                                                                                        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. S67077    James F. Goodwin, Jr., Judge


                            No. E2018-02282-CCA-R3-CD


The defendant, David Eric Lambert, appeals his Sullivan County Criminal Court jury
conviction of unlawful photography, see T.C.A. § 39-13-605, arguing that (1) Code
section 39-13-605 is unconstitutionally vague, (2) the trial court erred by denying his
motion to dismiss on grounds that his conduct did not constitute a crime, (3) the
admission of his statement at trial violated evidence rule 404(b), (4) the evidence was
insufficient to support his conviction, and (5) the trial court erred by ordering that the
defendant serve the 11-month and 29-day sentence imposed in this case consecutively to
the defendant’s sentence in another case. We conclude that the trial court erred by
admitting the defendant’s statement to the police, and the erroneous admission of the
statement would entitle the defendant to a new trial. Because, however, the evidence
adduced at trial was insufficient to support the defendant’s conviction, the conviction is
reversed, and the case is dismissed.

   Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Dismissed

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

Lesley A. Tiller and Dustin 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 Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
             The Sullivan County Grand Jury charged the defendant via presentment
with one count of unlawful photography for his conduct at the Walmart in Kingsport on
February 27, 2016.

                                        I. Motion to Dismiss

              Prior to trial, the defendant moved the trial court to dismiss the charge
against him, arguing that because his “alleged actions occurred in public places where
there is no expectation of privacy,” they were “not illegal under Tennessee law.” The
defendant also argued that Code 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 hearing on the defendant’s motion,1 following the arguments of the
parties, the trial court concluded that the statute was not unconstitutional bcause 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.

              Kingsport Police Department Detective Martin Taylor testified that,
following an incident at the Hobby Lobby in Kingsport, he interviewed the defendant on
March 24, 2016. At the conclusion of the interview, the defendant provided a statement
that Detective Taylor read into the record:

                        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
1
        The defendant was charged with unlawful photography in three separate cases involving separate
victims, and both his motion and the subsequent hearing on the issue covered all three cases. We include
only those facts pertinent to the case before us.
                                                  -2-
              decision on my part. If it was not illegal it was definitely
              crossing the moral boundaries.

                     . . . . I gave the officers permission to look through the
              phone. Today I am giving Detective Tayor 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 said that he examined the photographs and videos on the defendant’s
cellular telephone but found no photographs or videos of any of the victims in the three
Sullivan County cases.

               Shawna Sutton testified that she was shopping at the Walmart in Kingsport
on February 27, 2016, when she encountered the defendant “standing by the doors.” She
said that the defendant appeared to be approaching her and that “the look he was giving”
made her “very uncomfortable,” so she “chose to go out the front doors and around the
outside of the store” to get to her car. When she turned to look back, she saw that the
defendant was walking in the same direction and “matching my pace.” She said that, at
that point, she let the defendant go in front of her and then “veered off to the left going in
between cars and was hoping to lose him.” She said that the defendant “was within arm’s
length at the closest point,” that he had a cellular telephone held “down and out” toward
the “lower half” of her body, and that he appeared to be taking a photograph or video of
her. The defendant did not speak to her and did not follow her all the way to her car.

               During cross-examination, Ms. Sutton testified that she was clothed in
black pants and a gray short-sleeved t-shirt with a black long-sleeved t-shirt underneath
it. She said that the defendant did not attempt to photograph down her shirt or pants. The
defendant stopped when she told him to do so. She acknowledged that she assumed that
she was being filmed by surveillance cameras both inside and outside of the Walmart and
agreed that, had the defendant photographed her, it would have displayed the same image
captured by the surveillance video. She admitted that she did not know whether the
defendant had actually taken a photograph or video of her.

                                             -3-
              As to this case, the trial court found that the defendant had “readily
admit[ted] to videoing or filming or taking pictures with his phone of women in public.”
The court noted that Ms. Sutton “believed that he was taking a photo or video of her” and
that the surveillance video “showed the defendant walking beside and a little bit in front
of Ms. Sutton with his camera down in front of her near her crotch and as soon as they
crossed paths the very first thing he did was look at his phone and what he captured.”
The court found that Ms. Sutton had a reasonable expectation of privacy “given the
proximity” from which the defendant was capturing the images. In consequence, the trial
court ruled that the isuue of the defendant’s guilt was a jury question rather than a
question of law and denied his motion to dismiss.

                             A. Propriety of Motion to Dismiss

             As an initial matter, we consider whether the defendant’s claims that the
proscribing statute was unconstitutional and that the defendant’s conduct could not
support a conviction of unlawful photography were ripe for review via a pretrial motion
to dismiss.

              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
                                              -4-
“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).

              Applying these principles to the issues presented in this case, we conclude
that the trial court properly considered the defendant’s facial challenge to the
constitutionality of Code section 39-13-605 and properly declined to consider the
defendant’s assertion that his conduct did not satisfy the elements of Code section 39-13-
605. The latter question was essentially a pretrial challenge to the sufficiency of the
State’s evidence, which would “be akin to summary judgment for adjudicating questions
of fact involving the general issue of guilt or innocence,” a procedure that does not exist
in criminal cases. See Goodman, 90 S.W.3d at 561.

                     B. Constitutionality of Code section 39-13-605

             At the time of the offense in this case, Code section 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.

                                            -5-
T.C.A. § 39-13-605(a)-(c) (2014).        As indicated, the defendant challenged the
constitutionality of Code section 39-13-605 on grounds that the phrase “when the
individual has a reasonable expectation of privacy” is vague, essentially asserting a claim
that Code section 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 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 reasonably
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

                                              -6-
decisions and common law interpretations, to promote justice, and effect the objectives of
the criminal code”).

               The 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 to the phrase as used in Code section 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).

              Utilizing the common understanding of the terms contained in Code section
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 the defendant’s constitutional
challenge.

                                          II. Trial

              At the February 2018 trial, Chris Aikens, the Loss Prevention Officer at the
Walmart on West Stone Drive in Kingsport testified that the store was equipped with
video surveillance equipment both inside and outside and that, pursuant to a request from
the Kingsport Police Department, he pulled seven video clips from that equipment for
February 27, 2016. During cross-examination, Mr. Aikens said that no one reported an
incident involving the defendant to him on February 27, 2016.

              Ms. Sutton testified that she encountered the defendant at the Walmart on
West Stone Drive in Kingsport on February 27, 2016. As she prepared to leave the store,
she observed the defendant standing near the exit. When the defendant approached her
with an “unsettling look,” she “went around him and went out a different door” to get to
her car. Ms. Sutton said that she “turned to the left” and “could see him in the window
matching my pace walking in the same direction.” When the defendant exited the store,
Ms. Sutton let the defendant go in front of her so as to avoid him. She recalled that the
defendant remained in front of her, so she “veered to the left to go between some cars to,
again, avoid him.” The defendant then “came around beside of me, and then got in front
of me again.”
                                             -7-
              At one point, the defendant “got within arm’s reach,” and she saw that he
“had a large, I guess, phone held out.” The defendant’s “arm was down, extended,” and
it appeared that he was taking a photograph or video of her. She said that it appeared to
her that the defendant had the telephone trained on “my lower half of my body.” At that
point, she “said, ‘I don’t know what you think you’re doing,’ something to that effect,
but, ‘Stop, get away from me.’” The defendant ran away, and she went to her car and
telephoned the Walmart manager to report the ordeal. She said that she did not give the
defendant permission to photograph or video her and that she considered his actions an
invasion of her privacy. She agreed that, if the defendant had, in fact, taken a photograph
or video of her lower body, she would have found such a photograph or video
embarrassing and offensive.

              Ms. Sutton identified herself and the defendant from video surveillance
footage taken at the Walmart on February 27, 2016. The footage shows the defendant
walking toward her with something that she characterized as “a large phone” in his hand.
It also shows the defendant with his arm extended down with the item still in his hand.

              During cross-examination, Ms. Sutton acknowledged that Walmart
surveillance cameras captured her image both inside and outside of the store. She
conceded that she had never seen any photograph or video that had been taken by the
defendant and that she did not, at any point, see the defendant’s telephone actively
capturing either a photograph or video of her.

              Detective Taylor testified that, as part of his investigation of this case, he
obtained a statement from the defendant on March 24, 2016. A redacted version of the
statement was read to the jury. Detective Taylor searched the defendant’s telephone but
did not find any images of Ms. Sutton. He explained that a forensic examination would
uncover only those images stored in the internal memory of the telephone itself and
would not show those stored on an external device, like an “SD card.” He said that if a
photograph or video taken by a cellular telephone was stored to an SD card that was later
removed from the telephone, a forensic examination could not detect that image.
Detective Taylor observed that the defendant’s cellular telephone had “duct tape over
both of those lights that are on the back.”

               Detective Taylor testified that it was possible that, during the nearly one
month between the incident involving Ms. Sutton and his interview of the defendant, the
defendant could have deleted any images he might have taken of Ms. Sutton or switched
cellular telephones entirely.



                                            -8-
              During cross-examination, Detective Taylor conceded that it was not illegal
for the defendant to carry his cellular telephone either inside or outside of the Walmart.
He acknowledged that the defendant did not handwrite his statement and only signed at
the bottom of the page. He said it was his practice to write the statement for any
interviewee. Detective Taylor testified that the defendant did not specifically admit
photographing or filming Ms. Sutton, explaining, “I didn’t specifically ask about
individual people whenever I spoke with [the defendant].” He clarified during redirect
examination that the defendant had admitted filming blond women at Walmart.

              The State rested, and, following a full Momon colloquy, the defendant
elected not to testify and chose to present no proof. Based upon the evidence presented
by the State, the jury convicted the defendant as charged of one count of unlawful
photography.

                                A. Defendant’s Statement

              The 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 the statement was admissible
to prove motive and intent, both of which are permissible purposes under Rule 404(b).

               The defendant was charged in three separate Sullivan County cases with
unlawful photography, and the motions filed by the defendant covered all of the cases. In
his motion in limine, the 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 the
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 the defendant’s statement
prior to the beginning of that trial.

              During the hearing, the 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 the defendant’s statement contained admissions that “could be considered
referencing prior 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 admissions
“that he videos women in public, that he has a preference for blond-haired females . . .
that he goes into shopping centers in Kingsport” established his identity as the
perpetrator. The State also argued that the defendant’s admission that he took the videos
                                            -9-
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 Code
section 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.

              A redacted copy of the defendant’s statement was admitted into evidence
and read to the jury in this case.

               We begin by noting that the defendant’s statement does not contain any
admission to wrongdoing specific to this case. He was not asked about the incident that
precipitated the charge in this case, and, as a result, he made no admission of guilt
directly related to that incident. Instead, 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 the 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

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



                                            -10-
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 inherent 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 the 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. The defendant’s identity was not an issue because he was captured on the
Walmart surveillance video and conclusively identified by Ms. Sutton. Additionally, the
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 the defendant did not make the issue of
motive material. Moreover, the statement was not admissible, as the State argued, to
prove that the defendant acted for the purpose of sexual gratification because nothing in
the statement suggests that the defendant’s conduct was motivated by a desire for sexual
gratification. If anything, the statement belies such a motivation because the defendant
claimed that he was compelled to make video recordings by his obsession with the
technical functions of his cellular telephone. That the defendant, a man, admitted that he
had been videotaping women, even blond women in particular, does not, without more,
evince 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). Because identity was not a material issue in this case, there was no
need to resort to the common scheme or plan notion as a means of supplying the identity
of the perpetrator. See id.

                                            -11-
               Finally, the 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, the defendant’s statement, which did not include any
admission directly related to this case, was not admissible “on any material issue in this
case. Its 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 the defendant’s statement to prove that because he had videotaped other women, he
had necessarily videotaped or photographed Ms. Sutton in this case. Indeed, the State
argued that the 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.
Sutton was ever recovered. That is precisely the type of inference prohibited by Rule
404(b).

              The evidence of the 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 the defendant’s guilt, we are constrained to conclude that the
erroneous admission of the defendant’s statement cannot be classified as harmless. Were
we not reversing the 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.

                                       B. Sufficiency

              The defendant contends that the evidence adduced at trial was insufficient
to support his conviction. The State asserts that the evidence was sufficient.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

              When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
                                            -12-
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              As charged in this case, unlawful photography is defined as follows:

              (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).

              Examined in the light most favorable to the State, the evidence established
that the defendant followed Ms. Sutton both inside and outside of the Walmart in
Kingsport and that he extended his cellular telephone toward her in a manner that led her
to believe that he was taking either a photograph or video recording of her. At all times
during the encounter, Ms. Sutton was fully clothed and in a public place. No photograph
or video recording of Ms. Sutton was ever discovered in the defendant’s possession or
disseminated by the defendant in any way. In consequence, the State presented no
photograph or video recording for the jury’s consideration. In our view, this evidence
was insufficient to establish all of the elements of the offense.
                                           -13-
                          i. Reasonable Expectation of Privacy

               Code section 39-13-605 makes it illegal to photograph an individual
without the individual’s consent “when the individual has a reasonable expectation of
privacy.” Id. § 39-13-605(a). As discussed above, 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.” Munn, 56 S.W.3d at 494 (citations omitted).
As the Supreme Court has explained, “[w]hat a person knowingly exposes to the public,
even in his own home or office,” is not covered by a reasonable expectation of privacy.
Katz v. United States, 389 U.S. 347, 351-52 (1967) (citations omitted). “But what he
seeks to preserve as private, even in an area accessible to the public,” may be covered by
a reasonable expectation of privacy. Id. Thus, the crucial question was not whether Ms.
Sutton was in public when the defendant allegedly photographed her but whether, under
the circumstances, she “had an actual, subjective expectation of privacy and . . . whether
society is willing to view [that] subjective expectation of privacy as reasonable and
justifiable under the circumstances.” Munn, 56 S.W.3d at 494 (citing Smith v. Maryland,
442 U.S. 735, 740 (1979)).

              Ms. Sutton testified that she did not expect to be photographed by the
defendant, but she did not testify that she expected her person and the outside of her
clothing to remain completely private. Indeed, she acknowledged that she was in full
view of any person present in the store or the parking lot. Moreover, the evidence
established that any image that the defendant might have captured on his cellular
telephone was also captured in the Walmart surveillance video. No evidence suggested
that the defendant attempted to photograph Ms. Sutton underneath her clothing or once
she was inside her automobile. Consequently, we conclude that Ms. Sutton did not have
a subjective expectation of privacy.

              Moreover, even if Ms. Sutton’s testimony had supported a conclusion that
she had a subjective expectation of privacy, that subjective expectation of privacy is not,
in our view, one that society would view as reasonable. Exposure to the capture of our
images by cameras has become, perhaps unfortunately, a reality of daily life in our digital
age. When nearly every person goes about her day with a handheld device capable of
taking hundreds of photographs and videos and every public place is equipped with a
wide variety of surveillance equipment, it is simply not reasonable to expect that our
fully-clothed images will remain totally private. In analogous circumstances, the
Supreme Court has determined that “[a] person travelling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his movements from one place
to another.” United States v. Knotts, 460 U.S. 276, 281-82 (1983). The Court has also
                                           -14-
concluded that no reasonable expectation of privacy existed “in areas of the store where
the public was invited to enter and to transact business.” Maryland v. Macon, 472 U.S.
463, 469 (1985).

                               ii. Character of Photograph

             It is an element of the conviction offense that the photograph in question
“[w]ould offend or embarrass an ordinary person if such person appeared in the
photograph.” Ms. Sutton testified that the defendant appeared to have his cellular
telephone aimed at the lower half of her body and that she would likely have been
embarrassed by a photograph of that part of her body. However, her testimony in this
regard amounts to nothing more than speculation. Moreover, this element does not turn
on whether Ms. Sutton would have been offended or embarrassed by any alleged
photograph but instead on whether the photograph would offend or embarrass an ordinary
person. In this case, the State presented no photograph of Ms. Sutton purportedly taken
by the defendant. We cannot fathom how the trier of fact could make this determination
in the absence of an actual photograph or video recording to assess under this objective
standard. Because no photograph was presented, no rational trier of fact could have
concluded, under the circumstances presented in this case, that a photograph of Ms.
Sutton taken by the defendant “[w]ould offend or embarrass an ordinary person if such
person appeared in the photograph.”

               In order to arrive at a conclusion that the defendant was guilty, the jury had
to conclude that Ms. Sutton had a reasonable expection of privacy in the parking lot of a
Walmart, that the defendant had actually taken a photograph or video recording of her
despite that the State presented no proof that either existed, and that this absent image
would have offended or embarrassed an ordinary person. “Although the State is entitled
to all reasonable inferences from the proof, the jury may not speculate an accused into the
penitentiary.” State v. Pack, 421 S.W.3d 629, 643 (Tenn. Crim. App. 2013) (citations
omitted). We can sympathize with the plight of the State, but “a conviction for a criminal
offense cannot be predicated solely upon conjecture, guess, speculation, or a mere
possibility that [an accused] may be guilty,” State v. Transou, 928 S.W.2d 949, 955
(Tenn. Crim. App. 1996) (citing Rucker v. State, 129 S.W.2d 208, 210 (Tenn. 1939);
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987)), “despite that inculpative
evidence may be simply unavailable,” Pack, 421 S.W.3d at 643. “In this case, the series
of inferential leaps necessary to support the defendant’s conviction crosses the line from
reasonable to speculative, particularly in light of” the absence of any photograph or video
recording. See Pack, 421 S.W.3d at 643.




                                            -15-
             Accordingly, we hold that the evidence was insufficient to support the
defendant’s conviction of unlawful photography. The defendant’s conviction is reversed,
and the charge is dismissed.

                                      III. Sentencing

              Following a sentencing hearing, the trial court imposed a sentence of 11
months and 29 days and ordered that the defendant serve the sentence consecutively to
that imposed in cases S67,078 and S67,079. The court also ordered that the defendant
serve his sentences in confinement.

              Although we have reversed and dismissed the defendant’s conviction, we
will address his challenges to the sentence imposed to facilitate further appellate review.

               Misdemeanor sentencing, in contrast to felony sentencing, is covered by
Code section 40-35-302, the terms of which afford the trial court considerable flexibility
in setting the length and manner of service of the misdemeanor sentence. See T.C.A. §
40-35-302. For example, a separate sentencing hearing is not mandatory in misdemeanor
cases, and the enhancement and mitigating factors need only be considered when
calculating the percentage of the sentence to be served “in actual confinement” prior to
“consideration for work release, furlough, trusty status and related rehabilitative
programs.” Id. § 40-35-302; State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).
Although our supreme court has not yet applied the standard of review adopted in State v.
Bise—abuse of discretion coupled with a presumption of reasonableness—to
misdemeanor sentencing decisions, it has stated, “The abuse of discretion standard,
accompanied by a presumption of reasonableness, is the appropriate standard of appellate
review for all sentencing decisions.” State v. Pollard, 432 S.W.3d 851, 864 (Tenn.
2013); see also State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014) (holding that,
because “Bise and its progeny establish that the abuse of discretion standard of appellate
review accompanied by a presumption of reasonableness applies to all sentencing
decisions,” the Bise standard is the appropriate standard of appellate review for a trial
court’s sentencing decision to either grant or deny judicial diversion”). Consequently, we
join the other panels of this court that have held that the Bise standard similarly applies to
appellate review of misdemeanor sentencing. See, e.g., State v. Willard Hampton, No.
W2018-00623-CCA-R3-CD, slip op. at 17-18 (Tenn. Crim. App., Jackson, Mar. 12,
2019).

             Because the record establishes that the trial court complied with the
requirements of Code section 40-35-302 relative to misdemeanor sentencing, we “apply a
presumption of reasonableness” to the sentencing decision in this case. Given the latitude
afforded to trial courts in misdemeanor sentencing, the record reflects a basis for
                                            -16-
requiring confinement in this case. The trial court emphasized the defendant’s prior
misdemeanor convictions, particularly those “dealing with obscene display, masturbation
in public, those kinds of things, possession of drugs, breaking and entering . . . , multiple
assaults.” The court also noted that the defendant had violated the terms of previously-
imposed probationary sentences. Because the evidence supports the conclusions of the
trial court, we discern no error in the trial court’s sentencing decision.

                                      IV. Conclusion

              Because the trial court erred by admitting the defendant’s statement into
evidence and because that error cannot be classified as harmless, the defendant would be
entitled to a new trial. Because, however, the evidence was insufficient to support the
defendant’s conviction, his conviction is reversed, and the charge is dismissed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -17-
