State of Tennessee v. Barry H. Hogg ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs August 14, 2012
STATE OF TENNESSEE v. BARRY H. HOGG
Appeal from the Criminal Court for Wilson County
No. 10-CR-57 David Earl Durham, Judge
No. M2012-00303-CCA-R3-CD - Filed April 16, 2013
Appellant, Barry Hogg, was indicted by the Wilson County Grand Jury for eleven counts of
especially aggravated sexual exploitation of a minor, nine counts of criminal exposure to
HIV, nine counts of aggravated statutory rape, and one count of sexual battery. Prior to trial,
the State dismissed one count of sexual battery, two counts of criminal exposure, and three
counts of aggravated statutory rape. A jury found Appellant guilty of the remaining counts,
including eleven counts of especially aggravated sexual exploitation, seven counts of
criminal exposure of another to HIV, and six counts of aggravated statutory rape. As a result
of the convictions, the trial court sentenced Appellant to twelve years at one hundred percent
incarceration for the especially aggravated sexual exploitation convictions, six years at thirty
percent for each of the criminal exposure of another to HIV convictions, and four years at
thirty percent for each of the aggravated statutory rape convictions. The trial court ordered
the convictions for especially aggravated sexual exploitation to be served consecutively to
the seven convictions for criminal exposure of another to HIV and consecutively to each
other. The trial court ordered Appellant’s aggravated statutory rape sentences to run
concurrently with one another and with all other counts, for a total effective sentence of 174
years. Appellant appeals his convictions, contesting the sufficiency of the evidence and his
sentences. After a review of the record, we determine that the evidence was sufficient to
support the convictions and that the evidence supported individual convictions for events that
occurred during one sexual encounter. Further, the trial court properly sentenced Appellant.
Accordingly, the judgments of the trial court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
C AMILLE R. M CM ULLEN, JJ., joined.
Gregory D. Smith, Clarksville, Tennessee; Comer L. Donnell, District Public Defender and
William K. Cather, Assistant Public Defender, for the appellant, Barry H. Hogg.
Robert E. Cooper, Jr., Attorney General and Reporter; Andrew Coulam, Assistant Attorney
General; Tom P. Thompson, District Attorney General, and Thomas Swink, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. FACTS
Appellant was a friend of the family of the victim,1 who was fourteen years old when
Appellant bought him a sex toy, some lubricant, and incense for his birthday. The incense
was designed to be snorted to provide the user with a high.
At some point around the time of the victim’s birthday Appellant took him to an
abandoned store in Wilson County. While at this location, Appellant and the victim engaged
in various sexual acts, including the penetration of the victim’s anus by Appellant’s penis,
fellatio, manual stimulation of the victim’s penis, and masturbation. The events occurred
during a period of about one hour. Appellant recorded some or all of the acts with a digital
camera. The victim engaged in the acts willingly despite his intoxication and age.
Unbeknownst to the victim, Appellant had been diagnosed as HIV positive in 2006.
Shortly after the incident, someone reported to the Smith County Sheriff’s Office that
Appellant had kidnapped the victim. Appellant was interviewed by officers and denied
kidnapping the victim. He admitted during the interview that he knew the victim and had
purchased a sex toy for the victim’s birthday. Appellant also informed authorities that he
took pictures of the victim but denied that the pictures were obscene.
The victim was interviewed. At first, he claimed that he was kidnapped by Appellant.
However, the victim later told authorities that Appellant had taken him to an abandoned store
and the two had engaged in sexual activity.
Appellant was interviewed by Officer Carlo Sguanci of the Fifteenth Judicial Drug
and Violent Crime Task Force. During the interview, Appellant admitted that he had both
anal and oral sex with the victim on the weekend after the victim’s fourteenth birthday.
Appellant admitted that he did not use sexual protection during the encounter and referred
1
It is the policy of this Court to protect the privacy of minor victims of sexual abuse.
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to it as a “play date.” Appellant also admitted that he possessed video recordings of his
sexual encounter with the victim and multiple pictures of the victim performing fellatio.
At trial, Officer Sguanci testified that Appellant appeared “aroused” during the
interview, touching his crotch and breasts while giving his statement.
Appellant’s computer and digital camera were seized during the execution of a search
warrant. Appellant was present for the search and was able to show officers where the
“naughty videos and pictures” were located. Appellant admitted ownership of both the
computer and camera that were seized during the search. On the computer, eleven video files
were recovered from the hard drive. The video recordings depicted Appellant and the victim
engaged in various sexual acts and ranged in length from two seconds to four minutes and
two seconds. The images were created on September 6, 2009, between 3:23 p.m. and 4:31
p.m. The files were downloaded from the camera to the computer two days later.
Melanie Garner, a Special Agent with the Tennessee Bureau of Investigation, testified
about the video recordings recovered from the computer. She was unable to discern how
many times the files had been accessed since they were downloaded to the computer or
whether they represented one continuous sexual act. She was able to confirm that the videos
all appeared to have been shot at the same location with the same parties.
Dr. Catherine McGowan, an infectious disease specialist at Vanderbilt University,
testified for the State. Dr. McGowan was Appellant’s treating physician and was certified
as an expert by the trial court. She confirmed that Appellant was diagnosed as HIV positive
in November of 2006. As part of the diagnosis, Appellant received counseling on the
transmission of HIV and the importance of safe sex and/or abstinence.
According to Dr. McGowan, Appellant had complained of trouble ejaculating or “dry
penis” in February of 2007. Dr. McGowan explained that Appellant’s issue was secondary
to inflammation caused by tying a string around Appellant’s penis to prolong an erection.
Appellant did not voice any complaints of sexual dysfunction around the time of the sexual
encounter with the victim. In fact, doctor’s visits on November 26, 2008, February 25, 2009,
and December 8, 2009, indicated, “Not present - sexual dysfunction.”
From Appellant’s medical records, Dr. McGowan testified that Appellant’s “viral
2
load” was increasing during the period in which the acts in question took place. Appellant’s
viral load was undetectable in February of 2009 but detectable at a low level in October of
2009. Dr. McGowan explained that the higher the viral load, the more infectious the person
2
Viral load is the measure of the quantity of the HIV virus found in a patient’s fluid specimen.
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is to uninfected individuals. However, she stated that different bodily fluids could contain
different levels of the virus and a person can infect another individual even when their viral
load is so low as to be undetectable by current laboratory measures.
Dr. McGowan detailed three risk factors in transmitting HIV from one person to
another: (1) the type of contact; (2) the presence and quantity of exchanged bodily fluids; and
(3) the infected individual’s viral load quantity. Dr. McGowan stated that the following
activities could potentially transmit the HIV virus to an uninfected individual: anal sex,
fellatio, digital penetration of the anus, licking the anus, and manual stimulation of the
uninfected person’s penis. Dr. McGowan explained that not all of these activities carried the
same risk of transmission. In her opinion, sex carries the highest risk of transmission and
manual stimulation of the penis bears the lowest risk of transmission. Additionally, Dr.
McGowan explained that lower-risk activities can have increased risk of transmission of the
virus when sores, blood, or other bodily fluids are present. Bodily fluids include blood,
ejaculate, genital secretions, and mucosal fluid.3 She stated that a person infected with HIV
need not ejaculate to transmit the virus to another person.
Appellant did not testify at trial. At the conclusion of the proof, the jury found
Appellant guilty of eleven counts of especially aggravated sexual exploitation of a minor,
seven counts of criminal exposure of another to HIV, and six counts of aggravated statutory
rape. After a sentencing hearing, the trial court sentenced Appellant to an effective sentence
of 174 years in incarceration.
Appellant filed a motion for new trial. The motion was denied by the trial court.
Appellant subsequently filed a timely notice of appeal. He challenges the sufficiency of the
evidence and his sentence.
Analysis
Sufficiency of the Evidence
Appellant insists on appeal that the evidence is insufficient to sustain his convictions
for criminal exposure of another to HIV because the State “did not prove Appellant placed
the alleged victim in a ‘significant risk of HIV transmission’” as required by statute.
Appellant acknowledges that there is “no question” that the State proved that there was
sexual contact between him and the victim but contends that the State failed to prove all
elements of the offense. In the alternative, Appellant argues that “there should only be one
(1) conviction as the sexual encounter was one (1) continuous act.” The State, on the other
hand, regards Appellant’s arguments as “unavailing.” The State submits that Appellant
3
Mucosal fluid is contained in the penis and is different from ejaculate or semen.
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criminally exposed the victim to HIV regardless of whether he actually ejaculated and that
the eleven different and unique videos of the sexual encounter occurring during a single
sexual episode can sustain multiple convictions for the acts.
To begin our analysis, we note that when a defendant challenges the sufficiency of the
evidence, this Court is obliged to review that claim according to certain well-settled
principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits
the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of
the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). Thus, although the accused is originally deemed with a presumption
of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
the insufficiency of the convicting evidence. Id.
The relevant question the reviewing court must answer is whether any rational trier
of fact could have found the accused guilty of every element of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
In making this decision, we are to accord the State “the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”
See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or
reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by
the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). As such, all reasonable inferences from evidence are to be drawn in favor of
the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); See Tuggle, 639 S.W.2d at
914.
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A. Criminal Exposure to HIV
Appellant was convicted of seven counts of Tennessee Code Annotated section 39-13-
109. Tennessee Code Annotated section 39-13-109 provides, as is pertinent to this case, that
“[a] person commits the offense of criminal exposure of another to human immunodeficiency
virus (HIV) when, knowing that the person is infected with HIV, the person knowingly . . .
[e]ngages in intimate contact with another.” T.C.A. § 39-13-109. “ ‘Intimate contact with
another’ means exposure of the body of one person to a bodily fluid of another person in any
manner that presents a significant risk of HIV transmission.” Id. § 39-11-109(b)(2).
This Court has examined the interpretation of the criminal exposure statute. In State
v. Bonds, 189 S.W.3d 249 (Tenn. Crim. App. 2005), a panel of this Court utilized the basic
principles of statutory construction to conclude:
[T]he use of the word “exposure” requires something less than actual contact
with bodily fluids. Consequently the statute at issue requires that for a
defendant to be found guilty of criminal exposure of another to HIV via
intimate contact, the prosecution need only show that the defendant subjected
the victim to the risk of contact with the Defendant’s bodily fluids.
. . . [T]he Tennessee legislature’s use of the word “exposure” in the statute at
issue . . . require[s] only evidence that a defendant subjected a victim to risk
of contact with bodily fluids in a manner that would present a significant risk
of HIV transmission. Furthermore, we find this language, including the word
“exposure,” unambiguous. . . . While the criminal code drafters could have
required actual contact with or transfer of bodily fluids in the criminal
exposure of another to HIV statute, they elected instead to require only
“exposure” to bodily fluids. . . . In this case, we conclude that when the
Defendant, with knowledge that he was HIV positive, raped the victim by anal
penetration, and he “exposed” the victim to bodily fluids, i.e., made his bodily
fluids accessible to the victim, in a manner that presented a significant risk of
HIV transmission.
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189 S.W.3d at 258. Importantly, the Court concluded that ‘“exposure’” to bodily fluids
requires no more than subjecting the victim to a risk of contact.” Id.4
Viewing the evidence in the case herein in the light most favorable to the State and
utilizing the standard set forth for exposure by this Court in Bonds, we conclude that the State
presented sufficient evidence that Appellant subjected the victim to the risk of contact with
Appellant’s bodily fluids. Dr. McGowan testified at trial that Appellant was aware of his
HIV status and was educated on the ways that the disease could be transmitted. Dr.
McGowan testified that the risk of transmission depended on the method of contact and the
presence and quantity of exchanged bodily fluid as well as the infected person’s viral load.
Further, the doctor explained that ejaculation was not necessary to expose the victim to HIV.
The proof showed that Appellant penetrated multiple orifices of the victim, including his
anus and his mouth. Appellant also performed fellatio on the victim, licked the victim’s
anus, and manually stimulated the victim’s penis and anus. The victim also performed
fellatio on Appellant. These acts by Appellant certainly subjected the victim to the risk of
contact with Appellant’s bodily fluids. The evidence was sufficient to support the
convictions for criminal exposure to HIV. Appellant is not entitled to relief.
B. Multiple Counts During One Transaction
Appellant argues that because the acts in question took place during one period of
time they are so intertwined that they were a single act and can only support a single
conviction. The State, as stated above, disagrees.
Appellant was convicted of eleven counts of especially aggravated sexual exploitation,
seven counts of criminal exposure of another to HIV, and six counts of aggravated statutory
rape. Especially aggravated sexual exploitation is defined as “knowingly promot[ing],
employ[ing], us[ing], assist[ing], transport[ing], or permit[ing] a minor to participate in the
4
To support the conclusion, the Court cited five cases pertaining to this offense that have reached
this Court, noting that four of the five upheld convictions based only on evidence of unprotected sexual
intercourse or mere sexual involvement with a victim without a requirement of actual contact with or
physical transmission of bodily fluids. See State v. Michael Danelle Harvey, No. W2001-01164-CCA-R3-
CD, 2002 WL 1162346, at *1 (Tenn. Crim. App., at Jackson, May 31, 2002) (upholding a conviction based
upon “unprotected sex”); State v. Martin Charles Jones, No. E1999-01296-CCA-R3-CD, 2001 WL 30198,
at *1 (Tenn. Crim. App., at Knoxville, Jan. 12, 2001) (upholding a guilty plea based on a defendant who was
“sexually involved” with the victims); State v. Pamela Denise Wiser, No. M1999-02500-CCA-R3-CD, 2000
WL 1612363, at *2 (Tenn. Crim. App., at Nashville, Oct. 30, 2000) (upholding multiple convictions for
engaging in “unprotected sex”); State v. Chester Lebron Bennett, No. 03C01-9810-CR-00346, 1999 WL
544653, at *1 (Tenn. Crim. App., at Knoxville, July 28, 1999) (upholding guilty plea based on “unprotected
sexual encounters”).
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performance of, or in the production of, acts or material that includes the minor engaging in”
either sexual activity or stimulated sexual activity. T.C.A. § 39-17-1005(a). The statute goes
on to say that a person may be charged “in a separate count for each individual performance,
image, picture, drawing, photograph, motion picture film, videocassette tape, or other
pictorial representation.” Id. 39-17-1005(b). Further, aggravated statutory rape is defined
as, “the unlawful sexual penetration of a victim by the defendant, or of the defendant by the
victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and
the defendant is at least ten (10) years older than the victim.” T.C.A. § 39-13-506(c).
Our supreme court has suggested the following five factors to consider in determining
whether sexual conduct is a single continuous act:
1. The nature of the act;
2. The area of the victim’s body invaded by the sexually assaultive behavior;
3. The time elapsed between the discrete conduct;
4. The accused’s intent, in the sense that the lapse of time may indicate a newly
formed intent to again seek sexual gratification or inflict abuse; and
5. The cumulative punishment.
State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996). “[T]he presence and absence of any one
factor or a combination of them other than the nature of the act is not determinative of the
issue.” Id. At trial, the State introduced eleven separate video clips taken by Appellant’s
digital camera and downloaded to Appellant’s computer. In the video clips, Appellant
penetrated multiple orifices of the victim, including his anus and his mouth. Appellant also
performed fellatio on the victim, licked the victim’s anus, and manually stimulated the
victim’s penis and anus. The victim also performed fellatio on Appellant. Each video clip
was separate and distinct, despite the fact that the entire encounter lasted, at most, one hour.
We find that each act “is capable of producing its own attendant fear, humiliation, pain, and
damage to the victim,” and “[e]ach type of penetration requires a purposeful act on the part
of the perpetrator.” Id. We therefore conclude that Appellant was properly convicted.
Appellant is not entitled to relief on this issue.
Sentencing
Appellant argues that his sentence of 174 years is excessive. Specifically, Appellant
insists that the total time of the sexual encounter was, at most, one hour and comprised of one
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continuous event. Additionally, there was no proof that Appellant ever ejaculated. Thus, the
trial court essentially sentenced Appellant to 174 years for one crime. The State argues that
Appellant’s argument that his crimes were one continuous act fails and that he was properly
sentenced by the trial court.
Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012).
In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).
The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 706 n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, under Bise, a “sentence should be upheld so long as it is within the appropriate
range and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” 380 S.W.3d at 709-10.
Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, that:
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(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims; . . . .
T.C.A. § 40-35-115(b)(5). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).
The trial court herein properly considered the factors consistent with the purposes and
principles of sentencing before imposing Appellant’s sentences including the presentence
report and the potential mitigating and enhancement factors. The trial court commented on
the “graphic and gruesome” nature of Appellant’s crimes and noted with particular distaste
Appellant’s action of videotaping the account to view at his own pleasure, describing the acts
as “abominable.” After considering all the evidence, the trial court sentenced Appellant to
twelve years at 100 percent for each of the eleven convictions for especially aggravated
sexual exploitation. Appellant was sentenced to six years as a Range I, standard offender for
each of the seven counts of criminal exposure of another to HIV. Lastly, Appellant was
sentenced to four years for each of the six counts of aggravated statutory rape. As to
consecutive sentencing, the trial court noted that the statute for especially aggravated sexual
exploitation, Tennessee Code Annotated section 39-17-1005(d), specifically permits
consecutive sentencing for joint convictions even if arising out of the same conduct and that
consecutive sentencing was justified based upon the fact that Appellant committed multiple
sex crimes against a minor, as outlined in Tennessee Code Annotated section 40-35-
115(b)(5). Thus, the trial court ordered that the sentences in counts one through nineteen run
consecutively to each other, for a total effective sentence of 174 years, 132 of those years to
be served at 100 percent. The trial court ordered that the remaining convictions for
aggravated statutory rape run concurrently with each other and the remaining sentences. We
cannot say that the trial court abused its discretion in applying the sentence herein. Appellant
is not entitled to relief.
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Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
___________________________________
JERRY L. SMITH, JUDGE
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