State vs. Gary Vaughn, et al

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY SESSION, 1998 STATE OF TENNESSEE, Appellee, VS. GARY VAUG HN, et a l., Appellants. FILED October 23, 1998 ) ) ) ) ) ) ) ) ) ) Cecil W. Crowson Appellate Court Clerk C.C.A. NO. 01C01-9709-CR-00415 PUTNAM COUNTY HON. JOHN TURNBULL JUDGE (Direct Ap peal) FOR THE APPELLANT: FOR THE APPELLEE: JOHN E. HERBISON 2016 E ighth Ave nue So uth Nashville, TN 37204 JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Senior Counsel 425 Fifth Avenu e North Nashville, TN 37243 BILL GIBSON District Attorney General LILLIE ANN SELLS Assistant District Attorney 145 South Jefferson Avenue Cookeville, TN 38501 OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION The appellants, Gary M. Vaughn, Harry D. Stewart, Jo Ann Scarbrough, Kenn eth L. Reagan, William M. Ransom, Julie C. Hileman, Harold H. Hileman, Geoffrey Mark Greely, Roy Howard E lkins, Kenneth D. Dyer, Larry K. Dunn and Robert J. Cunningham were convicted by a Putnam County jury of violation of Tenn. Code Ann. § 55-9-302, the motorcycle helmet law. Each appellant received a fine of $5 as his or her sentence. On appeal, appellants claim that Tenn. Code Ann. § 55-9-3 02 is u ncon stitution al as it (1 ) interferes with their cons titutiona lly protec ted priv acy right, and (2) restricts their freedom of expression under the First Amendment to the United States Constitution, and Article I, § 19 o f the T enne ssee Cons titution. Ten (10) of the appellants also challenge the sufficiency of the con victing evide nce. After a thorough review of the record before this Court, we find no error and affirm the judgment of the trial court. FACTS On July 19, 1996, Officer Rick Smith of the Putnam County Sheriff s Office was assigned to escort the procession for the funeral of Horton Swift. The decedent was formerly a member of the motorcycle organization, Concerned Motorcyclists of Tennessee, American Bikers Association Toward Education (CMT /ABAT E), and m any me mbers of the orga nization a ttended his funera l. Shor tly after Officer Smith arrived at the funeral home, he was approached by Debbie Daniels, who asked permission for the cyclists to ride in the procession without their helmets. O fficer Smith inform ed Daniels that he did not have the -2- authority to grant such permission , and if th e cyclis ts cho se to rid e their motorcycles without a helmet, they would b e violating th e law. A short time later, appellant Gary V augh n, alon g with a pprox imate ly eight (8 ) other peop le, approached Officer Smith with a similar request. Once again, Smith denied permission. Officer Smith subsequently observed various members of the organization gathering helmets and placing them in a vehicle. Realizing that he could not control the impending situation, Smith notified his dispatcher that he was lea ving the fun eral hom e and w ould no t be esco rting the pro cession . Officer Kenneth Bean of the Ja ckso n Cou nty Sh eriff s Department was a friend of the decedent and volunteered to assist in escorting the funeral procession. Officer Smith notified Bean that he was leaving the funeral home, and Be an dec ided that h e would lead the p rocess ion alone . Meanwhile, the Tennessee Highway Pa trol had se t up an e nforcem ent roadblock on Route 135 North, where the funeral procession was scheduled to pass through. The patrolmen assigned to the roadblock were unaware that the procession would be traveling through the roadblock area, and Officer Bean had no knowledge of the scheduled roadblock. Troopers David Bush and Milburn Rogers observed Officer Bean approaching, followed b y approx imately 5 0 to 60 m otorcycle s. Only fou r (4) to eight (8) of the cyclists were wearing helmets. The patrolmen diverted the procession into the parking lot of the Smyrna Church of Christ and began issuing citations.1 Due to th e exces sive num ber of cyc lists, addition al officers were called in to a ssist. 1 App aren tly, the h ears e wa s not trave ling wit h the proc ess ion, b ut wa s trav eling a ppro xim ately thirty (30) minutes behind the motorcycles. Eventually the hearse arrived, and Officer Bean was allowed to esco rt the hear se throu gh the ro adblock to the burial s ite. -3- In issuing the citations, each officer requested the cyclist s driver s license and registra tion, co mpa red the individu al with h is or her driver s license picture, verified that the information on the license and registration was correct, and obtained the cyc list s signature on the cita tion. W hile man y of the cyclists voluntarily reques ted the cita tion, each officer verified th at a cyclist was not wearing a helm et before issuing a citation. Th e officers d id not issue citations to anyone who claimed that he was wearing a helmet in the procession. Because the helmets had been placed in a vehicle which was traveling sever al min utes behind the proce ssion , the offic ers co uld further determine whether an individual was riding without a helmet by obs erving wheth er the in dividua l had a helm et in his or her possession. Prior to trial, appellants filed a motion to dismiss their indictments on the basis that the moto rcycle h elme t statute is unco nstitutio nal. 2 At the hearing on the motion to dismiss, Vaughn testified that he and h is coho rts wan ted to rid e in the proce ssion withou t their helmets as a sign of respect for the deceased. Upon the trial court s denial of appellants motion, appellants indictments were cons olidate d for trial. At trial, appellants Elkins, Vaughn, Cunningham and Haro ld Hileman w ere identified as riding in th e proce ssion with out a he lmet. Although the officers were not able to specifically identify the other appellants at trial, they testified that they verified each individual s identity while issuing the citation by a comparison of the individual a nd his or h er respe ctive driver s lice nse. 2 Tenn. Code Ann. § 55-9-302(a) provides: The driver of a motorcycle, motorized bicycle as defined in chapter 8 of this title, or motor-driven cycle and any passenger thereon shall be required to wear a crash helmet of a type appr oved by the com mis sion er of safe ty. -4- The jury found the appellants guilty of violating Tenn. Code Ann. § 55-9302. Fro m their co nvictions, a ppellants bring this a ppeal a s of right. CONSTITUTIONALITY OF TENN . CODE ANN. § 55-9-302 In their first issue, ap pellants cla im tha t Ten n. Co de An n. § 55 -9-30 2 is unconstitutional in two res pects . Appe llants firs tly asse rt that the statute is unconstitutional on its face because it infringes on an individu al s right to privacy grounded in the fede ral and sta te constitutions guara ntees of perso nal liberty. Second ly, because appellants refused to wear their helmets as an expression of respect for the d ecea sed, th ey con tend th at the s tatute is unco nstitutio nal as it restricts their freedom of expression under the First Amendment to the United States Constitution and Article I, § 19 of the Tennessee Constitution . We will consider both of these arguments in turn. A. Right to Privacy Appe llants argue that Tenn. Code Ann. § 55-9-302 encro ache s upo n their fundamental right to be left alone vis-Ã -v is the State. They insist that the decision to wear a safety helmet should be a perso nal on e, and pater nalistic legislation such as the subject statute constitutes an unwarranted governmental intrusion into citizens lives. The right to privacy is a fundamental one, which is embraced in the notions of personal liberty guaranteed by both federal and state constitutions. See Grisw old v. Connecticut, 381 U.S. 479, 484-86, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965); Davis v. Davis , 842 S.W .2d 588 , 598 (T enn. 19 92). [T]he concept of liberty protec ts those personal rights that are fundamental, and is not confined to the s pecific terms of the Bill of Rights. Griswold v. Connecticut, 381 U.S. at -5- 486, 85 S.Ct. at 168 3 (Goldbe rg, J., concurring). Under the Tennessee Constitution, the fundamental right to privacy has b een u pheld in circumstances involving parentin g, see Simmons v. Simmons, 900 S.W.2d 682, 683 (Tenn. 1995); In re A doptio n of Female Ch ild, 896 S.W .2d 546, 547 -48 (Tenn . 1995); Nale v. Robertson, 871 S.W .2d 674 , 678 (T enn. 19 94); Hawk v. Hawk, 855 S.W.2d 573, 57 7-78 (T enn. 19 93), proc reation, see Davis v. Davis , 842 S.W.2d at 600, an d cons ensua l, noncom mercia l sexual ac tivity. See Cam pbell v. Sundquist, 926 S.W .2d 250 , 262 (T enn. Ap p. 1996 ). In Aruta noff v. M etropo litan G ov t, 448 S.W.2d 408 (Tenn. 1969), the Supreme Court was presented with an identical issue, i.e., th e cons titutionality of the then-existing motorcycle helmet statute. The Court upheld the statute, finding the regulatory m easure aimed at promoting public safety to be a constitu tionally valid exercis e of the sta te s police p ower. Id. at 411-12. The Court further rejected the defendant s contention that the statute violated his right to privacy under the United States Constitution on the basis that the the conduct regulated occurs in a public arena and . . . is of such a nature as to affect the safety of the num erous m otorcyclists and the safety of the public gen erally. Id. at 412. W hile appellants acknowledge that the holding in Arutan off is unfa vorab le to their position, they argue that Arutanoff was decided under the federal constitution, and the right to privacy under our state constitution was first recognized many years after tha t decision . See Davis v. Davis , 842 S.W.2d at 599-600. Further, because the right to privacy under state law is much broader than that un der fed eral law , they m aintain that the ruling in Arutanoff is inconsequential. We disagree. -6- Appe llants are correct in their assertion that the righ t to privacy under the Tennessee Cons titution is more expansive than the right to privacy under the United States C onstitution . Campbell v. Sundquist, 926 S.W.2d at 261; see also Davis v. Davis , 842 S.W .2d at 600 . However, the evolution of privacy law transpired out of the need to protect individuals from unwarranted governmental intrusion into matters . . . involving intima te que stions of pers onal a nd fam ily concern. Davis , 842 S.W.2d at 600 (emphasis added). Indeed, although Tennessee privacy law is more extensive than federal priva cy law, bo th bodies of law ha ve dra wn dis tinctions between actions which are committed in the privacy of the home a nd those co mmitted in p ublic. Campbell v. Sundquist, 926 S.W.2d at 262. Appe llants recog nize th at a pu blic roadw ay is the quinte ssen tial pub lic forum. The decision whether to wear protective headgear while operating a moto rcycle on a public roadway is in no way analogous to decisions involving parenting, procreation or conse nsual, no ncom mercia l sexual ac tivity. Appellan ts have cited no Tennessee authority which would extend a privacy right to conduct occurring within the public dom ain, nor is this Court aw are of any. We, therefore, agree with the Court in Arutan off that the statute at issue does not fall within the rubric of privacy law . Furthermore, protectin g the s afety of its citizen s is with in the state s police power, and the regulation at issue is rationally related to that state interest. See Arutan off, 448 S.W .2d at 411 -12; State v. Sowder, 826 S.W .2d 924, 927 (Tenn. Crim . App. 1991 ). This issu e is withou t merit. B. Freedom of Speech Appe llants also contend that Tenn. Code Ann. § 55-9 -302 is unco nstitutional in its application in that they declined to wear helmets in the -7- procession as a sign of respect for the deceased. Therefore, they urge that the statute impermissibly infringes on their constitutionally guaranteed freedom of expression. The First Amendment is implicated when a statute regulates conduct which has the incidenta l effect of bur dening express ion. Arcara v. Cloud Books, Inc., 478 U.S. 697, 70 2, 106 S.C t. 3172, 3175, 9 2 L.Ed.2d 5 68 (1986). However, not all conduct c an be cons idered spee ch un der the First Am endm ent sim ply because the person e ngaging in the conduct intend s thereby to expre ss an idea. United S tates v. O Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). Appellants claim that their refusal to wear helmets in the funeral procession as a show o f respect for the dec eased wa s comm unicative condu ct, and th e state does not co ntest th is asse rtion. W e will, therefore, assume for the purposes of this appeal that appe llants co nduc t was s ufficien tly expressive to implica te constitu tional princ iples of free speec h. See g enera lly Spence v. Washington, 418 U.S. 40 5, 94 S.Ct. 272 7, 41 L.Ed.2d 842 (1974 ). Even assuming that refusing to wear a helmet as a symbol of respect constituted speech under the First Ame ndme nt, appe llants are no t nece ssarily entitled to relief. The United States Supreme Court has held: when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can ju stify incidental limitations on First A mend ment fre edom s. . . a government regulation is sufficie ntly justifie d if it is within the constitutional power of the G overn men t; if it furthers an important or substantial governmental interest; if the g overnm ental intere st is unrela ted to the suppre ssion of fre e expres sion; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furthe rance o f that interes t. United States v. O Brien, 391 U.S. at 376, 88 S.Ct. at 1678-79. -8- Applying the four-p art O Brien test to the present facts, it is clear that the subject regulation is within the state s police power to protect the safety of its citizens. Gaskin v. S tate, 490 S.W .2d 521 , 525 (T enn. 19 73); Arutan off, 448 S.W.2d at 411-12. Furthermore, the statute serves the important governmental interest of protectin g the safe ty of motorcyclists as a class, as well as other motoris ts on the p ublic road ways. Arutan off, 448 S.W.2d at 411-12. Moreover, the state interest of p rotectin g the s afety of its citizen s is unrelated to the suppression of free speech. Certainly, it is beyond dispute that the statute req uiring helm ets is con tent-neu tral, as it has n o relation to speech or other forms of expressive conduct, nor does it seek to suppress expression as its purpose. Finally, the incidental restriction on appellants freedo m of e xpres sion is no greater than necessary to the furtherance of the state interest. [A]n incidental burden on speech is no greater than is essential, and th erefor e is pe rmiss ible under O Brien, so long as the neutral regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation . United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (19 85). Th e state inte rest of prote cting the s afety of m otorcyclists on public roadways would indeed be less effective without a regulation requiring the cyclists to wear pro tective headge ar. 3 In that all four ele ments of O Brien have been satisfied, we conclude that appellants rights to free express ion were not violated by their convictions under 3 The Gen eral A sse mb ly of Te nne sse e has ma de a le gislat ive de term inatio n tha t mo torcyc le helmet laws significantly promote public roadway safety. Since we have concluded that this determination does not implicate constitutionally protected privacy or free speech concerns, this determination was the prerogative of the legislature. Any argument regarding the efficacy of helmet laws must therefore be add ress ed to the G ene ral As sem bly. -9- Tenn. Code Ann. § 55-9-302. 4 See also Clark v. Community for Creative NonViolence, 104 S.Ct. 306 5, 104 S.C t. 3065, 82 L.Ed .2d 221 (198 4). This issu e has n o merit. SUFFICIENCY OF THE EVIDENCE In their final issue, ten (10) of the appellants assert that the evidence was insufficient for a rational trier of fact to find them guilty beyo nd a re ason able doubt. Primarily, th ey argue that the sta te did not present sufficient evidence of identity at trial. Appellants Harold Hileman and Cunningham concede that the evidence is sufficient to support their convictions. When an appellant challenges the sufficiency of the evidence, this Co urt does not reweigh or re evaluate the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state's witnesse s and re solves all co nflicts in favor o f the state. State v. Bigbee, 885 S.W.2 d 797, 8 03 (Te nn. 199 4); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom . Bigbee, 885 S.W .2d at 803 ; Harris , 839 S.W.2d at 75. This Cou rt will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant dem onstra tes tha t the fac ts con tained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find the accus ed guilty beyond a reason able do ubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). 4 Accordingly, it is the Our Supreme Court has held that, in certain contexts, Article I, § 19 of the Tennessee Constitution is coextensive with the scope of the First Amen dment to the U.S. Co nstitution. Davis-Kidd Booksellers, Inc. v. McW herter, 866 S.W .2d 520, 525 (Tenn. 1993 ) (obscenity). -10- appellate court's du ty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential eleme nts of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgin ia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 199 4). The appellan ts argue that the evidence presented at trial was insufficient to prove that they were riding their motorcycles without helmets. At trial, there was testimon y that, whe n issuing the citations , each offic er reque sted the cyclist s driver s license and registration, compared the individu al with h is or her d river s license picture, verified that the information on the license and registration was correct, and obtained the cyclist s signature on the citation. The officers verified that each cyclist was not wearing a helmet before issuing a citation and did not issue a citation to anyone who claimed that he was wearing a helmet in the procession. The officers determined whether an individual w as riding w ithout a helmet by observing whether the individual had a helm et in his or her possession. Additionally, the state introduced court documents which included appellants signatures, and the jury was able to compare the signatures on the co urt docum ents to the signature s on the c itations. The identity of the appellants was a question of fact for the jury . State v. Phillips, 728 S.W .2d 21, 25 (T enn. Crim. A pp. 1986). The jury cou ld reas onab ly infer from the evidence that appellants were riding their moto rcycles w ithout a helme t. This Co urt is not at libe rty to reevalu ate that as sessm ent. This issu e is withou t merit. -11- CONCLUSION W e hold that Tenn. Code Ann. § 55-9-302 does not violate appellants rights to privacy and freedom of expres sion prote cted un der the fe deral an d state constitutions. More over, w e con clude that the eviden ce is su fficient to susta in appellants convictions for violating the statute. Accordingly, the judgment of the trial court is affirmed. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ PAUL G. SUMMERS, JUDGE ___________________________________ DAVID G. HAYES, JUDGE -12-

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