                                                                                                           02/27/2020
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs December 3, 2019

                STATE OF TENNESSEE v. RANDALL RAY WARD

                     Appeal from the Circuit Court for Madison County
                            No. 17-495 Donald H. Allen, Judge
                         ___________________________________

                                No. W2019-00345-CCA-R3-CD
                            ___________________________________


A Madison County jury convicted the defendant, Randall Ray Ward, of two counts of
promoting prostitution and one count of trafficking a person for a commercial sex act.
Following a sentencing hearing, the trial court imposed an effective sentence of twenty
years in confinement. On appeal, the defendant challenges the sufficiency of the
evidence to support his convictions. He also argues the trial court erred in failing to
merge the convictions regarding S.C.1 and in failing to give the jury an instruction on
accomplice testimony. After reviewing the record and considering the applicable law, we
affirm the defendant’s convictions but remand for merger of Counts three and four.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
                                  and Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and ROBERT H. MONTGOMERY, JR., JJ., joined.

George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public
Defender, for the appellant, Randall Ray Ward.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                               OPINION

                                   Facts and Procedural History
        1
          It is the policy of this Court to refer to victims of sexual crimes by their initials. We intend no
disrespect.
        A Madison County grand jury indicted the defendant, Randall Ray Ward, for two
counts of trafficking a person for a commercial sex act (Counts one and three) and two
counts of promoting prostitution (Counts two and four). Following a jury trial, the
defendant was convicted of one count of trafficking a person for a commercial sex act
(Count three) and two counts of promoting prostitution (Counts two and four). The
defendant was acquitted on Count one. At trial, the State presented the following facts
for the jury’s review.

      T.G. testified she was a heroin addict for twenty years, and, to support her habit,
she began engaging in acts of prostitution. Initially, she worked for a man named Chew.
However, after a physical altercation, T.G. wanted more protection. The defendant
approached her and promised to take care of her if she worked as a prostitute for him.

       S.C. testified she met the defendant shortly after moving to Jackson. Like T.G.,
S.C. was addicted to heroin and moved to Jackson for easier access to drugs. While in
Jackson, S.C.’s friend posted an ad for her on Backpage, a website containing
advertisements for commercial sex services. Three days after her ad was posted, the
defendant contacted S.C. and asked her to work for him. The defendant promised S.C.
she would “never have to be dope sick” again. S.C. explained “dope sick[ness]” occurs
when your body goes through heroin withdrawal.

       To procure clients for T.G. and S.C., the defendant took “almost nude”
photographs of them posing suggestively. T.G. and S.C., who went by the names
“Barbie” and “Peaches,” respectively, posed both alone and together. Although only the
defendant took T.G.’s pictures, S.C. testified both the defendant and T.G. took pictures of
her. The defendant then edited the pictures and used them in advertisements he posted on
Backpage. The advertisements listed T.G. and S.C.’s location as Jackson and provided
their cell phone numbers for potential clients to contact. Neither T.G. nor S.C. had the
password to the defendant’s Backpage account and had no control over the content of the
advertisements or how long they stayed on the website.

       While working for the defendant, T.G. acted as his “bottom.” She explained that
this meant she was the defendant’s “right[-]hand man.” As a “bottom,” T.G. had access
to better quality drugs, slept in her own room, and recruited women to work in the
defendant’s “stables.” Additionally, if the defendant were not present, T.G. was in
charge of the other women.

      T.G. and S.C. testified the defendant was both physically and mentally abusive.
The defendant kept all of the money they earned, and, if he believed they were not seeing
enough clients, he would withhold drugs until they earned more money. T.G. estimated
                                           -2-
she saw eight to fifteen clients each day and charged $200 per hour. Although the clients
paid T.G. and S.C. directly, all of the money they earned went to the defendant
immediately after the client left. In addition, the defendant controlled where T.G. and
S.C. slept, when they ate, and what they wore. The defendant also kept both T.G. and
S.C.’s identification in his wallet, only relinquishing them when they were needed to rent
a hotel room. However, after the room was paid for, the defendant immediately regained
control of the ID.

       If T.G. refused to perform a sexual act with a client, the defendant would threaten
her, asking why she was “going to make [him] kill [her].” The defendant also threatened
to abandon T.G. with “just the shirt on [her] back.” Although she wanted to leave, T.G.’s
drug addiction acted like “invisible handcuffs,” preventing her from escaping the
defendant’s grasp. However, shortly before the defendant’s arrest, T.G. attempted to
escape while the defendant was asleep. As she was running from the hotel, the defendant
chased her, pulled her hair, and “threw [her] around.”

       S.C. testified she was not forced to see particular clients as long as she “made up
the money . . . another way.” When asked if she were able to come and go as she
pleased, S.C. stated she “never really tested that theory” because she was afraid of what
the defendant would do to her. Once, the defendant was physically violent with S.C. to
“prove . . . he was in control.” Another time, S.C. saw the defendant hit T.G., resulting in
a “big knot on her head” and bruises.

        On June 14, 2017, T.G., S.C., the defendant, and another woman travelled from
Jackson to Memphis to meet clients. After checking into a hotel, S.C. and the other
woman overdosed on heroin. Although S.C. recovered from her overdose, T.G. took the
other woman to the hospital. Officers from the Bartlett Police Department arrived at the
hospital to investigate the overdose, and T.G. was taken into custody. However, T.G. did
not initially disclose her relationship with the defendant because she was only concerned
with “getting that next lick of dope.” Likewise, when initially questioned, S.C. did not
reveal her connection with the defendant. However, after she was arrested in Madison
County two weeks later, S.C. spoke to Special Agent Chris Carpenter with the Tennessee
Bureau of Investigation and disclosed that she was working as a prostitute for the
defendant.

       On cross-examination, T.G. acknowledged having perks as a result of being the
defendant’s “bottom,” including additional freedom and her own cell phone, and she
agreed she never reached out to family or friends for help. T.G. also acknowledged she
sometimes used physical violence or threats to control the other women when the
defendant was not present. Although she was initially charged with the same offenses as
the defendant, the charges were dropped after she agreed to cooperate with police.
                                           -3-
        On cross-examination, S.C. agreed she did not reveal that the defendant was
physically violent until the second time she spoke with Special Agent Carpenter and
acknowledged she was allowed to attend rehab shortly after giving the police her
statement. S.C. also agreed she was allowed to get food without the defendant but
testified T.G. was always with her if the defendant was not present.

       Detective Mike Christian with the Bartlett Police Department responded to a
report of an overdose at a local hospital on June 14, 2017. After speaking with T.G.,
Detective Christian obtained a search warrant for the defendant’s hotel room and
instructed fellow detectives to arrest the defendant. Detective Christian searched the
defendant’s hotel room, finding a number of cell phones, a laptop computer, and various
documents. Following the defendant’s arrest, Detective Christian seized the defendant’s
wallet and a Samsung Galaxy cellphone. In the defendant’s wallet, Detective Christian
discovered S.C.’s state-issued ID and a handwritten note which read “I, [S.G.], give my
human rights up to my daddy, T-Bone, for the rest of forever as long as we continue
showing our mutual respect forever.” S.C. admitted writing the note but testified it was
as a joke. She stated the note was a gift for the defendant because she wanted to do
“something nice for him.”

       Lieutenant Jerry Springer with the Bartlett Police Department conducted an
examination of the Samsung Galaxy cell phone found on the defendant at the time of his
arrest. During the examination, Lieutenant Springer extracted videos, photographs, text
messages, and phone logs. In particular, the phone contained scantily clad pictures of
T.G. and S.C. with the names “Barbie” and “Peaches” superimposed on them. Lieutenant
Springer also recovered several photographs of the defendant with T.G. and S.C..

       The defendant declined to present evidence. Following deliberations, the jury
found the defendant guilty of promoting prostitution with regard to his actions against
T.G. (Count two) and trafficking a person for a commercial sex act and promoting
prostitution with regard to his actions against S.C. (Counts three and four). The
defendant was found not guilty of trafficking a person for a commercial sex act with
regards to T.G. (Count one). Following a sentencing hearing, the trial court imposed an
effective sentence of twenty years.

       The defendant filed a timely motion for new trial in which he argued, in part, the
evidence at trial was insufficient to support the jury’s verdict and the trial court erred in
refusing to give an accomplice jury instruction and in refusing to merge Counts three and
four. The trial court denied the motion, and this timely appeal followed.

                                         Analysis
                                            -4-
        On appeal, the defendant argues the evidence at trial is insufficient to support his
convictions. The defendant also argues the trial court erred in refusing to merge his
convictions for promoting prostitution and trafficking a person for a commercial sex act
relating to S.C. and refusing to give a jury instruction on accomplice testimony. The
State contends the evidence is sufficient to sustain the defendant’s convictions and the
trial court properly refused the accomplice instruction and merger.

I.     Sufficiency

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court 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); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the following rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus, the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere, and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A.     Trafficking a Person for a Commercial Sex Act

                                             -5-
       The jury convicted the defendant of trafficking a person for a commercial sex act
with regards to his actions against S.C.. As charged in this case, trafficking a person for a
commercial sex act occurs when a person “[k]nowingly subjects, attempts to subject,
benefits from, or attempts to benefit from another person’s provision of a commercial sex
act” or “[r]ecruits, entices, harbors, transports, provides, purchases, or obtains by any
other means, another person for the purpose of providing a commercial sex act.” Tenn.
Code Ann. § 39-13-309(a)(1)-(2). For the purposes of subsection (a)(2), other means
may include:

       (1) Causing or threatening to cause physical harm to the person;

       (2) Physically restraining or threatening to physically restrain the person;

       (3) Abusing or threatening to abuse the law or legal process;

       (4) Knowingly destroying, concealing, removing, confiscating or
       possessing any actual or purported passport or other immigration document,
       or any other actual or purported government identification document, of the
       person;

       (5) Using blackmail or using or threatening to cause financial harm for the
       purpose of exercising financial control over the person; or

       (6) Facilitating or controlling a person’s access to a controlled substance.

Id. § 39-13-309(3). A commercial sex act is “[a]ny sexually explicit conduct for which
anything of value is directly or indirectly given, promised to or received by any person,
which conduct is induced or obtained by coercion” or “[a]ny sexually explicit conduct
that is performed or provided by any person, which conduct is induced or obtained by
coercion.” Id. § 39-13-301(4)(A)-(B). Coercion includes “[c]ausing or threatening to
cause bodily harm to any person, physically restraining or confining any person or
threatening to physically restrain or confine any person;” “[d]estroying, concealing,
removing, confiscating, or possessing any actual or purported passport or other
immigration document, or any other actual or purported government identification
document, of any person;” or “providing a controlled substance . . . to a person.” Id. §
39-13-301(3)(A), (C), (D).

       The defendant contends the evidence is insufficient because the “only proof
alleging [the defendant] trafficked S.C. came from the testimony of her and T.G..” The
defendant asserts the introduction of hotel receipts and copies of Backpage
advertisements does not establish the defendant “compelled or forced” S.C. to engage in
                                            -6-
commercial sex acts. At most, the defendant concedes the State showed he assisted S.C.
with her prostitution “activities.”

       Viewed in the light most favorable to the State, S.C. testified she began working
for the defendant three days after her first posting on Backpage. The defendant and T.G.
took suggestive photographs of S.C., and the defendant posted the pictures in an
advertisement for sexual services on Backpage. While working for the defendant, S.C.
was required to give the defendant all of the money she made working as a prostitute.
Additionally, the defendant controlled where S.C. lived, what she ate, and what clothes
she wore. The defendant also confiscated S.C.’s identification, only allowing her access
to it when she rented hotel rooms for him. S.C.’s identification was in the defendant’s
possession at the time of his arrest. While with the defendant, S.C. was addicted to
heroin, and, if the defendant believed she was not earning enough money, he withheld
drugs until she saw more clients. S.C. also testified the defendant used physical violence
to exert control over her. Based on this testimony, a rational jury could find the
defendant guilty of trafficking a person for a commercial sex act beyond a reasonable
doubt. The defendant is not entitled to relief on this issue.

B.    Promoting Prostitution

       The jury also convicted the defendant of two counts of promoting prostitution. As
charged in this case, promoting prostitution is defined as “[e]ncouraging, inducing, or
otherwise purposely causing another to become a prostitute.” Tenn. Code Ann. §§ 39-13-
512(4)(A)(iii); -515(a)(1). Prostitution includes “engaging in, or offering to engage in,
sexual activity as a business[.]” Id. § 39-13-512(6). The defendant argues he cannot be
guilty of promoting prostitution because both S.C. and T.G. engaged in prostitution prior
to meeting him.

       The evidence, considered in the light most favorable to the State, showed the
defendant, at different times, approached T.G. and S.C., offering to protect them and
provide them with drugs if they worked for him as prostitutes. The defendant took
suggestive photographs of S.C. and T.G., edited them, and posted them in advertisements
for sexual services using his Backpage account. Although the prostitution took place in
hotel rooms rented in either T.G. or S.C.’s name, the defendant provided cash to pay for
the rooms and chose where they stayed. Furthermore, the money made by T.G. and S.C.
while working as prostitutes was given directly to the defendant. Based on this evidence,
a rational jury could find the defendant guilty of promoting prostitution beyond a
reasonable doubt. The defendant is not entitled to relief on this issue.

II.   Failure to Merge Convictions

                                          -7-
        The defendant argues the trial court erred in failing to merge his convictions for
trafficking a person for a commercial sex act and promoting prostitution regarding S.C..
Specifically, the defendant contends the prohibition against double jeopardy requires that
the two convictions be merged. While the defendant concedes the two offenses have
different elements, he states “the proof at trial essentially was that [the defendant]
recruited [S.C.] [to] work for him as a prostitute.”

        Both the federal and state constitutions protect an accused from being “twice put
in jeopardy of life or limb” for “the same offense.” U.S. Const. Amend. V; Tenn. Const.
art. 1, sec. 10. The Double Jeopardy Clause provides three distinct protections: (1)
protection against a second prosecution for the same offense after acquittal; (2) protection
against a second prosecution for the same offense after conviction; and (3) protection
against multiple punishments for the same offense. State v. Watkins, 362 S.W.3d 530,
541 (Tenn. 2012). A claim that multiple convictions violate the protection against double
jeopardy is a mixed question of law and fact, which this Court will review de novo
without any presumption of correctness. State v. Smith, 436 S.W.3d 751, 766 (Tenn.
2014) (citing State v. Thompson, 285 S.W. 3d 840, 846 (Tenn. 2009)).

       The Tennessee Supreme Court has divided single prosecution, multiple
punishment claims into two categories: (1) unit-of-prosecution claims, “when a defendant
who has been convicted of multiple violations of the same statute asserts that the multiple
convictions are for the same offense,” and (2) multiple description claims, “when a
defendant who has been convicted of multiple criminal offenses under different statutes
alleges that the statutes punish the same offense.” Id. (citing Watkins, 362 S.W.3d at
543-44). Here, the defendant is making a multiple description claim. To address a
multiple description claim, we must apply the two-pronged test articulated in
Blockburger v. United States, 284 U.S. 299, 304 (1932).

       In a Blockburger analysis, our primary focus is whether the General
       Assembly expressed an intent to permit or preclude multiple punishments.
       If either intent has been expressed, no further analysis is required. When
       the legislative intent is unclear, however, we must apply the “same
       elements test” from Blockburger. Under this test, the first step is to
       determine whether the convictions arise from the same act or transaction.
       The second step is to determine whether the elements of the offenses are the
       same. If each offense contains an element that the other offense does not,
       the statutes do not violate double jeopardy.




                                           -8-
Smith, 436 S.W.3d at 767 (internal citations omitted).2

       In the present case, the defendant’s single objective was to benefit from S.C.’s
continued work as a prostitute; thus his acts constituted a continuing course of conduct
and arose out of the same act or transaction. Therefore, the first prong of the Blockburger
test has been met, and we will focus our analysis on the second prong of the Blockburger
analysis.

       The defendant was convicted of both promoting prostitution and trafficking a
person for a commercial act in regards to his actions against S.C.. As charged in Count
four, promoting prostitution is defined as “[e]ncouraging, inducing, or otherwise
purposely causing another to become a prostitute.” Tenn. Code Ann. § 39-13-
512(4)(A)(iii). Prostitution is “engaging in, or offering to engage in, sexual activity as a
business[.]” Id. §39-13-512(6). As charged in Count three, trafficking a person for a
commercial sex act occurs when a person “[k]nowingly subjects, attempts to subject,
benefits from, or attempts to benefit from another person’s provision of a commercial
act” or “[r]ecruits, entices, harbors, transports, provides, purchases, or obtains by any
other means, another person for the purpose of providing a commercial sex act.” Id. §39-
13-309(a)(1)-(2). The term “by any means” may include:

        (1) Causing or threatening to cause physical harm to the person;

        (2) Physically restraining or threatening to physically restrain the person;

        (3) Abusing or threatening to abuse the law or legal process;

        (4) Knowingly destroying, concealing, removing, confiscating or
        possessing any actual or purported passport or other immigration document,
        or any other actual or purported government identification document, of the
        person;

        2
           Although we acknowledge the State’s argument that the legislature, by placing the offenses in
separate parts of Chapter 13, implied the defendant’s convictions should be punished separately, we
believe the legislature’s intent is ultimately unclear, as neither statute references the other and the
legislative history is silent as to whether separate punishments were intended or even considered. We
note legislatures in other jurisdictions have expressed their intent to distinguish between promoting
prostitution and sex trafficking in a number of ways. See, e.g., Tex. Penal Code Ann. § 20A.02(c)
(articulating their intent that a defendant may be punished for both sex trafficking and promoting
prostitution by adding the following sentence to their trafficking statute: “If conduct constituting an
offense under this section also constitutes an offense under another section of this code, the actor may be
prosecuted under either section or under both sections”); Me. Rev. Stat. Ann. Tit. 17-A, § 852-53
(promoting prostitution is not an offense rather “sex trafficking” is defined as a person who “knowingly
promotes prostitution” and “aggravated sex trafficking” as promoting prostitution by compulsion).
                                                   -9-
       (5) Using blackmail or using or threatening to cause financial harm for the
       purpose of exercising financial control over the person; or

       (6) Facilitating or controlling a person’s access to a controlled substance.

Id. § 39-13-309(3). A commercial sex act is “[a]ny sexually explicit conduct for which
anything of value is directly or indirectly given, promised to or received by any person,
which conduct is induced or obtained by coercion” or “[a]ny sexually explicit conduct
that is performed or provided by any person, which conduct is induced or obtained by
coercion.” Id. § 39-13-301(4)(A)-(B). Coercion includes “[c]ausing or threatening to
cause bodily harm to any person, physically restraining or confining any person or
threatening to physically restrain or confine any person;” “[d]estroying, concealing,
removing, confiscating, or possessing any actual or purported passport or other
immigration document, or any other actual or purported government identification
document, of any person;” or “providing a controlled substance . . . to a person.” Id. §
39-13-301(3)(A), (C), (D).

       Here, both promoting prostitution and trafficking a person for a commercial sex
act require the defendant to cause the victim to perform sexual activities in exchange for
something of value. Although the statute for trafficking a person for a commercial sex
act contains the additional requirement that the victim be coerced, the promoting
prostitution statute does not contain an essential element that the trafficking statute does
not. Additionally, because the Blockburger test must be applied with an objective or
abstract view, we conclude any additional differences in the wording of the two statutes
do not constitute separate elements. See State v. Maurice Gray, No. W2017-01897-CCA-
R3-CD, 2018 WL 4382093, at *10 (Tenn. Crim. App. Sept. 14, 2018) (noting the
Blockburger test was applied with an objective or abstract view by Watkins and its
progeny), no perm. app. filed. Therefore, because only one of the offenses has an
element the other does not, the defendant’s convictions in Counts three and four must
merge. On remand, the trial court should merge the Class E felony conviction for
promoting prostitution into the Class B felony conviction for trafficking a person for a
commercial sex act. See State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993).

        The defendant also argues his convictions in Counts three and four should merge
because promoting prostitution is a lesser-included offense of trafficking a person for a
commercial sex act. The State does not address this argument in its brief. An offense is a
lesser-included offense of a charged offense if “[a]ll of its statutory elements are included
within the statutory elements of the offense charged.” Tenn. Code Ann. § 40-18-



                                           - 10 -
110(f)(1).3 As discussed above, all of the statutory elements of promoting prostitution
are included within the statutory elements of trafficking a person for a commercial sex
act. Thus, the trial court erred in determining promoting prostitution was not a lesser-
included offense of trafficking a person for a commercial sex act, and the defendant’s
convictions should merge.

III.   Jury Instruction

       The defendant argues the trial court erred in refusing to give an accomplice jury
instruction regarding T.G.’s testimony. Specifically, the defendant contends T.G.’s
testimony indicated she recruited women to work for the defendant, took pictures of S.C.
for the defendant’s Backpage advertisements, engaged in threats and violence to control
the other women when the defendant was not present, and was initially charged with the
same offenses as the defendant. The defendant argues this testimony indicates T.G. was
an accomplice in his offenses regarding S.C.. The State contends the trial court properly
declined to give the accomplice jury instruction.

       A defendant has a right to a correct and complete jury charge. State v. Garrison,
40 S.W.3d 426, 432 (Tenn. 2000). This right is constitutional in nature. State v. Phipps,
883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). The trial court must present the
propositions of law governing the case plainly to the jury, in such a manner as to enable
them to comprehend the principles involved. State v. Williamson, 919 S.W.2d 69, 80
(Tenn. Crim. App. 1995). “Nothing short of this will ‘satisfy the demands of justice’ or
the defendant’s right to a jury trial.” Id. (quoting Crawford v. State, 44 Tenn. 190, 195
(1867)).

       It is well-established that “a conviction may not be based upon the uncorroborated
testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). This Court has defined the term
“accomplice” to mean “one who knowingly, voluntarily, and with common intent with
the principal unites in the commission of a crime.” State v. Allen, 976 S.W.2d 661, 666
(Tenn. Crim. App. 1997). This means that the person must do more than have a guilty
knowledge, be morally delinquent, or participate in other offenses with the principal
actor. State v. Jackson, 52 S.W.3d 661, 666 (Tenn. Crim. App. 2001). The test for
whether a witness qualifies as an accomplice is “whether the alleged accomplice could be
indicted for the same offense charged against the defendant.” Allen, 976 S.W.2d at 666.



       3
          Tennessee Code Annotated section (f) codified parts (a) and (c) of the lesser-included offense
test promulgated by the Tennessee Supreme Court in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999).
See State v. Howard, 504 S.W.3d 260 (Tenn. 2016).
                                                - 11 -
     The issue of whether the court or the jury determines a witness’s status as an
accomplice has been previously determined by this Court:

       The question of who determines whether a witness is an accomplice
       depends upon the evidence introduced during the course of a trial. When
       the undisputed evidence clearly establishes the witness is an accomplice as
       a matter of law, the trial court, not the jury must decide the issue. On the
       other hand, if the evidence adduced at trial is unclear, conflicts, or is subject
       to different inferences, the jury, as the trier of fact, is to decide if the
       witness was an accomplice. If the jury finds the witness was an
       accomplice, the jury must decide whether the evidence adduced was
       sufficient to corroborate the witness’s testimony.

State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997) (footnote omitted).

        In the present case, the trial court correctly noted there was no testimony from
S.C. indicating she engaged in a commercial sex act or any type of prostitution at the
direction of T.G.. However, T.G. testified she worked as the defendant’s “bottom” or
“right[-]hand man.” As the defendant’s “bottom,” T.G.’s responsibilities included
recruiting women to work as prostitutes for the defendant and supervising the other
women when the defendant was not present. To control the women, T.G. sometimes
used threats and physical violence. S.C. testified T.G. took pictures of her for the
defendant’s Backpage advertisements. Additionally, prior to cooperating with the police,
T.G. was charged with the same crimes as the defendant.

        We agree with the defendant that the record contains evidence from which the jury
could have inferred T.G. was an accomplice. However, the trial court failed to present
this factual dispute to the jury in the form of a jury instruction. Nevertheless, when a trial
court fails to properly instruct the jury concerning accomplice testimony, such an error is
subject to harmless error analysis. See State v. Ballinger, 93 S.W.3d 881, 888 (Tenn.
Crim. App. 2000). Such an error is harmless when “the record contains sufficient
corroboration to [the accomplice’s] testimony.” Id.

        Here, even if the jury found T.G. to be an accomplice, the State presented
sufficient evidence at trial to corroborate her testimony. “[C]orroborating evidence is
sufficient if it connects the accused with the crime in question.” Griffis, 964 S.W.2d at
589. S.C. testified the defendant approached her about working for him as a prostitute.
The defendant took semi-nude, suggestive pictures of S.C. and posted them in an
advertisement for sexual services using his Backpage account. S.C. also testified the that
defendant maintained possession of her identification, restricted her supply to drugs, used
threats and physical violence to exert control over her, and confiscated any money she
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made while working as a prostitute. This testimony constitutes more than sufficient
corroboration of T.G.’s testimony. Furthermore, T.G. was vigorously cross-examined at
trial about her relationship with the defendant and participation in the offenses regarding
S.C.. Accordingly, any failure of the trial court to properly instruct the jury concerning
T.G.’s status as an accomplice or the need for her testimony to be corroborated was
harmless. The defendant is not entitled to relief on this issue.

                                       Conclusion

       For the aforementioned reasons, the defendant’s convictions are affirmed.
However, we remand this case for merger of Count four, promoting prostitution, into
Count three, trafficking a person for a commercial sex act, to ensure the defendant is not
subjected to double jeopardy.



                                             ____________________________________
                                              J. ROSS DYER, JUDGE




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