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Multiple Criminal Counts During One Transaction

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Case: State of Tennessee v. Barry H. Hogg

Facts: Defendant engaged in several discrete sexual acts with Victim, a minor, over a period of less than an hour, during which Defendant created eleven video recordings with his camera lasting between two seconds and four minutes. Defendant was convicted of multiple counts of Sexual Exploitation, Statutory Rape, and Criminal Exposure to HIV.
Appellate Decision: The intermediate court upheld the convictions, determining that the various sexual acts and separate videos allowed for separate counts for each act and video.

Issue: Can multiple sexual acts and recordings over a one-hour span result in multiple charges?

Review Granted: August 13, 2013.

Prediction: Ben thinks the Supreme Court may merge some of the convictions. The intermediate court relied entirely on the Supreme Court’s decision in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), which held that three sexual acts over three hours constituted three offenses in light of the different body parts involved and the “natural limitations on human sexual endurance.” Although it is hard to imagine a bright-line rule here, more numerous acts in a shorter period of time may have a different result. Moreover, although the exploitation statute provides that each video can be charged as a separate count, several short digital video clips of the same episode may not appear to be what the legislature had in mind, especially because the Defendant could simply left the camera on and created a single video.