IN THE JUVENILE COURT OF HAMILTON COUNTY, TENNESSEE MOTION TO SET ASIDE ORDER AND RECALL SUMMONS

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1 IN THE JUVENILE COURT OF HAMILTON COUNTY, TENNESSEE * STATE OF TENNESSEE * * v. * No. 269,778 * 269,781 ANDRE D. MONTGOMERY, * 269,783 KARL WILLIAMS, and * ALLARD J. NAYADLEY * * * MOTION TO SET ASIDE ORDER AND RECALL SUMMONS COMES NOW, Allard J. Nayadley, by and through undersigned counsel, and hereby files this Motion to Dismiss pursuant to the United States Constitution and the Tennessee Constitution. The Defendant would respectfully show unto this Honorable Court the following: 1. A criminal Complaint and attached supporting affidavits were filed in this matter on January 14, After an ex parte hearing on this Complaint, this Court issued a Summons for Mr. Allard J. Nayadley to appear before this Court on January 21, Mr. Nayadley is the athletic director at Ooltewah High School and the father to a 15 year old, freshman player on the basketball team. To date, Mr. Nayadley has not been officially served with this Summons. For expediency, Mr. Nayadley waives official service. 2. The Complaint accuses Mr. Nayadley of failing to report child abuse and/or suspected child sexual abuse in violation of T.C.A and Violation of these statutes is a Class A Misdemeanor pursuant to T.C.A This is an allegation that 1

2 is criminal in nature, which invokes certain constitutional protections guaranteed to Mr. Nayadley and citizens of Tennessee and the United States. The accusation is not merely a civil matter and the state s request for transfer from juvenile court to the grand jury demands more than a superficial approval by this court. 3. The Complaint is supported by two (2) affidavits, one from Officer Mickey Rountree, and the other from Investigator Lisa Mathis. One affidavit is merely a verbatim copy of the other. In fact, these affidavits are one supporting affidavit. The affidavits reference a series of events that occurred outside of Hamilton County, Tennessee.. The alleged events cited occurred solely in Sevier County in or around December There is no allegation of an actus reus that is a violation of Tennessee law occurring in Hamilton County, the jurisdiction of this Court. Further, no alleged victims are identified by name or residency in the Complaint or Affidavits. This creates another jurisdictional problem with this Court. There is no nexus between any alleged act or person and this Court s jurisdiction. 5. This Court is bound by the four corners of the State s submitted documents pursuant to Rule 4 of the Tennessee Rules of Criminal Procedure. Our state and federal constitutional protections require probable cause to believe that a crime has occurred. There is no allegation supported by probable cause that any crime has occurred that would include Mr. Nayadley. MEMORANDUM 2

3 Mr. Nayadley, along with his two (2) codefendants, have been issued a Summons pursuant to Rule 4 of the Tennessee Rules of Criminal Procedure. Rule 4 states that [I]f the affidavit of complaint and any supporting affidavits filed with it establish that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate or clerk shall issue an arrest warrant or shall issue a criminal summons for the appearance of the defendant. Pursuant to the Fourth Amendment of the United States Constitution as well as Article I, Section 7 of the Tennessee Constitution, an arrest shall not be made without probable cause. Arrest warrants (or summons) may only issue upon a showing of probable cause. State v. Davis, 2007 WL *6 (Tenn.Crim.App. July 19, 2007), citing State v. Lewis, 36 S.W.3d 88, 97 (Tenn.Crim.App. 2000). Probable cause exists, if at the time of the arrest (or summons), the facts and circumstances within the knowledge of the officer, and of which they had reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. State v. Bishop, 431 S.W.3d 22 (Tenn. 2014). A factually sufficient basis for the probable cause judgment must appear within the affidavit of complaint. Davis, 36 S.W.3d at *7, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969). A mere statement of a legal result or conclusion is insufficient to charge an offense. Warden v. State, 381 S.W.2d 244 (Tenn. 1964). Article 1, 9 of the Tennessee Constitution provides every person the right to know the nature and cause of the accusations against him. Therefore, an affidavit, summons, or charging instrument that lacks an essential element to a 3

4 criminal charge does not meet the constitutional requirement of probable cause. State v. Marshall, 870 S.W.2d 532 (Tenn.Crim.App. 1993). That is precisely what we have in this case. A. The Summons must be recalled and the Complaint dismissed for lack of probable cause. _ The present Summons was issued based on statements alleged in the Complaint and supporting affidavits, and perhaps statements made in an ex parte hearing. The Summons was issued after this Court found reasonable grounds to believe the defendants violated the reporting requirements alleged in the Complaint. See Court Order. The Complaint and the supporting affidavits contain no assertion of probable cause. The Order issued by the Court makes no reference to a finding of probable cause. Instead, the Complaint, supporting Affidavits, and Court Order all make reference to a finding of reasonable cause or reasonable grounds. The Tennessee and United States Constitutions do not allow for a lesser version of probable cause to bring an individual before a court in a criminal case. To the extent that the State alleges that reasonable cause or reasonable grounds is a lesser standard than probable cause, Mr. Nayadley asserts that this Court does not have the authority to diminish the burden of the State of proving probable cause prior to an arrest or summons. To the extent that the State and Court are treating reasonable cause as interchangeable with probable cause, Mr. Nayadley asserts that the Complaint and supporting affidavits do not contain any factual allegations that amount to probable cause. If additional information or additional factual allegations were presented to this Court during the ex parte hearing, Mr. 4

5 Nayadley has not received notice of those additional allegations, and requests an immediate hearing to properly address and rebut those accusations. Within the four (4) corners of the Complaint, there exists only legal conclusory allegations that the three (3) defendants violated the above mentioned statutes. The Complaint and affidavits fail for several reasons. While the supporting affidavits briefly mention the activity in Sevier County, they do not allege sufficiently specific facts of Mr. Nayadley s involvement with this matter, and do not assert the essential elements of T.C.A Specifically, they do not allege that 1) Mr. Nayadley had knowledge of the alleged abuse; 2) that any of the victims made a complaint to Mr. Nayadley about the abuse; and 3) that Mr. Nayadley willfully and knowingly failed to report the abuse once a complaint was made. i. Actual Knowledge Pursuant to T.C.A , the very first element of this offense is the requirement that the defendant have knowledge of or is called upon to render aid to any child The Tennessee Court of Appeals has held that teachers have a non discretionary duty to report students complaints of child sexual abuse. Doe v. Coffee County Board of Education, 852 S.W.2d 899, 909 (Tenn.Ct.App. 1992). Significantly, here there is no allegation that a student made a complaint of abuse to Mr. Nayadley. Mr. Nayadley and his family were in Sevier County in December, like many others, as parents and family members to support his 15 year old son who was a basketball player in the 5

6 tournament. The Complaint and supporting affidavits make no allegation of knowledge because of course he had no knowledge of these events. Additionally, the documents fail to allege any element of knowledge. This omission is fatal to the Summons issued by this Court. What the documents allege is that the three defendants, grouped together, were made aware of the allegations and failed to report them. There is a significant difference between becoming aware of abuse allegations and having knowledge of allegations. This difference is mainly discussed in cases involving personal injury and actual versus constructive knowledge of injury. For instance, cases define constructive knowledge as whenever a party becomes aware or reasonably should have become aware of facts sufficient to put a reasonable person on notice. Phillips v. Casey, 2015 WL *4, (Tenn.Ct.App. July 21, 2015), quoting Lane Detman, L.L.C. v. Miller & Martin, 82 S.W.3d 284, 295 (Tenn.Ct.App. 2002). Knowledge or actual knowledge generally means that from one s relation to it, association with it, control over it, or direction of it, he has obtained such actual personal information about the condition as to give him knowledge concerning it. State v. Summers, 692 S.W.2d 439, 446 (Tenn.Ct.App. 1985). The Complaint and supporting affidavits do not allege that Mr. Nayadley had knowledge of the sexual abuse. They do not mention the word knowledge. They do not allege that any of the alleged victims made a complaint to Mr. Nayadley. Without knowledge and a complaint, there is no duty to report, because Mr. Nayadley cannot make a report of which he has no knowledge. Without a duty to report, there is no criminal activity. ii. Willful and Knowing 6

7 The second element the Complaint and supporting affidavits fail to plead is the requirement that the defendant knowingly and willfully fail to report sexual abuse pursuant to T.C.A Only a knowing and willful failure to report is subject to criminal liability. Pursuant to T.C.A , knowing refers to a person who acts knowingly with respect to the conduct or to the circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. The Complaint and affidavit do not allege that Mr. Nayadley possessed the mens rea, or knowingly and willfully failed to report the alleged abuse. To willfully and knowingly fail to report requires actual knowledge of the very accusation that is required to be reported. The Complaint and supporting affidavits are silent to each of these required elements, and should be dismissed. iii. Lack of Factual Specificity The Complaint and the supporting affidavits fail in that they do not provide specific information about the four (4) victims involved including whether they are all residents of Hamilton County, which would provide this Court with juvenile jurisdiction. Additionally, while the supporting affidavits mention the weekend on which the activity in Sevier County occurred, they also include generalized dates and allegations that have no specific factual allegations to form a sufficient complaint. What the Complaint provides this Court is a brief, legal conclusion that the defendants violated two Tennessee statutes, a general allegation of abuse that occurred outside of Hamilton 7

8 County over the course of a weekend, no specific facts about Mr. Nayadley s knowledge of the accusations, with three (3) unidentified victims that may or may not reside in Hamilton County. Respectfully, the Complaint and supporting Affidavits are deficient, do not assert facts that rise to the level of probable cause, and even taken as a whole, and should be dismissed. B. This Court has no jurisdiction over this matter. The alleged incidents occurred in Sevier County. Sevier County police were called and reported to the hospital. A social worker from the Sevier County Department of Children s Services was called and reported to the hospital. The case was reported to the juvenile court who had jurisdiction over these victims in that the juvenile court in Sevier County is the forum in which the three perpetrators are currently being prosecuted. Jurisdiction remains with the Sevier County Juvenile Court. There is no entity in Hamilton County to which Mr. Nayadley was required to report these accusations, and therefore, no jurisdiction in this Court. The intent behind the reporting statutes is that, once a school official has actual knowledge of abuse, he reports the misconduct to the appropriate officials. The appropriate officials were notified in this case. The way the State would have this Court interpret the statute, by requiring the defendants to report the abuse to Hamilton County Juvenile Court Judge, the Hamilton County Sheriff, the Chattanooga Police Chief or the local Department of Children s Services, is contrary to the intent of the statute. The purpose and intent of these statutes was met in this case. Appropriate officials were notified and involved in the treatment of the alleged victims and the prosecution of the alleged perpetrators all actions that Mr. Nayadley supports as a father and an athletic director. To subject Mr. Nayadley now to criminal liability for failing 8

9 to report the accusations outside of the jurisdiction of where the event occurred, goes against the purpose of the statute, wastes judicial resources, and is contrary to our understanding of the law. CONCLUSION Mr. Nayadley asserts that the Complaint and supporting affidavits fail to assert all elements of the criminal offense as defined in the relevant statutes, what little factual averments were made fail to amount to probable or reasonable cause, and challenges whether this Court has jurisdiction over this matter. For those reasons, the Complaint and supporting affidavits should be dismissed and summons recalled. WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays: 1. That the Court set this matter for a hearing on January 21, 2016; 2. That the Court, after said hearing, recall the summons issued against the Defendant; 3. That the Court, after said hearing, grant this Motion to Dismiss; 4. That the Court award the Defendant any further relief to which he may be entitled. Respectfully Submitted, 9

10 DAVIS & HOSS, P.C. s/lee Davis Lee Davis, BPR #15958 Janie Parks Varnell, BPR #31256 Attorneys for Allard J. Nayadley 850 Fort Wood Street Chattanooga, TN (423) (423) fax CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing motion was served upon all interested parties via hand delivery, U.S. First Class Mail, postage prepaid, by delivery, and/or by facsimile to the following: Neal Pinkston District Attorney General 600 Market Street Suite 310 Chattanooga, TN This the 21 day of January, s/lee Davis Lee Davis 10