IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 16, 2019

STATE OF TENNESSEE v. ROGER F. JOHNSON

Appeal from the Circuit Court for Grundy County

No. 5910 Thomas W. Graham, Judge

___________________________________

No. M2018-01216-CCA-R3-CD

___________________________________

Following a bench trial in the Grundy County Circuit Court, the Defendant, Roger F. 

Johnson, was convicted as charged of indecent exposure, a Class B misdemeanor. He 

was subsequently sentenced to a six-month sentence, with service of forty-five days in 

jail prior to serving the remainder of the sentence on supervised probation. On appeal, 

the Defendant argues: (1) the indictment fails to charge an offense because it does not 

include the correct mens rea; (2) the indictment is duplicitous; and (3) the evidence is 

insufficient to sustain his conviction.

1

 We affirm the judgment of the trial court. 

 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and D. KELLY THOMAS,JR., JJ., joined.

Matthew S. Bailey, Spencer, Tennessee, for the Appellant, Roger F. Johnson.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior 

Assistant Attorney General; Mike Taylor, District Attorney General; and David

McGovern, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Trial. E.F.,

2 who was thirteen years old at the time of the Defendant’s bench trial 

and twelve years old at the time of the incident in this case, testified that on March 23, 

2017, she was visiting her aunt and uncle, who lived across the street from the Defendant. 

E.F. stated that she was playing with her cousin G.M. in the front yard when she heard 

 

1 We have separated the Defendant’s issues for clarity. 

2

It is the policy of this court to identify minor victims by their initials only. We will also identify 

the minor victims’ family members by their initials in order to protect the identity of these victims.

07/15/2019
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the Defendant whistling. She said that the Defendant was standing in the doorway of his 

trailer as he whistled at them and that his whistling lasted approximately five to ten 

minutes. E.F. agreed that the Defendant’s whistling sounded like a “catcall.” She also 

said the Defendant’s whistling scared G.M. and her and caused them both to cry. 

Immediately after this incident, E.F. told her aunt what had happened. She said she never 

saw the Defendant unclothed during this incident but did see him walking back inside his 

home.

G.M., who was eleven years old at the time of trial and ten years old at the time of 

this incident, testified that she did not hear the Defendant whistling. When E.F. told her 

that the Defendant was whistling, G.M. saw that the Defendant, who was standing “a 

little bit . . . farther out from the doorway,” had his pants down around his ankles and was 

looking at them. G.M. stated that the Defendant’s hands were “[u]p near his privates” 

and that his hands were “covering” his privates. She said she could not see the 

Defendant’s “privates” or his buttocks. Although G.M. could see the Defendant’s blue 

jeans around his ankles, she did not see the Defendant’s underwear. She also did not see 

the Defendant go back inside his home following this incident. G.M. said that the fact 

that the Defendant’s pants were down around his ankles scared her and caused her to cry. 

After a couple of minutes, she went to tell her father and then her mother what had 

happened. G.M. acknowledged that her family had previously had a dispute with the 

Defendant over a cat, which resulted in people cursing at one another and the police 

being called. She also acknowledged that her father did not like the Defendant. 

J.M., G.M.’s father, testified that the incident involving the Defendant took place 

in the late afternoon or early evening, although it was still light outside. He stated that 

the Defendant’s trailer, which was directly across the street, was approximately 100 to 

150 yards from his home. J.M. said he was burning brush in his backyard when he heard 

whistling and then heard G.M. yell to him that the Defendant was “on the front porch 

naked.” He stated that G.M. was “sh[a]ken up, startled, starting to cry[.]” J.M. said he 

quickly turned around and saw the Defendant going back inside his own home. At the 

time, J.M. could see the Defendant’s bare buttocks as he walked inside. J.M. said that he 

was “one hundred percent positive” that he observed the Defendant’s bare buttocks that 

day. He also asserted that he was able to observe the Defendant’s buttocks even though 

the Defendant was approximately 100 to 150 yards away from him. J.M. said that 

although he heard whistling, it lasted approximately thirty seconds rather than five to ten 

minutes. He asserted that G.M. was “nervous, shaking” and began crying as a result of 

the Defendant’s actions. J.M. immediately called the police to report the incident. 

J.M. acknowledged that there had been prior disputes between the Defendant and 

him. He admitted that he had previously said he wished the Defendant were not his
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neighbor. J.M. stated that the Defendant’s trailer had burned following this incident but 

denied setting it on fire.

N.M., G.M.’s mother, testified that although she did not observe the Defendant 

herself, G.M. told her that the Defendant had his pants around his ankles and that G.M. 

had seen the Defendant’s “privates.” She said that G.M. never said she could see the 

Defendant’s penis, testicles, or buttocks, only that she had seen the Defendant’s 

“privates.” She said that G.M. and her niece, E.F., were very upset and were crying 

following this incident. She described G.M. as “quite hysterical” after this incident.

The Defendant testified in his own behalf. He admitted that he went on his front 

porch and dropped his pants for “fun” but claimed that he was still wearing his white

boxer shorts at the time. When he was asked why he dropped his pants, the Defendant 

said, “You know, I really don’t know.” He denied ever putting his hands over his genital 

area. The Defendant said that after dropping his pants, he turned around and went back 

inside his home. Although the Defendant initially said he did not remembering whistling, 

he later acknowledged that he might have whistled. He said he did not notice E.F. and 

G.M. across the street. He asserted that he did not like his neighbors so “why would [he]

pay attention to what’s going on over there[.]” The Defendant admitted that he could see 

the front yard of the home belonging to J.M. and N.M. from his front porch but denied 

ever seeing J.M. that day. 

The Defendant asserted that there had been several disputes between J.M. and him 

in the three years prior to this incident. He said that because J.M. and his family had 

obtained a no contact order against him following this incident, he moved out of his 

trailer that was across the street from them. The Defendant said that although he had 

turned off the electricity and water to his trailer, it burned down the day that J.M. and

N.M. returned from vacation.

At the conclusion of the proof, the trial court found that the Defendant’s conduct 

was “intentional[80].” The court stated, “[T]here’s no reasonable explanation to why he 

would drop his pants on his porch that faced another residence, with children playing in 

the yard, other than he expected to been seen by those children.” The court then stated 

the following:

[H]is hands on his privates would lead one to believe that they were there 

for sexual arousal. The catcall would just further exemplify that he was 

wanting to be seen by, I guess, the little girls, primarily, and the fact that 

the father saw it almost simultaneously as he wheeled around and went the 

other way, and that there was no doubt at that time that his pants were all 

the way to the ground is enough for any ordinary person to be either 
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offended or to—for the little girls’ position or at least [G.M.], she was 

viewing him conducting himself for the purpose of sexual gratification. I

really don’t have any doubt about that. There’s no explanation—he doesn’t 

give any other explanation. I suppose he could—I mean, he took the stand 

and testified, he could have said, well, I just stepped off the porch to take a 

leak, but he didn’t say that. He gave no explanation why he dropped his 

pants, so I think it fits the statute. 

The court, as the trier of fact, convicted the Defendant of the charged offense of indecent 

exposure. On March 2, 2018, the court sentenced the Defendant to six months, with 

service of forty-five days in jail and the remainder of the sentence on supervised 

probation. The judgment of conviction for this offense was entered the same day. 

Thereafter, the Defendant filed a timely motion for judgment of acquittal, motion for 

arrest of judgment, and motion for new trial, which the trial court denied. The Defendant 

then filed a timely notice of appeal. 

ANALYSIS

I. Notice to Defendant of Charged Offense. The Defendant argues that his 

indictment fails to charge an offense because it does not include the correct mens rea. 

The State counters that the indictment provided sufficient notice to the Defendant

because the challenged portion does not relate to the mens rea for the offense, and that 

even if it did, the Defendant was able to easily determine the mens rea from the named

statute. We conclude that the indictment provided sufficient notice to the Defendant of 

the mens rea for the charged offense.

The United States Constitution and the Tennessee Constitution state that a 

defendant is entitled to knowledge of “the nature and cause of the accusation.” U.S. 

Const. amend. VI; Tennessee Const. art. I, § 9. The Tennessee Supreme Court has stated 

that an indictment is valid if it contains sufficient information (1) to enable the defendant 

to know the accusation to which answer is required, (2) to furnish the court adequate 

basis for the entry of a proper judgment, and (3) to protect the defendant against double 

jeopardy. State v. Hammonds, 30 S.W.3d 294, 302 (Tenn. 2000) (citing State v. Hill, 954 

S.W.2d 725, 727 (Tenn. 1997)). Moreover, pursuant to Tennessee Code Annotated 

section 40-13-202, the indictment must

state the facts constituting the offense in ordinary and concise language, 

without prolixity or repetition, in such a manner so as to enable a person of 

common understanding to know what is intended, and with that degree of 

certainty which will enable the court, on conviction, to pronounce the 

proper judgment.
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Tenn. Code Ann. § 40-13-202; see Hammonds, 30 S.W.3d at 300 (stating that 

“indictments which achieve the overriding purpose of notice to the accused will be 

considered sufficient to satisfy both constitutional and statutory requirements”). Because 

challenges to the validity of an indictment involve issues of law, we review them de 

novo. State v. Smith, 492 S.W.3d 224, 239 (Tenn. 2016) (citing Hill, 954 S.W.2d at 

727). 

The Tennessee Supreme Court reiterated that when determining the validity of an 

indictment, the strict pleading requirements have been relaxed:

[W]e emphasize the fact that the Court has moved away from the strict 

pleading requirements adhered to under the common law. As we noted in 

Hill, “the purpose of the traditionally strict pleading requirement was the 

existence of common law offenses whose elements were not easily 

ascertained by reference to a statute. Such common law offenses no longer 

exist.” Were we to hold otherwise, we would be embracing technicalities 

that are empty and without reason.

Crittenden v. State, 978 S.W.2d 929, 931 (Tenn. 1998) (citations omitted); see Hill, 954 

S.W.2d at 727 (“[A]n indictment need not conform to traditionally strict pleading 

requirements.”). As a result of these relaxed pleading requirements, “an indictment 

which includes a reference to the criminal statute that sets forth the mens rea is sufficient 

to give a defendant notice of the applicable mental state.” State v. Carter, 988 S.W.2d 

145, 149 (Tenn. 1999).

Here, the Defendant was convicted of indecent exposure in violation of Code 

section 39-13-511, which provides, in pertinent part: 

(a)(1) A person commits the offense of indecent exposure who:

(A) In a public place, as defined in § 39-11-106, or on the private premises 

of another, or so near thereto as to be seen from the private premises:

(i) Intentionally:

(a) Exposes the person’s genitals or buttocks to another; or

(b) Engages in sexual contact or sexual penetration as defined in § 39-13-

501; and

(ii) Reasonably expects that the acts will be viewed by another and the acts:
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(a) Will offend an ordinary viewer; or

(b) Are for the purpose of sexual arousal and gratification of the 

defendant[.]

. . .

(b)(1) “Indecent exposure”, as defined in subsection (a), is a Class B 

misdemeanor, unless subdivision (b)(2), (b)(3) or (b)(4) applies.

(2) If the defendant is eighteen (18) years of age or older and the victim is 

under thirteen (13) years of age, indecent exposure is a Class A 

misdemeanor.

(3) If the defendant is eighteen (18) years of age or older and the victim is 

under thirteen (13) years of age, and the defendant has any combination of 

two (2) or more prior convictions under this section or § 39–13–517, or is a 

sexual offender, violent sexual offender or violent juvenile sexual offender, 

as defined in § 40–39–202, the offense is a Class E felony.

(4) If the defendant is eighteen (18) years of age or older and the victim is 

under thirteen (13) years of age, and the offense occurs on the property of 

any public school, private or parochial school, licensed day care center or 

other child care facility during a time at which a child or children are likely 

to be present on the property, the offense is a Class E felony.

Tenn. Code Ann. § 39-13-511 (2014).

The Defendant was indicted as follows, and the specific portion to which he 

objects has been underlined:

The Grand Jurors of Grundy County, Tennessee, duly impaneled and sworn 

upon their oath, present that:

ROGER F. JOHNSON on the 23rd day of March, 2017 in Grundy County, 

Tennessee, and before the finding of this indictment did unlawfully, 

knowingly, and intentionally expose his genitals or buttocks in a public 

place or on private premises of another or so near hereto as to be seen from 

the private premises and the said Roger F. Johnson, should have 

reasonably expected the act would be viewed by another and that such act 
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would offend an ordinary person, or should have reasonably expected the 

act would be viewed by another and the act was done for the purpose of 

sexual arousal and gratification of the said Roger F. Johnson, in violation 

of T.C.A. 39-13-511b, all of which is against the peace and dignity of the 

State of Tennessee.

The Defendant argues that his indictment fails to charge an offense because it does 

not include the correct mens rea. He contends that while the indictment states that he 

“should have reasonable expected” that his act would be viewed by another, which is an 

objective test, the statute for indecent exposure requires that he “reasonably expects” that 

his act will be viewed by another, which is a subjective test with an objective component. 

The Defendant notes that while the public indecency statute, see id. § 39-13-

517(d)(3)(A), has an objective test because it uses the “reasonably should know” 

language, the indecent exposure statute, which cites to the public indecency statute and is 

the offense for which the Defendant was charged and convicted, has a subjective test with 

an objective component because the statute uses the “reasonably expects” language. The 

Defendant claims that “[s]ince the legislature knew of the objective language in the 

public indecency statute and instead chose to use subjective language in the indecent 

exposure statute, . . . the crime of indecent exposure requires a subjective expectation that 

the acts will be viewed by another.” 

We next consider whether the indictment in this case charges an offense. The 

Tennessee Supreme Court held that so long as the constitutional and statutory 

requirements in Hill are met, “an indictment which cites the pertinent statute and uses its 

language will be sufficient to support a conviction.” Ruff v. State, 978 S.W.2d 95, 100 

(Tenn. 1998). Even if the indictment references the wrong mens rea for the charged 

offense, it is not void as long as “‘there was a specific reference in the indictment to the 

statute allegedly violated’ and the ‘culpable mental state was easily ascertained by 

reference to [that] statute.’” State v. Mario D. Frederick, No. M2016-00737-CCA-R3-

CD, 2017 WL 2117026, at *8 (Tenn. Crim. App. May 15, 2017) (quoting State v. Tyrone 

Sain, No. 02C01-9710-CC-00379, 1998 WL 999905, at *4 (Tenn. Crim. App. Dec. 24, 

1998)); see Montez Adams v. Cherry Lindamood, Warden, No. M2016-01073-CCA-R3-

HC, 2017 WL 564897, at *2 (Tenn. Crim. App. Feb. 13, 2017) (concluding that the 

erroneous inclusion of the “reckless” mens rea did not render the felony murder count of 

the indictment void because the appellant was given sufficient notice of the offense 

charged). 

The indictment charged the Defendant with intentionally exposing his genitals or 

buttocks, and it included the correct mens rea for this element of the charged offense. As 

to the very slight disparity in language regarding the element that the person reasonably 
- 8 -

expects that the act would be viewed by another,

3 we conclude that the indictment, which 

includes the correct statute for the charged offense and ample information regarding the 

elements of this offense, provided sufficient notice to the Defendant of the charged crime. 

See Ruff, 978 S.W.2d at 100; Mario D. Frederick, 2017 WL 2117026, at *8. 

Accordingly, we conclude that the Defendant is not entitled to relief on this issue. 

The Defendant also asserts that the inclusion of “T.C.A. 39-13-511(b)” was 

insufficient to cure the defect in his indictment because this Code section provides 

sentencing classification information rather than the correct mens rea for the charged 

offense. He claims that although Code section 39-13-511(b) refers to subsection (a), 

which contains the correct mens rea for the charged offense, the act of “citing a 

subsection without the mens rea makes it difficult for ‘a man of common understanding 

to know what is intended.’” See Tenn. Code Ann. § 40-13-202. He also maintains that 

mens rea discrepancy between the indictment and statute in Mario D. Frederick is easier 

for a man of common understanding to grasp than the discrepancy between the 

indictment and statute in his case. See Mario D. Frederick, 2017 WL 2117026, at *7-8 

(concluding that the trial court did not err in denying the defendant’s motion for arrest of 

judgment when the indictment, which included the correct statute for the charged offense,

erroneously included the “knowing” rather than the “intentional” mens rea for the 

solicitation of sexual exploitation of a minor offense). The Defendant contends that 

while “knowingly” and “intentionally” have meaning common men can understand, the 

“should have reasonably expected” and “reasonably expects” language involve a “fine 

legal distinction that common men would not readily grasp.” See generally R. George 

Wright, Objective and Subjective Tests in the Law, 16 U.N.H.L. Rev. 121 (2017). 

Accordingly, the Defendant claims that his indictment fails to state an offense and that

his conviction should be reversed. 

We find this argument unpersuasive. The indictment clearly referenced the correct

statute for the charged offense and the specific language used in the indictment clearly 

guided the Defendant to Code section 39-13-511(a)(1)(A)(ii), which provides the 

“reasonably expects” language. See Mario D. Frederick, 2017 WL 2117026, at *8

(concluding that an indictment containing the wrong mens rea is not void as long as the 

indictment names the statute alleged violated and the mens rea is easily ascertained by 

reference to that statute). Although the indictment referenced subsection (b) of the 

statute, which contained information about sentencing classifications, we agree with the 

 

3

“There are two broad categories of mens rea—subjective and objective.” Johnathan L. Hood, 

What is Reasonable to Believe?: The Mens Rea Required for Conviction Under 21 U.S.C. § 841, 30 Pace 

L. Rev. 1360, 1362 (2010). “Subjective mens rea requires proof of what the defendant actually knew at 

the time of the offense” while “[o]bjective mens rea . . . requires proof of what the defendant should have 

known.” Id.
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State that this language was mere surplusage and that the indictment correctly identified 

the indecent exposure statute. See Joey Lee Smith v. Kevin Myers, Warden, No. 2005-

01732-CCA-R3-HC, 2005 WL 3681656, at *2 (Tenn. Crim. App. Jan. 18, 2006) (“It is 

well-settled that an indictment is not defective because of the inclusion of surplusage if, 

after eliminating the surplusage, the offense is still sufficiently charged.”). Other than the 

“should have reasonable expected” language, the indictment follows the language of the 

indecent exposure statute. 

We conclude that the indictment in this case achieved the overriding purpose of 

notice to the Defendant of the charged offense and satisfied the constitutional and 

statutory requirements. We note that if the Defendant needed additional information 

about the offense with which he was charged, he should have moved for a bill of 

particulars pursuant to Tennessee Rule of Criminal Procedure 7(c), which enables a 

defendant to “‘know precisely what he or she is charged with.’” Tenn. R. Crim. P. 7, 

Advisory Comm’n Cmt; see State v. Hicks, 666 S.W.2d 54, 55 (Tenn. 1984). “While a 

bill of particulars certainly will not save an otherwise invalid indictment, it can serve to 

narrow a general indictment and provide a defendant with enough information about the 

charge to allow the defendant to prepare a defense and avoid prejudicial surprise at trial.” 

Hammonds, 30 S.W.3d at 303 (citing State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991)).

We conclude that the Defendant’s indictment satisfied all the statutory and constitutional 

requirements and that if the Defendant needed more specific information in order to 

prepare his defense, he should have moved for a bill of particulars, which he failed to do. 

See id. Accordingly, the Defendant is not entitled to relief.

II. Duplicitous Indictment. The Defendant appears to argue that his indictment 

is duplicitous because it references the display of both genitals and buttocks. He claims 

that these terms refer to different parts of the body and that the statutory definitions in 

Code section 39-13-501(7) distinguish between genital openings and anal openings. The

State counters that the Defendant has waived the duplicitous claim by failing to raise it 

prior to trial and that even if the indictment is duplicitous, the Defendant suffered no 

prejudice. 

We agree with the State that the Defendant has waived plenary review of this issue 

by failing to make a pre-trial motion alleging a defect in the indictment. See Tenn. R. 

Crim. P. 12(b)(2) (stating that a motion alleging a defect in the indictment must be raised 

before trial); Tenn. R. Crim. P. 12(f)(1) (“Unless the court grants relief for good cause, a 

party waives any defense, objection, or request by failing to comply with . . . rules 

requiring such matters to be raised pretrial[.]”). We note that “Tennessee Rule of 

Criminal Procedure 12(b)(2)(A) requires a defendant to file a motion alleging nonjurisdictional indictment defects, including duplicity, before the trial, and this court has 

concluded that failure to allege a duplicitous indictment before the trial results in waiver 
- 10 -

of appellate review.” State v. Duran Maszae Lee, No. E2017-00368-CCA-R3-CD, 2018 

WL 934534, at *4 (Tenn. Crim. App. Feb. 16, 2018) (citing State v. Michael Burnette,

No. E2005-00002-CCA-R3-CD, 2006 WL 721306, at *3 (Tenn. Crim. App. Mar. 22, 

2006); State v. Donald Richardson, No. 87-192-III, 1988 WL 52670, at *1 (Tenn. Crim. 

App. May 24, 1988)), perm. app. denied (Tenn. June 6, 2018). Moreover, the Defendant 

has failed to request plain error relief as to this issue and, consequently, has failed to 

provide any analysis of the five factors required for plain error review.

The plain error doctrine states that “[w]hen necessary to do substantial justice, an 

appellate court may consider an error that has affected the substantial rights of a party at 

any time, even though the error was not raised in the motion for a new trial or assigned as 

error on appeal.” Tenn. R. App. P. 36(b). In order for this court to find plain error,

“(a) the record must clearly establish what occurred in the trial court; (b) a 

clear and unequivocal rule of law must have been breached; (c) a 

substantial right of the accused must have been adversely affected; (d) the 

accused did not waive the issue for tactical reasons; and (e) consideration of 

the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)). “[P]lain error must be of such a great magnitude 

that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal 

quotations marks omitted). “It is the accused’s burden to persuade an appellate court that 

the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 

2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he presence of all 

five factors must be established by the record before this Court will recognize the 

existence of plain error, and complete consideration of all the factors is not necessary 

when it is clear from the record that at least one of the factors cannot be established.” 

Smith, 24 S.W.3d at 283. A recognition of plain error “should be limited to errors that 

had an unfair prejudicial impact which undermined the fundamental fairness of the trial.” 

Adkisson, 899 S.W.2d at 642. We must now consider these five factors in determining 

whether the Defendant is entitled to plain error relief.

Here, the Defendant appears to argue that his indictment is duplicitous because it 

mentions both the display of genitals and buttocks. An indictment charging two or more 

offenses in the same count is bad for duplicity. Griffin v. State, 70 S.W. 61, 62 (Tenn.

1902); Forrest v. State, 81 Tenn. 103 (1884). “It is impermissible to charge two or more 

distinct and separate offenses in a single-count indictment.” Michael Burnett, 2006 WL 

721306, at *2 (citing State v. Angela E. Isabell, No. M2002-00584-CCA-R3-CD, 2003 

WL 21486982, at *3 (Tenn. Crim. App. June 27, 2003)). “[T]he purpose behind the 

prohibition of a duplicitous indictment is the avoidance of the following dangers: (1) 
- 11 -

failure to give the defendant adequate notice of the charges against him; (2) exposure of 

the defendant to the possibility of double jeopardy; and (3) conviction of the defendant by 

less than a unanimous jury verdict.” Id.

We conclude that the indictment’s reference to the display of “genitals or

buttocks” did not amount to plain error. The indictment simply provided alternate

theories by which the State sought a conviction. Cf. State v. Lemacks, 996 S.W.2d 166,

171 (Tenn. 1999) (concluding that the general verdict satisfied the appellee’s right to a 

unanimous jury where the trial court instructed the jury that it needed to deliberate and 

render a unanimous verdict under the single-count indictment and that it could convict 

the appellee of DUI based on the appellee’s own actions or under a theory of criminal 

responsibility for another’s actions); Hammonds, 30 S.W.3d at 300 (“[A]n indictment 

need not allege the specific theory or means by which the State intends to prove each 

element of an offense to achieve the overriding purpose of notice to the accused.”). 

The indictment charged the Defendant with a single act of indecent exposure and 

included the date of the offense. Consequently, we conclude that the Defendant received 

adequate notice of the charge against him and was adequately protected against double 

jeopardy. We also conclude that there is no issue regarding juror unanimity in this case 

because the trial court, acting as the trier of fact in the bench trial, convicted the 

Defendant. At the motion for new trial hearing, the trial court specifically found that 

there had been no proof presented that the Defendant exposed his genitals and that the 

conviction was based on the Defendant’s exposure of his buttocks. Because the 

Defendant has failed to carry his burden of persuasion that a clear and unequivocal rule 

of law was breached, that a substantial right belonging to him was adversely affected, or 

that consideration of the error was necessary to do substantial justice, we conclude that 

the Defendant is not entitled to plain error relief regarding his allegation that the 

indictment was duplicitous. 

III. Sufficiency of Evidence. The Defendant also argues that the evidence is 

insufficient to sustain his conviction. He asserts that the proof did not show that he 

exposed his genitals or that he reasonably expected that J.M. would see his buttocks. The

State counters that the evidence presented at trial is sufficient to sustain the Defendant’s 

conviction for indecent exposure. We agree with the State. 

In considering the sufficiency of the evidence, we note that the Defendant waived 

his right to a jury trial and proceeded to a bench trial, where the trial court as the trier of 

fact evaluated the credibility of witnesses, determined the weight given to testimony, and 

resolved all conflicts in the evidence. State v. Steven Kelly, No. M2018-00659-CCA-R3-

CD, 2019 WL 920361, at *2 (Tenn. Crim. App. Feb. 25, 2019), perm. app. denied (Tenn. 

Apr. 11, 2019). The trial court’s verdict in the Defendant’s bench trial carried the same 
- 12 -

weight as a jury verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v.

Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).

“Because a verdict of guilt removes the presumption of innocence and raises a 

presumption of guilt, the criminal defendant bears the burden on appeal of showing that 

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279 

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)). 

“Appellate courts evaluating the sufficiency of the convicting evidence must determine 

‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). 

When this court evaluates the sufficiency of the evidence on appeal, the State is entitled 

to the strongest legitimate view of the evidence and all reasonable inferences that may be 

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State 

v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). 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 Hanson, 279 S.W.3d at 275). The trier of fact must evaluate the credibility of 

the witnesses, determine the weight given to witnesses’ testimony, and reconcile all 

conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing 

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the trier of 

fact determines the weight to be given to circumstantial evidence, and the inferences to 

be drawn from this evidence, and the extent to which the circumstances are consistent 

with guilt and inconsistent with innocence, are questions primarily for the trier of fact. 

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). 

When considering the sufficiency of the evidence, this court does not re-weigh the 

evidence or substitute its inferences for those drawn by the trier of fact. Wagner, 382 

S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). 

At the motion for new trial hearing, the parties and the trial court discussed

whether the evidence was sufficient to sustain the Defendant’s conviction:

[Defense Counsel]: [I]nsufficient evidence. And I have several 

arguments for insufficient evidence. The first is 

that these are alternate theories of the crime and 

they have not proven the elements to each alternate 
- 13 -

theory. So you have got indecent exposure by 

exposing one’s genitals, indecent exposure by 

exposing one’s buttocks . . . . These are alternate 

theories and you can’t just jumble the elements 

together. 

The Court: Of course, the facts in th[is] case did not talk about 

genitals, so there is only one thing that they could 

have determined and that would be buttocks.

[Defense Counsel]: Well, and so I kind of deal with both of that in the 

memorandum, because the genitals were never seen 

by the girls. The buttocks, though, the father said 

that when he turned to see [the Defendant], he was 

already walking back inside. So when it comes to 

the intentional element or at least knowing element, 

that’s not there. [The Defendant] never saw the 

father. . . .

[The State]: . . . [Y]ou may recall the [Defendant] got on the 

stand and, you know, we asked him why he yanked 

his britches down and he just kind of [said], well, I 

don’t really know. It wasn’t like, you know, I was 

using the restroom or—it was just I don’t know.

. . . We think he intentionally exposed himself. 

And I think it was sufficient that . . . Your Honor 

heard not only the [minor victims’] testimony that 

corroborates [the other testimony from the State’s 

witnesses], but then we heard the father’s 

testimony . . . of what he observed, . . . [the 

Defendant’s] buttocks, as he went back in the 

house. Now, that’s where the State maintains that 

we put forth sufficient evidence.

[Defense Counsel]: And, I mean, we can see the proof did have that the 

buttocks w[ere] exposed, but the statute [requires 

that the person] reasonably expects the acts will 

offend an ordinary viewer or [is] for the purpose of 

sexual arousal or gratification. If he doesn’t know 
- 14 -

the father is there, I just argue they have not proven 

that particular element. . . .

The Court: Well, if the children were there, they—

[Defense Counsel]: The children never saw him.

The Court: They saw that he had his hands down in his crotch 

and that sort of thing.

[Defense Counsel]: . . . [Y]es, that would be enough for indecent 

exposure [by sexual contact], but they didn’t indict 

that, so that would be a constructive amendment.

Later, the trial court concluded that although some of the proof was inconsistent, the 

evidence was nevertheless sufficient to sustain the Defendant’s conviction for indecent 

exposure. Specifically, the court stated,

I think there was some inconsistency between what the children saw or 

were able to see and the father and all that, but I don’t think there was any 

doubt that [the Defendant] was standing on his porch with his pants 

dropped down in a place where he could be seen by all three of those 

individuals. And something shocked the heck out of the little girls because 

they were real upset, as I recall from the testimony. 

First, the Defendant claims that the evidence is insufficient to sustain his 

conviction for indecent exposure by exposing genitals because the proof established that 

he covered his genitals with his hands and that the minor victims never saw his genitals. 

He specifically references E.F.’s testimony that she did not see him unclothed, G.M.’s 

testimony that she only saw the Defendant’s hands over his privates and did not see his 

“privates,” and his own testimony that he was wearing white boxer shorts at the time of 

the incident. He also references the trial court’s statements at the motion for new trial 

hearing that the evidence in this case only supported a finding that the Defendant exposed 

his buttocks, not his genitals. Although the Defendant acknowledges that dropping one’s 

pants and touching the clothing over one’s genitals when young girls are nearby is “likely 

criminal” pursuant to the offense of indecent exposure pursuant to Code section 39-13-

511(a)(1)(A)(i)(b), he asserts that he was not indicted for indecent exposure by sexual 

contact.

Second, the Defendant argues that the evidence is insufficient to support a 

conviction for indecent exposure by exposing one’s buttocks because the proof showed 
- 15 -

that he had no reasonable expectation that J.M., G.M.’s father, would see his buttocks. 

He references J.M.’s testimony that the distance between their homes was 100 to 150 

yards, that J.M. was clearing property in his own backyard when G.M. told him that the 

Defendant was on the front porch naked, and that J.M. turned around while still in his 

backyard and saw the Defendant’s bare buttocks just as the Defendant walked back inside 

his home. The Defendant admits that morally, he “should have reasonably expected the 

act would be viewed by another,” but that criminally, the indecent exposure statute 

requires him “to reasonably expect that the act would be viewed by another.” See Tenn. 

Code Ann. § 39-13-511(a)(1)(A)(ii). The Defendant asserts that because he was walking 

back inside his home and never knew J.M. “was there,” he did not reasonably expect that 

the act of exposing his buttocks would be viewed by J.M. 

The Defendant also contends that “[t]he only way to sustain [his] conviction is to 

mix elements from both theories of indecent exposure.” He claims that “[t]he 

temptation” is to take one of the elements in Code section 39-13-511(a)(1)(A)(ii) as it 

relates to the minor victims and then combine it with the exposure element in Code 

section 39-13-511(a)(1)(A)(i) as it relates to J.M. He claims that “[t]his temptation is 

especially great given that [he] likely committed the unindicted crime of indecent 

exposure by sexual contact.” See id. §§ 39-13-511(a)(1)(A)(i)(b), 39-13-501(6). The 

Defendant contends that because the State never proved all of the elements to an indicted 

theory of indecent exposure, this court should reverse his conviction. 

Initially, we conclude that the proof is insufficient to show that the Defendant 

intentionally exposed his genitals to the minor victims. E.F. testified that she did not see 

the Defendant unclothed during this incident. G.M. testified that the Defendant had his 

pants down around his ankles but that the Defendant’s hands were “[u]p near his 

privates” and were “covering” his privates. Consequently, we conclude that the State 

failed to prove that the Defendant intentionally exposed his genitals. 

However, because the proof is sufficient to show that the Defendant intentionally 

exposed his buttocks and reasonably expected that this act would be viewed by another 

and would offend an ordinary viewer, the evidence is sufficient to support his conviction 

for indecent exposure as indicted. See id. § 39-13-511(a)(1)(A)(ii)(a). A defendant, who 

whistles at children and stands on his front porch with his buttocks exposed, can 

reasonably expect to be seen by these children or someone else in front of his home. See

Mario D. Frederick, No. M2014-01653-CCA-R3-CD, 2015 WL 5924942, at *5 (Tenn. 

Crim. App. Oct. 12, 2015); State v. Darrell Little, No. M2014-01927-CCA-R3-CD, 2015 

WL 5679620, at *5 (Tenn. Crim. App. Sept. 28, 2015). Such a defendant can also

reasonably expect that this act will offend an ordinary viewer. See Mario D. Frederick, 

2015 WL 5924942, at *5. Here, the trial court, as the trier of fact, simply accredited the

testimony of the State’s witnesses over the testimony of the Defendant, as was its 
- 16 -

prerogative. Viewing the evidence in the light most favorable to the State, we conclude 

that the proof is sufficient to sustain the Defendant’s conviction for indecent exposure. 

CONCLUSION

Based on the aforementioned authorities and reasoning, we affirm the judgment of 

the trial court.

____________________________________

 CAMILLE R. MCMULLEN, JUDGE