photography. He asserts that the victim could
not have had any reasonable expectation of privacy in any of the locations where
photographs were allegedly taken. Also, Defendant argues that State did not present any
photographs for the jury to evaluate to determine whether the photograph would offend
or embarrass the victim and whether a photograph was taken for sexual arousal or
gratification. The State responds that the evidence was sufficient to sustain Defendant’s
conviction.

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing 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 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and the weight of the
evidence are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). This court will not reweigh the evidence. Id. Our standard of review “is the same
whether the conviction is based upon direct or circumstantial evidence.” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       At the time of Defendant’s conduct, it was an offense “for a person to knowingly
photograph, or cause to be photographed an individual, when the individual has a
reasonable expectation of privacy, without the prior effective consent of the individual” if
the photograph “[w]ould offend or embarrass an ordinary person if such person appeared
                                           - 16 -
in the photograph” and the photograph “[w]as taken for the purpose of sexual arousal or
gratification of the defendant.” T.C.A. § 39-13-605(a)(1)-(2) (2014). Under this statute,
“‘photograph’ means any photograph or photographic reproduction, still or moving, or
any videotape.” T.C.A. § 39-13-605(b). “‘Effective consent’ means assent in fact,
whether express or apparent,” and consent is not effective when “given by a person who,
by reason of . . . intoxication[ ] is known by the defendant to be unable to make
reasonable decisions regarding the subject matter[.]” Id. § 39-11-106.

        The State correctly notes that, as relevant in this case, a person commits criminal
attempt who, acting with the kind of culpability otherwise required for the offense, acts
“with intent to complete a course of action or cause a result that would constitute the
offense, under the circumstances surrounding the conduct as the person believes them to
be, and the conduct constitutes a substantial step toward the commission of the offense.”
T.C.A. § 39-12-101(a)(3). “Conduct does not constitute a substantial step under
subdivision (a)(3), unless the person’s entire course of action is corroborative of the
intent to commit the offense.” Id. § 39-12-101(b). Also, as recognized by the State, even
if certain evidence is erroneously admitted (as Defendant’s statement in this case), this
court conducts its analysis of the sufficiency of the evidence based on inclusion of that
erroneously admitted evidence. Defendant’s statement actually supports his assertion
that the evidence is insufficient to support his conviction.

       Viewed in the light most favorable to the State, the evidence established
Defendant followed Ms. Brown and her sister around the inside of Hobby Lobby, and he
held his cell phone out in a manner that led them to believe he was taking photos or video
of Ms. Brown. At all times during the encounter, Ms. Brown was fully clothed in a
public place.

       In this case, where an attempt is charged, the State was required to prove beyond a
reasonable doubt that Defendant had the specific intent to complete a course of action
that would constitute the offense. In other words, Defendant must have had the specific
intent to commit the originally charged offense of unlawful photography as defined
above. State v. Mateyko, 53 S.W.3d 666, 674 (Tenn. 2001). In his statement erroneously
admitted into evidence, Defendant mentions nothing specific about the specific incident
for which he was on trial, but he states that he did not believe he was doing anything
wrong because everything was done in a public place. He admitted taking photographs
was not a good decision, and it crossed moral boundaries even if not illegal.

       One of the elements of the offense charged in the presentment is that the victim
had a reasonable expectation of privacy. Accordingly, to be guilty, Defendant must have
had the specific intent to photograph Ms. Brown while she had a reasonable expectation
of privacy. The circumstances of this case show that no such expectation existed (as set
                                          - 17 -
forth in the other two cases involving Defendant, No. E2018-02282-CCA-R3-CD and
No. E2018-02298-CCA-R3-CD). A photographer, such as Defendant herein, would
reasonably perceive this. Thus, the evidence is insufficient to support the conviction, the
conviction is reversed, and the charge is dismissed.

                                     CONCLUSION

       Because the evidence was insufficient to sustain the conviction, the judgment of
the trial court is reversed and the charges are dismissed with prejudice. Even if the
evidence had been sufficient, the trial court erred by admitting Defendant’s statement into
evidence, and this is reversible error. If this court was not dismissing the charges,
Defendant would be entitled to a new trial.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




                                          - 18 -
