IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs September 13, 2016

          STATE OF TENNESSEE v. GREGORY SCOTT BARNUM

                 Appeal from the Circuit Court for Dickson County
                  No. 22CC-2014-CR-454 David D. Wolfe, Judge
                      ___________________________________

              No. M2016-00313-CCA-R3-CD – Filed November 1, 2016
                     ___________________________________


The Defendant, Gregory Scott Barnum, was convicted of Class E felony indecent
exposure and received a sentence of two years‟ incarceration. On appeal from his
conviction, the Defendant asserts that the trial court erroneously found that he was a
“sexual offender” based on his 1998 Kentucky convictions for indecent exposure and
thus subject to enhanced punishment under Tennessee‟s indecent exposure statute. Upon
review, we affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

William B. Lockert, III, District Public Defender; Joshua Turnbow (on appeal) and W.
Jake Lockert and Dawn Kavanagh (at trial); Assistant District Public Defenders, for the
appellant, Gregory Scott Barnum.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; W. Ray Crouch, District Attorney General; and Sarah Wojnarowski,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                        I. Factual and Procedural Background

       In October 2014, the Dickson County Grand Jury issued a presentment, charging
the Defendant with indecent exposure, as a Class E felony, based on the theory that the
victim was under the age of thirteen and the Defendant was eighteen years of age or older
and the Defendant had two or more prior convictions for indecent exposure. Thereafter,
the grand jury issued a superseding presentment, charging the Defendant with indecent
exposure, as a Class E felony, under the theory that the victim was under the age of
thirteen and the Defendant was eighteen years of age or older and the Defendant was a
“sexual offender.”

       On July 21, 2015, the Defendant pleaded guilty to indecent exposure to a minor
victim under the age of thirteen but requested that the trial court determine whether he
committed the offense as a “sexual offender” for enhancement purposes under the
indecent exposure statute. During the guilty plea submission hearing, defense counsel
explained that, if the charge had proceeded to trial, the court would have been required to
bifurcate the trial into a guilt phase and a punishment phase. Defense counsel stated:

      We‟re going to waive—I want to make it clear for the record we‟re not
      pleading to the indictment entirely. We are pleading only to the guilt
      phase, to the alleged acts. We are not pleading to the alleged range of
      punishment in the indictment.

      ...

      We want to be heard on what is the appropriate range of punishment and
      sentence.

The State did not offer a recitation of the facts, but when asked by the trial court to
describe what he did, the Defendant stated, “I exposed myself in front of a minor child.”
During the plea colloquy with the trial court, the Defendant agreed that he was waiving
his rights by entering the plea, including his right to a jury trial. The trial court then
stated:

      [U]pon your plea of guilty to Count 1, the offense of indecent exposure to a
      minor victim under the age of [thirteen], I find you guilty of that offense.
      And I will now conduct a hearing to determine whether or not this matter is
      classified under Tennessee law as a felony or a misdemeanor.

        The State called Tina Newby, who testified that she was the Chief Deputy Clerk of
the Christian County Circuit Court Clerk‟s Office in Christian County, Kentucky. She
stated that she had worked in the clerk‟s office since 1988, and she supervised all other
deputy clerks. Ms. Newby testified that she regularly maintained records of the criminal
convictions from Christian County Criminal District Court (“the District Court”) as part
of her job duties. Ms. Newby explained that the District Court‟s records were maintained
on both paper and computer. She testified that she received a request from the State of
Tennessee for any criminal records relating to the Defendant, including copies of
                                           -2-
complaints, convictions, and audio recordings of any proceedings in which the Defendant
was a party. Based upon that request, Ms. Newby produced certified copies of the
District Court‟s “disposition calendar of May 6, 1998, and a disposition calendar of
September 30, 1998,” an affidavit of complaint, and an audio recording of the
Defendant‟s guilty plea in the District Court.

       Regarding the disposition calendar, Ms. Newby explained that “the second page of
the disposition calendar showed the disposition of three counts of indecent exposure.”
She noted that the disposition calendar contained the signature of the District Court Judge
and agreed that the document reflected that the Defendant had entered guilty pleas on
September 30, 1998, to three counts of indecent exposure in the District Court. Upon the
plea, the District Court sentenced the Defendant to concurrent sentences of ninety days
and suspended the sentence upon the service of thirty days in jail. Ms. Newby testified
that the document also reflected that the Defendant was represented by a public defender
at the plea proceedings. Ms. Newby stated that the documents were “a copy of the
original judgment form” and explained, “Our judges in District Court write their sentence
on this docket sheet.” 1

        Defense counsel objected to Ms. Newby‟s testimony, arguing that “[u]nless there‟s
some documentation of a plea then this is hearsay” and that Ms. Newby had no personal
knowledge of the plea. Defense counsel additionally asserted, “This is not a judgment;
this is a docket sheet with notes on it. It is not a judgment.” The trial court overruled the
objection, stating that Ms. Newby was “the deputy clerk in the court in which the plea
was entered. She‟s testifying this is the documentation of that record.” The trial court
further found that Ms. Newby was the custodian of the records for the District Court, that
the documents were prepared in the normal course of her duties as deputy clerk, and that
the records were admissible under the business records exception to the hearsay rule.

        Ms. Newby then identified computer screen print-outs from the District Court‟s
computer system, showing “the information that was put in from the Judge‟s calendar
showing the disposition and sentence” for the Defendant‟s convictions for three counts of
indecent exposure. She stated that the information was entered into the computer system
by a clerk based upon the disposition calendar provided by the District Court Judge. She
agreed that it was a “typed version” of the trial court‟s notes and ruling, and she stated
that it was reliable information about what occurred in court on that particular day.

      Ms. Newby testified that, in 1998, all court sessions were recorded on
audiocassette tape and that clerks kept a “recording log” to identify where on the tape

       1
          In her testimony, Ms. Newby referred to the document as a “disposition calendar” and a “docket
sheet” interchangeably.
                                                 -3-
each case was called by the District Court. Ms. Newby agreed that she was in charge of
maintaining and keeping the audio recordings of courtroom proceedings. Ms. Newby
provided a copy of the audio recording of the District Court proceedings for September
30, 1998, which contained a recording of the Defendant‟s plea. When the State moved
for the admission of the audio recording, defense counsel objected, arguing that Ms.
Newby could not authenticate the audio recording because there was no testimony that
Ms. Newby personally witnessed the recorded proceedings or that she personally made
the recording. The trial court overruled the objection, explaining that Ms. Newby
“testif[ied] as the deputy clerk and state[d] that in 1998 they made audio recordings of
every proceeding before the District Court and that she‟s produced the audio recording of
the Defendant‟s plea in this case.” The trial court ruled that it would listen to the audio
recording and determine if it was “sufficiently identifiable and relatable to the Defendant
in order to allow it in as evidence[]” and stated, “If not, I‟ll exclude it.”

      On cross-examination, Ms. Newby acknowledged that the record of the prior
convictions did not contain a statement of the Defendant‟s rights or a signed waiver of
the Defendant‟s right to a jury trial. She stated that the entry of the Defendant‟s
convictions into the computer system would have been made “either the same day or the
next day.” Ms. Newby also identified the original affidavit of complaint, charging the
Defendant with three counts of indecent exposure, and the document was introduced into
evidence.

      The affidavit of complaint stated that on April 12, 1998, the Defendant:

      [P]ulled through the drive-through window at the Chevron/Max-Fuel south
      of the Pennyrile Parkway and exposed his genitals to affiant. On the last
      two trips through the drive-through, [the] Defendant not only exposed
      himself, but was also masturbating. The Defendant was stopped by a police
      officer after the third incident so the officer could get his identification.

The affidavit charged the Defendant with three counts of indecent exposure, a Class B
misdemeanor under Kentucky Revised Statutes Annotated (“KRS”) section 510.150.

       Jeanne Broadwell, general counsel with the Tennessee Bureau of Investigation
(“TBI”), testified that she regularly provided legal advice to units of the TBI regarding
the Tennessee Sex Offender Registry. Ms. Broadwell explained that she mainly worked
on classifying out-of-state convictions for offenders who had moved to Tennessee so that
the TBI, police departments, and probation and parole offices “can properly classify them
either as sexual offenders or violent sexual offenders.” Ms. Broadwell explained that, in
determining whether a defendant was a “sexual offender” based on an out-of-state

                                           -4-
conviction, she looked at “what would that crime be if it had been committed in
Tennessee[.]”

       Ms. Broadwell explained that she was contacted by the State and asked to review
the affidavit of complaint from Kentucky and the District Court‟s disposition of the
Defendant‟s charges. She stated that she also reviewed the indecent exposure statute in
Kentucky and compared it to the Tennessee statute for indecent exposure. Based upon
her review, Ms. Broadwell testified that, if the Defendant had committed the same acts in
Tennessee that he committed in Kentucky, the Defendant could have been charged with
and convicted of indecent exposure under Tennessee law.

       On cross-examination, Ms. Broadwell testified that there were differences in the
indecent exposure statutes in Kentucky and Tennessee. She agreed that the Tennessee
statute was “much broader.” She stated that Kentucky had amended its indecent
exposure statute in 2004 to create a distinction between “first degree and second degree”
indecent exposure. Ms. Broadwell explained, “The first degree is when the victim is
under [eighteen]. Second degree is when the victim is [eighteen] or older.” Ms.
Broadwell agreed that the affidavit of complaint supporting the Defendant‟s Kentucky
convictions was silent as to the age of the victim.

       Following Ms. Broadwell‟s testimony, the trial court conducted a Momon hearing,
at which the Defendant stated that it was his decision not to testify. The Defendant
offered no proof.

       At the conclusion of proof, the trial court noted that Kentucky listed the offense of
indecent exposure under the general heading of “Sexual Offenses” and stated that “it was
clearly a sexual offense at the time [the Defendant] was found guilty under that statute.”
The trial court further determined that the definition of indecent exposure under KRS
510.150 was “basically the same as the definition under Tennessee [law.]” The trial court
found that “the facts and circumstances that were alleged in the original [Kentucky]
charging documents[,] . . . if committed in the state of Tennessee would be considered to
be a sexual offense . . . of indecent exposure under Tennessee law.”

       Although defense counsel argued that there was no proof of the prior Kentucky
convictions, the trial court found that Ms. Newby offered records of the convictions and
that she stated the record of the convictions was created in the normal course of business
in the District Court. The trial court found that Ms. Newby was present in the District
Court Clerk‟s Office and that she testified regarding “the way the records were
generated.” Based upon her testimony, the trial court found that the State had sufficiently
established the prior Kentucky convictions. The trial court further determined that the
prior Kentucky convictions were “sexual offenses” as defined in Tennessee Code
                                           -5-
Annotated section 40-39-202 and that the Defendant was, therefore, a “sexual offender.”
Based upon the plain language of the indecent exposure statute, the trial court rejected
defense counsel‟s argument that the definition of “sexual offender” from Title 39 of the
Tennessee Code should apply, rather than the definition found in section 40-39-202.

       The trial court also concluded that the three prior Kentucky convictions should not
merge. The court noted that the offenses may have occurred on the same day but that the
offenses were charged in separate counts. Additionally, the trial court stated that the
convictions were not being used to enhance the Defendant‟s sentencing range. Finally,
the trial court found the Defendant‟s argument—that the court should not give the
Kentucky convictions full faith and credit “because of constitutional[] shortages or
improprieties . . . that he wasn‟t advised of his right[s] and might have been
intimidated”— unavailing. The trial court found that the evidence established that the
Defendant was represented by counsel at the time he entered the guilty pleas, that the
District Court advised the Defendant of his right to a trial, and that the Defendant waived
his rights. The trial court stated:

             While it‟s true that the admonishment of his rights wasn‟t as
      extensive as we use today and there‟s no written waiver that was introduced
      at that point in time, there‟s also no showing that the Defendant didn‟t
      understand or make a voluntary waiver.

            In other words, we can criticize what happened, but there‟s no
      showing that the Defendant did not voluntarily understand or that he was
      coerced into making a plea.

             The argument about the [District Court] Judge threatening him, the
      Judge was simply, in my opinion, stating that he was getting a better deal
      than perhaps the Judge would have given him had he gone to trial.

      ...

            I don‟t think that rises to the level of force or threats or any kind of
      improper influence by the [District] Court sufficient to make this plea
      involuntary.

             But most importantly, there‟s no showing before me that this
      [D]efendant has attempted to set aside the Kentucky convictions on post-
      conviction[] relief on the basis he did not understand his rights or that he
      was threatened or forced or coerced into making this plea.

                                           -6-
                It has been [seventeen] years since he entered this plea. And during
        that [seventeen]-year period certainly it occurred to him that there were
        these issues that were there. However, there‟s no action that‟s been brought
        to my attention in the state of Kentucky to file for post-conviction[] relief
        from those convictions; and therefore I find that those convictions should
        be given full faith and credit because they‟re otherwise valid convictions in
        the state of Kentucky and have been established by the documents that the
        [District] [C]ourt of Kentucky has.

      The trial court found that the State had established that the Defendant was a
“sexual offender” for the purposes of the indecent exposure statute and found the
Defendant guilty of the offense, as a Class E felony.

       Following a sentencing hearing, the trial court sentenced the Defendant, as a
Range I standard offender, to two years, which the trial court suspended to supervised
probation following the service of one year “day for day.” Thereafter, the Defendant
filed a motion to set aside the sentence, which the trial court granted.2 The trial court
then resentenced the Defendant to two years to serve in the Department of Correction and
ordered that the Defendant be placed on the sex offender registry. This timely appeal
followed.

                                              II. Analysis

             A. Proof Establishing the Defendant‟s Prior Kentucky Convictions

       On appeal, the Defendant initially contends that the State did not adequately
establish that he had been convicted of three counts of indecent exposure in Kentucky
because the State failed to provide certified judgments from the District Court. The
Defendant asserts that the trial court improperly relied on the certified disposition
calendar and computer print-out from the District Court as proof of the prior convictions.
The State avers that it established the Defendant‟s 1998 Kentucky convictions for three
counts of indecent exposure, despite the lack of certified judgment forms for the offenses.
We agree with the State.



        2
          Where a period of confinement is imposed, an order of day-for-day service is impermissible
because a trial court cannot deny a defendant the statutory right to earn good conduct credits or authorized
work credits where the defendant receives a sentence of split confinement in the county jail. State v.
Benjamin Monroe, No. M2007-02196-CCA-R3-CD, 2009 WL 47332, at *7 (Tenn. Crim. App. Jan. 7,
2009) (citing State v. Tim Mattingly, No. M2002-02765-CCA-R3-CD, 2003 WL 22038777, at *3 (Tenn.
Crim. App. Sept. 2, 2003)).
                                                   -7-
       A trial court‟s determination of whether the State has established the existence of a
prior conviction is a mixed question of law and fact. State v. Ricky Lynn Norwood, No.
E2005-00704-CCA-R10-CD, 2006 WL 668746, at *5 (Tenn. Crim. App. Mar. 16, 2006).
We review mixed questions of law and fact de novo without any presumption of
correctness. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing Vaughn v. State,
202 S.W.3d 106, 115 (Tenn. 2006); State v. Rogers, 188 S.W.3d 593, 629 (Tenn. 2006)).

        For sentence enhancement purposes, the State must prove by “clear and
convincing evidence” both the existence of a prior conviction and that the defendant was
represented by counsel at the time of the conviction. State v. Clever, 70 S.W.3d 771,
773, 776 (Tenn. Crim. App. 2001) (citing Parke v. Raley, 506 U.S. 20, 34-35 (1992)).
This court has previously held that, in the absence of a certified copy of a conviction,
other evidence may prove a defendant‟s prior conviction. Id. at 775-76. In Clever, the
defendant maintained that there was inadequate proof of his 1986 DUI conviction in
Shelby County General Sessions Court because the record of the conviction had been
destroyed after ten years based upon the policy of the general sessions court. Id. at 772-
73. However, the State submitted into evidence a photocopy of the docket sheet, on
which the trial judge had made notations regarding the defendant‟s guilty plea. Id. at
773-74. The State also introduced a certified copy of a computer print-out from the court
clerk‟s office which showed the guilty plea, the date of disposition, and the fine imposed.
Id. at 774. Additionally, both the presiding trial judge and a supervisor from the general
sessions court clerk‟s office testified that, according to the records, the defendant had
entered a guilty plea to DUI in that court on November 18, 1986. Id. at 774-75.
Although the documentary evidence was silent as to whether the defendant was
represented by counsel at the time of the guilty plea, the trial judge testified that he had
never allowed a defendant to plead guilty to DUI unless the defendant was represented by
counsel. Id. at 773-74 (citing Burgett v. Texas, 389 U.S. 109, 115 (1967), for the
proposition that “representation by counsel cannot be presumed from a silent record”).
Upon review, this court concluded that the State established by clear and convincing
evidence that the defendant had been previously convicted of DUI and that the defendant
had been represented by counsel at the time. Id. at 776. We specifically rejected the
defendant‟s claim that a prior conviction can be proven only by a “„certified copy‟ of the
conviction.” Id. at 775-76.

       In this case, we agree with the trial court that the State presented sufficient
evidence regarding the Defendant‟s prior Kentucky convictions. Ms. Newby, the Chief
Deputy Clerk of the District Court, testified that records of convictions in the District
Court were maintained on both paper and computer. She produced a certified copy of the
District Court‟s disposition calendar for September 30, 1998, which indicated that the
Defendant pleaded guilty to three counts of indecent exposure on that date. The
disposition calendar contained the signature of the District Court Judge, as well as the
                                           -8-
District Court Judge‟s notations regarding the Defendant‟s sentence. Moreover, the
disposition calendar reflected that the Defendant was represented by counsel at the time
of his guilty pleas. Ms. Newby also submitted computer screen print-outs from the
District Court‟s computer system, showing the disposition and sentence for each of the
Defendant‟s 1998 convictions for indecent exposure. Ms. Newby testified that the
information in the computer screen print-outs would have been entered within a day of
the proceedings in the District Court and that they contained reliable information
concerning what had occurred in court. Finally, the State presented the audio recording
of the District Court proceedings for September 30, 1998, which contained a recording of
the Defendant‟s guilty pleas.3

       We conclude that the State presented clear and convincing evidence establishing
the Defendant‟s three prior convictions for indecent exposure in Kentucky in 1998 and
that the Defendant was represented by counsel at the time of his guilty pleas. The
Defendant is not entitled to relief on this issue.

                  B. Merger of the Defendant‟s Prior Kentucky Convictions

       The Defendant maintains that, even if the State‟s proof was sufficient to establish
his three prior Kentucky convictions for indecent exposure, the trial court should have
“merged” the prior convictions into one “for the purposes of calculating his range of
punishment” under Tennessee Code Annotated section 40-35-106(b)(4) because the
offenses took place within a twenty-four hour time span. He further contends that his
prior Kentucky convictions “merge into one conviction” because the prior allegations of
indecent exposure were charged under the same statutory provisions, were not lesser
included offenses of each other, were against the same victim, used identical facts to
prove the elements, and remedied the same harm. The State responds that the trial court
was not required to merge the Defendant‟s three prior Kentucky convictions. We agree
with the State.

       First, the Defendant‟s reliance on Tennessee Code Annotated section 40-35-106 is
misplaced. Section 40-35-106 defines a “multiple offender” as “a defendant who has
received: (1) A minimum of two (2) but not more than four (4) prior felony convictions
within the conviction class, a higher class, or within the next two (2) lower felony classes,
where applicable[.]” Tenn. Code Ann. § 40-35-106(a). The statute further provides that:

        3
           We note that the Defendant did not include in the record on appeal the audio recording of the
guilty pleas from the District Court. When the record is incomplete, we will presume that, had all of the
evidence considered by the trial court been included in the record on appeal, it would have supported the
trial court‟s decision. See State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999) (citing State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (stating that when necessary parts of the record are
missing on appeal, this court must presume that the trial court‟s decision was correct)).
                                                  -9-
      Except for convictions for which the statutory elements include serious
      bodily injury, bodily injury, threatened serious bodily injury or threatened
      bodily injury to the victim or victims, or convictions for the offense of
      aggravated burglary under § 39-14-403, convictions for multiple felonies
      committed within the same twenty-four-hour period constitute one (1)
      conviction for the purpose of determining prior convictions[.]

Tenn. Code Ann. § 40-35-106(b)(4). Although it does appear from the affidavit of
complaint that the Defendant committed the Kentucky offenses within the same twenty-
four hour period, the twenty-four hour merger rule found in section 40-35-106(b)(4) only
applies when a trial court sentences a defendant as a multiple offender. Here, the
Defendant was sentenced as a standard, Range I offender. See Tenn. Code Ann. § 40-35-
105(a)(1) (providing that “[a] standard offender is a defendant not sentenced as . . . [a]
multiple offender, as defined by § 40-35-106”). Thus, section 40-35-106(b)(4) does not
apply to the Defendant.

       Likewise, the Defendant‟s claim that the prior Kentucky convictions should have
merged into one conviction based on double jeopardy principles is unavailing. Citing
State v. Franklin, 919 S.W.2d 362, 368 (Tenn. Crim. App. 1995), the State asserts that the
Defendant waived any merger defect unless he explicitly reserved the issue on appeal. In
Franklin, this court held that a guilty plea waives a claim of merger and that Rule
37(b)(2) of the Tennessee Rules of Criminal Procedure required a defendant to explicitly
reserve a claim of merger prior to pleading guilty. Id.; see also Cecil Eugene Brannan v.
State, No. M2002-00628-CCA-R3-CD, 2003 WL 1868648, at *3 (Tenn. Crim. App. Apr.
11, 2003). However, it appears that this court has reached differing conclusions on
whether a guilty plea can effectively waive a double jeopardy claim. See State v.
Rhodes, 917 S.W.2d 708, 710-11 (Tenn. Crim. App. 1995). But see Franklin, 919
S.W.2d at 368. In Rhodes, this court relied on the United States Supreme Court decision
of Menna v. New York, 423 U.S. 61, 62 (1975), and determined that a guilty plea does
not automatically waive a double jeopardy claim when it is apparent from the record that
the claim was raised before the trial court. Rhodes, 917 S.W.2d at 711. The decision in
Rhodes has been followed in several other opinions from this court and appears to be the
prevailing view. See State v. Ronald Woods, Jr., No. W2009-02580-CCA-R3-CD, 2010
WL 4117165, at *4-5 (Tenn. Crim. App. Oct. 20, 2010); State v. Walter Jude Dec, No.
M2009-01141-CCA-R3-CD, 2010 WL 2977875, at *3-4 (Tenn. Crim. App. July 30,
2010), perm. app. denied (Tenn. Dec. 8, 2010); Dexter P. Jones v. State, No. M2003-
01229-CCA-R3-PC, 2004 WL 404496, at *2-3 (Tenn. Crim. App. Mar. 4, 2004); State v.
Milton Spears, Jr., No. C.C.A. 02C01-9606-CR-00197, 1997 WL 381569, at *1 (Tenn.
Crim. App. July 10, 1997).

                                          - 10 -
        In any event, the record in this case reflects that the Defendant entered guilty pleas
to three counts of indecent exposure in Kentucky in 1998. The trial court found that the
Defendant did not file for post-conviction relief or otherwise attempt to attack his
convictions in Kentucky, and it is not apparent from the record that the Defendant‟s
double jeopardy claim was ever raised before the District Court. Accordingly, the
Defendant‟s double jeopardy claim was waived by the entry of his guilty pleas, and the
trial court did not err when it considered the Defendant‟s prior Kentucky convictions as
three separate convictions.

                  C. Finding that the Defendant was a “Sexual Offender”

        Next, the Defendant asserts that the trial court erroneously determined that he was
a “sexual offender.” The Defendant argues that his three prior Kentucky convictions for
indecent exposure are not “qualifying convictions to enhance the Defendant‟s indecent
exposure conviction under Tennessee Code Annotated section 39-13-511.” He contends
that Tennessee‟s indecent exposure statute is “broader[] and significantly different in the
elements it defines and ranges of punishment it sets out[,]” such that “a conviction under
one cannot qualify as a conviction under the other.” He contends that his conduct in
Kentucky would constitute, at most, the offense of public indecency in Tennessee, which
is not classified as a “sexual offense” in this state. The State responds that the trial court
properly found that the Defendant was a “sexual offender.” The State reasons that,
because the Defendant‟s conduct in Kentucky would constitute the offense of indecent
exposure under Tennessee law, the Defendant‟s three prior Kentucky convictions are
“qualifying convictions” under Tennessee Code Annotated section 40-39-202.
Moreover, the Defendant is a “sexual offender” and subject to felony indecent exposure
punishment because he had a “third or subsequent conviction” for indecent exposure,
which is a “sexual offense” under section 40-39-202. We agree with the State.

        Because this issue concerns the construction of a statute, we review the trial
court‟s conclusions de novo with no presumption of correctness. State v. Edmondson,
231 S.W.3d 925, 927 (Tenn. 2007) (citing State v. Denton, 149 S.W.3d 1, 17 (Tenn.
2004)). The role of courts in statutory interpretation is to “assign a statute the full effect
of the legislative intent without restricting or expanding the intended scope of the
statute.” State v. Smith, 484 S.W.3d 393, 403 (Tenn. 2016). When statutory language is
clear and unambiguous, we must look to its plain meaning and ordinary use to determine
legislative intent. Id. (citing State v. Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)). “In
ascertaining the intent of the legislature, this [c]ourt may look to the language of the
statute, its subject matter, the object and reach of the statute, the wrong or evil which it
seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.”
State v. Collins, 166 S.W.3d 721, 726 (Tenn. 2005) (internal quotation marks and
citations omitted).
                                            - 11 -
      In this case, the Defendant was convicted of indecent exposure in violation of
Tennessee Code Annotated section 39-13-511. The statute 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:

      (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.

Tenn. Code Ann. § 39-13-511 (2014) (emphasis added).



                                          - 12 -
       Under the Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification and Tracking Act of 2004 (“the Act”), the term “sexual offender” means “a
person who has been convicted in this state of committing a sexual offense or has another
qualifying conviction[.]” Tenn. Code Ann. § 40-39-202(19) (2014) (emphasis added).
The Act does not define “qualifying conviction” but does provide an expansive definition
of “conviction.” “Conviction” is defined, in relevant part, as:

      [A] judgment entered by a Tennessee court upon a plea of guilty, a plea of
      nolo contendere, a finding of guilt by a jury or the court notwithstanding
      any pending appeal or habeas corpus proceeding arising from the judgment.
      “Conviction” includes, but is not limited to, a conviction by a federal court
      or military tribunal, including a court-martial conducted by the armed
      forces of the United States, and a conviction, whether upon a plea of guilty,
      a plea of nolo contendere or a finding of guilt by a jury or the court in any
      other state of the United States, other jurisdiction or other country. A
      conviction, whether upon a plea of guilty, a plea of nolo contendere or a
      finding of guilt by a jury or the court for an offense committed in another
      jurisdiction that would be classified as a sexual offense or a violent sexual
      offense if committed in this state shall be considered a conviction for the
      purposes of this part.

Tenn. Code Ann. § 40-39-202(1) (2014) (emphasis added). Thus, it appears that the term
“qualifying conviction” in section 40-39-202(19) echoes the requirement found in section
40-39-202(1) that, for an out-of-state conviction to be considered a “conviction” under
the Act, the offense would have to be classified as a “sexual offense” under Tennessee
law. As relevant here, “sexual offense” means “[t]he commission of any act that . . .
constitutes the criminal offense of . . . [i]ndecent exposure, under § 39-13-511, upon a
third or subsequent conviction[.]” Tenn. Code Ann. § 40-39-202(20)(A)(vii) (2014).
Therefore, we must determine whether the acts committed by the Defendant in Kentucky
would constitute the offense of indecent exposure in Tennessee and whether the
Defendant had a third or subsequent conviction for such an offense.

       It is apparent from the record that the acts committed by the Defendant in
Kentucky would constitute indecent exposure under Tennessee Code Annotated section
39-13-511 if committed in this state. The affidavit of complaint from Kentucky states
that the Defendant pulled up to a drive-through window at a gas station three separate
times, exposing his genitals to the victim each time and masturbating during the last two
trips. In Tennessee, a person can commit the offense of indecent exposure by
intentionally exposing the person‟s genitals to another and reasonably expecting that the
act will be viewed by another and that the act will offend an ordinary viewer or is for the
purpose of sexual arousal and gratification of the defendant. See Tenn. Code Ann. § 39-
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13-511(a)(1)(A)(i)(a)-(ii)(a)-(b). Because the Defendant committed acts that would
constitute the offense of indecent exposure in Tennessee, the trial court properly
determined that the Defendant‟s third conviction for indecent exposure in Kentucky was
a “sexual offense” and a “qualifying conviction” under the Act. See Tenn. Code Ann. §
40-39-202(20)(A)(vii) (defining “sexual offense” in terms of whether the act committed
constitutes one of the listed criminal offenses). Accordingly, the trial court did not err by
finding that the Defendant was a “sexual offender” under Tennessee Code Annotated
section 40-39-202(19) and was subject to enhanced punishment as provided in Tennessee
Code Annotated section 39-13-511(b)(3).

    D. Definition of “Sex Offender” in Tennessee Code Annotated section 39-13-703

        Finally, the Defendant contends that the trial court erred by applying the definition
of “sexual offender” found in the Act. See Tenn. Code Ann. § 40-39-202(19). He asserts
that the trial court should have applied the definition for “sex offender” found in
Tennessee Code Annotated section 39-13-703.4 We disagree. Tennessee‟s indecent
exposure statute explicitly references the Act‟s definition of “sexual offender.” Tenn.
Code Ann. § 39-13-511(b)(3). The indecent exposure statute does not mention
Tennessee Code Annotated section 39-13-703 or any other section in Part 7. Applying a
definition section other than the one listed in the indecent exposure statute would run
afoul of the clear statutory language in section 39-13-511(b)(3). This claim is without
merit.

                                           III. Conclusion

        For the aforementioned reasons, the judgment of the trial court is affirmed.


                                                     ____________________________________
                                                     ROBERT L. HOLLOWAY, JR., JUDGE




        4
           The terms “sex offender” and “sex offense” are defined in section 39-13-703 for purposes of the
“Tennessee Standardized Treatment Program for Sex Offenders,” a program which evaluates, identifies,
treats, and monitors sex offenders as they progress through the criminal justice system. Tenn. Code Ann.
§§ 39-13-702(b); 39-13-703(2)-(3). Under section 39-13-703, the term “sex offender” is defined as “any
person who is convicted in this state . . . of any sex offense, or if such person has been convicted in
another state of an offense that would constitute a sex offense in this state[.]” Tenn. Code Ann. § 39-13-
703(2). The statute defines “sex offense” to include a list of certain offenses; however, indecent exposure
is not included in the list. See Tenn. Code Ann. § 39-13-703(3).
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