IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 8, 2020

STATE OF TENNESSEE v. GARY THOMAS RUSSELL

Appeal from the Circuit Court for Madison County

No. 19-409 Donald H. Allen, Judge

No. W2019-01874-CCA-R3-CD

A jury convicted the Defendant, Gary Thomas Russell, of violating the sex offender 

residential restrictions and acquitted him of harboring a runaway child. The trial court 

sentenced the Defendant to six years. On appeal, the Defendant contends that the 

evidence is insufficient to sustain his conviction because he was not “alone with a minor” 

as defined by Tennessee Code Annotated section 40-39-211(k)(2). After review, we 

affirm the trial court’s judgment.

 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT 

WILLIAMS, P.J., and J. ROSS DYER, J., joined.

George Morton, District Public Defender; Gregory D. Gookin, Assistant Public Defender, 

Jackson, Tennessee, for the appellant, Gary Thomas Russell.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry and Andrew 

Craig Coulam, Assistant Attorneys General; Jody S. Pickens, District Attorney General;

and Matthew Floyd, Assistant District Attorney General, for the appellee, State of 

Tennessee.

OPINION

I. Facts and Background

This case arises from a report that the Defendant, a registered sex offender, was in 

the company of a runaway fifteen-year-old girl, K.G.1 As a result of the police 

investigation of this report, a Madison County grand jury indicted the Defendant for one 

 

1 For her privacy, we will refer to K.G. by her initials only.

08/25/2020
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count of violating the sex offender residential restrictions, one count of harboring a 

runaway child, two counts of possessing a controlled substance, and one count of 

possessing drug paraphernalia. On May 6, 2019, the Defendant pleaded guilty to two 

counts of possessing a controlled substance and one count of possessing drug 

paraphernalia, and the trial court sentenced him to an effective sentence of eleven months 

and twenty-nine days. The following day, the Defendant proceeded to trial on the 

remaining charges: violating the residential restrictions of the sex offender registry and 

harboring a runaway child. 

At the Defendant’s trial, the parties presented the following evidence: Deputy 

Tony Stewart, with the Madison County Sheriff’s Department, testified that on July 11, 

2018, he was dispatched to a trailer on Steam Mill Ferry Road in response to a call about 

a possible runaway juvenile, K.G., who was fifteen or sixteen years old. When he 

arrived, he noticed the Defendant standing in the doorway of the trailer, and he advised 

the Defendant that he was there in reference to a runaway juvenile. Deputy Stewart 

asked the Defendant if there were any juvenile females at his residence, and the 

Defendant said that there were not. The deputy asked the Defendant to walk him through 

the residence, so that the deputy could ensure the Defendant’s statement was accurate.

The Defendant then admitted that there was a juvenile in the home.

Deputy Stewart testified that, when he entered the home, he made contact with 

K.G., who was the only other person in the home. The deputy placed K.G. in his patrol 

vehicle and checked with dispatch for any outstanding warrants associated with the 

Defendant. Dispatch informed the deputy that, while the Defendant did not have any 

outstanding warrants, he was an “active sex offender.” Law enforcement officers took 

K.G. to a juvenile detention facility and took the Defendant into custody. 

During cross-examination, Deputy Stewart testified that his notes indicated that 

the Defendant told him that the juvenile had been dropped off at the trailer and that he 

was waiting for his niece to come and get the juvenile. The Defendant also told the 

deputy that the juvenile was in his home hiding from law enforcement. The deputy said 

that these events occurred at around 10:35 p.m. The deputy agreed that, when he made 

contact with K.G., she was fully clothed and standing in a bedroom. 

Katrina Singleton, the compliance officer of the sex offender registry for the 

Madison County Sheriff’s Department, testified that she knew the Defendant because he 

was on the sex offender registry for Madison County. She said that the Defendant had 

pleaded guilty to aggravated sexual battery on January 24, 1996. As a result of that 

conviction, the Defendant was required to register with the Tennessee Sex Offender 

Registry as a violent sexual offender. The Defendant, who reported quarterly, came 

under her supervision in June of 2018. Officer Singleton testified that the Defendant had 
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been informed and acknowledged understanding that he could not be alone in a private 

area with a minor.

During cross-examination, Officer Singleton said that she had conducted home 

checks while supervising the Defendant and that the Defendant had reported as required. 

He had also paid his yearly supervising fee.

After the close of the State’s case in chief, the Defendant called Tammie 

Robertson, who testified that K.G. was a foster child in her home. K.G. had transferred 

out of her home before she was reported as a runaway. Ms. Robertson said that a friend 

of K.G.’s named R.C.2called her and informed her where K.G. might have fled when she 

ran away. Ms. Robertson notified the Sheriff’s Department. Ms. Robertson said that 

R.C. was related to the Defendant.

Ms. Robertson explained that K.G. called R.C. to inform her that she needed help 

and to ask her to come and pick her up. R.C. said that she could not pick her up 

immediately but that K.G. could go to R.C.’s uncle’s house and wait for her there. The 

Defendant was R.C.’s uncle. 

During cross-examination, Ms. Robertson testified that she did not know at the 

time of these events that the Defendant was a registered sex offender. 

R.C. testified that the Defendant was her uncle because her grandmother was the 

Defendant’s sister. R.C. said that she met K.G. when the two attended the same high 

school. She knew Ms. Robertson as K.G.’s foster mother. K.G. contacted R.C. through 

Instagram and said that she needed a place to go and asked R.C. to come get her. K.G. 

told R.C. where she was located, and R.C. told K.G. that her uncle, the Defendant, lived 

close by. R.C. told K.G. that she did not think that the Defendant would mind if K.G. 

waited at his residence for R.C. to arrive. R.C. said that she tried to call the Defendant to 

ask permission but that the Defendant’s phone was broken, so he did not answer. 

R.C. testified that, shortly thereafter, she received a call from a “girl” who said 

that she had dropped K.G. off at the Defendant’s house. The girl told R.C. that K.G. had 

run away from foster care. R.C. expressed frustration that the girl had taken K.G. to the 

Defendant’s house if she was a runaway. R.C. said that she then called Ms. Robertson 

and told her what had happened. R.C. said that she did not know the Defendant was on 

the sex offender registry and that she was just trying to help her friend. 

R.C. agreed that she had just turned fifteen at the time of this event and that 

 

2 R.C. is also a minor, so we will refer to her by her initials.
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anyone who had introduced themselves as her friend was likely a minor. 

Based upon this evidence, the jury convicted the Defendant of violating the sex 

offender residential restrictions but found him not guilty of harboring a runaway. The 

trial court sentenced the Defendant to six years in the Tennessee Department of 

Correction, to be served concurrently with the sentences for his drug offense convictions. 

It is from this judgment that the Defendant now appeals. 

II. Analysis

On appeal, the Defendant contends that the evidence is insufficient to sustain his 

conviction for violating the sex offender residential restrictions because he was engaged 

in lawful conduct and the presence of the juvenile was incidental, accidental, or otherwise 

unrelated to his lawful conduct. The State counters that the evidence presented at trial is 

sufficient to support the jury’s verdict. We agree with the State. 

When an accused challenges the sufficiency of the evidence, this court’s standard 

of review is whether, after considering the evidence in the light most favorable to the 

State, “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 Tenn. R. 

App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 

91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon 

direct evidence, circumstantial evidence, or a combination of both direct and 

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 

1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the 

absence of direct evidence, a criminal offense may be established exclusively by 

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury 

decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be 

drawn from such evidence, and the extent to which the circumstances are consistent with 

guilt and inconsistent with innocence, are questions primarily for the jury.’” State v. 

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 

(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same 

whether the conviction is based upon direct or circumstantial evidence.’” State v. 

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 

275 (Tenn. 2009)). 

In determining the sufficiency of the evidence, this court should not re-weigh or 

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact 

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. 

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of 
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witnesses, the weight and value to be given the evidence, as well as all factual issues 

raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 

659 (Tenn. 1997). “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). The Tennessee Supreme 

Court stated the 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, 527 (Tenn. 1963)). This court must afford the State of Tennessee the “‘strongest 

legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and 

legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of 

guilt against a defendant removes the presumption of innocence and raises a presumption 

of guilt, the convicted criminal defendant bears the burden of showing that the evidence 

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 

557-58 (Tenn. 2000) (citations omitted).

Tennessee Code Annotated section 40-39-211(k)(2) (2019) states that “unless 

otherwise permitted by subsection (c), while mandated to comply with the requirements 

of this part, no sexual offender, as defensed in § 40-39-202, or violent sexual offender, as 

defined in § 40-39-202, shall be alone with a minor or minors in a private area.” 

Subsection (c) does not apply to the facts of this case, and the Defendant is a violent 

sexual offender. 

The Code goes on to state: “(A)(i) “Alone with” means one (1) or more offenders 

covered by this subsection (k) is in the presence of a minor or minors in a private area; 

and . . . (a) There is no other adult present in the area . . . .” T.C.A. § 40-39-

211(k)(1)(A)(i). Further:

(ii) If the offender is in a private area where the offender has the 

right to be, the offender is not “alone with” a minor or minors if the 

offender is engaged in an otherwise lawful activity and the presence of the 

minor or minors is incidental, accidental, or otherwise unrelated to the 
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offender’s lawful activity;

(B)(i) “Private area” means in or on any real or personal property, 

regardless of ownership, where the conduct of the offender is not readily 

observable by anyone but the minor or minors alone with the offender;

T.C.A. §40-39-211(k)(1)(B)(i). 

We conclude that the evidence presented, viewed in the light most favorable to the 

State, supports the Defendant’s conviction. The Defendant was in the doorway of his 

home when Deputy Stewart arrived. The Defendant told the deputy that there was not a 

juvenile in his home. When Deputy Stewart asked to see inside, the Defendant told him 

that there was, in fact, a juvenile female located in the home. When the deputy went 

inside the trailer, he saw K.G., a juvenile, in a bedroom of the home. This evidence 

supports the jury’s finding that the Defendant was in a private area with a juvenile.

The Defendant contends that he was lawfully present at his house and that K.G.’s 

presence was incidental or accidental. We do not agree. There was no evidence that 

K.G. happened to be at the house or that the Defendant did not permit her entry. The 

Defendant’s own witness, R.C., testified that she told K.G. to tell the Defendant that R.C. 

had sent her. She also said that the Defendant would likely assume that K.G. was close to 

R.C.’s age, which was fifteen. K.G. presumably went to the Defendant’s residence, 

introduced herself, and the Defendant let her inside. The Defendant knew that he was not 

allowed to be alone with a minor in a private area. The Defendant made the choice to 

allow the minor to come into his home. We conclude that the evidence is sufficient to 

sustain the Defendant’s conviction. 

III. Conclusion

After a review of the record and the applicable law, we affirm the trial court’s

judgment.

________________________________

ROBERT W. WEDEMEYER, JUDGE