                                                                                        05/23/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             November 14, 2017 Session

 RONALD MILLER v. MARK GYWN, DIRECTOR OF THE TENNESSEE
               BUREAU OF INVESTIGATION

                Appeal from the Chancery Court for Sullivan County
                   No. 15-CV-18092     E.G. Moody, Chancellor


                            No. E2017-00784-COA-R3-CV


In 2001, Ronald Miller was convicted, in Maryland, of sexually molesting his eleven-
year-old niece. When he moved to Tennessee in 2007, he registered with the sex
offender registry (SOR).       The Tennessee Bureau of Investigation subsequently
reclassified him several times. In 2013, the TBI granted Miller’s request to be removed
from the SOR. However, in 2014, the General Assembly amended Tenn. Code Ann. §
40-39-207 (2014 & Supp.2017), to require lifetime registration for an offender whose
victim was twelve years old or younger. The TBI reinstated Miller on the SOR pursuant
to this amendment. Miller appealed to the trial court under the Uniform Administrative
Procedures Act, Tenn. Code Ann. § 4-5-322 (2015 & Supp.2017). The trial court
reversed the TBI’s decision, holding that “TBI is bound by the face of the [Maryland]
conviction offense, and since no provision of the offense involves a crime against a child
ages twelve (12) years or less, the Petitioner does not have to comply with the lifetime
registry requirements.” The Maryland statute at the time of the offense provided that “a
person may not engage in . . . sexual contact with another without the consent of the
other.” We hold that the TBI demonstrated that Miller was convicted of this offense, and
that his victim was eleven years old at the time of the offense. Based on our review of
the record, we hold that the TBI’s decision was neither arbitrary nor capricious or
unsupported by substantial and material evidence. We reverse the trial court’s judgment
and hold that Miller must be registered on the SOR for life.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Reversed; Case Remanded


CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., joined. THOMAS R. FRIERSON, II, J., not participating.
                                            1
Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Brooke K. Schiferle, Assistant Attorney General, Nashville, Tennessee, for
the appellant, Mark Gywn, Director of the Tennessee Bureau of Investigation.

Carl Roberts, Jr., Elizabethton, Tennessee, for the appellee, Ronald Miller.


                                                     I.

       In September of 2000, Miller was accused of sexually molesting his niece in an
incident that occurred in July of 1998. According to the sworn application for statement
of charges filed in Anne Arundel County, Maryland, Miller lifted up her shirt, sucked on
her breasts, and inserted his finger in her vagina. He told her not to tell anyone or he
would hurt her. He was indicted on four counts, the last of which was Fourth Degree
Sexual Offense. Miller entered an Alford plea1 on this count, resulting in his conviction
on March 20, 2001. In July 1998, the victim was eleven years old.

        Miller moved to Tennessee in 2007 and registered with the SOR. He was initially
classified as a violent sexual offender, a designation that would have required him to
remain on the SOR for life. On August 7, 2009, the TBI sent Miller a letter stating, in
pertinent part, as follows:

                 Your initial classification as a “violent” offender occurred
                 because your victim was eleven years old. In Tennessee, the
                 definition of a child is one under the age of thirteen. An
                 offense against a child is generally considered “violent.”
                 However, based on research on old Maryland laws and recent
       1
           The Tennessee Supreme Court has explained an Alford plea as follows:

                 Although uncommon, criminal defendants also may plead guilty while
                 maintaining that they did not commit the crime charged. Such pleas are
                 often referred to as “Alford pleas” based on the United States Supreme
                 Court case, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
                 L.Ed.2d 162 (1970). In Alford, our nation’s high court held that a
                 defendant who professed his innocence could nonetheless enter a
                 constitutionally valid guilty plea when the defendant “intelligently
                 concludes that his interests require entry of a guilty plea.” Id. at 37, 91
                 S.Ct. 160. Our Rules of Criminal Procedure refer to such pleas as “nolo
                 contendere” pleas. Tenn. R. Crim. P. 11(a)(2); see also State v. Crowe,
                 168 S.W.3d 731, 743 (Tenn. 2005).

Frazier v. State, 495 S.W.3d 246, 250 n.1 (Tenn. 2016).
                                                   2
                discussions with the State Attorney General’s office, it
                appears that the elements of your crime indicate that the
                offense must occur against an older minor, which takes your
                crime out of the “violent” classification. In determining
                classification, we are bound not by the actual age of the
                victim, but by the age of the victim as defined in the elements
                of the crime (if age is defined).

                Since age is defined in your crime and it does not fit the
                criteria of being under the age of thirteen, TBI will change
                your classification to “sexual” and you will, at the appropriate
                time, be eligible for removal from the Registry.

The TBI’s determination in this letter that “the elements of your crime indicate that the
offense must occur against an older minor” was, as we will explain later in this opinion,
an erroneous interpretation of the Maryland statute defining Fourth Degree Sexual
Offense.

      Later, Miller applied for his removal from the SOR, which the TBI granted on July
17, 2013. However, effective July 1, 2014, the legislature amended Tenn. Code Ann. §
40-39-207(g)(1) to provide that:

                An offender required to register under this part shall continue
                to comply with the registration, verification and tracking
                requirements for the life of that offender, if that offender:

                                        *       *        *

                (C) Has been convicted of an offense in which the victim was
                a child of twelve (12) years of age or less.

       The TBI, applying this new statutory section, notified Miller on September 25,
2014, that it was reinstating him on the SOR.2 He appealed this decision to the trial court
under the provisions of the TUAPA, Tenn. Code Ann. § 4-5-322. The trial court reversed
the TBI’s decision, ruling as follows in pertinent part:


        2
          The Supreme Court has observed that the Tennessee sexual offender registration act “evinces a
clear intent that the registration requirements be applied retroactively to any sexual offender.” State v.
Ward, 315 S.W.3d 461, 468 (Tenn. 2010); accord Livingston v. State, No. M2009-01900-COA-R3-CV,
2010 WL 3928634, at *2 (Tenn. Ct. App., filed Oct. 6, 2010). On this appeal, Miller does not raise any
issue regarding the statute’s retroactive application to him.
                                                       3
             In July of 1998, the victim was eleven (11) years old; she was
             thirteen (13) years old at the time she gave her statement to
             police and she was fourteen (14) years old when the
             Petitioner was convicted.

                                  *      *          *

             The TBI incorrectly denied the Petitioner’s request to be
             removed from the registry.

             Maryland’s fourth degree sex offense only pertains to victims
             who are fourteen (14) or fifteen (15) years of age.

             Since there is no evidence to corroborate the victim’s
             statement that she was eleven (11) years old at time of the
             offense, TBI cannot use the victim’s statement to specify
             under which provision that the Petitioner plead.

             TBI is bound by the face of the conviction offense, and since
             no provision of the offense involves a crime against a child
             ages twelve (12) years or less, the Petitioner does not have to
             comply with the lifetime registry requirements.

(Paragraph numbering in original omitted.) The TBI timely filed a notice of appeal.

                                             II.

       The TBI raises the issue of whether the trial court erred by reversing its decision
that Miller must be registered on the SOR for life because he was “convicted of an
offense in which the victim was a child of twelve . . . years of age or less,” under Tenn.
Code Ann. § 40-39-207(g)(1)(C).

                                             III.

      The Supreme Court has provided the following guidance regarding the standard of
review of an administrative agency’s decision under the TUAPA:

             The Uniform Administrative Procedures Act (“the Act”),
             Tenn. Code Ann. §§ 4–5–101 to –404 (2011), sets forth the
             extent of judicial authority to review agency decisions.

                                              4
                    *      *       *

The reviewing court’s standard of review is narrow and
deferential. Wayne Cnty. v. Tenn. Solid Waste Disposal
Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988).
The decision of the agency may be reversed or modified if the
decision is shown to be:

      (1) In violation of constitutional or statutory
      provisions;

      (2) In excess of the statutory authority of the
      agency;

      (3) Made upon unlawful procedure;

      (4) Arbitrary or capricious or characterized by
      abuse of discretion or clearly unwarranted
      exercise of discretion; or

      (5)(A) Unsupported by evidence that is both
      substantial and material in the light of the entire
      record.

      (B) In determining the substantiality of
      evidence, the court shall take into account
      whatever in the record fairly detracts from its
      weight, but the court shall not substitute its
      judgment for that of the agency as to the weight
      of the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h).

This narrow standard of review, as opposed to the broader
standard of review applied in other appeals, reflects the
general principle that courts should defer to decisions of
administrative agencies when they are acting within their area
of specialized knowledge, experience, and expertise. Courts
do not review questions of fact de novo and, therefore, do not
second-guess the agency as to the weight of the evidence.

                               5
             This is true even if the evidence could support a different
             result.

             The Act makes clear that a reviewing court shall not
             substitute its judgment for that of the agency as to the weight
             of the evidence on questions of fact. Tenn. Code Ann. § 4–5–
             322(h)(5)(B). An appellate court applies the same limited
             standard of review as the trial court.

StarLink Logistics, Inc. v. ACC, LLC, 494 S.W.3d 659, 668-69 (Tenn. 2016) (internal
citations omitted).

                                           IV.

      Tenn. Code Ann. § 40-39-202(1) provides, in pertinent part, as follows:

             A conviction, whether upon a plea of guilty, a plea of nolo
             contendere or a finding of guilt by a jury or the court for an
             offense committed in another jurisdiction that would be
             classified as a sexual offense or a violent sexual offense if
             committed in this state shall be considered a conviction for
             the purposes of this part.

TBI filed the affidavit of its general counsel, Jeanne Broadwell, who stated that “[i]t is
TBI’s obligation to classify convictions from other jurisdictions for purposes of
Tennessee Sexual Offender Registration.” See also Livingston, 2010 WL 3928634, at
*1, *3.

       At the time of Miller’s conviction, the Maryland statute defined “sexual offense in
the fourth degree” as follows in pertinent part:

             (b) Prohibited ‒ A person may not engage in:

             (1) sexual contact with another without the consent of the
             other;

             (2) except as provided in § 3-307(a)(4) of this subtitle, a
             sexual act with another if the victim is 14 or 15 years old, and
             the person performing the sexual act is at least 4 years older
             than the victim; or

                                            6
             (3) except as provided in § 3-307(a)(5) of this subtitle,
             vaginal intercourse with another if the victim is 14 or 15 years
             old, and the person performing the act is at least 4 years older
             than the victim.

Maryland Code, Criminal Law Article, § 3-308 (2001) (the word “prohibited” italicized
in original; other italics added). The TBI’s examination of this statute, and its
conclusions, were explained by Ms. Broadwell as follows:

             Based on my review of the relevant Maryland statute . . . it is
             clear that each subsection of the statute contains a crime with
             different elements.

             In such a case, TBI is obligated to look beyond the face of the
             conviction to determine what crime the offender was
             convicted of, in order to compare the correct elements against
             the elements of sexual offenses in Tennessee.

             Based on my review of the indictment, and affidavits
             contained in Mr. Miller’s criminal file which were provided
             to TBI by the state of Maryland, the victim was eleven years
             old at the time of the crime.

             To confirm, TBI requested further information from the
             Ann[e] Arundel Police Department and received a letter
             containing the victim’s date of birth.

             The date of birth, 11/18/1986, confirmed that the victim was
             age eleven at the time of the criminal act.

             Two of the subsections in the statute of which Mr. Miller was
             convicted require, as an element of the crime, that the victim
             be 14 or 15 years old at the time of the offense, which is not
             supported by the facts of the case and would in fact be in
             opposition to the facts.

             Only one of the subsections in the statute of which Mr. Miller
             was convicted lacks an age requirement, and criminalizes the
             following conduct: “A person is guilty of a sexual offense in
             the fourth degree if the person engages (1) in sexual contact

                                            7
              with another person against the will and without the consent
              of the other person.”

              Based on a review of the above described documents and
              statutes, TBI determined that the act for which Mr. Miller was
              convicted was sexual contact with his eleven-year old niece,
              against her will and without her consent.

              In assessing this case, TBI has found that the Tennessee
              statute most closely analogous to that subsection, is Sexual
              Battery, found in Tenn. Code Ann. § 39-13-505.

                                   *      *       *

              A Sexual Battery conviction pursuant to Tenn. Code Ann. §
              39-13-505 is classified as a sexual offense pursuant to TCA §
              40-39-202(20)(A)(i). Likewise, the conviction under an
              analogous statute from another jurisdiction is similarly
              classified as a sexual offense pursuant to TCA § 40-39-
              202(1).

(Internal citation and numbering in original omitted.)

       As can be seen from a review of the language of the Maryland statute, the trial
court’s statement that “no provision of the offense involves a crime against a child age[]
twelve (12) years or less” is clearly erroneous. The trial court’s finding that “Maryland’s
fourth degree sex offense only pertains to victims who are fourteen (14) or fifteen (15)
years of age” is also incorrect. The statute prohibits, among other things, “sexual contact
with another without the consent of the other,” without a specified age element. The trial
court found that the victim was eleven years old in July of 1998. Miller does not
challenge that finding, nor does he dispute that the victim’s birthday is November 18,
1986. He argues that the TBI did not establish that his crime occurred in July of 1998.

        This Court addressed a similar situation in Livingston, 2010 WL 3928634,
wherein a petitioner appealed his classification as a violent sexual offender stemming
from his conviction of the offense of sexual misconduct in New York. Id. at *1. We
stated:

              When an offense committed in another jurisdiction is not
              identified as a sexual offense in this state, we must look to the
              elements of the offense to determine its classification in
                                              8
             Tennessee. See Tenn. Code Ann. § 40-39-207(g)(2) (using an
             “elements” test to determine whether a prior conviction
             qualifies as a sexual offense).

                                  *      *       *

             In classifying Appellant as a violent sexual offender, the TBI
             “reviewed the police report supplied by law enforcement
             officials in Onondaga County, New York to determine the
             nature and circumstances of [Appellant’s] conviction.”
             Appellant charges this as error, claiming that the TBI should
             look only to the elements of the convicted crime to determine
             whether the conviction qualifies as a sexual offense or a
             violent sexual offense in Tennessee. Because the crime for
             which Appellant was convicted can be committed in a number
             of ways, two qualifying as a sexual offense in Tennessee and
             the other not, the TBI had no choice but to review evidence
             regarding the factual basis underlying his conviction to
             determine the elements of the convicted offense.

Id. at *3 (emphasis added; brackets in original). The Livingston Court, approving the
TBI’s examination of Livingston’s “voluntary affidavit” in which “he confessed to sexual
contact with his female victim while she was between the ages of eleven and fifteen,”
affirmed the TBI’s classification of him as a violent sexual offender. Id. at *4.

        Examining the “evidence regarding the factual basis underlying his conviction,”
id., and bearing in mind the “narrow and deferential” standard of review applicable to the
TBI’s decision, StarLink Logistics, 494 S.W.3d at 668, we find that the TBI’s decision
was not arbitrary or capricious, nor unsupported by substantial and material evidence. As
noted, Miller does not dispute that his victim was eleven years old in July of 1998. The
sworn application for statement of charges filed to initiate the Maryland criminal case
indicates that “the victim was eleven years old at the time of the incident.” Miller
himself filled out numerous sworn statements in his Tennessee Sexual Offender tracking
forms, in which he declared, under penalty of perjury, that his victim was eleven years
old. His sworn statements further indicate that the date of the offense was July 31, 1998.

       Moreover, the Maryland criminal hearing sheet recording Miller’s conviction
indicates that he entered an Alford plea to “count #4” of the indictment. The indictment
alleges that Miller “committed the following offenses on or about July 1, 1998, through
July 31, 1998,” the fourth count of which was the charge of fourth degree sexual offense.
(Emphasis added.) Therefore, Miller knew from the indictment that he was being
                                             9
charged with crimes committed in July of 1998, and voluntarily chose to enter his Alford
plea, resulting in conviction. Under Tenn. Code Ann. § 40-39-207(g)(1)(C), the TBI
correctly reinstated Miller on the SOR for life, because he was “convicted of an offense
in which the victim was a child of twelve . . . years of age or less.”

                                           V.

       The judgment of the trial court is reversed. The TBI’s decision to re-enroll Miller
on the sex offender registry is reinstated. Costs on appeal are assessed to the appellee,
Ronald Miller.


                                         _______________________________
                                         CHARLES D. SUSANO, JR., JUDGE




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