### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 27, 200 1 Session

STATE OF TENNESSEE v. F. CHRIS CAWOOD

Direct Appeal from the Circuit Court for R oane County No. 12180 Buddy D. Perry, Judge

No. E2000-02478-CCA-R3-CD February 25, 2002

The Defendant was indicted for two counts o f promoting prostitution and for two counts of pat r onizing prostitution. Following a bench trial, the Defendant was convicted of two counts of attempting to patronize prostitution, a Class C misdemeanor; sentenced to thirty day s suspended; a nd fined $50.00 for each count. The Defenda nt now appeals, arguing the following: (1) that the evidenc e is insuff

icient to support the convictions; (2) that the conduct by law enforc ement in th is

case was so outrageous as to constitute a defense; (3) that a fatal variance exists between the indicted charges and the e

vidence present ed at tria l; (4) tha t the tria l court e rred in failing to supp ress the audio and video

tape evi dence th at was int roduced at trial; a

nd (5) tha

t the tria l court erred i n denying the Defendant’s motion to seal the audio and video tape evidenc e in this case. Concluding that the evidence is insufficient to support theconvictions, we reverse the judgment of the trial court and dismissthe char

ges agai nst the Defendant

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J AMES C URWOOD W ITT , J R ., J., joined.

Patrick C. Cooley, Kingston, Tennessee, for the Appellant, F. Chris Cawood.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and J. Michael Taylor, District Attorney General, for the A ppellee, State of Tennessee.

OPINION

I. Facts

At trial, Tamela Clark testified that in the summer of 1998, she retained the services of the Defendant, an attorney, to represent he r in her divorce case. The divorce was gr anted in February 1999, but Ms. Clark experienced post-divorce legal diffi culties with her former husband and contacted the Defendant in the spring of 1999 for further lega l services. Ms. Clark

testified that she-2-

met with the Defendant late one afternoon that spring to discuss her lega

l problemspertain

ing to her former spouse. Ms . Clark te stified th at as she was getti ng ready

to le ave, the Defendant “began masturbat ing and told [her ] he did no t want sex , he just wa nted [he r] to wat ch him and

he would knock $100.00 off [her] bill.” Ms. Clark remained in the office for “just maybe five minutes or so” while the Defendant masturbated himself to climax. Ms. Clark testified that she then left the office and later talked to a “girlfriend that lives out-of-state and told her what had happene d . . . .” She

did not, at that time, report the incident to anyone in law enforcement.

Ms. Cl ark

testified that a similar incident occurred when she returned to the Defendant’s office in late April 1999. Again, the Defendant and Ms. Clark discu ssed lega l matters, and the Defendant

then mastur

bated in fron t of Ms. Cla rk. Acc ording to M s. Clark, t he Defe ndant aga in stated that he did not wa

nt to have sex with her, but he would “knock $100.00 off [her ] bill if [she] would sit and watch him.” She further testified that the Defendant “w alked up to the f ront desk and marked it off my bill.”

Ms. Clark tes tified tha

t a few da ys after the seco nd incide

nt, she told a

Roane Cou

nty General Sessions Judge about

the Defendant’s conduct and was ref erred by the judge

to the Roan

e County District Attorney ’s office. Eventua lly, Ms. Cla

rk talke d to Linda B ooth, a Cr iminal Inv estigator

with the Roane

County Sher

iff’s De partmen t.

On May 10, 1999, pursuant to an appointment she mad e, Ms. Clark arrived at the Defendant’s law office with a hidden video camera in her purse and a

hidden au dio “wire” taped to her leg, both of which were supplied to Ms. Clark by various law enforcement personnel. After a discussion concerning the post-divorce legal action involving Ms. Clark’s former hu sband, the Defendant

allegedly asked Ms. Clark again to watch him masturbate. Accor ding to Ms. Clark, the Defendant

also asked her to hit him on the buttocks with a belt, and she did so. At his req

uest, she also pinched his nipples as he mastur bated. Ms. Clark testified that after completing this act, the Defendant

rearranged his clothes and walked out front whe re he “marked the money off [her] bill.” She then lef

t th e Defendant’s office. Ms. Clark later me t with law enforcement personnel who retrieved the audio “wire” and th e purse c ontaining the video camera. The video camera had not workedduring Ms. Clark’s e ncounter withthe Defendant, but the “wire” did, and an audio tape of this encounter was made.

Ms. Clark testified that on May 18, 1999, she again met with various law enforcement personnel and was “wired up” prior to another appointment with the D efenda

nt. Acco rding to Ms

. Clark, a similar event involving basical ly the same activities occurred. Ms. Clark testified that the Defendant

did not, on any occasion, ask her to have sexual intercourse with him. At the meeting between Ms. Clark and the Defendant on May 18, 1999, the video camera a nd the audio tape were both functioning properly, and a video tape and an audio tape of this encounter were made.

Linda Booth, a criminal investigator with the Roane County Sheriff’s Department, testified that she was contacted by Ms. Clark in the latter part of April or early pa rt of May 1999. Ms. Booth then made arrangements to have Ms. Clark electronic ally wired for audio and video recording. On May 10, 1999, Ms. Booth and several other law enforcement off icers met with Ms. Clark at the-3-

Tennessee Bureau of Investigation office in Kingston, Tennessee. The la w enforcement

personnel followed Ms. Clark to the Defe

ndant’s l aw offic e after

“wiring u

p” Ms. Clar

k. Ms. Booth and the other law enforcement agents parked in a va cant lot near

the Defendant’s law office while Ms. Clark
met with the Defendant. An audio recording was made of the me eting bet

ween Ms. Clark and the Defend ant, but the video camera did not work. The audio recording wa s entere d into evidence at the trial.

This same procedure was ba sically repeated on May 18, 1999. On this occasion, both the audio and the video devices worked properly, and a video tape and an a udio tape were admitted

into evid ence. On cross-examination, Ms. Booth agreed that Ms. Clark had raised the issue of mon e y withthe Defendant on both occasions in which law enforcement were involved. Ms. Booth denied instructing Ms. Clark

to bring up the issue of money. Ms. Clark maintained on cross-examination that she was not a prostitute, that she was not in the business of prostitution, and that in May of 1999 she had not been in the business of prostitution.

Mary Webb, the Defendant’s secreta ry in his law office, testified for the defense. She testified that

Ms. Clark wor

e “tight f itting clot hes” and was “fli rtatious” toward th e Defe ndant. Ms. Webb testified that she suspected that something might be going on between the Defendant and Ms. Clark. Ms. Webb t

estified that th e Defendant

never requested that Ms. Webb set Ms. Clark’s appointme

nt for af ter reg ular busi ness hour s.

The Defendant testified that he had practiced la w in Roane Cou

nty for tw enty-seven yea

rs. He testified that Ms. Clark came to his office on August 10, 1998 and retained him to represe nther in a divorc e. He quo ted her a “flat fee” of $1, 600.00, of which $25 0.00 was p aid on August 10, 1998. As the De cember

trial dat e approached, the Defendant “sa w that he wa sn’t going

to be paid by the time

of the trial, so [he and Ms. Clark] executed a promissory note f or the $1,350.00

that [Ms. Clark] mentioned earlier, and that was to be paid at a r ate of $100.00 per month.”

The Defendant testified

that Ms. Cla

rk alway s wore tight jeans a nd usually

wore a b louse that was cut at the midriff. He fu rth er testified that “it appeared she wasn’t we aring bras.” The Defend ant also in

terpre ted Ms. Cla

rk’s beh avior as flirtatio

us.

The Defendant testified that on the M ond ay following the December 10, 1998 divorce hearing, Ms. Clark came to his office without an appointment and appeared to be happy wit h th e outcome of the divorce. The Defend ant te stified that he and Ms. Clark hugged and kissed and “started into a little activity there on December 14, that included kissing her breasts, . . . her kissing

me and what

ever, a nd her on ly conce rn at tha t time was, Will your s ecreta ry come in and I told her, ‘No I don’t think so.’” The Defendant testified that in the

middle of J anuary 1 999, Ms. Cla rk came
to his office, and she and the Defendant enga ged in consensual sexua l activit y. On that

same occasion, according to the Defendant, Ms. Clark made a regular monthly payment on her account ($100.00). The Defenda

nt testified that in Feb

ruary of 1999, he b egan re

present ing Ms. Clar

k in post-divorce matters, for which it would have been customary for him to charge additional fees. He testi fied that he did not charge additional fees because of the pe rsonal relationship that had-4-

developed

between Ms. Clark and him. He also felt that she was having financia l diffi c ulties because in the final divorce decree , she was ordere d to pay “about three mortgages on her house.”

The Def endant testified that once or twice a month he and Ms. Clark engaged in a ctivity similarto what occurred as a basi s for the charge s against

him. This activity continued in February, March, and April of 1999. The Defend ant testif ied that early in April, Ms. Clark offered to have sexual relation s with him for $400.00. He testified that he did not give her $400.00 and that they “didn’t have sexual relations.” The Defenda nttestified tha t he neve

r thought M s. Clark w as a prostitute. The Defendant testified that in April, Ms. Clark told him, “I can still have sex with you if yo u’ll wipe out my whole account.” The Defendant stated, “Again, I didn’t say yes or no o r nothing. We just went ahead and did some things and then later on I said don’t worry about your monthlypayment, I’m

not going to try to collectit.” The Defendant testified that as Ms. Clark was leaving on one occas ion, he said, “Don’t worry about your April payment, I’ll mark it off.” T he Defendant

testified that

with regard to the two incidents for which he was convicted, Ms. Clark w as the one who brought up the idea of deducting money from her bill. The Def endant denied ever refusing to file le gal docum ents or r efusing t o do legal work for

Ms. Clark u

nless she continue d with

a sexual relationship. The Defendant testifie d that he c

redited Ms. Clark’ s bill beca

use he sti ll had feelings for her. Specifically, he stated, “I thought she was in a ha rd time financially. If that w ould help her to give her

a credit on that, that was fine with me to give her a credit. I’m not going to live

or die on $50.00 or $100.00, and somebody in her fin ancial p osition, if that wer e to get he

r by until the next month, that was fine.” The Defendant further stated, “I ha ve neve

r had any intent to patronize prostituti o n. I neve r th ought she was a prostitute. I thought we had a personal relationship, that I shouldn’t have had with a client, that got out of hand, that I was helping her on those two or three occasions, so she could pay her monthly bills and not have to pay me. No, I never thought this was illegal.”

In rebutta l, Ms. Clar

k testifie d that she

had not ha

d consen sual sex of an y type with the Defendant

and that her first sexual encounter with the Defendant occurr ed in the spring of 1999. She denied offering to have sex with the Defendant for $400.00, and she basically reaffirmed that there

was no other activity of a sexual nature between he r and the Defendant other than what she ha d described in her initial testimony.

II. Analysis

A. Sufficiency of the Evidence

The Defendant was convicted of two counts of attempt

to patronize prostitution. Patronizing prostitution is general ly classified as a Class B misdemeanor. See Tenn. Code Ann. § 39-13- 514(b)(1). Therefore, attempting to patronize prostitution is classified as a Class C misdemeanor. See id. § 39-12-107(a).

“‘Patronizing prostitution’ means soliciting or hiring another person with the intent that the other person engage in prostitution, or entering or remaining in a hous e of prostitution for the purpose of engaging in sex ua l activity . . . .” Id. § 39-13-512(3). “‘Prostitution’ means engaging-5-

in, or offe ring to engage

in, sexua l activity as a business or being an inmate in a house of prostitution

or loitering in a public place for the purpose of being hired to engage in sexual activity . . . .” Id. § 39-13-512(5). “‘Sexua

l activ ity’ means any sexual relations incl uding homosexual sexual relations.” Id. § 39-13-512(6).

“Crimina l attempt”is define d as follo ws: A person commits criminal attempt who, acting with the ki nd of culp ability otherwise required for the offense: (1) [i]nte ntionally

engages in action or causes a result that would constitute a n offense if the circumstances surrounding the condu ct were as a person believes them to be; (2) [a]cts with intent to cause a re sult that is an element of the offense, and believes the c ond uct will cause the result without further conduct on the person’s part; or (3) [a]cts withintent to complete a course of action or cause a result tha t would constitute the offense under the circumstances surr ounding the condu ct as a person believe s them to be , and the c onduct co nstitutes a substanti al s tep toward the commission of the offense. Id. § 39-12-101(a).

When an accused challenges the sufficiency

of the evidence, an appellate c ourt’ s standard of revie w is whether , after

consider ing the e vidence in the lig ht most fav orable

to the prosecution, any rational trie

r of fact could have found the essential eleme nts of the crime bey ond a reasona ble doubt. Tenn. R. A

pp. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 3 24 (1979) ; State v. Duncan
, 698 S.W.2d 63, 67 (Tenn. 1985) . This rule applies to findings of guilt based upon direct evidenc e, circumstantial evidence, or a combination of both di rect and circumstantial evidence. State v. Penderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evide nce, this Court shou ld not re- weigh o r re-evaluate the e vidence. State v. Matthews , 805 S.W.2d 7 76, 779 (T enn. Crim. App. 1990 ). Nor ma y th is Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. Stat e v. Buggs
, 995 S.W.2d 102, 105 (Tenn. 1999); Liak as v. State , 286 S.W.2d 856, 859 (Tenn. 1956) . Questions

concer ning the cre dibility

of the wit

nesses, t he weig ht and val

ue of the evidenc e, as well as all factual issues raised by the e vidence are resolved by

the trier of f

act. Liakas , 286 S.W.2d at 859. Although the Defendant was convicted in a bench trial, the findings of the trial judge who conducted the procee ding car

ry the sa me weight asa jury ve

rdict. State v. Ta

te , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). This Court m ust affo rd the Sta te of Tennessee the strongest leg itimate view of the evidenc e contai ned in the record , as well

as all reasonable inferences which may be drawn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt agains t

a defendant removes the

presumpt ion of inno cence a

nd raise s a

presumption of guilt, the convicted criminal defendant

bears the burden

of showin g that the evidence was le gally insuffic ient to sust

ain a guilty ve

rdict. Id.-6-

The State argues in its brief that the Defendant attempted to hire Ms. Clark with the intent that she engage in sexual activity as a business, i.e., with the intent that Ms. Clark engage in sexual activity in exchange for monetary compens ation in t he form of deductions from her outstanding balance owed f

or legal ser vices. Although the term “business” is not defined in the definitions section of our criminal code, “business” is defined in The Americ an Heritage Diction ary of the English Languag e as “[t

]he occupation, w ork, or tr ade in which a pe rson is en gaged or a specif ic occupational pursuit.” The American Heritage Dictionary of the English La

nguage ( 4th ed. 2000). As the Defendant argues in his brief, both Ms. Clark and the Defendant denied that Ms. Clark was

a prostitute

or in “bus iness” as a prostitute. There was no evidence that she in any w ay pretended
to be a prostitute . There

was no te stimony fr

om any witness char

acteriz ing Ms. Clar

k as a prostitute. Perhaps more important

ly, the re cord is void of any evidence that Ms. Clark engaged in or offe red
to engage in sexual activity as a business. There is no evi dence th at the Defe ndant att empted to solicit or hire Ms. Clark with the intent that Ms. Clark engage in sexual activity as a business. The dictionary definition of “business,” and for that matter the “common s ense” de

finition of business, does not, in our view, include the type of sexual activity that occurred between the De fendant and Ms. Clark. Even considering the evidence in the light most favorable to the State, that is, that the Defendant

attempted to solicit or hire Ms. Clark with the in

tent that M s. Clark e

ngage in prostitution (which by definition would require Ms. Clark to engage in sexual activity as a business), we cannot conclude that the D efenda nt’s inten t to cred it Ms. Clark’s account after each a ct involving “sexual relat ions” would result in Ms. Clark’s engaging in sexual activity as a “business.” If the sexua l activity that occurred between the Defe ndant and Ms. Clark does not qualify as prostitution, then it logically follows that the Defendant was not guilty of attempting to patronize prostitution.

We note that in State v. Lane Pulley , No. M2000-02609-CCA-R3CD, 2001 WL 1597740 (Tenn. Crim. App., Nashville, Dec. 14, 2001), a panel of this Court recently adopted, for purposes of defi nitio n only, the definition of “business” contained with the provisions of the Business Tax Act. Id. at * 3 (citin g Tenn. Code Ann. § 67-4-701 ). Tennessee Code Annotated § 67-4-702(1) defines a “busine ss,” in

pertinent part, as follows: “‘Business’ includes any activity engaged in by any person, or caused to be engaged in by the person, with the object of gain, benefit, or advantage, either direct o r indirect. ‘Business’ does not include occasional and isolated sales or transactions by a person not routinely engaged in business.”

Although the issue in the Pulley case involved the suffi ciency of e vidence in a deceptive business practic e case, an applic ation of th e BusinessTax Act d

efinition of “business” to this case yields the same results. The first sentence of the definition would support the State’s position. However, the second se

ntence, in our vie w, would exclude the conduct between the Defe ndant and Ms. Clark from the definition of “business.”

We concl ud e that the

evidenc e is insuff

icient to c onvict the

Defend ant. Nev erthele ss, we wil l briefly a ddress the additio nal issue s raised in this app eal.-7- B. Outrag eous Polic e Conduct Defens e

The Defendant argues on appeal that the conduct of the police in this case was so outrageous

as to constitu

te a violation of his right to fundamental fairness that is inherent in his right to due process

. Both the State and the Defendant point out that the

Tenness ee Supre

me Court ha s implicitly recognized the validity of an “outrageous conduct” defense. See State v. George Lewis Michaud
, No. 01C-01-9002-CR-00044, 1992 WL 41710 at *2 (Tenn. Crim. App., Nashville, Mar. 6, 1992) (citing Hyde v. Sta

te , 174 S.W. 1127 (Tenn. 1915)). T he Tennessee Supreme Court has concluded that if the gov ernment

or its age nt suggest s the criminal design or assists the perpetrator toward the commission of the crime in some active manner, i.e., is inextricably entwined in the commission of the offense, the government’s participation is then a defense. Id. (citing Hyde , 174 S.W. at 1130). In this case, the State

advanc es crite

ria consider ed relevant by the

Sixth Circu

it Court of A

ppeals “ to be taken into consideration when determining if police conduct impinged constitutional due process protections.” United States v. Johnson , 855 F.2d 299, 304-05 (6th Cir. 1988). The fac tors are as follows: “(1) the need for

the type of government conduct in relationship to the criminal activity; (2) the preexistence of a criminal enterprise; ( 3) the level of direction or c ontrol of the criminal enterpr ise by the gov ernment ; [and] ( 4) the impa

ct of the governme

nt acti vity to cre ate the commission of the criminal activity.” Id. at 305.

Although we have determined that no crime occurr ed in this case, if we assume th at the Defendant

didattempt to patronize prostitution under the circumstances presented by the evidence in this case , we conc lude that the Defe ndant’s d efense of “outr ageous [ police] conduct”

has merit

. In our view , Ms . Cl ark clearly assisted the Defendant towar d the commission of the crime in an active manner. Her conduct was inextricably entwine d in the commission of the offense. Further, when we exam

ine th e othe r relevant criteria, the evidence in this case indicates that there was significant

participation on the part of the State in the direction and control of the criminal enterprise, and the im

pact of t he State activity w as to cre ate the c ommission of the crime not only on the part of the Defendant, but also on the part of the victim. Thus, Johnson factors three and fo ur w eigh heavily in favor of the Defendant. See id. Additionally, the Defendant makes a persuasive ar gument t hat factor two, see id. , weighs in favor of the “outr

ageous c onduct” d

efense , as the evidenc e supports the argument that the criminal enterprise did not exist prior to the “undercover” a ctivity by Ms. Clark acting as an agent of the police. A l though the use of an

underco ver age

nt or paid informant by the government has long been held not to violate a defendant’s right to due process , se e United Sta

tes v. Russe

ll , 411 U.S. 4 23, 432 (1 973), we are con vinced in this case tha

t th e Defendant’s right to due process was violated by the conduct of the police. With the unusual factual

sc enario involved in this case, the police participation constitutes a defense. There fore, had we determinedthat the evidence was sufficient to convict the Defe ndant, we would have nonethel e ss reversed his conviction because his due proce ss rights were violated.

Although the State correctly points out in its brief that the additional conduct of the police in inappropriately showing the video-taped evidence occ urred after the offense was committed, we nonethel ess believe that this inappropriate conduct by the police bolsters the Defendant’s claim that his defe nse of “o utrageous conduc t” by the p olice ha s merit.-8- C. Variance Between the Indictment and the Evidenc e

The Def endant argues that because the indictment alleges that the D efenda nt himself engage d in sexual a

ctivity as a

business, a fatal variance exists between the indictment and the actual evidence that was presented at trial. The State argues that the indictment sufficiently informed the Defendant of the charges against him to allow the preparation of a de fense and protected him from a second prosecution. We agree with the State.

O ur supreme court held that unl e ss substantial rights of the defendant are affecte d by a variance, the defendant has suffered no harm. State v. Mo ss , 662 S. W.2d 590, 592 (Tenn. 1984). “[A] variance does not prejudice the defe ndant’s substantial rights (1) if the indictmen

t suffici ently informs the defe

ndant of t he char ges against

him so t hat he may prepare his defense and not be misled or surprised at trial, and (2) if the variance is not such that it will present a danger that th e defendant may be prosecuted a sec ond time for the same offense . . . .” Id.

We do not beli eve that

the Defe ndant in th

is case c ould

have re asonably

believed that he was charged with enga

ging in sex

ual activ ity as a bu siness wit

h him self. In our view, the indictment sufficie ntly informed the Defendant of the charge s against him under the Moss test, see id. and the Defend ant is not in danger of being prosecuted a second time for the sa me offense. Therefore, we find that t he varia nce in the indictmen

t in this ca se is har

mless err or. This is sue is with out merit.

D. Suppression of Audio and Video Evidence

The Defendant argues on appeal that the trial court “erred in allowing the audio and video taping of the incident of May 18, 1999, to be introduced into evidence.” In our view, this issue is without merit. The law enforcement officer s equipped Ms. Clark with video equipment a nd audio equipment

which was used to mon

itor and r ecord th e activit ies of the Defend ant and Ms

. Clark. As the State points out in its brief, this type of investigative work is sanctioned by Tennessee Code Annotated § 39-13-601. Ms. Clark was fully aware of and co nse nted to the use of the audio and video equipment used to record her communications with the Defenda nt. The Defendant

invited Ms. Clark into his off

ice and f reely and volun

tarily co mmunicate d with her . This issue is without me

rit.

E. Sealing of Audio and Video Evidence

The Defendant argues in his brief that the trial court er red in denying the Defendant’s motion
to seal the audio and video evidence “so that they would not be made publ ic.” The Defend ant also suggests in his brief that this Court should place the audio and video evidence under seal. As authority for this request, the Defendant cites Tennessee Code Annotated § 40-6-304(f)(1), which is part of the statute in Tennessee that deals with wiretapping and electronic surveillance. The State responds in its brief that the terms of Tennessee Code Annotated § 40-6-304(f)(1) providing for the confide ntiality and seal ing of inte rcepted communications are limited to c ommunications intercepted pursuant to an order of electronic surveillance. We agree w ith the Stat

e. This iss ue is without merit.-9- III. Conclusion

For the rea sons prev

iously stat

ed, we c onclude t

hat the ju dgments of the tri al court must be reversed and that the charges aga inst the Defendant should be dismissed. It is so ordered.

___________________________________ ROBERT W. WEDEMEYER, JUDGE