         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 6, 2004 Session

               STATE OF TENNESSEE v. JEFFREY R. DICKENS

                Direct Appeal from the Circuit Court for Rutherford County
                                No. 53261   Don Ash, Judge



                     No. M2003-00783-CCA-R3-CD - Filed April 6, 2004


Following a bench trial, the Appellant, Jeffrey R. Dickens, was convicted of criminal attempt to
commit unlawful photographing in violation of privacy as proscribed by Tennessee Code Annotated
section 39-13-605 (2003), a class B misdemeanor. He was sentenced to six months in the Rutherford
County Jail, which was suspended after service of eight days periodic confinement. On appeal,
Dickens argues that his conviction cannot stand because an attempt to commit a violation of this
section is not an indictable offense. Alternatively, he contends that the proof is insufficient to
constitute a “substantial step” toward the commission of the attempted crime. After review, the
judgment of conviction is affirmed.

                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

John H. Norton, III, The Norton Law Firm, Shelbyville, TN 37162, for the Appellant, Jeffrey R.
Dickens.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T.
Ryan, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Jennings
H. Jones, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                      Factual Background

        On June 12, 2002, the victim, Janet Fenner, went to Tans & Stuff in Murfreesboro for a
tanning session, where she was assigned to room two. The Appellant was also present at the tanning
salon, and he was assigned to room three. Rooms two and three were adjacent to one another and
shared a common wall. The victim testified that she completely undressed for her tanning session.
When she finished her session, she got out of the tanning bed and bent down to pick up her clothes.
As she was standing up to put her clothes on, she looked into the mirror and saw “that someone had
their hands over the corner of the wall taking pictures of [her].” At this point, she screamed
repeatedly, “[W]ho took that picture?” She then covered herself with a T-shirt, abruptly opened the
door, and yelled for someone to call 911. As she was standing in the hallway screaming for help,
the Appellant exited room three and said, “I saw the camera, too.” The victim accused the Appellant
of taking the picture; however, the Appellant continued walking out of the tanning salon. She then
put her clothes on, exited the salon, and observed the Appellant getting into a red Ford pickup truck
with “HRS” as the first three letters on the license plate.

        Jessica Ingle, an employee of Tans & Stuff, testified that each individual room was made to
ensure a client’s privacy. The doors to the rooms lock from the inside. Although the walls
separating the rooms did not extend all the way to the ceiling, Ingle explained, “You cannot see over
the wall. I mean, you can’t stand flat footed and hold your hands up and be over the wall. But if you
were to stand on something, you could have your hands above it.” Ingle testified that, on the evening
in question, the Appellant came into the tanning salon with a towel “hanging down over both sides
of his hands.” According to Ingle, this was “odd” because the salon provided towels for its
customers, and she never saw anyone bring their own towel. Ingle admitted that she could not see
what was underneath the towel.

       Ingle further testified that, when she went to clean room three after the Appellant left, the
tanning bed was still operating and the furniture had been moved. She explained,

       After he left the bed was still running and when I went in I turned the bed off and I
       went in to clean it. And the way the room was setup, when you walk in there is a bed
       and there is a table with a fan on it. And of course the bed was still on. The table
       was scooted against the adjoining wall to room two. And the fan was on the floor.

According to Ingle, the room was not in that condition when the Appellant entered it.

        Officer Scott Newberg of the Murfreesboro Police Department responded to the call at Tans
& Stuff. As a result of his investigation, the Appellant was developed as a suspect. A license check
of the Appellant revealed that the Appellant was the owner of a 1993 red Ford Ranger with the
license plate “HSR 782.”

        Detective Bill Herringlake was assigned to the investigation. Herringlake went to the
Appellant’s home in Shelbyville and observed the Appellant’s red Ford Ranger parked in front of
the residence. He then went to the Bedford County Sheriff’s Office and consulted with Sergeant
Chris White and Detective Chris Brown. White and Brown accompanied Herringlake back to the
Appellant’s residence. After the officers explained why they were there, the Appellant consented
to a search of his residence, but he denied having a camera. Detective Brown testified that,




                                                -2-
       during the search of [the Appellant’s] home, I did find a cable. . . . And I did
       recognize a cable in the house that connected to that style of camera. And I
       questioned him about that cable. And told him that I had a camera like that and why
       would he have a cable if he didn’t have a camera.

The Appellant then admitted that he did have a camera outside in his truck. Brown and the
Appellant walked to the truck, and the Appellant “got the camera out of the truck and . . . handed it
to” Brown. The lens to the camera was found after a search of the truck’s glove compartment. Also
recovered from the Appellant’s residence was “[t]he power pack, the charger for the camera, as well
as a cable that will connect that camera to a video end on a TV or VCR, or any other type of video
monitor.” No pictures of the victim were found in the Appellant’s camera, downloaded onto his
computer, or transferred to a videotape.

        Officer Herringlake explained that the digital camera found in the Appellant’s truck had a
movable screen, which rotated 360 degrees. Therefore, if someone held the camera above his or her
head that individual would be able to tilt the screen and view the object focused upon. Herringlake
also demonstrated for the court how a picture could easily be deleted from the camera by pressing
a button.

        A security tape was recovered from Tans & Stuff, which recorded the Appellant at the
tanning salon. The victim identified the Appellant as the man on the tape exiting room three. The
victim also identified the camera found in the Appellant’s truck, as the camera she observed over the
partition. She stated, “If you noticed the huge round part, I remember the camera that was used, the
lens almost took up most of the camera size and that’s the impression you get from that camera.”
The victim testified that, although no photograph was recovered, she would have been embarrassed
had one been taken.

        In November of 2002, a Rutherford County grand jury returned an indictment against the
Appellant, charging him with unlawful photographing in violation of privacy. Following a bench
trial on January 9, 2003, the Appellant was convicted of criminal attempt to commit unlawful
photographing in violation of privacy. A sentencing hearing was held on March 11, 2003, and the
trial court sentenced the Appellant to six months in the county jail, which was suspended after
service of eight days confinement on consecutive weekends. The Appellant was also “banned from
any and all tanning salons” during his probation period and was required to “comply with the results
of psycho-sexual exam.” This timely appeal followed.

                                            ANALYSIS

       First, the Appellant argues that “the trial court erred in denying [his] motion to dismiss” the
indictment. He contends that:

       [A]fter 1989, Tennessee Code Annotated § 39-12-101 specifically codified the
       inchoate offense of criminal attempt, however, Appellant insists that this codification


                                                 -3-
         of the offense of criminal attempt did not change the requirement that, when the
         offense attempted to be committed is a misdemeanor, it must first be determined
         whether the actual offense is one defined as mala in se or whether it is merely mala
         prohibita. In other words, if the offense attempted to be committed is one
         determined to be mala in se, the attempt is an indictable offense. On the other hand,
         the attempt to commit a misdemeanor is not indictable when the offense attempted
         is one that the law considers mala prohibita. . . .

                  ....

                 . . . [I]t is quite evident that the prohibition against unlawful photographing
         in violation of privacy is “purely” a statutory prohibition, or “an act made wrong by
         legislation.” Therefore, an attempt to violate this misdemeanor statute for which
         there was no corresponding common law offense would not constitute an indictable
         offense, and Appellant could not properly have been convicted of such an attempt.

The record before us demonstrates that the Appellant did not rely upon this argument in his pre-trial
motion to dismiss the indictment, which was filed on December 11, 2002. Because this defense was
never presented for determination in the lower court, it may not be raised for the first time on appeal.
Tenn. R. App. P. 36(a). Moreover, it appears from the record that a hearing on the motion was held
on January 3, 2003; however, the Appellant has failed to include the transcript of the hearing in the
record before this court. The obligation of preparing a complete and adequate record for the issues
presented on appeal rests upon the appealing party. Tenn. R. App. P. 24(b). For these reasons, the
Appellant’s issue is waived.1

       Alternatively, the Appellant contends that, in order to be convicted of attempted unlawful
photographing in violation of privacy, a photograph is required “so that the photograph can be
examined to determine” if the requirements of the statute are satisfied. He contends that, in the
absence of a photograph, the trial court erred in concluding that he took a “substantial step” toward
the commission of the offense.




         1
         Nonetheless, we are constrained to note that our criminal code makes no distinction between felony and
misdemeanor criminal attempt, as evidenced by Tennessee Code Annotated section 39-12-107(a) (2003). This section,
which specially references misdemeanor attempt, provides that:

         Criminal attempt is an offense one (1) classification lower than the most serious crime attempted,
         unless the offense attempted was a Class C misdemeanor, in which case the attempt would not be an
         offense.

Tenn. Code Ann. § 39-12-107(a). Moreover, the legislature has specifically stated, “It is the intent of the commission
that common law offenses be replaced with statutory offenses to effectuate the goals set forth in § 39-11-101(1) and (2).”
Tenn. Code Ann. § 39-11-102, Sentencing Commission Comments (2003). Accordingly, an individual can be convicted
of an attempted misdemeanor regardless of its classification as mala in se or mala prohibita.

                                                           -4-
       Unlawful photographing in violation of privacy is defined as:

               (a) It is an offense for a person to knowingly photograph or cause to be
       photographed an individual, when such individual is in a place where there is a
       reasonable expectation of privacy, without the prior effective consent of such
       individual, or in the case of a minor, without the prior effective consent of the minor's
       parent or guardian, if such 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.

               ....

               (d)(1) A violation of this section is a class A misdemeanor.

Tenn. Code Ann. § 39-13-605(a)(d)(1) (2003). As applicable to the instant offense, attempt is
defined as:

              A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense:

               ....

               (3) 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.




                                                 -5-
Tenn. Code Ann. § 39-12-101(a) (2003).2 This statute further provides, “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.” Tenn. Code Ann. § 39-12-101(b). The evidence in this case
supports each of these elements beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

       On the evening in question, the Appellant came into the salon with a towel draped over his
hand. The Appellant and the victim were assigned to adjoining rooms, which shared a common wall.
As the victim was picking up her clothes, she saw a camera over the wall. The victim exited the


        2
          W ithin his sufficiency argument, the Appellant examines all three types of criminal attempt. However, only
Tennessee Code Annotated section 39-12-101(a)(3) is applicable to the present offense. In this regard, the following
is provided for instructional purposes.

         [I]t must be recognized that our criminal code has established three distinct types of criminal attempts:

                  (1) Intentionally engaging in action or causing a result that would constitute an
                  offense if the circumstances surrounding the conduct were as the person believes
                  them to be. Tenn. Code Ann. § 39-12-101(a)(1). This type of attempt is designed
                  to reject the defense of impossibility. Examples include receiving stolen property
                  that was not, in fact, stolen, attempt to steal from an empty house or empty pocket,
                  offering a bribe to a person believed to be a juror who is not, etc.

                  2) Acts with intent to cause a result that is an element of the offense, and believes
                  the conduct will cause the result without further conduct on the person's part. Tenn.
                  Code Ann. § 39-12-101(a)(2). This is the most common type of attempt. Examples
                  would include the intentional or knowing shooting of a victim not resulting in death,
                  an unsuccessful rape, robbery, etc. Both types (1) and (2) deal with situations
                  where the actor has done all he intends to do, but where the crime nevertheless has
                  not been committed. [Types (1) and (2) are often referred to as the “last proximate
                  act.”]

                  (3) 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. Type three attempts involve those situations where the
                  actor has taken a "substantial step" in preparing and planning the commission of the
                  offense, yet has not done all that he intends to do. The problem is to distinguish
                  between acts of [preparation] (which may not be criminal) and a criminal attempt.
                  In this instance, criminal liability depends upon the actor having taken a "substantial
                  step" in a corroborated course of conduct planned to culminate in the commission
                  of a crime. Tenn. Code Ann. § 39-12-101(a)(3), (b); see also M O D EL P EN AL C O D E §
                  5.01 (1985). Examples would include reconnoitering the place for the commission
                  of the crime, the possession of materials to be employed in the commission of the
                  crime that are specifically designated for such unlawful use or that can serve no
                  lawful purpose of the actor under the circumstances, and lying in wait for the
                  contemplated victim of the crime.

State v. Elder, 982 S.W.2d 871, 875 n.2 (Tenn. Crim. App. 1998).

                                                           -6-
room, and the Appellant likewise exited his room. At trial, the victim identified the camera found
in the Appellant’s truck, as the one she saw over the wall. Jessica Ingle, a Tans & Stuff employee,
testified that each tanning room is designed to ensure privacy. The doors lock from the inside and,
although the walls do not extend all the way to the ceiling, it would be difficult to see over them
without standing on something. When Ingle went into the room which was occupied by the
Appellant, the tanning bed was still operating and the furniture had been moved. Although no
photograph was recovered, the victim testified that she would have embarrassed had one been taken.
Furthermore, it can be inferred that taking pictures of an unclothed individual was for the purpose
of sexual arousal or gratification. Accordingly, we conclude that a photograph is not required to
support a conviction for attempted unlawful photographing in violation of privacy. The evidence
is sufficient to support a finding that the Appellant’s course of action constituted a “substantial step”
toward the commission of the offense. The Appellant is not entitled to relief.

                                           CONCLUSION

       Based upon the foregoing reasons, we conclude that the Appellant’s issues are without merit.
The Appellant’s actions constitute a “substantial step” toward the commission of the crime.
Therefore, we affirm his conviction for attempted unlawful photographing in violation of privacy.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




                                                  -7-
